Scelta v. Delicatessen Support Services, Inc., No. 98-2578-CIV-T-17B.

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Writing for the Court: Kovachevich
• Citation: 57 F.Supp.2d 1327
• Docket Number: No. 98-2578-CIV-T-17B.
• Decision Date: 03 June 1999
• Parties: Bernadette SCELTA, Plaintiff, v. DELICATESSEN SUPPORT SERVICES, INC., Boar's Head Provisions Co., Inc., Joseph Egan and Robert. S. Martin, Defendants.

57 F.Supp.2d 1327 Bernadette SCELTA, Plaintiff,
v.
DELICATESSEN SUPPORT SERVICES, INC., Boar's Head Provisions Co., Inc., Joseph Egan and Robert. S. Martin, Defendants. No. 98-2578-CIV-T-17B. United States District Court, M.D. Florida, Tampa Division. June 3, 1999.

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David P. Montgomery, Bradenton, FL, for Plaintiff.

William G. Salim, Jr., Moskowitz, Mandell, Salim & Simowitz, P.A., Ft. Lauderdale, FL, Jacqueline G. Veit, Martin S. Hyman, Golenbock, Eiseman, Assor & Bell, New York City, for defendants.

ORDER ON DEFENDANTS' MOTIONS TO DISMISS

KOVACHEVICH, Chief Judge.

This cause is before the Court on Defendant, Delicatessen Support Services Inc.'s [hereinafter "Delicatessen"], Motion to Dismiss, (Dkt.15), Defendant, Boar's Head Provisions Co., Inc.'s [hereinafter "Boar's Head"], Motion to Dismiss, (Dkt.18), Defendant, Joseph Egan's [hereinafter "Defendant Egan"], Motion to Dismiss Count IV(B) of the Complaint, (Dkt.22), Defendant Robert S. Martin's [hereinafter "Defendant

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Martin"], Motion to Dismiss Counts III and IV(A) of the Complaint, (Dkt.24), and Plaintiff, Bernadette Scelta's, responses thereto, (Dkts.32, 33, 34, 35).

I. STANDARD OF REVIEW

A district court should not dismiss a complaint 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." See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). To survive a motion to dismiss, a plaintiff may not merely "label" his or her claims. See Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996). At a minimum, the Federal Rules of Civil Procedure require a "short and plain statement of the claim" that "will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." See Conley, 355 U.S. at 47, 78 S.Ct. 99 (quoting FED.R.CIV.P. 8(a)(2)).

In deciding a motion to dismiss, the court can only examine the four corners of the complaint. See Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D.Fla. 1995). "The threshold sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low." Ancata v. Prison Health Serv., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted).

In addition, a court must accept the plaintiff's well pled facts as true and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Howry v. Nisus, Inc., 910 F.Supp. 576 (M.D.Fla.1995). However, when on the basis of a dispositive issue of law, no construction of the factual allegations of the complaint will support the cause of action, dismissal of the complaint is appropriate. See Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir. 1991).

II. BACKGROUND

Plaintiff originally brought this action against Defendants in the Circuit Court, in and for Sarasota County, Florida, on December 16, 1998. (Dkt.2). Defendants filed a Notice of Removal, on December 16, 1998, based on federal question jurisdiction, pursuant to 28 U.S.C. § 1331. This case was subsequently removed to the United States District Court for the Middle District of Florida. (Dkt.1).

Plaintiff's Complaint alleges that Delicatessen is a subsidiary of Boar's Head, or that it is controlled by Boar's Head, has interlocking ownership and control, and has engaged in a common enterprise with Boar's Head. The common enterprise between Delicatessen and Boar's Head acts as a wholesale food distributor and it, as well as each component of the common enterprise, employs over twenty-five (25) persons.

Plaintiff states that she was an employee of The Frank Brunckhorst Company, Boar's Head, and Delicatessen. While Plaintiff was an employee of The Frank Brunckhorst Company, Plaintiff was assigned to establish a principal place of operation for Boar's Head and Delicatessen in Sarasota County, Florida. Defendant Egan served as Plaintiff's supervisor and as an agent of Boar's Head and Delicatessen. Defendant Martin was also an agent of Boar's Head and Delicatessen and had the duty of supervising the employment decisions of Defendant Egan. Plaintiff states that she performed her duties, while employed with Boar's Head and Delicatessen, in an exemplary manner and never received a written or oral reprimand.

While residing in Sarasota County, Florida, Plaintiff and Defendant Egan, her immediate supervisor, had a short affair, which included sexual relations. Plaintiff states that Defendant Egan was married and did not want his wife or his fellow coworkers to gain knowledge of the affair.

Plaintiff alleges that during her employment with Boar's Head and Delicatessen, Plaintiff's superiors engaged in sexual harassment of Plaintiff and other female

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employees, and created a sexually hostile work environment. According to Plaintiff, a sexually hostile work environment was created by actions which include, but are not limited to:

(1) [I]n or about February, 1996, a statement made by [Defendant] Martin referring to the size of [Plaintiff's] breasts;

(2) [T]hereafter, [Defendant] Martin committed battery against [Plaintiff] by touching [Plaintiff] without her express or implied consent;

(3) [A]fter February, 1996, in the presence of [Plaintiff], [Defendant] Martin pulled a female coworker onto a table and placed his body atop of her body in a sexual manner;

(4) [I]n March, 1996, another comment was made by [Defendant] Martin, at a sales meeting, while other employees and superiors were present, about the size of [Plaintiff's] breasts, as well as other lewd comments;

(5) [I]n April, 1996, at a sales meeting, [Plaintiff] and other female employees were subjected to twenty (20) minutes of comments about their breasts, which included a comment made by [Defendant] Martin stating that he would like a "cast of [a female employee's] body" before she resigned, and as a result of that comment [Plaintiff] orally objected;

(6) [Defendant] Egan denied [Plaintiff's] attempt to transfer to an open position in New York City and did so to prevent [Plaintiff] from interacting with [Defendant] Egan's wife and members of [Plaintiff's] family and, as a result of this, [Plaintiff] knew that the affair between [Plaintiff] and [Defendant] Egan was a primary consideration in decisions made that affected [Plaintiff's] career;

(7) [I]n or about June 1996, [Defendant] Egan informed [Plaintiff] that [Defendant] Egan's supervisor, Ayvazian, knew of the affair between [Defendant] Egan and [Plaintiff] and had threatened [Defendant] Egan's and [Plaintiff's] jobs;

(8) [Plaintiff] attempted to address Ayvazian's knowledge of the affair with Ayvazian, who told [Plaintiff] that "if [he] thought Joe Egan and [Plaintiff] were having a relationship, then [Plaintiff] would have been fired" and [Plaintiff] understood that to mean she would be fired, while [Defendant] Egan would remain employed;

(9) [O]n or about the week of June 6, 1996, [Defendant] Martin entered [Plaintiff's] office, grabbed his crotch, and started discussing the size of his genitals, until [Plaintiff] objected;

(10) [Plaintiff] was informed that because of the affair between [Plaintiff] and [Defendant] Egan, the company was being forced to choose between [Plaintiff] and [Defendant] Egan, and the company was choosing [Defendant] Egan;

(11) [I]n June, 1996, [Defendant] Egan referred to [Plaintiff], in the presence of a supervisor, as a "neurotic fuck";

(12) [Defendant] Egan, acting within the scope and course of his employment, deprived [Plaintiff] of the position, authority, responsibility, and financial benefit that, based upon her previous performance, had been promised to her;

(13) [D]espite [Plaintiff's] repeated efforts to address her concerns with [Defendant] Egan's supervisors, [Plaintiff] was continually directed to deal with the company only through [Defendant] Egan, who effectively froze [Plaintiff] out of any meaningful role within the company, in a successful effort to constructively fire [Plaintiff] by giving her no choice but to resign, which she did.

(Dkt.2).

Counts I and II of Plaintiff's Complaint are claims for sexual discrimination against Boar's Head and Delicatessen. Count I alleges a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e [hereinafter "Title VII"]. Count II alleges a violation of the Florida Civil Rights Act of 1992, which is contained in Chapter 760 of the Florida Statutes [hereinafter "FCRA"]. Counts I and II assert

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that the actions and inactions of Boar's Head and Delicatessen constitute sexual harassment and a sexually hostile work environment.

Count III of Plaintiff's Complaint asserts a claim for intentional infliction of emotional distress. In connection with this claim, Plaintiff asserts that Defendant Martin acted in an intentional, wanton, and reckless manner when engaging in the alleged sexual conduct toward Plaintiff. Plaintiff states that Defendant Martin knew, or should have known, that his conduct toward Plaintiff caused Plaintiff emotional distress, anger, embarrassment, stress, and the loss of her business reputation. Count III also alleges that Defendant Martin acted in an outrageous manner that was beyond all decency. As a direct and proximate result of Defendant Martin's alleged conduct, Plaintiff claims to have suffered severe emotional distress, as well as the loss of her employment, and the loss of her business reputation. Plaintiff's resignation was the alleged direct and proximate result of Defendant Martin's actions.

Count IV(A) of Plaintiff's Complaint alleges battery against Defendant Martin. Plaintiff states that Defendant Martin touched Plaintiff without express or implied consent....