Opinion
No. 00-6625-CIV-DIMITROULEAS
September 25, 2000
ORDER
THIS CAUSE is before the Court upon Defendant. NCB. Inc., d/b/a McDonald's Motion to Dismiss Amended Complaint and for Sanctions for Material False Allegations [DE 17], filed herein on August 21, 2000. The Court has carefully considered the motion and is otherwise fully advised in the premises.
I. BACKGROUND
Plaintiff was employed by Defendant, McDonalds, as a "crew member." Plaintiff was fifteen years old at the time the alleged events occurred. One of Plaintiff's supervisors was Sebastian Lewis. Plaintiff alleges that while she worked at McDonalds, Mr. Lewis made lewd, sexually suggestive and inappropriate comments, wherein he told her that she had a nice body, he wanted to have sexual relations with her and take her on out of town trips. Plaintiff also alleges that Mr. Lewis touched her shoulders.
The Court notes that the Complaint does not include the dates that Plaintiff began work and left Defendant's employ.
Plaintiff further alleges that she rebuffed Mr. Lewis' advances and was embarrassed by his behavior. Plaintiff complained to her main supervisor about Mr. Lewis' behavior. Plaintiff "candidly acknowledged that the harassment ceased once she complained about her supervisor's conduct. . ." Response at 4. However, Plaintiff's work schedule was reduced from approximately twenty (20) hours per week to approximately five (5) hours per week. Plaintiff subsequently quit her job at McDonald's.
Plaintiff claims to have complied with all administrative prerequisites by filing a Charge of Discrimination with the EEOC and FCHR. Plaintiff received her Right to Sue Notice on December 8, 1999. Plaintiff, along with her father as next of friend, filed this action in the Circuit Court of the 7th Judicial Circuit, in Broward County, Florida, on March 7, 2000. The action was then removed to this Court. The Amended Complaint alleges: 1) Hostile environment, sexual harassment in violation of Title VII; 2) retaliation and violation of Title VII; 3) violation of the Florida Civil Rights Act ("FCRA"); 4) negligent retention; and 5) negligent supervision.
Defendant filed this Motion to Dismiss and Motion for Sanctions along with Plaintiff's deposition transcript and affidavits [DE 18]. In accord with the "general rule" matters presented outside the pleadings convert a Rule 12(b)(6) motion into a motion for summary judgment. John Bryant v. Avado Brands, Inc., 187 F.3d 1271(11th Cir. 1999). however, in this case, discovery has not been completed, and the only support is Plaintiff's deposition and affidavits. Therefore, this action will be dealt with as a Motion to Dismiss and Motion for Sanctions.
Defendant contends that Plaintiff's Amended Complaint contains misrepresentations for the purpose of stating a claim under the FCRA. which cannot be asserted as a matter of law. Defendant additionally contends that Plaintiff's Amended Complaint warrants dismissal because it contains allegations that are unsupported, the Amended Complaint fails to state a claim for sexual harassment, and Counts IV and V cannot be maintained due to materially false allegations.
Plaintiff responds to the Motion by arguing that Count I states a cause of action for hostile work environment sexual harassment, the dual filing clause can be construed as to allow Plaintiff's claim under the FCRA without filling out the dual filing box, Counts IV and V properly state a cause of action, Plaintiff's claims for damages are prospective until discovery is completed, and Defendant improperly filed the Rule 11 Motion.
II. DISCUSSION A. Dismiss
It is long settled that a complaint should not be dismissed unless it appears beyond a doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief Conley v. Gibson, 355 U.S. 41(1957). The allegations of the claim must be taken as true and must be read to include any theory on which the plaintiff may recover.See Linder v. Portocarrero, 963 F.2d 332, 334-336(11th Cir. 1992) (citingRobertson v. Johnston, 376 F.2d 43 (5th Cir. 1967)).
13. FCRA Dual Filing
Plaintiff claims that she "has complied with all administrative prerequisites by dual filing a Charge of Discrimination with the EEOC and FCHR (Florida Commission on Human Relations). . ." Amended Complaint at 2. Plaintiff also included a copy the Charge of Discrimination as Exhibit A to the Amended Complaint. To state a cause of action under the FCRA, Plaintiff must file a charge of discrimination with the FCHR. Degitz v. S. management Services. Inc., 996 F. Supp. 1451, 1454(M.D. Fla. 1998). Plaintiff does not file a charge with the FCHR. Plaintiff claims that by filing a claim with the EEOC, she has duel filed with the FCHR under the FCRA. "As the EEOC and the Florida Commission have entered into work-sharing arrangements. filing the charge with a single agency constitutes dual filing as long as the state agency is indicated on the form and check is placed in the box indicating that the charge is to be dual filed." Desai v. Tire Kingdom, Inc., 944 F. Supp. 876, 880(M.D. Fla. 1996); Dawkins v. Bellsouth Telecommunications, Inc., 53 F. Supp.2d 1356(M.D. Fla. 1999). Plaintiff did not check the box which indicates that the charge is to be dual filed. Plaintiff, therefore, did not follow the administrative prerequisites necessary to state a cause of action under the FCRA. See Mendoza v. Borden, 158 F.3d 1171 (11th Cir. 1998) (reversed in part on other grounds).
B. PLAINTIFF'S NEWLY ALLEGED CLAIMS AND RULE 11 SANCTIONS
Defendant argues that Plaintiff's allegations in the Amended Complaint are without foundation and contrary to Plaintiff's own deposition testimony. Some of these claims include claims for loss of capacity for the enjoyment of life, the expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of abilily to earn money and aggravation of a previously existing condition. This argument would be better dealt with in a Motion for Summary Judgment, after discovery has been completed, and all of the facts are known.
Defendant also contends that Plaintiff's improper claims should result in Rule 11, Fed.R.Civ.P. sanctions. Rule 11 provides in pertinent part:
The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction.
"The Supreme Court has recently held that 'an appellate court should apply an abuse-of discretion standard in reviewing all aspects of a district court's Rule 11 determination.'" Ronald Pelletier v. Gary Zweifel, 921 F.2d 1465, 1514 (11th Cir. 1991); Cooter Gell v. Hartmarx Corp., 496 U.S. 384(1990). "'A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.'" Id. at 1514.
There are three types of conduct that warrant Rule 11 sanctions: (1) When a party files a pleading that has no reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; and (3) when the party files a pleading in bad faith for an improper purpose. Pelletier v. Zweitel, 921 F.2d 1465, 1514; United States v. Milam, 855 F.2d 739, 742 (11th Cir. 1988). "In assessing Rule 11 sanctions, a court first determines whether a party's claims are objectively frivolous — in view of the facts or law — and then, if they are, whether the person who signed the pleadings should have been aware that they were frivolous, i.e., whether he would have been aware had he made a reasonable inquiry."Pelletier v. Zweitel, 921 F.2d 1465, 1514; Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir. 1987). When there is very little direct evidence, the Court uses an objective test, whether an ordinary person would have prosecuted the claim, to determine the adequacy of the factual basis of the claim. Pelletier v. Zweitel, 921 F.2d 1465, 1515; Thomas v. Evans, 880 F.2d 1235 (11th Cir. 1989). "With regard to reasonableness of a pleadings legal basis, a court may consider the time available to prepare the pleading; the complexity of the legal issues; the plausibility of the argument; and whether the party is proceeding pro se." Pelletier v. Zweitel, 921 F.2d 1465, 1514; Thomas v. Capital Sec. Servs., 836 F.2d 866, 875 (5th Cir. 1988).
This action has not yet completed the discovery stage. Although certain parts of Plaintiff's deposition seem to belie some of the claims made in the Amended Complaint, it is understood that throughout the course of this case, both parties are expected to maintain the integrity of the Court, and only make representations that they believe to be true. Therefore, it is inappropriate to sanction Plaintiff at this time. However, Plaintiff is expected to Amend the Complaint when and if he could reasonably know that certain allegations are untrue.
C. SEXUAL HARASSMENT
Defendant contends that Plaintiff cannot allege a cause of action for sexual harassment. The Guidelines provide sexual harassment occurs, whether or not it is directly linked to the grant or denial of an economic quid pro quo, where 'such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile. or offensive working environment.'"Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). "For sexual harassment to be actionable, it must he sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. at 65; Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982).
A Plaintiff establishes a prima facie case of hostile work environment by showing: (1) the Plaintiff belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment; and (5) the employer is liable. Meritor v. Vinson, 477 U.S. 57. Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987); Mendoza v. Borden. Inc., 195 F.3d 1238(11th Cir. 1999) (en banc).
This case fits squarely under the United States Supreme Court's recent decisions with regard to employer liability for sexual harassment by a supervisor of an employee. The law now is:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2292-93(1998); Burlington Industries v. Ellerth, 118 S.Ct. 2257, 2270(1998). Plaintiff alleges that after she complained about her supervisor's conduct, her working hours were reduced from twenty (20) hours a week to five (5) hours a week. Therefore, Plaintiff is able to state a cause of action for sexual harassment. Again, Defendant's arguments are more suited to a Motion for Summary Judgment.
III. CONCLUSION
Accordingly, it is
ORDERED AND ADJUDGED as follows:
1. Defendant's Motion to Dismiss Amended Complaint is hereby GRANTED, in part. Count III is hereby DISMISSED, with prejudice.
2. Defendant's Motion for Sanctions is hereby DENIED, without prejudice.
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida.