James v. Intelligent Software Solutions, Inc.

Filing 68

ORDER granting in part 33 --motion to dismiss; dismissing count one; dismissing with prejudice count four; dismissing claims for punitive damages; amended complaint due 7/30/2017. Signed by Judge Steven D. Merryday on 7/21/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SHERI JAMES,
Plaintiff,
v.

CASE NO. 8:16-cv-2773-T-23TGW

INTELLIGENT SOFTWARE
SOLUTIONS, INC.,
Defendant.
____________________________________/

ORDER
Sheri James sues (Doc. 21-1) Intelligent Software Solutions, Inc., under the
Florida Civil Rights Act (FCRA) for sexual harassment, retaliation, and handicap
discrimination, and under Florida’s Whistle-blower Act (WBA) for retaliation.
Intelligent moves (Doc. 33) under Rule 12(b)(6), Federal Rules of Civil Procedure, to
dismiss Counts I through IV.
FACTS
Intelligent, a federal government contractor, employed James at a federal
facility. (Doc. 21-1, ¶ 10, 11, 18) James Bennett, a federal employee, allegedly
sexually harassed James. (Doc. 21-1, ¶ 19) James alleges that she reported Bennett’s
harassment to Intelligent and that Intelligent “failed to take prompt, remedial action”
to end the harassment. (Doc. 21-1, ¶ 20–22)

Following Intelligent’s alleged failure to “take remedial action,” James
allegedly reported Bennett’s behavior to Terry Meyer, a federal employee and a
liaison between Intelligent and the federal government, and “informed Meyer that
she would file an Equal Employment Opportunity Commission discrimination
charge, if necessary.” (Doc. 21-1, ¶ 25–28) Meyer allegedly reported James’s
harassment allegation to Intelligent and “directed” Intelligent to terminate James.
(Doc. 21-1, ¶ 30)
Sexual Harassment
To state a claim under the FCRA for sexual harassment, the plaintiff must
allege harassment “severe enough to affect a term, condition, or privilege of
employment and to create a discriminatorily abusive working environment.” Russell
v. KSL Hotel Corp., 887 So. 2d 372, 377 (Fla. 3d DCA 2004) (Levy, J.). Intelligent
argues that the conduct of Bennett, whom Intelligent neither employs nor controls,
cannot subject Intelligent to liability for sexual harassment. But an employer is liable
for failing to remedy the harassment of an employee by a third party who creates a
hostile work environment. Beckford v. Department of Corrections, 605 F.3d 951, 958
(11th Cir. 2010).
Without alleging any specific facts (for example, the time, place, and manner
of Bennett’s harassment), James alleges that she “was sexually harassed by an
employee of the federal government, James Bennett.” (Doc. 21-1, ¶ 19) James fails
to allege facts sufficient to state a claim of sexual harassment.

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Retaliation
When examining an FCRA retaliation claim, “Florida courts follow federal
case law.” Carter v Health Management Associates, 989 So.2d 1258, 1262
(Fla. 2d DCA 2008) (Wallace, J.). To state a claim for retaliation, James must allege
protected expression,1 an adverse employment action, and a causal connection
between the expression and the retaliation. Brown v. Snow, 440 F.3d 1259, 1266
(11th Cir. 2006). “The causal link element is construed broadly”; James “merely has
to prove that the protected activity and the negative employment action are not
completely unrelated.” Pennington v. City of Huntsville, 261 F.3d 1262 1266
(11th Cir. 2001).
Intelligent argues (1) that James’s “theory of liability is based on the false
premise that government employee Bennett’s imagined retaliatory intent can be
imputed to [Intelligent]” and (2) that because Intelligent is not Meyer’s employer
“[Meyer’s] speculated unlawful animus towards [James] cannot be imputed to
[Intelligent].”2 (Doc. 39 at 2, 3) Therefore, Intelligent asserts, no causal link exists
between James’s sexual harassment allegation and her termination.
As summarized in Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331
(11th Cir. 1999), in some cases if a discharge recommendation directly results in the

1

Protected expression occurs when a complainant attempts to exercise an FCRA right. To
establish protected expression a plaintiff must demonstrate that she “had a good faith, reasonable
belief that the employer was engaged in unlawful employment practices.” Weeks v. Harden Mfg.
Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).
2

The complaint lacks an allegation that Bennett retaliated.

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employee’s discharge an employer is liable for a discharge recommendation by a
third party who lacks discharge power:
We have previously stated the general proposition that in some cases, a discharge
recommendation by a party with no power to actually discharge the employee
may be actionable if the plaintiff proves that the recommendation directly
resulted in the employee’s discharge. . . . However, as we have recently
explained, this causation must be truly direct. When the biased recommender and
the actual decisionmaker are not the same person or persons, a plaintiff may not
benefit from the inference of causation that would arise from their common
identity. Instead, the plaintiff must prove that the discriminatory animus behind
the recommendation, and not the underlying employee misconduct identified in
the recommendation, was an actual cause of the other party’s decision to
terminate the employee.
One way of proving that the discriminatory animus behind the recommendation
caused by the discharge is under the “cat’s paw” theory. This theory provides that
causation may be established if the plaintiff shows that the decisionmaker
followed the biased recommendation without independently investigating the
complaint against the employee. In such a case, the recommender is using the
decisionmaker as a mere conduit, or “cat’s paw” to give effect to the
recommender’s discriminatory animus.

Stimpson, 186 F.3d at 1331–1332. Under Stimpson, an employer is liable for a
retaliatory discharge recommendation by a “party”; the term “party” is wide enough
to encompass a retaliatory discharge recommendation from a “person” not in the
employment of the employer who terminated the employee.
James satisfactorily alleges that she complained about sexual harassment and
that Intelligent terminated her. Also, by alleging that four days elapsed between
James’s reporting the harassment and Intelligent’s terminating her (Doc. 21-1 at 4),
James implies that Intelligent failed to independently investigate Meyer’s complaint.
In sum, James successfully pleads a causal connection between the alleged expression
and the retaliation.
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Whistleblowing
Section 448.102(3), Florida Statutes, protects an employee from retaliatory
action on the basis of an employee's objection to, or refusal to participate in, “any
activity, policy, or practice of the employer [that violates] a law, rule, or regulation.”
Golf Channel v. Jenkins, 752 So. 2d 561, 564 (2000). James must allege a refusal to
participate in an illegal activity, policy, or practice of Intelligent; an adverse
employment action; and a causal link between the adverse employment action and
her objection or refusal. See Usher v. Nipro Diabetes Systems, Inc., 184 So. 3d
1261–1262 (Fla. 4th DCA 2016) (Gross, J.).
Contrary to Intelligent’s assertion (Doc. 33 at 5–6), the FWA protects those
who allege workplace sexual harassment. Little v. Foster Wheeler Constructors, Inc.,
2010 WL 2035546, at *7 (S.D. Fla. 2010) (Seltzer, J.), aff’d 432 Fed. Appx. 907
(11th Cir. 2011); Rivera v. Torfino Enterprises, Inc., 914 So. 2d 1087
(Fla. 4th DCA 2005) (Taylor, J.); Underwood v. Rhone-Poulenc Rorer Pharmaceuticals,
Inc., 890 So. 2d 429 (Fla. 4th DCA 2004) (Geiger, J.).
James alleges, that Intelligent violated the law, that she objected to the
violation, that Intelligent failed to promptly remedy the alleged harassment, that she
engaged in protected conduct by reporting the alleged sexual harassment, and that
Intelligent dismissed her because she reported the sexual harassment to Intelligent
and to Meyer. As discussed in the analysis of James’s FCRA retaliation claim,
James sufficiently alleges that her firing is causally linked to her objecting to unlawful

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sexual harassment in the workplace. The complaint states a claim for retaliation
under Florida’s Whistleblower Act.
Handicap discrimination
The FCRA prohibits an employer from “discriminat[ing] against any
individual with respect to compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, national origin,
age, handicap, or marital status.”3 Because the FCRA is modeled on Title VII,
federal precedent informs statutory interpretation. Castleberry v. Edward M.
Chadbourne, Inc., 810 So. 2d 1028, 1030 (Fla. 1st DCA 2002) (per curiam). To state a
claim for handicap discrimination, James must allege that she is handicapped or
perceived as handicapped, that she is a “qualified individual,” and that she suffered
unlawful discrimination because of the handicap. Cash v. Smith, 231 F.3d 1301, 1305
(11th Cir. 2000). A plaintiff is “perceived as” handicapped if the plaintiff “has no
physical or mental [handicap] but is treated by an employer as having such [a
handicap].” Rossbach v. City of Miami, 371 F.3d 1354, 1360 (11th Cir. 2004).
The Americans with Disabilities Act defines a handicap as “a physical or
mental impairment that substantially limits one or more of the major life activities of
such individual, a record of such impairment; or being regarded as having such an
impairment.”4 “Major life activities” include “functions such as caring for oneself,

3

Section 760.10(1)(a), Florida Statutes.

4

42 U.S.C. § 12102(2).

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performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and
working.” Bragdon v. Abbott, 524 U.S. 624 (1998).
James alleges that “[a]s a result of [her] repeated reports of sexual harassment
by Bennett, Defendant perceived James as having a mental handicap . . . .
Defendant terminated James’s employment because it perceived her as
handicapped.” (Doc. 21-1 at 6) Because James fails to allege what mental disability
she believes that Intelligent thought she suffered, fails to allege how reports of sexual
harassment limited her in a major life activity, and fails to allege that Intelligent
perceived her as limited in a major life activity, James fails to state a claim for
handicap discrimination.5
Punitive damages
The FCRA allows punitive damages. Intelligent moves under Rule 12(b)(6) to
dismiss the punitive damages claims. A complaint must allege an adequate factual
basis for punitive damages. See generally Scutieri v. Paige, 808 F.2d 785, 791–793
(11th Cir. 1987).6
The standard for a punitive damages award under Section 760.10 is unclear.
“The Florida statute contains no express requirement that actions appropriate for
punitive damage awards must be willful, malicious or constitute wanton conduct by

5

James argues unconvincingly “that it is plausible that Defendant perceived James as having
‘made up’ or ‘hallucinated’ the harassment, i.e. had a mental handicap of some sort—whether it was
schizophrenia, PTSD, depression, anxiety—James cannot say at this juncture.” (Doc. 36 at 6)
6

Section 760.11(5) states that the general punitive damages pleading requirements of
Sections 768.72 and 768.73 do not apply to claims arising under the FCRA.

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the employer, as opposed to Title VII of the federal statute, which does contain such
a provision.” Speedway SuperAmerica, LLC v. Dupont, 933 So. 2d 75, 89–90
(Fla. 5th DCA 2006) (Sharp, J.) Unlike Title VII, the FCRA “simply provides” for a
punitive damages award. Dupont, 933 So. 2d at 89–90.
“Some federal courts have applied Title VII’s punitive damages standard to
claims for punitive damages under the FCRA.” Fla. Std. Jury Instr. (Civ.) 417.9. To
recover punitive damages under Title VII, the defendant must have discriminated
“with malice or with reckless indifference to the federally protected rights of an
aggrieved individual.” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d
1303, 1319 (S.D. Fla. 2004) (Altonoga, J.) (quoting 42 U.S.C. § 1981a(b)(1)). Florida
law allows punitive damages if “a defendant’s conduct is characterized by wilfulness,
wantonness, maliciousness, gross negligence or recklessness, oppression, outrageous
conduct, deliberate violence, moral turpitude, insult, or fraud.” Palm Beach Atlantic
College, Inc. v. First United Fund, Ltd. 928 F.2d 1538, 1546 (11th Cir. 1991).
James fails to allege facts sufficient to support a claim that Intelligent’s actions
amount to “willful, malicious, or wanton conduct.” James’s allegation that she
“repeatedly reported sexual harassment and that the Defendant failed to take prompt
remedial action” fails, on its own, to support a claim that Intelligent acted wilfully,
maliciously, or recklessly. Accordingly, James’s claims for punitive damages are
DISMISSED.

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CONCLUSION
Intelligent’s motion (Doc. 33) to dismiss is GRANTED IN PART. Count I is
DISMISSED. Count IV is DISMISSED WITH PREJUDICE. No later than
JULY 30, 2017, James must amend the complaint to comply with this order.
ORDERED in Tampa, Florida, on July 21, 2017.

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