Rohttis v. Lee County School District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

NERY ROHTTIS,

Plaintiff,

v. Case No: 2:21-cv-737-JES-NPM

THE SCHOOL DISTRICT OF LEE

COUNTY, FLORIDA,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of defendant’s

Motion to Dismiss Plaintiff’s Complaint (Doc. #14) filed on

November 23, 2021. Plaintiff filed a Response in Opposition (Doc.

#20) on December 23, 2021. For the reasons set forth below, the

motion is granted.

I.

Plaintiff Nery Rohttis (Plaintiff or Rohttis) filed a six-

count Complaint against the School District of Lee County, Florida

(Defendant or School District). (Doc. #2.) Defendant now moves to

dismiss the Complaint en toto for failure to state claims upon

which relief may be granted. (Doc. #14.)

A. Factual Background

According to the Complaint, Plaintiff was employed by the

School District for nineteen years until her termination on August

7, 2019. (Id., ¶¶ 4, 7, 22.) Plaintiff worked for Defendant as a

school bus operator, and participated in and was a beneficiary of

the School District’s employee benefits plan and was receiving

“fringe and pension benefits” before her termination. (Id., ¶¶ 7-

8.)

On March 15, 2018, Plaintiff suffered a work-related injury

to her left shoulder, hip and hand, and her lower back which

required hospitalization. (Id., ¶ 9.) Plaintiff filed a worker’s

compensation claim on the same day of her work accident. (Id.)

Following the accident, Plaintiff’s medical providers placed her

on light-duty work restrictions. (Id., ¶ 10.) To accommodate

Plaintiff’s restrictions, the School District reassigned Plaintiff

to various jobs, including an “English Speaker Other Languages

(ESOL) Paraprofessional; In-School Suspension (ISS)

Paraprofessional; and/or various assignment(s) as Defendant deemed

necessary.” (Id., ¶ 11.)

On April 9, 2019, Plaintiff’s treating physician, Dr. Gomez,

released Plaintiff back to regular-duty work, but noted that

maximum medical improvement (MMI) could not be determined. (Id.,

¶ 12.) On May 7, 2019, Plaintiff underwent a “driver’s test” at

Defendant’s request, despite the School District having knowledge

that Plaintiff had not been released by Dr. Tafel.1 (Id., ¶ 13.)

1 The Complaint alleges that Plaintiff had sought a “second

opinion” from Dr. Tafel, but does not provide further details.

(Doc. #1, ¶ 13.)

During Plaintiff’s driving test, she experienced physical

difficulties with her left hand. (Id., ¶ 14.) Dr. Tafel released

Plaintiff to regular-duty work on May 20, 2019, with a MMI rating

of two percent. (Id., ¶ 15.) Dr. Tafel diagnosed Plaintiff with

left upper extremity pain, and a “physical impairment that

substantially limited one or more major life activities.” (Id.) On

the same day, Defendant suspended Plaintiff without pay and with

no explanation. (Id., ¶ 16.)

While Plaintiff was suspended, Defendant coerced Plaintiff

into using her sick leave. (Id., ¶ 17.) Plaintiff sent a certified

letter to the School District, requesting an explanation for her

suspension. (Id., ¶ 18.) Defendant received the certified letter

on May 28, 2019, but did not respond to Plaintiff’s request. (Id.)

Following her suspension, but prior to Plaintiff’s termination,

Defendant sent a “district representative” to her personal

residence “to harass” Plaintiff. (Id., ¶ 19.) On August 7, 2019,

Plaintiff was terminated for “abandonment of her position.” (Id.,

¶ 22.) Prior to her termination, Plaintiff did not have any

disciplinary actions noted in her personnel folder. (Id., ¶ 20.)

B. Procedural Background

On October 6, 2021, Plaintiff filed a six-count Complaint for

employment discrimination pursuant to the American Disabilities

Act (ADA), 42 U.S.C. § 12101 et seq., the Family and Medical Leave

Act of 1933 (FMLA), 29 U.S.C. § 2414(a)(1), and § 440.205, Florida

Statutes. (Doc. #2, ¶ 2.) Plaintiff alleges the following claims

against Defendant: (1) retaliation; (2) violation of the FMLA; (3)

violation of school district policy/race/national origin

discrimination/violation of due process; (4) failure to

accommodate disability; (5) unlawful termination of employment;

and (6) retaliation in violation of § 440.205, Fla. Stat. (Id.,

pp. 4-10.) Defendant urges the Court to dismiss all counts in the

Complaint because the claims do not provide sufficient facts upon

which Plaintiff may show she is entitled to relief. (Doc. #14.)

II.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

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

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

above the speculative level.” Id. at 555. See also, Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations

omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth,” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially

plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted). Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,

a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679.

III.

A. Count I — Retaliation

Count I of the Complaint alleges that Defendant retaliated

against Plaintiff when it terminated her in August 2019, after she

filed her initial complaint with the Equal Employment Opportunity

Commission (EEOC). (Doc. #2, ¶ 22.) Count I does not identify any

law under which the “Retaliation” claim is filed, although

Defendant (and the Court) are guessing this count relates to the

ADA.

The ADA prohibits covered employers from retaliating against

an employee who “has opposed any act or practice made unlawful by

this Act or because such individual made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this Act.” 42 U.S.C. § 12203(a). To

establish a prima facie ADA discrimination claim, plaintiff must

allege (1) that she engaged in protected activity under the

statute, (2) that she suffered an adverse employment action, and

(3) a causal connection between the protected acts and the adverse

employment action. Batson v. Salvation Army, 897 F.3d 1320, 1327

(11th Cir. 2018) (citing Hurlbert v. St. Mary's Health Care Sys.,

Inc., 439 F.3d 1286, 1298 (11th Cir. 2006)).

Defendant argues that Plaintiff cannot satisfy the third

element of her prima facie discrimination claim because she has

failed to adequately allege a causal connection. (Doc. #14, p. 4.)

Specifically, Defendant maintains that Plaintiff filed her EEOC

Charge of Discrimination2 on January 21, 2020 (Doc. #14-1, p. 2),

2 Because Plaintiff references her EEOC Charge in the Complaint

(Doc. #2, ¶ 22) and it is central to her claims, it is permissible

for the Court to consider the document in review of Defendant’s

Motion to Dismiss. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,

959 (11th Cir. 2009) (The Court's review of a 12(b)(6) motion to

dismiss is limited to "the complaint itself and any documents

referred to in the complaint which are central to the claims.").

which is more than five months after her August 7, 2019

termination. (Doc. #14, p. 5.) Defendant asserts Plaintiff’s

termination cannot be a form of retaliation when it preceded

Plaintiff’s only alleged protected activity. (Id.) The Court

agrees.

The Complaint clearly alleges that Plaintiff was terminated

on August 7, 2019, prior to her filing an EEOC Charge. “[T]hus the

[EEOC] charge could not have triggered Plaintiff's termination and

as a result, was not causally related to the discharge.” Mack v.

Wilcox Cty. Comm'n, No. 09-00101-KD-B, 2009 U.S. Dist. LEXIS

114861, at *14 (S.D. Ala. Nov. 6, 2009) (dismissing a claim where

the plaintiff’s termination preceded his EEOC charge).

Furthermore, the Complaint does not allege any other protected

activity or any other adverse employment action. Accordingly,

Defendant’s motion to dismiss Count I is granted, and Count I is

dismissed without prejudice.

B. Count II — Violation of the FMLA

Defendant argues that Count II of the Complaint should be

dismissed because it fails to allege facts sufficient to support

claims of interference or retaliation under the Family and Medical

Leave Act of 1933 (the FMLA). (Doc. #14, p. 5.)

“The FMLA provides eligible employees the right to 12 weeks

of leave for a serious health condition that makes the employee

unable to perform the functions of her position.” Munoz v. Selig

Enterprises, Inc., 981 F.3d 1265, 1274 (11th Cir. 2020) (citing

Batson, 897 F.3d at 1328); 29 U.S.C. § 2612(a)(1)(D)). An employee

may bring two types of FMLA claims: "interference claims, in which

an employee asserts that h[er] employer denied or otherwise

interfered with h[er] substantive rights under the Act; and

retaliation claims, in which an employee asserts that h[er]

employer discriminated against h[er] because [s]he engaged in an

activity protected by the Act." Strickland v. Water Works & Sewer

Bd., 239 F.3d 1199, 1206 (11th Cir. 2001). See also Hurley v. Kent

of Naples, Inc., 746 F.3d 1161, 1166 (11th Cir. 2014)(“the FMLA

allows employees to bring a private cause of action for

interference or retaliation."). Both FMLA interference and

retaliation claims require the employee to establish that she

qualified for leave. Hurley, 746 F.3d at 1166-67.

In her Complaint, Plaintiff alleges the following:

25. Prior to Ms. Rohttis’s termination, she was

entitled to leave under the Family and Medical Leave

Act.

26. The Defendant, Lee County School District, made

the determination that the Plaintiff’s incident was

not appropriate under the [FMLA], because her

sustained injuries were a Workers’ Compensation

matter.

27. On August 10, 2019, the Plaintiff requested an

appeal. The Defendant failed to respond to the

request. ON August 21, 2019, the School District

acknowledged receipt of the Plaintiff’s appeal

request, but it did not offer an appeal or due process.

(Doc. #2, ¶¶ 25-27.) These allegations are not sufficient for

either an interference or a retaliation claim.

(1) FMLA Interference Claim

Defendant argues that Plaintiff has failed to allege a

plausible interference claim under the FLMA because there are no

allegations that Plaintiff requested FMLA-leave while employed by

Defendant, or when such a request was made and was later denied.

(Doc. #14, p. 6.)

“An FMLA interference claim lies if an employee can

demonstrate by a preponderance of the evidence that she was

entitled to an FMLA benefit and her employer denied her that

benefit.” Munoz, 981 F.3d at 1274 (citation omitted). “Adequate

notice to the employer is a prerequisite for an employee to take

FMLA leave.” Bailey v. City of Daytona Beach Shores, No. 6:12-cv-

71-Orl-18TBS, 2012 U.S. Dist. LEXIS 156104, at *9 (M.D. Fla. Oct.

30, 2012) (citing Murphy v. FedEx Nat. LTL, Inc., 618 F.3d 893,

900 (8th Cir. 2010)). When determining whether the employee gave

adequate notice "[t]he critical question is whether the

information imparted to the employer is sufficient to reasonably

apprise it of the employee's request to take time off for a serious

health condition." Id. (quoting Darboe v. Staples, Inc., 243

F.Supp.2d 5, 17 (S.D.N.Y. 2003)).

Although Plaintiff alleges that she appealed Defendant’s

decision that her injuries were covered under workers’

compensation, there is no allegation that she provided notice to

Defendant that she wanted to take FMLA-leave for a serious health

condition. Rather, the Complaint alleges that Plaintiff filed a

workers’ compensation claim and that following the claim,

Plaintiff’s medical providers placed her on light-duty and

Defendant reassigned her to various jobs that she could perform

under the work restrictions. (Doc. #2, ¶¶ 9-11.) Plaintiff

therefore has not stated a plausible claim for FMLA interference,

and Defendant’s motion is granted as to this claim.

(2) FMLA Retaliation Claim

“[T]o state a retaliation claim under the FMLA, an employee

must demonstrate that her employer intentionally discriminated

against her based on having exercised an FMLA right—such as, for

instance, taking FMLA leave.” Batson, 897 F.3d at 1327 (citing 29

U.S.C. § 2615(a)-(b)). “[T]he employee must make a prima facie

case showing that: (1) she engaged in statutorily protected

conduct; (2) she suffered an adverse employment action; and (3)

there is a causal connection between the two.” Munoz, 981 F.3d at

1275. Defendant argues that Plaintiff has not stated a claim of

retaliation under the FMLA because there are no allegations that

she exercised an FMLA right, i.e., such as requesting or taking

FMLA-leave, nor is it alleged when such protected activity

occurred. (Doc. #14, p. 7.)

Taking the allegations as true and viewing them in a light

most favorable to Plaintiff, the Court finds that Plaintiff has

failed to state a plausible claim of FMLA retaliation. Plaintiff

has not alleged that she engaged in statutorily protected conduct

by requesting or taking FMLA leave. Furthermore, even if the

appeal of Defendant’s FMLA determination constituted protected

activity, Plaintiff filed the appeal three days after her August

7, 2019 termination. See Drago v. Jenne, 453 F.3d 1301, 1308 (11th

Cir. 2006)(Where "an employer contemplates an adverse employment

action before an employee engages in protected activity, temporal

proximity between the protected activity and the subsequent

adverse employment action does not suffice to show

causation.")(emphasis added). Thus, there is no causal connection

between any protected activity and an adverse employment action.

Accordingly, Defendant’s motion to dismiss Plaintiff’s FMLA

retaliation claim is granted.

C. Count III — Violation of School District Policy, Race,

National Origin Discrimination, & Violation of Due Process

Count III of the Complaint alleges that Defendant has violated

the School District’s policy, engaged in race and national origin

discrimination, and violated Plaintiff’s due process rights. (Doc.

#2, p. 5.) Plaintiff alleges that when Defendant terminated her

without providing an opportunity to appeal the termination,

Defendant violated its own policy. (Id., ¶ 29.) Plaintiff further

alleges that as a Hispanic female she was treated differently than

Caucasian employees who were able to avail themselves of the

Professional Standards and Equity ADA Committee. (Id.)

Defendant argues that Count III must be dismissed because it

violates the shotgun pleading rule. Shotgun pleadings violate Rule

8, which requires "a short and plain statement of the claim showing

that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2),

by "fail[ing] to one degree or another ... to give the defendants

adequate notice of the claims against them and the grounds upon

which each claim rests." Weiland v. Palm Beach Cnty. Sheriff's

Ofc., 792 F.3d 1313, 1323 (11th Cir. 2015) (defining the four types

of shotgun pleadings).3

Plaintiff’s third claim constitutes a shotgun pleading

because it impermissibly alleges up to four separate potential

causes of action into a single count. This cluster of claims is in

clear violation of Federal Rule of Civil Procedure 10(b) as it

does not provide discrete causes of action in separate counts. See

Warner v. City of Marathon, 718 F. App'x 834, 839 (11th Cir. 2017)

(affirming district court’s finding that by pleading several

3 The four "rough" types or categories of shotgun pleadings

identified by the Eleventh Circuit in Weiland include:

The third type of shotgun pleading is one that commits

the sin of not separating into a different count each

cause of action or claim for relief.

Weiland, 792 F.3d at 1322-23.

claims in one count it violated Rule 10(b)’s preference that

discrete claims be pled in separate counts to facilitate clear

presentation of the issues); see also Cesnik v. Edgewood Baptist

Church, 88 F.3d 902, 905 (11th Cir. 1996) (characterizing as a

shotgun pleading a complaint that "was framed in complete disregard

of the principle that separate, discrete causes of action should

be plead in separate counts"). Thus, Defendant is unable to

“discern what the [P]laintiff is claiming and to frame a responsive

pleading.” Embree v. Wyndham Worldwide Corp., 779 F. App'x 658,

662 (11th Cir. 2019) (citing Anderson v. Dist. Bd. of Trs. of Cent.

Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). Accordingly,

Plaintiff must plead each claim in a separate count. Fed. R. Civ.

P. 10(b).

Defendant also argues that to the extent Plaintiff has alleged

claims for race and national origin discrimination under Title

VII, the claims must be dismissed because Plaintiff did not exhaust

her administrative remedies prior to bringing this action. (Doc.

#14, p. 9.) "Prior to filing a Title VII action . . . a plaintiff

first must file a charge of discrimination with the EEOC." Gregory

v. Ga. Dep't of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004)

"[A] 'plaintiff's judicial complaint is limited by the scope of

the EEOC investigation which can reasonably be expected to grow

out of the charge of discrimination.'" Id. at 1280(quoting

Alexander v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th Cir.

2000)). However, allegations of "new acts of discrimination are

inappropriate" for a post-charge judicial complaint. Id. at 1279-

80. Since Count III is being dismissed on other grounds, the Court

need not resolve this issue.

D. Count IV — Failure to Accommodate Disability

In Count IV of the Complaint, Plaintiff alleges that Defendant

breached its duty to provide reasonable accommodations under the

ADA. (Doc. #2, p. 6.)

Under the ADA, "[a]n employer "discriminate[s] against a

qualified individual on the basis of disability" by, inter alia,

"not making reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with a

disability who is an ... employee, unless such covered entity can

demonstrate that the accommodation would impose an undue hardship

on the operation of the business of such covered entity." 42 U.S.C.

§ 12112(b)(5)(A). To state a prima facie claim for failure to

accommodate under the ADA, a plaintiff must show that: (1) she is

disabled; (2) she is a qualified individual, meaning able to

perform the essential functions of the job; and (3) she was

discriminated against because of her disability by way of the

defendant's failure to provide a reasonable accommodation. Russell

v. City of Tampa, 652 F. App'x 765, 767 (11th Cir. 2016) (per

curiam) (citing Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255

(11th Cir. 2001)).

Plaintiff alleges that Defendant breached its duty to

reasonably accommodate her by not allowing her to continue in the

position Defendant provided while she was receiving medical

treatment. (Doc. #2, ¶ 35.) Reasonable accommodations may include

"reassignment to a vacant position, . . . and other similar

accommodations for individuals with disabilities." 42 U.S.C. §

12111(9)(B). The plaintiff bears the burden of identifying an

accommodation, and of demonstrating that the accommodation allows

him to perform the job's essential functions. Spears v. Creel,

607 F. App'x 943, 948 (11th Cir. 2015). Essential functions are

"the fundamental job duties of the employment position the

individual with a disability holds or desires." Id. at 949 (citing

29 C.F.R. § 1630.2(n)(1)).

Defendant argues that Plaintiff’s allegations are

insufficient to state a plausible failure to accommodate claim

because she fails to allege that she was qualified for the position

and that the position was vacant. (Doc. #14, p. 11.) The Court

agrees. Plaintiff alleges that Defendant provided reassignment to

various positions while she was placed on light duty, but she does

not allege she could perform the essential functions of the job or

that it was vacant. Even liberally construing the Complaint at

this stage of the proceedings, Plaintiff has failed to sufficiently

allege that Defendant did not provide reasonable accommodations.

See Frazier-White v. Gee, 818 F.3d 1249, 1256 (11th Cir.

2016)(affirming the finding that the defendant did not fail to

provide a reasonable accommodation where the plaintiff did not

show that there was a specific, full-duty vacant position she was

qualified for and could have done, given her medical condition);

see also Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir.

1997)("Reassignment to another position is a required

accommodation only if there is a vacant position available for

which the employee is otherwise qualified.") (citing 42 U.S.C. §

12111(9)(B)).

E. Count V — Unlawful Termination In Violation of ADA

In Count V of the Complaint, Plaintiff alleges that Defendant

discriminated against her based upon disability. (Doc. #2, ¶¶ 15,

38-41.) Specifically, Plaintiff alleges that she was terminated

because of her disability. (Id., ¶ 39.)

The ADA prohibits discrimination "against a qualified

individual on the basis of disability in regard to job application

procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions,

and privileges of employment." Velez v. Sprint/United Mgmt. Co.,

No. 6:19-cv-987-Orl-31LRH, 2020 U.S. Dist. LEXIS 248396, at *6

(M.D. Fla. Dec. 15, 2020) (quoting 42 U.S.C. § 12112(a)). "To

establish a prima facie case of employment discrimination under

the ADA, a plaintiff must show that at the time of the adverse

employment action, she (1) had a disability, (2) was a qualified

individual, and (3) was subjected to unlawful discrimination

because of her disability." Batson, 897 F.3d at 1326.

Defendant seeks dismissal of Plaintiff’s ADA discrimination

claim because Plaintiff has not adequately alleged that she is

disabled or that she was qualified to perform the essential duties

of her position. The Court will address each argument in turn.

(1) Existence of a Disability

The ADA defines "disability" as either "a physical or mental

impairment that substantially limits one or more major life

activities . . . a record of such an impairment . . . or being

regarded as having such an impairment." 42 U.S.C. § 12102(1). Major

life activities are defined to

include, but are not limited to . . . performing manual

tasks, . . . walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating,

thinking, communicating, and working" as well as "the

operation of a major bodily function, including but not

limited to . . . neurological, [and] brain . . .

functions.

Felix v. Key Largo Mgmt. Corp., No. 21-10381, 2021 WL 5037570,

2021 U.S. App. LEXIS 32402, at *10 n.1 (11th Cir. Oct. 29, 2021)

(quoting 42 U.S.C. § 12102(2)(B)).

Defendant argues that Plaintiff has failed to sufficiently

allege she suffers from a disability because the Complaint does

not identify which life function was limited. (Doc. #14, p. 12.)

In support of her ADA discrimination claim, Plaintiff alleges that

she was diagnosed with “left upper extremity pain, a physical

impairment that substantially limited one or major life

functions.” (Doc. #2, ¶ 15.) Plaintiff, however, does not specify

what major life activity was limited by her extremity pain. “This

type of conclusory allegation regarding disability does not

support a claim under the . . . ADA.” Constantino v. Madden, No.

8:02-cv-1527-T-27TGW, 3003 WL 22025477, 2003 U.S. Dist. LEXIS

9297, at *5 (M.D. Fla. January 31, 2003). The major life function

allegedly limited by a disability is “so foundational that it must

not be left to conjecture and . . . the Plaintiff must be required

to better articulate in h[er] complaint the basis for such claims.”

Bearelly v. State, 15 Fla. L. Weekly Fed. D. 85, 2002 U.S. Dist.

LEXIS 28263, at *11-12 (M.D. Fla. 2002) (dismissing an ADA claim

where the plaintiff did not identify what major life activity was

allegedly limited). The Court finds Plaintiff has failed to allege

that she is disabled under the ADA.

(2) Whether Plaintiff Is a Qualified Individual

Defendant further argues that Plaintiff’s ADA discrimination

claim also fails because Plaintiff has not alleged that she was a

qualified individual under the Act. (Doc. #14, p. 13.) As mentioned

above, a "qualified individual" is someone who can perform the

essential functions of her job, with or without reasonable

accommodation. See Sikes v. Wal-Mart Assocs., Inc., No. 8:20-CV-

2484-MSS-AEP, 2021 WL 3082896, at *2 (M.D. Fla. Apr. 13, 2021)

(citing 42 U.S.C. § 12111(8)). The essential functions of a

position "are the fundamental job duties of a position that an

individual with a disability is actually required to perform."

Garrison v. City of Tallahassee, 664 F. App'x 823, 826 (11th Cir.

2016) (quoting Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1257

(11th Cir. 2007)).

In her Complaint, Plaintiff alleges that she worked as a bus

operator for the School District for nineteen years, but that

following her work-accident, “her disability prevented her from

being able to work as a bus operator.” (Doc. #2, ¶¶ 7, 35.) Read

liberally, this allegation does not support an inference that

Plaintiff could perform the essential functions of her bus

operating job. Furthermore, Plaintiff also failed to allege she

was able to perform the essential functions of the various jobs to

which she was reassigned while on light-duty restrictions. Thus,

Plaintiff has failed to plausibly allege she was a qualified

individual, which is fatal to her disability claim. Accordingly,

Defendant’s motion to dismiss Plaintiff’s ADA discrimination claim

is granted.

F. Count VI — Retaliation In Violation of Florida Statute

§ 440.205

Defendant asserts that Count VI of the Complaint should be

dismissed because it fails to allege a plausible claim for workers’

compensation retaliation under § 440.205, Fla. Stat. (Doc. #14, p.

15.)

Section 440.205 provides that "[n]o employer shall discharge,

threaten to discharge, intimidate, or coerce any employee by reason

of such employee's valid claim for compensation . . . under the

Workers' Compensation Law." To state a claim for workers'

compensation retaliation under § 440.205, “Plaintiff must allege

the following: (1) [s]he engaged in the protected activity of

applying for workers' compensation; (2) [s]he was adversely

affected by an employment decision; and (3) there is a causal

connection between the protected activity and the adverse

employment decision.” McGuire v. UPS, No. 8:15-cv-2792-T-24 JSS,

2016 U.S. Dist. LEXIS 203207, at *7 (M.D. Fla. Oct. 24, 2016).

In its motion, Defendant argues that Plaintiff cannot

establish a causal connection between her protected activity and

an adverse employment action due to a substantial delay between

the two events. (Doc. #14, pp. 14-15.) “A causal connection between

a plaintiff's protected activity and an employer's adverse

employment action may be inferred from temporal proximity so long

as the timing between the two events is ‘very close.’” Ortiz v.

Ardaman & Assocs., No. 6:17-cv-1430-Orl-40GJK, 2019 U.S. Dist.

LEXIS 106250, at *38 (M.D. Fla. Mar. 27, 2019) (citing Thomas v.

Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)). In

the absence of any other evidence of causation, the Eleventh

Circuit has held that a three-month proximity between a protected

activity and an adverse employment action is insufficient to create

a jury issue on causation. Drago v. Jenne, 453 F.3d 1301, 1307

(11th Cir. 2006).

Plaintiff alleges that she “filed a Workers’ Compensation

claim with the Lee County School District on March 15, 2018,” and

that she received benefits from the School District. (Doc. #2, ¶

9, 11-12.) Plaintiff further alleges that since her work-related

accident in March 2018, her supervisors harassed and intimidated

her for filing a workers’ compensation claim, among other things.

(Id., ¶¶ 44-45.) Plaintiff was suspended without pay on May 20,

2019, and was ultimately terminated from her employment with the

School District on August 7, 2019. (Id., ¶¶ 16, 22.)

To the extent Plaintiff is alleging that she was suspended

and terminated from her position as a school bus driver due to

filing a workers’ compensation claim, the facts do not support an

inference of causation. Taking the allegations as true, there is

approximately a fourteenth month gap between when Plaintiff

applied for workers’ compensation benefits and when she was

suspended, as well as more than seventeen months in regard to her

termination. See, e.g., Gonzales v. Pasco Cnty. Bd. of Cnty.

Comm'rs, No. 8:11-cv-1397-T-30TGW, 2013 WL 179948, 2013 U.S. Dist.

LEXIS 7249, at *24 (M.D. Fla. Jan. 17, 2013)(stating that there

was no causal connection due to the five month gap between the

application for workers' compensation benefits and the alleged

adverse employment action); Sierra v. Port Consolidated

Jacksonville, L.L.C., 2016 WL 927189, 2016 U.S. Dist. LEXIS 28085,

(M.D. Fla. Mar. 4, 2016) (same for gap of nine months); Pericich

v. Climatrol, Inc., 523 So. 2d 684, 686 (Fla. 3d DCA 1988) (same

for gap of over a year). Cf. Renta v. Cigna Dental Health, Inc.,

No. 08-60938CIV, 2009 WL 3618246, 2009 U.S. Dist. LEXIS 101491,

(S.D. Fla. Oct. 29, 2009) (explaining that a "close temporal

proximity" is between one and two months). Accordingly, the time

gap between when Plaintiff filed for workers’ compensation

benefits and her suspension or termination is too significant to

support an inference of retaliation under § 440.205.

Defendant further argues that Count VI is also due to be

dismissed because Plaintiff’s allegation that after filing a

workers’ compensation claims she was harassed and intimidated by

her supervisors when a “district representative went to her

personal residence to harass her,” is a legal conclusion without

any factual support. The Court does not agree as this allegation

provides enough “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged." Iqbal, 556 U.S. at 679 (citing Twombly, 550

U.S. at 556). Nevertheless, the Court is unable to determine when

the adverse action, i.e., the harassment or intimidation occurred

in relation to the protected activity. As such, there are no

factual allegations from which the Court may infer a causal

connection. Accordingly, Plaintiff’s retaliation claim pursuant

to § 440.205 is dismissed without prejudice. See McGuire v. UPS,

No. 815CV2792T24ISS, 2016 WL 3428499, 2016 U.S. Dist. LEXIS 81221,

at *8-10 (M.D. Fla. June 22, 2016) (dismissing retaliation claim

without prejudice where complaint failed to allege when protected

activity occurred in relation to adverse action).

Accordingly, it is now

ORDERED :

1. Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc.

#14) is GRANTED.

2. Plaintiff may file an Amended Complaint within FOURTEEN

(14) days of this Opinion and Order.

DONE AND ORDERED at Fort Myers, Florida, this 22nd day of

February, 2022,

/ “zc (2E

: le hy dE. Ah Job

adi EF. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of record

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