Robinson v. HCA Healthcare Services Florida, Inc.
Filing
45
ORDER: "Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint With Prejudice" (Doc. 40) is granted. Counts 1, 2, 3, 4, 5, and 6 of the third amended complaint (Doc. 39) are dismissed with prejudice, without leave to amend. The Clerk is directed to terminate any pending motions and deadlines, and thereafter close this case. See Order for details. Signed by Judge Thomas P. Barber on 10/23/2024. (ANL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SANDRA M. ROBINSON,
Plaintiff,
v.
Case No. 8:24-cv-275-TPB-AEP
HCA HEALTHCARE SERVICES
FLORIDA, INC. d/b/a HCA FLORIDA
PASADENA HOSPITAL,
Defendant.
____________________________________/
ORDER GRANTING “DEFENDANT’S MOTION TO DISMISS
PLAINTIFF’S THIRD AMENDED COMPLAINT WITH PREJUDICE”
This matter is before the Court on “Defendant’s Motion to Dismiss Plaintiff’s
Third Amended Complaint With Prejudice,” filed by counsel on September 27, 2024.
(Doc. 40). Plaintiff Sandra M. Robinson, who is proceeding pro se, filed a response
in opposition on October 12, 2024. (Doc. 44). After reviewing the motion, response,
court file, and the record, the Court finds as follows:
Background 1
In her third amended complaint, Plaintiff Sandra M. Robinson asserts that
her former employer, Defendant HCA Healthcare Services Florida, Inc. d/b/a HCA
Florida Pasadena Hospital, failed to accommodate a disability, retaliated against
The Court accepts as true the facts alleged in Plaintiff’s complaint for purposes of ruling
on the pending motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen
ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint.”). The Court is not required to accept as true any
legal conclusions couched as factual allegations. See Papasan v. Allain, 478 U.S. 265, 286
(1986).
1
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her for statutorily protected conduct, and ultimately terminated her employment.
Plaintiff identifies her race as Caucasian, the year of her birth as 1957, and her
disability or perceived disability as Covid. She seeks around $453,000 in damages,
including wages with base pay and bonuses and emotional damages.
The Court previously dismissed Plaintiff’s complaint as a shotgun pleading,
for failing to include sufficient facts, and for failing to comply with the Federal
Rules of Civil Procedure. (Docs. 1; 7). The Court dismissed Plaintiff’s first amended
complaint and second amended complaint for failing to state a claim and failing to
comply with the Federal Rules of Civil Procedure. (Docs. 9; 11; 13; 37). With each
dismissal, the Court specifically identified deficiencies and explained what Plaintiff
must do to correct those defects.
On September 16, 2024, Plaintiff filed her third amended complaint. (Doc.
39). Defendant seeks dismissal of the third amended complaint with prejudice.
(Doc. 40).
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a
short and plain statement of the claim showing that the [plaintiff] is entitled to
relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual
allegations,” it does require “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In order to survive a motion to dismiss, factual
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allegations must be sufficient “to state a claim to relief that is plausible on its
face.” Id. at 570.
When deciding a Rule 12(b)(6) motion, review is generally limited to the four
corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233
(M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a
court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the
[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the
complaint’s legal sufficiency, and is not a procedure for resolving factual questions
or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic
Fertilizer, LLC, No. 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla.
Oct. 9, 2009) (Lazzara, J.).
As Plaintiff in this case is proceeding pro se, the Court more liberally
construes the pleadings. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
However, a pro se plaintiff must still conform with procedural rules and the Court
does not have “license to serve as de facto counsel” on behalf of a pro se plaintiff.
United States v. Padgett, 917 F.3d 1312, 1317 (11th Cir. 2019).
A district court must generally permit a plaintiff at least one opportunity to
amend a complaint’s deficiencies before dismissing the complaint with prejudice.
Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018). “Implicit in
such a repleading order is the notion that if the plaintiff fails to comply with the
court’s order – by filing a repleader with the same deficiency – the court should
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strike his pleading or, depending on the circumstances, dismiss his case and
consider the imposition of monetary sanctions.” Jackson v. Bank of America, N.A.,
898 F.3d 1348, 1358 (11th Cir. 2018) (internal quotations and citation omitted).
Analysis
Title VII Retaliation (Count 1)
In Count 1, Plaintiff attempts to plead retaliation in violation of Title VII. To
state a claim for retaliation, Plaintiff must allege that: (1) she engaged in
statutorily protected activity; (2) she suffered a materially adverse action; and (3)
there is some causal relation between the two events. See Hopkins v. Saint Lucie
Cty. Sch. Bd., 399 F. App’x 563, 566 (11th Cir. 2010) (citing McCann v. Tillman, 526
F.3d 1370, 1375 (11th Cir. 2008), cert. denied, 555 U.S. 944 (2008)). Title VII’s
antiretaliation provision does not protect an individual from all retaliation but from
retaliation that produces an injury or harm. Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67 (2006). Importantly, a plaintiff must show a material
adversity – “Title VII . . . does not set forth a ‘general civility code for the American
workplace,’” and “petty slights, minor annoyances, and simple lack of good
manners” will not rise to the level of materially adverse actions for retaliation
purposes. Id. at 68.
Plaintiff does not clearly identify any statutorily protected activity under
Title VII in which she engaged. To prove Title VII retaliation, “a plaintiff must
show 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
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(11th Cir. 2022); see 42 U.S.C. § 2000e-3(a). Most, if not all, of Plaintiff’s identified
activities would not implicate Title VII – such as her advocation for a young black
patient’s care or “voicing concerns” over patient discharge issues – because they do
not involve employment practices.
It appears that Plaintiff may be attempting to allege she opposed racial
discrimination by requesting direction and assistance from her supervisors
pertaining to the process of filing hostile and retaliatory work environment
complaints based on perceived discriminatory treatment toward two black
employees, but the third amended complaint does not make this sufficiently clear.
Furthermore, it does not appear that the statute would cover this type of activity –
Title VII protects employees who file formal complaints, as well as those who
informally voice complaints to their supervisors or who use their employer’s
internal grievance procedures. Gogel v. Kia Motors Manufacturing of Georgia, Inc.,
967 F.3d 1121, 1144 (11th Cir. 2020) (citing Furcron v. Mail Centers Plus, LLC, 843
F.3d 1295, 1311 (11th Cir. 2016)). But merely inquiring about how to complain or
use internal procedures does not seem sufficient to state a plausible claim based on
the opposition clause.
As pleaded, Plaintiff’s Title VII retaliation claim remains insufficient. The
Court has given Plaintiff multiple opportunities to cure these and other defects, but
she has failed to do so. See Jackson, 898 F.3d at 1358; Bank v. Pitt, 928 F.2d 1108,
1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am.
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Corp., 314 F.3d 541, 542 (11th Cir. 2002). Consequently, Count 1 is dismissed with
prejudice.
Racial Discrimination Under § 1981 (Count 2)
In Count 2, Plaintiff appears to allege a racial discrimination claim based on
her opposition to racially discriminatory practices. § 1981 prohibits discrimination
based on race in the making and enforcement of contracts, including employment
contracts. See Rodriguez v. Procter & Gamble Co., 338 F. Supp. 3d 1283, 1286 (S.D.
Fla. 2018). To state a claim, a plaintiff must allege that (1) she is a member of a
protected class; (2) the defendant discriminated against her based on her
membership in that class; and (3) the discrimination concerned one of § 1981’s
enumerated activities: “the right to make and enforce contracts, to sue, and to give
evidence.” Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1270 (11th
Cir. 2004).
Plaintiff is a Caucasian female and does not sufficiently plead that she was
discriminated against based on her status as a Caucasian woman. She also does
not allege discrimination against Plaintiff that concerned one of § 1981’s
enumerated activities. To be clear, even if Defendant were discriminating against
black employees, that would not give Plaintiff the right to bring a § 1981 claim for
discrimination under § 1981 on her own behalf. This is simply not permissible.
Count 2 is therefore dismissed with prejudice.
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Age Discrimination (Count 3)
In Count 3, Plaintiff asserts an age discrimination claim under the Age
Discrimination in Employment Act (“ADEA”). The ADEA protects individuals who
are at least 40 years old from age discrimination in employment. 29 U.S.C. §
631(a). To state a claim, Plaintiff must plead facts to show that she: (1) was a
member of a protected group; (2) was subject to an adverse employment action; (3)
was qualified to do her job; and (4) was replaced by a younger individual.
Hernandez v. Gen. Motors Fin. Co., Inc., No. 19-cv-20136-UU, 2019 WL 13470199,
at *3 (S.D. Fla. Mar. 14, 2019) (citing Benson v Tocco, Inc., 113 F.3d 1203, 1207-08
(11th Cir. 1997)).
Plaintiff has not pled sufficient facts to state a cause of action for age
discrimination. Plaintiff alleges that a supervisor made comments to Plaintiff about
having “older leaders in the building who need to retire” and the need for “younger
leaders” on April 13, 2022, and at other times. Plaintiff claims that she was
“uncomfortable” with these conversations and became concerned that her own job
would be in jeopardy. However, Plaintiff does not plead facts to show that she
herself was subjected to an adverse employment action – such as termination –
based on her age. The facts alleged do not come close to establishing a claim that
Plaintiff was discriminated against due to Plaintiff’s age. 2
In fact, Plaintiff states that when she resigned in April 2022, her supervisor asked
Plaintiff to extend the effective date of her resignation by several months to give Defendant
an opportunity to find a suitable replacement for Plaintiff. Just because that replacement
was younger that Plaintiff does not mean that Plaintiff was discriminated against based on
Plaintiff’s age.
2
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As pleaded, Plaintiff’s age discrimination claim remains insufficient. The
Court has given Plaintiff multiple opportunities to cure these and other defects, but
she has failed to do so. Consequently, this claim is dismissed with prejudice.
Retaliation and Failure to Accommodate in Violation of the ADA (Count 4)
In Count 4, Plaintiff asserts two ADA-related claims – an ADA retaliation
claim and a failure to accommodate claim. The Court notes that despite its prior
warnings to Plaintiff to separate out her claims into different counts, she
improperly combined her retaliation and failure to accommodate claims. This
constitutes a shotgun pleading, and the claim is subject to dismissal for this reason
alone. However, the Court will explain why even if the claims were properly
separated, Plaintiff has still failed to state an ADA retaliation or failure to
accommodate claim.
ADA Retaliation
The ADA prohibits an employer from discriminating against a qualified
individual “because such individual has opposed an unlawful act under the ADA, or
because such individual made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under those statutes.” Rohttis v.
Sch. Dist. of Lee Cty., No. 2:21-cv-737-JES-NPM, 2022 WL 3028071, at *6 (M.D. Fla.
Aug. 1, 2022) (citing 42 U.S.C. §12203(a)). To plead an ADA retaliation claim,
Plaintiff must allege that: “(1)[s]he engaged in conduct protected by the ADA; (2)
[s]he suffered an adverse employment action; and (3) the adverse employment
action was causally related to the protected conduct.” Id. (citing Powell v. Space
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Coast Credit Union, No. 6:15-cv-550-Orl-22TBS, 2015 WL 9664963, at *5 (M.D. Fla.
Dec. 23, 2015)).
In her amended complaint, Plaintiff does not allege that she engaged in any
activity actually or potentially implicating the ADA – she does not identify
participation in any allegedly protected activity, such as making a charge,
testifying, assisting, or participating in an investigation, proceeding, or hearing.
Plaintiff merely alleges that she informed her supervisor that Plaintiff had tested
positive for COVID-19, and that she was not permitted to return from her 5-day
quarantine. This is clearly insufficient to establish an ADA retaliation claim. See
id. at *5 (disclosure of positive COVID-19 test to employer does not implicate
protected activity under the ADA). This portion of Count 4 is dismissed with
prejudice.
Failure to Accommodate Claim
To the extent Plaintiff asserts an ADA failure to accommodate claim, Plaintiff
has not alleged facts to demonstrate that her alleged COVID-19 diagnosis is a
disability. It does not appear she can do so – she alleges that she had mild
symptoms and was only subject to a 5-day quarantine before she was permitted to
return to work. It would be absurd to hold that any employee who contracted
COVID-19 was disabled, and these facts would not establish a disability.
Moreover, Plaintiff continues to assert confusing and contradictory
allegations related to her COVID-19 diagnoses and request(s) for accommodation.
For instance, as the Court has continued to point out, the dates asserted by Plaintiff
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make little sense – if she was already separated from her employment on July 11,
2022, Defendant could not have failed to accommodate and/or could not have
retaliated against her by terminating her in August 2022. She also appears to
plead that she requested a reasonable accommodation of working from home during
her recovery from COVID-19, but she does not actually claim that Defendant did
not allow her to work from home – instead, she claims that Defendant denied her an
accommodation of providing her a workspace upon her return to work. This portion
of Count 4 is dismissed with prejudice.
Retaliation in Violation of Florida Private Whistleblower Act (Count 5)
In Count 5, Plaintiff attempts to assert – for the first time – a claim for
retaliation under the Florida Whistleblower Act (“FWA”), Fla. Stat. § 760.11, et seq.
She claims that she engaged in protected activity under the Act by reporting patient
care concerns, racial discrimination, unsafe working conditions, and billing
discrepancies and fraudulent billing. Plaintiff alleges that Defendant retaliated
against her by excluding her from workplace activities, withholding critical
information from her, harming her reputation, cancelling earned benefits,
attempting to classify her as “do not rehire,” verbally reprimanding her, and other
things up until her termination.
Under § 448.103, F.S., an employee subject to retaliatory action in violation
of the Florida Whistleblower’s Act may initiate a civil action “within 2 years after
discovering that the alleged retaliatory personnel action was taken, or within 4
years after the personnel action was taken, whichever is earlier.” In FWA claims
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based on employment termination, the cause of action accrues on the date of
termination. 3 See Dawodu v. DHL Express (USA) Inc., No. 18-24587-CIVWILLIAMS, 2019 WL 13255539, at *2 (S.D. Fla. Feb. 8, 2019); Sanders v. Temenos
USA, Inc., No. 16-cv-63040-BLOOM/Valle, 2017 WL 3336719, at *3 (S.D. Fla. Aug.
4, 2017); Bracamonte v. Parsons Transportation Grp., Inc., No. 11-24410-CIVSEITZ/SIMONTON, 2012 WL 13014691, at *3 (S.D. Fla. July 25, 2012).
Although the third amended complaint remains confusing as to the date of
Plaintiff’s separation from employment, construing in light most favorable to
Plaintiff, the latest possible date pled is August 15, 2022. The third amended
complaint, which asserted this FWA claim for the first time, was not filed until
September 16, 2024. Plaintiff was aware of the alleged facts that would comprise a
cause of action for whistleblower retaliation as they include actions such as verbal
reprimands, the cancellation of benefits, and termination. Any FWA claim is
therefore time-barred. See Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th
Cir. 2004) (“Dismissal of a complaint, without prejudice, does not allow a later
complaint to be filed outside the statute of limitations.”); Johnson v. Fla. Dep’t of
Health/Martin Cty. Health Dep’t, No. 12-80289-CIV, 2012 WL 6061770, at *2 (S.D.
Fla. Dec. 6, 2012) (granting defense motion to dismiss after review of second
amended complaint demonstrated that it was untimely as a matter of law after first
complaint was dismissed without prejudice). Count 5 is dismissed with prejudice.
Although Plaintiff complains of adverse actions that occurred prior to termination, she
was clearly aware of these actions at the time of her termination from Defendant, and the
termination constitutes the last possible adverse action suffered.
3
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Constructive Discharge in Violation of Title VII, ADA, and ADEA (Count 6)
In Count 6, Plaintiff attempts to assert a constructive discharge claim in
violation of Title VII, the ADA, ADEA, and the FWA. 4 The Court again notes that
despite its prior warnings to Plaintiff to separate out her claims into different
counts, she improperly combined her claims under Title VII, the ADA, and ADEA in
Count 6. This constitutes a shotgun pleading, and the claim is subject to dismissal
for this reason alone.
In addition, a constructive discharge claim requires proof that the work
environment and employment conditions were “so unbearable that a reasonable
person in the same position would have felt compelled to resign.” Medearis v. CVS
Pharmacy, Inc., 646 F. App’x 891, 898 (11th Cir. 2016). This presents an extremely
high threshold. See id. (“The standard for proving constructive discharge is higher
than the standard for proving a hostile work environment.”). Significantly, “Title
VII does not protect employees from stressful workplace environments.” Id.
Here, Plaintiff alleges that she was excluded from workplace activities,
subjected to the withholding of information, suffered reputational harm, received a
negative performance valuation despite meeting or exceeding goals, was subjected
to attempts to classify her as “do not rehire,” and received verbal reprimands. She
also alleges that she was prematurely terminated before being reinstated without
the same level of access, that Defendant removed her belongings and changed her
Plaintiff alleges that she was actually terminated from her position, so it is unclear why
also claims that she was constructively discharged.
4
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office lock without notification, and that Defendant pressured Plaintiff to leave after
her COVID-19 diagnosis.
Plaintiff has also not sufficiently pled that Defendant was motivated by
Plaintiff’s race, age, or disability. Moreover, Plaintiff has not actually pled any
intolerable working condition that forced her to resign. See, e.g., Agostino v. Lee
Cty. Bd. of Cty. Commr’s, No. 2:17-cv-236-FTM-99cm, 2017 WL 2930807, at *3
(M.D. Fla. July 10, 2017). Accepting all of Plaintiff’s allegations as true, even if the
Court were to disagree with the behavior of Plaintiff’s supervisors, these facts
simply do not rise to the level of constructive discharge. Because the Court has
granted Plaintiff several opportunities to cure deficiencies and she has failed to do
so, Count 6 is dismissed with prejudice.
Conclusion
The third amended complaint remains woefully insufficient. Plaintiff has
been warned – numerous times – of the defects identified here and of other defects.
The Court has explained – numerous times – the difficulties of civil litigation in its
written orders and at in-person status conferences. For instance, in its most recent
order dismissing the second amended complaint, the Court wrote:
The Court again reiterates that even pro se
plaintiffs must conform with procedural rules,
including the Federal Rules of Civil Procedure and
the Local Rules of the Middle District of Florida.
Litigation – particularly in federal court – is
difficult, and Plaintiff should consider hiring an
attorney. If she is unable to afford counsel, she
should consider the resources available to pro se
litigants, including the Legal Information Program
operated by the Tampa Bay Chapter of the Federal
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Bar Association, and the Middle District of
Florida’s guide to assist pro se litigants proceeding
in federal court, which is located on the Court’s
website. The Court is unlikely to grant another
opportunity to amend.
Even with the liberal construction due to pro se litigants, the Court does not have
license to serve as de facto counsel. 5 See United States v. Padgett, 917 F.3d 1312,
1317 (11th Cir. 2019). Plaintiff’s third amended complaint is therefore dismissed
with prejudice.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
1. “Defendant’s Motion to Dismiss Plaintiff’s Third Amended Complaint
With Prejudice” (Doc. 40) is GRANTED.
2. Counts 1, 2, 3, 4, 5, and 6 of the third amended complaint (Doc. 39) are
DISMISSED WITH PREJUDICE, without leave to amend.
3. The Clerk is directed to terminate any pending motions and deadlines,
and thereafter close this case.
DONE and ORDERED in Chambers, in Tampa, Florida, this 23rd day of
October, 2024.
__________________________________________
TOM BARBER
UNITED STATES DISTRICT JUDGE
5
The Court has encouraged Plaintiff to retain counsel, but Plaintiff has declined to do so.
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