Phillips v. Harbor Venice Management, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

FRANKIE M. PHILLIPS,

Plaintiff,

v. Case No. 8:19-cv-2379-T-33TGW

HARBOR VENICE MANAGEMENT, LLC,

Defendant.

________________________________/

ORDER

This matter is before the Court on consideration of

Defendant Harbor Venice Management, LLC’s Motion to Dismiss

or, in the Alternative Motion for More Definite Statement

(Doc. # 9), filed on November 25, 2019. Plaintiff Frankie M.

Phillips filed a response in opposition on December 30, 2019.

(Doc. # 18). For the reasons explained below, the Motion is

granted as set forth herein.

I. Background

On September 25, 2019, Phillips initiated this

employment discrimination lawsuit against her former

employer, Harbor Venice Management. (Doc. # 1). According to

Phillips, Harbor Venice is a “business with an assisted living

and skilled nursing facility” named HarborChase of Venice

(Id. at 2). Phillips worked for more than thirteen years as

the director of resident care at HarborChase. (Id. at 3). She

alleges that her manager, Wally Dandy, the former executive

director of HarborChase, discriminated against her on the

basis of her gender and her disability (breast cancer) and

created a hostile work environment. (Id. at 3-4). In addition,

Phillips alleges that she was retaliated against when she

attempted to take time off due to her disability. (Id. at 4).

Phillips writes that, “[a]s a result, [she] was

constructively terminated on or about October 30, 2018.”

(Id.).

According to the complaint, Phillips had a bi-lateral

mastectomy in July 2017. (Id. at 6). After returning to work,

Dandy asked Phillips questions she found to be personal and

invasive, such as whether she had a lump removed, whether she

had a double mastectomy, and the details of her cancer

treatments. (Id. at 5). Phillips alleges that, while

receiving chemotherapy treatments, she continued to work 40-

hour weeks and was made to feel by Dandy “that she should

miss as little work as possible.” (Id.). By contrast, Phillips

alleges that another nurse with breast cancer was allowed

certain accommodations, including avoiding “rooms with known

infections,” wearing a mask, having other nurses care for her

patients with infections, and being allowed time off after

her chemotherapy treatments. (Id.).

Phillips underwent reconstructive surgery on August 6,

2018. (Id. at 6). According to Phillips, she was required to

bathe with “bactro-shield CHG 4%” on the two days prior to

and the morning of her reconstructive surgery. (Id.). On

August 4, 2018, Dandy asked Phillips to work a shift as a

floor nurse, but Phillips refused because she could not leave

her home after she bathed with the bactro-shield. (Id.).

According to the allegations, this refusal made Dandy “very

upset and . . . he wanted a doctor’s note” confirming this.

(Id.). Dandy also wanted Phillips to provide in writing

“exactly when the doctor’s office called her” to change the

date of her surgery from August 7 to August 6. (Id.). Dandy

stated that “his wife and sons have had many surgeries and

[they were] never told that they could not come out.” (Id.).

Phillips further alleges that Dandy sent her “angry text

messages” and that the human resources director stated that

she had never heard of the anti-bacterial wash. (Id. at 7).

When Phillips returned to work on August 13, 2018,

following her reconstructive surgery, she had the following

restrictions: she could not lift anything heavier than five

pounds, could not do any heavy pushing or pulling, and had to

avoid being in close proximity to anyone carrying an active

infection. (Id.). When driving home from work that night,1

Phillips claims that human resources called her and said she

could not return to work because her restrictions would render

her unable to “do a ‘flatline’ code on a dying patient.”

(Id.). Phillips states that she never performed such an

activity in her 13 years of employment at HarborChase. (Id.).

Phillips claims that, unlike what it offered to others, Harbor

Venice never offered her the ability to work from home and,

instead, required her to exhaust her sick and vacation time.

(Id. at 7-8).

On August 20, 2018, after a follow-up visit with her

doctor, Phillips had the following updated work restrictions:

she could not pull, push, or lift weights greater than 10

pounds for the next six weeks. (Id. at 8). Shortly thereafter,

however, a human resources employee provided Phillips with a

copy of her written job description, told Phillips that she

would not be allowed to continue work due to her work

restrictions, and asked Phillips to leave. (Id.).

1 The complaint alleges that this phone call took place on

August 6, 2018, but the Court takes Phillips to mean that the

phone call occurred on August 13, her first day back at work

following the reconstructive surgery.

Phillips alleges that she felt she had “no alternative

but to go back to the doctor’s office and get a release with

no restrictions so she could continue to work and keep her

needed insurance.” (Id. at 9). Subsequently, after working

for thirteen straight days, Phillips texted Dandy that she

would not come into work due to exhaustion. (Id.). Dandy

responded that this was not approved. (Id.). According to

Phillips, on that very same day, another employee texted in

to say she was not coming in and was allowed to do so. (Id.).

After mentioning her high blood pressure to Dandy,

Phillips alleges she was called into a “very intimidating”

meeting with human resources and Dandy, where Phillips was

told that she needed a note from her doctor about her high

blood pressure. (Id. at 9-10). According to Phillips, “[s]he

had no write-ups until Mr. Dandy began working [at

HarborChase]” and that any alleged infractions on her part

are entirely pretextual. (Id. at 10).

Based on these allegations, Phillips brings seven causes

of action: (1) retaliation in violation of Title VII (Count

1); (2) retaliation under the Americans with Disabilities

Act, as amended (ADA) (Count 2); (3) retaliation under the

Florida Civil Rights Act (FCRA) (Count 3); (4) disability

discrimination under the FCRA (Count 4); (5) disability

discrimination under the ADA (Count 5); (6) sex

discrimination under the FCRA (Count 6); and (7) sex

discrimination under Title VII (Count 7). (Id. at 10-15).

Harbor Venice moves to dismiss the complaint for failure

to state a cause of action under Federal Rule of Civil

Procedure 12(b)(6) or, in the alternative, moves for a more

definite statement under Rule 12(e). (Doc. # 9). Phillips has

responded, and the Motion is now ripe for review.

II. Legal Standard

When considering a motion to dismiss brought under Rule

12(b)(6), this Court accepts as true all the allegations in

the complaint and construes them in the light most favorable

to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d

1250, 1262 (11th Cir. 2004). Further, this Court favors the

plaintiff with all reasonable inferences from the allegations

in the complaint. Stephens v. Dep’t of Health & Human Servs.,

901 F.2d 1571, 1573 (11th Cir. 1990). However, the Supreme

Court explains that:

While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations omitted). Courts are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan

v. Allain, 478 U.S. 265, 286 (1986). Furthermore,

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must

limit its consideration to well-pleaded factual allegations,

documents central to or referenced in the complaint, and

matters judicially noticed. La Grasta v. First Union Sec.,

Inc., 358 F.3d 840, 845 (11th Cir. 2004).

In addition, Federal Rule of Civil Procedure 12(e)

allows a party to move for a more definite statement when a

pleading is so “vague or ambiguous that the party cannot

reasonably prepare a response.” Fed. R. Civ. P. 12(e).

III. Discussion

In its Motion, Harbor Venice seeks dismissal of every

count in the complaint for failure to state a cause of action

upon which relief may be granted.

A. Retaliation Claims

Phillips brings claims for retaliation under Title VII,

the ADA, and the FCRA (Counts 1 through 3). (Doc. # 1 at 10-

12). As to all of these claims, she alleges that she engaged

in statutorily protected activity by requesting reasonable

accommodations for her breast cancer, she suffered an adverse

employment action, and there is a causal link between these

events. (Id.). She also alleges that her former employer’s

“refusal to accommodate [Phillips] to her proper position was

in retaliation against [her].” (Id.).

1. Retaliation under Title VII

Harbor Venice argues that under the plain language of

Title VII, requesting a reasonable accommodation for a

disability, as Phillips claims here, is not a “protected

activity” within Title VII’s anti-retaliation provision.

(Doc. # 9 at 7). According to Harbor Venice, Count 1 must

therefore be dismissed as a matter of law. (Id.).

Title VII of the Civil Rights Act of 1964 (“Title VII”)

prohibits employment discrimination based on “race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a).

Further, Title VII prohibits employers from retaliating

against an employee “because he has opposed any practice made

an unlawful employment practice [under Title VII], or because

he has made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under

[Title VII].” Id. § 2000e-3(a).

A plaintiff asserting a retaliation claim under Title

VII must show that: (1) she engaged in statutorily protected

activity, (2) she suffered a materially adverse action, and

(3) there was a causal connection between the protected

activity and the materially adverse action. Howard v.

Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010).

Regarding the first element, a plaintiff engages in

statutorily protected activity only by opposing an unfair

employment practice that is at least facially actionable

under Title VII. Coutu v. Martin Cty. Bd. of Cty. Comm’rs, 47

F.3d 1068, 1074 (11th Cir. 1995). In this respect, a plaintiff

must show that she had a good faith, reasonable belief that

the employer was engaged in unlawful employment practices.

Howard, 605 F.3d at 1244. The plaintiff need not prove that

the conduct she opposed was actually unlawful, but the court

must measure the reasonableness of plaintiff’s belief that

her employer engaged in an unlawful employment practice

against existing substantive law. Id.

Here, as to Count 1, Phillips alleges employment

discrimination under Title VII based only on her purported

disability, which is not a characteristic enumerated in Title

VII. See Coutu, 47 F.3d at 1074 (explaining that, absent

discrimination based on one of the enumerated characteristics

listed in the statute, unfair treatment is not an unlawful

employment practice under Title VII); see also 42 U.S.C. §

2000e-16(a) (listing the protected characteristics of “race,

color, religion, sex, or national origin”). Based on the

substantive law, Phillips could not have reasonably believed

that Harbor Venice engaged in any employment practice made

unlawful by Title VII, and, accordingly, she did not engage

in statutorily protected activity by requesting a reasonable

accommodation for her disability. See Branscomb v. Sec’y of

Navy, 461 F. App’x 901, 906 (11th Cir. 2012) (upholding

dismissal of plaintiff’s Title VII claim based only on his

purported disability); see also Collins v. Dep’t of Children

& Families, No. 19-cv-21236-Gayles, 2019 WL 5784679, at *1

(S.D. Fla. Nov. 5, 2019) (“Title VII extends only to

discrimination and retaliation claims ‘based on that

individual’s race, color, religion, sex, or national origin.’

Although other federal statutes may protect employees with

medical conditions or disabilities, Title VII does not.”

(internal citation omitted)). Accordingly, the Motion is

granted with respect to Count 1.

2. Retaliation under the ADA and FCRA

Retaliation claims under the ADA and the FCRA follow the

Title VII analysis, and so the Court will analyze these claims

together. Russell v. City of Tampa, 737 F. App’x 922, 923

(11th Cir. 2018).

In Counts 2 and 3, Phillips alleges that she engaged in

protected activity by requesting reasonable accommodations

for her breast cancer (Doc. # 1 at 11-12), and Harbor Venice

concedes that requesting a reasonable accommodation may be

protected activity under the ADA. (Doc. # 9 at 10); see also

Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th

Cir. 1998) (explaining that a request for reasonable

accommodation under the ADA may constitute statutorily

protected activity if the plaintiff can show that she had a

good faith, objectively reasonable belief that she was

entitled to such accommodations under the ADA).

Instead, Harbor Venice argues that it is unclear from

the vague allegations in the complaint what specific

reasonable accommodations Phillips requested and when. (Doc.

# 9 at 10). Moreover, it argues that Phillips has failed to

adequately allege an adverse employment action. According to

Harbor Venice, “[b]ased on Plaintiff’s broad range of vague

allegations, she could be attempting to assert that the

retaliatory adverse actions are: a retaliatory hostile work

environment, a retaliatory constructive discharge, or any

other broad range of alleged actions of Defendant.” (Doc. #

9 at 10-11).

Harbor Venice’s argument is well taken. In her

complaint’s general factual allegations, Phillips alleged

that Dandy “created a hostile work environment” and that she

was constructively terminated in October 2018. (Doc. # 1 at

3, 4). She also alleges that she was denied certain

accommodations and leave afforded to other employees. (Id. at

5, 7, 9). In the allegations in support of her ADA and FCRA

retaliation claims, Phillips alleges in conclusory fashion

that she “suffered adverse employment actions.” (Id. at 11,

12). Yet, beyond the date of her constructive termination, it

is not clear what specific accommodations Phillips requested,

when she requested them, or when certain adverse employment

actions were taken against her, which would help to show that

such actions were taken in retaliation against her.

As currently pled, the Court can only guess at what

theory or theories Phillips is proceeding under, or what facts

specifically support those theories. For the sake of clarity,

the Court advises Phillips that, in her amended complaint,

she should articulate what reasonable accommodations she

requested and when, what adverse employment action or actions

were taken against her and when, and separately identify her

various theories of recovery. See Mora-Gillespie v. Merrill,

Lynch, Pierce, Fenner & Smith, Inc., No. 5:99-cv-93-OC-10C,

2000 WL 33323082, at *3 (M.D. Fla. Feb. 3, 2000) (granting

motion for more definite statement where plaintiff had

commingled Title VII claims for disparate treatment, hostile

work environment, and constructive discharge in a single

count, and explaining that defendants “cannot be expected to

frame a proper response to these allegations until they are

made aware of the precise claims asserted by the

[p]laintiff”). Counts 2 and 3 are dismissed with leave to

amend.

B. Disability Discrimination

Counts 4 and 5 allege disability discrimination under

the FCRA and the ADA. Phillips alleges that she is disabled

because she “suffers from one or more physical impairment(s)

that substantially limits one or more major life activities.”

(Doc. # 1 at 13). Further, she alleges that Harbor Venice

violated the FCRA by its unlawful constructive termination of

her employment. (Id.). In her ADA discrimination claim,

Phillips alleges that Harbor Venice “knowingly and willfully

discriminated against [her] on the basis of her disabilities”

and “[i]n addition . . . [Harbor Venice’s] unlawful and

discriminatory termination of her employment” violates the

ADA. (Id. at 14).

To establish a prima facie case of employment

discrimination under the ADA, a plaintiff must demonstrate

that (1) she has a disability, (2) she is a qualified

individual, which is to say, able to perform the essential

functions of the job she holds with or without reasonable

accommodation, and (3) the defendant unlawfully discriminated

against her because of her disability. Cooper v. Community

Haven for Adults & Children with Disabilities, No. 8:12-cv-

1041-T-33EAJ, 2013 WL 24240, at *6 (M.D. Fla. Jan. 2, 2013)

(citing D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1226

(11th Cir. 2005)). Disability discrimination claims under the

FCRA are analyzed under the same framework as ADA claims.

Chanda v. Engelhard/ICC, 234 F.3d 1219, 1221 (11th Cir. 2000).

While failure to make reasonable accommodations for an

otherwise qualified disabled employee will constitute

discrimination under the ADA, the duty to provide such

accommodation is only triggered when the employee makes a

specific demand for accommodation. Cooper, 2013 WL 24240 at

*7 (citing Knowles v. Sheriff, 460 F. App’x 833, 835-36 (11th

Cir. 2012)). “Thus, the initial burden of requesting an

accommodation is on the employee, and only after the employee

has satisfied that burden and the employer failed to provide

the accommodation can the employee prevail on a

discrimination claim.” Id.

Here, Phillips’s complaint vaguely alleges that she “did

not receive help or any reasonable accommodation when

requested” and that Phillips “wrote her employer saying she

sought help.” (Doc. # 1 at 4). And while Phillips points to

other employees who were treated differently from her (e.g.,

the nurse with breast cancer granted certain allowances,

other employees allowed to work from home or allowed to take

off work with little advance notice), she does not clearly

allege that she ever requested these same accommodations.

(Id. at 5, 7, 9). As such, the complaint does not articulate

when, where, or to whom Phillips requested reasonable

accommodations, what reasonable accommodations she requested,

or how many times she requested them. See Cooper, 2013 WL

24240, at *7-8 (granting motion to dismiss ADA claims where

plaintiff failed to allege that she asked for and was denied

a specific accommodation or failed to allege how her request

was linked to her alleged disability and the essential

functions of her job).

Additionally, while it appears that Phillips is alleging

a constructive discharge under the FCRA, it is unclear whether

her ADA claim is similarly constricted, given Phillips’s

vague language that Harbor Venice knowingly discriminated

against her in violation of the ADA and “[i]n addition,”

forced a termination of her employment in violation of the

ADA. Again, the Court advises Phillips that, when she files

her amended complaint, she should include allegations

pertaining to the reasonable accommodations she requested,

that her requests were denied, and when such requests and

denials occurred. She is also advised to clarify what theory

or theories undergird her disability discrimination claims.

C. Gender Discrimination

Counts 6 and 7 allege gender discrimination under Title

VII and the FCRA. Specifically, Phillips alleges that

Defendant constructively terminated her employment on the

basis of her gender. (Doc. # 1 at 14-15).

Harbor Venice argues that Phillips has offered only

vague, conclusory allegations that she was discriminated

against on the basis of her sex, which fails to meet the

plausibility standard of Twombly. The Court agrees.

Phillips’s complaint is directed entirely at the alleged

discrimination she suffered due to her breast cancer. The

complaint fails to state that she was directly discriminated

against due to her gender or that Harbor Venice treated

Phillips differently than male nurses. The sole allegation in

the complaint about gender is that Dandy “discriminated

against [Phillips] based on her disability (cancer) and her

gender.” (Doc. # 1 at 4). This is insufficient. See Twombly,

550 U.S. at 545 (“Factual allegations must be enough to raise

a right to relief above the speculative level . . . .”);

Iqbal, 556 U.S. at 678 (explaining that a complaint is

insufficient under Rule 8 if it “tenders naked assertions

devoid of further factual enhancement” (internal quotation

marks omitted)). Thus, Counts 6 and 7 must be repled.

IV. Conclusion

For the reasons given above, the complaint fails to meet

the requisite pleading standards and fails to give Harbor

Venice fair notice of the claims and theories that Phillips

lays at its door. However, the Court will give Phillips leave

to file an amended complaint because it does not believe at

this juncture that such amendment would be futile. See Foman

v. Davis, 371 U.S. 178, 182 (1962) (holding that district

courts should deny leave to amend when amendment is futile).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Harbor Venice Management, LLC’s Motion to

Dismiss or, in the Alternative Motion for More Definite

Statement (Doc. # 9) is GRANTED. All counts of the

complaint are dismissed with leave to amend.

(2) Plaintiff may file an amended complaint within 14 days

of the date of this Order.

DONE and ORDERED in Chambers in Tampa, Florida, this

30th day of January, 2020.

fase Or. Munnby (nih

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

18