ane Doe v. Grand Villa of New Port Richey

• Decision Date: 19 May 2021
• Docket Number: CASE NO. 8:20-cv-2814-SCB-CPT
• Parties: 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.
• Court: U.S. District Court — Middle District of Florida

540 F.Supp.3d 1168

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.

CASE NO. 8:20-cv-2814-SCB-CPT

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

Signed May 19, 2021

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 Doe¹ ("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 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).² Specifically, the SAC alleges that:

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

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