FORTUN v. IAERO THRUST LLC.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-23348-BLOOM/Otazo-Reyes

JOAN FORTUN,

Plaintiff,

v.

IAERO THRUST LLC.,

Defendant.

________________________________/

ORDER ON MOTION TO DISMISS

THIS CAUSE is before the Court upon Defendant iAero Thrust, LLC’s (“iAero”) Motion

to Dismiss Plaintiff’s Complaint, ECF No. [17] (“Motion”). Plaintiff Joan Fortun (“Fortun”) filed

a Response, ECF No. [20], and iAero filed a Reply, ECF No. [28]. The Court has carefully

considered the Motion, the Response, the Reply; the record in this case, the applicable law; and is

otherwise fully advised. For the reasons that follow, the Motion is granted in part.

I. BACKGROUND

This action stems from the termination by iAero of its former employee, Fortun, after he

contracted COVID-19. See generally, ECF No. [1]. Fortun alleges that he worked for iAero as a

mover and inspector. Id. at ¶ 15. On July 25, 2020, Fortun “began experiencing COVID-19

symptoms” and “felt sick with a sore throat and a fever.” Id. at ¶¶ 20-21. He informed iAero, which

“immediately told Plaintiff to get tested for COVID-19.” Id. at ¶ 22. Fortun then “waited for

COVID-19 results in self-isolation required by governmental order.” Id. at ¶ 24.

On July 29, 2020, Fortun told “Maria from Human Resources” that he had tested positive

for COVID-19. Id. at ¶ 25. The next day, Maria told Fortun that “his position was terminated and

to turn in his ID badge after recovering from COVID-19.” Id. at ¶ 26. Fortun contends that he was

“terminated by [iAero] as a result of his COVID-19 diagnosis.” Id. at ¶ 27.

Fortun asserts five causes of action: (1) discrimination under the Americans with

Disabilities Act (“ADA”); (2) violation of the Families First Coronavirus Response Act

(“FFCRA”); (3) discrimination under the Florida Civil Rights Act (“FCRA”); (4) retaliation under

the FFCRA; and (5) and retaliation in violation of the FCRA. Id. at ¶¶ 30-80. Fortun alleges that

he filed suit within 90 days of receiving a notice of the right to sue from the Equal Employment

Opportunity Commission (“EEOC”). ECF No [1] at ¶ 13.

In the Motion, iAero moves to dismiss all claims with prejudice for failure to state a claim.

ECF No. [17]. Fortun concedes to the dismissal of the FCRA claims but opposes dismissal of the

ADA and FFCRA claims. ECF No. [20]. iAero moves to dismiss the ADA claim on three grounds:

(1) the ADA claim is untimely because Fortun failed to file suit within 90 days of receiving the

EEOC notice; (2) the ADA claims exceed the scope of Fortun’s charge of discrimination; and (3)

Fortun does not have a qualifying disability under the ADA. ECF No. [17] at 6, 9-15. iAero moves

to dismiss the FFCRA claim on the ground that Fortun did not properly request paid sick leave

under the Emergency Paid Sick Leave Act (“EPSLA”). Id. at 16-17.

II. LEGAL STANDARD

A pleading in a civil action must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need

detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s

pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).

“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.’” Id. (quoting Twombly, 550 U.S. at

570).

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the

plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor

of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d

1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp.

2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts

“are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550

U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff’s Off., 449 F.3d 1342,

1352 (11th Cir. 2006). “[T]he court may dismiss a complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6) when, on the basis of a dispositive issue of law, no construction of the factual

allegations will support the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas

Dist., 992 F.2d 1171, 1174 (11th Cir. 1993) (citations omitted).

III. DISCUSSION

A. Timeliness of the ADA Claim

iAero acknowledges that Fortun alleges he filed suit within 90 days of receiving a notice

of right to sue from the EEOC (“EEOC Notice”). ECF No. [17] at 6. But iAero contends that

Fortun received the EEOC Notice on June 3, 2021, and brought this action 105 days later, on

September 16, 2021. Id. iAero attaches the EEOC Notice to its motion to dismiss See ECF No.

[17-3].

Fortun responds that although the EEOC Notice is dated June 3, 2021, he did not receive

it until September 13, 2021. ECF No. [20] at 3. Fortun also represents he received an unsigned and

unfilled notice on June 3, 2021, which prevented him from filing his case. Id. at 4. Fortun then

summarizes several communications between his counsel’s office and the EEOC regarding the

EEOC Notice, id. at 3-4, none of which are pleaded in the complaint. See ECF No. [1].

When the EEOC dismisses an ADA claimant’s charge of discrimination, “the aggrieved

party may file a civil action against the employer ‘within ninety days’ after he receives the notice.”

Robbins v. Vonage Bus., Inc., 819 F. App’x 863, 866 (11th Cir. 2020) (quoting 42 U.S.C. § 2000e-

5(f)(1)). “Normally, the ‘receipt’ date that initiates the 90-day time limit is established by the

plaintiff’s actual receipt of the mailed notice letter from the EEOC.” Id. at 867. “When the date of

receipt is in dispute, we ordinarily presume that a mailing is received three days after its issuance.”

Id. But “this presumption does not apply if the plaintiff can show that receipt of the notice was

delayed through no fault of his own.” Id. (internal quotation marks omitted).

There is no bright-line rule to determine the date of actual receipt. See Kerr v. McDonald’s

Corp., 427 F.3d 947, 952 (11th Cir. 2005). Rather, timelines is analyzed “on a case-by-case basis

to fashion a fair and reasonable rule for the circumstances of each case, one that would require

plaintiffs to assume some minimum responsibility . . . without conditioning a claimant’s right to

sue . . . on fortuitous circumstances or events beyond [her] control.” Id. (cleaned up). Notably, the

Eleventh Circuit has instructed that plaintiffs have a “minimum responsibility . . . for an orderly

and expeditious resolution of their claims” and has “expressed concern over enabling complainants

to enjoy a manipulable open-ended time extension which could render the statutory minimum

meaningless.” Id. (cleaned up).

Here, although the parties disagree as to the exact receipt date of Fortun’s EEOC Notice,

the lack of clarity does not provide a ground for dismissal. iAero is correct that the Court may take

judicial notice of the EEOC Notice. See Novelus v. Hebrew Home Sinai, Inc., No. 1:11-CV-24447-

KMM, 2012 WL 2675478, at *2 n.2 (S.D. Fla. July 6, 2012). However, the EEOC Notice only

states the date of mailing, which does not start the 90-day clock. See Robbins, 819 F. App’x at 867.

Moreover, Fortun’s explanation regarding the mailing and receipt of the notice is not pleaded in

the Complaint and may not be considered at this stage. Nevertheless, Fortun has alleged that he

filed suit within 90 days of receipt of the EEOC Notice, ECF No [1] at ¶ 13, which allegation the

Court must accept as true at this juncture. See Miccosukee, 304 F.3d at 1084. The Court cannot

engage in the necessary case-by-case analysis at the motion to dismiss. See Kerr, 427 F.3d at 952

(determining timeliness on summary judgment); Robbins, 819 F. App’x at 867-69 (same).

B. Scope of Charge of Discrimination

iAero contends that Fortun identified Title VII in his charge of discrimination, but not the

ADA. ECF No. [17] at 10. Therefore, iAero contends that Fortun failed to exhaust his

administrative remedies with respect to his ADA claims. Id. iAero attaches to the Motion a copy

of Fortun’s Employment Complaint of Discrimination before the Florida Commission on Human

Relations (“FCHR”). ECF No. [17-1] (the “Charge”).

Fortun responds that his Charge “checked off that his cause of discrimination was based

on disability/handicap.” ECF No. [20] at 6. Fortun also states that iAero made the same arguments

before the FCHR as it does before this Court, “something [it] would not had needed to do if the

ADA was never mentioned in [the] charge of discrimination.” Id. Fortun further argues that he

“checked off the box for disability discrimination in his Florida Commission on Human Relations’

Technical Assistance Questionnaire for Employment Complaints.” Id.

Prior to filing suit under the ADA, a plaintiff must exhaust his administrative remedies by

filing a charge with the EEOC. See 42 U.S.C. § 12117(a) (applying Title VII procedures to ADA);

Booth v. City of Roswell, 754 F. App’x 834, 836 (11th Cir. 2018). However, such exhaustion is not

required “in all situations, recognizing that literal compliance does not always effectuate the

purpose of the requirement, which is to promote informal settlements.” Wu v. Thomas, 863 F.2d

1543, 1547 (11th Cir. 1989). Indeed, “[o]ne such area in which . . . strict compliance . . . is

unnecessary is where the plaintiff has filed a charge with the EEOC, but in [his] judicial action the

plaintiff raises related issues as to which no filing has been made.” Id. at 1547. “As long as

allegations in the judicial complaint and proof are ‘reasonably related’ to charges in the

administrative filing and ‘no material differences’ between them exists, the court will entertain

them.” Id. (quoting Ray v. Freeman, 626 F.2d 439, 443 (5th Cir. 1980)). Therefore, “[j]udicial

claims which serve to amplify, clarify, or more clearly focus earlier EEO complaints are

appropriate[, while] [a]llegations of new acts of discrimination, offered as the essential basis for

the requested judicial review are not appropriate.” Id.

In this case, Fortun’s Charge indicates that the cause of discrimination is based on

disability/handicap, see ECF No. [17-1] at 1. In the narrative statement section of the Charge,

Fortun states that he believes he was discriminated against under Title VII because of his suffering

from COVID, which is also the basis for his ADA claim alleged in the Complaint. Properly viewed,

the Complaint does not raise new acts of discrimination, but rather, raises an additional potential

basis for liability. As such, the Court does not agree that the Complaint should be dismissed simply

because the Charge fails to mention the ADA.

C. Qualifying Disability

iAero argues next that Fortun fails to state a cause of action for discrimination under the

ADA because he did not have a qualifying disability. Plaintiff responds that he has sufficiently

alleged that Defendant perceived him as having COVID-19, and that COVID-19 is an impairment

that is not transitory and minor.

Under the ADA, a plaintiff must establish the following three elements for a prima facie

case: (1) the plaintiff “has a disability”; (2) the plaintiff is a “qualified individual”; and (3) the

plaintiff was discriminated against because of a disability. Holly v. Clairson Indus., L.L.C., 492

F.3d 1247, 1255-56 (11th Cir. 2007). Under the ADA, a “disability” includes a “physical or mental

impairment that substantially limits one or more major life activities of such individual; a record

of such an impairment; or being regarded as having such an impairment . . . .” 42 U.S.C.

§ 12102(1)(A)-(C). A “physical or mental impairment” is

[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical

loss affecting one or more body systems, such as neurological, musculoskeletal,

special sense organs, respiratory (including speech organs), cardiovascular,

reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic,

skin, and endocrine; or [a]ny mental or psychological disorder, such as an

intellectual disability . . ., organic brain syndrome, emotional or mental illness, and

specific learning disabilities.

29 C.F.R. § 1630.2(h).1 Major life activities “include, but are not limited to, caring for oneself,

performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42

U.S.C. § 12102(2)(A).

Furthermore, the ADA specifies that

[a]n individual meets the requirement of ‘being regarded as having such an

impairment’ if the individual establishes that he or she has been subjected to an

action prohibited under this chapter because of an actual or perceived physical or

mental impairment whether or not the impairment limits or is perceived to limit a

major life activity.

1 The Eleventh Circuit has endorsed the Code of Federal Regulations interpretation of impairment. See

Harris v. H & W Contracting Co., 102 F.3d 516, 520 (11th Cir. 1996).

42 U.S.C. § 12102(3)(A). However, a person is not “regarded as having such an impairment” if

the impairment is “transitory and minor. A transitory impairment is an impairment with an actual

or expected duration of 6 months or less.” 42 U.S.C. § 12102(3)(B). To state a “regarded as” claim,

a plaintiff must allege that “he was ‘regarded as’ disabled, he was a qualified individual, and that

a ‘covered entity’ discriminated against him ‘on account of’ his disability.’” Andrews v. City of

Hartford, 700 F. App’x 924, 926 (11th Cir. 2017) (citations omitted).

iAero argues that Plaintiff has not sufficiently alleged that he had a disability under the

ADA due to a physical impairment because he has alleged only that he felt sick with a sore throat

and fever. As a result, Defendant argues that Plaintiff’s alleged impairment is transitory and minor,

and does not substantially limit one or more of his major life activities. Plaintiff contends that

whether an impairment is transitory and minor is a question of fact and should not be resolved at

the pleading stage, and that Defendant misstates the requirements for a “regarded as” claim.

“When it enacted the [ADA Amendments Act of 2008 (“ADAAA”)], Congress indicated

that one of its purposes was to ‘convey that the question of whether an individual’s impairment is

a disability under the ADA should not demand extensive analysis.’” Mazzeo v. Color Resols. Int’l,

LLC, 746 F.3d 1246, 1268 (11th Cir. 2014) (citation omitted). Moreover, the implementing

regulations state that “[t]he primary purpose of the ADAAA is to make it easier for people with

disabilities to obtain protection under the ADA,” and that “the definition of ‘disability’ in this part

shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the

terms of the ADA.” 29 C.F.R. 1630.1(c). “In ‘regarded as’ cases, a plaintiff must show that the

employer knew that the employee had an actual impairment or perceived the employee to have

such an impairment at the time of the adverse employment action.” Equal Employment

Opportunity Comm’n v. STME, LLC, 938 F.3d 1305, 1316 (11th Cir. 2019).

Upon review, the facts alleged in the Complaint sufficiently allege a disability under the

ADA. In pertinent part, Fortun alleges that he “began experiencing COVID-19 symptoms,” and

he “felt sick with a sore throat and fever.” ECF No. [1] ¶¶ 20-21. Contrary to iAero’s contention,

Fortun need not allege that his impairment limited a major life activity. Indeed, following the

amendments to the ADA, “a person would meet the ‘regarded as having such an impairment’ prong

of the definition if he shows that he has been subjected to an action prohibited by the ADA on the

basis of an actual or perceived physical impairment, ‘whether or not the impairment limits or is

perceived to limit a major life activity.’” Andrews, 700 F. App’x at 926. Fortun also alleges that

he informed iAero, which directed him to get tested for COVID-19, that he informed Defendant

that he tested positive, and a day later he was told that his position was terminated. Id. at ¶¶ 22-26.

Fortun alleges he was terminated as a result of his COVID-19 diagnosis. Id. at ¶ 27. At the pleading

stage, these allegations are sufficient to state a claim under the ADA.

Moreover, the Court should not determine whether Fortun’s condition is transitory and

minor, since the Court accepts the allegations in the Complaint as true, and the nature of his

condition is an issue of fact. See e.g., Lewis v. Fla. Default Law Grp., P.L., No. 8:10-cv-1182-T-

27EAJ, 2011 WL 4527456, at *1 (M.D. Fla. Sept. 16, 2011) (concluding that impairment was

transitory and minor at summary judgment).

D. FFCRA Claims

iAero argues that Fortun fails to state a claim for violation of the FFCRA because he did

not properly provide the requisite information to iAero prior to taking paid sick leave, and he fails

to properly plead that he engaged in a protected activity because he did not take valid leave. Fortun

responds that he was only required to provide the necessary information as a soon as practicable.

Fortun also contends that he properly pleaded that he was engaged in a protected activity when he

experienced COVID-19 symptoms and was instructed by Defendant to seek a medical diagnosis

from a health care provider.

The FFCRA contains the EPSLA, which is modeled after the Fair Labor Standards Act

(“FLSA”), and is intended to provided paid leave and other benefits for various reasons related to

COVID-19. O’Bryan v. Joe Taylor Restoration, Inc., No. 20-cv-80993

DIMITROULEAS/MATTHEWMAN, 2021 WL 53281, at *1 n.1 (S.D. Fla. Jan. 6, 2021). Claims

regarding the failure to provide leave under the EPSLA and retaliation regarding paid sick leave

under the EPSLA are enforced under the FLSA. 29 C.F.R. §§ 826.150(b)(1)-(2).

In pertinent part, the EPSLA provides that

[a]n Employee is required to provide the Employer documentation containing the following

information as a soon as practicable, which in most cases will be when the Employee

provides notice under § 826.90:

(1) Employee’s name;

(2) Date(s) for which leave is requested;

(3) Qualifying reason for the leave; and

(4) Oral or written statement that the Employee is unable to work because of the

qualified reason for leave.

29 C.F.R. § 826.100(a). An employee must give notice to his employer of the need for leave. See

29 C.F.R. § 826.90(a)(1).

Here, iAero argues that Fortun failed to properly request leave under the regulations

because he did not provide the requisite information prior to taking leave, and such failure

precludes his FFCRA claims. However, the regulations do not support the strict application iAero

urges in this case. First, the regulations specify that “the Department encourages, but does not

require, Employees to notify Employers about their request for Paid Sick Leave or Expanded

Family and Medical Leave as soon as practicable.” 29 C.F.R. § 826.90(a)(1). In addition, “[i]f an

Employee fails to give proper notice, the Employer should give him or her notice of the failure

and an opportunity to provide the required documentation prior to denying the request for leave.”

Id. Furthermore, the regulations state that “[n]otice may not be required in advance, and may only

be required after the first workday (or portion thereof) for which an Employee takes Paid Sick

Leave.” 29 C.F.R. § 826.90(b). Whether or not Fortun properly requested leave is therefore not a

determination the Court should make at the dismissal stage.

Similarly, iAero’s request for dismissal of the FFCRA retaliation claim based on Fortun’s

failure to properly request leave fails. Specifically, iAero argues that Fortun failed to plead that he

engaged in a protected activity. Upon review, the Court disagrees.

The EPSLA specifies that “[i]t shall be unlawful for any employer to discharge, discipline,

or in any other manner discriminate against any employee who takes leave in accordance with this

Act[.]” Pub. L. No. 116-127 § 5104(1); see also 29 C.F.R. § 826.150(a). The EPSLA provides that

a full-time employee is entitled to 80 hours of paid sick time. § 5102(b). Furthermore, an employer

is required to provide paid sick time “[t]o the extent that Employee is unable to work due to a need

for leave because: . . . [t]he Employee is subject to a Federal, State, or local quarantine or isolation

order related to COVID-19; [or] is experiencing symptoms of COVID-19 and seeking medical

diagnosis[.]” § 5102(a)(1),(3); see also 29 C.F.R. § 826.20(a)(1)(i), (iii). In the Complaint, Fortun

alleges that he began to experience COVID-19 symptoms and informed iAero, who directed him

to be tested. ECF No. [1] ¶¶ 20-22. Fortun also alleges that he waited for his test result in self-

isolation required by governmental order, and that one day after informing iAero that he tested

positive, he was terminated. Id. ¶¶ 24-26. Therefore, Fortun has properly alleged a qualifying need

for leave. “[I]f an employee has a ‘need for leave’ . . . then [the EPSLA] protects [him] from

discrimination—regardless of whether []he is also qualified to receive paid sick time during that

leave.” Gracia v. Law Off. of Alexander E. Borell, P.A., 535 F. Supp. 3d 1268, 1270-71 (M. D.

Fla. 2021). “[A]s a textual matter, § 5104(1)’s use of ‘leave’ covers discharge or discrimination

Case No. 21-cv-23348-BLOOM/Otazo-Reyes

resulting from an employee’s request for all types of COVID-19-related absence, including, but

not limited to, absences accompanied by ‘paid sick leave.’” Jd. at 1272 (emphasis in original). As

such, taken as true, the allegations in the Complaint are sufficient. Whether or not Fortun in fact

properly requested paid leave is not an issue suitable for determination upon a motion to dismiss.

IV. CONCLUSION

For the foregoing reasons, the Motion, ECF No. [17], is GRANTED IN PART AND

DENIED IN PART. The FCRA claims are dismissed with prejudice. Defendant shall file an

Answer with respect to the remaining claims in the Complaint, no later than February 21, 2022.

DONE AND ORDERED in Chambers at Miami, Florida, on February 14, 2022.

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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