# BARGOOT v. The School District of Palm Beach County

> District Court, S.D. Florida · February 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10120112

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** February 1, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10120112

## How later opinions describe it (automated extraction)

- holding that punitive damages may not be awarded in private suits brought under the ADA and the Rehabilitation Act

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10120112. Public record. Not legal advice.