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Date: 07-21-2023

Case Style:

Mary Elizabeth Thomas v. SP3 United

Case Number: 2:23-CV-170

Judge: John E. Steele

Court: United States District Court for the Middle District of Florida (Lee County)

Plaintiff's Attorney: Nathaly Saavedra and Patrick Brooks LaRou

Defendant's Attorney: Scott M. Wellikoff

Description: Fort Myers, FL civil rights lawyer represented Plaintiff who sued Defendant on a Family Medical Leave Act violation theory.

The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.

FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.

FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

For the birth and care of the newborn child of an employee;
For placement with the employee of a child for adoption or foster care;
To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or
To take medical leave when the employee is unable to work because of a serious health condition.

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.

Time taken off work due to pregnancy complications can be counted against the 12 weeks of family and medical leave.

Military family leave provisions, first added to the FMLA in 2008, afford FMLA protections specific to the needs of military families.

Special rules apply to employees of local education agencies. The U.S. Department of Labor administers FMLA; however, the Office of Personnel Management administers FMLA for most federal employees.

The Complaint alleges the following facts: Plaintiff worked at a Clewiston restaurant continuously from in or around 2007 through August 8, 2022. (Id. at 15.) In late 2021, SP3 United, LLC (SP3) became the new owner of the restaurant where plaintiff worked. The prior owner, Hayley Hospitality Corporation, was voluntarily dissolved after the sale was finalized. (Doc. #13, ¶ 8.)

On April 19, 2022, plaintiff requested and was approved for medical leave because of severe cataracts in both eyes requiring two separate eye surgeries. The first surgery took place on April 22, 2022, on plaintiff's right eye, leaving her with substantially impaired vision due to the continuing condition of the left eye. On or about May 2, 2022, plaintiff returned to work and requested that someone read the customer orders out loud during her shifts due to her vision limitations. This request was denied by the owner. From May 2, 2022, through June 27, 2022, when the second surgery for her left eye took place, plaintiff was subjected to disparaging remarks by the owner and the other employees. Plaintiff returned to work on or about July 11, 2022, with an eye patch and again asked that customer orders be read out loud.

On or about July 27, 2022, plaintiff was told to leave the job and not return to work until she could read the tickets herself. Plaintiff was removed from the work schedule. Plaintiff


made several attempts to speak to the owner and supplied a doctor's note that she could return to work, but no response was provided.

On or about August 8, 2022, the owner told plaintiff that she could not be reinstated unless she could do the job without any accommodations. Defendant failed to grant plaintiff's request for an accommodation - to read orders out loud - and she was terminated as a result of the disability and/or requests for accommodations.

Plaintiff originally sued Hayley Hospitality Corporation d/b/a Beef O'Bradys of Clewiston as the owner of the restaurant. (Doc. #1.) On April 27, 2023, plaintiff filed an Amended Complaint naming SP3 United LLC d/b/a Beef O'Bradys of Clewiston (SP3 or defendant) as the owner of Beef O'Bradys and the new defendant. (Doc. #13.) The original defendant was terminated from the case by the filing of the Amended Complaint.

The Amended Complaint seeks relief under Title VII of the Civil Rights Act of 1964[1], the Americans with Disabilities Act (ADA) and its amendments, the Florida Civil rights Act (FCRA), and the Family and Medical Leave Act (FMLA). Plaintiff alleges a violation of the FMLA (interference) in Count I, a failure to accommodate under the ADA in Count II, disability discrimination under the ADA in Count III, retaliation under the ADA in Count IV,


and state claims for discrimination and retaliation under the FCRA in Counts V and VI.


The claims in Counts III through VI each require plaintiff to exhaust administrative remedies prior to filing suit. Batson v. Salvation Army, 897 F.3d 1320, 1327 (11th Cir. 2018) (exhaustion requirement applies to the ADA, including retaliation under the ADA); Rainey v. United Parcel Serv., Inc., 816 Fed.Appx. 397, 401 (11th Cir. 2020) (exhaustion required for discrimination claims under Florida Civil Rights Act). Defendant SP3 argues that plaintiff did not exhaust administrative remedies as to the current defendant - SP3 - because the Notice of Right to Sue issued by the EEOC references only Hayley Hospitality Corporation.

The pleading requirement for a condition precedent is well-established.

“In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.” Fed.R.Civ.P. 9(c). Should a defendant make that denial, “[t]he plaintiff then bears the burden of proving that the conditions precedent, which the defendant has specifically joined in issue, have been satisfied.” Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982). Should a defendant “not deny the satisfaction of the conditions precedent specifically and with particularity, however, the allegations are assumed admitted and cannot later be attacked.” Id. at 1009.

Myers v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1224 (11th Cir. 2010).

Plaintiff has sufficiently met her obligation to generally allege exhaustion of administrative remedies. Plaintiff alleges that she has “met all conditions precedent to the maintenance of this action or said conditions have been waived.” (Doc. #13, ¶ 4.) Plaintiff further alleges:

10. Plaintiff has exhausted her administrative remedies by filing a timely charge of discrimination ("Charge") against the Defendant with the Equal Employment Opportunity Commission and the Florida Commission on Human Relations.

11. Plaintiff's Charge was filed on or about September 18, 2022. The actions complained of herein occurred within 300 days thereof and/or continued from that date stemming from the same actions set forth in the Charge.

12. Plaintiff was issued a Notice of Right to Sue on December 12, 2022. This suit is filed in accordance with that Notice and within the applicable 90-day time limitation.

13. The Florida Commission on Human Relations did not issue a finding on Plaintiff's charge within 180 days of the filing of said charges.

14. All other conditions precedent to this action have been performed or have been waived.

(Id., ¶¶ 10-14.) “If the defendant doubts the veracity of the plaintiff's allegation, in whole or in part, then the defendant may deny “specifically and with particularity” that the preconditions have not been fulfilled. [] The plaintiff then bears the burden of proving that the conditions precedent, which the defendant has specifically joined in issue, have been satisfied.” Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 1010 (11th Cir. 1982).

“To state a claim of interference with a substantive right, an employee need only demonstrate by a preponderance of the evidence that [s]he was entitled to the benefit denied.” Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2001).

Under the FMLA, an “eligible employee” is entitled to a total of 12 workweeks of leave during any 12-month period for a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). An “eligible employee” who takes leave “for the intended purpose of the leave” is entitled to return from leave: “(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). “The term “eligible employee” means an employee who has been employed--(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A). Excluded from the definition are federal employees and any employee employed at a worksite or within 75 miles of a worksite where the employer employs less than 50 employees. 29 U.S.C. § 2611(2)(B). An “employer” includes “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer” and “any successor in interest of an employer.” 29 U.S.C. § 2611(4)(A).

Outcome: Motion to dismiss denied.

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