Blount v. Sterling Healthcare Group, Inc.

• Citation: 934 F. Supp. 1365
• Decision Date: 28 May 1996
• Docket Number: No. 95-2881-CIV.,95-2881-CIV.
• Parties: Gayl BLOUNT, Plaintiff, v. STERLING HEALTHCARE GROUP, INC., a Florida Corp., and Stephen J. Dresnick, Defendants.
• Court: U.S. District Court — Southern District of Florida

934 F. Supp. 1365

Gayl BLOUNT, Plaintiff, v. STERLING HEALTHCARE GROUP, INC., a Florida Corp., and Stephen J. Dresnick, Defendants.

No. 95-2881-CIV.

United States District Court, S.D. Florida.

May 28, 1996.

Kimberly Lynn Boldt, Russo, Talisman & Moylan, P.A., Coconut Grove, FL, for Gayl Blount.

Susan Potter Norton, Dena Holly Sokolow, Hogg, Allen, Norton & Blue, P.A., Coral Gables, FL, for Sterling Healthcare Group, Inc.

Dena Holly Sokolow, Hogg, Allen, Norton & Blue, P.A., Coral Gables, FL, for Stephen J. Dresnick.

ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION

UNGARO-BENAGES, District Judge.

THIS CAUSE came before the Court upon Defendant's Partial Motion to Dismiss Counts I and II as to Defendant Dresnick, Count III as to Defendant Sterling, Count IV as to both Defendants, and Motion to Strike and/or Dismiss the Demand for Punitive Damages in Counts III and IV of Plaintiff's First Amended Complaint (D.E. 9).

THE MATTER was referred to the Honorable Barry L. Garber, United States Magistrate Judge. A Report and Recommendation dated April 19, 1996 has been filed, recommending that Defendant's Motion to Dismiss Counts I and II as to Dresnick be Granted; Defendant's Motion to Dismiss Count IV be Granted as to both Defendants; Defendants' Motion to Dismiss Count III as to Sterling be Denied; and Defendants' Motion to Dismiss the Claim for Punitive Damages be Denied. No Objections to the Magistrate Judge's Report and Recommendation have been filed. This matter is ripe for disposition.

THIS COURT has made a de novo review of the entire file and record herein, and being otherwise fully advised in the premises, it is

ORDERED and ADJUDGED that United States Magistrate Judge Garber's Report and Recommendation of April 19, 1996 is RATIFIED, AFFIRMED and ADOPTED as discussed below. Plaintiff has filed a cause of action against the defendants alleging sexual harassment under Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e, et seq. (Count I) and Chapter 760 of the Florida Civil Rights Act of 1992 (Count II), state tort claims for assault and battery (Count III) and intentional infliction of emotional distress (Count IV) on the theory of respondeat superior. Blount seeks compensatory and punitive damages on all counts.

Defendants filed this Motion to Dismiss pursuant to Fed.R.Civ.Pro. 12(b)(6) alleging failure to state a cause of action on the grounds that Title VII and the Florida Civil Rights Act do not create causes of action against individual employees for sexual harassment (Counts I and II), that the alleged acts committed by Dresnick were not within the scope of his employment and therefore cannot serve as the basis for respondeat superior liability (Counts III and IV), and that the conduct alleged does not rise to the level of "outrageousness" necessary for a cause of action for intentional infliction of emotional distress under Florida law. Defendants further seek to strike and/or dismiss Blount's claim for punitive damages in Counts III and IV as the allegations in the Complaint do not comply with the pleading requirements of Fla.St. § 768.72.

The Magistrate Judge found that Title VII does not create a cause of action against individual employees such that Dresnick may not be held individually liable under Title VII and recommended that Count I be dismissed as against Dresnick. The Magistrate Judge further found that, like Title VII, the Florida Civil Rights Act does not create a cause of action against individual employees such that Dresnick may not be held individually liable under the Act and recommended that Count II be dismissed as against Dresnick. The Magistrate Judge further found that, accepting Plaintiff's allegations as true, Plaintiff has sufficiently stated a cause of action against Defendant Sterling for respondeat superior liability such that Count III should not be dismissed as against Sterling. The Magistrate Judge further found that the conduct alleged, although unacceptable and actionable in other respects, does not rise to the level of sufficiently outrageous conduct to support a cause of action for intentional infliction of emotional distress and recommended that Count IV be dismissed as to both defendants. Finally, the Magistrate Judge found that Florida Statute § 768.72 is procedural and therefore is inapplicable to Plaintiff's claims for punitive damages such that the claims should not be stricken or dismissed.

Upon review of the relevant statutes and case law as they pertain to the record herein, this Court agrees with the findings of the Magistrate Judge. Accordingly, it is hereby

ORDERED AND ADJUDGED as follows:

Defendants' Motion to Dismiss Counts I and II as to Dresnick is GRANTED;

Defendants' Motion to Dismiss Count IV is GRANTED as to both Defendants;

Defendants' Motion to Dismiss Count III as to Sterling is DENIED; and

Defendants' Motion to Dismiss and/or Strike Plaintiff's claims for Punitive Damages is DENIED.

REPORT AND RECOMMENDATION

GARBER, United States Magistrate Judge.

THIS CAUSE is before the Court pursuant to an Order of Reference entered by the Honorable Ursula Ungaro-Benages, United States District Judge. The following Report and Recommendation is hereby submitted on Defendants' Partial Motion to Dismiss Counts I and II as to Defendant Dresnick, Count III as to Defendant Sterling, Count IV as to both Defendants, and Motion to Strike and/or Dismiss the Demand for Punitive Damages in Counts III and IV of Plaintiff's First Amended Complaint. (DE 9).

BACKGROUND

On December 27, 1995, Plaintiff Gayl Blount ("Blount") filed a Complaint in the United States District Court for the Southern District of Florida against Defendants Sterling Healthcare ("Sterling") and Stephen Dresnick ("Dresnick"), President of Sterling. (DE 1). Blount then filed her First Amended Complaint (DE 4) on January 11, 1996, alleging sexual harassment claims against both Defendants under Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. (Count I) and Chapter 760 of the Florida Civil Rights Act of 1992 (Count II). Blount also alleges state law tort claims of Assault and Battery (Count III) and Intentional Infliction of Emotional Distress (Count IV) against Dresnick and against Sterling on the theory of respondeat superior liability. In all of the above counts, Blount requests compensatory and punitive damages.

In her Amended Complaint, Blount alleges that she was subject to sexual harassment by Dresnick in the form of Dresnick hugging and refusing to release her in spite of her resistance, rubbing her breasts with the back of his arm repeatedly, and making sexually explicit jokes and suggestive comments to her. Blount alleges that she informed Dresnick that his comments and behavior were not welcomed, but the alleged harassment continued. On March 27, 1995, Blount was terminated from her employment with Sterling, which she claims was a result of her confronting Dresnick about his behavior.

On January 23, 1996, Sterling and Dresnick filed their Partial Motion to Dismiss Blount's Amended Complaint (DE 9) for failure to state a claim under Fed.R.Civ.P. 12. Defendants claim that Counts I and II should be dismissed as to Dresnick, as neither Title VII nor the Florida Civil Rights Act ("Florida Act") creates a cause of action against individual employees for sexual harassment. Defendants further seek dismissal of Counts III and IV as to Sterling on the ground that the alleged misconduct was not committed by Dresnick within the scope of his employment, and thus there can be no respondeat superior liability. Defendants also claim that Count IV should be dismissed in its entirety, as the conduct complained of, even if true, does not rise to the level of "outrageousness" necessary to state a claim for the tort of intentional infliction of emotional distress under Florida law. Lastly, Defendants seek to strike and/or dismiss Blount's claim for punitive damages in Counts III and IV, as the allegations in Blount's Amended Complaint do not comply with the pleading requirements of Florida Statute § 768.72.

On February 23, 1996, Blount filed a Response to the Partial Motion to Dismiss (DE 16), to which Defendants replied on March 11, 1996. (DE 23). A hearing on said motions was held before the undersigned on March 19, 1996.

DISCUSSION

I. STANDARD OF REVIEW

To state a claim, Fed.R.Civ.P. 8(a) requires, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." The Court must "take the material allegations of the complaint and its incorporated exhibits as true, and liberally construe the complaint in favor of the plaintiff." Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797, 798 (11th Cir.1988), aff'd sub nom., Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). The law in this Circuit is well-settled that "the `accepted rule' for appraising the sufficiency of a complaint is `that a complaint should not be dismissed for failure to state a claim 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.'" SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir. 1988), cert. denied sub nom., Peat Marwick Main & Co. v. Tew, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).

II. TITLE VII DOES NOT CREATE A CAUSE OF ACTION AGAINST INDIVIDUAL EMPLOYEES

In Count I of Blount's Amended Complaint, she seeks damages under Title VII against Sterling as an employer and against Dresnick both in his individual capacity and as an agent of Sterling. Dresnick argues that Count I should be dismissed against him because Title VII does not create a cause of action against employees. In Busby v. City of Orlando, the Eleventh Circuit Court of Appeals held a similar individual capacity suit under Title VII inappropriate. 931 F.2d...