Opinion
CASE NO. 8:20-cv-2814-SCB-CPT
2021-05-19
Jane DOE, Plaintiff, v. GRAND VILLA OF NEW PORT RICHEY l/b/n GV New Port Richey, LLC, a Florida limited liability company, DFGV Holdings, a Florida for-profit corporation, and IND-Ormond, Inc., a Florida for-profit corporation, Defendants.
Leighton Leib, David Knox, KnoxLeib PLLC, Gregory Lee Henderson, Jr., Law Office of Gregory L. Henderson, Jr., Tampa, FL, for Plaintiff. Cymoril M. White, Viktoryia Johnson, Tracey K. Jaensch, Ford & Harrison, LLP, Tampa, FL, for Defendants.
Leighton Leib, David Knox, KnoxLeib PLLC, Gregory Lee Henderson, Jr., Law Office of Gregory L. Henderson, Jr., Tampa, FL, for Plaintiff.
Cymoril M. White, Viktoryia Johnson, Tracey K. Jaensch, Ford & Harrison, LLP, Tampa, FL, for Defendants.
ORDER
SUSAN C. BUCKLEW, United States District Judge
THIS CAUSE comes before the Court on the following:
(1) Defendant Grand Villa of New Port Richey's Motion to Dismiss Counts I-III of the Second Amended Complaint (Doc. 8);
(2) Defendant IND-Ormond, Inc.’s Motion to Dismiss Counts I-II of the Second Amended Complaint (Doc. 11);
(3) Defendant DFGV Holdings, Inc.’s Motion to Dismiss Counts I-II of the Second Amended Complaint (Doc. 12);
(4) Plaintiff Jane Doe's Omnibus Response in Opposition to Defendants’ Motions (Doc. 20);
(5) Defendants’ Reply to Plaintiff's Response with exhibits (Doc. 23); and
(6) Plaintiff's Sur-Reply (Doc. 27).
For the reasons explained below, Defendants’ Motions are denied.
I. BACKGROUND
Plaintiff Jane Doe ("Plaintiff") filed her original complaint against Defendants Grand Villa of New Port Richey l/b/n GV New Port Richey, LLC ("Grand Villa"), DFGV Holdings, Inc. ("DFGV"), and IND-Ormond, Inc. ("IND") in the Sixth Judicial Circuit Court in Pasco County, Florida. That complaint alleged Florida common law claims for battery, assault, false imprisonment, intentional infliction of emotional distress, and negligence. It presented no federal question that was subject to removal to this Court. However, after Plaintiff received a Notice of Dismissal and Right to Sue from the Equal Employment Opportunity Commission, she amended her complaint.
Plaintiff filed this lawsuit using a pseudonym to protect her privacy.
Plaintiff is now proceeding on a five-count Second Amended Complaint ("the SAC") that raises the following claims: negligence (Count I) and negligent retention (Count II) on the part of all Defendants; negligent misrepresentation (Count III) against Grand Villa; sex discrimination and/or hostile work environment, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) ("Title VII"), (Count IV) against Grand Villa; and hostile work environment, in violation of the Florida Civil Rights Act of 1992 ("FCRA"), Section 760.01, Florida Statutes, et seq. (Count V) against Grand Villa. (Doc. 1, Ex. 2).
Because the SAC raised a federal claim under Title VII in Count IV, it presented a federal question that was subject to removal pursuant to 28 U.S.C. § 1441(a) and 28 U.S.C. § 1331. As such, Defendants removed the case to this Court on November 3, 2020. (Doc. 1). Pursuant to 28 U.S.C. § 1367(a), this Court has supplemental jurisdiction over Plaintiff's remaining claims arising under Florida law. Furthermore, a comparison of Plaintiff's complaints reveals that her state law claims are based substantially on the same set of facts alleged in support of her Title VII claim, and they present substantially the same legal issues.
II. ALLEGATIONS OF THE SECOND AMENDED COMPLAINT
The SAC alleges that Plaintiff was employed as a cook at Grand Villa, a senior living community in New Port Richey, Florida, from December 2017 through January 2018. Plaintiff alleges that while she was employed there, her supervisor, Jeffrey Smith ("Smith"), sexually battered her on multiple occasions, causing her physical and emotional injury. (Id. , ¶¶ 6, 8-9, 20, 29, 38). Specifically, the SAC alleges that:
Smith, the former Food Service Supervisor for Grand Villa, is presently the defendant in the Pasco County Criminal Case, State of Florida v. Jeffrey A. Smith , Case No. 2018-CF-001967, in which a charge for sexual battery has been brought against him. Plaintiff is the victim in that criminal case.
On Christmas Eve 2017, during her third shift cooking for residents at [Grand Villa], [Plaintiff] was sexually battered by Smith, ... after he had lured her into his private office in the [Grand Villa] kitchen. (Id. , ¶ 9);
During the first week of January 2018, Smith attempted a second sexual battery of [Plaintiff], again in his private office, after demanding [Plaintiff] follow him into his office to discuss [Grand Villa] food supply and ordering issues. (Id.);
[D]uring other shifts she worked in Smith's presence in December 2017 and January 2018, Smith grabbed, slapped, or fondled [Plaintiff] ... in the [Grand Villa] food service area." (Id. );
During several shifts that followed, Smith approached [Plaintiff] and menacingly whispered a reminder of how important it was for her to keep this job near her home and a steady paycheck for her children. He often punctuated these threats with a smile and unconsented-to slap of [Plaintiff's] backside" (Id. , ¶ 12)
[Plaintiff] left her job at [Grand Villa] in January 2018, ... after additional instances of Smith groping and threatening [Plaintiff] while they were at work together." (Id. , ¶ 13).
The SAC alleges that Grand Villa and its management companies, Defendants IND and DFGV (as a result of their operating agreements and management contracts), had decision-making powers over Plaintiff's workplace that each exercised, or failed to exercise, in a negligent manner. (Id. at ¶ 25). The SAC alleges that Defendants were aware of at least one prior incident of inappropriate sexual harassment by Smith, yet Defendants allowed him to remain in a supervisory role and failed to protect Plaintiff. (Id. , ¶¶ 15-16).
Defendants’ instant Motions seek the dismissal Plaintiff's Florida common law claims of negligence, negligent retention and negligent misrepresentation (Counts I through III of the SAC), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on grounds that the facts pled fail to state a claim against them as a matter of law. Plaintiff responded in opposition.
III. STANDARD OF REVIEW
In deciding a motion to dismiss, the district court is required to view the complaint in the light most favorable to the plaintiff. See Murphy v. Federal Deposit Ins. Corp. , 208 F.3d 959, 962 (11th Cir. 2000) (citing Kirby v. Siegelman , 195 F.3d 1285, 1289 (11th Cir. 1999) ). The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. Instead, Rule 8(a)(2) requires a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. See Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S. Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (citation omitted). As such, a plaintiff is required to allege "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965 (citation omitted). While the Court must assume that all of the allegations in the complaint are true, dismissal is appropriate if the allegations do not "raise [the plaintiff's] right to relief above the speculative level." Id. (citation omitted). The standard on a Rule 12(b)(6) motion is not whether the plaintiff will ultimately prevail in his or her theories, but whether the allegations are sufficient to allow the plaintiff to conduct discovery in an attempt to prove the allegations. See Jackam v. Hospital Corp. of Am. Mideast, Ltd. , 800 F.2d 1577, 1579 (11th Cir. 1986).
With respect to a claim of negligent misrepresentation (which sounds in fraud), a plaintiff must satisfy the requirements of Rule 9(b), Federal Rules of Civil Procedure, in order to survive a motion to dismiss. Souran v. Travelers Ins. Co. , 982 F.2d 1497, 1511 (11th Cir. 1993) (citations omitted). Rule 9(b) provides that: "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Fed.R.Civ.P. 9(b). "The particularity rule serves an important purpose in fraud actions by alerting defendants to the ‘precise misconduct with which they are charged’ and protecting defendants ‘against spurious charges of immoral and fraudulent behavior.’ " Durham v. Bus. Management Assocs. , 847 F.2d 1505, 1511 (11th Cir. 1988) (citation omitted).
IV. DISCUSSION
A. Workers’ Compensation Exclusivity
Defendants argue that Plaintiff's claims for negligence, negligent retention and negligent misrepresentation, in Counts I through III of the SAC, should be dismissed on the basis that Florida's Workers’ Compensation law, Section 440.11, Florida Statutes, provides the exclusive remedy for damages sustained by an employee in the workplace and bars a common law tort claim. In Byrd v. Richardson–Greenshields Securities, Inc. , 552 So.2d 1099 (Fla. 1989), however, the Florida Supreme Court held that:
In light of this overwhelming public policy, we cannot say that the exclusivity rule of the workers’ compensation statute should exist to shield an employer from all tort liability based on incidents of sexual harassment. The clear public policy emanating from federal and Florida law holds that an employer is charged with maintaining a workplace free from sexual harassment. Applying the exclusivity rule of workers’ compensation to preclude any and all tort liability effectively would abrogate this policy, undermine the Florida Human Rights Act, and flout Title VII of the Civil Rights Act of 1964.
This, we cannot condone. Public policy now requires that employers be held accountable in tort for the sexually harassing environments they permit to exist, whether the tort claim is premised on a remedial statute or on the common law.
552 So.2d 1099, 1102–04 (emphasis added).
Here, the SAC alleges negligent conduct by each Defendant that resulted in multiple incidents of sexual violence and harassment against Plaintiff by the Food Service Supervisor at Grand Villa, including that:
• Plaintiff was sexually battered and assaulted by her supervisor on multiple occasions in December 2017 and January 2018, and was further subjected to harassment, intimidation, and unwanted touching in the workplace by her assailant. (Doc. 1, Ex. 2, ¶¶ 9-13, 20(a)).
• The Defendants were aware of at least one prior incident of inappropriate sexual harassment by Plaintiff's assailant, yet allowed him to remain in a supervisory role as Food Service Supervisor prior to, and contemporaneous with, Plaintiff's employment period. (Id. , ¶¶ 15-16). Moreover, Plaintiff's assailant was a well-known harasser and groper of female subordinates at [Grand Villa], and it was understood that the management team at [Grand Villa] was not interested
in reprimanding him or restricting his powers. (Id. )
• As a result of powers each Defendant negligently exercised or declined to exercise, there were no appropriate, reasonable security and/or human resources procedures in place at Grand Villa that would have protected Plaintiff as an employee generally, and from her assailant specifically, whose improper behavior towards female subordinates was known to Defendants prior to the sexual violence done to Plaintiff. (Id. , ¶¶ 17-19).
In arguing for dismissal of Counts I through III, Defendants rely primarily on the holding in Doe v. Footstar Corp. , 980 So.2d 1266 (Fla. Dist. Ct. App. 2008). In Footstar , the guardians of a minor claimed that the manager of a store in which the minor worked "assaulted and sexually battered [the minor] in the course and scope of his employment with Footstar." 980 So.2d at 1267. The guardians stipulated that the complaint stated no claim "either for sexual harassment or for a ‘ Byrd cause of action,’ or even federal or statutory causes of action." Id. Accordingly, Footstar holds that the workers’ compensation statute bars claims for assault and battery.
In this action, however, Byrd and not Footstar , controls inasmuch as Counts I through III of the SAC undoubtedly arise from alleged incidents of sexual harassment in the workplace. Thus, Byrd permits Plaintiff's claims for negligence, negligent retention, and negligent misrepresentation in Counts I through III.
Multiple Florida state and federal courts have followed the central holdings of Byrd in refusing to bar employee-plaintiffs who suffered sexual violence and harassment in the workplace from bringing civil actions to remedy employer negligence that allegedly caused such injuries. See Clifford v. R-Motels, Inc. , 2010 WL 3952067 (M.D. Fla. Oct. 8, 2010) (denying a motion to dismiss premised on the same workers’ compensation exclusivity arguments raised in the instant Motions, in light of Byrd ’s holding and the plaintiffs’ allegations—including negligent retention—which arose out of workplace sexual harassment, assault, and battery by a male supervisor on a female subordinate); see also Locke v. SunTrust Bank , 484 F.3d 1343, 1349 n.4 (11th Cir. 2007) ("The Florida Supreme Court [in Byrd ] has established one exception to Florida's generally expansive view of workers’ compensation immunity: employees’ civil lawsuits against employers based on sexual harassment by a co-employee."); Gomez v. Metro Dade Cty. Fla. , 801 F. Supp. 674, 683 (S.D. Fla. 1992) ("In light of the strong public policy against sexual harassment in the workplace, this Court interprets Byrd as holding that the exclusivity rule of the workers’ compensation statute does not bar the plaintiff's claim of negligent retention and supervision."); Professional Tel. Answering Service, Inc. v. Groce , 632 So. 2d 609, 610 (Fla. Dist. Ct. App. 1993) (per curiam ) ("we read Byrd to be restricted to sexual harassment which is by public policy the direct responsibility of the employer."); City of Miami Beach v. Guerra , 746 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1999) ("[T]he [Byrd] Court simply adopted the [ ] position that corporations that allow employees to commit intentional torts such as battery, intentional infliction of emotional distress or assault as part of a sexually harassing environment can no longer hide behind the workers’ compensation exclusion rule to escape liability.")
Furthermore, with respect to Defendants DFGV and IND, the alleged management companies for Defendant Grand Villa, Florida caselaw holds that the manager of an LLC may be held individually liable for his, her, or its own negligence associated with oversight and management of an assisted living facility. See Estate of Canavan v. Nat'l Health Care Corp. , 889 So. 2d 825, 826-27 (Fla. Dist. Ct. App. 2004) (observing that the individual who functioned as both managing member of controlling LLC and corporate officer of a nursing home could be directly liable for his own negligent conduct associated with the operation of that assisted living facility); Fla. Specialty, Inc. v. H 2 Ology, Inc. , 742 So.2d 523, 527 (Fla. Dist. Ct. App. 1999) (holding that officers of a corporation may be held liable for their own torts even if such acts are performed as corporate officers); McElveen v. Peeler , 544 So.2d 270 (Fla. Dist. Ct. App. 1989) (holding same); Orlovsky v. Solid Surf, Inc. , 405 So.2d 1363, 1364 (Fla. Dist. Ct. App. DCA 1981) (holding same).
B. Failure to Sufficiently Plead Negligent Misrepresentation
Grand Villa also argues that Plaintiff's negligent misrepresentation claim in Count III of the SAC should be dismissed because it is not sufficiently pled under the heightened pleading standard of Rule 9(b), Federal Rules of Civil Procedure, which applies to claims sounding in fraud. This standard is satisfied, however, "if the complaint sets forth: (1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud." Ziemba v. Cascade Int'l, Inc. , 256 F.3d 1194, 1202 (11th Cir. 2001).
Here, the SAC alleges that Grand Villa negligently misrepresented to Plaintiff that it "maintained a safe workplace," and it identifies the maker of that statement (Grand Villa); the relevant time frame (prior to Christmas Eve 2017); the substance of the statement (maintenance of a safe workplace); and Plaintiff's specific conduct in reliance thereon (accepting and continuing employment with Grand Villa). (SAC, Doc. 1, ¶ 42). Count III also expressly incorporates the earlier allegations of the SAC that demonstrate the falsity of the identified representation, including an allegation that there was at least one prior act of sexual misconduct by Plaintiff's supervisor "which took place and was reported to Grand Villa prior to [Plaintiff's] tenure at the company" (id. , ¶ 16); an allegation that an effective and independent human resources department is absent from Grand Villa (id. , ¶ 17); and an allegation that Grand Villa has "deficient operational practices" regarding training and supervising its personnel, including as determined by state regulators (id. , ¶ 18(a)(ii)). The allegations as to Count III are, therefore, sufficiently specific to put Grand Villa on notice of Plaintiff's claim and to allow the claim to proceed to discovery. See, e.g., Tannenbaum v. Jefferies, LLC , 2019 WL 5535126, at *2 (M.D. Fla. Oct. 25, 2019) ("[S]pecificity under Rule 9(b) doesn't eliminate the concept of notice pleading. [Plaintiff's] allegations are sufficiently specific to put [the defendant] on notice of the alleged fraud and to permit [the defendant] to formulate an informed and full response. Discovery will likely yield the information [the defendant] contends the complaint is lacking.").
V. CONCLUSION
For the foregoing reasons, Defendants’ Motions to Dismiss are due to be denied.
ACCORDINGLY , it is ORDERED AND ADJUDGED :
1. Defendant Grand Villa of New Port Richey's Motion to Dismiss Counts I-III of the Second Amended Complaint (Doc. 8), Defendant IND-Ormond, Inc.’s Motion to Dismiss Counts I-II of the Second Amended Complaint (Doc. 11), and Defendant DFGV Holdings, Inc.’s Motion to Dismiss Counts I-II of the Second Amended Complaint (Doc. 12) are DENIED .
2. Defendants are directed to file an Answer to the Second Amended Complaint on or before May 26, 2021 . DONE AND ORDERED at Tampa, Florida, this 19th of May, 2021.