Opinion
CASE NO. 8:10-CV-2541-T-17TBM.
July 14, 2011
ORDER
This cause is before the Court on:
Dkt. 6 Motion to Dismiss Dkt. 10 Opposition Memorandum The Complaint in this case includes the employment discrimination claims of Plaintiffs Nicholas Giannola, George E. Vance, III and Amanda Vance. Plaintiffs have asserted claims under 42 U.S.C. Sec. 2000e et seq., Sec. 760.01, Florida Statutes , and Sec. 448, Florida Statutes. The Charges of Discrimination filed by Plaintiffs assert discrimination based on sex, and retaliation (Dkt. 7). In Plaintiffs' Charges of Discrimination, Plaintiffs name West Winds ALF, 37411 Eiland Blvd., Zephyrhills, FL as Plaintiffs' employer. The Charge of Discrimination of Plaintiff Nicholas Giannola spans conduct from 8/1/2009 through 3/1/2010. The Charge of Discrimination of Plaintiff George Vance spans conduct from 8/1/2009 through 3/1/2010. The Charge of Discrimination of Plaintiff Amanda Vance spans conduct from 8/1/2009 through 1/15/2010.The conduct complained of includes adverse employment actions carried out by Casey O'Keefe, Administrator/Executive Director of West Winds Assisted Living Center. In the Complaint (Dkt. 1), Plaintiffs allege that Defendants WW Zephyrhills, LLC, West Winds ALF, LLC and Golden Health Services, Inc. operated West Winds Assisted Living Center, 37411 Eiland Blvd., Zephyrhills, FL. Plaintiffs identify the principal place of business of each Defendant at an address which is different from the West Winds facility where Plaintiffs worked, and where the alleged discriminatory acts took place. Plaintiffs identify Dennis O'Keefe as the Registered Agent of Defendant Golden Health Services, Inc., the Registered Agent and Managing Member of Defendant WWH, and the Registered Agent of Defendant West Winds. Plaintiffs further allege that Susan O'Keefe is the President of Golden Health Services, Inc., and the Managing Member of West Winds ALF, LLC is Golden Health Services, Inc.
Defendants move to dismiss, or for more definite statement. Defendants argue that a party not named in an EEOC charge cannot be sued in a subsequent civil action. Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350, 1358-59 (11th Cir. 1994). Defendants further argue that the naming requirement notifies the charged party of the allegations and allows the party to participate in conciliation and voluntarily comply with the requirements of Title VII.
Defendants also move to dismiss for failure to state a claim or because the Complaint does not confer subject matter jurisdiction, as Plaintiffs do not specifically allege how the entities identified as Defendants are "employers" subject to Title VII i.e. a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. Defendants argue that since Plaintiffs' causes of action under federal law fail, the Court lacks jurisdiction over the state law claims.
Plaintiffs respond that the allegations of the Complaint detail an interrelationship between the parties that would serve to notify all Defendants of the EEOC claim, and the allegations as plead satisfy the pleading requirements of Title VII. Plaintiffs argue that it is reasonable to assume that when West Winds ALF, LLC was notified of the EEOC inquiry, all Defendants were made aware of the claim. Plaintiffs argue that Dennis O'Keefe is the Registered Agent for all Defendants, and counsel for all Defendants is the same attorney who was provided a copy of the Right to Sue letter issued by the EEOC for all three Plaintiffs. Plaintiffs argue that all Defendants were given an opportunity to participate in the EEOC process and there was no prejudice to any Defendant named in the Complaint but not named in the Charges of Discrimination.
In response to Defendants' argument that the Complaint is deficient because it does not explain "how" the Defendants are "employers" of Plaintiffs, Plaintiffs argue that such a finding will be revealed through discovery and is a question of fact, as is the question of "joint employers." Plaintiffs argue that the Complaint states on multiple occasions that Defendants are the employer of Plaintiffs, which satisfies the pleading requirements of Title VII.
I. Standard of Review a) Rule 12(b)(1)
Attacks on subject matter jurisdiction under Rule 12(b)(1) come in tow forms, "facial" and "factual" attacks. Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). Facial attacks challenge subject matter jurisdiction based on allegations in the complaint, and the district court takes the allegations as true in deciding whether to grant the motion. Id. at 1529. Factual attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings. Id. In resolving a factual attack, the district court may consider extrinsic evidence such as testimony and affidavits. In a factual attack, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluation for itself the merits of the jurisdictional issue. Id. The district court should only rely on Rule 12(b)(1) if the facts necessary to sustain jurisdiction do not implicate the merits of the plaintiff's cause of action. Garcia v. Copenhaver, Bell Associates, 104 F.3d 1256, 1261 (11th Cir. 1997).
b) Rule 12(b)(6)
"Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." "[D]etailed factual allegations" are not required, Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), but the Rule does call for sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face," Id., at 570. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. Two working principles underlie Twombly. First, the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements. Id., at 555. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Id., at 556. A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint's framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1955-1956 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
II. Discussion
Title VII provides that "[t]he term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person. . . ." See 42 U.S.C. 2000e(b). A plaintiff who names more than one entity in a complaint for discrimination, and who is proceeding under a "joint employer" theory, may aggregate the number of employees. See Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1361 (11th Cir. 1994). The joint employer doctrine is applicable when separate businesses at issue have become associated with one another via a contractual relationship. See Virgo, at 1360-1361.
The primary purpose of Title VII is remedial, and its aim is to eliminate employment discrimination by creating a federal cause of action to promote and effectuate its goals. To that end, Title VII is to be given a liberal construction, which includes a broad interpretation as to the employer and employee provisions. There is a tension between the broad interpretation accorded Title VII, and corporate law principles. Businesses may incorporate to limit liability, and to isolate liabilities among separate entities.
A. Subject Matter Jurisdiction
Defendants' attack on subject matter jurisdiction is a facial attack which is based on the allegations of the Complaint. The Court takes the allegations of the Complaint as true in deciding whether to grant the motion.
Where a jurisdictional challenge implicates the merits of a plaintiff's underlying claim, the proper course of action is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's cause of action.Morrison v. Amway Corp., 323 F.3d 920 (11th Cir. 2003) (FMLA case).
After consideration, the Court denies the Motion to Dismiss under Rule 12(b)(1).
B. Rule 12(b)(6)
Title VII requires ordinarily that an individual filing a charge with the EEOC name all of the individuals against whom the charge is brought. See 42 U.S.C. Sec. 2000e-5(f)(1); Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1358 (11th Cir. 1994). The requirement that the plaintiff name the Title VII defendant in the EEOC charge ensures: 1) that the defendant is notified early on of the discrimination claim, allowing him an opportunity to preserve evidence that could be useful in his defense; and 2) that the EEOC can include all relevant parties in its investigation and conciliation efforts.
The Eleventh Circuit Court of Appeals liberally construes the naming requirement of Title VII, examining whether the purposes of the Act have been fulfilled to determine whether a party unnamed in the EEOC charge may be subjected to the jurisdiction of federal courts. Id. at 1358-1359; Clark v. City of Macon, Ga., 860 F. Supp. 1545, 1550-1551 (M.D. Ga. 1994).
In order to determine whether the purposes of Title VII are met, the Court must consider: 1) the similarity of interest between the named party and the unnamed party; 2) whether the plaintiff could have ascertained the identity of the unnamed party at the time the EEOC charge was filed; 3) whether the unnamed parties received adequate notice of the charges; 4) whether the unnamed parties had an adequate opportunity to participate in the conciliation process; and 5) whether the unnamed party was actually prejudiced by its exclusion from the EEOC proceedings. See Lewis v. Asplundh Tree Expert Company, 402 Fed.Appx. 454 (11th Cir. 2010) (unpublished) (citing Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1359 (11th Cir. 1994)). The test is not meant to be a "rigid test", and "[o]ther factors may be relevant depending on the specific facts of the case." Id. An additional factor that may be considered is whether an investigation of the unnamed party "could have reasonably grown out of [the EEOC] charge." Id.
An "identity of interest" may exist when, "under the circumstances, the interests of a named party are so similar as the unnamed party that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings." Wong v. Calvin, 87 F.R.D. 185 (N.D. Fla. 1980).
The Court has considered the allegations of the Complaint (Dkt. 1), and the Charges of Discrimination (Dkt. 7). The Court considers the Charges of Discrimination to be a part of the Complaint, in that the Charges are central to Plaintiffs' claims and their authenticity is not in dispute. The allegations in the Charges of Discrimination may support claims of discrimination based on discrete events and/or a hostile work environment. Two of the Charges of Discrimination refer to Plaintiffs' consultation with an attorney before Plaintiffs' employment was terminated, and Plaintiffs filed the Charges of Discrimination. The only entity that Plaintiffs refer to in the Charges of Discrimination is West Winds ALF, and the only individual who carried out the alleged discriminatory conduct is Plaintiffs' then-supervisor, Casey O'Keefe. At this point, the Court has no information as to how the additional Defendants are connected to West Winds ALF.
The standard of review for a Rule 12(b)(6) motion is somewhat higher than when the Court decided a case such as Digiro v. Pall Corp., 993 F.Supp. 1471 (M.D. Fla. 1998). The current standard of review requires a plaintiff to allege sufficient facts to support a plausible claim for relief. The current Complaint provides no facts which indicate how or why Plaintiffs assert claims against other entities in addition to West Winds ALF, which is named in the Charge of Discrimination. Plaintiffs must have some factual basis for Plaintiffs' allegation that additional entities were Plaintiffs' employer at the relevant time, and which would clarify the legal theory on which Plaintiffs are proceeding. The question of employer/employee status is a question of fact which the Court would expect to resolve fully at the summary judgment stage.
After consideration, the Court will grant the Motion to Dismiss, with leave to file an amended Complaint which contains a factual basis for including the additional entities in addition to West Winds ALF in Plaintiffs' Complaint. Accordingly, it is
ORDERED that Defendants' Motion to Dismiss under Rule 12(b)(1) is denied, and Defendants' Motion to Dismiss under Rule 12(b)(6) is granted, with leave to file an amended complaint within fourteen days. DONE AND ORDERED in Chambers, in Tampa, Florida.