Cooper v. Empower "U" Inc. et al

Filing 44

ORDER denying 35 Motion to Dismiss. Signed by Judge Beth Bloom on 5/9/2022. See attached document for full details. (pc)

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+UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-23880-BLOOM/Otazo-Reyes
TALICIA COOPER,
Plaintiff,
v.
EMPOWER U INC.,
and BETTER WAY OF MIAMI, INC.,
Defendants.
________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Empower “U”, Inc.’s (“Empower”)
Motion to Dismiss Count V of the Amended Complaint, which raises a claim for Intentional
Infliction of Emotional Distress (“IIED”). ECF No. [35] (“Motion”). Plaintiff Talicia Cooper
“Cooper”) filed a Response, ECF No. [40], and Empower filed a Reply, ECF No. [41]. The Court
has carefully considered the parties’ submissions, the record in this case, the applicable law, and is
otherwise fully advised. For the reasons that follow, the Motion is denied.
I.

BACKGROUND
The following facts are derived from the Amended Complaint, ECF No. [31], and the Court

accepts the factual allegations as true at the pleading stage. This case concerns Empower’s actions
following an assault on their former employee, Cooper, by a third party. Cooper worked as a
medical assistant for Empower, a health center that provides mobile services. ECF No. [31] ¶¶ 911. While on duty in the mobile unit bus, a patient physically and sexually attacked Cooper while
she was providing services at Better Way of Miami. Id. ¶ 14. Cooper was able to free herself from
the attacker and sustained physical injuries and emotional trauma in the process. Id. ¶ 15.

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Cooper immediately reported the incident to her supervisor, Tangelia Roundtree, who then
instructed Cooper to return to work, despite knowing that Cooper had just experienced a sexual
assault. Id. ¶¶ 28-29, 32. Cooper finished the last two hours of her shift “[d]espite being completely
distraught, emotionally shaken, and physically injured.” Id. at ¶ 33.
At the end of her shift, Cooper was called into a meeting with Roundtree, Doctor Darren
Thornton, Empower’s Medical Director, and another medical assistant. Id. ¶ 37. Dr. Thornton
shrugged his shoulders upon learning of the attack and said, “that’s what happens when you look
a certain way.” Id. ¶ 38. Dr. Thornton also told Cooper, “wear a lab coat to cover [your] hips and
butt”; “you smile too much, you’re too friendly, you invite this behavior”; and Roundtree scolded
her saying, “you shouldn’t have closed the door” to the bus. Id. ¶¶ 39-41. Cooper alleges that she
was wearing company-assigned scrubs and had to close the door to protect patient privacy. Id.
Empower did not offer Cooper medical attention or make provisions for her to report the incident
to law enforcement. Id. ¶¶ 42-43.
In the following months, “Cooper was subjected to unwelcome sexual harassment.” Id.
¶ 41. For example, when Cooper was wearing a brace on her hand because of the attack, an
Empower employee commented, “you hurt your dick sucking hand.” Id. ¶ 46. Cooper alleges that
Dr. Thornton also indicated that she got what she deserved because “that’s what she gets for
walking in tight ass pants. That’s what happens when she looks and dresses like that.” Id. ¶ 50. In
addition, Empower actively disseminated information about Cooper’s attack. Id. ¶ 47. Cooper
alleges further that Dr. Thornton instructed other employees to ignore her, that she should stop
acting like something was wrong, and “maybe if she wasn’t wearing all that shit showing off her
ass and body this wouldn’t have happened to her.” Id. ¶¶ 51-53. Phara Benoit, Empower’s COO,
indicated that “nothing happened” to Cooper, and Roundtree told her, “you’re a liability.” Id. ¶¶ 54-

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55. Cooper asserts that these incidents were part of a campaign to terrorize Cooper and cause her
emotional trauma with the purpose of making her want to resign. Id. ¶ 56. Cooper alleges that she
eventually left her job, having been constructively terminated due to Empower’s inappropriate
conduct. Id. ¶ 68.
As in the original complaint, see ECF No. [1], Cooper asserts eight causes of action in the
Amended Complaint, but only one is at issue in the Motion: the claim of Intentional Infliction of
Emotional Distress (Count V).1 Empower contends that Cooper’s allegations do not show that its
conduct was sufficiently egregious to support a cause of action for IIED. ECF No. [35] at 2.
II.

LEGAL STANDARD
A pleading in a civil action must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need
detailed factual allegations,” it must provide “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); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s
pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).
“To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at
570).
When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the

The Court dismissed Cooper’s IIED and invasion of privacy claims (Counts V and VI) in the original
complaint without prejudice and with leave to amend. In the Motion, Empower has not challenged Cooper’s
reasserted invasion of privacy claim.
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plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor
of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d
1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp.
2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts
“are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550
U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff’s Off., 449 F.3d 1342,
1352 (11th Cir. 2006). “[T]he court may dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) when, on the basis of a dispositive issue of law, no construction of the factual
allegations will support the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993) (citations omitted).
III.

DISCUSSION
In order to state a claim for IIED, a plaintiff must allege that “(1) the defendant’s conduct

was intentional or reckless; (2) the conduct was outrageous, beyond all bounds of decency, and
odious and utterly intolerable in a civilized community; (3) the conduct caused emotional distress;
and (4) the emotional distress was severe.” Moore v. Pederson, 806 F.3d 1036, 1053 (11th Cir.
2015). Under Florida law, “[w]hether conduct is sufficiently ‘outrageous’ to state a claim for IIED
is a question of law for the Court to decide.” Garcia v. Carnival Corp., 838 F. Supp. 2d 1334, 1339
(S.D. Fla. 2012) (citing Medina v. United Christian Evangelistic Ass’n, No. 08-22111-CV-Cooke,
2009 WL 653857, at *4 (S.D. Fla. Mar. 9, 2009)); see Liberty Mut. Ins. Co. v. Steadman, 968 So.
2d 592, 595 (Fla. 2d DCA 2007) (“Whether conduct is outrageous enough to support a claim of
[IIED] is a question of law, not a question of fact.”) (citing Gandy v. Trans World Comput. Tech.
Grp., 787 So. 2d 116, 119 (Fla. 2d DCA 2001)).
Empower argues that its conduct did not include repeated physical contact with Cooper as

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required under Florida law, and that Empower’s alleged verbal abuse alone is not sufficiently
outrageous to state a cause of action for IIED. In response, Cooper argues that Empower’s conduct
was not solely verbal abuse, and that by virtue of Empower’s knowledge of her susceptibility to
emotional distress and Empower’s authority over Cooper, the IIED claim is sufficiently alleged.
Cooper argues further that even if Empower’s conduct was solely verbal abuse, such conduct is
sufficient to sustain an IIED claim.
A. Nature of Conduct Alleged
As a threshold issue, the parties disagree with respect to the precise nature of the alleged
conduct giving rise to Cooper’s IIED claim. Empower contends that it was only verbal yet Cooper
asserts that Empower’s conduct did not just consist of verbal abuse. Upon review, Empower reads
the Amended Complaint too narrowly.
In the Amended Complaint, in addition to the inappropriate verbal comments, which
included blaming Cooper for the attack (“that’s what happens when you look a certain way”; “wear
a lab coat to cover [your] hips and butt”; “you smile too much, you’re too friendly, you invite this
behavior”; “you’re a liability”), intentional conduct on the part of Defendant is sufficiently alleged.
Cooper alleges that she was immediately sent back to work after reporting her assault, and that
Empower made no provisions for medical treatment or reporting the incident to law enforcement.
Cooper also alleges that Empower intentionally disseminated information about her attack, which
resulted in rumors and inappropriate comments by others, and that other employees were instructed
to ignore her, with the ultimate motive of getting her to resign. Properly viewed, those actions, in
conjunction with the inappropriate harassing comments made by Thornton, Benoit, and Roundtree,
constitute the basis of Cooper’s claim. As such, the Court disagrees with Empower’s

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characterization of Cooper’s claim as arising from verbal abuse alone.2
B. Outrageousness of the Conduct Alleged
Nevertheless, the question remains as to whether the alleged comments in conjunction with
Empower’s further actions are sufficiently outrageous to support a claim for IIED. “While there is
no exhaustive or concrete list of what constitutes outrageous conduct, Florida common law has
evolved an extremely high standard.” Garcia, 838 F. Supp. 2d at 1339 (citation omitted). The
Florida Supreme Court, when it recognized the common law tort of IIED, adopted the definition
of “extreme and outrageous” conduct set forth in the Restatement (Second) of Torts (1965) § 46
as follows:
It has not been enough that the defendant has acted with an intent which is tortious
or even criminal, or that he has intended to inflict emotional distress, or even that
his conduct has been characterized by “malice,” or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort. Liability has been
found only where the conduct has been 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. Generally, the case is
one in which the recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to exclaim,
“Outrageous!”
Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-79 (Fla. 1985). However, “[m]ere insults,
indignities, threats, or false allegations” are not enough. Williams v. Worldwide Flight Servs., Inc.,
877 So. 2d 869, 870 (Fla. 3d DCA 2004). Indeed, even allegations of “reprehensible, objectionable,
and offensive” conduct have been rejected as insufficient to state a claim for intentional infliction
of emotional distress. Id. Ultimately, “[t]he viability of a claim for intentional infliction of

The Court also disagrees that verbal abuse must always be accompanied by offensive physical harassment
in order to support an IIED claim under Florida law. Indeed, in Nims v. Harrison, 768 So. 2d 1198 (Fla. 1st
DCA 2000), the court reversed the dismissal of an IIED claim based upon words alone. In Nims, the plaintiff
teacher alleged that two students participated in the production and distribution of a newsletter in which the
author threatened to kill the plaintiff and rape her children. Id. at 1201. The court in Nims determined that
those allegations were sufficiently outrageous to sustain a claim for IIED. Id.
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emotional distress is highly fact-dependent, and turns on the sum of the allegations in the specific
case at bar.” Vernon v. Med. Mgmt. Assocs. of Margate, Inc., 912 F. Supp. 1549, 1558 (S.D. Fla.
1996) (citations omitted).
Cooper argues that a lower standard should apply because Empower knew that she was
peculiarly susceptible to emotional distress after her attack, and because of the employer-employee
relationship. Indeed, “[i]n certain instances, courts have allowed plaintiffs to state a claim for
[IIED] if the plaintiff ‘is peculiarly susceptible to emotional distress, and the other person knows
it,’ wherein courts may use a lower standard for ‘outrageous’ to evaluate the conduct in question.”
Bakar v. Bryant, No. 13-21927-CIV, 2013 WL 5534235, at *3 (S.D. Fla. Oct. 7, 2013) (citing
Jenks v. Naples Comm’y Hosp., 829 F. Supp. 2d 1325, 1256 (M.D. Fla. 2011)). Moreover, “the
unequal position of the parties in a relationship, where one asserts and has the power to affect the
interests of the other, may also supply the heightened degree of outrageousness required for a claim
of [IIED].” Liberty, 968 So. 2d at 596 (citing Restatement (Second) of Torts § 46 cmt. e.).3
Comment “f” to section 46 of the Restatement explains how knowledge of a person’s
particular susceptibility to emotional distress is relevant in determining whether the conduct
alleged is sufficient:
f. The extreme and outrageous character of the conduct may arise from the actor’s
knowledge that the other is peculiarly susceptible to emotional distress, by reason
of some physical or mental condition or peculiarity. The conduct may become
heartless, flagrant, and outrageous when the actor proceeds in the face of such
knowledge, where it would not be so if he did not know. It must be emphasized
again, however, that major outrage is essential to the tort; and the mere fact that the
actor knows that the other will regard the conduct as insulting, or will have his
feelings hurt, is not enough.
Restatement (Second) of Torts § 46 cmt. f. According to Defendant, “Cooper was not known by

Comment “e” to section 46 of the Restatement explains that “[t]he extreme and outrageous character of
the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him
actual or apparent authority over the other, or power to affect his interests.”
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Empower U to have any prior mental or physical condition that an instruction to return to work
would have worsened . . . [or] to have a mental of physical condition that mocking or derogatory
comments would have made substantially worse.” ECF No. [41] at 6. But Empower does not take
into account all of the conduct alleged. The Court concludes that the allegations warrant the use of
a lower standard of outrageousness.
The Court finds Thomas v. Hospital Bd. of Dirs. of Lee Cnty., 41 So. 3d 246 (Fla. 2d DCA
2010), to be instructive. In that case, medical staff administered a lethal dose of medication to a
patient after hip surgery. 41 So. 2d at 248-49. They then concealed and falsified the cause of her
death in hospital records and notified her family that she died from the “stress of surgery.” Id. at
249. A complete autopsy was not performed, and the decedent’s body was released to her family.
Id. After the medical examiner learned of her true cause of death, he contacted her family during
her funeral and demanded that her body be returned immediately for another autopsy. Id. In
determining that the IIED claim was sufficiently pleaded, the court observed that “[w]e believe
that in a situation where a person’s loved one has died, it would be apparent to anyone that the
person would be susceptible to emotional distress, and therefore, that the action of providing false
information concerning the loved one’s cause of death meets the standard for a claim of outrage[.]”
Id. at 256.
Estate of Duckett v. Cable News Network LLLP, No. No. 5:06-cv-444-Oc-10GRJ, 2008
WL 2959753, at *5 (M.D. Fla. July 31, 2008), is also persuasive. In Duckett, a mother whose son
was missing gave a recorded telephonic interview to a news show discussing her missing child. Id.
at *1. Before the show was aired, the mother committed suicide. Id. In support of its claim for
IIED, the estate alleged that the news show misrepresented the purpose of the mother’s appearance
on the show, and that news show knew that she was in a “severe state of mental anguish and

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distress,” but subjected her to interrogation and veiled accusations that she was responsible for her
son’s disappearance and death. Id. The defendants in Duckett, like Empower, also argued that their
conduct did not rise to the requisite level of outrageousness, but the court determined that the
allegations were sufficient. Id. at *5. The court observed that “[i]n particular, the Plaintiffs have
alleged that at the time the Defendants secured Ms. Duckett’s appearance on the show, the
Defendants were very much aware that Ms. Duckett was already suffering emotional and
psychological stress from the disappearance of her son[.]” Id.
In the instant case, the Court finds that it would be apparent to anyone that an individual
who has just been physically and sexually assaulted, similar to one who has learned of a loved
one’s death or a missing child, would be susceptible to emotional distress. Here, Cooper alleges
that she immediately reported being physically and sexually attacked to her supervisor, but then
was instructed to return to work despite her supervisor’s knowledge that she had been attacked,
with no provisions made to receive any medical attention or report to law enforcement. In addition,
Cooper alleges that at the end of her shift that same day, her superiors proceeded to blame her for
inviting the attack. Then to add further insult to injury, those same individuals allegedly
disseminated information about Cooper’s attack resulting in additional harassment. The
Defendant’s knowledge of Cooper’s susceptibility to distress from the situation she had just
experienced and immediately reported convinces the Court that the lower standard of
outrageousness is appropriate in this case.
Using this lower standard and taking Cooper’s allegations as true, the conduct described in
the Amended Complaint is sufficient to state a claim for IIED. The actions of sending her back to
work without providing the opportunity for her to be examined by a doctor or report the incident
to law enforcement, particularly where she had just been attacked, and then to engage in victim-

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blaming and disseminating information about her attack to others is conduct that an average
member of the community would consider to be atrocious, and utterly intolerable in a civilized
community. Metropolitan Life, 467 So. 2d at 278-79; see Liberty, 968 So. 2d at 596 (finding that,
although allegations of conduct alone were “not so outrageous,” when viewed in light of
defendant’s alleged knowledge of plaintiff’s susceptibility to emotional distress, they were
outrageous).
CONCLUSION

IV.

Accordingly, the Motion, ECF No. [35], is DENIED. Defendant shall file its answer to the
Amended Complaint no later than May 16, 2022.
DONE AND ORDERED in Chambers at Miami, Florida, on May 9, 2022.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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