Datto v. Association of American Medical Colleges et al

Filing 283

ORDER granting in part 211 Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint for Failure to State a Claim; denying without prejudice 251 Plaintiff's Motion for Relief from Local Rule 15.1 and to Be Allowed Leave to Amend Second Amended Complaint; and Adopting in Part 266 Report and Recommendations. Telephonic Status Conference set for November 18, 2020, at 11:00 a.m. before Judge Darrin P. Gayles. Signed by Judge Darrin P. Gayles See attached document for full details. (hs01)

Case 1:18-cv-21053-DPG Document 283 Entered on FLSD Docket 11/02/2020 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 18-cv-21053-GAYLES/LOUIS
JEFFREY PETER DATTO, Ph.D,
Plaintiff,
v.
UNIVERSITY OF MIAMI, et al.,
Defendants.
/
ORDER
THIS CAUSE comes before the Court on Defendants’ Motion to Dismiss Plaintiff’s
Second Amended Complaint for Failure to State a Claim (the “Motion to Dismiss”) [ECF No. 211]
and Plaintiff’s Motion for Relief from Local Rule 15.1 and to Be Allowed Leave to Amend Second
Amended Complaint (the “Motion to Amend”) [ECF No. 251]. The action was referred to
Magistrate Judge Lauren Fleischer Louis, pursuant to 28 U.S.C. § 636(b)(1)(B), for a ruling on all
pretrial, non-dispositive matters, and for a Report and Recommendation on any dispositive matters.
[ECF Nos. 139, 140, 141]. On July 23, 2020, Judge Louis issued her report recommending that the
Motion to Dismiss be granted in part and the Motion to Amend be denied (the “Report”) [ECF No.
266]. Plaintiff filed timely objections to the Report [ECF No. 274], and Defendants filed a response
to Plaintiff’s objections [ECF No. 282]. For the reasons that follow, the Court adopts the Report
in part.

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BACKGROUND 1
Plaintiff has filed a Second Amended Complaint alleging twenty-two counts against
Defendants University of Miami (the “University”), Dr. Damian Pearse (“Dr. Pearse”), and John
Does 1 though 5 [ECF No. 204]. As set forth in the Report, Plaintiff’s claims fall into five
categories: (1) education claims, in which Plaintiff alleges that the University rejected his
application to the University’s medical school either because Plaintiff is disabled or in retaliation
for his suit against Thomas Jefferson University (“TJU”); (2) employment claims, in which
Plaintiff alleges that the University terminated his employment as a research associate either
because Plaintiff was disabled or in retaliation for filing this lawsuit against the University and
failed to reasonably accommodate him by not supporting his grant applications; (3) contract
claims, in which Plaintiff alleges that he entered into three separate contracts with the University
regarding admission to the medical school, one of his grant applications, and his employment; (4)
a defamation claim; and (5) a claim under the Fair Labor Standards Act (“FLSA”). Id. After the
University and Dr. Pearse filed their Motion to Dismiss, Plaintiff sought leave to file a Third
Amended Complaint.
DISCUSSION
A district court may accept, reject, or modify a magistrate judge’s report and
recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which
objection is made are accorded de novo review, if those objections “pinpoint the specific findings
that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see
also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific
objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint

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The Court incorporates the Report’s recitation of the factual and procedural background.

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Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc.,
208 F. App’x 781, 784 (11th Cir. 2006).
In her Report, Judge Louis found that: (1) Plaintiff’s claims against Dr. Pearse under the
Americans with Disabilities Act (“ADA”), the Florida Civil Rights Act (“FCRA”), and Section
504 of the Rehabilitation Act of 1973 (the “Rehab Act”) (Counts VII-XVIII) should be dismissed
with prejudice as Dr. Pearse cannot be held individually liable for the alleged misconduct; (2)
Plaintiff’s claims for discrimination and failure to accommodate under the ADA and Rehab Act
(Counts I and II) should be dismissed with prejudice 2 as Plaintiff has not alleged a causal link
between his disability and the alleged discriminatory conduct or that the University failed to
provide him with reasonable accommodations that if granted would have enabled him to satisfy
the University’s admission requirements; (3) Plaintiff’s claims against the University for
retaliation under the ADA and Rehab Act relating to admittance to medical school (Counts III and
IV) should be dismissed with prejudice because the lawsuit against TJU is not a protected activity
and, even if it were, Plaintiff fails to allege a causal link between the protected activity and the
adverse action; (4) Plaintiff’s disparate treatment claims under the ADA, FCRA, and Rehab Act
relating to this employment (Counts VIII, XI, and XIV) should be dismissed without prejudice as
Plaintiff has failed to adequately allege a comparator who was treated more favorably than him or
that his termination was due to his disability; (5) Plaintiff’s claims for failure to accommodate
within the employment context under the ADA, FCRA, and Rehab Act (Counts VII, X, and XIII)
should be dismissed without prejudice because the accommodations sought by Plaintiff were not
applicable to his essential job duties; (6) Plaintiff’s claims for retaliation under the ADA, FCRA,
and Rehab Act relating to the University’s failure to support his grant applications (Counts IX,

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The Report recommended dismissing Counts I and II with prejudice as the Second Amended Complaint was
Plaintiff’s second attempt at pleading those claims. [ECF No. 266].

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XII, and XV) should be dismissed with respect to the Craig H. Neilson Foundation Grant, but
otherwise allowed to proceed with respect to the other grants; (7) Plaintiff’s claims for retaliation
under the ADA, FCRA, and Rehab act relating to his termination (Counts XVI, XVII, and XVIII)
should be allowed to proceed; (8) Plaintiff’s claim under the FCRA (Count VI) should be
dismissed with prejudice 3 for failure to exhaust administrative remedies; (9) Plaintiff’s claims for
breach of contract (Counts V, XIX, and XX) should be dismissed with prejudice as Plaintiff fails
to plead the elements of a contract; (10) Plaintiff’s claim for defamation (Count XXI) should be
dismissed with prejudice as the alleged statements are either conditionally privileged or not
actionable; and (11) Plaintiff’s claim under the Fair Labor Standards Act (“FLSA”) (Count XXII)
should be dismissed without prejudice for failure to adequately allege individual or enterprise
coverage. [ECF No. 266]. The Report also recommended denial of Plaintiff’s Motion to Amend,
as Plaintiff failed to detail his proposed amendments, but noted that Plaintiff should be granted
leave to amend any claim that the Court dismisses without prejudice.
The Court has conducted a de novo review of the record and the law and agrees with the
majority of the Report’s recommendations. The Court, however, declines to adopt the Report’s
recommendation as to Plaintiff’s claims for retaliation under the ADA and Rehab Act relating to
education (Counts III and IV).
To establish a prima facie case of retaliation under both the ADA and the Rehab Act,
Plaintiff must allege that (1) he engaged in statutorily protected conduct; (2) he suffered a
materially adverse action; and (3) there was a causal link between the adverse action and his
protected conduct. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir. 2001). It is

3

The Report recommends dismissal of this claim with prejudice as Plaintiff indicated in his Motion to Amend that
he wished to withdraw his education claims under the FCRA.

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undisputed that Plaintiff has adequately alleged that he suffered a materially adverse action.
Therefore, the Court addresses the first and third elements.
First, Plaintiff alleges that he was engaged in statutorily protected conduct, namely his
lawsuit against TJU. Defendants aruge that because Plaintiff’s lawsuit was against a different
entity over nine years ago, it does not constitute protected conduct related to the retaliation in this
case. In support, Defendants cite McShane v. Ashcroft, where the court held, on a motion for
summary judgment, that the plaintiff’s prior discrimination suits against a different party were “too
remote in time and unrelated to her employment to constitute protected activities related to the
retaliation in [that] case.” No. 03-20470-CIV, 2004 WL 5561681, at *8 (S.D. Fla. Aug. 31, 2004),
aff’d sub nom. McShane v. U.S. Attorney Gen., 144 F. App’x 779 (11th Cir. 2005). The Court finds
Defendants’ reliance on McShane is misplaced as McShane was decided after the benefit of
discovery. At this stage of the litigation, the Court finds that Plaintiff has adequately alleged that
he engaged in statutorily protected conduct.
The Court also finds that Plaintiff has alleged a causal link between the University’s denial
of his applications to the medical school and his lawsuit against TJU. “To establish a causal
connection, a plaintiff must show that ‘the decision-maker[s] [were] aware of the protected
conduct,’ and ‘that the protected activity and the adverse action were not wholly unrelated.’” Gupta
v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000) (alteration in original) (quoting Farley
v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999)), abrogated on other grounds
as recognized by Crawford v. Carroll, 529 F.3d 961, 973–74 (11th Cir. 2008). “Where a decisionmaker becomes aware of protected conduct, a close temporal proximity between the decisionmaker’s acquisition of that knowledge and an adverse employment action will generally be enough
to create a factual issue on the causation element.” Singleton v. Pub. Health Tr. of Miami-Dade

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Cty, 725 F. App’x. 736, 738 (11th Cir. 2018). Where “there is no other evidence tending to show
causation, the temporal proximity must be very close.” Id. (internal quotations omitted).
Defendants argue that the gap in time between Plaintiff’s lawsuit against TJU and the
University’s denial of his application is too long for there to be a causal link. However, to compute
the length of time that has elapsed, the Court starts with when University first became aware of
the protected conduct—not when Plaintiff filed the lawsuit against TJU. Moreover, at this stage of
the litigation, “it would be premature for the Court to dismiss Plaintiff's retaliation claim on this
ground without the Parties having the benefit of discovery, as lack of temporal proximity only
defeats

a retaliation claim

‘in

the

absence

of

other

evidence

tending

to

show

causation.’” Matamoros v. Broward Sheriff's Office, 0:18-CV-62813-KMM, 2019 WL 4731931,
at *4 (S.D. Fla. June 8, 2019) (quoting Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)).
See also Datto v. Florida Int’l Univ. Board of Trustees, No. 1:20-cv-20360-Bloom, 2020 WL
3963713, at *10, (S.D. Fla. July 13, 2020) (finding Plaintiff’s “allegations … sufficient to establish
that there is a causal link with sufficient temporal proximity between Plaintiff’s disclosure of the
TJU lawsuit and alleged retaliation.”). Accordingly, Counts III and IV may proceed.
CONCLUSION
Accordingly, after careful consideration, it is ORDERED AND ADJUDGED as follows:
(1)

Judge Louis’s Report and Recommendation, [ECF No. 266], is ADOPTED in
part;

(2)

Defendant’s Motion to Dismiss, [ECF No. 204], is GRANTED in part and
DENIED in part.

(3)

All counts against Dr. Pearse in his individual capacity (Counts VII-XVIII) are
DISMISSED with prejudice.

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(4)

Counts I, II, V, VI, XIX, XX, and XXI are DISMISSED with prejudice.

(5)

Counts VII, VIII, X, XI, XII, XIII, XIV, and XXII against the University are
DISMISSED without prejudice.

(6)

Counts III, IV, IX, XII, XV, XVI, XVII, and XVIII may proceed as pled.

(7)

Plaintiff’s Motion for Leave to Amend [ECF No. 251] is DENIED without
prejudice.

(8)

Plaintiff shall file a renewed motion requesting leave to amend his complaint,
attaching his proposed Third Amended Complaint consistent with the rulings in this
Order, on or before November 20, 2020.

(9)

This cause is set for a telephonic status conference on November 18, 2020, at 11:00
a.m. Counsel shall enter their appearances using the following dial-in information:
Dial-in Number 888-273-3658; Access Code 7032614; Security Code 5170.
Please dial in at least ten minutes before the Status Conference begins and wait until
your case is called. The Court will also hold a status conference in Datto v. Wilkie,
Case No. 20-cv-23816, at the same time. The purpose of the status conference will
be to determine whether the two actions should be consolidated.

DONE AND ORDERED in Chambers at Miami, Florida, this 2nd day of November, 2020.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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