Opinion
Case No. 6:00-cv-1560-Orl-28JGG
February 1, 2002
ORDER
Roseanne Thick ("Ms. Thick") brings the instant action against Defendants Charles A. Bray and Joseph G. Gillespie d/b/a The Plaza Resort Spa, f/k/a Holiday Inn Sunspree, Bray Gillespie, LLC III d/b/a The Plaza Resort Spa, f/k/a Holiday Inn Sunspree, a foreign corporation, Bray Gillespie, Inc., a Florida corporation, and Bray Gillespie, LLC, (collectively "the Defendants") alleging retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. Ms. Thick claims that she was harassed, reprimanded, suspended, and ultimately terminated in retaliation for not cooperating with the Defendants regarding a discrimination charge filed by her daughter — another former employee — against the Defendants.
In her Complaint (Doc. 1), Ms. Thick also set forth a claim (Count III) for intentional infliction of emotional distress. She has since voluntarily dismissed that count, (Doc. 40, filed November 23, 2001), and only the retaliation claims (Counts 1 and II) remain before the Court.
This case is currently before the Court on Defendants' Motion and Memorandum of Law for Summary Judgment (Doc. 42, filed November 30, 2001), in response to which Ms. Thick has filed Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment (Doc. 58, filed December 17, 2001). The Court heard oral argument on the motion on January 29, 2002. Upon consideration of the record in this matter, argument of counsel, and pertinent law, the Court concludes that the Defendants' motion shall be denied in full.
The Defendants raise three specific arguments in their motion. First, they contend that Ms. Thick has not established a prima facie case of retaliation. Second, they argue that Ms. Thick's claim under the Florida Civil Rights Act ("FCRA") should be dismissed because Ms. Thick did not request an administrative hearing in a timely manner. Finally, the Defendants aver that certain improperly named Defendants should be dismissed from this action. The Court finds each of these arguments to be without merit.
First, the Court rejects the Defendants' contention that Ms. Thick has failed to present a prima facie case of retaliation. A plaintiff establishes such a prima facie case by showing (1) that she engaged in activity protected by Title VII; (2) that the employer was aware of such activity; (3) that the employee suffered an adverse employment action; and (4) a causal link between the activity and the adverse action. Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999). Ms. Thick has clearly done so here by presenting evidence (1) that she resisted her employer's requests to participate in its investigation of the EEOC charge filed by her daughter; (2) that her employer was clearly aware of such activity; (3) that she was terminated; and (4) that less than one month elapsed between her protected activity and her termination, see, e.g., Bass v. Bd. of County Comm'rs, 256 F.3d 1095, 1119 (11th Cir.) ("Close temporal proximity between the protected activity and the adverse action may be sufficient to show that the two were not wholly unrelated.") (citing Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000)), reh'g and reh'g en banc denied, 273 F.3d 1117 (11th Cir. 2001). Hence, the Defendants' contention that Ms. Thick has not presented a prima facie case is without merit.
Although at oral argument counsel for the Defendants made much of the fact that Ms. Thick had begun writing the statement requested by her employer before her daughter's EEOC charge was received by the employer, it is clear that Ms. Thick refused to sign the statement after the EEOC charge had been received. This refusal to sign constitutes the requisite protected activity.
Although the Defendants dispute whether Ms. Thick was terminated, Ms. Thick has clearly presented evidence in support of this contention sufficient to survive summary judgment.
In their motion, the Defendants only cursorily argue that, even assuming that Ms. Thick has made a prima facie case of retaliation, they have presented legitimate nondiscriminatory reasons for their actions and that Ms. Thick has not raised an issue as to whether those reasons are pretextual. The Court rejects these arguments out of hand and finds that Ms. Thick has presented evidence sufficient to cast doubt on the Defendants' purported reasons for their treatment of Ms. Thick.
Next, the Defendants contend that Ms. Thick's claim under the Florida Civil Rights Act is barred because she did not seek an administrative hearing within thirty-five (35) days of receiving a "no cause" determination from the EEOC as allegedly required by section 760.11(7), Florida Statutes. The notice that Ms. Thick received from the EEOC provided in part, "The EEOC is closing its file on this charge . . . [because b]ased 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 construed as having been raised by this charge." (Doc. 43, Ex. U, at 1).
Although the Defendants do cite case law in support of their position — that the type of notice that Ms. Thick received does trigger the 35-day requirement of section 760.11(7), Florida Statutes — as discussed during oral argument this issue is a matter of state law on which there is a split of authority, and the question has been certified to the Supreme Court of Florida. See Woodham v. Blue Cross Blue Shield of Fla. Inc., 793 So.2d 41 (Fla. 3d DCA 2001) (certifying conflict with Cisko v. Phoenix Medical Products. Inc., 797 So.2d 11 (Fla. 2d DCA 2001), and certifying the question as one of great public importance). However, this Court has previously agreed with the holding of Cisko and Jones v. Lakeland Regional Medical Center. Inc., No. 2D01-290, 2001 WL 1386595 (Fla. 2d DCA Nov. 9, 2001), that the language of the notice received by Ms. Thick "does not amount to a finding that there is not reasonable cause to believe that a violation of the Act has occurred," 797 So.2d at 14, and this Court continues to find that the Cisko and Jones decisions squarely and properly analyze the issue of the effect of the notice language at issue in the case at bar. (See Order in Lynch v. Lexford Residential Trust, Case No. 99-cv-1591-Orl-28KRS (Doc. 116, filed December 10, 2001)). Accordingly, the Court finds that Ms. Thick's FCRA claim is not barred by her failure to seek an administrative hearing within thirty-five days of her EEOC notice.
Finally, the Court finds that the dismissal of certain Defendants is not appropriate. The Defendants are correct that Mr. Bray and Mr. Gillespie may not be held individually liable. See, e.g., Hinson v. Clinch County. Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000) ("`The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act.'") (quoting Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991)). However, as noted by Ms. Thick in her opposition memorandum, Mr. Bray and Mr. Gillespie have not been sued in their individual capacities. (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, Doc. 58, at 20 n. 7). Additionally, the Court finds that genuine issues of material fact remain regarding the proper identity of Ms. Thick's employer and that therefore the Defendants' motion shall be denied insofar as it seeks dismissal of certain allegedly improperly named Defendants.
In sum, this cased is replete with factual issues that necessitate resolution at trial. Accordingly, it is ORDERED and ADJUDGED that the Defendants' Motion and Memorandum of Law for Summary Judgment (Doc. 42, filed November 30, 2001) is DENIED.