The opinion
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
Miami Division
"Case Number: 21-62052-CIV-MORENO
Hector Gonzalez,
Plaintiff,
Vs.
Real Hospitality Group, LLC,
Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Hector Gonzalez is suing his former employer, Real Hospitality Group, for disability
discrimination under the Americans with Disabilities Act and the Florida Civil Rights Act,
discrimination under the Genetic Information Nondiscrimination Act, and sex discrimination
- under Title VII and the Florida Civil Rights Act.
Before the Court is Real Hospitality Group’s Motion to Dismiss the Complaint for failure
to state a claim, (D.E. 9), filed on November 3, 2021. The Court has considered the motion, the
opposition, the reply, pertinent portions of the record, and being otherwise fully advised in the
premises, it is ADJUDGED that the motion is GRANTED. Counts I, II, and III are dismissed
with prejudice. Counts IV and V are dismissed without prejudice and with leave to amend. .
I. Background
Real Hospitality Group hired Gonzalez as an accounting manager in October 2019.
Gonzalez is a lung-transplant survivor and suffers from a condition called X-linked
Agammaglobulinemia (““XLA”). XLA is an immune disorder that reduces the body’s ability to
fight infections. As a result of the XLA, Gonzalez must undergo “expensive medical treatment,
constant care, and take a medicine called Hyqvia.” He also must “occasionally” attend doctor’s
appointments. .
Gonzalez alleges that Real Hospitality Group management required him to use his paid
time off to attend medical visits, while management did not require his coworkers, and in
particular his female coworkers, to do the same. Gonzalez also alleges that when he began to
inquire about the medical benefits that Real Hospitality Group offered, he learned that the
insurance on offer does not cover Hyqvia. Gonzalez therefore reached out to human resources to
explain the importance of the medication and to ask that it be covered. On February 25, 2020,
Gonzalez reached out to Alma Seidel in emer resources to ask about the medication, who told
him that she would “further inquire and follow up.” Seidel never did so. Then on March 9,
2020, Real Hospitality Group terminated Gonzalez. He filed this complaint six months later.
I. Legal Standard
Real Hospitality Group has moved to dismiss for failure to state a claim upon which
relief can be granted under Federal Rule of Civil Procedure 12(b)(6). In considering this motion,
the Court’s takes all well pled factual allegations as true and views them in a light most favorable
to the plaintiff. Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir. 2006). To
survive a 12(b)(6) motion, a complaint must contain sufficient factual matter that, accepted as
true, renders a claim for relief plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Naked legal assertions and unwarranted decuctions of fact not taken as true. Aldana v. Del
Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1246 (11th Cir. 2005).
5 .
Wl. Analysis
A. Sex Discrimination Claims. .
Counts IV and V contain Gonzalez’s sex discrimination claims.! There are generally
three ways to state a claim for sex discrimination. The plaintiff can either (1) plead direct
evidence of discrimination, (2) plead facts sufficient for a prima facie case under the McDonnell
Douglas framework, or (3) plead a “convincing mosaic” of circumstantial evidence that permits
an inference of intentional discrimimation. Lewis v. City of Union City, Georgia, 918 F.3d 1213,
1220 (11th Cir. 2019); id. at-n.6. Here, Gonzalez proceeds only under the McDonnell Douglas
framework. He therefore must plead (1) that he belongs to a protected class, (2) he was
subjected to an adverse employment action, (3) he was qualified to perform the job in question,
and (4) that his employer treated “similarly situated” employees outside his class more favorably.
Id, at 1220-21.
Real Hospitality Group argues that Gonzalez has failed to plead a prima facie case
because he has not sufficiently identified similarly situated employees that were treated more
favorably. On this prong, the plaintiff must point to comparators that are “similarly situated in
all material respects.” Lewis, 918 F.3d at 1226. As a general matter, a similarly situated
comparator is one that has engaged in the same conduct as the plaintiff, is subject to the same
workplace policies as the plaintiff, has the same supervisors as the plaintiff, and share’s the
plaintiffs employment and disciplinary history. See id. at 1227-28. Gonzalez’s complaint is
. deficient in this regard because the only information he provides about his comparators is that
they are “female” and “coworkers.” He pleads no other facts about the coworkers. Nor does
_! “Because the FCRA is modeled after Title VII, and claims brought under it are analyzed under
the same framework, the state-law claims do not need separate discussion and their outcome is
the same as the federal ones.” Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1271 (11th Cir.
2010) (internal citation omitted).
Gonzalez meaningfully respond to this argument in his opposition; he simply insists that his
current complaint identifies sufficient comparators. Counts IV and V are therefore dismissed
with leave to amend.
B. Genetic Information Nondiscrimination Act Claim
Count III alleges discrimination in volation of the Genetic Information Nondiscrimination
Act. Real Hospitality Group argues that this claim should be dismissed because that law only
prohibits discrimination based on “genetic information,” not “medical information” in general.
42 U.S.C. § 2000ff-1(a). Therefore, Real Hospitality Group say, the statute does not even apply
here.
While there is limited authority on this matter, the statutory text and existing caselaw
support Real Hospitality Group’s argument. The statute only prohibits discrimination “because
of genetic information” and defines “genetic information” as “genetic tests,” which are
“analys[es] of human DNA, RNA, chromosomes,” etc. See 42 □□□□
§ 2000f8(4)(A), 2000fF(7\(A). The statute says that an employer is not liable for the use of
“genetic information about a manifested disease.” Id. § 2000ff-9 (emphasis added). The Fifth
Circuit interprets this statutory language as distinguishing between discrimination based on
“medical information” and “genetic information.” See Ortiz v. City of con Antonio Fire Dep’t,
806 F.3d 822, 826 (Sth Cir. 2015). District courts in the Eleventh Circuit have interpreted it the
same way. See, e.g., Bell v. PSS World Med., Inc., 2012 WL 6761660, at *3 (M.D. Fla. Dec. 7,
_ 2012), report and recommendation adopted, 2013 WL 45826 (M.D. Fla. Jan. 3, 2013) (“The
basic intent of GINA is to prohibit employers from making a predictive assessment concerning
an individual’s propensity to get an inheritable genetic cieace or disorder based on the
occurrence of an inheritable disease or disorder in [a] family member.”); Jacobs v. Donnelly
Commce’ns, 2013 WL 5436682, at *5 (N.D. Ga. Sept. 27, 2013).
Gonzalez’s response is unconvincing: he asserts that since XLA is caused by a genetic
disorder, and Real Hospitality Group was aware of the XLA, it discriminated against him based □
on genetic information when it fired him. In so doing, he appears to mistakenly conflate the
difference between genetic information and medical information—the exact critique that Real
Hospitality Group has raised. Count III is thus dismissed with prejudice.
C. Disability Discrimination Claims
Counts I and JJ are for disability Cconennatione “Jn order to establish a prima facie case
of discrimination under the ADA, a plaintiff must demonstrate that he (1) is disabled, (2) is a
qualified individual, and (3) was subjected to unlawful discrimination because of his disability.”
Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007)
. (simplified). .
Real Hospitality Group says that Gonzalez cannot state a claim under the Americans □□□□
Disabilities Act because he has not adequately alleged that he is disabled. While Gonzalez
pleads that he has a lung transplant and XLA, he does not explain how those conditions
constitute either a “physical or mental impairment that substantially limits one or more major life
activities.” 42 U.S.C. § 12102. Gonzalez only alleges that the XLA requires “constant care,”
“expensive treatment,” and “occasional” doctor’s visits. These facts aré not sufficient to show
that he has a disability. As one district court put it, the “need to periodically consult. □□□□□
doctor—without more—is not a substantial impairment of a major life activity.” Litzinger v.
Allegheny Lutheran Soc. Ministries, 2017 WL 3089022, at *6 (W.D. Pa. July 20, 2017).
2 “1D ]isability-discrimination claims under the FCRA are analyzed using the same framework as
ADA claims.” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007).
Because Gonzalez has not identified a major life activity at which he is substantially limited as a
result of the alleged disability, his Americans with Disabilities Act claim fails. See Greenberg,
498 F.3d at 1264; Martin v. Teleperformance Inc., 839 F. App’x 443, 445 (11th Cir. 2021). Asa
result, counts I and II are dismissed with prejudice.
IV. Conclusion
For the reasons explained above, counts I, II, and II are dismissed with prejudice and
counts IV and V are dismissed without prejudice. Gonzalez may file an amended complaint if he □
so chooses on or before March 18, 2022. Real Hospitality Group shall file its response to that
complaint on or before April 1, 2022. If appropriate, Gonzalez may reply to Real Hospitality
Group’s response on or before April 8, 2022.
DONE AND ORDERED in Chambers at Miami, Florida, this of March 2022.
UNITEDSTATES DISTRICT JUDGE
Copies furnished to:
Counsel of Record ,