Opinion
Case No. 02-60117-Civ-Ferguson/Snow
May 9, 2003
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on Defendant Tricom Pictures and Productions, Inc.'s Motion to Dismiss Count Two of Plaintiff's Second Amended Complaint (Docket Entry 79), the Plaintiff's Motion to Dismiss Counterclaim (Docket Entry 82) and the Plaintiff's Motion to Strike Paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 24 and 25 of Defendant, James Trainer's Counterclaim as Immaterial, Impertinent and Scandalous Matter (Docket Entry 84), which were referred to United States Magistrate Judge Lurana S. Snow for report and recommendation.
I. PROCEDURAL HISTORY
The employment discrimination complaint was filed in the Seventeenth Judicial Circuit in and for Broward County, Florida. The defendants removed the amended complaint to federal court on January 25, 2002. After the defendant filed a motion to dismiss and a counterclaim, the plaintiff voluntarily dismissed the Count I claim of negligence by Trainer. The plaintiff also filed a motion to strike certain paragraphs of the counterclaim. While these motions were pending, the plaintiff was granted leave to file a second amended complaint. The defendants filed answers, Trainer filed a counterclaim and Tricom filed a motion to dismiss Count II of the second amended complaint. The plaintiff filed a motion to strike certain paragraphs of the counterclaim and a motion to dismiss the counterclaim. The motions are fully briefed by adopting and supplementing the briefing of the previous motions, and are ripe for consideration.II. THE SECOND AMENDED COMPLAINT
The Second Amended Complaint (hereinafter "complaint") alleges that the plaintiff worked for Tricom Pictures Productions, Inc., ("Tricom") as a sales representative from November 2000, until June 29, 2001. James Trainer was her supervisor. The complaint alleges that Trainer sexually harassed the plaintiff and other employees, that Tricom had actual or constructive knowledge of this and failed to take remedial or preventive measures. The complaint alleges various acts of physical and verbal sexual harassment.
When the plaintiff's attorney sent Tricom a letter alleging sexual harassment, she was assigned an additional supervisor, who also engaged in verbal sexual abuse. In retaliation, the plaintiff was prevented from following up on her customer's leads; the leads were assigned to others. She was moved to an isolated office on another floor, threatened with the loss of her commissions, then terminated. The complaint alleges violation of 42 U.S.C. § 2000e, et seq. (Title VII), violation of the Fair Labor Standards Act) "FLSA"), 29 U.S.C. § 201-219, violation of the Florida Civil Rights Act ("FCRA"), Fla. Stat. § 760.10, and various state law tort claims.
The complaint alleges that the plaintiff exhausted her administrative remedies by filing a written charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and charges with the Florida Commission on Human Rights ("FCHR"). The plaintiff previously had filed copies of her May 18, 2001, and July 19, 2001 charges to the FCHR, her May 18, 2001, charge to the EEOC, and the November 2, 2001, EEOC Dismissal and Notice of Rights. (Docket Entry 1, Amended Complaint, Exhibit A)
III. THE COUNTERCLAIM
The counterclaim alleges claims for slander and false light invasion of privacy. Trainer alleges that Richardson repeatedly sought Trainer's attention on a personal level and engaged in inappropriate behavior described in paragraphs 8-25 of the counterclaim. After the plaintiff's attorney sent a letter to Tricom, Richardson was transferred to a female supervisor. Richardson retaliated by making false statements to coworkers about Trainer, alleged in detail in paragraph 26 of the complaint.
IV. RECOMMENDATIONS OF LAW
A. Motion to Dismiss Count II of Second Amended Complaint
"The complaint should not be dismissed unless it appears that the [plaintiff] could `prove no set of facts which would entitle him to relief.'" Jenkins v. McKeithen, 395 U.S. 411, 422, 89 S.Ct. 1843r 1849 (1969), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957); Shands Teaching Hospital and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir. 2000). The allegations of the complaint are taken as admitted; the complaint must be construed liberally in favor of the plaintiff. Jenkins, supra; United States v. Pemco Aeroplex, 195 F.3d 1234, 1236 (11th Cir. 1999) (en banc). Consideration of matters beyond the four corners of the complaint is improper in the context of a motion to dismiss. Thomas v. Burlington Industries, Inc., 769 F. Supp. 368, 370 (S.D. Fla 1991).
Attachments to the complaint are considered part of the pleading for all purposes, including a motion to dismiss the complaint. Solis-Ramirez v. Dept. of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985). When the allegations of the complaint are contradicted by the exhibit attached to the complaint, the exhibit controls. Wright Miller, Federal Practice and Procedure 2d § 1327 n. 14 (1990); Olpin v. Ideal National Ins. Co., 419 F.2d 1250 (10th Cir. 1969), cert. denied, 397 U.S. 1074 (1970).
Count II alleges violation of the FCRA. In order to sue under this statute, an employee first must exhaust the statutory administrative remedies. Fla. Stat. § 760.11. The statute provides that
if the Commission determines that there is not reasonable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, the commission shall dismiss the complaint. The aggrieved person may request an administrative hearing under ss 120.569 and 120.57, but any such request must be made within 35 days of the date of the determination of reasonable cause. . . . If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
Fla. Stat. § 760.11(7) (1997) (emphasis added). The statute also provides that if the commission fails to "determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4)" [allowing the filing of a civil suit or a request for an administrative hearing]. Fla. Stat. § 760.11(8).
The EEOC Dismissal and Notice of Rights states that the plaintiff's file was closed because
Based on its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. no finding is made as to any other issues that might be construes as having been raised by this charge.
(Docket Entry 1, Exhibit A, emphasis added)) The Notice of Rights explains that the plaintiff may pursue her claims under Title VII, the Americans with Disabilities Act and/or the Age Discrimination in Employment Act by filing suit in state or federal court within 90 days.Id.
The defendant contends that while the plaintiff exhausted the administrative requirements of Title VII, the EEOC determination did not alter her obligation to exhaust the FCRA administrative remedies. After receiving the EEOC dismissal, she did not request an administrative hearing under Fla. Stat. § 760.11(7). The defendants contend that she cannot pursue her FCRA claim since she has not exhausted the FCRA administrative remedies.
At the time the instant motion was briefed, Florida courts were divided on whether the EEOC Dismissal and Notice of Rights is equivalent to a FCHR dismissal for no probable cause, triggering the 35 day window to request an administrative hearing under § 760.11(7). Subsequently the Florida Supreme Court determined that the EEOC Dismissal and Notice of Rights did not trigger the administrative exhaustion requirements of Fla. Stat. § 760.11(7). Woodham v. Blue Cross and Blue Shield of Florida, Inc., 829 So.2d 891 (Fla. 2002). "We cannot and will not equate `unable to conclude' with a determination that `there is not reasonable cause.' To equate those two terms would be contrary to the plain language of the statute." Id. at 897. Moreover, the court found that the EEOC notice failed to fulfill the notice requirements of Fla. Stat. § 760.11(3). Id.
Thus, the plaintiff's EEOC Dismissal and Notice of Rights did not trigger the 35-day window to request an state administrative hearing. However, pursuant to Fla. Stat. § 760.11(8), the plaintiff may bring a FCRA claim directly to federal court if the FCHR does not make any finding within 180 days after the charge is filed. The first FCHR charge was filed May 18, 2001 and the second FCHR charge was filed July 19, 2001. There is no evidence that the FCHR made any finding within 180 days on either charge. The amended complaint removed to federal court was dated January 23, 2002. The second amended complaint was filed on August 21, 2002. Clearly the 180-day period had run on both FCHR charges by the latter date.
Accordingly, the plaintiff has complied with the requirements of Fla. Stat. § 760.11(8) and may file the FCRA complaint in court. The Court should deny the motion to dismiss Count II.
B. Plaintiff's Motion to Dismiss Counterclaim
The plaintiff asserts that the Court lacks subject matter jurisdiction over Trainer's tort claims since they are not compulsory counterclaims arising out of the same transaction or occurrence as the sexual harassment claims in the second amended complaint. As permissive counterclaims, the tort claims must have an independent basis for jurisdiction, which they lack. Plant v. Blazer Financial Services, Inc., 598 F.2d 1357, 1359-60 (5th Cir. 1979).
The defendant contends that these are compulsory counterclaims pursuant to Fed.R.Civ.P. 13(a) since there is a logical relationship between the claims. Republic Health Corp. v. Lifemark Hospitals, Inc., 755 F.2d 1453, 1455 (11th Cir. 1985). However, the plaintiff's reply to the original motion to dismiss notes that in a similar case, the court has held that a sexual harassment lawsuit, based on statements and actions by a supervisor, is distinct from a slander claim based on later statements of an employee. Rogers v. Rinker Materials Corp., Case No. 97-7596-Civ-Ungaro Benages (S.D.Fla. August 10, 1998).
Although the defendant knew of Rogers, which was cited in the plaintiff's reply to the original motion to dismiss, he has not cited any contrary legal authority showing that the torts are compulsory counterclaims. Accordingly, the Court finds that these are permissive counterclaims. Trainer has not shown that there is an independent basis for jurisdiction of these claims in federal court. Accordingly, the Court should grant the motion to dismiss the counterclaim.
C. Plaintiff's Motion to Strike Portions of Counterclaim
If the Court decides not to dismiss the counterclaims, it must consider whether to strike certain paragraphs contained therein. Paragraphs 8-25 of the counterclaim allege various acts and statements by Richardson which could be deemed to be sexual harassment by Richardson or inappropriate subject matters for workplace discussion. The plaintiff asks the Court to strike these paragraphs since the acts were alleged to have occurred prior to Richardson's attorney's harassment letter, and have nothing to do with the tort claims, which are based solely on alleged remarks Richardson made after Tricom reassigned Richardson as part of its investigation of Richardson's charge of sexual harassment.
The defendant asserts, referring to his memorandum of law in response to the previous motion to strike, that the allegations must be included in the complaint, since they establish the plaintiff's lack of veracity in previous statements, which is relevant to her defense of truthfulness to the Count I slander claim. Palmer v. Gotta have It Golf Collectibles, Inc., 106 F. Supp.2d 1289, 1302 (S.D.Fla. 2000). Her prior statements also show that she had a reckless disregard for the falsity of her statements, an element in the Count II claim of false light invasion of privacy. Harris v. District Board of Trustees of Polk Community College, 9 F. Supp.2d 1319, 1329 (M.D.Fla. 1998).
The Court may strike information which has no possible relation to the controversy and may cause prejudice to one of the parties. Poston v. American President Lines, Ltd., 452 F. Supp. 568, 570 (S.D.Fla. 1978). Paragraphs 8-14 and 22 allege various physical actions performed by Richardson and do not implicate matters of veracity. Since these allegations have no possible relation to either tort claim, and may cause prejudice to Richardson, the Court should strike paragraphs 8-14 and 22.
V. CONCLUSION
This Court having considered carefully the pleadings, arguments of counsel, and the applicable case law, it is hereby
RECOMMENDED as follows:
1. That the Court DENY Defendant Tricom Pictures and Productions, Inc.'s Motion to Dismiss Count Two of Plaintiff's Second Amended Complaint (Docket Entry 79).
2. That the Court GRANT the Plaintiff's Motion to Dismiss Counterclaim (Docket Entry 82).
3. If the Court does not dismiss the counterclaim, that the Court GRANT, in part the Plaintiff's Motion to Strike Paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 24 and 25 of Defendant, James Trainer's Counterclaim as Immaterial, Impertinent and Scandalous Matter (Docket Entry 84), by striking paragraphs 8-14 and 22.
The parties will have ten days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, for consideration by The Honorable Wilkie D. Ferguson, Jr., United States District Judge. Failure to file objections timely shall bar the parties from attacking on appeal factual findings contained herein. LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988),cert. denied, 488 U.S. 958 (1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).