BROCK v. G4S/WACKENHUT
Filing
71
ORDER granting in part 56 Motion to Dismiss. The motion is denied as to Count II. However, Counts I and III of Plaintiffs Amended Complaint are dismissed with prejudice as to Defendant ICA. Signed by JUDGE RICHARD SMOAK on 3/24/2014. (jem)
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
AARON MICHAEL BROCK,
Plaintiff,
v.
CASE NO. 5:13-cv-196-RS-EMT
G4S/WACKENHUT and
ICA,
Defendants.
_____________________________/
ORDER
Before me are Defendant Infrastructure Corporation of America, Inc.’s
(“ICA”) Motion to Dismiss, or, in the Alternative, for Summary Judgment (Doc.
56) and Plaintiff’s Objection to Defendant ICA’s Motion to Dismiss or in the
Alternative for Summary Judgment (Doc. 64).
Standard of Review
To overcome a motion to dismiss, a plaintiff must allege sufficient facts to
state a claim for relief that is plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is
clear that no relief could be granted under any set of facts that could be proven
consistent with the allegations of the complaint. Hishon v. King & Spalding, 467
U.S. 69, 104 S. Ct. 2229, 2232 (1984).
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The Supreme Court has clarified the specificity of pleading required to
survive a motion to dismiss:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is entitled to
relief.” Specific facts are not necessary; the statement need only
“‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).
Erickson v. Pardus, 551 U.S. 89, 93 (2007). A complaint thus “does not need
detailed factual allegations.” Bell Atlantic Corp., 550 U.S. at 555.
On the other hand, a conclusory recitation of the elements of a cause of
action is insufficient. A complaint must include more than “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp., 550 U.S. at 555. A complaint must include “allegations
plausibly suggesting (not merely consistent with)” the plaintiff’s entitlement to
relief. Id. at 557.
Unless “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged[,]” a
district court should grant a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). This is so because
the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. . . . [Federal] Rule [of
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Civil Procedure] 8 marks a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era, but it does not
unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions.
Id. at 678-79.
Background
In considering a motion to dismiss, I must construe all allegations in the
complaint as true and in the light most favorable to the plaintiff. Shands Teaching
Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir.
2000) (citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.
1999)).
Plaintiff has filed a three count complaint against Defendants for retaliation
pursuant to 42 U.S. C. § 12203, negligence, and intentional infliction of emotional
distress. Doc. 27. In support of Plaintiff’s claims, Plaintiff alleges that in 2012, he
was employed as a security officer with G4S who contracts to provide security
services for ICA. Id. During that same year, Plaintiff “participated in the
investigation and administrative litigation of employment discrimination charges
filed by another G4S employee, Keith Galloway.” Id. During the administrative
hearing, Keith Galloway and “several other employees of G4S testified under oath
about the hostile and aggressive actions of the ICA employee, Mr. Rick Russo.” Id.
Plaintiff participated by giving information to Keith Galloway’s counsel to use
during the administrative hearing. Id. Management from both companies testified
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under oath that they condoned the actions of Mr. Russo. Id. Subsequently, Mr.
Galloway received a favorable ruling by EEOC/FCHR. Id.
Plaintiff also alleges that in 2012 he was “harassed, threatened, stalked, and
otherwise mistreated by an employee of ICA,” the same Mr. Russo. Id. For
instance, on July 2, 2012, “Mr. Russo yelled, drove his vehicle” at Plaintiff “in a
threatening manner, cursed him, and assaulted him[.]” Id. Plaintiff claims that
although “he complained repeatedly” to the management of G4S and ICA, neither
company did “anything to stop the activities of” Mr. Russo. Id. Instead, Plaintiff
concludes both G4S and ICA “ratified the employee’s behavior.” Id.
Consequently, Plaintiff was “forced to leave” once the work environment got too
bad. Id.
Mr. Russo, an employee of ICA, is an ex-offender who previously served
prison time. Id. In addition to Mr. Galloway’s discrimination charge, Mr. Russo
was involved in at least one other discrimination charge. Id. Even though Plaintiff
filed a complaint with the sheriff against Mr. Russo, Defendants knew of Mr.
Russo’s unlawful actions and past criminal history, and Defendants were notified
of Mr. Russo’s conduct towards Plaintiff, Defendants did not terminate Mr.
Russo’s employment until after Plaintiff left. Id.
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Analysis
Count I: Retaliation Claim
In Count I, Plaintiff alleges G4S and ICA retaliated against him in violation
of the Americans with Disabilities Act, 42 USC § 12203. Doc. 27. Defendant ICA
argues that Plaintiff has failed to file suit against it in the time period specified in
the EEOC Right to Sue Notice. Doc. 57. Thus, according to Defendant ICA,
Count I of Plaintiff’s complaint as to Defendant ICA should be dismissed with
prejudice. Id. “The starting point of ascertaining the permissible scope of a
judicial complaint alleging employment discrimination action is the administrative
charge and investigation.” Minix v. Jeld-Wen, Inc., 237 F. App’x 578, 587 (11 th
Cir. 2007).
According to the Eleventh Circuit, to assert a claim under the ADA, a
plaintiff must comply with the same procedural requirements to sue as exists under
Title VII of the Civil Rights Act of 1964. Zillyette v. Capital One Fin. Corp., 179
F.3d 1337, 1339 (11th Cir. 1999). Under Title VII, the person claiming to be
aggrieved has ninety (90) days after getting notice that the EEOC will not file suit
or obtain a conciliation agreement to bring a civil action against the respondent
named in the charge. Id. (citing 42 U.S.C. § 2000e-5(f)(1)). If a plaintiff fails to
file suit within the time period indicated on the EEOC notice, the cause of action is
time-barred and a motion to dismiss is appropriate. See id.
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The ICA EEOC Right-to-Sue Notice , which is dated February 28, 2013,
mandates that Plaintiff’s lawsuit “must be filed WITHIN 90 DAYS of your
receipt of this notice; or your right to sue based on the charge will be lost.” Doc.
57-1. Plaintiff did not file a cause of action against Defendant ICA until
November 12, 2013, approximately 250 days after the EEOC Right-to-Sue Notice
naming ICA. Doc. 27. Even if it is can be determined that Plaintiff did not receive
notice, by no fault of his own, approximately on February 28, 2013, Plaintiff
attached the ICA EEOC Right-to-Sue Notice to his first Complaint on May 28,
2013, but failed to name ICA as a Defendant. Doc. 1-1; see Zillyette., 179 F.3d
1337. By the time Plaintiff named ICA as a Defendant, the 90-day period had
lapsed for both the February 28, 2013, date and the May 28, 2013, date.
Accordingly, Count I of Plaintiff’s Complaint is dismissed as time-barred.
Count II: Negligence
In Count II, Plaintiff alleges G4S and ICA negligently hired, supervised,
trained, and retained Mr. Russo despite Defendants’ knowledge of Mr. Russo’s
unlawful conduct. Doc. 27. To state a claim for negligence under Florida law, a
plaintiff must allege that the defendant owed the plaintiff a duty of care, that the
defendant breached that duty, and that the breach caused the plaintiff to suffer
damages. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001).
Plaintiff has alleged that “ICA and G4S owed [Plaintiff] a legal duty to hire,
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supervise, train, or train competent employees.” Doc. 27. This allegation includes
not only Mr. Russo but also ICA’s other employees. In his complaint, Plaintiff
claims that he reported Mr. Russo’s unlawful conduct to his supervisors and the
management of ICA, but both companies failed to intervene, stop Mr. Russo’s
behavior, or protect Plaintiff. Id. Thus, Plaintiff has alleged sufficient facts to
support a prima facie case for negligence.
Count III: Intentional Infliction of Emotional Distress
In Count III, Plaintiff claims ICA and G4S are liable for the intentional
infliction of emotional distress because they failed to stop Mr. Russo’s allegedly
harassing conduct. To be actionable, the conduct must be “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-79 (Fla.
1985). Claims for intentional infliction of emotional distress are consistently
dismissed in discrimination cases. Ayers v. Wal-Mart Stores, Inc., 941 F. Supp.
1163, 1168 (M.D. Fla. 1996).
By reciting that Defendants’ “acted intentionally and recklessly” by failing
to stop Mr. Russo’s allegedly harassing conduct, “resulting in [Plaintiff] suffering
emotional distress which was, is, and continues to be severe[,]” Plaintiff has
merely plead conclusory statements and has failed to allege any facts to support an
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inference that Defendant’s conduct was “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency and to be
regarded as atrocious, and utterly intolerable in a civilized community.” See Metro.
Life, 467 So. 2d at 278-79. Without alleging facts to support such conclusions,
Plaintiff has failed to make a prima facie case that Defendant ICA is liable for
intentional infliction of emotional distress. See Ashcroft v. Iqbal, 556 U.S. 662,
678-9 (2009).
Conclusion
Defendant ICA’s Motion to Dismiss Second Amended Complaint (Doc. 56)
is GRANTED in part. The motion is denied as to Count II. However, Counts I
and III of Plaintiff’s Amended Complaint are dismissed with prejudice as to
Defendant ICA.
ORDERED on March 24, 2014.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE
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