The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CINDY HARAKAL,
Plaintiff,
v. Case No. 8:22-cv-2192-TPB-JSS
COMPOSITE MOTORS, INC.,
Defendant.
/
ORDER GRANTING DEFENDANT’S “MOTION TO DISMISS COMPLAINT”
This matter is before the Court on Defendant Composite Motors, Inc.’s “Motion
to Dismiss Complaint,” filed October 21, 2022. (Doc. 11). Plaintiff Cindy Harakal filed
her response in opposition on November 17, 2022. (Doc. 15). Upon review of the
motion, response, court file, and record, the Court finds as follows:
Background
Plaintiff Cindy Harakal, a sixty-year-old woman, was employed by Defendant
Composite Motors, Inc. from April 2016 until November 18, 2021. She was hired as a
front desk receptionist but later trained and began working as a human resources
generalist in or around May 2021.
On November 8, 2021, Defendant notified Plaintiff that one of her coworkers
had tested positive for COVID-19 and sent her home to test for the virus. A few days
later, Plaintiff received notification that she had tested positive for COVID-19. After
she notified her supervisor, Plaintiff was instructed to quarantine until November 22,
2021, per protocols issued by the Centers for Disease Control and Prevention. On
November 18, 2021, Plaintiff received a phone call informing her that her position had
been terminated, but she was not given a reason for the termination.
On September 22, 2022, Plaintiff filed suit against Defendant, asserting claims
for disability discrimination under the Americans with Disabilities Act (“ADA”) (Count
I), age discrimination under the Age Discrimination in Employment Act (“ADEA”)
(Count II), retaliation under the Family and Medical Leave Act (“FMLA”) (Count III),
disability discrimination under the Florida Civil Rights Act (“FCRA”) (Count IV), and
age discrimination under the FCRA (Count V).1
Defendant seeks dismissal of all claims, arguing that Plaintiff has failed to state
any facially sufficient claims.2 “Disability and age-related discrimination actions
under the FCRA are analyzed under the same frameworks as the ADA and ADEA,
respectively.” Mazzeo v. Color Resols. Int'l, LLC, 746 F.3d 1264, 1266 (11th Cir. 2014)
(citing Chanda v. Engelhard/ICC, 234 F.3d 1219, 1221 (11th Cir. 2000); Zaben v. Air
Prods. & Chems., Inc., 129 F.3d 1453, 1455 n.2 (11th Cir. 1997)).
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short
and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R.
Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual allegations,” it does
1 The Court notes that Count V was mislabeled as “Count VII” – the amended complaint
should correct this scrivener’s error. The Court will refer to the claim as Count V in this
Order.
2 In the motion to dismiss, Defendant also sought dismissal of the federal claims for lack of
jurisdiction because Plaintiff had not received a right to sue letter from the Equal
Employment Opportunity Commission. However, a few days after the motion was filed, the
EEOC issued the right-to-sue letter. The parties agree this defect has been cured, so the
motion is denied as moot as to this ground.
require “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).
In order to survive a motion to dismiss, factual allegations must be sufficient “to state
a claim to relief that is plausible on its face.” Id. at 570.
When deciding a Rule 12(b)(6) motion, review is generally limited to the four
corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D.
Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a court
“must accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in
the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). “[A] motion to dismiss should concern only the complaint’s legal
sufficiency, and is not a procedure for resolving factual questions or addressing the
merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-
cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.).
Analysis
Disability Discrimination Claims (Counts I and IV)
Defendant argues that Plaintiff has failed to state facially sufficient disability
discrimination claims in Counts I and IV. As an initial matter, the Court notes that it
is not clear whether Plaintiff is pursing claims based on having a disability or being
regarded as having a disability. Courts examine these types of claims differently and
apply different legal standards. Consequently, the disability discrimination claims are
dismissed on shotgun pleading grounds, with leave to amend to clarify the legal
theories under which Plaintiff proceeds. See Weiland v. Palm Beach Cty. Sheriff’s
Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015); McCone v. Exela Technologies, Inc.,
No. 6:21-cv-912-CEM-DCI, 2022 WL 801772, at *5 (M.D. Fla. Jan. 14, 2022). If
Plaintiff wishes to assert both theories as alternative claims, they should be separated
into separate counts.
To the extent that Plaintiff asserts a disability discrimination claim, her claim
appears to be facially insufficient. In a disability discrimination claim, a plaintiff
must show that: (1) she is a member of a protected class; (2) she was qualified for the
position; (3) she suffered an adverse employment action; and (4) she was treated less
favorably than similarly-situated individuals outside of her protected class. See, e.g.,
Arafat v. Sch. Bd. of Broward Cty., 549 F. App’x 872, 874 (11th Cir. 2013). A plaintiff
must also show that her disability is the but-for cause of the allegedly discriminatory
conduct. See, e.g., King v. HCA, 825 F. App’x 733, 736 (11th Cir. 2020). Although a
plaintiff need not plead a prima facie case to survive a motion to dismiss an ADA
disability discrimination claim, she must allege sufficient facts to plausibly suggest
intentional discrimination. See, e.g., Booth v. City of Roswell, 754 F. App’x 834, 836-37
(11th Cir. 2018).
The allegations of the complaint are vague concerning Plaintiff’s symptoms and
experience with COVID-19. It would be absurd to hold that any employee who
contracted COVID-19 was disabled. See, e.g., Champion v. Mannington Mills, Inc.,
538 F. Supp. 3d 1344, 1348 (M.D. Ga. 2021) (“The Court has little trouble disagreeing
with [the plaintiff’s] legally-flawed position that anyone alleged to have COVID-19 is
‘disabled’ as that term is defined by the ADA.”); McCone, 2022 WL 801772, at *4
(explaining that “being infected with COVID-19, standing alone, does not meet the
ADA’s definitions of disability or impairment”). After all, although some people
diagnosed with COVID-19 may suffer from severe symptoms that impact major life
activities, many people exhibit no symptoms at all, or minimal symptoms akin to the
common cold. If Plaintiff is proceeding with an actual disability claim, in her amended
complaint, she should include additional facts to generally describe her symptoms and
explain how COVID-19 substantially limited a major life activity. Although an
intricate description of Plaintiff’s condition is not necessary, failing to allege a single
symptom falls short of pleading standards. See Champion, 538 F. Supp. 3d at 1348.
FMLA Retaliation Claim (III)
Defendant contends that Plaintiff has failed to state an FMLA retaliation claim
because she never notified her employer of her desire to apply for FMLA leave and
failed to allege a qualifying serious health condition. The complaint generally alleges
that Plaintiff exercised her right to take FMLA leave, and Defendant knew but
terminated her anyway. But in opposition to the motion to dismiss, Plaintiff appears
to acknowledge that she did not actually apply for FMLA leave – rather, she intended
to, and Defendant should have known her intent based on her COVID-19 diagnosis.
“A plaintiff bringing an FMLA retaliation claim must show that [her] employer
intentionally discriminated against [her] in the form of an adverse employment action
for having exercised an FMLA right.” Tanner v. Stryker Corp. of Michigan, No. 8:21-
cv-2293-VMC-TGW, 2022 WL 17338859, at *6 (M.D. Fla. Nov. 30, 2022) (quoting
Bradley v. Army Fleet Support, LLC, 54 F. Supp. 3d 1272, 1282 (M.D. Ala. 2014)).
Although the complaint alleges that Plaintiff engaged in statutorily protected activity
by exercising her right to take FMLA leave (Doc. 1 at ¶¶ 53; 56-57), the response in
opposition indicates that Plaintiff had not submitted any FMLA paperwork while
arguing that her employer was instead “fully aware” of her need to quarantine based
on her positive COVID-19 test. Due to this conflict, the Court will dismiss this claim
with leave to amend, if Plaintiff may do so in good faith.3
Defendant additionally argues that this claim is subject to dismissal because
Plaintiff fails to identify a serious health condition that would make her eligible for
FMLA leave. The Court agrees. As the Court explained in its analysis of the
disability discrimination claims, the complaint does not identify or describe any of
Plaintiff’s symptoms. As such, she has not pled sufficient facts to establish a serious
health condition under the FMLA. If Plaintiff chooses to amend this claim, she should
at least generally describe her symptoms.
Age Discrimination Claims (Counts II and V)
Defendant argues that Plaintiff has failed to state her age discrimination claims
by not including plausible factual allegations that she was discriminated against
because of her age. A plaintiff does not need to plead a prima facie case for job
discrimination to survive a motion to dismiss. See Buchanan v. Delta Air Lines, Inc.,
727 F. App’x 639, 642 (11th Cir. 2018) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 515 (2002)). Rather, a plaintiff must simply allege facts “adequate to raise her
right to relief above a speculative level.” Id.
3 The Court notes that if Plaintiff did not actually apply for or take FMLA leave, an
interference claim may be appropriate. However, the assertions in the response in opposition
appear to cut against this type of claim, which requires that the employer have notice that an
employee intends to take FMLA leave. A COVID-19 diagnosis itself does not constitute
sufficient notice that FMLA leave is needed. See Rosa v. MiTek, Inc., No. 4:21-cv-00187-SEP,
2022 WL 4447408, at *4 (E.D. Miss. Sept. 23, 2022) (collecting cases).
Here, Plaintiff has alleged that she was sixty years old and was terminated
without reason during her mandated quarantine after she tested positive for COVID-
19. She does not include any facts that suggest age discrimination, such as being
replaced by a younger employee, or any disparate treatment compared to younger
employees. See Agostino v. Lee County Board of County Commissioners, No. 2:17-cv-
236-FtM-99CM, 2017 WL 2930807, at *2-3 (M.D. Fla. July 10, 2017). The motion to
dismiss is granted as to Counts II and V, with leave to amend.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
1. Defendant’s “Motion to Dismiss Complaint” (Doc. 11) is GRANTED. Counts
I, I, III, IV, and V of Plaintiff's complaint are DISMISSED WITHOUT
PREJUDICE, with leave to amend.
2. Plaintiff is directed to file an amended complaint on or before January 6,
2023. Failure to file an amended complaint as directed will result in this
Order becoming a final judgment. See Auto. Alignment & Body Serv., Inc. v.
State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 719-20 (11th Cir. 2020).
DONE and ORDERED in Chambers, in Tampa, Florida, this 19th day of
December, 2022.
FY PBS
-TOMBARBER =—<“i—i‘“‘C;C:™
UNITED STATES DISTRICT JUDGE
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