Souto v. Fla. Int'l Univ. Found., Inc.

• Decision Date: 03 March 2020
• Docket Number: CASE NO. 19-21935-CIV-LENARD/O'SULLIVAN
• Citation: Souto v. Fla. Int'l Univ. Found., Inc., 446 F.Supp.3d 983 (S.D. Fla. 2020)
• Court: U.S. District Court — Southern District of Florida
• Parties: Herena SOUTO, and all others similarly situated under 29 U.S.C. § 206(b), Plaintiff, v. FLORIDA INTERNATIONAL UNIVERSITY FOUNDATION, INC., a Florida non-profit corporation, Christy Martinez, individually, and Florida International University, a Florida public university, Defendants.

446 F.Supp.3d 983

Herena SOUTO, and all others similarly situated under 29 U.S.C. § 206(b), Plaintiff,

v.FLORIDA INTERNATIONAL UNIVERSITY FOUNDATION, INC., a Florida non-profit corporation, Christy Martinez, individually, and Florida International University, a Florida public university, Defendants.

CASE NO. 19-21935-CIV-LENARD/O'SULLIVAN

United States District Court, S.D. Florida.

Signed March 3, 2020

Monica Espino, Espino Law, P.L., Coral Gables, Fl, for Plaintiff.

Lourdes Espino Wydler, Oscar Edmund Marrero, Marrero & Wydler, Coral Gables, FL, Defendant.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS(D.E. 36), DISMISSING THIRD AMENDED COMPLAINT WITHOUT PREJUDICE, AND CLOSING CASE

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on DefendantsFlorida International University Foundation Inc.("the Foundation"), Christy Martinez("Martinez"), and Florida International University's ("FIU")Motion to Dismiss, ("Motion,"D.E. 36), filed January 13, 2020.PlaintiffHerena Souto filed a Response on January 27, 2020, ("Response,"D.E. 37), to which Defendants filed a Reply on February 13, 2020, ("Reply,"D.E. 40).Upon review of the Motion, Response, Reply, and the record, the Court finds as follows.

I.Background¹

From March 16, 2016 through May 21, 2018, Plaintiff worked for the Foundation as Coordinator of Foundation Board Relations.(ThirdAm. Compl. ¶ 16.)Martinez was Plaintiff's supervisor.(Id.¶ 26.)During her employment at the Foundation, Plaintiff worked 690 hours of uncompensated overtime.(Id.¶¶ 17-20.)

On June 29, 2017, Plaintiff was diagnosed with breast cancer.(Id.¶ 27.)On July 20, 2017, Plaintiff requested FMLA leave to undergo surgery and other treatment.(Id.¶ 29.)This leave was validated by her doctor and authorized and approved by the Foundation.(Id.¶ 30.)Martinez assigned Plaintiff an unreasonable list of tasks to complete before her leave began.(Id.¶ 31.)Plaintiff was on FMLA leave from August 1, 2017 through September 25, 2017.(Id.¶ 33.)

Plaintiff returned to work on September 27, 2017.(Id.¶ 36.)Upon her return, the Foundation approved a flexible schedule under the FMLA of twenty-five hours per week until November 30, 2017 to accommodate Plaintiff's medical restrictions.(Id.¶ 37.)Due to some medical complications and the side effects of radiation treatment, Plaintiff required an extension of her FMLA flexible schedule to December 14, 2017, which the Foundation approved.(Id.¶ 41.)However, due to further complications that necessitated Plaintiff continue working a reduced schedule, the Foundation requested that Plaintiff file for intermittent leave under the FMLA.(Id. )On December 13, 2017, the Foundation approved Plaintiff's intermittent leave through June 30, 2018.(Id. )

Plaintiff alleges that while she was on a flexible schedule, Martinez "continuously unlawfully harassed and interfered with [Plaintiff's] valid and authorized FMLA [leave] and discriminated and retaliated against Souto for taking such leave, by among other things, failing to accommodate her medical restrictions."(Id.¶ 37;see alsoid.¶ 40.)She further alleges that while she was on intermittent leave, "Martinez continued to discriminate and interfere with Souto's FMLA rights[,]"(id.¶ 41); for example, in January 2018, Martinez asked Plaintiff to ask her physicians to remove the medical restrictions and obtain clearance to work additional hours in order to meet the needs of upcoming events, (id.¶ 43).Plaintiff complained about this to Human Resources.(Id. )

On February 7, 2018, Martinez placed Plaintiff on a Performance Action Plan for her failure to meet the requirements of her position.(Id.¶ 44.)

On May 21, 2018, while still on FMLA leave, Martinez terminated Plaintiff from her employment at the Foundation.(Id.¶ 45.)

On May 14, 2019, Plaintiff filed a Complaint against FIU alleging violations of the FMLA, 29 U.S.C. § 2601 et seq., andFair Labor Standards Act("FLSA"), 29 U.S.C. § 201 et seq.(D.E. 1.)The case was originally assigned to Judge Cooke.(SeeD.E. 2.)

On May 16, 2019, Plaintiff filed an Amended Complaint against FIU.(D.E. 5.)After FIU filed a Motion to Dismiss, (D.E. 13), Plaintiff moved for leave to file a Second Amended Complaint, (D.E. 16), which Judge Cooke granted, (D.E. 17).

On June 26, 2019, Plaintiff filed her Second Amended Complaint against the Foundation and Martinez.(D.E. 8.)Judge Cooke subsequently recused, and the case was reassigned to the undersigned Judge.(D.E. 22.)On December 19, 2019, the Foundation and Martinez filed a Motion to Dismiss the Second Amended Complaint.(D.E. 31.)On December 27, 2019, Plaintiff moved for leave to file a Third Amended Complaint, (D.E. 32), which the Court granted, (D.E. 33).

On December 30, 2019, Plaintiff filed the operative Third Amended Complaint against the Foundation, Martinez, and FIU alleging the following causes of action:

• Count I: Interference under the FMLA against the Foundation, (D.E. 34 ¶¶ 53-59);

• Count II: Interference under the FMLA against Martinez, (id.¶¶ 60-66);

• Count III: Discrimination/retaliation in violation of the FMLA against the Foundation, (id.¶¶ 67-73);

• Count IV: Discrimination/retaliation in violation of the FMLA against Martinez, (id.¶¶ 74-80);

• Count V: Violations of the FLSA overtime provisions against the Foundation, (id.¶¶ 81-94);

• Count VI: Violations of the FLSA overtime provisions against Martinez, (id.¶¶ 95-106);

• Count VII: Discrimination under the Americans with Disabilities Act("ADA") against the Foundation, (id.¶¶ 107-112); and

• Count VIII: Discrimination under the ADA against FIU, (id.¶¶ 113-19).

On January 13, 2020, Defendants filed the instant Motion to Dismiss the Third Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).(D.E. 36.)

II.Legal Standards

a. Rule 12(b)(1)

Under Rule 12(b)(1), a party may move to dismiss a complaint for lack of subject matter jurisdiction."If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."Fed. R. Civ. P. 12(h)(3).

Attacks on subject matter jurisdiction come in two forms: (1) facial attacks, and (2) factual attacks.Lawrence v. Dunbar, 919 F.2d 1525, 1529(11th Cir.1990)(citingMenchaca v. Chrysler Credit Corp., 613 F.2d 507, 511(5th Cir.1980) ).

Facial attacks on a complaint "require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [plaintiff's] complaint are taken as true for the purposes of the motion."Lawrence v. Dunbar, 919 F.2d 1525, 1529(11th Cir.1990).Factual attacks challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered."Lawrence, 919 F.2d at 1529.This circuit has explained that in a factual attack, the presumption of truthfulness afforded a plaintiff under Federal Rule of Civil Procedure 12(b)(6) does not attach, and the court is free to weigh the evidence, stating:

[in a factual attack upon subject matter jurisdiction]the trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56.Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—it's very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Lawrence, 919 F.2d at 1529(quotingWilliamson v. Tucker, 645 F.2d 404, 412–13(5th Cir.1981) ).

Scarfo v. Ginsberg, 175 F.3d 957, 960-61(11th Cir.1999).

b. Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim for "failure to state a claim upon which relief can be granted.""To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ "Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009)(quotingBell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007) ).Conclusory statements, assertions or labels will not survive a 12(b)(6) motion to dismiss.Id."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.;see alsoEdwards v. Prime, Inc., 602 F.3d 1276, 1291(11th Cir.2010)(setting forth the plausibility standard)."Factual allegations must be enough to raise a right to relief above the speculative level[.]"Twombly, 550 U.S. at 555, 127 S.Ct. 1955(citation omitted).Additionally:

Although it must accept well-pled facts as true, the court is not required to accept a plaintiff's legal conclusions.Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868(2009)(noting"the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions").In evaluating the sufficiency of a plaintiff's pleadings, we make reasonable inferences in Plaintiff's favor, "but we are not required to draw plaintiff's inference."Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248(11th Cir.2005).Similarly, "unwarranted deductions of fact" in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations.Id.;see alsoIqbal, 129 S. Ct. at 1951(stating conclusory allegations are "not entitled to be assumed true").

Sinaltrainal v. Coca-Cola, 578 F.3d 1252, 1260(11th Cir.2009), abrogated on other grounds byMohamad v. Palestinian Auth., 566 U.S. 449, 132 S. Ct. 1702, 1706 n.2, 182 L.Ed.2d...