This matter comes before the Court pursuant to Defendants' Motion to Dismiss (Doc. # 7), filed on August 26, 2011. Defendants Avis Budget Car Rental, LLC and Avis Budget Group, Inc. (collectively "Avis") seek dismissal of Plaintiffs' Amended Complaint. (Doc. # 4). Plaintiffs filed a response to the Motion coupled with a Motion for Leave to File Amended Complaint on October 4, 2011. (Doc. # 11). Plaintiffs asserted that they had information to refute the allegations in the Motion to Dismiss and sought, among other things, an additional thirty days to file an amended complaint to allow time for the Equal Employment Opportunity Commission (EEOC) to respond to a Freedom of Information Act (FOIA) request. The Court granted that motion in part, giving Plaintiffs until November 4, 2011, to renew their motion to file an amended complaint. (Doc. # 13).
Plaintiffs filed their renewed Motion for Leave to File Amended Complaint on November 4, 2011 (Doc. #14), stating that the EEOC would issue a determination on the FOIA request on or before November 30, 2011. Plaintiffs attached their proposed Second Amended Complaint as an Exhibit to the Motion (Doc. # 14-1). Avis filed a response to the Motion (Doc. # 15) on November 11, 2011.
Because Plaintiffs seek to file a Second Amended Complaint addressing the issues raised in Avis's Motion to Dismiss, the Court denies the Motion to Dismiss as moot. The Court grants Plaintiffs' Motion for Leave to File Amended Complaint in part and denies it in part.
Plaintiffs Adan Rivera and Leoncio Cano filed suit against Avis in state court on July 18, 2011. (Doc. # 2). Rivera and Cano allege that Avis violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, the Civil Rights Act of 1994, 42 U.S.C. § 1981a, and the Florida Civil Rights Act (FCRA), Fla. Stat. § 760.01. (Id. at ¶ 1). Rivera and Cano also asserted a claim for intentional infliction of emotional distress. (Id. at ¶¶ 21-22). They allege that Avis engaged in "a continuing series of discrimination against them, and those similarly situated, because of their race and age and because of their having complained about such unlawful discrimination and participation in formal proceedings to protest such unlawful discrimination." (Id. at ¶ 4). Avis removed the case to this Court on July 28, 2011 (Doc. # 1).
Rivera and Cano filed an Amended Complaint on August 8, 2011 (Doc. # 4), adding Adel Jiminez, Efren Benitez, Joseph Valdalez, Leonardo Barreto, Reinaldo Lugo, Mario Mora, Mario Urribarri and Milagros Hernandez Rodriguez to this action. Plaintiffs also added a claim for violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., on behalf of Jiminez, Mora and Urribarri. (Id. at ¶¶ 224-28).
In its Motion to Dismiss, Avis argued that most of Plaintiffs' discrimination claims must be dismissed because Plaintiffs failed to exhaust administrative remedies as required under Title VII and the FCRA. (Doc. # 7 at 2). Avis asserted that the remaining discrimination and retaliation claims must be dismissed because "union status" is not a protected category under Title VII or the FCRA, and because Plaintiffs had not alleged facts sufficient to sustain a claim for discrimination on the basis of national origin or age. (Id. at 12-14). Avis argued that Plaintiffs had failed to state a cause of action for FMLA interference or retaliation. (Id.). Finally, Avis argued that Plaintiffs' allegations did not meet the standard necessary to sustain a claim for intentional infliction of emotional distress. (Id.).
Plaintiffs' proposed Second Amended Complaint (Doc. # 14-1) asserts six counts: employment discrimination in violation of Title VII (Count I), employment discrimination in violation of the FCRA (Count II), retaliation (Count III), hostile work environment (Count IV), wrongful termination (Count V) and FMLA violations as to Jimenez, Mora and Urribarri (Count VI). Avis filed a response to Plaintiffs' Motion for Leave to File Amended Complaint (Doc. # 15), reasserting many of the arguments set forth in its Motion to Dismiss.
"The grant or denial of an opportunity to amend is within the discretion of the district court." Foman v. Davis, 371 U.S. 178, 182 (1962). However, "[a] district court's discretion to dismiss a complaint without leave to amend is severely restricted . . . . Generally, where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice." Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (internal quotations and citations omitted). While leave to amend is "freely given" under Federal Rule of Civil Procedure 15, the Foman decision enumerates the following factors that a district judge may use to deny leave to amend: undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of the amendment. 371 U.S. at 182. The Eleventh Circuit has found that amendment is futile when the amended complaint is still subject to dismissal as a matter of law. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004).
Plaintiffs' request to amend is timely and it is their first request to amend, the first Amended Complaint having been filed as a matter of course.*fn1 See Bryant, 252 F.3d at 1164 (finding that a prior amendment filed as of right should not be counted as a prior opportunity to amend with leave of court). Avis asserts that the Motion for Leave to File Amended Complaint should be denied because amendment is futile. (Doc. # 15 at 2).
Avis asserts that Plaintiffs have still failed to allege exhaustion of administrative remedies as required by Title VII and the FCRA. (Id. at 3). Furthermore, Avis argues that any remaining employment discrimination claims must be dismissed because "union status" is not a protected category under Title VII or the FCRA, and because Plaintiffs still have not alleged facts sufficient to sustain a claim for discrimination on the basis of national origin or age. (Id. at 14). Avis asserts that the retaliation claim fails for similar reasons. (Id. at 16).
Avis contends that the hostile work environment claim fails to allege a statutory violation or other cognizable cause of action; even if it were asserted pursuant to Title VII or the FCRA, it would fail for the same reasons as the other claims. (Id. at 17). Finally, Avis argues that Florida does not recognize a cause of action for wrongful termination, and ...