The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHELLE J. SMITH,
Plaintiff,
v. Case No: 2:23-cv-68-JES-NPM
BOSTON RED SOX,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Opposed Partial Motion to Dismiss Plaintiff’s Complaint (Doc. #13)
filed on April 17, 2023. Plaintiff filed an Opposition to and
Incorporated Memorandum of Law in Opposition (Doc. #14) and Motion
for Oral Arguments and an Evidentiary Hearing (Doc. #15) on May 1,
2023. The Court finds that oral arguments would not be beneficial,
and an evidentiary hearing is not warranted at the motion to
dismiss stage of the proceedings. The motion for a hearing and
evidentiary hearing will therefore be denied. The remaining motion
is resolved below.
I.
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.
A pleading drafted by an unrepresented (pro se) party is held
to a less stringent standard than one drafted by an attorney, and
the Court will liberally construe the allegations and documents
filed as a complaint. Jones v. Fla. Parole Comm'n, 787 F.3d 1105,
1107 (11th Cir. 2015).
II.
According to the Complaint (Doc. #1): Plaintiff Michelle J.
Smith (plaintiff or Smith) started her employment with defendant
Boston Red Sox (defendant or the Red Sox) on January 4, 2020, as
the Fan and Youth Engagement Ambassador at Jet Blue Park in Fort
Myers, Florida. On November 1, 2021, the Red Sox announced a new
policy requiring all non-union employees to be fully vaccinated
against COVID-19 by January 1, 2022, subject to exceptions required
by law, which were required to be submitted by November 19, 2021.
Plaintiff submitted a response to a November 2, 2021 survey from
the Red Sox, indicating that she was not, and would not become,
vaccinated. On November 18, 2021, plaintiff submitted her
religious exemption request. Receipt of the exemption request was
confirmed by Human Resources Manager Ben Coakley (Coakley) on
November 19, 2021.
On November 18, 2021, the Governor of the State of Florida
signed Florida’s Private Employer Vaccine Mandate Program into
law. This Program prohibited, with certain exceptions, enactment
of COVID-19 mandates for employees.
On or about December 18, 2021, Executive Vice President of
Human Resources Amy Waryas (Waryas) emailed plaintiff regarding
her exemption request. On December 21, 2021, plaintiff was
contacted for a telephone conference by Coakley and Waryas.
Plaintiff was informed that in a May 2021 single-question survey
asking if she was vaccinated, she had responded “yes,” making her
November and May survey responses inconsistent. Plaintiff was
surprised because she did not remember the May survey, but “[d]ue
to her belief in the integrity of the Red Sox”, she assumed she
accidently pressed the wrong box and asked that the incorrect
answer on the May survey be corrected.
On December 23, 2021, Waryas contacted plaintiff by telephone
to inform her that due to the inconsistent surveys and because
most employees were vaccinated, the other employees would not want
to be around plaintiff. Plaintiff’s employment was terminated.
The next day, plaintiff noticed an email from Coakley dated May
13, 2021, appear before she was cut off from the Red Sox server.
In or around February 2022, plaintiff initiated a claim against
Defendant with the EEOC, and on November 9, 2022, she received her
Right to Sue letter.
On January 31, 2023, plaintiff filed a Complaint (Doc. #1)
against the Boston Red Sox for violations of Title VII of the Civil
Rights Act of 1964 (Counts I and II); for fraud and invasion of
privacy (Count III); and violation of the Florida Private
Whistleblower’s Act (Count IV). Defendant now seeks dismissal
with prejudice of the state law claims in Counts III and IV.
III.
In Count III, plaintiff alleges that defendant manipulated
the computer server to insert data making the surveys inconsistent,
and that the refusal to correct data upon request constitutes a
violation of “The General Data Protection Regulations, and Privacy
Laws.” Plaintiff alleges that defendant acted willfully and with
malice and she was injured by its conduct.
Defendant argues that if this is construed as a fraud claim,
it is not pled with sufficient specificity. Defendant also argues
that plaintiff has no expectation of privacy in her response to
the survey, the GDPR does not apply, and the invocation of “privacy
laws” does not state a claim. The Court will consider each of the
potential claims in Count III in turn.
(1) Fraud
Count III may be liberally construed as attempting to state
a fraud claim under Florida law. “The essential elements of
common-law fraud are: (1) a false statement of fact; (2) known by
the person making the statement to be false at the time it was
made; (3) made for the purpose of inducing another to act in
reliance thereon; (4) action by the other person in reliance on
the correctness of the statement; and (5) resulting damage to the
other person.” Gandy v. Trans World Computer Tech. Grp., 787 So.
2d 116, 118 (Fla. 2d DCA 2001) (citation omitted). Under Federal
Rule of Civil Procedure 9(b), when pleading fraud, plaintiff “must
state with particularity the circumstances constituting fraud or
mistake.” Fed. R. Civ. P. 9(b). To satisfy Rule 9(b)’s
‘particularity’ standard, the complaint must allege: “(1) the
precise statements, documents, or misrepresentations made; (2) the
time and place of and person responsible for the statement; (3)
the content and manner in which the statements misled the
Plaintiffs; and (4) what the Defendants gained by the alleged
fraud.” Ambrosia Coal & Const. Co. v. Pages Morales, 482 F.3d
1309, 1316–17 (11th Cir. 2007) (citing Brooks v. Blue Cross & Blue
Shield of Florida, Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997)).
Plaintiff alleges that defendant told her that her response
in the May survey stated she had been vaccinated, and she relied
on defendant’s statement based on their “integrity” that what they
told her was true. Plaintiff accepted she made a mistake in the
May survey and admitted it but was nonetheless terminated.
Plaintiff also refers a back-dated email received the day after
her termination and refers to all statements as incorrect or a
manipulation, but never as false. The allegations do not state a
claim of fraud with sufficient particularity, so the motion to
dismiss will be granted, with leave to file an amended count.
(2) Invasion of Privacy
There are four types of invasion of privacy, only two of which
could possibly apply to the facts alleged in this case: “(3) public
disclosure of private facts—the dissemination of truthful private
information which a reasonable person would find objectionable;
and (4) false light in the public eye—publication of facts which
place a person in a false light even though the facts themselves
may not be defamatory.” Allstate Ins. Co. v. Ginsberg, 351 F.3d
473, 482 (11th Cir. 2003) (citing Agency for Health Care Admin. v.
Associated Indus. of Fla., Inc., 678 So. 2d 1239, 1252 n.20 (Fla.
1996)). Neither are sufficiently pled in the Complaint.
The elements of a claim of public disclosure of private facts
are: 1) the publication, 2) of private facts, 3) that are
offensive, and 4) are not of public concern. Spilfogel v. Fox
Broad. Co., 433 F. App'x 724, 725 (11th Cir. 2011) (citation
omitted). It is unclear if the private facts are the survey
response or the exemption request, and there is no allegation of
a publication. Accordingly, Count III does not sufficiently state
this type of privacy claim.
“The two essential elements for recovery under false light
invasion of privacy are: (1) the false light must be highly
offensive to a reasonable person; and (2) the defendant must have
acted either knowingly or in reckless disregard as to the falsity
of the publicized material and the false light in which it would
be placed.” Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205, 1221
(M.D. Fla. 2002). Count III contains no allegation of publication
of any qualifying facts outside of the company or to plaintiff.
The Court finds that plaintiff has failed to state a claim for
this type of invasion of privacy. The motion to dismiss will be
granted, with leave to file an amended count.
(3) Data Protection Act and Regulations
Count III alleges that defendant’s refusal to correct data
upon request of plaintiff has a survey participant is in “direct
violation of The General Data Protection Regulations, and Privacy
Laws.” (Doc. #1, ¶ 45.)
“Under the Data Protection Act and EU General Data Protection
Regulations 2018, which is in force in the United Kingdom where
the deposition will occur, and under the European Convention on
Human Rights and the Human Rights Act (collectively, the “Acts”),
every European Union citizen has a right to privacy.” d'Amico Dry
d.a.c. v. Nikka Fin., Inc., No. CV 18-0284-KD-MU, 2018 WL 5116094,
at *2 (S.D. Ala. Oct. 19, 2018). Since there is no allegation
that either party is a European Union citizen, the Court finds
that the GDPR does not afford protections in this case. The motion
to dismiss this portion of Count III will be granted as to this
claim.
IV.
In Court IV plaintiff seeks relief under Florida’s
Whistleblower Act (FWA). Plaintiff alleges that she submitted a
request for exemption from the company’s vaccination mandate. On
the same day, a Florida law was passed which plaintiff argues
required defendant to grant the requested exemption. Defendant
failed to do so, in violation of the new law. Plaintiff also
alleges that she was not treated equally to her co-workers and was
terminated for no legitimate reason as retaliation for objecting
to the vaccine mandate.
A Complaint must sufficiently allege facts plausibly
establishing the elements plaintiff will be required to prove.
“Under existing precedent, in order to establish a prima facie
case of retaliation under FWA, Plaintiff must prove that (1) she
engaged in statutorily protected expression; (2) she suffered an
adverse employment action; and (3) the adverse employment action
was causally linked to the statutorily protected activity.” White
v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335, 1336 (M.D. Fla.
2005). An employer may not take any retaliatory action against an
employee who “[o] bjected to, or refused to participate in, any
activity, policy, or practice of the employer which is in violation
of a law, rule, or regulation.” Fla. Stat. § 448.102(3). “‘Law,
rule, or regulation’ includes any statute or ordinance or any rule
or regulation adopted pursuant to any federal, state, or local
statute or ordinance applicable to the employer and pertaining to
the business.” Fla. Stat. § 448.101(4). “Generally, retaliation
claims under the Florida Whistleblower Act are analyzed in the
same manner as Title VII retaliation claims.” U.S. ex rel. Vargas
v. Lackmann Food Serv., Inc., 510 F. Supp. 2d 957, 968 (M.D. Fla.
2007) (citing Sierminski v. Transouth Fin. Corp., 216 F.3d 945,
950–51 (11th Cir. 2000)).
1
Plaintiff cites to a Florida statute enacted on November 18,
2021, prohibiting COVID-19 vaccination mandates by private
employers. Defendant argues that plaintiff has failed to allege
facts showing that she objected to the defendant’s policy based on
that law and failed to allege that the policy violates the law.
Plaintiff generally alleges she was not treated equally to
her coworkers and was terminated as retaliation for objecting to
the vaccine mandate by seeking an exemption based on her religious
beliefs. (Doc. #1, p. 9.) However, plaintiff does not allege
that she ever referred to the state law against vaccine mandates
through the submitted exemption or by any other means, or how she
objected to the vaccine policy to her employer other than by
submitting the exemption, which was permitted under the policy.
“[M]erely requesting a religious accommodation is not the same as
opposing the allegedly unlawful denial of a religious
accommodation.” Leigh v. Artis-Naples, Inc., No. 2:22-CV-606-JLB-
NPM, 2022 WL 18027780, at *13 (M.D. Fla. Dec. 30, 2022) (quoting
EEOC v. N. Mem'l Health Care, 908 F.3d 1098, 1102 (8th Cir. 2018)).
1
“A private employer may not impose a COVID-19 vaccination
mandate for any full-time, part-time, or contract employee without
providing individual exemptions that allow an employee to opt out
of such requirement on the basis of medical reasons, including,
but not limited to, pregnancy or anticipated pregnancy; religious
reasons; COVID-19 immunity; periodic testing; and the use of
employer-provided personal protective equipment.” Fla. Stat. §
381.00317(1).
Without any facts of a statutorily protected expression
whereby the policy was resisted pursuant to the Florida statute,
plaintiff has not stated a claim. Further, plaintiff has not
alleged a causal connection to the adverse action of her
termination as the Complaint implies that she was terminated based
on the inconsistent survey responses. The motion to dismiss will
be granted without prejudice.
Accordingly, it is now
ORDERED :
1. Defendant’s Opposed Partial Motion to Dismiss Plaintiff’s
Complaint (Doc. #13) is GRANTED to the extent that Counts
III and IV of the Complaint are dismissed without prejudice
to filing an Amended Complaint within FOURTEEN (14) DAYS
of this Opinion and Order. The motion is otherwise denied.
2. Plaintiff’s Motion for Oral Arguments and an Evidentiary
Hearing (Doc. #15) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 23rd day of
June 2023.
□ —_ Afr
: le hy ZC. AK Zo0b
ade E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
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