Opinion

Murphy v. Karnes

Court
District Court, M.D. Florida
Filed
Jul 18, 2023
Cited by
0 cases
Authority
More cited than 20.0%

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

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