MARTIN COUNTY BOARD OF COUNTY COMMISSIONERS

Transcription

1 MARTIN COUNTY BOARD OF COUNTY COMMISSIONERS 2401 S.E. MONTEREY ROAD STUART, FL DOUG SMITH Commissioner, District 1 November 26, 2018 Telephone: (772) Fax: (772) eelder@martin.fl.us STACEY HETHERINGTON Commissioner, District 2 HAROLD E. JENKINS II Commissioner, District 3 SARAH HEARD Commissioner, District 4 EDWARD V. CIAMPI Commissioner, District 5 The Honorable William L. Roby Circuit Court Judge Martin County Courthouse 100 East Ocean Blvd. Stuart, FL Re: Daniel Lee v. Martin County Fire Rescue and Martin County Board of County Commissioners; Case No CA-981 Dear Judge Roby, TARYN KRYZDA, CPM County Administrator SARAH W. WOODS County Attorney Enclosed please find a courtesy copy of Defendants Motion to Dismiss Complaint or in the Alternative Motion to Strike Claim for Punitive Damages, which has been filed with the Court. Also enclosed is a proposed Order on said Motion along with sufficient copies and self-addressed, stamped envelopes for your mailing convenience. Please let me know if you have any questions. Sincerely, Elysse A. Elder Senior Assistant County Attorney cc: Noah E. Storch, Esq. (via ) This document may be reproduced upon request in an alternative format by contacting the County ADA Coordinator (772) , the County Administration Office (772) , Florida Relay 711, or by completing our accessibility feedback form at TELEPHONE WEB ADDRESS 1 of 10 leg2019l12.docx

2 Filing # E-Filed 11/26/ :38:00 AM IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR MARTIN COUNTY, FLORIDA DANIEL LEE, vs. Plaintiff, CASE NO.: 2018-CA JUDGE: WILLIAM ROBY MARTIN COUNTY FIRE RESCUE AND MARTIN COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants. / DEFENDANTS MOTION TO DISMISS COMPLAINT OR IN THE ALTERNATIVE MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES Defendants Martin County Fire Rescue (MCFR) and Martin County Board of County Commissioners (BOCC), by and through their undersigned counsel, file Defendants Motion to Dismiss Complaint or in the Alternative Motion to Strike Claim for Punitive Damages, and as grounds states as follows: 1. Plaintiff filed a six count complaint against MCFR and BOCC alleging discriminatory retaliation and interference based on his age, serious health condition and/or disability under various federal and state statutes. 2. Plaintiff s Complaint should be dismissed pursuant to Fla. R. Civ. P (b) for failure to state a cause of action for a variety of reasons. 3. First, Plaintiff s complaint should be dismissed because BOCC is not proper party to this lawsuit pursuant to Florida Statutes In addition, MCFR is not an entity, but a department within Martin County, and therefore is not sui juris and subject to suit. 1 2 of 10

3 5. Plaintiff s Complaint also fails to state a short plain statement of ultimate facts showing the pleader is entitled to relief under Fla. R. Civ. P (b) because Plaintiff did not allege the proper elements under Family Medical Leave Act ( FMLA ), Age Discrimination in Employment Act ( ADEA ), Florida Civil Right Act ( FCRA ), American with Disabilities Act ( ADA ) or Florida s Worker s Compensation statute. In particular, the Complaint fails to allege the proper statutory elements, commingles causes of action within one count and provides mainly bald legal conclusions and insufficient details to meet the pleading requirement under Florida law. 6. Plaintiff also seeks punitive damages in Counts III, IV and V. Any claim for punitive damages against a government entity is not permitted under any of the Florida and Federal statutes at issue in this lawsuit. Accordingly, should the Court deny Defendants Motion to Dismiss, Plaintiff s allegations and demand for punitive damages should be stricken. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS COMPLAINT AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES A. Standard of Review In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. Taylor v. City of Riviera Beach, 801 So. 2d 259, 262 (Fla. 4 th DCA 2001). A court may not go beyond the four corners of the complaint and must accept the facts alleged and the exhibits attached as true. Id. All reasonable inferences must be drawn in favor of the pleader. Id. However, conclusory allegations are insufficient. Stein v. BBX Capital Corp., 241 So. 3d 874, 876 (Fla. 4 th DCA 2018); Viterra Energy Servs. v. Gateway G.P. Sawgrass Mills, Inc., 858 So. 2d 1208 (Fla. 4 th DCA 2003) (holding law is clear that litigants at the outset must be compelled to state their pleadings with sufficient particularity for a defense to be prepared). Furthermore, the complaint must set out the elements and the facts that 2 3 of 10

4 support them so that the court and defendants can clearly determine what is being alleged. Barrett v. City of Margate, 743 So. 2d 1160 (Fla. 4 th DCA 1999). B. MCFR and BOCC Are Not Proper Parties Plaintiff has named BOCC and MCFR as parties to this lawsuit; however, Plaintiff cannot sue either of these entities and dismissal is warranted under Fla. R. Civ. P The only proper defendant for this lawsuit is Martin County, which was not named at all. Plaintiff s alleged claims arise out of his employment with Martin County. The capacity of a party to be sued is governed by Florida law. Pestana v. Miami-Dade County Bd. of County Comm rs, 282 F. Supp.3d 1284 (S.D. Fla. 2017). In this case, Florida law explicitly delineates the proper party as Martin County. [T]he county commissioners shall sue and be sued in the name of the county of which they are commissioners , Fla. Stat. (2018); see Pestana, 282 F. Supp.3d at 1287 (holding complaint should be dismissed because board of county commissioners cannot be sued); Erickson v. Board of County Comm rs of Sarasota County, 212 So. 2d 340, (Fla. 2d DCA 1968) (reversing judgment against board of county commissioners because suit was brought against wrong party pursuant to , Fla. Stat.). In addition, MCFR is not a proper party as well because it is an individual department within the County and not its own entity. Florida Statutes (1)(d) provides Martin County with the power and duty to provide fire protection for its citizens. Martin County establishes Martin County Fire Rescue as the County fire rescue department to provide such services A., Code of Ordinances, Martin County Code. Plaintiff worked for Martin County within its fire rescue department. Since the named Defendants are not the proper entities, Plaintiff s entire Complaint should be dismissed. C. Plaintiff Failed to Allege a Claim for Interference & Retaliation under FMLA in Count I 3 4 of 10

5 FMLA creates two types of causes of action. In particular, (1) an interference claim in which an employee asserts that an employer denied or otherwise interfered with his or her substantive rights and (2) a retaliation claim in which an employee asserts that an employer discriminated against the employee because he or she engaged in activity protected by FMLA. Strickland v. Water Works & Sewer Bd. of the City of Birmingham, 239 F.3d 1199 (11 th Cir. 2001). These are two different claims, requiring different allegations. To state a claim for interference, the employer must allege he was entitled to but denied the FMLA right. Id. at In contrast, to state a claim for retaliation, the employee must allege that his employer intentionally discriminated against him in the form of adverse employment action for having exercised the FMLA right. McDonald v. Family Dollar Svcs., Inc., 2014, WL (N.D. Fla. Sept. 17, 2016); Stickland, 239 F.3d at Plaintiff improperly commingles both causes of action in one count. For example, Plaintiff does not allege that he was entitled to a right under FLMA and denied that right by the County to support a claim for interference. To the contrary, Plaintiff alleges he was provided with FLMA leave. Complaint 23. Count 1 jumbles two separate causes of action and Defendants have no way of determining what conduct forms the basis for this count. In addition, Plaintiff only makes allegations that are purely legal conclusions in Count I. All of his allegations in Count 1 provide Defendants interfered with and retaliated against or lump interference/retaliation together. See Complaint There are no factual allegations to support these two different legal theories. Plaintiff s obligation to provide grounds for an entitlement to relief requires more than labels and conclusions. He has to identify which facts support each claim, and Plaintiff has failed to do. As a result, Count I should be dismissed. D. Plaintiff Fails to Allege Age Discrimination and Retaliation Under the ADEA and FCRA 4 5 of 10

6 Count II follows the same pattern as Count I in that Plaintiff improperly combines claims for discrimination and retaliation under the ADEA. Nonetheless, Plaintiff s claims are fundamentally insufficient because he fails to allege a crucial component for an age discrimination claim. The ADEA prohibits employers from discriminating against an employee who is at least 40 years of age. Buchanan v. Delta Air Lines, Inc., 727 Fed.Appx. 639 (11 th Cir. 2018). Plaintiff fails to allege his age or that he was over the age of 40, which is an essential element under ADEA. Similarly, in Count III, Plaintiff alleges age discrimination under FCRA, with no reference to his actual age. Based on the foregoing deficiencies, Counts II and III should be dismissed. E. FCRA and ADA Claims Must Fail Because He Failed to Notify About his Alleged Disability and There is No Causal Connection between Plaintiff s Termination and Protected Activity. Plaintiff continues to commingle and confuse the elements of the causes of action under FMLA, ADA and FCRA in Counts IV and V as well. Plaintiff s claims under ADA and FCRA in the Counts IV and V seem to be based largely upon purported violations of FMLA, for which Plaintiff already seeks relief in Count 1. See PBM Dev., Inc. v. Wachovia Bank, N.A., 201 WL , at *8 (S.D. Fla. 2011), adopted by, WL (S.D. Fla. 2011). Importantly, a violation of FMLA, in and of itself, cannot form the basis of a cause of action under ADA or FCRA, as each statute has its own elements which must be pled separately. Hurlbert v. St. Mary s Health Care Sys., Inc., 439 F.3d 1286, 1295 (11 th Cir. 2006). [T]here may be some parallels between the ADA and FMLA, but applicable regulations explicitly state that ADA s disability and the FMLA s serious health condition are different concepts, and must be analyzed separately. Id. Plaintiff fails to allege any facts about his disability or his notification to Defendants that such disability existed. Plaintiff s conclusory statements about filing for FMLA leave, without specific factual allegations pertaining to ADA and FCRA, are insufficient. 5 6 of 10

7 Florida courts follow federal ADA case law when examining FCRA retaliation claims. Carter v. Health Mgmt. Assocs., 989 So. 2d 1258, 1262 (Fla. 2d DCA 2008). To establish a prima facie case of retaliation under either, the plaintiff must show that (1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action. McCann v. Tillman, 526 F.3d 1230, 1375 (11 th Cir. 2008). In this case, Plaintiff he did not allege a causal connection between any protected activity and his termination. Plaintiff never notified Defendants he had a disability and never requested any type of accommodation for an alleged disability, and there are no such allegations in the Complaint. Since Defendants were not aware of Plaintiff s disability, there is no protected activity and there can be no connection between any alleged adverse action and the disability. As a result, Plaintiff did not allege the essential elements under FCRA and ADA, and Counts IV and V should be dismissed. F. Florida Worker s Compensation Retaliation Should Be Dismissed for Plaintiff s Failure to Allege Any Factual Basis for Support the Claim In Count VI, Plaintiff pursues a claim for retaliation under Florida s worker s compensation law citing to Florida Statutes The proper statutory citation is section , but nonetheless, Plaintiff provides basically no factual allegations to support his claim. The only factual allegations about a worker s compensation claim are in paragraphs 25 and 26 of the Complaint in which Plaintiff alleges: 6 7 of 10

8 The Complaint has barely any details about a workers compensation claim except that Plaintiff submitted a claim and it was eventually filed. No factual details, such as the date, reasons for the claim, when it was processed, the result of the claim and how/why the County would retaliate for the claim. The conclusory and almost non-existent allegations about retaliation based on a workers compensation claim leave Defendants to completely guess at the facts and circumstances surrounding the claim warranting the dismissal of Count VI. G. Plaintiff s Claim for Punitive Damages Should be Stricken Plaintiff seeks punitive damages in Counts III, IV and V under FCRA and ADA. These allegations and claims should be stricken should the Court deny the Motion to Dismiss. In 1991, Congress amended the Civil Rights Act to permit plaintiffs to recover previously unrecoverable compensatory and punitive damages in civil rights lawsuits, but at the same time, explicitly prohibited recovery of punitive damages from a government, government agency or political subdivision. 42 U.S.C. 1981a(b)(1); see also Kolstad v. American Dental Ass'n, 527 U.S. 526, , 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) Similarly, in the section of FCRA authorizing punitive damages awards, the Florida legislature provided, Notwithstanding the above, the state and its agencies and subdivisions shall not be liable for punitive damages. Fla. Stat ; see Klonis v. Fla. Dep't of Revenue, 766 So.2d 1186, 1190 (Fla. 1st DCA 2000); see also Martin v. Estero Fire Rescue, 2014 WL (M.D. Fla. June 18, 2014) (holding punitive damages under ADA and FCRA not available against political subdivision); Flamberg v. Israel, 2014 WL (S.D. Fla. April 21, 2014) (holding punitive damages under FCRA unavailable against Sheriff of Broward County); Erickson v. Hunter, 932 F.Supp (M.D. Fla. 1996) (holding punitive damages not available against county government entity). The statutes clearly prohibit punitive damages against government entities. Accordingly, Plaintiff s improper claims for punitive damages should be stricken. 7 8 of 10

9 H. Conclusion WHEREFORE Defendants respectfully request this Honorable Court to dismiss Plaintiff s Complaint, or in the alternative strike any claim for punitive damages, and to grant such other relief as this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY on this 26 th day of November, 2018, that the foregoing document has been furnished via to: Noah E. Storch, Esq. (noah@floridaovertimelawyer.com). SARAH W. WOODS COUNTY ATTORNEY Martin County Administrative Center 2401 SE Monterey Road Stuart, FL (772) (772) Facsimile eelder@martin.fl.us LegalEsvc@martin.fl.us By: /s/elysse A. Elder ELYSSE A. ELDER Senior Assistant County Attorney Florida Bar No This document may be reproduced upon request in an alternative format by contacting the County ADA Coordinator (772) , the County Administration Office (772) , Florida Relay 711, or by completing our accessibility feedback form at of 10

10 DANIEL LEE, IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR MARTIN COUNTY, FLORIDA vs. Plaintiff, CASE NO.: 2018-CA JUDGE: WILLIAM ROBY MARTIN COUNTY FIRE RESCUE AND MARTIN COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants. / ORDER ON DEFENDANTS MOTION TO DISMISS COMPLAINT OR IN THE ALTERNATIVE MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES THIS CAUSE came before the Court upon Defendants Motion to Dismiss Complaint or in the Alternative Motion to Strike Claim for Punitive Damages, and the Court being otherwise advised in the matter, it is hereby ORDERED AND ADJUDGED: Defendants Motion to Dismiss Complaint or in the Alternative Motion to Strike Claim for Punitive Damages is GRANTED / DENIED DONE AND ORDERED in Stuart, Martin County, Florida this day of November, Copies furnished to: Elysse A. Elder, Esquire Noah E. Storch, Esquire HONORABLE WILLIAM ROBY CIRCUIT COURT JUDGE 10 of 10