Boreustein v. Williams Island Property Oners Assoc. Inc., No. 1:2016cv25182 - Document 41 (S.D. Fla. 2019)
Court Description: ORDER granting 34 Motion to Dismiss for Failure to State a Claim. Signed by Judge Kathleen M. Williams on 3/28/2019. See attached document for full details. (dpa)
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Boreustein v. Williams Island Property Oners Assoc. Inc. Doc. 41 UNITED STATES DISTRICT CO URT SO UTHERN DISTRICT O F FLO RIDA Case No.16-25182-CIV-W ILLIAM S LEON BORENSTEIN, Plaintiff, VS. W ILLIAMS ISLAND PRO PERTY OW NERS ASSOCIATIO N,INC. Defendant. / ORDER THIS M ATTER is before the Court upon Defendant W illiam s Island Property Owners Association,Inc's.,('Defendant'')motion to dismiss (DE 34),to which Plaintiff, Leon Borenstein (''plaintiff'')filed a response (DE 39),and Defendanta reply (DE40).For the reasonsdiscussed below,Defendant's motion to dismiss (DE 34)is GRANTED. BACKG RO UND Plaintiffis a Jewish individualofMexican nationalorigin.(DE 33 111110-11). On Septem ber 23, 2015, Plaintiffw as em ployed by Defendant as a food and beverage director. (DE 33 !112). Plainti ffallegesthatduring his employmentwith Defendant,his supervisorJanette Giddings ''created a hostile workenvironment''and subjected him to ''harassment,bullying,and discrim ination.'' (DE 33 !113). Specifically,Plaintiffalleges that he was required to weara nam e tag w ith the word i lM exico''underhis nam e even though he is an American citizen' ,that G iddings refused to give him the freedom to schedule offdays thatshe would give a sim ilarAm erican em ployee' ,thatshe cancelled a Hanukah eventhe had planned and stated d'lwle have enough Jews in the Club as itis'', ' 1 Dockets.Justia.com and thatshe altered his title/positionto a Iesserone. (DE 33 IN 15-22). On December 1O,2015,Plaintiffwas term inated by Defendantas a resultofthese discrim inatory acts. (DE 33 !11128,36,45). O n Septem ber1,2016,Plaintiffini tiated a com plaintwith the EqualEm ployment Oppodunity Comm ission ($ 1EEOC''),who rejected Plaintiff's claim and issued a right-tosue Ietter. Based on the factualallegations described above,Plaintiffadvances three causesofaction' .(1)discrimination based on nationalorigin' ,(2)discrimination based on religion' ,and (3)negligenthiring,retention and supervision. II. LEGAL STANDA RD To survive a Rule 12(b)(6)motionto dismiss,a plaintiffmustplead sufficientfacts to state a claim thatis''plausible on itsface.''Ashcroftv./qba/,556 U.S.662,678 (2009) (quoting BellAtlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Coud's consideration is limited to the allegations presented. See GS7 Inc.v.Long Ctp,999 F.2d 1508,1510 (11th Cir.1993). AIIfactualallegations are accepted as true and aII reasonable inferences are drawn in the plainti ff's favor.See Speaker B. U.S.Dep'fof HeaIth & Hum an Servs.Ctrs.for Disease Control& Prevention,623 F.3d 1371,1379 (11th Cir.2010). ,see also Roberts ?.&a.Power& LightCo.,146 F.3d 1305,1307 (11th Cir.1998). Nevedheless,while a plaintiffneed notprovide lddetailedfactualallegations,'' the allegations m ustconsistofm ore than d'a form ulaic recitation ofthe elements ofa cause of action.'' Twombly, 550 U.S. at 555 (internal citations and quotations omitted). ''lclonclusory allegations, unwarranted factual deductions or Iegal conclusions m asquerading as facts willnot preventdism issal.''' Davila v.Delta AirLines,Inc.,326 F.3d 1183,1185 (11th Cir.2003). The ' dllactualallegations mustbe enough to raise a 2 rightofreliefabove the speculative Ievel.'' Y alls v.Fla.Int' lUniv.,495 F.3d 1289,1295 (11th Cir.2007)(quoting Twombly,550 U.S.at545). 111. DISCUSSIO N Defendant m oves to dism iss Plaintiff's com plaint for several reasons. First Defendantargues thatPlainti ff's com plaintfailsto satisfy the basic pleading requirem ents of Rule 8 of the FederalRules of CivilProcedure. Second, Defendant argues that Plaintiff's com plaintfails to state a claim for religious and nationalorigin discrim ination because Plaintiff's discrim ination claim s do notsatisfy the elem ents ofa prim a facie case ofdiscrim ination setforth in the Suprem e Coud's decision in M cDonnellDouglas Corp.v. Green,411U.S.792,93 S.Ct.1817,36 L.Ed.2d668 (1973). Finally,Defendantargues thatPlaintiff's claim fornegligenthiring,retention and/orsupervision fails because such claim s cannotbe based on harassm entordiscrim ination. a. Plaintiff's NationalOrigin and Religious Discrim ination Claim s Title VIIof the CivilRights Act of 1964 makes it unlaw fulfor an em ployer''to discrim inate againstany individualwith respectto his com pensation,term s,conditions, or privileges of em ploym ent,because ofsuch individual's race,color, religion,sex,or nationalorigin.'42 U.S.C.j 2OOOe-2(a)(1). DefendantarguesthatPlainti ffhasfailed to establish aprima faciecase ofdiscriminationbyfailingto show that(a)Defendanttreated similarly situated employees outside ofthe protected class more favorably (b)thathe suffered an adverse employmentaction,and (c)thathe wasqualifiedforthejob. In the employm entdiscrim ination context,couds have struggled to determ ine what plaintiffs m ustallege in theirpleadings in orderto survive a m otion to dism iss underRule 12(b)(6). See Ashmore v.F.A.A.,No.11-CV-6O272,2011W L 3915752,at*3 (S.D.Fla. 3 Sept.2,2011). The Supreme Coud,however,has made clearthata plaintiffdoes not need to establish a prima facie discrimination case in orderto survive a Rule 12(b)(6) motion. See Swierkiewicz v.Sorema N.A.,534 U.S.506,510,(2002)(explaining that the M cDonnellDouglas burden-shifting standard form aking outa prim a facie case dlis an evidentiarystandard,nota pleading requirement''). Even though Swierkiewicz predated Twom bly and Iqbal,the Eleventh Circui thas reaffirmed Swierkiewicz stating that it remained the case that $ t(aJ complaint in an em ploym entdiscrim ination case need notcontain specificfactsestablishing a prim a facie case underthe evidentiary fram ew ork for such cases to survive a m otion to dism iss.'' Henderson ?.JP Morgan Chase Bank,N.A.,436 F.App'x 935,937 (11th Cir.2O11). Nevedheless, the Coud in Henderson explained that the com plaint m ust ''contain sufficientfactualmatterto supporta reasonable inference that(the defendanj engaged in racialdiscrimination ....(The plainti m could have metthis standard by alleging facts showing thatsim ilarly-situated Ioan applicants outside herracialclass were o#ered m ore favorable Ioanterm s.''Id.''Thus,itappearsthata plaintiffestablishing a prim a facie case ofdiscriminationunderMcDonnellIikelysurvivesa Rule 12(b)(6)motion.However,when a plaintifffalls shod ofsuch a prima facie case the coud m ustdeterm ine whetherthe plaintiff may have nevedheless alleged enough to survive a Rule 12(b)(6) motion.' Ashm ore,2O11W L 3915752,at*3. To plead a prima facie case fordiscrimination,Plaintiffmustallege that1 d(1)he is a memberofa protected class,(2)he was subjected to an adverse employmentaction, (3)hisemployertreated similarly situated employees outside ofhisprotected classmore favorably,and (4)he wasqualified to do thejob.'' Word v.AF&F,576 F.App'x 908,914 4 (11th Cir.2014). To satisfy the third element,the plaintiffm ustidentify atleastone sim ilarly-situated em ployee who was treated differently than him . See Dawson B.Miami- Dade Cty.,No.07-20126 CIV,2008 W L 1924266,at*8 (S.D.Fla.Mar.11,2008). The proffered em ployee m ustbe sim ilarto plainti ff''in aIIm aterialrespects.' Lewis v.City of Union City,Georgia,No.15-11362,2019 W L 1285058,at*12 (11th Cir.Mar.21,2019). The Court agrees that Plaintiff has not established a prim a facie case of discrim ination because he has failed to sufficientl y identify a single sim ilarly-situated em ployee who was treated differently than him . Although Plaintiffclaims that'dthe other Am erican em ployee''was given m ore freedom to schedule offdays,he does notprovide any sod ofdetailaboutthis com parator. Plaintiffdoes notallege the otherem ployee's nationalorigin or religion. Nor does he allege that the other em ployee was sim ilarly situated to him in term s of em ploym ent responsibili ties. Such generalcom ments are insufficientto establish a prim a facie case. See ArafafB.Sch.Bd.ofBroward Cty.,549 Fed.Appx.872,874 (11th Cir.2013)(percuriam)(affirming an orderdism issing a case forfailure to state a claim when the plainti ff's com plaint'lgenerically referenced younger males,butnowhere inhercomplaintdlid)she identifyanyvalid comparatorsto undergird herdisparate treatmentclaims''). Additionally,nowhere in the complaintdoes Plaintiff allege that he was qualified for his position. Therefore,Plaintiffhas notestablished a prima facie case ofdiscrim ination. Plaintiff has also failed to state a claim underthe Eleventh Circuit's reading of Swierkiewicz. In Jackson B.Bellsouth Telecomm unications,372 F.3d 1250,1270 (11th Cir.2004) the Eleventh Circuit explained thatllwhile Swierkiewicz made clear that pleading a M cDonnellDouglas prim a facie case was notnecessary to survive a m otion 5 to dism iss,itdid noteven rem otely suggestthata pleading could survive dism issalwhen it consisted of only the barest of conclusory allegations w ithout notice of the factual grounds on w hich they purpod to be based.''The Coud then found thatplaintiffsfailed to state a claim because Idthe wholly unsuppoded charge that the defendants acted differently in cases not involving m inority plaintiffs,even i f it were suppoded by som e specific facts or exam ples, is not sufficient to state a claim for racially m otivated discrimination.''Id.at1273(findingthat'to raise aninferenceofdiscriminatorymotivation, the individuals m ust be sim ilarly situated in aIlrelevant respects besides race''and plaintiffs ''failed to identify any specific nonm inority em ployees w ho were treated differently in othersimilarcases''). Thus,even under Swierkiewicz, Plaintiff m ust allege som e facts to suppod an inference that sim ilarly situated em ployees have been favorably treated. Plaintifrs allegation that'' the otherAmerican em ployee' 'was given m ore freedom scheduling offdays, without m ore, is insufficient to suppod the inference that he was term inated because ofhis nationalorigin orreligion. Ashmore,2011W L 3915752,at*4 (internal citation omitted).Accordingly,the CourtfindsthatPlaintiffhasfailed to state a claim for nationalorigin and religious discrim ination. b. Plaintiff's NegligentHiring,Retention and/orSupervision Claim A principalmaybe subjectto Iiabilitydsforphysicalharm to third persons causedby (its) failure to exercise reasonable care to employ a competent and careful employee/agent/contractorto:(a)doworkwhichwillinvolve a riskofphysicalharm unless itisskillfullyand carefullydone,or(b)perform any dutywhichthe employerowesto third persons.''Smolnikarv.RoyalCaribbean Cruises Ltd.,787 F.Supp.2d 1308,1318 (S.D. 6 Fla.2011).To state a claim fornegligenthiring orretention againsta principal,a plaintiff mustprove that..(1)the agent/employee/contractorwas incompetentorunfitto perform the work' ,(2)the employerknew or reasonably should have known ofthe padicular incompetence orunfitness;and (3)the incompetence orunfitnesswasaproximate cause ofthe plaintiff'sinjury.''Id. t'The principaldifference between negligent hiring and negligent retention as a basis forem ployerIiability is the tim e atwhich the em ployeris charged with know ledge ofthe employee's unfitness.''Mumford v.CarnivalCorp.,7 F.Supp.3d 1243,1249(S.D. Fla.2014).Negligenthiringoccurswhen,l'priortothetimethe employeeisactuallyhired, the em ployerknew orshould have known ofthe em ployee's unfitness,and the issue of Iiability prim arily focuses upon the adequacy of the em ployer's pre-em ploym ent investigation into the em ployee's background.'' Id. W hereas, Iiability for negligent retention ''occurs afterem ploymentbegins,where the em ployerknows orshould know of an em ployee's unfitness and fails to take fudheraction such as investigating,discharge orreassignment.''Franza ?.RoyalCaribbean Cruises,Ltd.,948 F.Supp.2d 1327,1334 (S.D.Fla.2013). Defendantmovesto dismiss Plaintiff's negligenthiring/retention claim arguing thatthis type of claim cannot be based on harassm ent ordiscrim ination and arguingthatPlaintiff's claim is barred because Plaintiffsuffered no physicalinjury. The Courtagrees with Defendant. First,underFlorida Iaw ''the underlying wrong allegedly com m itted by an em ployee in a negligentsupervision or negligent retention claim mustbe based onan injuryresultingfrom a tod (that!is recognized undercommon law.'' Scelta v.Delicatessen SupportServs.,Inc.,57 F.Supp.2d 1327,1348 (M.D.Fsa. 1999). Because Florida Iaw does not recognize a common Iaw cause of action for 7 harassm entordiscrim ination,Florida Iaw cannotrecognize a com m on Iaw action based on the negligent failure to m aintain a workplace that is free of discrim ination or harassment. See Id.(dismissing claim fornegligenthiring/retention based on sexual harassment). Second, under Florida's ''im pact rule''a plaintiff cannot recover dam ages for em otionaldistress caused by the negligence ofanotherifthe plaintiffhas notsustained any physicalim pactorcontact. See Miam i-Dade Cty.v.Cardoso,922 So.2d 301,301 (FIa. 3d DCA 2006) (reversing judgment related to plaintiff's claim for negligent supervisionwhere plaintifffailedtoshow impactorphysicalinjuryl' ,Resley B.Ritz-carlton HotelCo.,989 F.Supp.1442,1449 (M .D.Fla.1997)(holding thata plaintiff's negligent retention and hiring claims failed because the plaintiffdid not allege physicalinjury, therebysatisfying Florida'simpactrulel;Jenks v.Nap/es Cmty.Hosp.,Inc.,829 F.Supp. 2d 1235,1257-58(M.D.Fla.2011)(grantingdefendant'ssum maryjudgmentonnegligent supervision and retention claim where plaintifffailed to allege an impactl;W eld v.Se, Cos.,Inc.,10 F.Supp.2d 1318,1323 (M.D.Fla.1998)(granting motion to dismiss negligentsupervision cause ofaction forfailure to state a claim where plaintiff's com plaint failed to satisfy the impactrule). Here, Plaintiff has not alleged the elements of a negligent hiring, retention/supervision claim . Nordid he respond to Defendant's argum entthatthis type ofclaim cannotbe based on harassmentordiscrim ination. Additionally,Plaintiffdid not allege any physicalinjuryuponwhich hisclaimscan be based.Although Plaintiffclaims in his responseto the motion to dismissthathe did sufferphysicalinjury,Plaintiffcannot amend his com plaintthrough a response to a m otion to dism iss.&ee Burgess v.Religious 8 Fech.Cfc,/nc.,600 Fed.Appx.657,665 (11th Cir.2015).Accordingly,Plaintiff's claim fornegligenthiring,retention/supervision fails. IV. CONCLUSIO N Forthe reasons stated above,itis O RDERED AND ADJUDG ED as follows: 1. Defendant's motion todismiss Plaintifrs complaint(DE 34)is GRANTED. 2. CountIIIofPlaintiff's com plaintis DISM ISSED W ITH PREJUDICE. 3. Counts Iand 11ofPlaintiff's com plaintare DISM ISSED W ITHO UT PREJUDICE. Plaintiffm ay file an am ended com plaintwithin 10 days from the date of this O rder.l Failure to do so w illresultin dism issalofthis case. DONE AND ORDERED in Cham bers,at M iam i,Florida,this day ofM arch 2019. KATHLE N M .W ILLIAM S UNITED STATES DISTRICT JUDGE 1The Coud notes thatthis is the third tim e thatthe Coud dism isses Plaintiff's com plaint. (See DE 5' ,DE 32).Despite numerouswarningsthatPlainti ffmustcomplywiththefederal rules of civilprocedure and m ultiple oppodunities forPlaintiffto am end the com plaint, Plaintiffhas been unable to adiculate facts to supporthis claim s.The E leventh C ircuithas foundd'thatdenialofIeave to amend isjustified byfutilitywhenthe complaintasamended isstillsubjectto dismissal.''BurgerKing Corp.v.N eaver,169 F.3d 1310,1320(11thCir. 1999).Nevedheless,the Coud willallow Plaintiffto amend hisdiscrim ination claimsone finaltim e. 9
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