Lowe v. STME, LLC
| Decision Date | 05 February 2019 |
| Docket Number | Case No. 8:18-cv-2667-T-33SPF |
| Citation | 354 F.Supp.3d 1311 |
| Parties | Kimberly LOWE, Plaintiff, v. STME, LLC, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Monica Michele Leach-Pachinger, Leach-Pachinger Law & Mediations, PLLC, Bradenton, FL, Michelle E. Nadeau, Ryan D. Barack, Kwall Barack Nadeau PLLC, Clearwater, FL, for Plaintiff.
Lorraine M. Hultman, Hultman, Sensenig + Joshi, PA, Sarasota, FL, Nikhil N. Joshi, Miller Tack & Madson, Tampa, FL, Sharon A. Wey, Miller Tack & Madson, Tampa, FL, for Defendant.
Before this Court is Defendant STME, LLC's Motion to Dismiss Plaintiff Kimberly Lowe's First Amended Complaint (Doc. # 22), filed on December 31, 2018. Lowe responded in opposition on January 14, 2019. (Doc. # 23). For the reasons that follow, the Motion is granted in part and denied in part.
Lowe was employed as a massage therapist by STME, which does business as Massage Envy. (Doc. # 21 at ¶ 7). In September of 2014, Lowe requested time off to visit Ghana while her sister was stationed there by the U.S. Navy. (Id. at ¶ 9). Lowe's request was initially approved by her manager. (Id. at ¶ 10). However, Massage Envy's owners allegedly "became concerned that Lowe would contract Ebola
as a result of her travel." (Id. at ¶ 11). Massage Envy was advised by a management services company and the Center for Disease Control that Lowe's risk of contracting Ebola was low. (Id. at ¶¶ 12-15). They also advised Massage Envy that Lowe should be permitted to resume working upon her return if she did not exhibit any symptoms of Ebola. (Id. ).
Nonetheless, on October 22, 2014, Massage Envy's owners met with Lowe to ask her not to travel to Ghana. (Id. at ¶¶ 17-18). They informed Lowe that her employment would be terminated if she traveled to Ghana because they feared Lowe would contract Ebola
. (Id. at ¶¶ 19-20). But "Lowe refused to cancel her previously-approved trip because of Massage Envy's erroneous belief that Ghanaians had Ebola," and therefore, "traveled to Ghana, as planned." (Id. at ¶¶ 21-22). Consequently, Massage Envy terminated Lowe. (Id. at ¶ 23).
outbreak in other countries in West Africa," but "there was no Ebola outbreak in Ghana in 2014." (Id. at ¶ 28). So Lowe alleges that Massage Envy did not believe she would contract Ebola due to visiting Ghana, "but due to her interaction with black African people generally." (Id. at ¶ 32). In fact, "[m]ore than 98% of Ghanaians are black Africans" so "Lowe was certain to interact with black Africans and intended to associate with black Africans on her trip." (Id. at ¶ 30). Therefore, Lowe alleges she was actually terminated because Massage Envy did not want her, "a white American citizen," to "interact with black Africans." (Id. at ¶¶ 25, 60).
The Equal Employment Opportunity Commission ("EEOC") initially brought an action on Lowe's behalf for disability discrimination under the Americans with Disabilities Act. EEOC v. STME, LLC, 309 F.Supp.3d 1207 (M.D. Fla. 2018). The EEOC action was dismissed with prejudice, so Lowe's motion to intervene was denied as moot, and therefore, Lowe was unable to bring any claims on her own behalf. As a result, Lowe initiated this action in state court, alleging Massage Envy committed race and national origin discrimination in violation of 42 U.S.C § 1981 and disability discrimination in violation of the Florida Civil Rights Act ("FCRA"). (Doc. # 1-1). Massage Envy timely removed the case to this Court (Doc. # 1), and shortly thereafter, moved to dismiss Lowe's initial complaint. (Doc. # 4). The Court granted Massage Envy's motion and dismissed Lowe's claims without prejudice. (Doc. # 16). Lowe filed her Amended Complaint on December 17, 2018. (Doc. # 21). Massage Envy then filed the instant Motion on December 31, 2018. (Doc. # 22). Lowe has responded (Doc. # 23), and the Motion is ripe for review.
On a motion to dismiss pursuant to Rule 12(b)(6), this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). Courts are not "bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court must limit its consideration to well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).
Massage Envy argues that each count of the Amended Complaint should be dismissed with prejudice. The Court will address each count separately.
Section 1981 prohibits intentional race and alienage discrimination in the making and enforcement of public and private contracts, including employment contracts. Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999). Count I of the Amended Complaint alleges Massage Envy violated Section 1981 by terminating Lowe because of her association with black Africans or in retaliation of her protected conduct of refusing not to associate with black Africans. (Doc. # 21 at ¶ 60). Massage Envy argues Lowe fails to state either an associational discrimination claim or a retaliation claim under Section 1981. (Doc. # 22 at 11-12).
The Amended Complaint alleges Massage Envy discriminated against Lowe, "a white American citizen, because of her association with persons who are black African[s]." (Doc. # 21 at ¶ 60). Massage Envy argues Lowe fails to state a claim under Section 1981 because Lowe had not yet associated with any black Africans when she was terminated. (Doc. # 22 at 11).
"[S]ection 1981 prohibits discrimination based upon an interracial marriage or association." Parr v. Woodmen of World Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986). The Eleventh Circuit has recognized that an intimate relationship between the plaintiff and an individual of a different race will support an associational discrimination claim. See Tomczyk v. Jocks & Jills Rests., LLC, 198 F. App'x 804, 809 (11th Cir. 2006) (interracial relationship); Parr, 791 F.2d at 890 (interracial marriage). Some courts expressly require a significant relationship – such as an intimate or familial relationship — to support an associational discrimination claim. See, e.g., Larochelle v. Wilmac Corp., 210 F.Supp.3d 658, 694-93 (E.D. Pa. 2016) ().
Other courts, by contrast, have held a less significant relationship – such as a friendly or social relationship – will support such a claim. See Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 884 (7th Cir. 1998) (). But even cases requiring less significant relationships have found there to be at least some existing relationship between the plaintiff and an individual of a different race. See Id. (coworkers); see also Baker v. Kelly Smith, LLC, 977 F.Supp.2d 1231, 1236-37 (M.D. Fla. 2013) (). Here, Lowe does not allege that she had any existing relationship – let alone a significant one — with an individual of a different race when she was terminated by Massage Envy.
Nor does Lowe identify any case that has held planned association with an unidentified individual of a different race is sufficient to state an associational discrimination claim. As Judge Scriven noted in Lowe's previous EEOC action against Massage Envy for disability discrimination:
The EEOC has not presented, nor is the Court aware, of any Eleventh Circuit case in which an association discrimination claim was sustained based on an employer's knowledge of a potential future association with a disabled person or persons. Rather, the Eleventh Circuit has evaluated association discrimination claims only when the allegations are based on an existing relationship or association with a disabled person or persons.
STME, LLC, 309 F.Supp.3d at 1214. Other courts have reached similar conclusions for disability associational discrimination claims. See Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002) (); Tyson v. Access Servs., 158 F.Supp.3d 309, 314 (E.D. Pa. 2016) .
The only case law Lowe offers to support her argument that planned association with...
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Lowe v. STME, LLC
...as an employee's refusal to follow a supervisor's discriminatory order, can be a statutorily protected activity." Lowe v. STME,LLC, 354 F. Supp. 3d 1311, 1316 (M.D. Fla. 2019)(citing Crawford v. Metro. Gov't of Nashville & Davidson Cty., 555 U.S. 271, 277 (2009)). But "[e]ven after Crawford......