Watson v. Bally Mfg. Corp., 92-2898-CIV.

• Decision Date: 29 September 1993
• Docket Number: No. 92-2898-CIV.,92-2898-CIV.
• Parties: Lucinda S. WATSON and Ana Lil Remond-Rodriguez, individually, Plaintiffs, v. BALLY MANUFACTURING CORPORATION, a Delaware Corporation, and Scandinavian Health Spa, Inc., an Ohio Corporation, Defendants.
• Court: U.S. District Court — Southern District of Florida

844 F. Supp. 1533

Lucinda S. WATSON and Ana Lil Remond-Rodriguez, individually, Plaintiffs, v. BALLY MANUFACTURING CORPORATION, a Delaware Corporation, and Scandinavian Health Spa, Inc., an Ohio Corporation, Defendants.

No. 92-2898-CIV.

United States District Court, S.D. Florida.

September 29, 1993.

Robert E. Weisberg, Law Offices of Robert E. Weisberg, Coral Gables, FL, Scott J. Jontiff, Miami Beach, FL, for plaintiffs.

Mark E. Zelek, Morgan Lewis & Bockius, Miami, FL, Thomas H. Barnard, Linda E. Tawil, Steven K. Aronoff, Duvin, Cahn & Barnard, Cleveland, OH, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

JAMES LAWRENCE KING, District Judge.

THIS CAUSE comes before the Court on Defendants' Motion to Dismiss, filed on March 3, 1993. Plaintiffs on April 6 filed a Memorandum in Response to Defendants' Motion to Dismiss. On May 4, the Court granted Defendants' request to file a Reply brief.

Defendants, in their Motion to Dismiss, have requested that this Court dismiss:

(1) those claims in Count I (claiming violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.) which were not alleged in Plaintiffs' original EEOC charges and/or which pertain to events occurring outside the 300-day time limit to file an EEOC charge;

(2) Count II (alleging intentional infliction of emotional distress) in its entirety; and

(3) Count III (alleging negligence) in its entirety.

I. Plaintiffs' Title VII Claims Which Were Not Set Forth In Plaintiffs' EEOC Charges and/or Were Not Brought Within 300 Days of the Incidents

Defendants urge this Court to Dismiss those Title VII claims which were not enumerated in Plaintiffs' EEOC charges and/or were not brought within 300 days of the allegedly discriminatory incidents.

A. Are Plaintiff Watson's Allegations of Harassment by Mark Seaman Barred Because They Were Not Enumerated in the Administrative Charge Filed with the EEOC?

Defendants ask this Court to dismiss Plaintiff Watson's allegations of harassment by Mark Seaman on the grounds that these allegations were not contained in Plaintiff's charges filed with the EEOC.

It is well settled that a Title VII action will be limited to those issues within the scope of the administrative investigation which grows, or which could reasonably be expected to grow, out of the administrative charge of discrimination. See, e.g., Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.1970); Gamble v. Birmingham Southern Railroad Co., 514 F.2d 678 (5th Cir.1975). The issue, then, is whether Plaintiff Watson's allegations of harassment by Seaman meet this criterion.

In Montgomery v. Atlanta Family Restaurants, Inc., 752 F.Supp. 1575 (N.D.Ga.1990), the defendant contended that the administrative charge, in contrast with the judicial complaint, contained no claims of discrimination in hiring, promotion, transfer, training, assignment, harassment, retaliation, racial slurs, or negative references. In deciding that these claims contained in the plaintiff's complaint were sufficiently related to the allegations enumerated in her EEOC charges, the district court examined the actual scope of the EEOC investigation. The court stated, "The determination of the EEOC indicates that the commission investigated claims of discriminatory promotion, demotion, harassment, and negative references. Thus, the plaintiff's disparate treatment claims are not beyond the scope of her EEOC charge." Id. at 1581.

In the case at hand, Plaintiff Watson contends that the EEOC extensively investigated the discriminatory conduct by Seaman. Pls.' Response, p. 4, n. 2.¹ The burden will be on Plaintiff to substantiate this representation, but, for purposes of ruling on the instant Motion to Dismiss, this averment will be accepted as true. Therefore, Plaintiff's allegations of harassment by Seaman will not be dismissed on the grounds that they were not explicitly enumerated in Plaintiff's administrative charges filed with the EEOC.

B. Are Plaintiff Watson's Claims that She Was Improperly Transferred from Ohio to Florida and that Mark Seaman Verbally Harassed Her Barred Because the 300-day Filing Period Had Expired?

Defendants urge this Court to dismiss Plaintiff Watson's claims that she was improperly transferred from Ohio to Florida and that she was the victim of verbal harassment by Mark Seaman. Defendants argue that these claims are barred because they occurred more than 300 days prior to the filing of Plaintiff's EEOC charges.

Because Florida has a state administrative agency dealing with issues of discrimination, it is considered a deferral state. Consequently, under Title VII, the time limit in Florida in which to file a discrimination charge after an allegedly unlawful practice or incident is 300 days. 42 U.S.C. § 2000e-5(e); Jackson v. Ohio Bell Telephone Co., 555 F.Supp. 80 (S.D.Ohio 1982).

In the Eleventh Circuit, the most important factor in determining when the 300-day statute of limitations begins to run is whether the act was sufficiently permanent in nature to "trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate." Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir.1983); see also Roberts v. Gadsden Memorial Hosp., 850 F.2d 1549, 1550, altering on recons. 835 F.2d 793 (11th Cir.1988) (holding that a plaintiff's claim was time-barred because he was aware he had been discriminated against at the time of the incident and knowingly failed to exercise his rights, and stating, "A claim arising out of an injury which is `continuing' only because a putative plaintiff knowingly fails to seek relief is exactly the sort of claim that Congress intended to bar by the ... limitation period.") Thus, if the significance of the act and the invidious motivations behind it only become apparent with the passage of time and the occurrence of additional incidents, then one cannot say the employee should be required to have asserted his rights soon after the occurrence of the act in question.

In the instant case, the allegedly improper transfer from Ohio to Florida is not the type of act that would appear to alert an employee to his duty to assert his rights. Therefore, it should not be disposed of on this Motion to Dismiss.

Defendants also argue that Plaintiff Watson's allegations of verbal harassment by Mark Seaman should be barred because the incidents occurred more than 300 days prior to Plaintiff's filing of her EEOC charges. In support of this argument, Defendants contrast the date in paragraph 15 of the Complaint, which alleges that Mark Seaman began to harass Plaintiff Watson in or about March of 1990, with the date of Plaintiff's first discrimination charge, which was filed on March 19, 1991. Because March 19, 1991 is more than 300 days after March 1990, Defendants argue that this allegation should be dismissed. Defendants apparently have overlooked the fact that in that paragraph, Plaintiff has alleged that March 1990 marks the beginning of a "relentless pattern of harassment". Since the actions allegedly continued into the 300-day period, Plaintiff Watson's claims of verbal harassment would not properly be dismissed on these grounds.

C. Plaintiff Remond-Rodriguez' Claim that She Was Harassed by Mark Seaman

As with Plaintiff Watson's claims of verbal harassment by Mark Seaman, Defendants argue that Plaintiff Remond-Rodriguez' claims of harassment by Seaman are barred by the 300-day statute of limitations. Again, Defendants have apparently overlooked the fact that the Complaint alleges that March 1990 merely marks the beginning of a "relentless pervasive pattern" of harassment. Since the abuse is alleged to have continued into the 300-day period preceding Plaintiff Remond-Rodriguez' filing of her EEOC charge, her claim of harassment by Mark Seaman would not properly be dismissed on these grounds.

II. Plaintiffs' Claims for Intentional Infliction of Emotional Distress

Defendants urge this Court to Dismiss Count II of the Complaint on the grounds that Plaintiffs' claim for intentional infliction of emotional distress fails as a matter of law under Florida law.

The Florida Supreme Court has recognized the tort of intentional infliction of emotional distress, and has adopted Section 46 of the Restatement (Second) of Torts ("Restatement") as the proper definition of that tort. Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985). Under Florida law a plaintiff must prove four elements in order to recover for intentional infliction of emotional distress: "(1) deliberate or reckless infliction of mental suffering; (2) by outrageous conduct; (3) which conduct must have caused the suffering; and (4) the suffering must have been severe." Hart v. United States, 894 F.2d 1539, 1548 (11th Cir.1990) (citing McCarson, 467 So.2d at 278, and Dominguez v. Equitable Life Assur. Soc., 438 So.2d 58, 59 (Fla.Dist.1983)); see also Miranda v. B & B Cash Grocery Stores Inc., 1990 WL 107559 at *2, 1990 U.S.Dist. LEXIS 9350, at *4 (M.D.Fla. May 4, 1990).

The Florida Supreme Court has qualified the scope of the tort by quoting approvingly of the following comments to the rule:

d. Extreme and outrageous conduct ..... It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is

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