Palisano v. City of Clearwater

Page 1249

219 F.Supp.2d 1249

Katherine PALISANO, Plaintiff(s), v. CITY OF CLEARWATER, James Wood, individually and Donald Brown, individually, Defendant(s).

No. 8:01-CV-2493-T-27MSS.

United States District Court, M.D. Florida, Tampa Division.

August 14, 2002.

COPYRIGHT MATERIAL OMITTED

Randall V. Shanafelt, Sharon A. Wey, Shanafelt Law Firm, P.A., St. Petersburg, FL, for Katherine Palisano, plaintiff.

Deborah S. Crumbley, Thomas M. Gonzalez, S. Gordon Hill, Thompson, Sizemore & Gonzalez, P.A., Tampa, FL, for City of Clearwater, James Wood, defendant.

Mark A. Hanley, Glenn, Rasmussen & Fogarty, Tampa, FL, Paul Richard Hull, City Attorney's Office, City of Clearwater, Clearwater, FL, for Donald Brown, defendant.

ORDER

WHITTEMORE, District Judge.

THIS CAUSE is before the Court on (1) Defendant City of Clearwater's Motion to Dismiss Counts II and IV of Plaintiff's First Amended Complaint (Dkt.11) and Plaintiff's Response in Opposition to Defendant City of Clearwater's Motion to Dismiss Counts II and IV of Plaintiff's First Amended Complaint (Dkt.17); (2) Defendant James Wood's Motion to Dismiss (Dkt.14) and Plaintiff's Response in Opposition to Defendant James Wood's Motion to Dismiss (Dkt.18); and (3) Defendant City of Clearwater's Motion to Strike (Dkt.13) and Plaintiff's Response in Opposition to Defendant City of Clearwater's Motion to Strike (Dkt.19).

Standards Applicable to Motion to Dismiss

A court should not grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (citations omitted); accord South Florida Water Management Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir.1996). All well-pleaded factual allegations are accepted as true and are viewed in the light most favorable to the nonmoving party. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). In considering a motion to dismiss, the court is confined to an examination of the four corners of the complaint. Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.1999).

The threshold is "exceedingly low" for a complaint to survive a motion to dismiss for failure to state a claim. Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.1985). A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. See Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984).

Discussion

Plaintiff, a former employee of the City of Clearwater, has filed a seven count First Amended Complaint ("Amended Complaint"). Counts I through V are brought against the City of Clearwater. Count I alleges sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; Count II alleges sex discrimination in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes; Count III alleges retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; Count IV alleges retaliation in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes; and Count V alleges pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. In Counts VI, Plaintiff sues Defendant James Woods (Superintendent of the Building & Maintenance Department for the City of Clearwater) individually for violation of section 1983/Equal Protection. In Count VII, Plaintiff sues Defendant Donald Brown (maintenance worker for the City of Clearwater) individually for battery.

Defendant City of Clearwater's Motion to Dismiss Counts II & IV

The City of Clearwater seeks dismissal of Counts II and IV (Plaintiff's claims under the Florida Civil Rights Act ("FCRA"), § 760.01 et seq, Fla. Stat.), arguing that Plaintiff failed to exhaust her administrative remedies pursuant to Fla. Stat. § 760.11, a condition precedent to bringing suit.

Plaintiff filed a Charge of Discrimination ("Charge") with the Florida Commission on Human Relations ("FCHR") on June 15, 2001. (Dkt.12, Ex. 1).¹ On October 1, 2001, the EEOC issued its Form 161 "Dismissal And Notice Of Rights" with the following determination:

Based upon 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.

(Dkt.12, Ex. 2).

Thereafter, without appealing this determination administratively, Plaintiff filed her initial Complaint alleging violations of FCRA in Counts II and IV. The City of Clearwater contends that Plaintiff's FCRA claims are barred because she failed to appeal the EEOC's determination pursuant to Fla. Stat. § 760.11. The Plaintiff argues that she was not required to request an administrative hearing because the EEOC's determination that it was "unable to conclude" whether a violation occurred does not equate to a finding that there was "no reasonable cause" that the violation occurred, as required by Fla. Stat. § 760.11.

An action under the FCRA may be initiated only after plaintiff has exhausted administrative remedies. § 760.07, Fla. Stat. (1999). Pursuant to § 760.11(7), if after filing a charge of discrimination, the agency investigating the charge determines that there is no reasonable cause to believe that a violation occurred, the plaintiff is limited to an administrative hearing. Under the FCRA,

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 determination of reasonable cause and any such hearing shall be heard by an administrative law judge and not by the commission or a commissioner. If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.

§ 760.11(7), Fla. Stat.; Woodham v. Blue Cross & Blue Shield of Florida, Inc., 793 So.2d 41, 45 (Fla. 3d DCA 2001).

The issue presented is whether the "unable to conclude" determination by the EEOC was the equivalent of a "no cause" determination by the FCHR, which would require Plaintiff to request an administrative hearing within 35 days of the date of determination of reasonable cause, pursuant to § 760.11(7). Florida courts are in conflict concerning whether an "unable to conclude" determination by the EEOC constitutes a finding of "no cause".² Compare Woodham v. Blue Cross and Blue Shield of Florida, Inc., 793 So.2d 41 (Fla. 3d DCA 2001) with Cisko v. Phoenix Medical Products, Inc., 797 So.2d 11 (Fla. 2d DCA 2001) and White v. City of Pompano Beach, 813 So.2d 1003 (Fla.App.2002).

Woodham holds that an "unable to conclude" determination constitutes a "no cause" determination and that plaintiffs who receive that determination are therefore required to pursue administrative relief as a condition precedent to bringing suit. On the other hand, Cisko holds to the contrary, reasoning that a "liberal construction of section 760.11(7) requires a specific finding of lack of reasonable cause before an individual is stripped of her right of access to the courts for redress against discrimination." 797 So.2d 11. In light of these conflicting decisions, the issue has been certified to the Florida Supreme Court. Woodham, 793 So.2d at 47.

Upon consideration, the Court agrees with and adopts the reasoning of the Florida Second District Court of Appeal in Cisko that an "unable to conclude" determination by the EEOC does not constitute a determination of "no cause". As that Court concluded:

"An indication by the EEOC that it was `unable to conclude' that there was a violation of the Act does not rise to the level of a finding that the EEOC did not have reasonable cause to believe that a violation occurred. This finding could reasonably be interpreted as indicating that the EEOC did not have sufficient information from which to make a determination. It does not definitively state that the complaint is being dismissed because it does not have merit."

Cisko, 797 So.2d at 13; see also, Thick v. Bray, 2002 WL 598532 (M.D.Fla.2002).

Finally, the plain language of § 760.11(3) requires an express determination of whether or not there is "reasonable cause" to believe that discriminatory practice has occurred. Only an express determination that there is not reasonable cause eliminates the condition precedent to suit required by § 760.11(7). An "unable to conclude" determination does not satisfy this plain and unambiguous statutory requirement. See White v. City of Pompano Beach, supra. Defendant City of Clearwater's Motion to Dismiss Counts II and IV is accordingly denied.

Defendant James Wood's Motion to Dismiss Count VI

Defendant James Wood ("Wood") seeks dismissal of Count VI, arguing that Plaintiff failed to allege facts to support a claim for individual liability under 42 U.S.C. § 1983 based on sexual harassment and retaliation in violation of the equal protection clause to the fourteenth amendment. Alternatively, Wood argues that even if the Court finds that Plaintiff has pled an actionable section 1983 claim, Count VI should be dismissed because Wood is entitled to qualified immunity.

1. Plaintiff's sexual harassment claim under the equal protection clause

In Count VI, Plaintiff claims Wood deprived her of her equal protection rights, in violation of section 1983, by "failing to act to prevent or correct Brown's sexually offensive conduct notwithstanding Wood's prior knowledge of Brown's sexually offensive conduct and the severe nature of Brown's physical contact with Plaintiff in the break...