Reillo v. Alternate Health USA, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHELE RENEE REILLO,

Plaintiff,

Case No. 3:19-cv-109-J-34JBT

vs.

ALTERNATE HEALTH USA, INC.,

Defendant.

/

ORDER

THIS CAUSE is before the Court on the issue of whether the entry of summary

judgment sua sponte in favor of Defendant Alternate Health USA, Inc. on Counts V, VI,

VII, and VIII of the Complaint (Doc. 3) is warranted. The Court has reviewed the record

and heard argument from counsel at a hearing on August 4, 2020, the record of which is

incorporated herein by reference. For the reasons that follow, the Court finds that sua

sponte summary judgment in favor of Defendant on the remaining claims in this action is

entirely warranted and appropriate at this time.

I. Procedural History

Plaintiff Michele Reillo initiated this action in state court on December 26, 2018, by

filing an eight-count Complaint (Doc. 3) against Defendant Alternate Health USA, Inc.

(Alternate Health). Alternate Health removed the action to this Court on January 24,

2019. See Notice of Removal (Doc. 1). On March 13, 2019, the Court entered a Case

Management and Scheduling Order (Doc. 18; CMSO) which, in relevant part, set a

discovery deadline of August 16, 2019, and a dispositive motion deadline of September

16, 2019. On August 16, 2019, the parties jointly requested an extension of these

deadlines, which the Court granted, extending the discovery deadline to October 18, 2019,

and the dispositive motion deadline to November 15, 2019. See Joint Motion to Extend

the Deadlines for Discovery and for Dispositive/Daubert Motions (Doc. 29; Joint Motion);

Order (Doc. 30).1 Incredibly, despite having seven months in which to do so, the parties

engaged in absolutely no discovery. Indeed, neither party took a single deposition. On

November 15, 2019, without actually knowing whether the facts of this case were in

dispute, given her failure to engage in any discovery, Reillo filed a motion seeking the entry

of summary judgment in her favor on all eight claims set forth in the Complaint. See

Plaintiff’s Motion for Summary Judgment (Doc. 31; Motion). Remarkably, Alternate

Health let the dispositive motion deadline expire without filing anything. Instead, Alternate

Health argued in its Response and Sur-Reply that the Court should deny Reillo’s Motion

and sua sponte enter summary judgment in its favor. See Opposition to Plaintiff’s Motion

for Summary Judgment (Doc. 33; Response) at 14, filed November 27, 2019; Defendant

Alternate Health USA, Inc.’s Sur-Reply in Opposition to Plaintiff’s Motion for Summary

Judgment (Doc. 39; Sur-Reply) at 13-14, filed January 15, 2020. In her Reply, Reillo did

not address Alternate Health’s arguments as to the propriety of sua sponte summary

judgment as to Counts II, III, V, VI, VII and parts of VIII, nor did Reillo seek leave to respond

or otherwise object when Alternate Health argued in its Sur-Reply that the Court should

enter sua sponte summary judgment in its favor on all counts of the Complaint. See

1 Notably, in the Joint Motion the parties stated that they needed an extension of time because the parties

“intend to fully engage in discovery (propounding final discovery requests and completing all depositions) . .

. .” See Joint Motion ¶ 4. Although the Court granted the requested extension, it appears the parties did

not follow through with their stated intention.

generally Plaintiff’s Reply in Support of Motion for Summary Judgment (Doc. 36; Reply),

filed December 23, 2019.

On July 28, 2020, six months after all briefing had been completed, the Court

entered an Order acknowledging the summary judgment briefing in this matter and

specifically noting Alternate Health’s contention that the Court should enter summary

judgment sua sponte in its favor on all Counts. See Order (Doc. 43). The Court set the

matter for hearing, finding that it “would be beneficial in resolving the arguments raised in

the briefs regarding the entry of summary judgment in favor of Plaintiff or Defendant.” See

id. at 1-2. At the August 4, 2020 Hearing, the Court denied Reillo’s Motion in its entirety

given the absence of any evidence on certain elements of her claims and myriad disputed

issues of fact on others. The Court also granted summary judgment sua sponte in favor

of Alternate Health on Counts I-IV of the Complaint (breach of contract, quantum meruit,

unjust enrichment and Florida whistleblower retaliation). See Minute Entry (Doc. 44); see

Transcript of Motion Hearing (Doc. 49; Tr.) at 93-95, 97-98. The Court took under

advisement Alternate Health’s request for sua sponte summary judgment in its favor on

Counts V-VIII (assault, battery, intentional infliction of emotional distress, and negligent

retention). See Minute Entry (Doc. 44); Tr. at 97, 99. In this Order, the Court addresses

these remaining claims.

II. Sua Sponte Summary Judgment

A. Applicable Law

Pursuant to Rule 56(f), Federal Rules of Civil Procedure (Rule(s)), “[a]fter giving

notice and a reasonable time to respond, the court may: (1) grant summary judgment for

a nonmovant . . . .” Indeed, the Eleventh Circuit has recognized that “[a] district court

possesses the power to enter summary judgment sua sponte provided the losing party

‘was on notice that she had to come forward with all of her evidence.’” See Burton v. City

of Belle Glade, 178 F.3d 1175, 1203 (11th Cir. 1999) (quoting Celotex Corp. v. Catrett,

477 U.S. 317, 326 (1986)). Thus, “so long as the party against whom judgment will be

entered is given sufficient advance notice and has been afforded an adequate opportunity

to demonstrate why summary judgment should not be granted, then granting summary

judgment sua sponte is entirely appropriate.” Id. at 1204. Notably, in Burton, the

Eleventh Circuit affirmed the sua sponte entry of summary judgment against the plaintiffs

regarding a claim on which neither party had sought summary judgment (the Title VI claim).

See id. at 1203-04 & n.31. Significantly, the plaintiffs had moved for summary judgment

on a separate claim (the § 1983 claim) that required proof of discriminatory intent and the

Eleventh Circuit found that the plaintiffs’ evidence was insufficient under the law to raise

an issue of fact on the issue of intent. Id. at 1195. Because the Title VI claim also

required proof of discriminatory intent, the Burton court reasoned that plaintiffs “had more

than reasonable opportunity to marshal the same evidence of intent in support of their Title

VI claim as well.” Id. at 1204. The Eleventh Circuit found that “since [the plaintiffs] plainly

failed to adduce sufficient evidence as to intent with respect to any portion of their § 1983

claims, it likewise follows a fortiori that they could not present sufficient evidence of intent

as to this Title VI claim either.” Id. The court explained that, “where a legal issue has

been fully developed, and the evidentiary record is complete, summary judgment is entirely

appropriate even if no formal notice has been provided.” See Artistic Entm’t, Inc. v. City

of Warner Robins, 331 F.3d 1196, 1202 (11th Cir. 2003); see also Wright & Miller, Federal

Practice & Procedure § 2720.1 (“The practice of allowing summary judgment to be entered

for the non-moving party in the absence of a formal cross-motion is appropriate.”).

B. Analysis

Here, Reillo moved for summary judgment in her favor on all claims, providing her

with both the incentive and the opportunity to present the Court with any evidence in

support of her claims. See Burton, 178 F.3d at 1204. Moreover, as set forth in the

procedural history above, Reillo had notice that the issue of summary judgment in

Alternate Health’s favor was before the Court given the arguments raised in the Response

and Sur-Reply, and in the Order the Court not only made clear that it was entertaining

Alternate Health’s request, it also provided Reillo an additional opportunity to respond to

those arguments at a hearing. At the Hearing, Reillo acknowledged that the Court had

discretion to enter summary judgment sua sponte.2 See Tr. at 40. Nevertheless, Reillo’s

counsel maintained that he did not have sufficient time between the Order and the date of

the Hearing to adequately prepare, and argued that the Court should exercise its discretion

to allow counsel additional time to properly brief Alternate Health’s sua sponte summary

judgment request. See Tr. at 62. However, long before the August 4, 2020 Hearing,

Plaintiff’s counsel had notice that the issue of sua sponte summary judgment was before

2 Plaintiff asserted that the Court should not enter summary judgment in Alternate Health’s favor given the

untimeliness and unusual posture of Alternate Health’s request. See Tr. at 40. Indeed, absent the unique

circumstances of this case, the Court would be inclined to construe Alternate Health’s argument as a cross-

motion for summary judgment and deny it as improperly raised in a response and untimely. See Nat’l Exch.

Bank & Trust v. Petro-Chem. Sys., Inc., No. 11-C-134, 2013 WL 1858621, at *1-2 (E.D. Wis. May 1, 2013)

(“Rule 56(f) exists largely for the convenience of the court, to save it from proceeding with trials that it can

readily see are unnecessary. It did not create a substitute for a cross-motion to summary judgment.”).

However, it is apparent from the record in this case that a trial is unnecessary. As discussed below, even

accepting Reillo’s version of the facts, she cannot legally prevail on any of her claims. As such, the Court

will exercise its discretion to consider whether sua sponte summary judgment is warranted under the

circumstances of this case.

the Court as Alternate Health raised it in the Response, filed on November 27, 2019, and

the Sur-Reply, filed on January 15, 2020. Surprisingly, in her Reply, Plaintiff elected not

to respond to Alternate Health’s sua sponte summary judgment arguments at all, and did

not seek leave to respond to the additional arguments presented in the Sur-Reply. Nor

did Reillo move for a continuance of the Hearing after the Court entered the Order setting

the Hearing and specifically noting an intention to address the request for entry of summary

judgment in favor of Alternate Health. Notably, at the Hearing, Reillo’s counsel

demonstrated his awareness and familiarity with the legal principles applicable to Reillo’s

claims and Alternate Health’s request for entry of summary judgment sua sponte. And

most tellingly, Reillo’s counsel never made any attempt to identify probative evidence in

his possession that he would bring to the Court’s attention if given additional time to do so.

Thus, the Court is satisfied that the legal issues are fully developed, the evidentiary record

is complete, and Reillo has had not just reasonable, but ample notice and opportunity to

be heard on whether summary judgment in favor of Alternate Health is warranted on her

remaining claims. See Cafaro v. Zois, 693 F. App’x 810, 815-16 (11th Cir. 2017); Everett

v. Grady Memorial Hosp. Corp., 703 F. App’x 938, 947 (11th Cir. 2017).

Nevertheless, before proceeding to the merits, the Court must emphasize that the

parties’ decision to litigate this case in this bizarre manner is both extremely reckless and

strongly discouraged. Based on the representations made at the August 4, 2020 Hearing,

Alternate Health appears to have made the extraordinarily unusual strategic decision that

rather than engage in any discovery or pursue dispositive motion practice, it would do

nothing and roll the dice in front of a jury at trial. See Tr. at 6-7, 16-17. The Court cannot

fathom the rationale that justified this strategy. Even if skipping motion practice and

proceeding straight to trial was a misguided attempt to conserve resources, failing to

prepare for trial by doing even so much as taking the plaintiff’s deposition to properly

explore the contours of her claim defies explanation. Alternate Health was only saved

from its bizarre strategy because Reillo herself opted for an even worse one. It is unclear

why Reillo would elect to file a lawsuit if she did not intend to engage in discovery to obtain

the necessary evidence to support her claims and uncover Alternate Health’s potential

defenses. Moreover, nothing but a fundamental misunderstanding of the summary

judgment standards applicable in federal court could have led to Reillo’s decision to seek

summary judgment in her favor despite having essentially nothing more than her own

declaration to support her claims. And, but for Reillo’s inexplicable decision to file a

motion for summary judgment, Alternate Health would be facing the expense and risk of a

trial in this case in federal court on all eight counts of the Complaint.3

Nevertheless, Reillo’s Motion opened the door to allow a pre-trial review of the

sufficiency of the evidence supporting her claims, and it is readily apparent that her claims

are not legally viable. While the Court finds Alternate Health’s manner of proceeding in

this action reckless, and does not condone or encourage the strategic choices made here,

the Court is also convinced that letting this case proceed to trial and summoning a jury to

hear the case would be an unjustifiable waste of resources. Reillo has had ample

opportunity to present her evidence and legal arguments to the Court, and even if a jury

were to accept Reillo’s evidence and believe her version of events entirely, her claims

against Alternate Health would still fail as a matter of Florida law. Thus, for the reasons

3 Several of which could likely have been dismissed at the outset of this case via a Rule 12(b)(6) Motion

based on the legal principles discussed at the August 4, 2020 Hearing, as well as the principles discussed

below.

set forth below, the Court will enter summary judgment sua sponte on the remaining claims

in this action.

III. Background

A. The Assault

Michele Reillo worked for Alternate Health4 from approximately February 10, 2016,

until approximately January 30, 2018. See Motion, Ex. A: Declaration of Michele Renee

Reillo Pursuant to 28 U.S.C. § 1746 (Doc. 31-1; Reillo Decl.) ¶ 4. Reillo maintains that at

a “work event” on May 24, 2017, she was “physically groped” by James Tykoliz, a Director

on the Board of Directors for Alternate Health Corp. See Reillo Decl. ¶ 26. According to

Reillo, Tykoliz “attempted to kiss [her], and ended up sticking his tongue down [her] throat,

which was completely unwarranted, and which [she] resisted.” Id. Reillo also avers that

Tykoliz made “verbal sexual and harassing comments throughout [her] employment with

[Alternate Health]. He made sexual advanced [sic] and berated [her] work constantly for

no apparent reason.” See Reply, Ex. A: Supp. Decl. of Michele Renee Reillo Pursuant to

28 U.S.C. § 1746 (Doc. 36-1; Reillo Supp. Decl.) ¶ 7. Reillo declares that Tykoliz’s

behavior caused her physical and emotional distress such that she sought treatment from

a doctor and received a prescription for Wellbutrin. See Reillo Decl. ¶¶ 29-30. She also

maintains that she continues “to suffer from gastrointestinal distress, chest pain, muscle

stiffness, and shakiness since” the alleged attack. Id. ¶ 32. Tykoliz categorically denies

Reillo’s allegations of assault and maintains that he was in Toronto on May 24, 2017, and

4 Defendant Alternate Health USA, Inc. is a subsidiary of Alternate Health, Corp. See Response, Ex. 1:

Declaration of Michael L. Murphy, MD (Doc. 33-1; Murphy Decl.) ¶ 2. The facts of this case also involve

Alternate Health, Inc., another subsidiary of Alternate Health, Corp., as well as Alternate Medical Media, an

“educational subsidiary” of Alternate Health, Corp. See Response at 1-2; Murphy Decl. ¶¶ 2, 3. The

parties do not raise any arguments distinguishing between these entities, thus in this Order, the Court will

refer to them collectively as Alternate Health.

“not at any work event with Ms. Reillo.” See Response, Ex. 3: Declaration of James “Jim”

E. Tykoliz (Doc. 33-3; Tykoliz Decl.) ¶¶ 16-17. According to Tykoliz, he has only met

Reillo face-to-face on two occasions, once in Jacksonville, Florida on January 30, 2017,

where they met about the “start of a working relationship with Alternate Health,” and the

second time on February 17, 2017, at the Neubauer Hyperbaric Neurologic Center in

Lauderdale by the Sea, Florida. Id. ¶¶ 12-14.

According to Reillo, following the May 24, 2017 attack, she “notified the head of

Human Resources regarding Tykoliz’s unwarranted behavior,” who informed Reillo that

“she would look into the matter.” See Reillo Decl. ¶¶ 26-27. Reillo identifies “Elizabeth

(LNU)” as the person she complained to in Human Resources. See Reillo Supp. Decl. ¶

9. Alternate Health disputes these allegations. Michael L. Murphy, MD, the Chairman of

the Board of Directors of Alternate Health Corp., asserts that the head of Human

Resources in May 2017 was Johnson Thomas. See Response, Ex. 1: Declaration of

Michael L. Murphy, MD (Doc. 33-1; Murphy Decl.) ¶¶ 1, 4. According to Murphy, “[i]f any

complaint of harassment or assault had been made by Michele Reillo, this would have

been reported to the Board of Directors. We received no such report from Ms. Reillo,

from Johnson Thomas, from anyone else at Human Resources, or from anyone else within

the company.” Id. ¶ 4.5 Murphy asserts that this information is based on his “personal

knowledge gained in [his] position on the Board, [his] access to corporate records of both

5 In her Reply, Reillo argued that the Court should strike this portion of the Murphy Declaration as hearsay

because “Murphy has no personal knowledge regarding what the other Board members knew or heard about

[Reillo’s] complaints.” See Reply at 4-5. Reillo further contended that “to the extent that Murphy attempts

to testify to what other Board members, Johnson Thomas, or anyone else with the HR department, told him

about what they knew or didn’t know about any complaints by Plaintiff, such testimony would be inadmissible

hearsay.” Id. The Court addressed and rejected this argument at the August 4, 2020 Hearing. See Tr. at

20.

Alternate Health and Alternate Health Corp., and [his] knowledge of corporate policies for

handling such complaints, if such complaints are actually made to Human Resources.”

See Sur-Reply, Ex. 1: Supplemental Declaration of Michael L. Murphy, MD (Doc. 39-1;

Murphy Supp. Decl.) ¶¶ 3-4.6

In addition, Murphy states that neither Alternate Health Corp. nor Alternate Health

employed anyone in Human Resources by the name of Elizabeth. Id. ¶ 5. However,

Murphy explains that an affiliated company, Integrity Ancillary Management, LLC, employs

an Elizabeth Newlan in Human Resources, who “at times handled some work for the

Alternate Health San Antonio office . . . .” Id. ¶ 6. Murphy states that he “searched the

corporate files maintained by these corporations, including those that had been maintained

by Ms. Newlan during her employment, and found no record of any complaint from Ms.

Reillo regarding any alleged misconduct by Mr. Tykoliz or any other employee, supervisor

or director (either made to Ms. Newlan or to anyone else).” Id. According to Murphy,

both Alternate Health and Integrity have a “regular practice and policy” to “document in

writing any employee complaints received by Human Resources,” and Newlan, as with all

employees of these companies, was informed of this policy. Id.

6 Reillo asserts that she also emailed “Rick and Sam, who were working on programs with [her], and let

them know that the abuse was occurring verbally from Tykoliz.” See Reillo Decl. ¶ 27. Reillo states that

“Rick sent me an email acknowledging that he said something to Tykoliz concerning his behavior.” Id. ¶ 28.

Reillo does not attach these emails to her Declaration. Rick Anderson, the managing partner of Alternate

Medical Media, worked with Reillo in 2016 and 2017, to create video educational courses. See Response,

Ex. 2: Declaration of Rick Anderson (Doc. 33-2; Anderson Decl.) ¶¶ 1, 3, 10. Reillo was responsible for

writing the content, as the subject matter expert, and Anderson would create the video along with his team,

Sam Montgomery and Joe Ciupik. Id. ¶ 3. Anderson states that contrary to Reillo’s representation, he

“never received any email from Ms. Reillo regarding” any incident of verbal abuse from Tykoliz,” nor did he

“reply to an email that [he] did not receive.” Id. ¶ 23. Anderson maintains that he never heard “any such

complaint concerning Mr. Tykoliz made by Ms. Reillo or by anyone.” Id. In her Supplemental Declaration,

Reillo insists that she did advise Anderson that “Tykoliz did in fact abuse [her], but nothing was done in

response by Anderson or anyone with [Alternate Health].” See Reillo Supp. Decl. ¶ 6.

B. The Termination

Reillo maintains that while she was working on one of the CME courses for Alternate

Health she raised concerns about “releasing, publishing, and/or marketing a CME course

covering a cannabis product that had no IND number,” which in Reillo’s view, would violate

federal and state law. See Reillo Decl. ¶ 36. Reillo explains that the Federal Drug

Administration (FDA) requires researchers in the field of medical cannabis to submit an

investigational new drug (IND) application and receive an IND number, and without such

a number such research is “not government approved.” Id. ¶ 18. In Reillo’s view,

Alternate Health “is a company that researches medical cannabis, and must submit IND

applications and IND numbers for its research, education, and training materials it

develops regarding whole plant cannabis studies.” Id. ¶ 21. Reillo maintains that in

August of 2017, she raised her concerns about the lack of IND number, among other

things, with Tykoliz, but he “refus[ed] to take [her] concerns into account, and even called

[her] a ‘fuc*-up’ in the process of doing so.” Id. ¶ 39. In support, Reillo attaches an email

chain from August 19-20, 2017, where Tykoliz used the expletive. See Motion, Ex. G.

Among other things, this email chain contains an email from Tykoliz expressing his

disappointment that Reillo had not completed the CME course, and Reillo’s response in

which she refers to a previous conversation with Tykoliz where she raised an issue about

“the timing of the course with cbd product distribution by Alternate and price of doing the

course.” See id. at 4. Tykoliz and Reillo dispute the meaning of this email chain and the

events leading up to it, and Tykoliz states that he was not referring to Reillo when he used

the expletive. See Reillo Decl. ¶¶ 33-39; Tykoliz Decl. ¶¶ 2, 5-6; see also Response, Ex.

2: Declaration of Rick Anderson (Doc. 33-2; Anderson Decl.) ¶¶ 13-16.

In January 2018, Reillo’s employment with Alternate Health came to an end.

According to Reillo, she was “terminated by [Alternate Health] on January 30, 2018.” See

Reillo Decl. ¶ 40. According to Alternate Health, Reillo submitted a Letter of Resignation

on January 16, 2018, and her last day of work was January 19, 2018. See Murphy Supp.

Decl. ¶¶ 7-8, Ex. 1 (Resignation Letter).7

IV. Discussion

A. Assault and Battery – Counts V-VI

In Counts V and VI of the Complaint, Reillo asserts claims against Alternate Health

for civil assault and battery arising out of the alleged May 24, 2017 sexual attack by Tykoliz.

See Complaint ¶¶ 63-74. In the Motion, Reillo argued that Alternate Health is vicariously

liable for these intentional torts because the wrongful conduct occurred “within the scope”

of Tykoliz’s employment. See Motion at 12, 13. At the August 4, 2020 Hearing, Reillo’s

counsel conceded that there was no evidence Tykoliz was acting within the scope of his

employment when he allegedly attempted to forcibly kiss Reillo. See Tr. at 75-77.

Instead, Reillo asserted for the first time that Alternate Health is vicariously liable because

it ratified Tykoliz’s conduct. Id. at 75-76. However, regardless of which theory Reillo

intends to pursue, she fails to present any evidence which could support a finding of

vicarious liability under the circumstances described in Reillo’s declarations.

7 According to Tykoliz, Reillo resigned after she was confronted about alleged misconduct, specifically,

fabricating results of a research study, and given the option to resign or “fac[e] the consequences of any

appropriate legal action that Alternate Health would need to pursue concerning” the matter. See Tykoliz

Decl. ¶¶ 9-10; see also Sur-Reply, Ex. 3: Supplemental Declaration of James “Jim” E. Tykoliz (Doc. 39-3;

Tykoliz Supp. Decl.) ¶¶ 3-4. In her Reply, Reillo moved to strike paragraph 9 of the Tykoliz Declaration,

arguing that Tykoliz’s statements are hearsay because they are based on “what Michael Klipper did, heard,

saw and experienced . . . .” See Reply at 6. However, Reillo specifically withdrew her objection to this

paragraph at the Hearing. See Tr. at 24.

Under Florida law, “an employer is vicariously liable for an employee’s tortious

conduct where the conduct occurs within the scope of the employment.” See Fields v.

Devereux Found., Inc., 244 So. 3d 1193, 1196 (Fla. 2d Dist. Ct. App. 2018) (citing Garcia

v. Duffy, 492 So. 2d 435, 438 (Fla. 2d Dist. Ct. App. 1986)). However, when the

underlying conduct is an intentional tort, merely “showing that an employee was on duty

at the time he assailed someone is not sufficient to establish that the conduct occurred

within the scope of employment.” Id. Rather, to hold Alternate Health vicariously liable

for Tykoliz’s alleged wrongdoing, Reillo must show that Tykoliz’s tortious conduct was: 1)

“‘of the kind he was employed to perform,’” 2) occurred “‘substantially within the time and

space limits authorized or required by the work to be performed,’” and 3) was “‘activated

at least in part by a purpose to serve the master.’” Id. (quoting Iglesia Cristiana La Casa

Del Señor, Inc. v. L.M., 783 So. 2d 353, 357 (Fla. 3d Dist. Ct. App. 2001)); Goss v. Human

Servs. Assocs., Inc., 79 So. 3d 127, 132 (Fla. 5th Dist. Ct. App. 2012). “The question of

whether an employee is acting within the course and scope of employment, where the

facts are not in dispute, is that of law.” See Goss, 79 So. 3d at 132. Significantly, “sexual

misconduct by employees is generally held to be outside the scope of employment and,

therefore, is insufficient to impose vicarious liability on the employer.” See Carter v.

America Online, Inc., 208 F. Supp. 2d 1271, 1279 (M.D. Fla. 2001).

Accepting Reillo’s account as true, the alleged assault and battery occurred at a

“work event” when Tykoliz groped Reillo, attempted to kiss her, and “[stuck] his tongue

down [her] throat.” See Reillo Decl. ¶ 26. While the attack may have occurred “within

the time and space limits” of their work, it is not the kind of conduct Tykoliz was employed

to perform, nor has Reillo offered any evidence to indicate that Tykoliz acted, even in part,

with “a purpose to serve the master.” See Fields, 244 So. 3d at 1196. Indeed, at the

August 4, 2020 Hearing, Reillo conceded that she had no evidence to support a finding

that Tykoliz was acting with an intent to serve his employer, and instead argued, for the

first time, that Alternate Health could be held liable under a theory of ratification. See Tr.

at 75-77.

In support of her ratification theory, Reillo cited Haq v. United Airlines, Inc., No.

93-2248-CIV-MARCUS, 1996 WL 426814, at *5 (S.D. Fla. Apr. 16, 1996) which states that

“an employer may be held accountable for the intentional torts of its employees where the

employer either directed the wrongful acts or ratified the conduct afterward.” The court in

Haq explains that: “In order to successfully travel on a ratification theory, the principal of

the employee must ‘have full knowledge of all the facts,’ there must be ‘an intention on the

part of the purported principal to ratify the act in question’ and ‘the required intention must

be manifested in some way.’” See id. at *7. Although unclear, Reillo appears to contend

that Alternate Health manifested an intent to ratify the sexual assault because it failed to

take any action against Tykoliz after she reported the attack. However, the Florida

Supreme Court has expressly held that: “a criminal act c[o]mmitted outside the scope of

the servant’s authority cannot be ratified . . . .” See Mallory v. O’Neil, 69 So. 2d 313, 314-

15 (Fla. 1954). The Mallory court further reasoned that even if exceptions to this rule

exist, no ratification had occurred in that case despite the fact that the employer had gone

so far as to “secure[] a lawyer to represent his servant and retained the servant in his

employment after serving his jail sentence . . . .” Id.; see also Riddle v. Aero Mayflower

Transit Co., 73 So. 2d 71, 71-72 (Fla. 1954) (finding employer did not ratify employee’s

assault on a customer where employer stated in open court with full knowledge of the

testimony against the employee that he would re-employ him) (citing Chaney v. Frigidaire

Corp., 31 F.2d 977, 978 (5th Cir. 1929)); Chaney, 31 F.2d at 978 (“Appellee's failure to

discharge the salesman is not enough to show that it ratified or adopted the assault and

battery, which it is alleged was committed by its salesman upon appellant. Indeed, it seems

extravagant to suggest that appellee, by any action it might take, could ratify or adopt such

conduct.” (internal citation omitted)). Thus, even accepting Reillo’s statements that the

attack occurred, she reported it to Human Resources, and nothing was done, Alternate

Health’s failure to take action against Tykoliz alone, is insufficient as a matter of law to

establish Alternate Health’s ratification of the assault. See Haq, 1996 WL 426814, at *8

(“Nor may [employer’s] failure to discipline [employee] in connection with his conduct

during his investigation into Plaintiff’s claims be used to infer ratification.”).

Because Reillo does not even allege, see Complaint ¶¶ 29, 65, 71, much less offer

evidence, that Tykoliz attacked Reillo “in furtherance of [his] employment with” Alternate

Health, or that Alternate Health with full knowledge of the attack manifested an intent to

ratify it, Reillo cannot hold Alternate Health vicariously liable for this conduct. See Goss,

79 So. 3d at 132; see also Speaks v. City of Lakeland, 315 F. Supp. 2d 1217, 1229 (M.D.

Fla. 2004); Carter, 208 F. Supp. 2d at 1279. And, because Reillo cannot prevail on these

claims against Alternate Health even if her version of these events is entirely true, the

Court finds it appropriate to enter summary judgment sua sponte in favor of Alternate

Health on Counts V and VI.

B. Intentional Infliction of Emotional Distress – Count VII

Reillo asserts a claim for intentional infliction of emotional distress (IIED) in Count

VII premised on Tykoliz’s alleged sexual assault as well as his alleged verbal abuse and

harassment. See Complaint ¶¶ 29, 36, 77-81; Motion at 13. As with the assault and

battery claims, Reillo seeks to hold Alternate Health vicariously liable for Tykoliz’s conduct.

See Motion at 13. Although there are myriad disputed issues of fact, the Court also finds

it appropriate to enter summary judgment sua sponte in Alternate Health’s favor on this

claim because even accepting Reillo’s version of events as true and drawing all inferences

in her favor, this claim fails as a matter of Florida law.

Preliminarily, the Court observes that it appears doubtful that Reillo’s evidence is

sufficient to establish Alternate Health’s vicarious liability for Tykoliz’s abusive conduct.

See Carter, 208 F. Supp. 2d at 1279 (finding sexually harassed employee could not hold

employer vicariously liable for intentional infliction of emotional distress because she failed

to show that the harassment somehow related to the perpetrator’s job and was motivated

by a desire to serve his employer). Nevertheless, even if Reillo can establish that

Tykoliz’s conduct was within the scope of his employment, Reillo cannot prevail on this

claim because the conduct she describes in her Declarations fails to meet the threshold of

outrageousness necessary to support a claim for intentional infliction of emotional distress

as a matter of Florida law.8

“Under applicable Florida law, in order to state a cause of action for intentional

infliction of emotional distress the plaintiff must demonstrate: 1) deliberate or reckless

infliction of mental suffering by defendant; 2) by outrageous conduct; 3) which conduct of

8 At the Hearing, Reillo’s counsel argued that whether the conduct was sufficiently outrageous was an issue

of fact for the jury to decide, and then later appeared to concede that the Court does have the ability to

decide whether the outrageousness requirement is met, but maintained that the evidence is sufficient to

create an issue of fact. See Tr. at 90. However, as explained below, whether a person’s conduct is

sufficiently outrageous is a question of law, and numerous courts applying Florida law have found the type

of conduct described here, even assuming Reillo’s version is true, to be insufficiently outrageous.

Significantly, Reillo’s counsel conceded at the Hearing that he did not have any other evidence on this issue

“beyond what the record already has.” See Tr. at 87.

the defendant must have caused the suffering; and 4) the suffering must have been

severe.” See Golden v. Complete Holdings, Inc., 818 F. Supp. 1495, 1499 (M.D. Fla.

1993). “[W]hether a person’s conduct is sufficiently outrageous and intolerable as to form

the basis for a claim of intentional infliction of emotional distress is a matter of law for the

court, not a question of fact.” Id. at 1499-1500. Moreover, other courts have noted,

“[c]laims for emotional distress in the workplace have been permitted to go forward only

where the claims involve persistent verbal abuse coupled with repeated offensive physical

contact . . . .” See McNichols v. Miami-Dade Cnty., No. 02-23034-CIV, 2006 WL 1104336,

at *19 (S.D. Fla. Mar. 24, 2006); Johnson v. Thigpen, 788 So. 2d 410, 413-14 (Fla. 1st

Dist. Ct. App. 2001) (“[F]ederal courts interpreting Florida law have allowed claims of

intentional infliction of emotional distress in the workplace to go forward in circumstances

involving repeated verbal abuse coupled with repeated offensive physical contact.”)

(emphasis added)) (collecting cases). Thus, even if Tykoliz’s behavior did fall within the

scope of his employment, his verbal abuse coupled with one isolated incident of offensive

physical contact is not sufficiently outrageous as a matter of law to support a claim for

intentional infliction of emotional distress. See Hayes v. Liberty Nat’l Life Ins. Co., No. 94-

425-CIV-J-10, 1995 WL 500896, at *3-4 (M.D. Fla. Aug. 4, 1995) (finding allegations

insufficient to state a claim of IIED where plaintiff alleged ongoing sexual harassment,

including one incident where her supervisor grabbed her and attempted to kiss her)

(collecting cases); see also Goggin v. Higgins, No. 8:13-cv-2068-T-24EAJ, 2013 WL

6244536, at *2 (M.D. Fla. Dec. 3, 2013) (granting motion to dismiss where plaintiff alleged

intentional infliction of emotional distress based on sexual harassment and unwanted

sexual advances, including allegations that the defendant frequently grabbed the plaintiff’s

buttocks); Vernon v. Med. Mgmt. Assocs. of Margate, Inc., 912 F. Supp. 1549, 1559 (S.D.

Fla. 1996) (“The touchstone of [workplace sexual harassment] cases is the presence of

relentless physical, as well as verbal, harassment.” (emphasis added)). As such, even if

a jury accepted Reillo’s account of Tykoliz’s behavior as true, this claim would nevertheless

fail as a matter of law. Accordingly, the Court finds it appropriate to enter summary

judgment sua sponte on this claim as well.

C. Negligent Training, Retention & Supervision

Last, in Count VIII, Reillo asserts a claim for “Negligent Training, Retention, and

Supervision.” See Complaint ¶¶ 82-87. In her Motion, Reillo argues that Alternate

Health “negligently hired/supervised Tykoliz.” See Motion at 15. Without explaining

why, Reillo maintains that it was “reasonably foreseeable” to Alternate Health that “Tykoliz

would have harmed [Reillo] in the manner he did.” See Motion at 14. Reillo then refers

to her assertion that Tykoliz sexually assaulted her, that he verbally abused her, and that

she complained to Human Resources, Rick Anderson, and “Sam” about Tykoliz. Id.

Reillo maintains that Alternate Health’s failure to investigate Tykoliz and decision to keep

him employed despite her claims “serves to highlight [Alternate Health’s] negligence.” Id.

at 15. At the Hearing, Reillo clarified that this claim is premised only on a theory of

negligent retention. See Tr. at 78-79. Also, as articulated at the Hearing, Reillo appears

to contend that Alternate Health acted negligently when it failed to take any action after

she complained about Tykoliz to Human Resources. See Tr. at 78-79, 84-85.

“‘To state a cause of action for negligent supervision or negligent retention under

Florida law the claimant must allege: (1) the existence of a relationship giving rise to a

legal duty to supervise; (2) negligent breach of that duty; and (3) proximate causation of

injury by virtue of the breach.’” Atmore v. City of Lake Wales, No. 8:08-cv-2320-T-27EAJ,

2009 WL 10670908, at *3 (M.D. Fla. Dec. 1, 2009) (quoting Albra v. City of Ft. Lauderdale,

232 F. App’x 885, 888 (11th Cir. 2007)). To establish the employer’s negligence, a

plaintiff must show that “during the course of employment, the employer becomes aware

or should have become aware of problems with an employee that indicated his unfitness,

and the employer fails to take further action such as investigating, discharge, or

reassignment.” See Groover v. Polk Cnty. Bd. of Comm’rs, --- F. Supp. 3d ----, 2020 WL

2307558, at *5 (M.D. Fla. May 8, 2020) (quoting Degitz v. S. Mgmt. Servs., Inc., 996 F.

Supp. 1451, 1461 (M.D. Fla. 1998)). In addition, “[a] claim for negligent training,

supervision and retention ‘must be based on an injury resulting from a tort which is

recognized under common law.’” See Smith v. America Online, Inc., 499 F. Supp. 2d

1251, 1267 (M.D. Fla. 2007) (quoting Scelta v. Delicatessen Support Servs., Inc., 57 F.

Supp. 2d 1327, 1348 (M.D. Fla. 1999)). Significantly, “Florida law does not recognize a

common law claim of sexual harassment as an independent tort.” Id.

Accepting Reillo’s version of events, there are two underlying acts that allegedly

caused the physical and emotional damages for which she seeks recovery in her negligent

retention claim: 1) Tykoliz’s alleged sexual assault, and/or 2) Tykoliz’s alleged ongoing

verbal abuse.9 However, neither of these underlying acts can support a viable negligent

9 It is worth noting that this purported ongoing verbal abuse is not alleged in the Complaint as part of the

negligent retention claim. In the factual background, the Complaint references only the May 24, 2017 attack

and the email on August 20, 2017, when Tykoliz allegedly called Reillo a “fuc*-up.” See Complaint ¶¶ 29,

36. Under Count VII, the claim for intentional infliction of emotional distress, Reillo does vaguely refer to

Tykoliz’s “intentional verbal and physical harassment and humiliation,” see id. ¶ 78, but this allegation is not

incorporated into Count VIII for negligent retention, nor does Reillo include any allegation referencing

harassment or verbal abuse in Count VIII. See id. ¶¶ 82-87. Rather, in Count VIII, Reillo incorporates the

background facts and alleges that Alternate Health failed to investigate and remedy “allegations and

complaints of workplace violence.” Id. ¶ 86. Thus, Reillo’s theory of negligent retention as alleged in the

Complaint appears to be premised solely on the alleged assault and battery.

retention claim under the circumstances presented. To the extent Reillo argues that

Alternate Health is liable for the sexual assault, this claim fails as a matter of law as there

is no evidence that Alternate Health knew or should have known that Tykoliz was a threat

to others prior to the attack. See Speaks, 315 F. Supp. 2d at 1229 (“[S]ummary judgment

is appropriate on Plaintiff’s negligent retention claim because the record is completely

barren of any notice that the [employer] had that [the attacker] had ever sexually harassed

any other employee.”); Smith, 499 F. Supp. 2d at 1267; Groover, 2020 WL 2307558, at *5

(“Plaintiffs must point to something before [the alleged injury] to show that [the employer’s]

retention of the [employee] was negligent.”). At the Hearing, Reillo’s counsel

acknowledged that there was only one assault. See Tr. at 84. And Reillo does not

allege, argue, or present evidence that she complained to anyone at Alternate Health

about sexual harassment or misconduct by Tykoliz prior to the May 24, 2017 assault. See

Motion at 14; see also Complaint ¶¶ 7-38, 82-87; Reillo Decl. ¶¶ 26-29.10 Nor does Reillo

present evidence of anything in Tykoliz’s background that should have alerted Alternate

Health to the danger he allegedly presented. Thus, Reillo cannot hold Alternate Health

liable for her injuries from the sexual assault and battery because she offers no evidence

that Alternate Health acted negligently prior to this attack.

To the extent Reillo’s theory is that Alternate Health is liable for her damages from

the verbal abuse and harassment that continued after the attack, this theory also fails.

According to Reillo, after the assault, she complained to Human Resources, nothing was

done, and Tykoliz continued to verbally harass and abuse her. See Reillo Decl. ¶¶ 26-

10 In her Supplemental Declaration, Reillo states that she complained to HR “about multiple problems I had

with Defendant, its board members, and my supervisors” but does not specify when she made those

complaints or what she actually reported. See Reillo Supp. Decl. ¶ 9.

29; Reillo Supp. Decl. ¶¶ 6-7, 9. However, even if true, Reillo cannot recover on a claim

of negligent retention for her injuries stemming from Tykoliz’s verbal abuse. As stated

above, a claim for negligent retention must be based on injuries stemming from a

recognized common law tort, and Florida law does not recognize an independent tort claim

premised on verbal abuse or harassment. See Perry v. Walmart Inc., No. 2:18-cv-606-

FtM-29NPM, 2020 WL 1158719, at *15 (M.D. Fla. Mar. 10, 2020).11 Thus, even if Reillo

could prove to a jury that Tykoliz was verbally abusing and harassing her, and that

Alternate Health failed to take action despite notice of this abuse, this claim would still

fail.12 Because the record establishes that Reillo cannot prevail against Alternate Health

on her claim for negligent retention as a matter of law, the Court will enter summary

judgment sua sponte in Alternate Health’s favor on this claim as well.

Accordingly, it is

ORDERED:

1. The Court sua sponte enters summary judgment in favor of Defendant as to

Counts V through VIII of the Complaint.

2. Pursuant to this Order and the Court’s rulings at the August 4, 2020 Hearing

(Doc. 44), the Clerk of the Court is directed to enter judgment in favor of

Defendant Alternate Health USA, Inc. and against Plaintiff Michele Renee Reillo

on all Counts of the Complaint.

11 And, as stated above, Reillo’s allegations, even if true, are insufficient to state a claim for intentional

infliction of emotional distress, so she cannot rely on IIED as the requisite underlying tort.

12 Interestingly, Reillo did not bring any claims premised on gender discrimination, sexual harassment or

retaliation pursuant to Title VII or the FCRA, despite noting in her Complaint her intention to amend the

complaint and add these claims upon expiration of the EEOC investigatory period. See Complaint at 1 n.1.

3. The Clerk of the Court is further directed to terminate any remaining pending

motions and deadlines as moot, and close the file.

DONE AND ORDERED in Jacksonville, Florida this 13th day of November, 2020.

United States District Judge

Ic11

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