# Phillips v. Harbor Venice Management, LLC

> District Court, M.D. Florida · January 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10104439

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10104439

## How later opinions describe it (automated extraction)

- holding that district courts should deny leave to amend when amendment is futile
- explaining that a complaint is insufficient under Rule 8 if it “tenders naked assertions devoid of further factual enhancement” (internal quotation marks omitted)
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104439. Public record. Not legal advice.