Foster v. Select Med. Corp.

Decision Date24 April 2012
Docket NumberCase No. 6:11-cv-1234-J-37GJK
PartiesWILLIE FOSTER, JR., Plaintiff, v. SELECT MEDICAL CORPORATION, INC., Defendant.
CourtU.S. District Court — Middle District of Florida
ORDER

This cause is before the Court on the following:

1) Defendant's Motion to Dismiss Counts I, II, III, IV, V, VI, VII, and VIII of Plaintiff's Amended Complaint (Doc. No. 17), filed on January 31, 2012; and
2) Plaintiff's Motion in Opposition to Defendant's Motion to Dismiss Counts I, II, III, IV, V, VI, VII, and VIII of Plaintiff's Complaint (Doc. No. 23), filed on February 7, 2012.1
BACKGROUND
A. Procedural History

Plaintiff filed a Complaint and Motion for Leave to Proceed In Forma Pauperis in this Court on July 26, 2011. (Doc. Nos. 1, 2.) Magistrate Judge Gregory J. Kelly denied the Motion for Leave to Proceed IFP on August 4, 2011, and directed Plaintiff to file an amended complaint within twenty one (21) days from the date of that order, along with arenewed motion to proceed IFP (or to pay the filing fee). (Doc. No. 8.) On January 1, 2012, Judge Gregory A. Presnell dismissed Plaintiff's case for failure to prosecute. (Doc. No. 11.)

On January 9, 2012, Plaintiff filed a Motion for Relief from Judgment or Order. (Doc. No. 12.) He contended that he filed "another complaint," which was ultimately filed with a new case number (Case No. 6:11-cv-1386-Orl-36DAB). On January 27, 2012, Magistrate Judge David A. Baker entered an order in Case No. 6:11-cv-1386-Orl-36DAB, in which he explained:

Plaintiff, appearing pro se, has filed a previous Complaint regarding this matter: Case No. 6:11-cv-1234-31-GJK. In that action, on August 4, 2011, the Court directed Plaintiff to file an Amended Complaint (Doc. No. 8). According to Plaintiff (Doc. No. 12 in the earlier case), he prepared and tendered his newly amended complaint on August 18, 2011, as directed, but this complaint did not have a case number on it and was therefore apparently filed as a new complaint in the instant action (Doc. No. 1). In the meantime, the Court dismissed the earlier case for failure to timely file the amended pleading (Doc. No. 11-earlier case). As it is apparent that Plaintiff did not intend to file a new action and the instant matter was opened in error, the Clerk is directed to close this case, and to file Plaintiff's documents in the previous docket (Case No. 6: 11cv1234-31GJK).

(Doc. No. 26.)

The most recent version of Plaintiff's Complaint, to which the Motion to Dismiss (Doc. No. 17) pertains, was filed on the docket corresponding to the above styled case on January 31, 2012. (See Doc. No. 16.) The Complaint asserts eight counts against Defendant, including: 1) Count I - Title VII Discrimination; 2) Count II - Retaliation -Interference; 3) Count III - Breach of Implied Contract; 4) Count IV - Defamation; 5) Count V - Intentional Infliction of Emotional Distress; 6) Count VI - Negligent Training and Supervision; 7) Count VII - Negligent Retention; and 8) Count VIII - Retaliatory Discharge. (Id.)

On February 1, 2012, Judge Presnell granted Plaintiff's Motion for Relief from Judgment (Doc. No. 12), and instructed Plaintiff to respond to Defendant's Motion to Dismiss (Doc. No. 17), which was filed on January 31, 2012, by February 17, 2012. (Doc. No. 21.) Plaintiff filed his Response to Defendant's Motion to Dismiss on February 7, 2012. (Doc. No. 23.)

B. Factual Allegations

Plaintiff is a fifty-five-year-old, African American male, "who was employed by [Defendant] as a Floor Technician on or about July 14, 2008, earning $10.00 per hour." (Doc. No. 16, ¶ 9.) He maintains that Defendant and its agents "acted with malice and with reckless disregard for Plaintiff's protected rights." (Id. at ¶ 5.)

Plaintiff contends his alleged persecution began on July 11, 2008, when he and his fiancé first toured Defendant's facility. (Id. at ¶ 13.) During the tour, they entered the office of the "Housekeeping/Environmental Service" supervisor, who "professed her strong Christian views and held her bible," which she always kept on her desk. (Id. at ¶ 14.) Plaintiff, a Buddhist, felt "somewhat uncomfortable," but "did not profess his faith for fear of not being hired." (Id. at ¶ 15.) At some point thereafter, Plaintiff was ultimately hired, and even received a "raise in hourly wage" on February 9, 2009. (Id. at ¶ 17.)

On February 14, 2009, Plaintiff informed his direct supervisor of a "health safety violation" that he encountered while he was removing trash from the building earlier that morning. (Id. at ¶ 17.) He believed that he may have "been infected by the exposure." (Id.) He asked to file a worker's compensation claim, but was denied. (Id.)2 On February26, 2009, Plaintiff received "accelerated discipline action." (Id. at ¶ 18.) On March 12, 2009, Plaintiff filed a complaint with Defendant's CEO and "human relations" department for "unfair labor practices and safety violations." (Id. at ¶ 19.) Thereafter, he was "subjected to disparate treatment, sexist and racist insults by supervisors," which his co-workers witnessed. (Id. at ¶ 20.)

On April 17, 2009, Plaintiff informed the facility manager that he was going to report "the matter" to Defendant's "corporate office." (Id. at ¶ 23.) Plaintiff later had a telephone conference with the "regional human relations director." (Id. at ¶ 24.) On April 21, 2009, the director "arrived in town from the corporate office" to meet with Plaintiff, and wanted to see pictures Plaintiff took of the safety violations. (Id. at ¶ 25.) On April 29, 2009, Plaintiff "was instructed to meet again with the regional human relation director via telephone conference." (Id. at ¶ 25.) He requested to have a witness present or to record the conversation, but was denied. (Id.) When he returned to his "scheduled assignment" after the meeting, he was approached by the facility manager and asked to leave the building. (Id.) When Plaintiff asked if he was being terminated, the facility manager acknowledged that he was. (Id.) Plaintiff was not offered any explanation about his termination.

Plaintiff asserts that he was the "only male in his department and forced to perform jobs outside the scope of his employment and training and discriminatory job assignments and workload."3 (Id. at ¶ 21.) Further, he alleges he was "subjected to pray meeting in supervisors office and instructed to pray with other employees in her office on scheduled lunch break." (Id. at ¶ 22.) Additionally, he contends there were "crucifixes or crosses placed throughout the office." (Id.)

APPLICABLE STANDARDS

A pro se plaintiff "is subject to the relevant law and rules of the court, including the Federal Rules of Civil Procedure." Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). When ruling on a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), a court must limit its consideration to the complaint, the written instruments attached to it as exhibits, "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323 (2007); GSW, Inc. v. Long Cnty., Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). In determining the merits of the motion, a court must "accept all factual allegations in the complaint as true." Tellabs, 551 U.S. at 323. However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Once a court "identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," the court must next determine whether the well-pled facts " 'state a claim to relief that is plausible on its face.' " Id. at 1949-50 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556)). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience andcommon sense." Id. at 1950 (citation omitted). As the United States Supreme Court explained:

The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. at 1949 (quotation marks and internal citations omitted) (quoting Twombly, 550 U.S. at 557). On a Rule 12(b)(6) motion to dismiss, when a court considers the range of possible interpretations of a defendant's alleged conduct, if the "more likely explanations" involve lawful, non-actionable behavior, the court should find that the plaintiff's claim is not plausible. Id. at 1950-51.

DISCUSSION
A. Count I - Title VII Discrimination

In Count I, Plaintiff "asserts both a[] disparate treatment discrimination claim and a hostile work environment claim." (Doc. No. 1, ¶ 28.)

1. Disparate Treatment

The Eleventh Circuit addressed the application of the pleading standard established in Iqbal, 129 S.Ct. 1937, and Twombly, 550 U.S. 544, to claims for employment discrimination in Henderson v. JP Morgan Chase Bank, N.A.,436 F. App'x 935 (11th Cir. 2011). The court explained:

A complaint in an employment discrimination case need not contain specific facts establishing a prima facie case under the evidentiary framework for such cases to survive a motion to dismiss. Swierkiewicz v. Sorema
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