BARGOOT v. The School District of Palm Beach County

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-80849-CIV-MATTHEWMAN

GABRIELLE BARGOOT,

Plaintiff,

vs.

THE SCHOOL BOARD OF PALM BEACH COUNTY,

Defendant.

___________________________________/

ORDER ON DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT OR, IN

THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT [DE 18]

THIS CAUSE is before the Court upon Defendant, School Board of Palm Beach County’s

(“Defendant”) Motion to Dismiss Amended Complaint or, in the Alternative, Motion for More

Definite Statement (“Motion”) [DE 18]. The Motion is fully briefed and ripe for review. See DE

21-22. The Court has carefully considered the Motion and is otherwise fully advised in the

premises.

I. Background

On July 19, 2021, Plaintiff, Gabrielle Bargoot (“Plaintiff”), filed the Amended Complaint

after Defendant filed a motion to dismiss the original complaint. [Am. Compl., DE 12]. The

Amended Complaint was brought pursuant to the American with Disabilities Act, 42 U.S.C.

§§ 12101, et seq. as amended (“ADAAA”) 1 and 42 U.S.C. § 1983 (“§ 1983”). [Am. Compl. ¶ 2].

1 The ADAAA, which was enacted by Congress in 2008 to “reinstat[e] a broad scope of protection to be

available under the ADA [,]” PL 110–325, September 25, 2008, 122 Stat. 2553, at Section 2(b)(1) (emphasis added),

does not establish a cause of action separate from the ADA. “The ADAAA merely broadens the scope of protection

available to plaintiffs under the ADA by redefining particular terms such as ‘disability’ and ‘major life

activities.’” Snider v. U.S. Steel-Fairfield Works Med. Dep't, No. 2:12-CV-03508-AKK, 2013 WL 1278973, at *3

(N.D. Ala. Mar. 26, 2013), aff'd, 591 F. App'x 908 (11th Cir. 2015).

According to the allegations in the Amended Complaint, Plaintiff “found herself at the center of a

hostile work environment as part of a scheme orchestrated by the Defendant to unlawfully

terminate Ms. Bargoot” and “Defendant’s false and misconceived notions of Ms. Bargoot’s

physical capabilities and faculties wholly guided their unlawful decision and treatment of Ms.

Bargoot.” [Am. Compl. ¶¶4-5].

Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(e) to dismiss

the Amended Complaint because it is an improper shotgun type pleading; Defendant cannot be

held liable under a theory of respondeat superior, and, therefore, Count I should be dismissed;

Plaintiff cannot maintain claims under both § 1983 and Title I of the ADAAA; she failed to state

a claim for disparate treatment based on disability under the ADAAA; she failed to state a claim

for Counts III, IV, and V; and her claims for punitive and compensatory damages under the

ADAAA or ADA should be stricken. [DE 18].

II. Legal Standard

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme

Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement

to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of

a cause of action will not do. Factual allegations must be enough to raise a right to relief above the

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations

omitted).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quotations and citations omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible

claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss,

the Court must accept all of the plaintiff’s allegations as true in determining whether a plaintiff has

stated a claim for which relief could be granted.

III. Discussion

A. Whether the Amended Complaint Fails to Comply with General Pleading Requirements

As an initial matter, Defendant contends that the Amended Complaint is the “type of

shotgun pleading style that this, and other federal courts, routinely dismiss.” [DE 18 at 2].

Defendant also argues that “for each of Plaintiff’s claims (Counts 1 through 5), Plaintiff has done

nothing more than set forth the elements of each claim with conclusory statements, without any of

the factual support necessary to state a claim for relief.” Id. at 2-3.

In response, Plaintiff argues that the Amended Complaint is not an improper shotgun

pleading and points out that Defendant was able to identify each claim asserted in its Motion to

Dismiss. [DE 21 at 13-14]. Plaintiff asserts that the Amended Complaint “provides Defendant with

an extensive factual history” and that reincorporating allegations is necessary “to ensure that

Plaintiff’s Amended Complaint provides a proper fact specific frame from which the Defendant

can provide a defense.” Id. at 14. She further argues that each count “specifically references the

relevant facts from the general statement of facts in support of each claim Ms. Bargoot asserts

against Defendant PBC” and that all of her claims “stem from the same interconnected

misconduct.” Id.

Federal Rule of Civil Procedure 8 requires a complaint to provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“‘Shotgun’ pleadings are cumbersome, confusing complaints that do not comply with these

pleading requirements.” See Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321–23

(11th Cir. 2015). “Courts in the Eleventh Circuit have little tolerance for shotgun pleadings.” Vibe

Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018). There are four basic types of

shotgun pleadings: (1) those in which each count adopts the allegations of all preceding counts;

(2) those that are simply replete with conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action; (3) those that do not separate each cause of action or

claim for relief into different counts; and (4) those that assert multiple claims against multiple

defendants without specifying which applies to which. See Weiland, 792 F.3d at 1321–23

(quotations omitted); see also Strategic Income Fund, LLC. v. Spear, Leeds & Kellogg Corp., 305

F.3d 1293, 1295 (11th Cir. 2002). Shotgun pleadings make it “virtually impossible to know which

allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Trs.

of Cent. Fla. Cmty. College, 77 F.3d 364, 366 (11th Cir. 1996).

The Court has carefully reviewed the Amended Complaint in this case. While Plaintiff does

reincorporate the allegations in the previous paragraphs within each count, the Court finds that the

Amended Complaint clearly puts Defendant on notice regarding which factual allegations are

intended to support which claims for relief. Moreover, the counts are distinctly pled and are clearly

separated. Plaintiff is correct that it would be wasteful and unnecessarily verbose to re-list every

relevant fact in each count in this case since the same body of facts applies to every count. Finally,

upon careful review of the Amended Complaint, the Court rejects Defendant’s argument that it

simply contains conclusory statements without any factual support. Moreover, this same argument

is dealt with below in regard to each individual count. Finally, the Court notes that, as Plaintiff

pointed out, the Amended Complaint was clear enough that Defendant was able to draft a cohesive

motion to dismiss on each count.

B. Count I

Count I of the Amended Complaint alleges violation of 42 U.S.C. § 1983, “Fourteenth

Amendment Equal Protection Clause Disability Discrimination.” [Am. Compl. ¶¶ 57-83].

Defendant makes two primary arguments as to Count I. First, it contends that it cannot be liable

under a theory of respondeat superior. [DE 18 at 3-5]. Second, Defendant argues that Plaintiff

cannot maintain a claim of action under both § 1983 and Title I of the ADAAA. Id. at 5-6. Plaintiff

does not respond to either of these arguments in her response. Defendant requests in its reply that

the Court find that Plaintiff has abandoned Count I and dismiss Count I with prejudice. [DE 22 at

1-2].

In Count I, the Amended Complaint alleges that, “[a]t all times relevant, Defendant, by and

through its employees, intended to unlawfully discriminate against Ms. Bargoot in the terms and

conditions of her employment because of her disability, and Defendant did unlawfully discriminate

against Ms. Bargoot in the terms and privileges of her employment because of her disability in

violation of the 1983.” [Am. Compl. ¶ 65]. It further alleges that “[t]he discriminatory actions of

Defendant against Plaintiff, as described and set forth above, constitute an adverse employment

action for purposes of the 1983. In subjecting Plaintiff to adverse employment action on the basis

of her disability, Defendant intentionally discriminated against Plaintiff with respect to the

compensation, terms, conditions, or privileges of her employment.” Id. at ¶ 66. The balance of the

allegations in Count I pertain to Plaintiff’s request for accommodation, Defendant’s failure to

provide it to her, Defendant’s alleged retaliation against Plaintiff, and Defendant’s unlawful

discrimination practices.

In Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1531 (11th Cir. 1997), the Eleventh

Circuit explained as follows:

[B]oth the Rehabilitation Act and the ADA provide extensive, comprehensive

remedial frameworks that address every aspect of Holbrook's claims under section

1983. To permit a plaintiff to sue both under the substantive statutes that set forth

detailed administrative avenues of redress as well as section 1983 would be

duplicative at best; in effect, such a holding would provide the plaintiff with two

bites at precisely the same apple. We conclude that a plaintiff may not maintain

a section 1983 action in lieu of-or in addition to-a Rehabilitation Act or ADA cause

of action if the only alleged deprivation is of the employee's rights created by the

Rehabilitation Act and the ADA.

Additionally, “the Eleventh Circuit has held that the comprehensive remedial framework of the

ADA forecloses an action under section 1983 based solely on rights created by the ADA.” Parker

v. Dezzi, No. 8:21-CV-1459-TPB-SPF, 2021 WL 5395958, at *5 (M.D. Fla. Nov. 18, 2021)

(quoting McNa v. Communications Inter-Local Agency, 551 F. Supp. 2d 1343, 1348 (M.D. Fla.

2008)); see also Fontaine v. Inch, No. 20-CV-23438, 2021 WL 1165353, at *1 (S.D. Fla. Mar. 26,

2021) (“[A]n ADA claim raised in a § 1983 action can only survive screening if the conduct

alleged to violate the ADA also violates the Plaintiff's constitutional rights.”).

In light of the relevant law, it is clear to the Court that Count I should be DISMISSED

WITH PREJUDICE. Plaintiff’s § 1983 claim is premised solely on rights created by the ADA.

Moreover, Plaintiff failed to make any argument to the contrary in her response and has thus

waived any such argument and abandoned Count I. Because Count I is being dismissed with

prejudice, there is no need to analyze Defendant’s respondeat superior argument.

C. Count II

Count II of the Amended Complaint involves allegations of discrimination under the

ADAAA (disparate treatment). [Am. Compl. ¶¶ 84-104]. Defendant argues that Count II “cannot

stand as Plaintiff has failed to identify a similarly situated employee outside of her protected class

who was treated differently.” [DE 18 at 6]. Defendant also maintains that “[w]hile Plaintiff has

alleged that she suffered an adverse employment action, she merely puts forth a conclusory

statement that she was ‘otherwise qualified to perform the essential functions of her job with or

without a reasonable accommodation.’” Id. at 8. According to Defendant, Plaintiff also failed to

allege “who the decision-maker was or that the decision-maker was aware of her disability at the

time of the adverse action.” Id.

In response, Plaintiff asserts that her allegations in Count II are sufficiently pled in light of

the relevant law. [DE 21 at 6-8].

In reply, Defendant argues that “the Court should dismiss Count 2 of Plaintiff’s Amended

Complaint for failure to state a claim by pleading a similarly situated comparator.” [DE 22 at 3].

In order to plead a prima facie case of disability discrimination based

upon disparate treatment, Plaintiff must allege facts plausibly showing that: 1) she was a member

of a protected class (i.e., disability); 2) she was subjected to an adverse employment action; and 3)

her employer treated similarly situated employees outside the protected class differently or more

favorably. Robinson v. Wellstar Atlanta Med. Ctr., Inc., No. 1:19-CV-2244-SDG-JFK, 2019 WL

12448605, at *11 (N.D. Ga. Nov. 4, 2019), report and recommendation adopted, No. 1:19-CV-

2244-SDG-JFK, 2020 WL 10227468 (N.D. Ga. Jan. 21, 2020).

The Eleventh Circuit issued a recent opinion regarding the necessity of pleading a similarly

situated comparator and explained, “[w]e have noted before that ‘discrimination is a comparative

concept—it requires an assessment of whether like (or instead different) people or things are being

treated differently.’” Shelley v. Wesleyan Coll., No. 21-10264, 2021 WL 4553021, at *3 (11th Cir.

Oct. 5, 2021) (quoting Lewis v. City of Union City, 918 F.3d 1213, 1223 (11th Cir. 2019) (en

banc) (internal quotations omitted)). “To prove that an employer treated a similarly-situated

individual outside the employee’s protected class more favorably, the employee must show that

she and her proffered comparators were ‘similarly situated in all material respects.’” Id.

“Generally, a similarly-situated comparator will engage in the same basic conduct as the plaintiff,

will be subject to the same policies, will have the same supervisors, and will share the plaintiff's

employment or disciplinary history.” Id.; see also Ziyadat v. Diamondrock Hosp. Co., 3 F.4th

1291, 1296 (11th Cir. 2021).

The cases relied on by Plaintiff in her response are outdated and inapplicable. See DE 21

at 8. Thus, Count II of the Amended Complaint is deficient for failing to allege a similarly situated

comparator. See Rebalko v. City of Coral Springs, No. 19-60569-CIV, 2020 WL 6446042, at *26

(S.D. Fla. Nov. 3, 2020). However, Count II is DISMISSED WITHOUT PREJUDICE to Plaintiff

remedying this deficiency, if she can do so. Because the Court is dismissing Count II without

prejudice, there is no need to analyze Defendant’s arguments that Count II contains conclusory

statements or that Plaintiff failed to allege who the decision-maker was or that the decision-maker

was aware of her disability at the time of the adverse action.

D. Count III

Count III of the Amended Complaint involves allegations of discrimination under the

ADAAA (hostile work environment). [Am. Compl. ¶¶ 105-118]. In its Motion, Defendant argues

that Plaintiff “has not alleged any facts in her Amended Complaint to demonstrate that any action

was taken against her because of or based on her protected expression or disability.” [DE 18 at 9].

Defendant also contends that Plaintiff has “not alleged that she engaged in protected expression;

instead, she relies on conclusory allegations which are insufficient to withstand the School Board’s

Motion to Dismiss.” Id. Defendant further maintains that the Amended Complaint does not allege

any causation or ultimate fact showing any conduct was severe and pervasive

between Plaintiff’s disability and her low evaluation score or termination.

Similarly, there are no specific factual allegations demonstrating alleged

harassment, that the alleged harassment was based on Plaintiff’s disability, that the

alleged harassment was severe and pervasive to alter the terms and conditions of

employment…, or that the termination was connected to her disability or a hostile

work environment.

Id. at 9-10.

In response, Plaintiff asserts that “[t]aken together, Defendant’s action clearly interfered

with Ms. Bargoot’s ability to perform her work. Moreover, Defendant’s frequency and severity of

discriminatory conduct created a hostile work environment for Plaintiff and resulted in her

unlawful termination in violation of the ADA.” [DE 21 at 11].

In reply, Defendant argues that “Plaintiff has not presented any facts to support the

contention that her workplace was permeated with the forementioned conduct. Instead, [P]laintiff

has alleged conclusory allegations couched as facts.” [DE 22 at 3].

A plaintiff alleging a claim based on a hostile work environment must show that “the

workplace is permeated with discriminatory intimidation, ridicule, and insult that are sufficiently

severe or pervasive to alter the conditions of employment and create an abusive work

environment.” Walls v. Lowe's Home Centers, LLC, 789 F. App'x 852, 853 (11th Cir. 2019). Here,

Plaintiff has pled that she “was subjected to unwelcome harassment based on her actual and/or

perceived disability” and that “Defendant, by and through its representatives, berated, humiliated,

and demeaned Plaintiff on a regular basis because of her disability.” [Am. Compl. ¶ 109]. She

further alleged that the conduct was “undoubtedly sufficiently severe and/or pervasive to alter the

terms and conditions of Plaintiff’s employment.” Id. at ¶ 111. She also pled that, at her first formal

evaluation, “Defendant’s employees, in retaliation for Plaintiff’s request for accommodation

provided Plaintiff an uncharacteristically low score, far worse than any of her previous

evaluations.” Id. at ¶ 114. She alleged that, because Defendant refused to implement her requested

accommodation, she fainted at work and was unable to attend her post-evaluation meeting. Id. at

¶ 116. Shortly thereafter, she was terminated. Id. at ¶ 117.

Viewing these allegations in a light most favorable to Plaintiff, the Court finds that she has

met her burden. Further, the issue of whether Plaintiff was subjected to sufficiently severe and

pervasive treatment to prove an ADAAA violation under a hostile work environment theory is a

matter better determined at summary judgment. Castillo v. Fisher Island Club, Inc., No. 20-24504-

CV, 2021 WL 2652725, at *2 (S.D. Fla. Mar. 24, 2021). Thus, the Motion is DENIED as to Count

III.

E. Count IV

Count IV of the Amended Complaint alleges retaliation in violation of the ADA. [Am.

Compl. ¶¶ 119-130]. In its Motion, Defendant contends that “Plaintiff has not sufficiently plead

any factual allegations to state a claim for retaliation under the ADA or ADAAA; therefore, Count

4 should be dismissed with prejudice.” [DE 18 at 10]. Defendant further contends that “Plaintiff

has not and cannot demonstrate that she engaged in protective activity” and has “not sufficiently

alleged a causal connection between the [adverse employment] action and the protested activity.”

Id. at 11.

In response, Plaintiff argues that the protected activity alleged is that Plaintiff’s mother, on

her behalf, called and discussed Plaintiff’s condition with Defendant’s employees. [DE 21 at 12].

She also reported the unlawful conduct to Defendant through her counsel. Id. Plaintiff also argues

that she has pled calculated acts to retaliate against her because she requested accommodation. Id.

at 13.

In reply, Defendant argues that the Amended Complaint is deficient in that it does not

contain any facts that “Plaintiff, during her term of employment…ever filed a formal complaint,

personally voiced a complaint to a superior, or used the employer’s internal grievance procedure

to report alleged discrimination.” [DE 22 at 4]. Defendant asserts that “[n]ot only did Plaintiff

herself not engage in protected activity, there is no causal link between the alleged protected

activity, and adverse action.” Id.

To state a retaliation claim under the ADA and ADAAA, the plaintiff must also allege that

(1) she was engaged in a statutorily protected activity; (2) she suffered an adverse employment

decision; and (3) the decision was causally related to the protected activity. Ramos v. Univ. of

Miami, No. 21-CV-22151, 2021 WL 4949160, at *5 (S.D. Fla. Oct. 25, 2021) (citing Powell v.

Space Coast Credit Union, No. 6:15-cv-550-Orl-22TBS, 2015 WL 9664963, at *4 (M.D. Fla. Dec.

23, 2015)). A statutorily protected activity for the purposes of an ADA retaliation claim is

“oppos[ing] any act or practice made unlawful by this chapter.” Id. (citing 42 U.S.C. § 12203(a)).

In the Amended Complaint, Plaintiff alleges that, in December 2019, her mother called two

of Defendant’s employees on Plaintiff’s behalf to discuss Plaintiff’s condition and recent injury

and requested an incident report. [Am. Compl. ¶ 40]. Shortly thereafter, Plaintiff’s evaluation was

cancelled. Id. at ¶ 42. When she did finally have her first formal evaluation, Plaintiff received an

uncharacteristically low score and was later terminated. Id. at ¶¶ 43, 46.

Viewing these allegations in the light more favorable to Plaintiff, Plaintiff’s mother calling

Defendant’s employees on behalf of Plaintiff was a statutorily protected activity, Plaintiff suffered

an adverse employment decision, and the decision was causally related to the protected activity.

While these facts may or may not support the retaliation claim at the summary judgment stage, the

factual allegations are sufficiently pled at the motion to dismiss stage. Therefore, the Motion is

DENIED as to Count IV.

F. Count V

Count V of the Amended Complaint alleges disability discrimination (failure to

accommodate) in violation of the ADA. [Am. Compl. ¶¶ 131-144]. Defendant argues in its Motion

that Plaintiff has “not sufficiently alleged that she is a qualified individual with a disability.” [DE

18 at 11]. Defendant further argues that she has failed to allege “what the essential functions of

her job were” and that “if provided with the requested accommodation that she could perform said

essential functions.” Id. at 12. Finally, Defendant contends that, due to the inconsistent facts

alleged in the Amended Complaint, it does not know “when its duty to provide a reasonable

accommodation would have been triggered.” Id.

Plaintiff responds that she has proven each of the essential elements of Count V. [DE 21 at

8-10]. According to Plaintiff, “Defendant made no efforts to accommodate Plaintiff, and instead,

terminated her employment because of her disability. Based on the foregoing, Plaintiff has met her

burden and established that Defendant, by and through its employees, failed to accommodate

Plaintiff in violation of the ADA.” Id. at 10.

In reply, Defendant maintains that “Plaintiff has failed to plead any factual content for the

court to draw a reasonable inference concerning the essential functions of her position as a teacher

at the time of her request for a reasonable accommodation.” [DE 22 at 6].

“[F]ailure to accommodate is an independent basis for liability under the ADA....If

establishing discrimination by failure to make reasonable accommodation, a plaintiff must merely

show that (1) [s]he was disabled, (2) [s]he was otherwise qualified, and (3) a reasonable

accommodation was not provided.” Alboniga v. Sch. Bd. of Broward Cty. Fla., 87 F. Supp. 3d

1319, 1337-38 (S.D. Fla. 2015) (citations omitted; emphasis in original); Datto v. Fla. Int'l Univ.

Bd. of Trustees, No. 1:20-CV-20360, 2020 WL 3963713, at *9 (S.D. Fla. July 13, 2020).

The Court has reviewed the allegations in the Amended Complaint in the light most

favorable to Plaintiff. She has sufficiently alleged that she is disabled. [Am. Compl. ¶¶ 27-29, 134-

36]. She has sufficiently alleged that she was otherwise qualified. Id. at ¶¶ 24-26, 47, 137. Finally,

she has sufficiently alleged that reasonable accommodation was requested and not provided. Id. at

¶¶ 30, 34-36, 40-46, 138-42]. The Court DENIES Defendant’s Motion as to Count V.

G. Defendant’s Motion to Strike Plaintiff’s Claim for Punitive and Compensatory Damages

Defendant asserts that the ADAAA does not allow for an award of punitive damages

against a government entity, such as a school board. [DE 18 at 13]. Defendant also argues that

Plaintiff cannot recover compensatory damages because, while she “asserts variations of the

allegation that Defendants intentionally discriminated against her,” she does not “allege any factual

basis for that conclusion.” Id. at 13-14.

In response, Plaintiff argues that “[a]s highlighted throughout Plaintiff’s Amended

Complaint, it is abundantly clear that Defendant, by and through its employees, intentionally

discriminated against Ms. Bargoot because of her disability.” [DE 21 at 15]. Plaintiff does not

respond to Defendant’s argument regarding the striking of punitive damages.

In reply, Defendant points out that, in her response, Plaintiff “fails to address the School

Board’s argument that she is not entitled to punitive damages. As stated above, by virtue of failing

to respond or address the argument, Plaintiff has conceded the argument; therefore, the Court

should strike the claim with prejudice from the Amended Complaint.” [DE 22 at 6].

First, the Court will STRIKE Plaintiff’s claim for punitive damages. Plaintiff failed to

respond to this portion of Defendant’s Motion and has thus abandoned and waived any argument

in opposition. Additionally, punitive damages are not permitted in this case. N.R. by Ragan v. Sch.

Bd. of Okaloosa Cty., Fla., 418 F. Supp. 3d 957, 993 (N.D. Fla. 2019) (citing Barnes v. Gorman,

536 U.S. 181, 187–88, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) (holding that punitive damages

may not be awarded in private suits brought under the ADA and the Rehabilitation Act)).

Second, to state a claim for compensatory damages under the ADA, “a private plaintiff

must show that the defendant acted ‘with discriminatory intent.’” Boynton v. City of Tallahassee,

650 F. App'x 654, 658 (11th Cir. 2016) (quoting McCullum v. Orlando Reg. Healthcare Sys., Inc.,

768 F.3d 1135, 1146–47 (11th Cir. 2014)). Defendant does not really dispute that Plaintiff has

alleged discriminatory intent; rather, it argues that the relevant allegations are conclusory in nature.

The Court has carefully reviewed the Amended Complaint and finds that there are factual

allegations, which are discussed above, that support a finding of discriminatory intent at this

motion to dismiss stage. Therefore, the Court DENIES Defendant’s request to strike Plaintiff’s

request for compensatory damages.

IV. Conclusion

Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion to

Dismiss Amended Complaint or, in the Alternative, Motion for More Definite Statement [DE 18]

is GRANTED IN PART AND DENIED IN PART, as follows.

1. Count I is DISMISSED WITH PREJUDICE.

2. Count II is DISMISSED WITHOUT PREJUDICE to Plaintiff filing a second amended

complaint on or before February 14, 2022 that is in full compliance with this Order.

3. The Motion is DENIED as to Counts III, IV, and V.

4. Plaintiff’s request for punitive damages is STRICKEN.

5. The Motion is DENIED as to Plaintiff’s request for compensatory damages.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,

Florida, this 1 day of February, 2022.

WILLIAM THEWMAN

United States Magistrate Judge

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