Opinion
Case No. 6:23-cv-257-ACC-EJK
2024-02-29
Seth SCHMIDT, Plaintiff, v. DISNEY PARKS, EXPERIENCES AND PRODUCTS, INC. and Walt Disney Parks and Resorts, U.S., Inc., Defendants.
Rachel L. Rodriguez, Vires Law Group PLLC, West Palm Beach, FL, Carroll Sanders, Heekin Law, PA., Jacksonville, FL, for Plaintiff. Paul J. Scheck, Mary Ruth Houston, Shutts & Bowen, LLP, Orlando, FL, Reed Sebastian Arroyo, Longwood, FL, for Defendants Disney Parks, Experiences and Products, Inc., Walt Disney Parks and Resorts, U.S., Inc.
Rachel L. Rodriguez, Vires Law Group PLLC, West Palm Beach, FL, Carroll Sanders, Heekin Law, PA., Jacksonville, FL, for Plaintiff.
Paul J. Scheck, Mary Ruth Houston, Shutts & Bowen, LLP, Orlando, FL, Reed Sebastian Arroyo, Longwood, FL, for Defendants Disney Parks, Experiences and Products, Inc., Walt Disney Parks and Resorts, U.S., Inc.
ORDER
ANNE C. CONWAY, United States District Judge.
This cause comes before the Court on Defendant Walt Disney Parks & Resorts, U.S., Inc.'s ("WDPR") Motion to Dismiss Plaintiff Seth Schmidt's Complaint. (Doc. 31). Schmidt has filed a Response in Opposition (Doc. 42), and WDPR has filed a Reply (Doc. 55). Thus, the Motion is ripe for review.
In his nine-count Complaint, Schmidt alleges that WDPR violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"); the Americans with Disabilities Act, 42 U.S.C. §§ 12111, et seq. ("ADA"); Florida's Private Sector Whistleblower Act, Fla. Stat. §§ 448.101 et seq. ("Private Sector FWA"); Florida's Public Sector Whistleblower Act, Fla. Stat. §§ 112.3187 et seq. ("Public Sector FWA"); Florida's Civil Rights Act, Fla. Stat. §§ 760.07, 760.10 ("FCRA"); and Florida's Constitution, Art. I, § 23. (Doc. 1). For the reasons below, the Court will grant WDPR's Motion.
I. BACKGROUND
A. Plaintiff Schmidt's Employment History
Schmidt started working as a cast member at Disney in 2013. (Doc. 1 ¶ 47). He was "employed by [WDPR]," where he served as an operations ride host at the Hollywood Studios Park. (Id. ¶¶ 1, 47). His job, among many others, was materially altered in early 2020 when the company responded to the COVID-19 health crisis. (Id. ¶¶ 12, 47).
The Court recognizes that Schmidt's use of the term "Disney" is ambiguous. As demonstrated in the first page of the Complaint, Schmidt uses the term "Disney" to collectively refer to all Defendants. (Doc. 1). The only sensible way to read this defined term is under a theory that Schmidt seeks to hold Defendants collectively responsible for all actions.
Disney closed its parks' doors in March 2020 in response to the COVID-19 pandemic. (Id. ¶ 12). The company reopened nearly four months later, requiring its employees
to wear safety masks and to social distance. (Id. ¶¶ 12-13). Schmidt returned to his in-person shifts at this time and complied with the safety protocols. (Id. ¶ 47).
Approximately one year after reopening, in July 2021, a senior executive from The Walt Disney Company ("TWDC")—the Disney parent entity—announced a company policy requiring employees to receive the COVID-19 vaccine. (Id. ¶¶ 15, 48; Doc. 1-2 at 4). Upon Schmidt's information and belief, Disney Parks, Experiences and Products, Inc. ("DPEP") had significant control over the design, implementation, and enforcement of the vaccine policy. (Doc. 1 ¶ 16). On September 5, 2021, Schmidt submitted to Disney a request for a religious exemption from the vaccine mandate and a statement emphasizing that the company's safety measures were coercive and unlawful. (Id. ¶¶ 48, 54; Doc. 1-2 at 22). He further requested that a "Walt Disney company" representative sign an agreement holding Disney liable if he were to develop an illness from receiving the vaccine. (Doc. 1 ¶ 54; Doc. 1-2 at 25). Schmidt, however, never received a final determination on his exemption request or a signed liability agreement. (Doc. 1 ¶¶ 51, 55).
Shortly after, on November 19, 2021, the Florida government passed legislation forbidding "vaccinate or terminate" policies. (Id. ¶ 20). That same day, a health and safety group from TWDC sent an email to Florida cast members informing them that the company was pausing enforcement of the vaccine mandate. (Id. ¶ 21; Doc. 1-2 at 6). However, Disney also specified that unvaccinated employees were still required to verify their vaccination status and that unverified employees were required to follow undefined safety protocols, "including face coverings and physical distancing." (Doc. 1 ¶ 22).
Following the repeal of the vaccine mandate, Disney instituted "Augmented Health & Safety Protocols" ("Augmented Protocols"), which established heightened procedures for isolating, social distancing, and masking. (Id. ¶¶ 24, 29-30). The Augmented Protocols required varied use of face shields, safety glasses, and N-95 masks. (Id. ¶ 30). While it is not clear exactly who was subject to the policy or upon which dates the policy was modified, it is evident that the restrictions applied to employees who did not verify their vaccination status. (Id. ¶¶ 30-36). Schmidt was in this cohort. (Id. ¶ 51).
Schmidt felt ostracized by the Augmented Protocols, which required him to wear a mask and safety glasses except when eating at a distance from others. (Id. ¶ 53). On December 2, 2021, Schmidt's manager confronted him about his non-compliance with the Augmented Protocols. (Id. ¶ 55). Schmidt was then suspended for investigation. (Id.). A few days later, on December 9, 2021, Schmidt's manager terminated Schmidt's employment, citing Schmidt's noncompliance with the vaccination verification process and the Augmented Protocols. (Id. ¶ 56). In response, Schmidt filed grievances with the EEOC and the Florida Commission on Human Relations ("FCHR"). (Id. ¶ 57). The EEOC issued a notice to sue on October 11, 2022. (Id.).
In the months that followed Schmidt's termination, national and local authorities gradually relaxed their guidance regarding COVID-19 safety measures. (Id. ¶¶ 27, 38). Disney followed suit. On May 10, 2022, Disney lifted its mask requirement for vaccinated cast members. (Id. ¶ 28). Then, on August 16, 2022, Disney lifted its Augmented Protocols for employees who did
not verify their vaccination status. (Id. ¶ 39).
B. Procedural History
On June 29, 2022, plaintiffs Barbara Andreas, Stephen Cribb, and Adam Pajer sued defendants TWDC and DPEP in the Circuit Court of the Ninth Judicial Circuit in and for Osceola County, Florida. (Andreas v. Walt Disney Co., No. 6:23-cv-107, Doc. 1-3). In their original Complaint, plaintiffs Andreas, Cribb, and Pajer asserted one count against defendants TWDC and DPEP under Florida law. (Id. at 25 (citing Fla. Stat. §§ 448.101, et seq.)). Thereafter, on December 23, 2022, the three original plaintiffs along with Steven Gibbons, Cheron Hayes, Cathryn Koepke, and Seth Schmidt collectively filed the First Amended Complaint, in which they asserted additional state and federal claims against TWDC and DPEP, as well as WDPR, Reedy Creek Improvement District ("Reedy Creek"), Disney Gift Card Services, Inc. ("DGCS"), Disney Human Resources Services Co., LLC ("DHRS"), and Disney Vacation Club Management, LLC ("DVCM"). (Andreas, No. 6:23-cv-107, Doc. 1-1). On January 20, 2023, the defendants removed the case to this Court. (Andreas, No. 6:23-cv-107, Doc. 1 ¶ 4; Doc. 3).
In their First Amended Complaint, the plaintiffs generally alleged that the defendants wrongfully terminated their employment after the plaintiffs requested exemptions from defendants' COVID-19 vaccine mandates and otherwise objected to defendants' increased safety protocols for unvaccinated cast members. (Andreas, No. 6:23-cv-107, Doc. 1-1). At various points in time, the plaintiffs requested exemptions from the vaccine mandate and/or mask mandate based on their religious beliefs. (Id.). In total, the seven plaintiffs asserted nine claims against the seven defendants. (Id.). Because of the great variation in factual circumstances concerning each plaintiff, the Court severed plaintiffs' claims on January 24, 2023, instructing each plaintiff to "pursue his or her claims only as they relate to the corporations relevant to his or her employment." (Andreas, No. 6:23-cv-107, Doc. 7 at 3-4).
On February 14, 2023, Schmidt filed his Complaint against TWDC, WDPR, DPEP, and Reedy Creek. Schmidt alleges claims for discrimination and retaliation under Title VII (Counts V-VI); for discrimination, retaliation, and coercion under the ADA (Counts VII-VIII); for violation of the Private Sector FWA (Count I); for violation of the Public Sector FWA (Count II); for discrimination and retaliation under the FCRA (Count III-IV); and for violation of Florida's Constitutional Right to Privacy (Count IX). All but the Public Sector FWA claim and Florida Constitutional Right to Privacy claim are before this Court.
Schmidt voluntarily dismissed TWDC from this suit. (Docs. 63-64).
The Court dismissed Reedy Creek from this suit in its December 8, 2023 Order. (Doc. 58).
Schmidt withdrew the Public Sector FWA claim (Count II) and the Florida Constitutional Right to Privacy claim (Count IX). (Doc. 69).
WDPR, as Schmidt acknowledges, is a Florida corporation and is Schmidt's employer. (Doc. 1 ¶¶ 1-2). WDPR moves to dismiss Schmidt's Complaint on various grounds.
II. LEGAL STANDARD
For purposes of deciding a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true the factual allegations in the complaint and draws all reasonable inferences in the light most favorable to the plaintiff. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). When reviewing a motion to dismiss, courts are generally bound "to the face of the complaint and attachments thereto." Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1368 (11th Cir. 1997).
"Generally, under the Federal Rules of Civil Procedure, a complaint need only contain 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Randall, 610 F.3d at 705 (quoting Fed. R. Civ. P. 8(a)(2)). However, the plaintiff's complaint must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Thus, the Court is not required to accept as true a legal conclusion merely because it is labeled a "factual allegation" in the complaint; it must also meet the threshold inquiry of facial plausibility. Id.
A district court may dismiss a complaint with prejudice when granting leave to amend would be futile. W. Sur. Co. v. Steuerwald, 760 F. App'x 810, 814 (11th Cir. 2019). If a more carefully drafted complaint could state a viable claim, a district court should give the plaintiff at least one chance to amend before dismissing with prejudice. Id.
Unpublished opinions of the Eleventh Circuit generally constitute persuasive, and not binding, authority. See 11th Cir. R. 36-2 and I.O.P. 6.
III. ANALYSIS
A. Shotgun Pleading
WDPR contends that Schmidt's Complaint must be dismissed for being an impermissible shotgun pleading. "Shotgun pleadings" refer to complaints that violate either Rule 8(a)(2) or Rule 10(b) of the Federal Rules of Civil Procedure. Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir. 2015). "The unifying characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests." Id. at 1323; see Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App'x 274, 277 (11th Cir. 2008) ("A complaint that fails to articulate claims with sufficient clarity to allow the defendant to frame a responsive pleading constitutes a 'shotgun pleading.'"). "[D]ismissal under Rules 8(a)(2) and 10(b) is appropriate where 'it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.'" Weiland, 792 F.3d at 1325 (emphasis omitted) (quoting Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)).
The Eleventh Circuit has delineated four categories of shotgun pleadings:
(1) "a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint," (2) "a complaint that ... is ... replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action," (3) a complaint that fails to "separat[e] into a different count each cause of action or claim for relief," and (4) a complaint that "assert[s] multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against."
Id. at 1321-23.
WDPR argues that the Complaint is a shotgun pleading because it fails to clarify which conduct is attributable to which Defendant. In response, Schmidt asserts that dismissal is only warranted in cases where it is virtually impossible to understand the claims—a standard WDPR apparently cannot satisfy. This conflict clearly touches on the fourth category of shotgun pleadings.
While it is clear which claims are brought against each Defendant, less clear is for which acts or omissions each Defendant is allegedly responsible. Surprisingly, very few of Schmidt's allegations specify a particular Defendant by name. Instead, Schmidt uses the broadly defined term Disney to encompass all Defendants.
Significantly, "nothing in the pleading rules prohibits lodging the same claim against multiple [d]efendants if they are all alleged to have participated in the same acts rising to the claim." Whitehurst v. G & A Rest. Mgmt., Inc., No. 2:20-cv-67-MRM, 2020 WL 2062462, at *2 (M.D. Fla. Apr. 29, 2020). However, "unless it is possible that [all] [d]efendants could have engaged in the same conduct," a complaint that lumps together the defendants "will be found to be a shotgun pleading." Norris v. Honeywell Int'l, Inc., No. 8:22-cv-1675-CEH-TGW, 2023 WL 6256183, at *4 (M.D. Fla. Sept. 26, 2023).
Complaints alleging that defendants operated jointly have survived a shotgun pleading challenge. See id. (finding that a complaint was not a shotgun pleading where plaintiff "adequately convey[ed] a theory of collective liability" between a parent corporation and its subsidiary regarding a vaccine policy); Marino v. Spizzigo Enters., LLC, No. 10-24391-CIV, 2021 WL 8894429, at *7 (S.D. Fla. Feb. 3, 2021) (finding that a complaint was not a shotgun pleading where plaintiff alleged that two defendants were "owned and/or controlled, directly or indirectly by" a third defendant).
Here, Schmidt uses the term Disney to refer to all Disney-related entities and argues that "all Defendants are part of an integrated enterprise." (Doc. 42 at 4). While this is far from a model pleading, Schmidt has narrowly conveyed a theory of collective liability and survives WDPR's shotgun-pleading challenge.
Schmidt variously and inconsistently uses the term Disney and makes little effort to specify WDPR's role. That said, the Court makes no determination at this point regarding the sufficiency of Schmidt's allegations.
B. Failure to State a Claim
1. Title VII & FCRA Discrimination (Counts III & V)
Turning next to Schmidt's Title VII discrimination claims, the Court must first analyze the precise nature of Schmidt's
The Court will consider Schmidt's Title VII and FCRA religious discrimination claims together because they are governed by the same requirements of proof and the same analytical framework. Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).
allegations. In short, Schmidt seems to challenge WDPR's vaccine mandate, Augmented Protocols, and WDPR's enforcement thereof.
Specifically, Schmidt alleges that Disney violated Title VII by "imposing a [COVID]-19 vaccine mandate" and by imposing its Augmented Protocols, which "segregated and classified" Schmidt because of his religious beliefs against the COVID-19 vaccine. (Doc. 1 ¶¶ 83, 85, 108, 110). Schmidt further alleges that Disney violated Title VII by "refusing to process or respond to" his religious exemption from the vaccine mandate. (Id. ¶¶ 84, 109). WDPR argues that Schmidt's Title VII claims must fail because Schmidt confuses the elements of his claims; Schmidt's claims directed to Disney's vaccine mandate are moot; and Schmidt alleges no religious conflict with WDPR's Augmented Protocols. (Doc. 31 at 17-18).
Given Schmidt's allegations and supporting brief, the Court understands Schmidt as alleging two claims: (1) a disparate treatment claim under a traditional theory and a reasonable accommodation theory, and (2) a disparate impact claim. The Court will address each in turn.
a. Disparate Treatment
Title VII recognizes two causes of action: disparate treatment and disparate impact. The disparate treatment provision in Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... religion." 42 U.S.C. § 2000e-2(a)(1); see E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 771, 135 S.Ct. 2028, 192 L.Ed.2d 35 (2015). Disparate treatment claims may proceed under multiple theories, including traditional disparate treatment and reasonable accommodation. Bailey v. Metro Ambulance Servs., Inc., 992 F.3d 1265, 1272 (11th Cir. 2021).
Title VII defines religion to "include[] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate" a "religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j).
To state a prima facie case of disparate treatment under a traditional theory, plaintiff must show that "(1) [he] is a member of a protected class; (2) [he] was subjected to adverse employment action; (3) [his] employer treated similarly situated employees more favorably; and (4) [he] was qualified to do the job." E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000).
Schmidt has failed to plead the third element. While Schmidt argues in his Response brief that he alleged that "employees who did not seek religious accommodations were treated more favorably," (Doc. 42 at 14), this allegation is nowhere to be found in his Complaint. Further absent are any allegations claiming that another group was similarly situated to Schmidt. Thus, Schmidt has not plausibly alleged a disparate treatment claim under a traditional theory.
Schmidt also seeks a disparate treatment claim under a reasonable accommodation theory. "To establish a reasonable[] accommodation claim of religious disparate treatment, a plaintiff must first set forth a prima facie case by showing
that (1) his sincere and bona fide religious belief conflicted with an employment requirement, and (2) his employer took adverse employment action against him because of his inability to comply with the employment requirement or because of the employer's perceived need for his reasonable accommodation." Metro Ambulance, 992 F.3d at 1275. As discussed above, Schmidt directs his reasonable accommodation claim against WDPR's vaccine mandate.
Schmidt's reasonable accommodation claim cannot be premised on WDPR's enforcement of the vaccine mandate because he fails the second element. For starters, Schmidt never received a final determination on his vaccine accommodation request. (Doc. 1 ¶ 51). That is so because WDPR indefinitely suspended the vaccine mandate in November 2021. (Doc. 1-2 at 6). So, any claim that WDPR took an adverse action based on a defunct policy is particularly suspect.
Further, it is implausible for this Court to conclude that WDPR suspended and terminated his employment because of his inability to comply with an unenforced vaccine mandate. Instead, his allegations clearly suggest that WDPR suspended and terminated his employment for his non-compliance with the company's Augmented Protocols. In particular, WDPR suspended Schmidt on December 2, 2021 after an inquiry regarding his noncompliance with the Augmented Protocols. (Doc. 1 ¶ 55). The following week, on December 9, 2021, Schmidt's manager terminated his employment because, as Schmidt acknowledges, "he did not submit to the Augmented Protocol policy." (Id. ¶ 56). Thus, Schmidt cannot base his reasonable accommodation claim on WDPR's vaccine mandate.
Finally, Schmidt cannot state a reasonable accommodation claim based on WDPR's enforcement of the Augmented Protocols because Schmidt never sought a religious exemption from that policy. At no point did Schmidt mention that his religious beliefs prohibited his compliance with WDPR's masking protocols. See Norris v. Honeywell Int'l, Inc., No. 8:22-cv-1675-CEH-TGW, 2023 WL 6256183, at *16 (M.D. Fla. Sept. 26, 2023) (rejecting Title VII claims for failure to accommodate where "[n]one of the [p]laintiffs assert that their religious beliefs prevented them from complying with a testing requirement, or with any other employment conditions aside from the receipt of the vaccine"). Thus, Schmidt cannot state a disparate treatment claim for reasonable accommodation based on WDPR's Augmented Protocols.
b. Disparate Impact
Disparate impact claims challenge "practices that have a disproportionately adverse effect on [a protected group] and are otherwise unjustified by a legitimate rationale." Texas Dep't of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 524-525, 135 S.Ct. 2507, 192 L.Ed.2d 514 (2015) (internal quotations omitted). The disparate impact provision in Title VII makes it unlawful for an employer to "limit, segregate, or classify his employees... in any way which would deprive... any individual of employment opportunities ... because of such individual's... religion." 42 U.S.C. § 2000e-2(a)(2); see Abercrombie, 575 U.S. at 771, 135 S.Ct. 2028. To establish a prima facie disparate impact claim, a plaintiff must show a (1) "facially neutral, employment practice," (2) "an identified statistical disparity" for a protected group, and (3) a causal connection. Joe's Stone Crab, 220 F.3d at 1268.
Schmidt argues that he has satisfied these elements because he alleged that
both policies applied to all cast members, that he requested accommodations, and that "he suffered adverse effect[s] for his inability to consent to the policies based on his religious beliefs." (Doc. 42 at 15). Meanwhile, WDPR argues that Schmidt has failed to state a claim for disparate impact because he does not identify an adverse effect on a protected group. (Doc. 31 at 18). Schmidt's disparate impact claims are deficient for various reasons.
Despite his argument that he requested accommodation from both policies, nowhere in Schmidt's Complaint does he allege that he requested an exemption from WDPR's Augmented Protocols.
First, there are no allegations to support a disparate impact claim against WDPR's vaccine mandate. Schmidt only alleges that he was "segregated and classified" apart from other cast members by WDPR's Augmented Protocols, not by the vaccine mandate. (Doc. 1 ¶¶ 85, 110). Without a comparable allegation in his Complaint, the Court cannot consider a disparate impact claim directed at WDPR's vaccine mandate.
Second, Schmidt's argument that WDPR's Augmented Protocols had a disparate impact is unsupported. In a typical disparate impact claim, a plaintiff must "offer[] statistical evidence sufficient to show that the challenged practice resulted in prohibited discrimination." Krop v. Nicholson, 506 F. Supp. 2d 1170, 1176 (M.D. Fla. 2007) (internal quotations omitted); see also Ricci v. DeStefano, 557 U.S. 557, 587, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (describing the "prima facie case of disparate[] impact liability" as "essentially, a threshold showing of a significant statistical disparity"). Here, Schmidt's Complaint is devoid of any allegations to suggest a statistical disparity for his protected class.
Third, Schmidt's framing of his protected class also stands on precarious ground. Schmidt's protected group appears not to be based on a particular faith or subgroup, but rather a specific religious belief— namely, opposition to the COVID-19 vaccine. As one court explained:
If a plaintiff could narrowly define its class based on its particular religious belief, rather than the broader religious faith or group to which it belongs, then disparate[] impact claims would have a nearly limitless reach. This is because any policy impacting a plaintiffs specific religious belief would generally impact 100% of the members of a class defined by that belief, which would virtually always amount to a disproportionate impact as compared to those falling outside the class.
For example, a Jewish man impacted by a policy affecting a belief rooted in his idiosyncratic, personalized interpretation of Judaism could claim disparate impact even though no other Jewish people hold that belief.
Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 406 F. Supp. 3d 1258, 1305 n.36 (M.D. Ala. 2019), aff'd, 6 F.4th 1247 (11th Cir. 2021); see also Dunbar v. Walt Disney Co., No. CV 22-1075-DMG (JCX), 2022 WL 18357775, at *3 (C.D. Cal. July 25, 2022) (rejecting plaintiffs disparate impact claim based on a theory that his protected group included "all those who share a religious belief against vaccinations").
As a final matter, Schmidt argues that his claims should survive dismissal because he is not required to establish a prima facie case of each type of discrimination. (Doc. 42 at 13-14). He cites Booth v. GTE
Federal Credit Union for the proposition that "the prima facie case for discriminatory employment decisions 'is an evidentiary standard, not a pleading requirement.'" (Id. (citing Booth v. GTE Fed. Credit Union, No. 8:21-cv-1509-KKM-JSS, 2021 WL 5416690, at *2 (M.D. Fla. Nov. 20, 2021) (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)))). Schmidt's reliance on Booth is unavailing.
The Eleventh Circuit has held that "[e]ven if a plaintiff need not plead a prima facie case to survive dismissal, the complaint must satisfy Iqbal's 'plausible on its face' standard, and the allegations must be sufficient to 'raise a right to relief above the speculative level' under Twombly." McCullough v. Bd. of Regents of the Univ. Sys. of Ga., 623 F. App'x 980, 983 (11th Cir. 2015); see Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010) (noting, after Twombly and Iqbal, that a plaintiff is required to allege a prima facie case of discrimination). Based on the plausibility pleading standard, and having drawn all reasonable inferences in Schmidt's favor, he has not alleged factual content that allows the Court to draw a reasonable inference that WDPR is liable for religious discrimination.
In summary, Schmidt has failed to state a claim for disparate treatment and disparate impact because he has not alleged enough factual content to render either claim plausible. Schmidt's discrimination claims under Title VII and the FCRA are dismissed without prejudice and without leave to amend.
The Court denies Schmidt's request for leave to amend because Schmidt has not properly raised the request under Federal Rule of Civil Procedure 15(a)(2) and has not made the requisite showing under Rule 16(b). Instead, Schmidt improperly included his request for leave to amend in his opposition brief. Newton v. Duke Energy Fla., LLC, 895 F.3d 1270, 1277 (11th Cir. 2018) ("[W]here a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly."); Wright v. Gilead Scis., Inc., No. 3:20-cv-1026-J-34PDB, 2021 WL 641327, at *1 (M.D. Fla. Jan. 11, 2021) ("[A] request for affirmative relief, such as a request for leave to amend a pleading, is not properly made when simply included in a response to a motion."). Additionally, Schmidt has not made a "good cause" showing, which is required under Rule 16(b) when a party seeks to amend a pleading after the deadline has passed. Regions Bank v. Kaplan, No. 8:12-cv-1837-T-17MAP, 2015 WL 13704669, at *1 (M.D. Fla. Sept. 24, 2015) ("When leave to amend is sought after the deadline to amend the pleadings has passed, the movant must... show 'good cause' under Federal Rule of Civil 16(b) in order to obtain the right to amend."). Schmidt's deadline to amend the pleading passed on May 31, 2023. (Doc. 27 at 1). While the Court gave Schmidt leave to file a motion to amend his Complaint by June 30, 2023 (Doc. 38), he failed to do so.
2. Title VII & FCRA Retaliation (Counts IV & VI)
Schmidt also alleges that Disney violated the retaliation provision under Title VII when it disciplined him because he challenged Disney's allegedly unlawful conduct. Schmidt specifies that he objected to Disney's allegedly unlawful conduct by providing a written notice challenging WDPR's allegedly unlawful vaccine mandate; by requesting that a Disney representative
The Court will consider Schmidt's Title VII and FCRA retaliation claims together "[b]ecause [the retaliation] provision of the FCRA is almost identical to its federal counterpart, 42 U.S.C. § 2000e-3(a), [and because] Florida courts follow federal case law when examining FCRA retaliation claims." Carter v. Health Mgmt. Assoc., 989 So. 2d 1258, 1262 (Fla. Dist. Ct. App. 2008).
sign an indemnification agreement; and by filing administrative charges with the EEOC and FCHR. (Doc. 1 ¶¶ 96-97, 117-18). WDPR argues, among other reasons, that Schmidt cannot sufficiently plead causation (Doc. 31 at 21).
Title VII prohibits retaliation against an employee "because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [thereunder]." 42 U.S.C. § 2000e-3(a). "To establish a prima facie case of Title VII retaliation, [plaintiff] must show that (1) [he] engaged in statutorily protected activity; (2) [he] suffered a materially adverse employment action; and (3) there was a causal link between the two." Dixon v. Hallmark Cos., Inc., 627 F.3d 849, 856 (11th Cir. 2010). Before addressing the causation element, it is imperative to understand which of Schmidt's activities satisfy element one.
For starters, as discussed above, Schmidt has failed to sufficiently plead that WDPR's policies violated Title VII. Nevertheless, the Eleventh Circuit recognizes that a plaintiff can establish a statutorily protected expression for a retaliation claim under the opposition clause if he demonstrates "a good faith, reasonable belief that the employer was engaged in unlawful employment practices." Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002) (quoting Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)). "This standard has both a subjective and an objective component." Id. at 1312 (quoting Little, 103 F.3d at 960). That means, a plaintiff must "show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices" and "that his belief was objectively reasonable in light of the facts and record presented." Id. Both aspects are called into question to the extent that Schmidt's protected activities challenge WDPR's Augmented Protocols.
First, unlike WDPR's vaccine mandate, Schmidt does not request a religious accommodation from WDPR's Augmented Protocols. This distinction criticality undermines Schmidt's subjective belief that the Augmented Protocols violated his religious rights under Title VII. The only allegation to ostensibly support Schmidt's argument is his belief that the Augmented Protocols amounted to an unlawful "de facto Covid-19 vaccination mandate." (Doc. 1 ¶ 24).
The Court is unpersuaded. In fact, multiple courts have held that masking, testing, and social distancing requirements are not even recognized adverse actions under Title VII. Norris, 2023 WL 6256183, at *15 ("Eleventh Circuit caselaw is inconsistent with [p]laintiffs' argument that an employment requirement to mask, test, and socially distance constitutes an objectively serious and material change to employment conditions."); Savel v. MetroHealth Sys., No. 22-CV-2154, 2023 WL 4490395, at *2, *7 (N.D. Ohio July 12, 2023) (rejecting a Title VII religious accommodation claim for failure to plead an adverse action where the employer required unvaccinated plaintiffs to "wear[] surgical masks and... maintain social distancing whenever possible, including by not eating in group environments"). Given that the Augmented Protocols are arguably not serious and material changes to Schmidt's employment under Title VII, there is no merit to his argument that the Augmented Protocols
are so harsh as to be deemed a de facto vaccine mandate. As a result, Schmidt fails to plausibly establish that he had a good faith, objectively reasonable basis for believing that the Augmented Protocols violated Title VII.
Thus, Schmidt's retaliation claim rests on the notion that he suffered an adverse action because of his protected activities challenging WDPR's defunct vaccine mandate. As discussed above, this casual inference is unreasonable given that the allegations clearly demonstrate that Schmidt's suspension and termination were related to his noncompliance with the company's Augmented Protocols.
Schmidt alleges that he filed administrative charges with the EEOC and FCHR (Doc. 1 ¶¶ 97, 118), but there is no indication that he informed WDPR of said filing or that he filed the charges before he was suspended and terminated. Without more, the Court cannot plausibly infer that WDPR retaliated based on actions of which it was unaware or that WDPR retaliated based on actions that occurred after WDPR suspended and terminated Schmidt. See Gooden v. Internal Revenue Serv., 679 F. App'x 958, 968 (11th Cir. 2017) (noting that alleged conduct cannot be retaliatory when it occurs before a protected activity).
While he argues that his termination was pretextual, this is not enough. At this stage, Schmidt is required to "raise a right to relief above the speculative level," which demands "more than a sheer possibility that a defendant has acted unlawfully." McCullough, 623 F. App'x at 983 (internal quotations omitted). Simply put, Schmidt has not met his pleading burden. As a result, his Title VII and FCRA retaliation claims are dismissed without prejudice and without leave to amend.
3. ADA Discrimination (Count VII)
Schmidt alleges that WDPR violated the ADA by enforcing policies based on his perceived disability as an unvaccinated employee. In particular, Schmidt alleges that Disney engaged in a prohibited employment practice by imposing a COVID-19 vaccine mandate; by enforcing the Augmented Protocols on those who did not follow the mandate; and by terminating his employment for noncompliance. (Doc. 1 ¶¶ 132-34). By enforcing rules on employees who did not get vaccinated—thus segregating them from the vaccinated employees —Schmidt alleges that Disney perceived those individuals as disabled and unable to complete their jobs. (Id.) In Schmidt's words, Disney treated the unvaccinated as though they were "a continually contagious vector of disease and dangerous." (Id. ¶ 135). In response, WDPR argues that Schmidt's ADA claim must fail because susceptibility to COVID-19 is not a disability within the terms of the ADA. (Doc. 31 at 19-20).
The ADA prohibits employers from discriminating "against a qualified individual on the basis of a disability." 42 U.S.C. § 12112(a). "To establish a prima facie case for disability discrimination, a plaintiff must produce sufficient evidence to permit a jury to find that [he]: (1) is disabled, (2) is a qualified individual, and (3) was discriminated against because of [his] disability." Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11th Cir. 2019) (emphasis omitted). Under the ADA, disability is defined as (1) "a physical or mental impairment," (2) "a record of such an impairment," or (3) "being regarded as having such an impairment." 42 U.S.C. § 12102(1).
Schmidt relies on the third category. (Doc. 1 ¶ 129 (quoting 42 U.S.C. § 12102(3))). The ADA provides that "an
individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A). This section does not apply to "impairments that are transitory and minor." Id. § 12102(3)(B).
Schmidt's "regarded as" disability theory fails as a matter of law. The Eleventh Circuit in EEOC v. STME, LLC affirmed dismissal of an ADA claim under 42 U.S.C. § 12102(1)(C) on the grounds that the ADA does not apply to potential future disabilities. 938 F.3d 1305, 1311 (11th Cir. 2019). The Eleventh Circuit rejected plaintiffs argument that her employer unlawfully regarded her as having a disability because of her potential future exposure to a virus. Id. at 1315. In doing so, the Eleventh Circuit reasoned that the ADA only applies to "current, past, or perceived disabilit[ies]"—it does not "extend to an employer's belief that an employee might contract or develop an impairment in the future." Id.
Multiple courts have applied this reasoning to reject ADA claims based on potential susceptibility to COVID-19 and the status of being unvaccinated. See Norris, 2023 WL 6256183, at *9 (reasoning that an "unvaccinated status is not a disability under the ADA" because "the potential to contract COVID-19" is "a future impairment rather than an existing one"); Kim v. PGA Tour, No. 3:23-cv-441-TJC-JBT, 2024 WL 280297, at *5 (M.D. Fla. Jan. 25, 2024) (rejecting an ADA claim premised on an employer's alleged perception that employees were "susceptible to COVID-19" because of their unvaccinated status).
In response, Schmidt relies on Booth v. GTE Federal Credit Union to argue that COVID-19 is a non-transitory non-minor impairment under the ADA. (Doc. 44 at 16). But Schmidt's reliance is misplaced. Booth is distinguishable for the simple reason that Booth addresses a current perceived impairment—not a potential future impairment. The plaintiff in Booth alleged a perceived disability based on her then-existing COVID-19 symptoms. 2021 WL 5416690, at *3. This critical allegation is nowhere to be found in Schmidt's Complaint. So, Booth is consistent with STME and is inapplicable to Schmidt's case.
Also, numerous courts have departed from Booth. See e.g., McCone v. Exela Techs., Inc., No. 6:21-cv-912-CEM-DCI, 2022 WL 801772, at *4 (M.D. Fla. Jan. 14, 2022), report and recommendation adopted, No. 6:21-cv-912-CEM-DCI (M.D. Fla. Mar. 15, 2022) (dismissing an ADA claim "because being infected with COVID-19, standing alone, does not meet the ADA's definitions of disability or impairment"); Sharikov v. Philips Med. Sys. MR, Inc., 659 F. Supp. 3d 264, 279 (N.D.N.Y. 2023) ("Courts have generally held that an employer perceiving a plaintiff as having COVID-19, without the plaintiff enumerating specific symptoms or long-term effects, does not constitute 'regarded as' disabled under the ADA."); Johnson v. Mount Sinai Hosp. Grp., Inc., No. 22-CV-2936, 2023 WL 2163774, at *6 (E.D.N.Y. Feb. 22, 2023) (dismissing an ADA claim because "having COVID-19" is not a "transitory and minor" condition).
In short, Schmidt's ADA claim clearly rests on the theory that WDPR perceived Schmidt as disabled for being unvaccinated from COVID-19. (See Doc. 1 ¶ 132 ("Disney[] perce[ived] [that Schmidt's] 'handicap' relat[ed] to or ar[ose] from [his] lack of [COVID]-19 vaccination.")). In accordance with Eleventh Circuit precedent, an unvaccinated COVID-19
status only suggests a potential future impairment, not an existing one. Because the ADA does not protect potential future impairments, Schmidt has no rights under the ADA and cannot state a claim. See STME, 938 F.3d at 1321 (affirming that an amendment to an ADA claim would be futile because an employee with a potential future impairment "had no rights under the ADA"). Since amendment would be futile, Schmidt's ADA discrimination claim is dismissed with prejudice.
Further, Schmidt's argument that WDPR's vaccine mandate violated the ADA fails because the policy was applied to all employees. Accepting Schmidt's argument would require the Court to infer that WDPR perceived all its employees as disabled before receiving the vaccine. This inference is, of course, implausible. Speaks v. Health Sys. Mgmt., Inc., No. 5:22-CV-00077-KDB-DCK, 2022 WL 3448649, at *5 (W.D.N.C. Aug. 17, 2022) ("[I]nferring that the [employer] classified [the employee] as impaired by requiring her to become vaccinated or seek an exemption would mean that [the employer] considered all its employees to have an 'impairment,' which is of course not a plausible inference....").
Schmidt also couches a perceived disability claim within his FCRA discrimination claim in Count III. (Doc. 1 ¶ 86). This practice notably offends the "one-claim-per-count rule." Kennedy v. Bell S. Telecomms., Inc., 546 F. App'x 817, 818, 820 (11th Cir. 2013). Nevertheless, the Court's analysis of Schmidt's ADA discrimination claim in Count VII applies with equal force to his FCRA disability allegations. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007) ("[D]isability-discrimination claims under the FCRA are analyzed using the same framework as ADA claims."). For the above reasons, Schmidt's FCRA disability claim is also dismissed with prejudice.
4. ADA Retaliation & Coercion (Count VIII)
Schmidt alleges that WDPR violated the ADA by retaliating against him and coercing him for objecting to and refusing to participate in Disney's allegedly unlawful policies. Schmidt alleges the same protected activities as described in his Title VII retaliation claim. (Doc. 1 ¶ 145). Schmidt specifies that Disney failed to properly investigate his claims and terminated him on pretextual grounds. (Id. ¶ 149). In response, WDPR argues that Schmidt's ADA retaliation claim must fail because he has not sufficiently alleged a protected activity under the ADA and because he cannot satisfy causation. (Doc. 31 at 21).
The ADA prohibits retaliation "against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge ... under [the ADA]." 42 U.S.C. § 12203(a). This section further prohibits "coerc[ion] ... [of] any individual in the exercise or enjoyment of ... any right granted or protected by [the ADA]." Id. § 12203(b). To establish a prima facie case under this section of the ADA, a plaintiff must show: (1) a "statutorily protected expression"; (2) "an adverse employment action"; and (3) "a causal connection." Washington v. Sch. Bd. of Hillsborough Cnty., No. 808-cv-2023-T-33MAP, 2009 WL 4042938, at *6 (M.D. Fla. Nov. 23, 2009) (citing Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997)).
As discussed above, to establish a statutorily protected expression for a retaliation claim, a plaintiff must show "a good faith, reasonable belief that the employer was engaged in unlawful employment practices." Weeks, 291 F.3d at 1311. "This standard has both a subjective and an objective component." Id. at 1312 (quoting Little, 103 F.3d at 960).
The Eleventh Circuit has provided guidance in assessing objective reasonableness where, as here, Schmidt's subjective belief
as to his disability is mistaken. In Butler v. Alabama Department of Transportation, the Eleventh Circuit stated that "[w]here binding precedent squarely holds that particular conduct is not an unlawful employment practice by the employer ... an employee's contrary belief that the practice is unlawful is unreasonable." 536 F.3d 1209, 1214 (11th Cir. 2008). Here, STME provides that binding precedent.
Again, the Eleventh Circuit in STME clarified that the ADA does not "protect persons who experience discrimination because ... of a potential future disability." 938 F.3d at 1311. The STME court further applied that reasoning to reject a proposed claim under the ADA's anti-coercion provision because it was premised on a potential future disability. See id. at 1320-21. Given this precedent, Schmidt's belief that WDPR improperly acted upon his alleged disability—though likely in good faith—is unreasonable and unactionable under the ADA. Since amendment would be futile, Schmidt's ADA retaliation and coercion claim is dismissed with prejudice.
5. Private Sector FWA (Count I)
Schmidt alleges that WDPR is liable under the Private Sector FWA. (Doc. 1 ¶¶ 59-65). In response, WDPR argues that Schmidt fails to state a claim on multiple grounds. (Doc. 31 at 12-13).
Typically, FWA claims are analyzed in the same manner as Title VII retaliation claims. Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000). "[I]n order to establish a prima facie case of retaliation under the FWA, [p]laintiff must prove that (1) [he] engaged in statutorily protected expression; (2) [he] suffered an adverse employment action; and (3) the adverse employment action was causally linked to the statutorily protected activity." White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335, 1336 (M.D. Fla. 2005).
The FWA recognizes three types of protected expression: (1) disclosure, or threatened disclosure, to any appropriate governmental agency, which requires submission of the violation, in writing, to the employer with a reasonable opportunity to correct; (2) providing information to a governmental agency conducting an investigation, hearing, or inquiry into an alleged violation by the employer, or (3) objecting or refusing to participate in an activity, policy or practice of the employer which violates a law, rule, or regulation. Fla. Stat. § 448.102.
Schmidt alleges the same predicate facts to support his Private Sector FWA claim that he provided in support of his retaliation claims above. (Doc. 1 ¶ 61, 96, 117). Consequently, his Private Sector FWA claim fails for the same reasons this Court explained in dismissing his Title VII and FCRA retaliation claims—namely, his failure to sufficiently plead a protected activity and causation. Cf. Luna v. Walgreen Co., 575 F. Supp. 2d 1326, 1342-43 & n.13 (S.D. Fla. 2008), aff'd, 347 F. App'x 469 (11th Cir. 2009) (applying the same reasoning to reject an ADA retaliation claim and an FWA claim where plaintiff "allege[d] the same set of factual allegations to support [both] claim[s]").
Schmidt argues that the Private Sector FWA claim requires a different causation analysis because Florida Statute § 448.102(3) expressly protects his refusal to participate in a policy of his employer. (Doc. 42 at 10). In turn, Schmidt asserts that he can base his Private Sector FWA claim on his refusal to comply with the Augmented Protocols because to rule otherwise,
as argued by WDPR, would undermine the text of the FWA. (Id.). It does not.
Section 448.102(3) requires that the policy at issue be in "violation of a law, rule, or regulation." Fla. Stat. § 448.102(3). There is a split among the Florida intermediate appellate courts regarding whether this section requires a plaintiff to prove an actual violation of a law, rule, or regulation, or whether a plaintiff need only show a good faith, objectively reasonable belief. Butterfield v. JetBlue Airways Corp., No. 20-13473, 2022 WL 291003, at *5 (11th Cir. Feb. 1, 2022). As discussed above, Schmidt's claim fails under both standards. Schmidt has not sufficiently alleged that WDPR's Augmented Protocols violated Title VII, the FCRA, or the ADA. Nor has he sufficiently alleged that he had a good faith, objectively reasonable belief that the Augmented Protocols were unlawful in part because he never requested an exemption. Thus, Schmidt's Private Sector FWA claim is dismissed without prejudice and without leave to amend.
The Fourth District Court of Appeal held that a plaintiff need only show a "a good faith, objectively reasonable belief that h[is] activity is protected by the statute." Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 916 (Fla. Dist. Ct. App. 2013). Meanwhile, the Second District Court of Appeal held that a plaintiff must "prove that he objected to an actual violation of law or that he refused to participate in activity that would have been an actual violation of law." Kearns v. Farmer Acquisition Co., 157 So. 3d 458, 465 (Fla. Dist. Ct. App. 2015).
Based on the foregoing, it is ordered as follows:
1. WDPR's Motion to Dismiss (Doc. 31) is GRANTED. Count I, Count III, Count IV, Count V, and Count VI are dismissed without prejudice and without leave to amend. Count VII and Count VIII are dismissed with prejudice.
DONE and ORDERED in Chambers, in Orlando, Florida on February 29, 2024.