The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JEROD MURPHY, an
individual,
Plaintiff,
v. Case No: 2:23-cv-126-JES-NPM
KEVIN KARNES, as Lee County
Clerk of Court,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of the Motion to
Dismiss (Doc. #21) filed by Kevin Karnes, as Lee County Clerk of
Court (Defendant). Jerod Murphy (Plaintiff) responded in
opposition (Doc. #23.) For the reasons set forth below, the motion
is DENIED.
I.
Plaintiff’s Amended Complaint (AC), the operative complaint,
makes the following factual allegations: Defendant Keven Karnes,
“the current Lee County Clerk of Court and Comptroller,” employed
the Plaintiff “as a court services supervisor.” (Doc. #17, ¶¶ 3,
6.) Plaintiff began his employment on August 16, 2021 and always
received positive performance reviews. (Id., ¶¶ 6, 21.) On or
about July 12, 2022, Plaintiff submitted a written and signed
complaint to Defendant’s human resources department after he
noticed another employee was committing time theft and fraud. (Id.,
¶ 8.) Defendant’s Chief of Courts sent the complaint to Defendant’s
inspector general, who opened a formal investigation into the
matter. (Id., ¶ 10.) The Defendant’s inspector general then
interviewed Plaintiff. (Id., ¶ 12.) On or about November 3, 2022,
Defendant’s inspector general released its investigative report
that substantiated Plaintiff’s complaint. (Id., ¶ 13.) Defendant
quickly changed Plaintiff’s job responsibilities and became highly
critical of him. (Id., ¶ 14.)
Meanwhile, Plaintiff was suffering from “serious health
conditions” and had consistently informed Defendant of the same.
(Id., ¶ 30.) Plaintiff requested leave due to the health
conditions. (Id.) At this point, Plaintiff had worked more than
1,250 hours over the previous twelve months. (Id., ¶ 24.) On or
about November 9, 2022, Plaintiff took leave to have right hand
carpal tunnel release surgery. (Id., ¶ 15.) Plaintiff’s employment
was terminated on November 28, 2022. (Id., ¶ 16.) Plaintiff’s
termination was not part of a budgetary need or a bona fide
reduction in force. (Id., ¶¶ 19-20.)
The AC asserts three claims against the Defendant in his
official capacity: (1) violation of the Family Medical Leave Act
(FMLA)- interference; (2) violation of the FMLA – retaliation; and
(3) violation of Florida’s Public Whistleblower Act. (Id., ¶¶ 23-
63.) Defendant moves to dismiss only Count I of the Amended
Complaint “as the operative facts do not support an FMLA
interference claim.” (Doc. #21, p. 1.) Count I alleges in sum that
Defendant refused to allow Plaintiff his full FMLA leave and
refused to allow his return to work at the same or equivalent
position. (Doc. #17, ¶¶ 29, 33.)
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, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (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. See also Phx. Entm't Partners, LLC v.
Casey Rd. Food & Bev., LLC, 728 F. App'x 910, 912 (11th Cir.
2018). This requires "more than an unadorned, the-defendant-
unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (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, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007), but
"[l]egal conclusions without adequate factual support are entitled
to no assumption of truth." Mamani v. Berzaín, 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) (internal
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.
In resolving a motion to dismiss, “a district court may consider
judicially noticed documents.” United States ex rel. Osheroff v.
Humana Inc., 776 F.3d 805, 811 (11th Cir. 2015)(citing Bryant v.
Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir.1999)).
III.
In moving to dismiss Count I of Plaintiff’s AC, Defendant
invites the Court to take judicial notice of six documents under
Rule 201 of the Federal Rule of Evidence. (Doc. #21, pp. 4-5.) The
Defendant contends that “[t]he records establish operative facts
that defeat Plaintiff’s Count I, the FMLA interference claim.”
(Doc. #21, p. 5.) On the other side, “[Plaintiff] calls into
question the accuracy of the Defendant’s documents” and argues
they “ought not to be considered in deciding this motion.” (Doc.
#23, pp. 3-4.) The Court concludes that judicial notice is not
appropriate and that Count I is sufficiently pled.
A. Judicial Notice
“Rule 201 of the Federal Rules of Evidence permits a court to
‘judicially notice a fact that is not subject to reasonable dispute
because it’ either ‘is generally known within the trial court's
territorial jurisdiction’ or ‘can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.’” Bryant v. Ford, 967 F.3d 1272, 1275 (11th Cir. 2020)
(quoting Fed. R. Evid. 201(b)). The power to take judicial notice,
however, should be exercised with caution. Brown v. Piper, 91 U.S.
37, 42–43 (1875). “The reason for this caution is that the taking
of judicial notice bypasses the safeguards which are involved with
the usual process of proving facts by competent evidence in
district court.” Paez v. Sec'y, Fla. Dep't of Corrs., 947 F.3d
649, 652 (11th Cir. 2020) (quoting Shahar v. Bowers, 120 F. 3d
211, 214 (11th Cir. 1997)).
The six documents in question are attached to Defendant’s
motion to dismiss: (1) a “health care provider’s written release
to return” to work on November 28, 2022; (2) Defendant’s personnel
action report marking the end of Plaintiff’s leave of absence as
November 28, 2022; (3) Defendant’s personnel action report marking
Plaintiff was terminated on November 28, 2022; (4) “[a] copy of
[Plaintiff’s] time report indicating he was paid for November 28,
2022”; (5) “a copy of [Plaintiff’s] pay stub for the two-week work
period ending December 9, 2022”; and (6) “ [a] copy of the
Supervisor’s Report of Action for the termination . . . .”(Doc.
#21, p. 6.)
The Court concludes that these documents do not merit judicial
notice because their accuracy can reasonably be questioned. The
health care provider’s note is redacted to the point it does not
even identify the provider or source. The remaining documents are
subject to reasonable dispute since they were all authored by the
Defendant or his agents. Indeed, Plaintiff does dispute the
accuracy of the documents. (See Doc. #23, pp. 3-4.) The fact that
they may be contained in a public personnel file does not justify
judicial notice. The Court declines to take judicial notice of
Defendant’s proffered documents.
B. FMLA Interference
“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
Enters., Inc., 981 F.3d 1265, 1274 (11th Cir. 2020) (citing Batson
v. Salvation Army, 897 F.3d 1320, 1328 (11th Cir. 2018)); 29 U.S.C.
§ 2612(a)(1)(D)). Additionally, “[a]n employee who returns from
FMLA leave is entitled to be restored to her former position or an
equivalent position.” Todd v. Fayette Cnty. Sch. Dist., 998 F.3d
1203, 1220 (11th Cir. 2021)(citing 29 U.S.C. § 2614(a)(1)). “The
FMLA gives teeth to these provisions by prohibiting employers from
interfering with an employee's rights under the Act.” Id. (citing
29 U.S.C. § 2615(a)).
“To recover on an ‘interference’ claim under the FMLA, a
plaintiff must satisfy three elements.” Graves v. Brandstar, Inc.,
67 F.4th 1117, 1121 (11th Cir. 2023). Plaintiff “must show that
[1] she was entitled to a benefit under the FMLA,” [2] “that her
employer denied her that benefit,” and [3] “she must ‘demonstrate
harm, or prejudice, resulting from the employer's interference
with her exercise (or attempted exercise) of an FMLA benefit.’”
Id. (internal citations omitted).
As noted earlier, Plaintiff need only make plausible factual
allegations of these elements at the motion to dismiss stage.
Defendant’s motion to dismiss is premised on his view that his
documents outside the pleadings establish that the AC’s factual
allegations are incorrect or false. That may eventually prove to
be the case. But since the documents are not apt for judicial
notice, such a determination is not appropriate in a motion to
dismiss. The factual allegations in the Amended Complaint, viewed
in the light most favorable to Plaintiff, set forth a plausible
claim of FMLA interference. This is all that is required at this
stage of the proceedings.
Accordingly, it is now
ORDERED :
Defendant’s Motion to Dismiss (Doc. #21) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 18th day
of July, 2023.
—_— □ 2, _ f
AA) = Pe
JGHE E. STEELE
5 IOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record