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 Second Amended Complaint (Doc. #46)

filed on June 15, 2022. Plaintiff did not file a response, and the

time to do so has passed. On July 15, 2022, Defendant filed a

Request for Oral Argument on its Motion to Dismiss. (Doc. #49.)

For the reasons set forth below, the motion is granted in part and

denied in part, and the request for oral argument is denied as

moot.

I.

A. Factual Background

The allegations in the Second Amended Complaint concern

termination of plaintiff Nery Rohttis’ (Plaintiff) 19-year

employment with defendant – the School District of Lee County,

Florida (Defendant or School District). (Doc. #40, ¶ 8.) Plaintiff

worked as a school bus operator on behalf of the School District.

(Id.) On May 15, 2018, Plaintiff suffered a work-related accident

which caused injuries to Plaintiff’s left shoulder, hip and hand,

and lower back. (Id., ¶ 11.) Plaintiff filed a worker’s

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

Following the accident, Plaintiff’s medical providers placed

her on light-duty work restrictions, which included not lifting

anything above her head. (Id., ¶ 12.) In November 2018, the School

District accommodated Plaintiff’s work restrictions by reassigning

Plaintiff to various jobs, including an “English Speaker Other

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

Paraprofessional; and/or various assignment(s) as the Lee County

School District deemed necessary.” (Id., ¶ 13.)

On April 9, 2019, Plaintiff’s treating orthopedic surgeon,

Dr. Gomez, released Plaintiff back to regular-duty work, but noted

that maximum medical improvement (MMI) could not be determined.

(Id., ¶ 14.)

On May 2, 2019, Plaintiff successfully completed the U.S.

Department of Transportation Federal Motor Carrier Safety Medical

Examination and qualified for a “two-year driving certificate.”

(Id., ¶ 15.) Just five days later, Plaintiff underwent a “driver’s

test” at Defendant’s request, despite the School District having

knowledge that Plaintiff had not been released by her pain

management physician, Dr. Tafel. (Id., ¶ 16.) During Plaintiff’s

driving test, she experienced physical difficulties with her left

hand. (Id., ¶ 17.)

On May 17, 2019, Plaintiff met with Yvonne Steward (Supervisor

of Transportation West) and Richard Purdue (Director of

Transportation West), both of whom directed Plaintiff not to return

to work until she spoke with Cathy Richards, a workers’

compensation adjuster. (Id., ¶ 18.) During the meeting, Plaintiff

asked Ms. Steward and Mr. Purdue if she could return to work at

the schools where she was previously assigned, but they denied her

request. (Id.)

Dr. Tafel released Plaintiff to regular-duty work on May 20,

2019, with a MMI rating of two percent. (Id., ¶ 19.) 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, Plaintiff arrived at

“Transportation West” to work, but Mr. Purdue informed Plaintiff

that she was suspended (without pay) from her employment with the

School District and that she must use her “sick days going

forward.” (Id., ¶¶ 20, 21.) Mr. Purdue did not provide an

explanation for Plaintiff’s suspension. (Id., ¶ 21.)

Plaintiff sent a certified letter to the School District,

requesting an explanation for her suspension. (Id., ¶ 23.)

Defendant received the certified letter on May 28, 2019. (Id., ¶

24.) For two months following her suspension, Plaintiff regularly

inquired about her “work status”, but each time she traveled to

the School District’s Transportation West, Plaintiff was told she

should not be there. (Id., ¶ 25.)

On August 7, 2019, Plaintiff received an unsigned letter from

Roger Lloyd (Director of Transportation), informing Plaintiff that

she “failed to report to work since May 30, 2019 . . . [and he]

will be recommending to the Superintendent that [Plaintiff’s]

contract will not renew for [her] . . . position as a school bus

operator, effective August 7, 2019.” (Id., ¶ 28.) Plaintiff

immediately sent a certified letter to the U.S. Equal Employment

Opportunity Commission (EEOC), alleging that the School District

discriminated against her due to disability, wrongfully terminated

her employment, and retaliated against her for filing a workers’

compensation claim. (Id., ¶ 29.) Plaintiff also informed the

School District’s Superintendent, Greg Adkins, and Director of

Human Resources, Angela Pruitt, that she believed her termination

was unfair and was appealing the School District’s decision. (Id.,

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

disciplinary actions noted in her personnel folder. (Id., ¶ 10.)

B. Procedural Background

On October 6, 2021, Plaintiff initiated this lawsuit against

Defendant upon filing a Complaint with this Court. (Doc. #2.) On

November 23, 2021, Defendant filed a motion to dismiss the

Complaint pursuant to Rule 12(b)(6), which the Court granted on

February 22, 2022. (Doc. #35.) Plaintiff was provided an

opportunity to file an Amended Complaint if she chose to do so.

Plaintiff filed an Amended Complaint on March 8, 2022, and

Defendant again sought to dismiss her claims for failure to state

a claim. (Doc. #36.) Rather than file a response, Plaintiff filed

a Second Amended Complaint on May 10, 2022, which she also

characterized as a motion for leave to file the complaint. (Doc.

#40, p. 1 n.1.) The Court issued an Order granting Plaintiff’s

motion for leave and dismissed Defendant’s motion to dismiss the

Amended Complaint as moot, giving Defendant twenty-one days to

respond to Plaintiff’s Second Amended Complaint (SAC). (Doc. #41.)

Defendant timely filed a motion a motion to dismiss the SAC. (Doc.

#46.)

The operative pleading, the eight-count Second Amended

Complaint, asserts claims for employment discrimination pursuant

to the American Disabilities Act (ADA) and the Americans with

Disabilities Act Amendments Act ("ADAAA"), 42 U.S.C. § 12101 et

seq., the Family and Medical Leave Act of 1933 (FMLA), 29 U.S.C.

§ 2601, et seq., the Florida Civil Rights Act (FCRA) “as cited

within the Lee County School District Policies 1.21, 1.22, 5.20,

5.22, 5.25, 5.28, and 601,” Florida Statute Chapter 440, Workers’

Compensation . . . .” (Doc. #40, ¶ 2.) Plaintiff alleges the

following claims against the School District: (1) violation of the

FMLA and failure to accommodate disability; (2) violation of the

FMLA – retaliation (3) violation of the ADA, as amended; (4)

violation of the Florida Civil Rights Act – disability

discrimination; (5) violation of the ADA, as amended – retaliation;

(6) violation of the Florida Civil Rights Act – retaliation; (7)

breach of contract/wrongful termination; and (8) violation of the

Florida Workers’ Compensation – retaliation. (Id., pp. 7-22.)

Defendant moves to dismiss all counts in the SAC pursuant to

Rule 12(b)(6) because they do not provide factual allegations to

support Plaintiff’s right to relief. (Doc. #46, pp. 1.)

Defendant’s arguments are addressed below.

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 – Violation of FMLA and Failure to Accommodate1

1 Count I of the SAC is entitled “Violation of Family and

Medical Leave Act (FMLA) Failure to Accommodate Disability.” Count

I does not indicate whether Plaintiff is asserting an interference

or retaliation claim under the FMLA. However, because Count II

asserts a FMLA—retaliation claim, the Court will construe Count I

as asserting an interference claim. Furthermore, Count I’s title

indicates that Plaintiff is also asserting a failure to accommodate

claim under the ADA, but there are no allegations that Defendant

failed to accommodate a disability. Thus, the Court will not

Count I of the SAC alleges that Plaintiff suffered from a

serious health condition, that she informed the School District of

her need for leave due to a serious health condition, and that the

School District determined Plaintiff was eligible for leave, but

failed to grant leave and terminated her employment. (Doc. #40, ¶¶

36-37, 40, 45.)

The FMLA guarantees the rights of eligible employees to "12

workweeks of leave during any 12-month period . . . [b]ecause of

a serious health condition that makes the employee unable to

perform the functions of the position[.]" 29 U.S.C. §

2612(a)(1)(D). To protect this right, the FMLA authorizes two

types of claims — interference and retaliation. See Strickland v.

Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206

(11th Cir. 2001). An interference of rights occurs when an

employer interferes with, restrains, or denies the exercise or

attempted exercise of rights or benefits under the FMLA. See 29

U.S.C. § 2615(a)(1); Pereda v. Brookdale Senior Living Cmtys.,

Inc., 666 F.3d 1269, 1272 (11th Cir. 2012) (explaining that

interference claims involve an "employee assert[ing] that his

employer denied or otherwise interfered with his substantive

rights under the [FMLA]."). To state a claim for interference, a

plaintiff must demonstrate that she was entitled, under the FMLA,

discuss whether Count I sets forth a plausible claim under the

ADA.

to a benefit that she was denied. White v. Beltram Edge Tool

Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).

Defendant argues that Plaintiff’s FMLA interference claim

should be dismissed as Plaintiff “failed to allege that she was

entitled to leave under the FMLA because she does not allege facts

to show that she provided sufficient notice to the School District

of her need for FMLA leave.” (Doc. #46, p. 4.) More specifically,

the Defendant asserts that the SAC does not allege any facts about

when or whom Plaintiff informed about her need for leave, the

means by which the alleged notice was provided to the School

District, or the anticipated timing or duration of her alleged

request. (Id., p. 5.)

"While suffering from a serious health condition is

necessary, it is not sufficient for an employee to earn FMLA

leave." Finch v. Morgan Stanley & Co. LLC, No. 15-81323-Civ, 2016

U.S. Dist. LEXIS 106305, 2016 WL 4248248, at *4 (S.D. Fla. Aug.

11, 2016). Under the FMLA, "[a]n employee must [also] provide the

employer at least 30 days advance notice before FMLA leave is to

begin if the need for leave is foreseeable based on [planned

medical treatment for a serious health condition]. . . . If 30

days notice is not practicable because of lack of knowledge . . .

notice must be given as soon as practicable." Avena v. Imperial

Salon & Spa, Inc., 740 F. App'x 679, 681 (11th Cir. 2018) (quoting

29 C.F.R. § 825.302(a)). The notice provided must be "sufficient

to make the employer aware that the employee needs FMLA-qualifying

leave, and the anticipated timing and duration of the leave." Id.

(quoting 29 C.F.R. § 825.302(c)).

The Court finds that Plaintiff has failed to state a plausible

FMLA interference claim. Plaintiff only provides a formulaic

recitation of the elements of this claim, i.e., that she requested

leave due to a serious medical condition and was not granted leave

and terminated.2 Such bare bone assertions will not suffice.

Twombly, 550 U.S. at 555 (for plaintiff to show entitlement to

relief it “requires more than labels and conclusions, and a

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

do.”). With respect to the notice requirement, the SAC simply

states that “Ms. Rohttis complied with all of the notice and due

diligence requirements of the FMLA,” with no additional factual

support. Furthermore, Plaintiff does not allege that she ever

informed the School District about the anticipated timing or

duration of her leave. Even viewing the allegations in a light

most favorable to Plaintiff, her claim for FMLA interference is

insufficient to survive dismissal under Rule 12(b)(6) as her

allegations are conclusory and unsupported by facts. See Iqbal,

2 In seeming contradiction to these allegations, Paragraph 52

of the SAC alleges that Plaintiff was terminated from her

employment with the School District because she requested and took

FMLA leave, and demanded reinstatement from such leave. (Doc. 40,

¶ 52.)

556 U.S. at 678 (“Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not

suffice.”). Defendant’s motion to dismiss Count I is therefore

granted, without prejudice.

B. Count II — Retaliation In Violation Of FMLA

Count II of the SAC alleges that the School District violated

the FMLA by retaliating against Plaintiff when it terminated her

employment for requesting leave due to her serious medical

condition. (Doc. #40, ¶¶ 50, 53.)

“The FMLA prohibits employers from retaliating against

employees for engaging in protected activities.” Munoz v. Selig

Enterprises, Inc., 981 F.3d 1265, 1275 (11th Cir. 2020). To

establish a FMLA retaliation claim, Plaintiff "must demonstrate

that h[er] employer intentionally discriminated against h[er] in

the form of an adverse employment action for having exercised an

FMLA right." Aponte v. Brown & Brown of Fla., Inc., 806 F. App'x

824, 829 (11th Cir. 2020) (quoting Strickland, 239 F.3d at 1207).

To establish a prima facie case of FMLA retaliation, Plaintiff

must allege that "(1) [s]he engaged in statutorily protected

activity, (2) [s]he suffered an adverse employment decision, and

(3) the decision was causally related to the protected activity."

Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1268 (11th Cir.

2008).

Defendant argues that Plaintiff’s retaliation claim must be

dismissed because the SAC does not allege any facts tending to

show a causal relationship between any protected activities and

any alleged adverse employment action. (Doc. #46, p. 6.) Rather,

Defendant asserts that Plaintiff summarily concludes “[a] causal

connection exists between Ms. Rohttis [sic] request for FMLA

protected leave and reinstatement and LCSD termination of her

employment” which fails to provide any facts about her alleged

protected activity, including when she allegedly requested FMLA-

qualifying leave. (Id., citing Freytes–Torres v. City of Sanford,

270 F. App’x 885, 893 (11th Cir. 2008) (To satisfy the causation

prong of a prima facie case, close temporal proximity may be

sufficient to show that the protected activity and the adverse

action were not wholly unrelated)).

As discussed above, Plaintiff did not provide any facts that

sufficiently allege that she engaged in protected activity under

the FMLA, including giving the School District notice of the need

for leave. Just as with an FMLA interference claim, “notice” of

the need for FMLA leave is a requisite for a FMLA retaliation

claim. Avena, 740 F. App'x at 681 (Notice must be given under

"under both the discrimination and the interference provisions of

the FMLA."); Hurley v. Kent of Naples, Inc., 746 F.3d 1161, 1167

(11th Cir. Fla. 2014) (An employee must actually qualify for FMLA

leave in addition to providing appropriate notice to assert a valid

interference or retaliation claim). Thus, Plaintiff has not pled

sufficient facts as to the first element of her retaliation claim.

Because Plaintiff has not adequately alleged that she engaged

in any protected activity under the FMLA, Plaintiff cannot

plausibly show that a causal link exists between any protected

activity and adverse employment action. The Court therefore grants

Defendant’s motion to dismiss Count II of the SAC, without

prejudice.

C. Count III and Count IV – Disability Discrimination In

Violation of the ADA and FCRA

Count III and Count IV of the SAC allege that the School

District unlawfully discriminated against Plaintiff in violation

of the ADA and FCRA, respectively. (Doc. #40, ¶¶ 56-70, 71-85.)

Specifically, Plaintiff alleges that she “has perceived mental

impairments that would substantially limit one or more major life

activities and bodily functions, has a record of the impairment,

and is regarded by the Defendant as having such impairments.” (Id.,

¶¶ 58, 73.) Plaintiff further alleges that the School District

discriminated against her “because of her perceived disabilities.”

(Id., ¶¶ 63, 78.)

“[D]isability-discrimination claims under the FCRA are

analyzed using the same framework as ADA claims.” Holly v.

Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007).

Accordingly, federal case law interpreting the ADA is applicable

to claims arising under the FCRA. Matamoros v. Broward Sheriff's

Off., 2 F.4th 1329, 1336 (11th Cir. 2021). The Court will

therefore analyze Plaintiff’s ADA and FCRA claims together. Holly,

492 F.3d at 1255.

Both the ADA and the FCRA recognize discrimination based on

a perceived disability. The ADA defines "disability" as "(a) a

physical or mental impairment that substantially limits one or

more of the major life activities of such individual; (b) a record

of such an impairment; or (c) being regarded as having such an

impairment." 42 U.S.C. § 12102(2). Similarly, the FCRA prohibits

employment discrimination "based on . . . handicap." Fla. Stat. §

760.10(1). Individuals with a handicap include those with actual

physical impairments as well as those who are regarded by others

as impaired. Davidson v. Iona-McGregor Fire Protection & Rescue

Division, 674 So.2d 858, 860 (Fla. 2d DCA 1996) (citing Sch. Bd.

of Nassau Cnty v. Arline, 480 U.S. 273, 281-84, 107 S. Ct. 1123,

94 L. Ed. 2d 307 (1987)).

The School Board argues that the SAC fails to identify: the

alleged perceived impairment; any record that purportedly

classified Plaintiff as having a mental impairment; any life

activities Defendant believed were substantially limited by

Plaintiff’s mental condition; or any misperceptions Defendant

entertained about Plaintiff whatsoever. The School Board asserts

that Plaintiff’s conclusory allegations – that her perceived

mental impairment substantially limited major life functions –

cannot support a claim under the ADA or FCRA. The Court agrees.

Plaintiff alleges that she suffered work-related physical

injures to her left shoulder, hip, arm, hand, and her lower back,

and that Dr. Tafel diagnosed Plaintiff with left upper extremity

pain. (Id., ¶¶ 11, 19.) However, Plaintiff does not identify her

perceived “mental impairment” that “substantially limit[s] one or

more of [her] major life activities.” See 42 U.S.C. § 12102(2).

Identification of a real or perceived disability is a requirement

of a cause of action under the ADA. Gordon v. E.L. Hamm & Assocs.,

100 F.3d 907, 910 (11th Cir. 1996).

In addition, other than a bare assertion that the School

District regarded Plaintiff as having mental impairments (Doc.

#40, ¶¶ 58, 73), the SAC is devoid of any factual allegations to

support this claim. Conclusory allegations do not "unlock the

doors of discovery" for plaintiffs. Iqbal, 556 U.S. at 678-79.

"Nor does a complaint suffice if it tenders 'naked assertion[s]'

devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 557). Accordingly, Plaintiff has

failed to allege plausible disability discrimination claims under

the ADA and FCRA. Defendant’s motion to dismiss Count III and

Count IV is therefore granted, without prejudice.

D. Count V and Count VI – Retaliation In Violation Of The

ADA and FCRA

In Count V and Count VI of the SAC, Plaintiff sets forth claims

for retaliation under the ADA and FCRA, which Defendant argues

does not offer adequate factual allegations to support any right

to relief.3 (Doc. #40, ¶¶ 86-95, 96-105; Doc. #46, p. 9.)

The ADA makes it an unlawful for an employer to “discriminate

against any individual because such individual has opposed an

unlawful act under the ADA, or because such individual made a

charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under those statutes.” 42

U.S.C. § 12203(a). To plead a claim of retaliation under FCRA and

the ADA, Plaintiff must allege that: "(1) [s]he engaged in conduct

protected by the ADA; (2) [s]he suffered an adverse employment

action; and (3) the adverse employment action was causally related

to the protected conduct." Powell v. Space Coast Credit Union,

No. 6:15-cv-550-Orl-22TBS, 2015 U.S. Dist. LEXIS 174041, at *14-

15 (M.D. Fla. Dec. 23, 2015) (citing Farley v. Nationwide Mut.

Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1994)); see also Blizzard

v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009)

(setting forth same elements to establish a prima facie case of

retaliation under FCRA, § 760.10(7)).

3 FCRA retaliation claims are analyzed under the same

framework as ADA claims. Russell v. City of Tampa, 737 F. App'x

922, 923 (11th Cir. 2018).

The School District argues that Plaintiff has failed to

identify any alleged protected activity, let alone allege a causal

connection between the protected activity and any alleged adverse

employment action. (Doc. #46, p. 10.) The Court does not agree.

Plaintiff alleges that her “objection to disability

discrimination” constitutes protected activity because it was in

furtherance of her rights secured to her by law. (Doc. #40, ¶¶ 88,

98.) The SAC alleges that on May 20, 2019, Plaintiff sent a

certified letter to the School District requesting an explanation

why she was suspended without pay and stated that she believed

Defendant’s actions were “discriminatory”, which was later

received by the School District on May 28, 2019. (Id., ¶¶ 23-24.)

Plaintiff further alleges that on August 7, 2019, her employment

was terminated when the School District did not renew her contract.

(Id., ¶ 28.)

Viewing the allegations in a light most favorable to

Plaintiff, the Court finds Plaintiff’s May 20, 2019 letter that

was received by Defendant on May 28, 2019, sufficiently alleges

protected activity that Plaintiff believed to be discriminatory.

See Calvo v. Walgreens Corp., 340 F. App'x 618, 625-26 (11th Cir.

2009) (noting that opposing unlawful practices or filing charges

against the employer are the bases for a retaliation claim). The

SAC also sufficiently alleges an adverse employment action – that

Plaintiff’s employment with the School District was terminated on

August 7, 2019. While Defendant correctly argues that to show a

causal connection between protected activity and an adverse

employment action, there must be a “very close” temporal proximity

between the two events, the Court finds Plaintiff has plausibly

alleged such a connection. See Pennington v. City of Huntsville,

261 F.3d 1262, 1267 (11th Cir. 2001) (citations omitted) ("The

causal link element is construed broadly so that 'a plaintiff

merely has to prove that the protected activity and the negative

employment action are not completely unrelated.'"). Based on the

allegations, there is a little over two months between Defendant’s

receipt of Plaintiff’s letter and her termination, which is

sufficient as a matter of law to infer a causal relationship for

purposes of retaliation. Compare Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 149 L. Ed. 2d 509

(2001) (citing with approval several court of appeals decisions

for the proposition that a three to four month gap is insufficient

to establish the causal relation prong in a retaliation case);

Cazeau v. Wells Fargo Bank, N.A., 614 F. App'x 972, 980 (11th Cir.

2015) (citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363

(11th Cir. 2007)) (a "delay of four to nine months is too remote,

as a matter of law, to show a causal connection."); Walker v.

Sec'y, U.S. Dep't of Air Force, 518 F. App'x 626, 628 (11th Cir.

2013) (three-month time lapse has been held insufficient to create

a jury issue regarding causation).4

E. Count VII – Breach of Contract/Wrongful Termination

Count VII of the SAC alleges a claim for “breach of

contract/wrongful termination.” (Doc. #40, ¶¶ 106-112.) Under

Florida law, a breach of contract claim requires the existence of

a valid contract between the parties, a material breach of that

contract, and resulting damages. Havens v. Coast Fla., 117 So. 3d

1179, 1181 (Fla. 2d DCA 2013).

Defendant argues, and the Court agrees, that Plaintiff has

only provided conclusory allegations which are merely consistent

with Defendant’s liability and are insufficient to state a breach

of contract claim. Chaparro, 693 F.3d at 1337.

(1) A Valid Contract

“In order to establish the presence of a valid contract, a

plaintiff must allege the existence of: (1) an offer; (2)

acceptance of the offer; (3) consideration; and (4) sufficient

specification of the essential terms of the agreement.” Senter v.

4 To the extent Plaintiff alleges that her letter to the EEOC

dated August 7, 2019 about her “wrongful termination,” or her EEOC

Charge dated January 21, 2020 constitute protected activity, the

Court finds otherwise. Both documents occurred after Defendant’s

alleged adverse action on August 7, 2019, and therefore could not

serve as the basis for any retaliation. See Mack v. Wilcox Cnty.

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).

JPMorgan Chase Bank, N.A., 810 F. Supp. 2d 1339, 1345 (S.D. Fla.

2011) (citing St. Joe Corp. v. McIver, 875 So. 2d 375, 381 (Fla.

2004)).

Plaintiff does not satisfy the first element of her breach of

contract claim. Plaintiff alleges that a contract existed between

her and the School District, that the parties agreed to the terms

(which were clear and unambiguous), and that she performed her

duties under the contract (Doc. #40, ¶¶ 107-09). Other than these

vague and conclusory statements, the SAC contains no allegations

showing that any offer, acceptance, or consideration was provided

between Plaintiff and the School District, nor does the SAC provide

any specificity about the essential terms of such agreement.

Plaintiff therefore has not sufficiently pled any facts tending to

show the existence of a valid contract.

(2) Material Breach of the Contract

Plaintiff does not satisfy the second requirement because she

fails to allege a material breach of the contract. Plaintiff never

alleges which specific term of the contact was violated by the

School District; rather, she alleges Defendant refused to employ

and pay her the “full amount of sums due under the terms of the

contract.” (Doc. #40, ¶ 110.) This accusation is too conclusory

to survive a motion to dismiss. See Regal v. Butler & Hosch, No.

15-CIV-61081, 2015 U.S. Dist. LEXIS 182446, 2015 WL 11198248, at

*5 (S.D. Fla. Oct. 8, 2015) (A breach of contract claim must be

dismissed "where it is unclear what provision or obligation under

the contract has been violated."); see also George v. Wells Fargo

Bank, N.A., No. 13-80776-CIV, 2014 U.S. Dist. LEXIS 2000, 2014 WL

61487 (S.D. Fla. Jan. 8, 2014) ("The Amended Complaint does not

identify which provision of the [contract] has been breached and

therefore runs afoul of Twombly.").

(3) Damages

Under Florida law, a breach of contract claim requires a

showing of "damages resulting from such breach." Bray & Gillespie

Mgmt. LLC v. Lexington Ins. Co., 527 F. Supp. 2d 1355, 1365 (M.D.

Fla. 2007) (citing Knowles v. C.I.T. Corp., 346 So. 2d 1042, 1043

(Fla. 1st DCA 1977)). Plaintiff alleges that she “has been damaged

as a result of the Defendant’s breach of contract,” with no

supporting facts. (Doc. #40, ¶ 111.) While the Court may infer

that Plaintiff may have been damaged by the School District’s

refusal to employ or pay her, her claim is still somewhat vague.

Vague "catchall" allegations are insufficient to survive a motion

to dismiss. Heyward v. Wells Fargo Bank, No. 8:20-cv-572-T-33AAS,

2020 U.S. Dist. LEXIS 257058, at *5-7 (M.D. Fla. Oct. 6, 2020).

Accordingly, Plaintiff has failed to allege a plausible

breach of contract claim. Defendant’s motion to dismiss Count VII

is granted, without prejudice.

F. Count VIII — Retaliation In Violation of Florida Workers’

Compensation Statute § 440.2055

Count VIII of the SAC alleges that the School District

retaliated against Plaintiff in violation of Florida’s Workers’

Compensation law. (Doc. #40, ¶¶ 113-122.)

Florida Statute § 440.205 provides: "No 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) she engaged in the protected activity of

applying for workers' compensation; (2) she was adversely affected

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

between the protected activity and the adverse employment

decision. See Eichmuller v. Sarasota Cty. Gov't, No. 8:20-cv-47-

T-33SPF, 2021 U.S. Dist. LEXIS 3220, at *15 (M.D. Fla. Jan. 8,

2021).

In its motion, the School District seeks dismissal of

Plaintiff’s workers’ compensation retaliation claim, arguing that

Plaintiff cannot establish a causal connection between her

5 In addition to alleging retaliation in violation of

Florida’s workers’ compensation statute, Plaintiff includes

allegations within Count VIII about Defendant retaliating against

her in violation of the ADAAA. Because the Court has already

addressed Plaintiff’s retaliation claim under the ADA (as amended

by the ADAAA), it will disregard any related allegations.

protected activity and an adverse employment action due to a

substantial delay between the two events. (Doc. #46, 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 her objection to retaliation for

filing her workers’ compensation claim constitutes her protected

activity, and that the School District retaliated against her when

it altered the terms and conditions of her employment via her

termination on August 7, 2019. (Doc. #40, ¶¶ 28, 114-15.)

However, under § 440.205 protected activity occurs when a plaintiff

applies for workers’ compensation, which in this case occurred on

March 15, 2018. (Id., ¶ 115.) 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., ¶¶

20, 28.)

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 U.S. Dist. LEXIS 101491, 2009 WL 3618246,

(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.

Because Plaintiff has failed to alleged any facts showing a

causal connection between her protected activity and any adverse

employment action, Count VIII of the SAC – the Florida workers’

compensation retaliation claim is hereby dismissed, without

prejudice.

Accordingly, it is now

ORDERED:

1. Defendant’s Motion to Dismiss Plaintiff’s Second Amended

Complaint (Doc. #46) is GRANTED in part and DENIED in part.

2. Plaintiff’s Second Amended Complaint (Doc. #40) is

DISMISSED without prejudice; the motion is DENIED as to

Count V and Count VI.

3. Defendants Request for Oral Argument on its Motion to

Dismiss Plaintiff’s Second Amended Complaint (Doc. #49) is

DENIED as moot.

4. Plaintiff is granted leave to file a third (and final)

amended complaint if she believes it would not be futile.

Plaintiff may file a third amended complaint on or before

August 16, 2022. Defendant shall answer the remaining

counts of the Second Amended Complaint, or respond to a

third amended complaint if one is filed, on or before

August 31, 2022.

DONE AND ORDERED at Fort Myers, Florida, this Ist day of

August, 2022,

Z tivo

JGH E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of record

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