The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TAMMIE JONES,
Plaintiff,
Case No.: 8:17-cv-2098-EAK-TGW
LAKELAND REGIONAL MEDICAL
CENTER,
Defendant
ORDER
Plaintiff Tammie Jones sues Defendant Lakeland Regional Medical Center
(“Lakeland”) under Title VII of the Civil Rights Act (“Title VIT”), 42 U.S.C. §§ 2000e
et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et_seq.
(Doc. 19). ‘Lakeland moves to dismiss. (Doc. 20). Jones opposes. (Doc. 22). The
Court will grant-in-part and deny-in-part the motion.
I. Background!
Jones is a 51-year-old African American female. ‘She is the primary caregiver
for her disabled daughter, who was previously diagnosed with paranoid schizophrenia.
Lakeland is a large medical center operating in Polk County, Florida. Jones
was previously employed by Lakeland as a customer service representative. Ann
' The facts in this section are gleaned from Jones’ operative, amended complaint and documents she
submitted to the Equal Employment Opportunity Commission.
Ragsdale, a white female, was Jones’ direct supervisor. Michelle Allen, a white
female, oversaw Lakeland’s entire customer service department.
In February and March of 2015, Jones requested her work schedule be altered.
Specifically, Jones requested permission to report to work later in the morning so that
she could care for her daughter. Allen denied Jones’ requests. Jones complained to
both Ragsdale and Allen that Allen’s denial was discriminatory. After Jones
complained, Ragsdale and Allen allegedly became “hypercritical” of Jones, unfairly
disciplined her for minor tardiness, and altered her timesheets to make it appear she’d
been late to work.
In March of 2016, Allen promoted Christie Southerland, a white female, toa
position more senior than Jones’. Southerland was substantially younger than Jones
and had considerably less experience, tenure, and seniority. Jones alleges the position
wasn’t posted to Lakeland’s internal job board, and, despite her superior
qualifications, Jones wasn’t given an opportunity to apply for the position. Jones also
alleges that, at the time Allen promoted Southerland, Allen stated she wanted to
promote someone younger who wasn’t a minority.
Lakeland fired Jones on May 27, 2016, for excessive tardiness. Jones, however,
felt she’d been discriminated against, so she submitted an intake questionnaire to the
Equal Employment Opportunity Commission (“EEOC”) on November 25, 2016. She
subsequently filed a formal charge of discrimination with the EEOC on December 21,
2016. The EEOC issued Jones a right to sue letter on June 6, 2017. Proceeding pro
se, Jones initiated the instant action on September 1, 2017.
On motion by Lakeland, the Court dismissed Jones’ original complaint for
failure to state a plausible claim for relief. However, the Court granted Jones leave to
amend her complaint to correct her pleading deficiencies. Jones, now represented by
counsel, filed her operative, amended complaint on January 9, 2019. Lakeland again
moved to dismiss on January 23, 2019. Jones responded in opposition to Lakeland’s
motion on February 6, 2019. Lakeland’s motion is ripe for the Court’s review.
Yl. Legal Standard
Rule 8 of the Federal Rules of Civil Procedure requires complaints to contain
“a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Rule 12 allows the Court to dismiss a complaint for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To avoid
dismissal, a plaintiff must state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. The Court must accept all factual
allegations in the complaint as true but doesn’t credit “mere conclusory statements”
or “[t]hreadbare recitals of the elements of a cause of action.” Id. Additionally,
dismissal is warranted under Rule 12 if, assuming the truth of the complaint’s factual
allegations, a dispositive. legal issue precludes relief. Neitzke v. Williams, 490 U.S.
319, 326-27 (1989).
Wi. Discussion
Jones’ amended complaint asserts three separate claims:
1. “Race Discrimination in Violation of Title VII” (predicated on a failure to
promote) (Count I);
2, “Age Discrimination in Violation of [the ADEA]” (predicated on a failure
to promote) (Count IT); and
3. “Association Discrimination in Violation of the [ADA]” (Count TT).
(Doc 19 at 4952-98). Lakeland moves to dismiss each of Jones’ claims. Specifically,
Lakeland moves to dismiss Jones’ failure to promote claims in Counts I and II on
grounds that she failed to exhaust her administrative remedies. Lakeland moves to
dismiss Jones’ association discrimination claim in Count II on grounds that the claim
is time-barred and otherwise fails to state a plausible claim for relief.’
As an initial matter, the Court will address the claims Jones hasn’t pleaded. The
Court will then address Jones’ claims in Counts J and II, together. Finally, the Court
will address Jones’ claim in Count III.
* To the extent Jones attempts to bring a so-called “failure to accommodate” claim in Count III,
Lakeland moves to dismiss such a claim on grounds that it fails as a matter of law. However, in her
response in opposition to Lakeland’s motion, Jones concedes her “amended complaint does not allege
. that she was entitled to an accommodation based on her association with a disabled person.” (Doc.
22 at 5).
A. Jones Failed to Plead Her Purported Retaliation Claims in Specifically
Delineated Counts.
Jones makes passing mention in her amended complaint of being subjected to
unlawful retaliation. The parties’ briefs fail to address the allegations. The Court will
address them sua sponte.
Rule 10 requires that a complaint’s causes of action be specifically delineated in
separate counts, Fed. R. Civ. P. 10(b), “and with such clarity and precision that the
defendant will be able to discern what the plaintiff is claiming and to frame a
responsive pleading,” Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. Coll., 77
F.3d 364, 366 (11th Cir. 1996). Failure to do so subjects such claims to dismissal. See
e.g., Battiste v. Jenne, No. 1:05-cv-22970-PCH, 2006 WL 8432517, at *1 (S.D. Fla.
June 14, 2006) (Huck, J.); Harris v. Radioshack Corp., 1:01-cv-5093-JAL, 2002 WL
1907569, at *2 (S.D. Fla. May 23, 2002) (Leonard, J.).
In the opening paragraph of her amended complaint, Jones alleges “(Lakeland]
retaliated against her in violation of” Title VII, the ADEA, and the ADA. (Doc. 19 at
1). Additionally, in the “General Allegations” section of her amended complaint,
Jones alleges she “was not given the opportunity to interview for the position [to which
Southerland was promoted] because [Lakeland] was retaliating against [Jones] for
complaining about unfair treatment with regards to scheduling.” Id. at (49. Her
amended complaint contains no other allegations with respect to Lakeland’s alleged
retaliation. Nor does it contain specifically delineated counts for retaliation under any
cognizable anti-retaliation laws. Accordingly, to the extent Jones attempts to bring
claims for retaliation against Lakeland, such claims are due to be dismissed. The
dismissal will be without prejudice.
B. Jones Failed to Exhaust Her Administrative Remedies with Respect to
Her Title VII and ADEA Failure to Promote Claims.
Lakeland argues that Jones failed to allege in her EEOC charge that she’d been
denied a promotion due to her race and age. And because she failed to include those
allegations in her EEOC charge, says Lakeland, Jones’ failure to promote claims in
Counts I and I are procedurally barred for failure to exhaust her administrative
remedies. Jones disagrees and counters that the allegations in her EEOC charge
clearly encompass Allen’s alleged discriminatory promotion of Southerland over
Jones. .
In order to litigate a claim in federal court for discrimination under Title VI or
the ADEA, a plaintiff must first exhaust her administrative remedies, beginning with
the filing of a charge of discrimination with the EEOC. 42 U.S.C. § 2000e-5; Rizo v.
Ala. Dep’t of Human Res., 228 Fed. App’x 832, 835 (11th Cir. 2007) (citing Wilkerson
v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001)). Although courts “must
liberally construe EEOC charges that are prepared without the assistance of counsel,
a plaintiff's civil complaint remains ‘limited by the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge of discrimination.’””
Green v. Elixir Indus., Inc., 152 F. App’x 838, 840 (11th Cir. 2005) (quoting Gregory
v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004)). To that end,
“{j]udicial claims that ‘amplify, clarify, or more clearly focus’ the allegations in the
EEOC charge are permitted,” Stuart v. Jefferson Cnty. Dep’t of Human Res., 152 F.
App’x 798, 801 (11th Cir. 2005) (citing Gregory, 355 F.3d at 1279-80). But a plaintiff
“cannot allege new acts of discrimination” that weren’t included in her EEOC charge.
a
The relevant portions of Jones’ EEOC charge, (Doc. 1 at 18-19), allege the
following:
Jones was previously employed by Lakeland as a customer service
representative. Jones requested the use of a “flexible schedule” in February 2015 due
to her association with a person with a disability, but her request was denied. Because
of Jones’ request, she was retaliated against in that her time was scrutinized and
manipulated, and she was unfairly written up and targeted. Jones was ultimately fired
on May 27, 2016. Sometime thereafter, Lakeland’s Human Resources department
informed Jones that she was eligible for rehire. Jones applied for certain positions but
wasn’t selected. Rather, Lakeland selected less qualified individuals to fill those
positions.
Critically, Jones makes no mention in her EEOC charge of an available position
that wasn’t posted to Lakeland’s job board, Allen’s promotion of Southerland, or
Allen’s alleged comments regarding her intention to hire a younger, non-minority to
fill the position. While Jones alleges in her EEOC charge that she wasn’t selected for
“certain positions,” she also alleges that she applied for those positions only after she
was fired in May of 2016, and only in an effort to secure rehire by Lakeland. Those
allegations are, of course, unrelated to any promotion for which Jones was allegedly
overlooked during her employment with Lakeland. And, moreover, that Jones
admittedly applied for those positions further distinguishes the allegations in her
EEOC charge from the allegations in her amended complaint. To be sure, Jones
alleges in her amended complaint that she couldn’t apply for the position to which
Southerland was promoted because the availability of the position was never disclosed
to her. However, in her EEOC charge, the only “positions” Jones identifies are
positions for which she did, in fact, make application.
Having carefully considered Jones’ federal allegations and the allegations in her
EEOC charge, the Court concludes that Jones’ failure to promote claims don’t
“amplify, clarify, or more clearly focus” the allegations in her EEOC charge. Stuart,
152 F. App’x at 801 (citing Gregory, 355 F.3d at 1279-80). Rather, they constitute
entirely “new acts” of discrimination. Id. Asa result, Jones’ failure to promote claims
are outside the scope of her EEOC charge. Consequently, she’s procedurally barred
from asserting those claims in a federal lawsuit.2 Counts I and II are accordingly due
to be dismissed. See, e.g., Anderson v. Embarg/Sprint, 379 F. App’x 924, 926-27
(11th Cir. 2010) (holding that the district court properly dismissed the plaintiffs failure
3 Although Jones’ November 25, 2016 EEOC intake questionnaire, (Doc 1 at 8-16), details Lakeland’s
allegedly discriminatory promotion of Southerland over Jones, the fact Jones subsequently filed a
timely, formal charge of discrimination suggests she didn’t intend her intake questionnaire to function
as a charge. Francois v. Miami Dade Cnty., Port of Miami, 432 F. App’x 819, 822 (11th Cir. 2011)
(citing Bost v. Fed. Express Corp., 372 F.3d 1233, 1240-41 (11th Cir. 2004)). Jones’ federal claims
are therefore limited by the scope of her EEOC charge.
to promote claim because the allegations that served as the basis for the claim were
absent from his EEOC charge). The dismissal will be with prejudice. See, e.g.,
Penaloza v. Target Corp., No. 8:11-cv-2656-VMC-AEP, 2012 WL 3041180, at *4
(M.D. Fla. July 25, 2012) (Covington, J.) (dismissing with prejudice the plaintiffs
ADA discrimination claim because the claim was outside the scope of her EEOC
charge).
C. It’s Unclear Whether Jones’ Association Discrimination Claim is Time-
Barred; the Court Declines to Address the Claim on Its Merits.
Lakeland generally levies two arguments in support of dismissal of Jones’
association discrimination claim. First, Lakeland argues that the claim is time-barred,
or, alternatively, that the claim contains insufficient allegations to determine whether
the claim is time-barred. Second, Lakeland argues that, even if the claim isn’t time-
barred, Jones’ allegations fail to plausibly allege both an adverse employment action
and an intentional, invidious motivation on the part of Lakeland. Jones, of course,
flatly disagrees. Because, as detailed further below, the Court finds it’s unclear
whether Jones’ association discrimination claim is ultimately time-barred, the Court
declines to address the merits of the claim at this juncture.
A plaintiff in a deferral state, such as. Florida, must file a charge of
discrimination under the ADA no more than 300 days after the alleged unlawful
employment practice occurred. 42 U.S.C. § 2000e-5(e)(1); Maynard v. Pneumatic
Prod. Corp., 256 F.3d 1259, 1262-63 (11th Cir. 2001). Failure to file the charge within
this statutory window requires the district court to dismiss the untimely claim. Smith
v. McClammy, 740 F.2d 925, 927 (11th Cir. 1984). Jones filed her EEOC charge on
December 21, 2016, meaning that any claims arising from an allegedly discriminatory
employment practice that occurred before February 25, 2016, (i.e., more than 300 days
before she filed her EEOC charge) are time-barred and subject to dismissal.
According to Jones’ amended complaint, Lakeland discriminated against Jones
on multiple occasions because of her association with a person with a disability.
Specifically, Lakeland allegedly denied Jones’ requests for a schedule change, became
“hypercritical” of Jones, unfairly disciplined Jones for minor tardiness, and altered
Jones’ timesheets to make it appear she’d been late to work. Assuming without
deciding that these discrete acts constitute actionable adverse employment actions,
each act must have occurred within the statutory window (..e., on or after February
25, 2016), or the claim, insofar as it’s predicated on that act, 1s time-barred.
With respect to her scheduling requests, Jones’ made those requests in February
and March of 2015, well outside the statutory window. Thus, any claim of association
discrimination based on Lakeland’s denial of Jones’ scheduling requests is time-
barred. As for the remaining allegedly discriminatory employment practices identified
in Jones’ amended complaint, Jones fails to allege the date(s) on which they occurred,
making it impossible for the Court to decipher whether she’s alleged a discriminatory
employment practice occurring within the statutory window. As a result, she
necessarily fails to plausibly allege a claim for association discrimination under the
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ADA. Count III is accordingly due to be dismissed. The dismissal will be without
prejudice.*
IV. Conclusion
Jones’ amended complaint is far from a model pleading, Multiple of the claims
Jones purports to plead haven’t been specifically delineated. And the claims Jones
does plead are either procedurally barred, time-barred, or suffer from material pleading
deficiencies. Accordingly, Lakeland’s motion to dismiss, (20), is GRANTED-IN-
PART AND DENIED-IN-PART as follows:
1. Jones’ purported Title VI, ADEA, and ADA retaliation claims are
DISMISSED WITHOUT PREJUDICE.
2. Jones’ Title VII and ADEA failure to promote claims (Counts I and Tl,
respectively) are DISMISSED WITH PREJUDICE.
3. Jones’ ADA association discrimination claim (Count IT) is DISMISSED
WITHOUT PREJUDICE.
4. Jones may file a second amended complaint, not inconsistent with this
Order, on or before October 25, 2019.
“ Jones should be mindful of the difference between alleging that she received disparate treatment in
the terms, conditions, and privileges of her employment because of her association with a person with
a disability versus alleging that she suffered an adverse employment action for complaining about
what she believed to be violations of her rights under the federal employment laws (i.c., that she was
retaliated against).
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ORDERED in Chambers, in Tampa, Florida, thisiay of September, 2019.
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LIZABETH A. ROVACEEY!
—_ | UNITED STATES DISTRICT JUBGE ~_
Copies furnished to:
Counsel/Parties of Record
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