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

Amended Complaint (Doc. # 29), filed on March 6, 2020.

Plaintiff Frankie M. Phillips filed a response in opposition

on March 20, 2020. (Doc. # 30). For the reasons explained

below, the Motion is granted in part and denied in part.

I. Background

The pertinent facts underlying Phillips’s lawsuit were

laid out in this Court’s prior Order. (Doc. # 24). There is

no need for them to be repeated here. In short, Phillips

alleges that her former employer, Harbor Venice,

discriminated against her on the basis of her disability

(breast cancer) and her gender. In her amended complaint,

Phillips brings ten causes of action: (1) retaliation claims

under the Americans with Disabilities Act (ADA) and the

Florida Civil Rights Act (FCRA) (Counts I through VI); (2)

disability discrimination under the ADA and the FCRA (Counts

VII and VIII); and (3) sex discrimination under the FCRA and

Title VII of the Civil Rights Act of 1964 (Counts IX and X).

See (Doc. # 28).

Harbor Venice moves to dismiss the amended complaint for

failure to state a cause of action under Federal Rule of Civil

Procedure 12(b)(6) and Phillips has responded. 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); see also Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)(“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice.”). 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). 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).

III. Analysis

A. Retaliation Claims

Counts I through VI of the amended complaint are

disability retaliation claims under the ADA and FCRA. (Doc.

# 28 at 11-22). Phillips brings these claims under theories

of disparate treatment, hostile work environment, and

constructive discharge. (Id.).

Retaliation claims under both the ADA and FCRA follow

the analysis under Title VII, thus, these claims may be

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

922, 923 (11th Cir. 2018).

It is a violation of the ADA for any person to

“discriminate against any individual because such individual

has opposed any act or practice made unlawful by this chapter

or because such individual made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this chapter.” 42 U.S.C. § 12203.

To establish a prima facie case of retaliation,1 a

plaintiff must show: (1) statutorily protected expression;

(2) adverse employment action; and (3) a causal link between

the protected expression and the adverse action. Stewart v.

Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1287

(11th Cir. 1997). Harbor Venice concedes that requesting a

reasonable accommodation may be protected activity under the

ADA. (Doc. # 29 at 9); 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

1 When a plaintiff attempts to prove discrimination using

circumstantial evidence, the Court must apply the burden-

shifting framework established by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Corning

v. LodgeNet Interactive Corp., 896 F. Supp. 2d 1138, 1144

(M.D. Fla. 2012).

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).

1. Disparate Treatment

Because Phillips has met the first prong of a prima facie

retaliation action, the Court must next look to see whether

she has alleged an adverse employment action. In Count I,

Phillips alleges five facts: (1) on August 31, 2018, another

employee was allowed to work from home while Phillips was

not; (2) on September 5, 2018, a different employee took time

off work to care for her sick father, while during the same

timeframe Phillips was not allowed a day off despite working

for 13 days straight; (3) Harbor Venice refused to respect

her work restriction that she not lift more than 10 pounds;

(4) on September 20, 2018, another employee’s “limitations”

after she had hip surgery were accommodated; and (5) yet

another employee was allowed time off after she had worked

two prior Saturdays, while Phillips was not allowed comp days.

(Doc. # 28 at ¶¶ 62-66). In short, the adverse employment

actions alleged in connection with this count all revolve

around Harbor Venice’s alleged failure to accommodate

Phillips’s disability.

Harbor Venice argues that failure to accommodate is not

a valid basis for a retaliation claim. (Doc. # 29 at 9-10).

It points out that Phillips alleges that “Defendant’s refusal

to accommodate Plaintiff to her proper position was in

retaliation against Plaintiff.” (Doc. # 28 at ¶¶ 69, 103).

Harbor Venice’s point is well taken. The Eleventh Circuit has

written that:

As we observed in Stewart v. Happy Herman’s

Cheshire Bridge, Inc., discrimination on the basis

of disability is different from retaliation on the

basis of opposing unlawful practices or filing a

charge against the employer. In Stewart, we refused

to address the plaintiff’s “retaliation” claims

that were based on simple refusals to accommodate

her. We stated that “[i]n our view, the acts Stewart

describes relate directly to her ‘reasonable

accommodation’ discrimination claim, not her

retaliation claim.”

Calvo v. Walgreens Corp., 340 F. App’x 618, 625–26 (11th Cir.

2009) (citations omitted); see also Lucas v. W.W. Grainger,

Inc., 257 F.3d 1249, 1261 (11th Cir. 2001) (rejecting

plaintiff’s argument that his employer “took adverse action

against him by failing to reasonably accommodate him” because

“this contention merely reclothes Lucas’ ADA discrimination

claim”). Accordingly, Counts I and IV are dismissed.

2. Hostile Work Environment

Harbor Venice argues that the Eleventh Circuit has never

held in a published opinion that a hostile work environment

claim, retaliatory or otherwise, exists under the ADA. (Doc.

# 29 at 11). Furthermore, to the extent such a claim exists,

Harbor Venice maintains that Phillips’s allegations are

insufficient to state a cognizable claim for a hostile work

environment. (Id. at 11-12). Specifically, Harbor Venice

argues that the allegations “fail to rise to the high level

required to establish the severe and pervasive element of the

hostile work environment claim.” (Id. at 12).

As an initial matter, Harbor Venice is correct that the

Eleventh Circuit has never recognized a hostile work

environment claim under the ADA. See Menzie v. Ann Taylor

Retail, Inc., 549 F. App’x 891, 896 n.9 (11th Cir. 2013) (“We

have never held in a published opinion that a hostile work

environment claim is available under the ADA. We do not decide

that issue today because [plaintiff] never asserted such a

claim.”); Gilliard v. Ga. Dep’t of Corr., 500 F. App’x 860,

868 (11th Cir. 2012) (“We have not addressed the availability

of a claim for hostile work environment under either the ADA

or the Rehab Act.”); see also Stewart v. Jones Util. &

Contracting Co., Inc., No. 19-14115, 2020 WL 1313636, at *2,

n.2 (11th Cir. Mar. 19, 2020) (assuming for the purposes of

that case that an ADA hostile work environment claim exists,

but noting that “we need not decide whether that cause of

action does in fact exist”). The Eleventh Circuit has,

however, expressly recognized the existence of a retaliatory

hostile work environment claim under Title VII. Gowski v.

Peake, 682, F.3d 1299, 1311-12 (11th Cir. 2012). But since

Gowski was decided, the Eleventh Circuit has declined to

answer whether the same rationale regarding Title VII hostile

work environment claims would apply to such claims under the

ADA. See Menzie, 549 F. App’x at 896 n.9.

“[S]everal other circuits have concluded that the ADA

provides a cognizable claim for a disability-based hostile

work environment.” Cooper v. CLP Corp., 679 F. App’x 851, 853

n.2 (11th Cir. 2017). And several district courts within the

circuit have assumed this claim exists. See, e.g., Shaling v.

UPS Ground Freight, 202 F. Supp. 3d 1283, 1290–91 (N.D. Ala.

2016) (recognizing an ADA hostile work environment claim and

finding that the “language of Title VII and the ADA match

closely”); Schwertfager v. City of Boynton Beach, 42 F. Supp.

2d 1347, 1365–67 (S.D. Fla. 1999) (“Following the practice of

other district courts, the Southern District of Florida has,

likewise, presumed the existence of an ADA hostile

environment claim.”).

This Court agrees with its sister courts’ observation

that the Title VII anti-retaliation statute bears many

similarities to the ADA’s anti-retaliation provision. See

Shaling, 202 F. Supp. 3d at 1290-91 (describing these

similarities in detail and denying defendant employer’s

motion for summary judgment on an ADA-based retaliatory

hostile work environment claim). Accordingly, for the

purposes of ruling on this Motion, the Court will assume that

a disability-based hostile work environment claim is

actionable under the ADA. Furthermore, given their similar

frameworks, this Court will evaluate Phillips’s claim under

the jurisprudence of Title VII.

To adequately allege a retaliatory hostile work

environment claim, Phillips must allege that: (1) she engaged

in protected activity, (2) after doing so, she was subjected

to unwelcome harassment, (3) her protected activity was a

“but for” cause of the harassment, and (4) the harassment was

sufficiently severe or pervasive to alter the terms of her

employment. Baroudi v. Sec’y, U.S. Dep’t of Veterans Affairs,

616 F. App’x 899, 904 (11th Cir. 2015) (citing Gowski, 682

F.3d at 1311-12). Moreover, the fourth prong has both an

objective and a subjective component. Id. “That is, the

employee must ‘subjectively perceive’ the harassment as

severe or pervasive enough to change the terms of her

employment, and the harassment must result in an environment

that a reasonable person would find hostile or abusive. In

evaluating the objective component, we consider the frequency

and severity of the retaliatory conduct, as well as whether

it (1) is physically threatening or humiliating, and (2)

unreasonably interferes with the employee’s job performance.”

Id. (citations omitted). The Court must also bear in mind

that neither Title VII, nor the ADA, is a “general civility

code, and simple teasing[,] offhand comments, and isolated

incidents (unless extremely serious) do not constitute a

hostile work environment.” Guthrie v. Waffle House, Inc., 460

F. App’x 803, 806 (11th Cir. 2012).

Here, Phillips alleges that her manager, Wally Dandy,

and Harbor Venice created a hostile work environment in

retaliation for her taking time off, or attempting to take

time off, for her breast cancer treatment. (Doc. # 28 at ¶¶

14-15). She points to Dandy’s “invasive” and personal

comments and questions made after her first breast surgery,

angry text messages that he sent her (that he later asked her

to ignore), refusing to accommodate her stated work

restrictions, being called into a “very intimidating meeting”

with Harbor Venice’s human resources director and Dandy,

“write ups” by Dandy, an email Dandy wrote to her about

“staffing issues” that was actually a pretext for retaliation

against her, and Dandy’s failure to allow her to work from

home or otherwise accommodate her work limitations, while he

allowed such accommodations to other employees. (Id. at ¶¶

25-26, 29-31, 33, 44, 51, 55, 72-77, 106-11). This conduct

took place between Phillips’s first surgery, in July 2017,

and when she left Harbor Venice on October 30, 2018. See

(Id.).

Harbor Venice argues that the conduct alleged by

Phillips in this case is not sufficiently “severe or

pervasive” to meet the objective threshold for a sustainable

claim. (Doc. # 29 at 12-13). However, with one exception, the

cases on which Harbor Venice rely were not decided under a

motion-to-dismiss standard.2 The Court finds that whether the

treatment Phillips was subjected to was sufficiently severe

and pervasive, as necessary for a hostile work environment

claim, is an issue better answered at summary judgment.

2 The Court finds the case relied upon by Harbor Venice,

Spivey v. Enterprise City Board of Education, to be

distinguishable. There, the plaintiff-employee, a special

education teacher, alleged that she was first effectively

demoted to a paraprofessional role and treated as a teacher’s

aide and then formally reprimanded and terminated. No. 1:18-

CV-427-SRW, 2019 WL 357983, at *2–3 (M.D. Ala. Jan. 29, 2019).

The plaintiff in Spivey did not endure multiple angry text

messages from her superiors, repeated orders to stay home for

what she claims were trumped-up reasons, or a repeated

disregard of requests for accommodations to recover from a

serious illness, as Phillips alleges occurred here.

For now, viewing Phillips’s allegations under the

appropriate motion to dismiss standard, Phillips has met her

burden. According to the amended complaint, as part of her

reconstructive surgery in August 2018, when Phillips refused

to work a shift after having already bathed in the bactro-

shield solution, Dandy “became very upset and stated that he

wanted a doctor’s note stating this,” told her “that his wife

and sons have had many surgeries and [they were] never told

that they could not come out,” and sent her approximately 22

“angry text messages” in the days leading up to her

reconstructive surgery. (Doc. # 28 at ¶¶ 28-31, 33). In

addition, when Phillips returned to work on August 13, 2018,

with certain work restrictions, she was given what she

considers a pretextual reason as to why she could not return

to work. (Id. at ¶¶ 37-38). When her doctor then changed her

work restrictions, the human resources director shortly

thereafter provided Phillips a written copy of her job

description, explained that the work restrictions were

incompatible with her job description, and told her to leave

the building. (Id. at ¶ 44). Moreover, Phillips includes

allegations that multiple other Harbor Venice employees were

allowed certain accommodations that she was not allowed, such

as working from home, using comp days, or avoiding certain

duties or patients in order to protect their health. (Id. at

¶¶ 27, 40-42). For example, Phillips alleges that after

working for 13 straight days, she texted Dandy that she could

not come in because she did not feel well. (Id. at ¶ 48).

Harbor Venice, through Dandy, did not approve this request

despite granting other, similar requests. (Id. at ¶¶ 48-49,

62-66). According to Phillips, when she complained about this

difference in treatment, she was simply told “now we are going

to do things this way.” (Id. at ¶ 43).

While this conduct was not physically threatening or

humiliating, Phillips has alleged sufficient facts that,

taken as true and granting Phillips all reasonable inferences

in her favor, show that the work environment at Harbor Venice

in that three-month period of August, September, and October

2018 was of a kind that a reasonable person would find hostile

or abusive.3 Thus, Counts II and V of the amended complaint

remain.

3. Constructive Discharge

Harbor Venice argues that Phillips has failed to

demonstrate that she was constructively discharged because

3 Harbor Venice does not argue that Phillips has not

adequately alleged the causation element of a prima facie

case.

her factual allegations “fall far short of circumstances in

which the Eleventh Circuit has found a constructive discharge

might be established.” (Doc. # 29 at 14-15). To prove a

constructive discharge under the ADA, “a plaintiff must

demonstrate that working conditions were ‘so intolerable that

a reasonable person in her position would have been compelled

to resign.’” Griffin v. GTE Florida, Inc., 182 F.3d 1279,

1283–84 (11th Cir. 1999). In addition, the plaintiff must

show that the employer intentionally rendered the employee’s

working conditions so intolerable based on a protected

status, such as disability, that the employee was compelled

to quit involuntarily. Henson v. City of Dundee, 682 F.2d

897, 907 (11th Cir. 1982). Moreover, whether the working

conditions were sufficiently intolerable to amount to a

constructive discharge is judged by an objective standard,

not the employee’s subjective feelings. Richio v. Miami-Dade

Cty., 163 F. Supp. 2d 1352, 1367 (S.D. Fla. 2001).

The standard for proving constructive discharge is

higher than the standard for proving a hostile work

environment. See Hipp v. Liberty Nat’l Life Ins. Co., 252

F.3d 1208, 1231 (11th Cir. 2001); see also Steele v. Offshore

Shipbuilding, Inc., 867 F.2d 1311, 1316–18 (11th Cir. 1989)

(affirming district court’s conclusion that Title VII

plaintiffs were subjected to hostile work environment, but

were not constructively discharged).

The Court agrees with Harbor Venice that Phillips’s

allegations fall short of the threshold needed to show that

her working conditions were so intolerable that she had no

choice but to resign. See Poole v. Country Club, 129 F.3d

551, 552 (11th Cir. 1997) (holding that constructive

discharge claim survived summary judgment where the plaintiff

was “[s]tripped of all responsibility, given only a chair and

no desk, and isolated from conversations with other

workers”). Accordingly, Counts III and VI are dismissed.

B. Disability Discrimination

Counts VII and VIII of Phillips’s amended complaint

allege disability discrimination under the ADA and the FCRA

under theories of disparate treatment, hostile work

environment, and constructive discharge. (Doc. # 28 at 22-

25).

1. Disparate Treatment

To establish a prima facie case of disparate treatment

discrimination under the ADA, a plaintiff must show that, at

the time of the adverse employment action, (1) she had a

disability, (2) she was a qualified individual, and (3) she

was subjected to unlawful discrimination because of her

disability. See Mazzeo v. Color Resolutions Int'l, LLC, 746

F.3d 1264, 1268 (11th Cir. 2014).

Harbor Venice does not dispute in its brief that Phillips

is disabled and a qualified individual within the meaning of

the ADA and, for the purposes of this Motion, the Court will

assume she is disabled and is a qualified individual. The

crux of the dispute is whether Harbor Venice subjected

Phillips to unlawful discrimination on the basis of her

disability.

Absent direct evidence of disability discrimination,

Phillips must show that Harbor Venice treated her less

favorably than similarly situated, non-disabled employees.

Wolfe v. Postmaster General, 488 F. App’x 465, 468 (11th Cir.

2012).4 Phillips alleges that after “working 13 days straight,

[Phillips] texted Mr. Dandy she was not coming in and that

she was exhausted” due to her chemotherapy and radiation

treatments. (Doc. # 28 at ¶ 48). Dandy did not approve this

leave even though, on the same day, the social services

director “texted in to say she was not coming in and was

4 Although Wolfe involved a disparate treatment claim under

the Rehabilitation Act, “[t]he legal standards that apply to

determine liability under the Rehabilitation Act are the same

as those under the [ADA]” Wolfe, 488 F. App’x at 466.

allowed to do so.” (Id. at ¶¶ 48-49). In addition, Phillips

alleged specific instances in August and September 2018 where

other employees requested and received time off, comp days,

or the ability to work from home. (Id. at ¶¶ 62-66, 135).

When Phillips asked for similar treatment, it was denied.

(Id. at ¶¶ 40-43, 62-66, 131). Accordingly, Phillips’s

disability discrimination claims, Counts VII and VIII,

survive Harbor Venice’s Motion to Dismiss to the extent they

allege disparate treatment.

2. Hostile Work Environment

In the Eleventh Circuit, to plead a hostile work

environment claim, a plaintiff must allege “(1) that he

belongs to a protected group, (2) that he was subjected to

unwelcome harassment, (3) that the harassment must have been

based on a protected characteristic of the employee, (4) that

the harassment was sufficiently severe or pervasive enough to

alter the terms and conditions of employment and create a

discriminatorily abusive working environment, and (5) that

the employer is responsible for such conduct environment

under a theory of either vicarious or direct liability.”

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th

Cir. 2002).

As explained above, Phillips’s hostile work environment

claims survive the motion to dismiss stage. See Flamberg v.

Israel, No. 13-62698-CIV, 2014 WL 1600313, at *5 (S.D. Fla.

Apr. 21, 2014) (denying motion to dismiss hostile work

environment claims brought pursuant to ADA and FCRA where

“the drumbeat of oppressive, cruel, and harmful conduct by

Flamberg’s colleagues and supervisors [went]well beyond mere

inconveniences”). Counts VII and VIII remain to the extent

they allege a hostile work environment claim.

3. Constructive Discharge

For the reasons explained above, Phillips has not

alleged facts supporting a claim of disability discrimination

under a constructive discharge theory. To the extent Counts

VII and VIII rely on such a theory, they are dismissed.

C. Gender Discrimination Claims

Counts IX and X allege gender discrimination under the

FCRA and Title VII. (Doc. # 28 at 25-27). In support, Phillips

alleges that (1) when coming back from her breast cancer

surgery, Dandy asked her personal and invasive questions

about the surgery; (2) Dandy made her feel as though she

should miss as little work as possible while receiving

chemotherapy treatments; and (3) Dandy would wear a “Trump

tie” to meetings and deride opinions with which he disagreed

as “fake news.” (Id. at 5, 26-27). Phillips claims that

Dandy’s wearing of the “Trump tie” made her feel “inferior as

black females [like Phillips] consider Mr. Trump as racist

and against minorities, especially black females.” (Id. at

26, 27).

The Court agrees with Harbor Venice that these

allegations are insufficient to state a cause of action for

gender discrimination under either Title VII or the FCRA. See

Jiles v. United Parcel Serv., Inc., 360 F. App’x 61, 63 (11th

Cir. 2010) (explaining that courts analyze cases brought

under the FCRA in the same manner as Title VII because the

FCRA was patterned after Title VII). As with the original

complaint, the amended complaint fails to allege that she was

directly discriminated against due to her gender or that

Harbor Venice treated Phillips differently than male nurses.

See Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009)

(explaining that plaintiffs may provide direct or

circumstantial evidence of discrimination); Maynard v. Bd. of

Regents of the Div. of Univs. of the Fla. Dep’t of Educ., 342

F.3d 1281, 1289 (11th Cir. 2003) (explaining that, to

establish a prima facie discrimination claim, the plaintiff

must show, among other things, that she suffered an adverse

employment action and that she was treated less favorably

than a similarly-situated individual outside her protected

class). The fact that Dandy’s questions about her surgery

“made her very uncomfortable because he was discussing her

female breasts at work” or that she felt “inferior” due to

Dandy’s wearing of a “Trump tie” and declaring “fake news” at

meetings fails to meet the threshold pleading standard.

To survive dismissal, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Iqbal, 556 U.S. at

678. “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.” Id. The current allegations do not allow

the Court to draw a reasonable inference that Phillips was

subject to gender discrimination at the hands of Harbor

Venice. See Twombly, 550 U.S. at 545 (“Factual allegations

must be enough to raise a right to relief above the

speculative level[.]”). Accordingly, Counts IX and X will be

dismissed.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

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

Dismiss Amended Complaint (Doc. # 29) is GRANTED in part

and DENIED in part. Specifically, Counts I, III, IV, VI,

IX, X, and those portions of Counts VII and VIII that

rely on a constructive discharge theory are dismissed.

Counts II, V, and those portions of Counts VII and VIII

that rely on a disparate treatment and/or hostile work

environment theory remain.

(2) Harbor Venice is directed to file an answer to the

remaining counts of the amended complaint within 14 days

of the date of this Order.

DONE and ORDERED in Chambers in Tampa, Florida, this

26th day of May, 2020.

tani tr. Hunendy Cree.

VIRGINIA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

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