Davis v. SeaWorld Parks & Entertainment, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

TERI DAVIS,

Plaintiff,

v. Case No. 6:22-cv-2327-ACC-DCI

SEAWORLD PARKS AND

ENTERTAINMENT, INC.,

Defendant.

ORDER

This cause comes before the Court on Defendant SeaWorld Parks and

Entertainment, Inc.’s (“SeaWorld”) Motion to Dismiss with prejudice Plaintiff’s

Amended Complaint (Doc. 33), which asserts claims for discrimination in violation

of Title III of the American Disabilities Act (“ADA”), Title II of the Civil Rights

Act of 1964, and the Florida Civil Rights Act (“FCRA”). Plaintiff has filed a

Response (Doc. 34), and the matter is ripe for decision. For the reasons set forth

below, the Motion will be granted in part and denied in part.

II. BACKGROUND FACTS1

Plaintiff Teri Davis is an African-American military veteran who suffered an

ankle injury in 2012, necessitating surgery and rehabilitation, and she was deemed

1 When reviewing a motion to dismiss, a court will accept the allegations contained in the

disabled in 2019.2 (Doc. 30 ¶ 20). On May 8, 2021, Davis spent the day at the

SeaWorld theme park with several of her family members. (Id. ¶¶ 6, 15). When

Davis first arrived at Sea World, Davis asked a parking attendant where the disabled

parking was located. (Id. ¶ 17). While Davis was talking to the parking attendant,

she had a valid handicap placard on her rearview mirror. (Id. ¶ 19). The attendant

placed a blue preferred parking notice on her car but failed to direct Davis to the

disabled parking, so she was required to park in regular parking and walk the

additional distance from her parking spot to the SeaWorld entrance. (Id. ¶¶ 18, 22).

After two and a half hours at SeaWorld without any issues, Davis and her

family attended the Killer Whale show. (Id. ¶¶ 23, 24). Davis and her sister (as her

companion) sat in the disabled seating area3 at the show, while the rest of her family

sat in the “Splash Zone” area. (Id. ¶ 25). Once Davis was seated in the disabled

seating area, the “lead” SeaWorld employee named Kevin approached Davis to ask

about her disability status, commenting: “You do not look disabled and you cannot

sit here.” (Id. ¶¶ 26, 27). Davis informed him that she was permanently disabled. (Id.

¶ 26). Kevin appeared agitated and walked away. (Id. ¶ 28). Davis and her

companion4 were the only African-Americans sitting in the disabled seating area.

2 Davis does not state by whom she was “deemed” disabled, and this should be clarified in

any amended allegations. As discussed infra, a plaintiff must allege sufficient facts to demonstrate

how she is “substantially limited in a major life activity” to state a claim for violation of the ADA.

3 SeaWorld contends that the disabled seating area is designed for wheelchair users and a

companion, thus “everyone else was likely a wheelchair user.” (Doc. 33 at 3-4).

(Id. ¶ 29).

Five minutes after Davis’s interaction with Kevin, a female employee also

asked Davis if she was “handicapped.” (Id. ¶ 30). Davis responded by asking why

the employees kept questioning her disability status, and the female employee told

Davis it was her job to ask individuals in the disabled seating area if they were

“handicapped.” (Id.) Davis responded that she “was not handicapped but disabled,”

and the employee walked away. (Id.). When a third employee approached Davis a

few minutes later, Davis asked to speak to the manager. (Id. ¶ 31).

The lead employee (Kevin) returned and explained that it was the employees’

job to verify that people sitting in the designated area were disabled.5 Although the

disabled seating area appeared full, Davis was the only patron questioned repeatedly

by SeaWorld’s employees. (Id. ¶¶ 29, 32, 33). Therefore, Davis advised an employee

in the arena that she was going to file an ADA complaint against the park, and the

employee responded that “they welcomed the complaint.” (Id. ¶ 34). When the

announcer at the Killer Whale show asked all members of the military and veterans

to stand, Davis stood to be recognized6 and then left the arena. (Id. ¶ 38). Davis

purposes of deciding the Motion to Dismiss. Holland, 50 F.4th at 1093.

5 Davis acknowledges in the Amended Complaint that “a public accommodation may

impose legitimate restrictions on individuals [who] may be entering a designated area for those

with special needs” but, she argues, the restrictions cannot be “based on . . . general conclusions

based on how an individual appears.” (Doc. 30 ¶ 35). Davis argues in her Response (Doc. 34 at 2)

that “not all persons sitting in the designated area” were “in wheelchairs or using some other

mobility device,” however, Davis did not specifically allege this fact in the Amended Complaint.

informed a SeaWorld guest services employee of the events that had taken place,

and the guest services employee apologized to Davis and assigned a case number to

her case. (Id. ¶ 39).

On September 9, 2022, Davis filed an administrative complaint with the

Florida Commission on Human Relations alleging that SeaWorld discriminated

against her on the basis of her race on May 8, 2021. (Doc. 34-1 at 1-3 (FCHR No.

202338225—Public Accommodation Complaint Form)). The Commission

responded to Davis with a Notice stating that “the information submitted on the

complaint [was] insufficient for the Commission to begin its investigation” because:

A complaint of discrimination must be filed with the Commission

within 365 days of the last alleged date of harm. More than 365 days

have elapsed since the last alleged date of harm you listed in your

complaint.

Although your complaint is insufficient for the Commission to launch

an investigation, it may be possible for you to amend your complaint .

. . within 60 days after the initial filing to cure technical defects and

omissions and to clarify and amplify allegations. . . You have until

November 11, 2022 to amend your complaint. . . .

Be advised, a complaint of discrimination must be filed with the

Commission within 365 days of the last alleged date of harm. The 60-

day amendment period does not extend the 365-day filing deadline, and

a delay may result in the complaint being untimely.

(Id. at 4 (emphasis in original)). The Commission dismissed Davis’s FCHR

complaint against SeaWorld on November 21, 2022 because, with the untimely

complaint, “[c]onsidering all information received, the Commission does not have

authority to investigate.” (Doc. 34-1).7

On December 15, 2022, Davis filed suit against Sea World in this Court. (Doc.

2). After SeaWorld filed its Motion to Dismiss the original Complaint on March 3,

2023, Davis filed an Amended Complaint within 21 days as permitted under Federal

Rule of Civil Procedure 15. (Doc. 30) The Court denied the Motion to Dismiss

without prejudice as moot. (Doc. 31). SeaWorld then filed its Motion to Dismiss the

Amended Complaint on April 7, 2023. (Doc. 33). Davis filed her Response in

opposition on April 21, 2023 (Doc. 34).

III. LEGAL STANDARD

For purposes of deciding a motion to dismiss for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true the factual

allegations in the complaint and draws all reasonable inferences in the light most

favorable to the plaintiff. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010).

“Generally, under the Federal Rules of Civil Procedure, a complaint need only

contain ‘a short and plain statement of the claim showing that the pleader is entitled

to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). However, the plaintiff’s complaint

must provide “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Specific facts that are not

7 Plaintiff attached the FCHR administrative complaint and the Commission’s responses to

her Response to the Motion to Dismiss. (See Doc. 34-1). The Court may consider such attachments

at this stage if the material is (1) central to plaintiff’s claim and (2) undisputed. See, e.g., Correa

necessary to state a claim for relief do not need to be included in a complaint. Id.

Legal conclusions or a recitation of the elements of a cause of action are insufficient

to satisfy a plaintiff’s burden to prove he is entitled to relief. Id. at 555. A facially

plausible claim must plead facts that give rise to a reasonable inference that a

defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Twombly, 550 U.S. at 556). Thus, the Court is not required to accept

as true a legal conclusion merely because it is labeled a “factual allegation” in the

complaint; it must also meet the threshold inquiry of facial plausibility. Id.

SeaWorld argues that Davis’s Amended Complaint should be dismissed with

prejudice. A district court may dismiss a complaint with prejudice when granting

leave to amend would be futile. W. Sur. Co. v. Steuerwald, 760 F. App'x 810, 814

(11th Cir. 2019); Cornelius v. Bank of Am., NA, 585 F. App'x 996, 1000 (11th Cir.

2014) (citation omitted).8 If a more carefully drafted complaint may state a viable

claim, a district court should give the complainant at least one chance to amend

before dismissing with prejudice. Steuerwald, 760 F. App’x at 814.

IV. ANALYSIS

SeaWorld moves to dismiss the Amended Complaint, arguing that Davis’s

claims for intentional discrimination in violation of Title II of the federal Civil

Rights Act of 1964 (“CRA”) and the Florida Civil Right Act (“FCRA”) are barred

by the exhaustion requirement in their respective statutes. SeaWorld further argues

that Davis fails to allege disability discrimination under the ADA, as opposed to a

race discrimination claim. SeaWorld also argues that the remedies available to Davis

for her claim under the ADA governing public accommodations in Title III and the

CRA claim are limited to injunctive relief, and her claim for $4 million in monetary

damages should be dismissed. (See Doc. 1 (Civil Cover Sheet)).

A. Exhaustion of Administrative Remedies

1. Florida Civil Rights Act Claim

Davis alleges that SeaWorld violated the FCRA when its employees

“questioned and harassed [her] about her disability [which] essentially caus[ed] her

to be constructively removed” from the disabled seating area. (Doc. 30 ¶ 54). Davis

alleges that she was the only African-American patron sitting in the disabled area

(aside from her companion) and the only person who was questioned about her

disability. (Id.).9

The general purpose of the FCRA is “to secure for all individuals within the

state freedom from discrimination because of race, color, religion, sex, pregnancy,

national origin, age, handicap, or marital status.” Fla. Stat. § 760.01(2). Before a

plaintiff may bring an FCRA civil action, she must exhaust her administrative

9 Given that the Court’s dismissal with prejudice of Davis’s FCRA claim for failure to

remedies, as set forth in Fla. Stat. § 760.11. See Sheeley v. MRI Radiology Network,

P.A., 505 F.3d 1173, 1205 (11th Cir. 2007). The claimant must file a charge with the

Florida Commission on Human Relations (the “Commission”) within 365 days of

the alleged violation. Fla Stat. § 760.11(1). If the Commission determines that no

reasonable cause exists to believe that unlawful discrimination occurred, the

claimant may request an administrative hearing before an ALJ. Id. § 760.11(7). After

the hearing, the ALJ issues a recommended order to the Commission, which then

issues a final order by adopting, rejecting, or modifying the recommended order. Id.

The claimant may not file a civil action unless the Commission, in its final order,

determines that the FCRA has been violated. See id.; Woodham v. Blue Cross &

Blue Shield of Fla., Inc., 829 So.2d 891, 895 (Fla. 2002) (holding that a prerequisite

to bringing a civil action under the FCRA is that the complainant must file a

complaint with the Commission within 365 days of the alleged violation). If the final

order issued by the Commission determines that the FCRA has not be violated, the

claimant has 30 days to seek judicial review pursuant to Fla. Stat. § 120.68, which

provides for review of adverse agency actions. Id. §§ 760.11(13), 120.68(2)(a).

SeaWorld argues that Davis’s FCRA claim is due to be dismissed with

prejudice because she failed to exhaust administrative remedies as required under

the FCRA when she waited to file her complaint with the Commission until

September 9, 2022, more than 365 days after the May 8, 2021 incident and she

and allowed her an opportunity to amend it; however, her submission apparently

failed to rectify the untimeliness of the administrative complaint and the

Commission dismissed it as untimely on November 22, 2022. (See Doc. 34-1).

Davis argues that she obtained what she refers to as a “Right to Amend” letter

and Notice of Dismissal, which she argues “would satisfy her exhaustion of

administrative remedies under Title II of the [federal] Civil Rights Act, and thus her

claim for racial discrimination must survive.” (Doc. 34 at 5). “Based on similar

arguments”—which Davis does not articulate regarding FCRA—she should also be

able to assert a FCRA claim without properly exhausting administrative remedies

under the state statute.10 (Id. at 6).

However, the Eleventh Circuit’s holding in McCullough v. Nesco Resources

LLC, based on a failure to comply with the FCRA’s exhaustion requirements,

addresses a similar set of facts and forecloses Davis’s FCRA claim where she failed

to exhaust her administrative remedies as required. 760 F. App’x 642 (11th Cir.

2019). In McCullough, the Eleventh Circuit affirmed the district court’s dismissal of

the plaintiff’s FCRA claim in his lawsuit where he had failed to file his complaint

with the Commission within 365 days, the Commission dismissed his discrimination

claims, and he “had the option to appeal the Commission’s decision within 30 days,

but he d[id] not allege that he did so.” 760 F. App’x at 647 (citing Fla. Stat.

§ 760.11(7), (13); Woodham, 829 So.2d at 895). The Court held that because he had

not followed the procedures outlined in § 760.11, he could not institute a civil action

based on his FCRA claims. Id. (citing Sheely, 505 F.3d at 1205).

Davis’s untimely complaint in this case, similar to McCullough, led the

Commission to dismiss it as untimely. (See Doc. 34-1). She had the option to appeal

the Commission’s decision within thirty days, but she did not (nor allege such

appeal). Therefore, it is undisputed that Davis failed to exhaust her administrative

remedies under the FCRA prior to bringing her FCRA claim. As in McCullough

where the plaintiff failed to appeal the Commission’s dismissal of his untimely

FCRA discrimination claim, Davis has failed to comply with the procedures outlined

in § 760.11 and she cannot institute a civil action based on her FCRA complaint to

the Commission. See McCullough, 760 F. App’x at 647-48. Therefore, the claim will

be dismissed with prejudice because granting leave to amend would be futile. See

W. Sur. Co., 760 F. App’x at 814.

2. Title II of the Civil Rights Act Claim

Both parties acknowledge that Davis has referred to discrimination by

SeaWorld in violation of Title II of the Civil Rights Act, 42 U.S.C. § 2000a(a), which

prohibits discrimination on the basis of race in places of public accommodation. As

an initial matter, Davis should have asserted her claim for violation of Title II of the

CRA in a separate count, although she does generally allege in the “Background”

basis of her race.11 (Doc. 30 ¶¶ 6-7).

SeaWorld argues that Davis’s race discrimination claim under the federal

Civil Rights Act of 1964 is due to be dismissed because, similar to the FCRA claim,

she failed to allege in the Amended Complaint that she exhausted her administrative

remedies. SeaWorld is correct that to bring a viable claim under Title II, a plaintiff

must first exhaust state or local administrative remedies if such remedies are

available, and a plaintiff must wait thirty days after providing written notice to the

appropriate state authority before filing suit. See 42 U.S.C. § 2000a-3(c) (stating that,

if a state or local law prohibits the alleged discriminatory act and a state or local

agency has authority to grant relief from the discriminatory act, no civil action can

be brought until 30 days after the appropriate authority has been given written notice

of the discriminatory act); Strober v. Payless Rental Car, 701 F. App’x 911, 913 n.3

(11th Cir. 2017) (per curiam).

Davis acknowledges that Florida has a statute prohibiting racial

discrimination in public accommodations and maintains a state agency at which

plaintiffs are to file such claims. 12 She argues, however, that “the granting of relief

. . . may or may not occur and if this does not occur [then] the plaintiff’s only other

11 Although Davis alleges in the Amended Complaint that SeaWorld discriminated against

her on the basis of her “race, color, or national origin” she cites only her race (African-American)

as the basis for the disparate treatment and does not identify a separate basis for discrimination

based on “national origin” or “color.” (Doc. 30 ¶¶ 6-7).

12 As explained in the previous section, the FCRA prohibits an individual from being

option is to file [her] complaint in either a state or federal court.” (Doc. 34 at 5).

Davis points out that she did file an administrative complaint with the Commission

and received the Notice of Dismissal on November 21, 2022 which, she argues,

satisfies her exhaustion of administrative remedies for Title II of the CRA.

As explained above, Florida law requires that discrimination complaints be

filed with the Commission within 365 days of the alleged violation, Fla. Stat. §

760.11(1); consequently, the Commission dismissed her administrative complaint as

untimely on November 21, 2022. (Doc. 34-1). SeaWorld argues that Davis’s failure

to properly exhaust her administrative remedies on her federal CRA claim cannot be

cured at this late juncture since she filed suit on December 15, 2022, therefore, her

federal CRA discrimination claim should be dismissed with prejudice like her FCRA

claim. (Doc. 33 at 8-9).

SeaWorld, relies on the Middle District case of Peters v. Cheval Golf &

Athletic Club, LLC, to argue that Davis’s claim should be dismissed with prejudice

because she failed to file a timely complaint with the Commission and the issue of

untimeliness could not be cured. Case No. 8:20-CV-2080-KKM-AAS, 2022 WL

88197, at *5 (M.D. Fla. Jan. 7, 2022) (“[T]he Eleventh Circuit [has] held that [42

U.S.C. § 2000a-3(c)]’s requirement that ‘[n]o action shall be brought . . . until such

administrative remedies as are available are exhausted’ means that a plaintiff cannot

cure a failure to take required pre-filing action by taking such action after filing a

understandable language precludes institution of a federal court proceeding of this

particular type without first giving the state an opportunity to remedy the situation .

. . The legislative intent appears to us to be quite clear.”). However, the Peters case

on which SeaWorld relies is easily distinguished because Davis waited the requisite

period before filing suit on her CRA claim.

In Peters, the court held that the plaintiffs could not cure the exhaustion defect

because they had provided notice to the Commission after they had already filed

suit. Peters, 2022 WL 88197, at *5. The district court found that the plaintiffs’

delayed filing of the administrative complaint “did not remedy [their] failure to

satisfy statutory prefiling conditions.” Id. at *3. In contrast, in this case, Davis

contends in her Response that she filed her administrative complaint with the

Commission on September 9 2022, and waited more than three months before filing

her Complaint in this Court on December 15, 2022.

As the District of Columbia Circuit explained in applying the requirements of

Title II of the federal CRA, state statutes of limitations will not divest federal courts

of jurisdiction unless Congress has specifically mandated that notice to the state

authority must be filed within the state’s time limitations. Brown v. Whole Foods

Mkt. Grp., Inc., 789 F.3d 146, 154 (D.C. Cir. 2015). In Brown, the customer of a

grocery store—a public accommodation—alleged that the store’s employees

discriminated against him based on his race in violation of Title II of the CRA. Id.

failed to file an administrative complaint with the proper state authority within a year

of the alleged discrimination, a deficiency that was impossible for him to cure. Id. at

150. The D.C. Circuit reversed, holding that the plaintiff was able to comply with

the notice requirements even after his lawsuit was filed by providing written notice

of his allegations to the state authority, abating the case, and waiting an additional

thirty days to assert the federal claim because Title II did not incorporate the state’s

requirement that notice be provided within a specific time of the occurrence of the

alleged discrimination. Id. at 154.

Additionally, because the pro se plaintiff alleged notification of the state

authority in his response, but not in the complaint, the plaintiff would be granted

leave to amend the complaint after the waiting period had passed See id. (reversing

dismissal of Title II claim and allowing plaintiff to comply by providing notice to

state agency and amending pleading). Even in the Peters decision on which

SeaWorld relies, the district court recognized that the plaintiff’s failure to file the

administrative complaint with the Commission did not deprive the court of

jurisdiction, and the statute of limitations would not bar their claim because the

equitable relief available under Title II could be obtained by refiling their suit thirty

day after filing their administrative complaint with the Commission. 2022 WL

88197, at *4 (citation omitted).

As in Brown, Davis has attached a copy of her administrative complaint filed

Complaint. According to Davis’s Response to SeaWorld’s Motion to Dismiss, Davis

satisfied Title II’s notice requirement by filing a complaint with the Commission

(albeit one that was determined to be untimely) and by waiting more than thirty days

before filing suit on her Title II claim. (Doc. 34-1 at 1). Thus, Davis has exhausted

her administrative remedies for her Title II claim. However, she fails to allege in her

Amended Complaint a Title II claim in a separate count, or that she complied with

the exhaustion requirement by filing the administrative complaint with the

Commission, and these defects will be required to be corrected in any amended

complaint.

B. Title III of the Americans with Disabilities Act Claim

Davis alleges that SeaWorld discriminated against her on the basis of her

disability by failing to ensure that individuals without an obvious mobility13 device,

such as a wheelchair or walker, have adequate and fair use of, and equal access to,

SeaWorld’s accommodations. She further alleges that SeaWorld discriminated

against her by failing to make reasonable modifications to its policies and practices

so that employees would not decide whether individuals have disabilities based on

superficial reasons, such as whether they require mobility devices. (Doc. 30 ¶ 2

13 Other such disabling conditions impacting mobility or balance leading a patron to prefer

to sit in disabled section could potentially include conditions causing fatigue or circulation issues,

which could lead them to prefer seating in a more convenient disabled seating area. SeaWorld

argues in the Motion to Dismiss that the disabled seating area is “designed for wheelchair users

and one companion,” apparently suggesting it is to the exclusion of other disabling conditions.

(referring to “those individuals who may not look disabled . . . but are otherwise

disabled”); see Doc. 34 at 2 “Defendant assumes . . . that disabled individuals are

only those individuals who use wheelchairs, walkers or some other mobility

device.”).

Title III of the ADA prohibits discrimination against an individual “on the

basis of disability in . . . any place of public accommodation by any person who

owns, leases . . . or operates a place of public accommodation.” 42 U.S.C. §

12182(a). The ADA defines discrimination to include:

[A] failure to make reasonable modifications in policies, practices, or

procedures, when such modifications are necessary to afford such

goods, services, facilities, privileges, advantages, or accommodations

to individuals with disabilities, unless the entity can demonstrate that

making such modifications would fundamentally alter the nature of

such goods, services, facilities, privileges, advantages, or

accommodations. . . .

Id. § 12182(b)(2)(A)(ii). Title III also prohibits places of public accommodation

from denying disabled individuals “the opportunity . . . to participate in or benefit

from the goods, services, facilities, privileges, advantages, or accommodations of an

entity.” Id. § 12182(b)(1)(A)(i). A plaintiff alleging Title III ADA discrimination

must initially prove that (1) she is a disabled individual; (2) the defendant owns or

operates a place of public accommodation; and (3) the defendant discriminated

against the plaintiff because of his or her disability. Kennedy v. Floridian Hotel, Inc.,

998 F.3d 1221, 1231 (11th Cir. 2021) (citing 42 U.S.C. § 12182(a)).

on the first and third elements, arguing that (1) Davis failed to plead facts in support

of her conclusory allegation that she has a disability that substantially limits a major

life activity as defined under the ADA; and (2) she failed to allege discrimination

based on disability—rather than race—under the ADA. (Doc. 33 at 10, 13). The

parties do not dispute that the second element is met because SeaWorld’s theme park

constitutes a “public accommodation” as defined in the ADA. 42 U.S.C. §

12181(7)(B) (listing a “park, zoo, amusement park, or other place of recreation”);

see A.L. by & through D.L. v. Walt Disney Parks & Resorts US, Inc., 469 F. Supp.

3d 1280, 1302 (M.D. Fla. 2020), aff'd, 50 F.4th 1097 (11th Cir. 2022) (holding a

theme park to be a public accommodation under the ADA).

1. Element One: Disability under the ADA

SeaWorld argues that Davis has not alleged sufficient facts to establish that

she has a disability covered by the ADA. The ADA defines an individual with a

disability as someone with “a physical or mental impairment that substantially limits

one or more major life activities . . . [someone with] a record of such an impairment;

or [someone who is] regarded as having such an impairment.” 42 U.S.C §

12102(1)(A)–(C).

Davis alleged in the Amended Complaint that she “is a qualified person with

a disability as she has a physical impairment that substantially limits a major life

activity, she has a record of such impairment . . . .” but she failed to identify the

(Doc. 30 ¶ 41). Davis concedes that she “did not allege specifically what major life

activities were affected” by her ankle injury in the Amended Complaint sufficient to

demonstrate that she has a “covered disability” under the ADA. (See Doc. 34 at 2,

7). However, she argues, “it can be reasonably inferred that if an individually

suffered a serious ankle injury that required surgery which rendered them disable[d],

the major life activities that would be affected would be anything from difficulty

walking for a substantial period of time, loss of sleep due to pain and discomfort,

standing for an extended period of time, or even bending to lift certain household

items.” (Id. (emphasis added)). Davis in her Response contends that she can provide

“more specifics as to the injury, the surgical procedure, rehabilitation, and recovery,”

although she contends that it is “premature” to put it in the pleading, rather than

presenting it in discovery. (Id. at 7).

The initial problem with these hypothetical statements is that they read like

suppositions of major life activities that “would be affected” by anyone with an ankle

injury, rather than the specific personal experience of Davis regarding which of her

major life activities are actually affected by her ankle injury. The second problem is

that these statements, to the extent that they actually reflect Davis’s personal

limitations, are in the Response to the Motion to Dismiss and are not alleged in the

Amended Complaint.14

The major life activities that are limited by a disability cannot be “left to

conjecture” in a complaint because it is a “foundational” element of an ADA claim.

Rohttis v. Sch. Dist. of Lee Cnty., No. 2:21-CV-737-JES-NPM, 2022 WL 523605, at

*7 (M.D. Fla. Feb. 22, 2022) (citation omitted) (dismissing without prejudice as

conclusory an ADA claim that plaintiff had a physical impairment substantially

limiting “one or more major life functions”). Thus, Davis’s allegation as currently

stated in the Amended Complaint that she has an “impairment that substantially

limits a major life activity” is conclusory. Although Davis has alleged that her ankle

injury required surgery and substantial rehabilitation, that she has a handicapped

parking placard for her car, and that she has been “deemed” disabled—all of which

suggests that she may have an impairment—she must provide a sufficient factual

basis to meet the ADA’s statutory definition of disabled and set forth the major life

activities limited by her impairment. See 42 U.S.C § 12102(A)–(B); see also Dixon

v. McArthur Dairy, LLC, No. 09-21774-CIV-SEITZ, 2010 WL 2985634, at *4 (S.D.

Fla. July 23, 2010) (dismissing plaintiff’s ADA claim where he failed to allege

substantial limitations on major life activity of working caused by his dyslexia and

mental impairment where he had worked successfully for 20 years as a transport

driver).

and proof of her disability would be requested and she would have to provide as much. (Doc. 34

Because Davis has not sufficiently alleged facts in support of substantial

limitations on her major life activities due to her ankle injury in her Amended

Complaint, her ADA claim will be dismissed with leave to amend to provide these

facts in support of her ADA claim.15 See Rohttis, 2022 WL 523605, at *7 (granting

leave to file amended complaint for the plaintiff to identify which major life

activities were substantially limited by her disability).

2. Element 3: Discrimination “because of” disability

SeaWorld argues that Davis fails to state a claim under the ADA for

discrimination on the basis of a disability as opposed to race, citing several

allegations from the Amended Complaint that contend Davis “was the only one

being question and harassed” or “singled out” about her disability and “the only

African American sitting in the disabled section” (aside from her companion). (Doc.

30 ¶¶ 6, 29, 32, 54). SeaWorld argues that such allegations do not state a claim for

discrimination under the ADA which prohibits discrimination only on the basis of

disability. SeaWorld points to the allegations in the Amended Complaint that the

disabled seating area was full of guests with disabilities, but employees questioned

only Davis about sitting there, “which underscores that SeaWorld was not engaged

in discrimination on the basis of disability.” (Doc. 33 at 14-15 (citing cases finding

15 Although Davis vaguely alleged in the Amended Complaint that she was “regarded as”

disabled (Doc. 30 ¶ 41), she did not respond to SeaWorld’s argument that she failed to plausibly

that the discrimination as alleged was on the basis of race, not disability, as when a

disabled individual of a different race was provided an accommodation denied to the

disabled plaintiff)).

Davis responds that her “complaint is based [on] her disability as well as a

separate cause of action based [on] race”; in other words, she is pleading disability

discrimination and race discrimination as alternative theories of recovery. (Doc. 34

at 8). She argues that she was “continuously questioned” about her disability until

she left the Killer Whale show and “race may have also played a factor” but “her

race was not the primary factor as to her being questioned about her disability.” (Id.).

Arguing that she has stated a disability claim, she alleges that SeaWorld’s employees

did not “communicate with” her “effectively” and instead, “she was more or less

accused of not being disabled”; she “received poor service because of her disability”;

and even though she “advised at least two employees that she was disabled [she] was

continuously questioned and harassed.” (Id. at 9). Even though “Davis was entitled

to receive the same benefit as the other disabled patrons,” she alleges that “she was

not afforded this opportunity.” (Id.).

Davis’s Amended Complaint is not a model of clarity. But she alleges at the

outset that she is suing SeaWorld for “discrimination based on [her] disability and

race pursuant to Title III of the American [sic] Disabilities Act of 1990 . . .[and]

Title II of the Civil Rights Act.” (Doc. 30 at 1 (emphasis added)). In Count I, Davis

“harassed” with repeated questioning (id. ¶¶ 42-43, 45). The crux of Davis’s

disability claim boils down to this theory of the case, which she explains in her

Response:

Davis by walking in and sitting in the disabled persons section . . .

directly identified herself as a disabled person to the [SeaWorld

employees] at which time [they] should not have questioned her about

her disability. Furthermore, even if the court finds that the questioning

of Mrs. Davis was reasonable, Mrs. Davis never indicated that she was

not disabled nor held herself out as not disabled when questioned. Mrs.

Davis immediately advised that she was in fact disabled and the

questioning should have ceased at that point to allow Mrs. Davis to

enjoy the full benefits of the section and show. In addition, once Mrs.

Davis advised that she was a disabled person [then] she was entitled to

all of the benefits of a disabled person and unfortunately, she was not

able to enjoy the benefits, because she left the show [prematurely] after

being harassed, embarrassed, and humiliated.

(Id. at 10) (emphasis added). Davis essentially argues that SeaWorld employees

violated the ADA and its implementing regulations by questioning whether she was

disabled multiple times in the space of just a few minutes, even though she

“identified herself as a disabled person” by choosing to “sit[] in the disabled” section

and remaining there after the first employee pointed it out to her.

However, because SeaWorld (understandably) focused its argument on

Davis’s allegations in the Amended Complaint that she was singled out for

questioning of her disability on the basis of race, and Davis failed to sufficiently

allege in the Amended Complaint her disability discrimination claim as more fully

fleshed out in her Response (in the quoted material above), neither side has

“verification” or questioning of a disabled person without a visible mobility device,

such as a wheelchair or walker, who sits in a disabled section violates the ADA.

Under the applicable regulations, a public-accommodation employee’s

questioning of the “nature” or “extent” of a disabled person’s disability violates the

ADA:

The ADA is implemented and enforced through regulations enacted by

the Department of Justice. 42 U.S.C. § 12186(b). For Title III of the

ADA which relates to public accommodations, such regulations are

codified at 28 C.F.R. §§ 36.101 et seq. The Department of Justice’s

implementing regulations are entitled to deference. Bragdon v. Abbott,

524 U.S. 624, 646, 118 S. Ct. 2196, 2208, 141 L.Ed.2d 540 (1998);

Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir. 1996) (noting

that regulations promulgated by the Department of Justice interpreting

the ADA are entitled to “considerable weight”). “A public

accommodation shall not ask about the nature or extent of a person’s

disability.” 28 C.F.R. § 36.302(c)(6) (with two exceptions related to

service animals not relevant here). This “regulation thus protects

individuals with disabilities from possibly unwanted questioning.”

Cordoves v. Miami-Dade Cty., 104 F. Supp. 3d 1350, 1356 (S.D. Fla.

2015).

A.L. by & through D.L. v. Walt Disney Parks & Resorts US, Inc., 469 F. Supp. 3d

1280, 1308 (M.D. Fla. 2020), aff’d, 50 F.4th 1097 (11th Cir. 2022); Garneaux v Kym

Ventures LLC, No. 1:16-cv-3012-AT, 2018 WL 8131765 (N.D. Ga. Sept. 6, 2018)

(“Specifically, the ADA regulation [§ 36.302(c)(6)] provides that a ‘public

accommodation shall not ask about the nature or extent of a person’s disability’”).

Sea World also argues that it could not have discriminated against Davis on

the basis of her disability because its employees had “no knowledge of her disability”

15). SeaWorld cites Salyer v. AmSouth Bank as finding plaintiff’s claims for

disability harassment failed in part because some of the alleged discriminatory

actions took place before the defendant-employer knew that the employee had a

disability. 2007 WL 9723547, at *11 (M.D. Fla. Apr. 18, 2007). Davis argues the

facts of Salyer are inapposite because the plaintiff-employee failed to identify herself

to her employer as disabled at the time she was hired.

While it is true that, in general, a defendant will not be held to have

discriminated against a disabled person solely on the basis of a disability if the

defendant knew nothing about the disability,16 Davis argues that by virtue of her

choosing to sit in the disabled section at SeaWorld, when most of her family sat in

the closer “Splash Zone” section, she was communicating through her actions that

she had a disability and was entitled to sit in the disabled section. The Salyer decision

is also easily distinguished in that the disabled employee was suing under a different

provision of the ADA dealing with discrimination in employment (Title I), where an

employee may choose to keep the disabling condition private and not share the

information with the employer, and this will negate the employer’s liability, which

is limited to discrimination related to “known” or obvious disabilities.17

16 See Hendricks v. Stepp, No. CA3:08-3299-CMC-PJG, 2009 WL 2224524, at *5 (D.S.C.

July 22, 2009), aff'd, 360 F. App’x 447 (4th Cir. 2010) (holding that where there was no allegation

that the defendant knew about the plaintiff’s alleged disability, the defendant could not have

discriminated against the plaintiff “because of” the disability).

17Dudley, 333 F.3d at 309 (recognizing this difference in “obviousness” between the

The First Circuit in Dudley v. Hannaford Brothers Company, explained that

“the obviousness” of an individual’s disability is not relevant to the requirements

under Title III in public accommodations:

Title III offers no incentive for an individual to conceal his or her

disability. The operative provision, 42 U.S.C. § 12182(b)(2)(A)(ii),

requires a person with a disability to request a reasonable and necessary

modification, thereby informing the operator of a public

accommodation about the disability. It would be pointless to impose

upon the plaintiff the burden to inform the public accommodation’s

operator of his disability but then exempt the operator, by judicial fiat,

from accommodating disabilities that are not obvious. Congress did not

place a limitation on the reach of Title III based on the obviousness of

an individual's disability, and it would be a usurpation of congressional

authority for us to do so here. For these reasons, we hold that the

obviousness vel non of an individual’s disability has no relevance to

the mandates of Title III.

333 F.3d 299, 309 (1st Cir. 2003) (emphasis added).

Thus, based on the facts as alleged in Davis’s Response, the employees’

“verification” as to whether she should be seated in the disabled section plausibly

relates to the “nature or extent” of her disability, which did not require her to use a

visible assistive device, such as a wheelchair. The facts as alleged by Davis are that,

once she was seated in the disabled seating area, the lead/supervisory SeaWorld

employee (Kevin) stated that: (1) it was the employees’ job “to verify” that people

sitting in the designated area “were disabled”; and (2) “You do not look disabled and

you cannot sit here.” Davis’s allegations, read in the light most favorable to her at

the motion to dismiss stage, plausibly allege a violation of the ADA and regulations

that preclude a public accommodation from asking “about the nature or extent of a

person’s disability.” See 28 C.F.R. § 36.302(c)(6); cf. id. § 36.302(f) (“Ticketing” .

. . “A public accommodation may not require proof of disability, including, for

example, a doctor’s note, before selling tickets for accessible seating.”).

Moreover, Davis adequately alleged in the Amended Complaint that

employees “verified” her disabled status not one time, but three separate times—

even after she told the lead employee that she was disabled, other employees asked

her two more times—and the lead employee allegedly disputed whether she was

disabled, saying she “did not look disabled.” She alleges this repeated questioning

“humiliated and embarrassed” her leading her to leave the show prematurely.18

In the context of an ADA-Title III dispute involving a service animal, the

district judge recognized that while a single question regarding the animal’s “task or

function” was legitimate under the regulation, such questions could become

discriminatory if repetitive and suggest a pretext for discrimination:

Clearly an inquiry would cease to be legitimate if it was used to harass

or discourage people with disabilities from availing themselves of

public accommodation. In this way, unduly repetitive questioning, after

an adequate answer has been given, could suggest a pretext for

discrimination, constituting an illegitimate inquiry.

18 The Court’s determination that Davis plausibly alleges an ADA claim at this stage does

Dilorenzo v. Costco Wholesale Corp., 515 F. Supp. 2d 1187, 1194 (W.D. Wash.

2007) (ultimately holding that the inquiry regarding the animal did not exceed the

boundaries of legitimate inquiry under the ADA); cf. Garneaux, 2018 WL 8131765

(denying summary judgment to restaurant where disabled veteran with PTSD and

anxiety testified that employees refused admission to her because “she didn’t look

handicapped” and she “did not need the [service] dog,” along with other dismissive

conduct). Because the repeated questioning by SeaWorld’s employees in this case

could plausibly relate to the “nature or extent” of her disability or suggest a pretext

for discrimination, Davis plausibly states an ADA claim as long as these allegations

are incorporate into an amended pleading.

In summary, as her claims are currently presented in the Amended Complaint,

Davis fails to state a viable claim under Title III of the ADA because, as she

concedes, she failed to allege how specifically she is substantially limited in a major

life activity as required to state an ADA claim. She also clarifies in her Response

that she is alleging that SeaWorld discriminated against her based on her disability.

Because her allegations, included in an amended pleading, would plausibly state a

claim under the ADA, her claim will be dismissed without prejudice with leave to

amend and correct these omissions.

C. Injunctive Relief

SeaWorld argues that Davis’s claims for monetary relief under both the ADA

damages are not available under either statute.19 (Doc. 33 at 17-18). Davis did not

respond to this argument, and SeaWorld is correct.

Although Davis will be granted leave to amend her ADA and CRA claims,

she cannot recover money damages, only injunctive relief because neither statute

allows a private right of action for money damages. Under the ADA, “[m]onetary

damages are only available if the civil action is initiated by the Attorney General.”

Jairath v. Dyer, 154 F.3d 1280, 1283 (11th Cir. 1998) (holding that the plaintiff

could only pursue injunctive relief because a private right of action for damages does

not exist under the ADA) (citing 42 U.S.C. §§ 12188(a)(2) & 12188(b)(2)(B)); see

also A.L. by & through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270,

1290 (11th Cir. 2018) (noting that Title III of the ADA provides only prospective

injunctive relief for violations and not damages for past discrimination or past

remedied violations); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1329

(11th Cir. 2013) (injunctive relief is the only form of relief available to plaintiffs

suing under Title III of the ADA).

Similarly, only injunctive relief is available under Title II of the Civil Rights

Act of 1964. Zinman v. Nova Se. Univ., Inc., No. 21-13476, 2023 WL 2669904, at

*4 (11th Cir. Mar. 29, 2023) (student’s claim for damages under Title II failed

because such damages are not available under section 2000a) (citing Newman v.

Piggie Park Enters., Inc., 390 U.S. 400, 401–02 (1968)); see also Houston, 733 F.3d

at 1329 (noting Title II of the Civil Rights Act of 1964 allows a private right of action

for only injunctive relief for violations).

Additionally, to be entitled to injunctive relief, an ADA plaintiff must

demonstrate “a sufficient likelihood that [s]he will again be wronged in a similar

way” in the future. See City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct.

1660, 1665, 75 L.Ed.2d 675 (1983). A plaintiff pursuing “injunctive relief in federal

court must plead a genuine threat of imminent injury.” Houston, 733 F.3d at 1329

(citation omitted). Thus, in order to warrant injunctive relief, Davis must allege that

that she intends to return to SeaWorld and that there is a sufficient likelihood that

she would be treated similarly.

CONCLUSION

Based on the foregoing, it is ordered as follows:

1. Defendant SeaWorld Parks and Entertainment, Inc.’s Motion to

Dismiss Plaintiff’s Amended Complaint (Doc. 33) is GRANTED IN PART and

DENIED IN PART as follows:

a. Plaintiff’s claim for discrimination under the Florida Civil Rights

Act is dismissed with prejudice for the reasons set forth above.

b. Plaintiff’s claim for race discrimination under Title II of the Civil

Rights Act of 1964 is dismissed without prejudice with leave to

replead: (1) as a separate count; and (2) with supporting facts

indicating she has exhausted administrative remedies.

c. Plaintiff's ADA claim is dismissed without prejudice with leave to

replead facts in support that: (1) she has a disability that

substantially limits a major life activity as defined under the ADA;

and (2) set forth a sufficient basis to support a claim for disability

discrimination as explained above.

2. Plaintiff's demand under Title II of the Civil Rights Act and Title II of

the ADA for money damages is dismissed with prejudice.

3. Plaintiff Davis is ORDERED to file the second amended complaint

within 14 days. Failure to timely file the second amended complaint

will result in dismissal of the case without prejudice for failure to

prosecute diligently under M. D. Fla. Local Rule 3.10.

4. Defendant’s Answer is due within 14 days of the filing of any second

amended complaint.

DONE and ORDERED in Chambers, in Orlando, Florida on July 25, 2023.

Macs Corssug

United States Distt Judge J!

Copies furnished to:

Counsel of Record