Opinion
8:20-cv-2300-TPB-JSS
09-10-2020
DARTANYA L. HAUSBERG Plaintiff, v. ROBERT WILKIE, Secretary, DEPARTMENT OF VETERANS AFFAIRS, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
TOM BARBER UNITED STATES DISTRICT JUDGE
This matter is before the Court on “Defendant's Motion to Dismiss Count II of Plaintiff's First Amended Complaint” filed on February 19, 2021. (Doc. 25). Plaintiff filed a response in opposition to the motion on March 12, 2021. (Doc. 26). On April 7, 2021, Plaintiff filed a notice of supplemental authority. (Doc. 27). Based on the motion, response, notice of supplemental authority, court file, and record, the Court finds as follows:
The Court accepts as true the facts alleged in the complaint for purposes of ruling on the pending motions to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.”). The Court is not required to accept as true any legal conclusions couched as factual allegations. See Papasan v. Allain, 478 U.S. 265, 286 (1986).
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Plaintiff Dartanya L. Hausberg has been employed by Defendant Department of Veterans Affairs as a Registered Nurse at the James A. Haley VA Hospital since October 2014. Plaintiff suffers from physical and psychological disabilities, including post-traumatic stress disorder, asthma, and arthritis. Plaintiff alleges that from November 2017 to April 2019, his supervisor and other representatives of Defendant, among other things, subjected Plaintiff to numerous internal investigations, audits, and questions about his time records, denied him reasonable accommodation for his disabilities, denied him FMLA leave on numerous occasions, and provided him with a proposal for discharge, which was rescinded after an investigation. Plaintiff alleges these actions constituted harassment, discrimination, retaliation against him for filing a series of formal and informal discrimination complaints, and denial of benefits and interference with his rights under the Family and Medical Leave Act (“FMLA”).
Based on the foregoing, Plaintiff asserts claims for retaliation under Title VII (Count I), hostile work environment (Count II), denial of benefits and interference under the FMLA (Count III), disability discrimination and denial of reasonable accommodation under the Rehabilitation Act (Count IV), and injunctive relief (Count V). Defendant has moved to dismiss Count II on the ground that it fails to state a claim for relief.
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a). While Rule 8(a) does not demand “detailed factual allegations, ” it does require “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). In order to survive a motion to dismiss, factual allegations must be sufficient “to state a claim to relief that is plausible on its face.” Id. at 570.
When deciding a Rule 12(b)(6) motion, review is generally limited to the four corners of the complaint. Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a court “must accept [a] [p]laintiff's well pleaded facts as true, and construe the [c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the complaint's legal sufficiency, and is not a procedure for resolving factual questions or addressing the merits of the case.” Am. Int'l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.).
Analysis Shotgun Pleading
Before addressing Defendant's arguments for dismissal, the Court sua sponte finds that Count II must be dismissed because it violates the rule against “shotgun pleadings.” See Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015) (identifying four primary types of shotgun pleadings); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 983-84 (11th Cir. 2008) (explaining that shotgun pleading should be stricken sua sponte). Specifically, Count II “commits the sin of not separating into a different count each cause of action or claim for relief.” Weiland, 792 F.3d at 1322-23.
Count II, titled “Hostile Work Environment, ” appears to allege two distinct claims: (1) a claim that Defendant created a hostile work environment in retaliation for Plaintiff's filing formal and informal harassment complaints, in violation of Title VII, and (2) a claim that Defendant created a hostile work environment in order to discriminate against Plaintiff due to his disabilities, presumably in violation the Rehabilitation Act. These claims, asserted under different statutes and alleging two different theories - discrimination (or disparate treatment) and retaliation - must be pled in separate counts. See, e.g., Williams v. Polk Cty. Bd. of Cty. Comm'rs, No. 8:20-cv-2842-WFJ-SPF, 2021 WL 1060199, at *4 (M.D. Fla. Mar. 19, 2021) (requiring claims for hostile work environment under Title VII, Rehabilitation Act, and the ADEA to be separated into different counts); Desrouleaux v. Quest Diagnostics, Inc., No. 09-61672-CIV, 2010 WL 1571188, at *2 (S.D. Fla. Apr. 20, 2010) (holding that single count of complaint improperly included reference to both a disparate treatment clam and a hostile work environment claim); Williams v. Perry Slingsby Sys. Inc. Technip Group, No. 08-81076, 2008 WL 11333634, at *2 (S.D. Fla. Oct. 15, 2008) (“[I]f plaintiff is alleging hostile work environment, disparate treatment, wrongful termination, or unlawful retaliatory discharge, each of those distinct legal claims or legal theories requires a separate count . . . .”).
Count II does not cite the Rehabilitation Act, but of the three federal statutes the complaint relies on, only the Rehabilitation Act covers disability discrimination. To the extent that Plaintiff does not intend to assert a hostile work environment disability discrimination claim under the Rehabilitation Act, he must delete from Count II allegations that appear to inject such a claim, such as the allegation that Count II is “based on disparate treatment due to his disability.”
Count IV, brought under the Rehabilitation Act, suffers from the same flaw, because it asserts claims for both disability discrimination (or disparate treatment) and denial of reasonable accommodation. These are two different types of discrimination claims. See, e.g., Toliver v. City of Jacksonville, 3:15-cv-1010-J-34JRK, 2017 WL 1196637, at *5 (M.D. Fla. Mar. 31, 2017) (“Under the ADA, there are two distinct categories of disability discrimination: (1) disparate treatment and (2) failure to accommodate.”) (citing Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1261-62 (11th Cir. 2007)). Count IV therefore will be dismissed with leave to amend for violating the shotgun pleading rule. See Hart v. Bear Staffing Services, Inc., 2:20-cv-554-JLB-NPM, 2021 WL 1662766, at *2 (M.D. Fla. Apr. 28, 2021) (dismissing single count that included both failure to accommodate and discriminatory discharge claims under the ADA).
Accordingly, Count II and Count IV are dismissed, with leave to amend. In any amended pleading, Plaintiff is directed to plead claims brought under different statutes and claims asserting different theories as described above in separate counts, and in doing so to incorporate by reference into each individual count only those paragraphs of Plaintiff's general allegations relevant to that count.
Retaliation Under Title VII
As noted above, one of the two claims asserted in Count II is that Defendant retaliated against Plaintiff for filing formal and informal harassment complaints by creating a hostile work environment in violation of Title VII. Defendant argues that Plaintiff has failed to allege conduct sufficiently “severe” and “pervasive” to create a hostile work environment. As the Eleventh Circuit has recently made clear, however, retaliatory hostile work environment claims under Title VII do not require proof of “severe” or “pervasive” harassment. Claims for retaliatory hostile work environment need only allege the employer retaliated against the employee by creating a work environment that would deter a reasonable person from engaging in the protected activity. Babb v. Sec'y, Dep't of Veterans Affairs, 992 F.3d 1193, 1206-07 (11th Cir. 2021); Monaghan v. Worldpay US, Inc., 955 F.3d 855, 860-62 (11th Cir. 2020). Defendant does not argue that Plaintiff's allegations of retaliatory hostile work environment fail to meet this standard. Accordingly, Defendant's motion to dismiss Count II is denied as to this ground.
Disability Discrimination Under the Rehabilitation Act.
The second claim in Count II is that Defendant discriminated against Plaintiff due to his disabilities by creating a hostile work environment in violation the Rehabilitation Act. Because this claim is not based on retaliation, it is governed by the standards applicable to hostile work environment claims generally. See Tonkyro v. Sec'y, Dep't of Vet. Affairs, 995 F.3d 828, 836 (11th Cir. 2021) (holding that Monaghan left untouched the standard applied to substantive hostile work environment claims).
The Eleventh Circuit has not decided whether a claim for hostile work environment exists under the Rehabilitation Act, but the Court assumes that it does for purposes of this Order. See, e.g., Chastain v. City of Douglasville, No. 1:14-CV-4038-AT-CMS, 2017 WL 10753292, at *8 (N.D.Ga. Jan. 20, 2017), report and recommendation adopted, 2017 WL 10768465 (N.D.Ga. Feb. 23, 2017).
Count II also refers to a denial of reasonable accommodation, but this appears to be part of Plaintiff's hostile work environment claims under Title VII and the Rehabilitation Act as opposed to a distinct claim. As noted above, Count IV as currently pled contains a claim for denial of reasonable accommodation.
To establish a hostile work environment claim, a plaintiff must show that “(1) he is a member of a protected group; (2) who has been subjected to unwelcome harassment; (3) based on a protected characteristic, (4) that was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that his employer is vicariously or directly liable for the environment.” Ng v. Brennan, No. 8:17-cv-509-T-36AEP, 2019 WL 2436581, at *6 (M.D. Fla. June 11, 2019) (internal quotations omitted).
In assessing whether alleged actions are sufficiently severe and pervasive, courts look to the totality of the circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating or merely offensive, and whether it unreasonably interferes with the employee's job performance. E.g., Ng, 2019 WL 2436581, at *6 (citing Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002)). Petty office squabbles, communication issues, and “ordinary workplace tribulations” are insufficient to create a hostile work environment. Mahone v. CSX Transp., Inc., 652 Fed.Appx. 820, 823 (11th Cir. 2016) (internal quotations omitted); Baroudi v. Sec'y, U.S. Dep't of Veterans Affairs, 616 Fed.Appx. 899, 905 (11th Cir. 2015). Instead, the workplace must be “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive environment.” Tonkyro, 995 F.3d at 836-37 (internal quotations omitted). Moreover, the “intimidation, ridicule, and insult” must have connotations related to the employee's protected status (here, Plaintiff's disabilities) to be actionable. See id. at 837 (holding in a gender discrimination case that the “intimidation, ridicule, and insult must also bear ‘the necessary sexual or other gender-related connotations to be actionable sex discrimination.'”) (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1247 (11th Cir. 1999) (en banc)).
Although Plaintiff at the pleading stage need not set forth facts sufficient to make out a prima face case under the classic McDonnell Douglas framework, he must provide sufficient factual detail to suggest discrimination in the form of a hostile work environment. See Uppal v. Hosp. Corp. of Am., 482 Fed.Appx. 394, 396 (11th Cir. 2012) (affirming dismissal of hostile work environment claim where complaint failed to allege sufficient facts suggesting that discrimination played any role in adverse employment decisions); Gibson v. Walgreen Co., No. 6:07-cv-1053-Orl-28KRS, 2008 WL 11435769, at *1 (M.D. Fla. Feb. 21, 2008) (holding that the complaint “must provide enough factual matter (taken as true) to suggest intentional race discrimination in the form of a racially hostile work environment.”) (internal quotations omitted).