Opinion
Case No: 2:13-cv-97-FtM-38DNF
06-14-2013
JOSE LUIS REGUERO, Plaintiff, v. AIRPORT TERMINAL SERVICE (A.T.S.), HERTZ CORPORATION, HERTZ, TRANSPORTING INC., EDISON FORT MYERS COMPANY, PARTNER HERTZ CORPORATION OR INDEPENDANT CONTRACTOR OR UNKNOWN, IF ANY, ANY ALL UNKNWON PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED, OTHER IDENTIFIABLE LEGAL ENTITIES RELATED, DELTA AIRLINES, A/C APPLIANCE KEEPERS, INC., ADVANCE AIR & REFRIGERATION, INC., ALPINE AIR CONDITIONING & HEATING, INC., AMERICAN RESIDENTIAL SERVICES OF FLORIDA, INC., AIR TECHNIQUES HEATING & COOLING LLC., CLIF BETTS HEATING & COOLING, INC., CLIMATE SOLUTIONS, INC., COASTAL COOLING INC., COMFORT ZONE INC., COOL RUSH AIR, INC., CUSTOM COOLING & HEATING, INC., DYNAMIC AIR OF SW FLORIDA, GULF SHORE COOLING, J & D HEATING AND A/C INC., KENMARK AIR, MODERN SERVICE FOR HOME & BUSINESS, REYNOLDS HOME COMFORT, INC., SANDUSKY SERVICES, SEA AIR OF LEE COUNTY, INC., SERVICE EXPERTS HEATING & AIR CONDITIONING, SOLOMONS A/C & APPLIANCE, INC., SOUTHERN REFRIGERATION & AIR CONDITIONING , INC., SUNSET AIR, INC., SYNERGY AIR, TOROCCOS COOLING AND HEATING, LLC, A A TEMPERATURE SERVICES, INC., BARNES MECHANICAL INSULATION, DAVISON INSULATION & ACOUSTIC, GARDEN STREET IRON & METAL, INC., GENERAL INSULATION, CO., JW INSULATION, OCONNELL INSULATION CO., INC., RICE INSULATION & GLASS, SOUTHWEST INSULATION INC., TRI CITY INSTALLATIONS TCI, WEST COAST INSULATION, AMERICAN BEST VALUE INN, AMERICAN REALITY OF CAPTIVA, INC., BAYMONT INN AND SUITES, BAY TO BEACH, BEACH SHELL INN, BEST WESTERN AIRPORT INN, BEST WESTERN PLUS BEACH RESORT, BLUE DOLPHIN COTTAGES, CASA PLAYA RESORT, COMFORT INN & SUITES AIRPORT, CROWNE PLAZA HOTELS & RESORTS, DAYS INN FORT MYERS, DIAMOND HEAD BEACH RESORT HOTEL, EDISON STATE COLLEGE, FAIRFIELD INN BY MARRIOTT FORT MYERS, FLORIDIAN AIRPORT INN OF FT. MYERS, GRANDSTAY HOTEL & SUITES, GULF BREEZE COTTAGE & MOTEL, GULL WING BEACH RESORT, HILTON GARDEN INN, HOLIDAY INN SANIBEL, HOMEWOOD SUITES BY HILTON, HOWARD JOHNSON, LAHAINA VACATION RENTALS, LAQUINTA AT THE AIRPORT, LEE COUNTY PORT AUTHORITY, SOUTHWEST FLORIDA INTERNATIONAL AIRPORT, MONTEGO BAY, MYSTIC GARDENS, NEPTUNE INN, OUTRIGGER BEACH RESORT, PERIWINKLE MOTEL, POINTE ESTERO BEACH RESORT, QUALITY SUITES AIRPORT, RESIDENCE INN MARRIOTT, SANDPIPER INN, SANIBEL HOLIDAY, SEA SIDE ALL SUITE RESORT, SHALIMAR, SHIPWRECK, SIGNAL INN BEACH, SPRINGHILL SUITES BY MARRIOTT, STANLEY STEEMER, SUBURBAN HOTEL, SUN STREAM HOTEL RESORT, SUPER 8, TARPEN TALE INN, THE BRITTANY APARTMENTS, THE GULF MOTEL, THE PLANTATION GOLF & COUNTRY CLUB, TOSS, INC., TWIN WATERS, INN, VALUE PLACE, WATERTON RESIDENTIAL COMMUNITY, WATERSIDE INN ON THE BEACH, BLUE POINT OYSTER BAR & SEAFOOD GRILL, BRATTA RISTORANTE, BUCA DI BEPPO, FISHERY RESTAURANT, GRIMALDIS BELL TOWER, HMS HOST, LAISHLEY CRAB HOUSE, MELS DINER, MILLER FORT MYERS ALE HOUSE, OUTBACK STEAKHOUSE, SNOOK HAVEN RESTAURANT, T.G.I. FRIDAYS, VILLAGE FISH MARKET RESTAURANT & LOUNGE, WILD HOUSE SPORTS BAR & GRILL, AFFORDABLE ROOFING & GUTTERS, ADVANCED ROOFING AND SHEET METAL, ALL AMERICAN ROOFING, A-Z ROOFING, CUSTOM ROOFING INC., DURA-LOC ROOFING SYSTEMS, FLORIDA STATE ROOFING & CONSTRUCTION, INC., FRANKS ROOFING & SPRAY CO., LATITE ROOFING SHEET METAL CO. and NASTAR ROOFING, Defendants.
ORDER
This matter comes before the Court on Defendant Airport Terminal Service's Motion to Dismiss (Doc. #22) filed on April 8, 2013, Defendants Hertz Corporation and Hertz Transporting, Inc.'s Motion to Dismiss Plaintiff's Amended Complaint (Doc. #29) filed on April 22, 2013, Plaintiff's Response to Defendant Hertz's Motion to Dismiss (Doc. #37) filed on April 24, 2013, Defendant Edison Fort Myers Company's Motion to Dismiss Plaintiffs' Amended Complaint (Doc. #43) filed on May 7, 2013, and Plaintiff's Response to Defendant Edison Fort Myers Company's Motion to Dismiss (Doc. #50) filed on May 13, 2013. The Motions are ripe for review.
Defendant has brought this lawsuit against 115 companies pursuant to Title VII, Fair Labor Standards Act, and Equal Pay Act. From what the Court can discern from the Amended Complaint (Doc. #15), Plaintiff was allegedly discriminated against by the Defendant companies for their firing him or for failing to hire him when he applied for a job with the company based upon "discrimination for national origin and accent discrimination." It appears from the Amended Complaint, that Plaintiff had only sent his resumes for employment to some of the Defendants. (See Doc. #15, p. 30). Three Defendants which have been served have moved to dismiss the action for failure to plead as required by Federal Rule 8, as well as on the grounds that there is no evidence that Plaintiff has exhausted his administrative remedies with the EEOC prior to filing suit, and for failure to state a claim.
Title VII Claims
Plaintiff must meet the conditions precedent to filing employment discrimination claims against the Defendants prior to filing this lawsuit. See Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982) (citing Fed. R. Civ. P. 9(c) and noting that "a plaintiff must generally allege in his complaint that 'all conditions precedent to the institution of the lawsuit have been fulfilled.'"); Wheeler v. American Home Prods. Corp., 582 F.2d 891, 897 (5th Cir. 1977) (requiring plaintiffs to exhaust their administrative remedies before bringing suit under Title VII). In the employment discrimination context, that requires an allegation that the plaintiff filed a charge against the defendant with the EEOC and "receive[d] statutory notice from the EEOC of [his] right to sue the [defendant] named in the charge." Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996); 42 U.S.C. § 2000e-5(f)(1). "The purpose of this exhaustion requirement 'is that the [EEOC] should have the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts.'" Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (alteration in original). Without timely contact with an EEO counselor and other subsequent administrative remedies, the Court cannot consider the aggrieved person's complaint. Baldwin Co. Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
In this case, there is no indication in the record that Plaintiff has exhausted his administrative remedies as to each of the 115 Defendants with regard to his allegationss of national origin discrimination under Title VII. Thus, the Court finds that Plaintiff's Amended Complaint is dismissed without prejudice as to the Title VII claims against each of the 115 Defendants. Plaintiff will be afforded the opportunity to file a second amended complaint which alleges that he has exhausted his administrative remedies as to each Defendant. Plaintiff must attach supporting documentation showing that he received a notice of right to sue letter prior to filing of this lawsuit so that the Court may determine whether the conditions precedent to filing this lawsuit have been met.
There is a letter from the EEOC, Miami District Office, included with Plaintiff's Amended Complaint, regarding an EEOC charge filed by Plaintiff against Defendant Airport Terminal Services, which acknowledges receipt of a request for copies from the investigation file, but is not a notice of right to sue letter. Further, there is a page attached to the Amended Complaint that includes information related to filing suit under the laws enforced by the EEOC, but there is no indication that this is a right to sue letter for a specific EEOC charge filed by the Plaintiff. (See Doc. #15, p. 28-29).
Equal Pay Act Claims
With regard to Plaintiff's Equal Pay Act claim, Defendants move to dismiss pursuant to Federal Rule 12(b)(6) for failure to state a claim. Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. Fed .R .Civ. P. 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Detailed facts are not necessary, but a claim must contain enough factual allegations to raise a reasonable expectation that discovery will reveal evidence of the harm alleged. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "We have explained that the Rule 8(a)(2) pleading standard articulated by the Supreme Court in Twombly is "one of 'plausible grounds to infer.'" Secretary of Labor v. Labbe, 319 F. App'x 761 (11th Cir. 2008) (citing Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To state a claim with sufficient specificity "'requires a complaint with enough factual matter (taken as true) to suggest' the required element." Id. The rule "'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Id. at 1296. Thus, "the-defendant-unlawfully harmed me accusation" is insufficient. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id.
It is not clear from the Amended Complaint (Doc. #15) which Defendants Plaintiff is bringing an Equal Pay Act claim against as Plaintiff has not included allegations against each individual Defendant. Rather, a list of 115 Defendants is attached to the Amended Complaint. (Doc. #15, pp. 31-39). Plaintiff just cursorily mentions the Equal Pay Act. "To establish a prima facie case of discrimination under the Equal Pay Act, a plaintiff must show that his or her employer paid employees of the opposite sex 'for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.'" Edwards v. Fulton County, 2013 WL 563157, at *2 (11th Cir. Feb. 15, 2013) (citing 29 U.S.C. § 206(d)(1)). In this case, there is no indication in the Amended Complaint that Plaintiff is complaining that he was discriminated on the basis of his gender; rather, Plaintiff complains that he was discriminated based upon his national origin. Thus, Plaintiff's Equal Pay Act claim is dismissed for failure to state a claim and Plaintiff will be allowed a chance to amend. Plaintiff must list those Defendants under the Equal Pay Act count which he alleges have violated the Act. The Court assumes this will not be all of the Defendants as Plaintiff has not in fact worked for all 115 Defendants.
Plaintiff does mention that he is 50-years old but it is not clear if he is alleging age discrimination.
Fair Labor Standards Act Claims
With regard to Plaintiff's FLSA claims, Plaintiff fails to set forth a separate count for violations of the FLSA and fails to allege how each of the 115 Defendants violated the FLSA. Under to the FLSA, "the elements that must be shown are simply a failure to pay overtime compensation and/or minimum wages to covered employees and/or failure to keep payroll records in accordance with the Act." Labbe, 319 F. App'x at 763 (citing 29 U.S.C. §§ 206, 207, and 215(a)(2) and (5)). This type of disjointed pleading wastes judicial resources if left uncorrected, because they "make it difficult, if not impossible, to set the boundaries for discovery," leading to disputes that will inevitably require the court to "intervene and require the parties to narrow the issues," which could have been done at the outset of the case. Byrne v. Nezhat, 261 F.3d 1075, 1129-30 (11th Cir. 2001), abrogated on other grounds by Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146 (11th Cir. 2011). Hence, the importance of ordering repleader to reduce such disjointed claims to the bare essentials "cannot be overstated." Id. at 1132. The Court finds that Plaintiff has failed to allege facts sufficient to meet the threshold pleading requirements of Rule 8(a)(2) as articulated in Twombly. Plaintiff must list those Defendants under the FLSA count which he alleges have violated the FLSA. The Court assumes this will not be all of the Defendants as Plaintiff has not in fact worked for all 115 Defendants. Plaintiff will be allowed to amend.
Accordingly, it is now
ORDERED:
(1) Defendant Airport Terminal Service's Motion to Dismiss (Doc. #22) is GRANTED.
(2) Defendants Hertz Corporation and Hertz Transporting, Inc.'s Motion to Dismiss Plaintiff's Amended Complaint (Doc. #29) is GRANTED.
(3) Defendant Edison Fort Myers Company's Motion to Dismiss Plaintiffs' Amended Complaint (Doc. #43) is GRANTED.
(4) Plaintiff's Amended Complaint (Doc. #15) is DISMISSED without prejudice.
(5) Plaintiff shall have up to and including July 3, 2013 to file a second amended complaint in accordance with the above. Failure to file a second amended complaint will result in this action being dismissed and closed without further notice.
DONE and ORDERED in Fort Myers, Florida this 14th day of June, 2013.
_________________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record