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Ponce v. City of Naples

United States District Court, M.D. Florida, Fort Myers Division

June 22, 2017

MANUEL A. PONCE, Plaintiff,
CITY OF NAPLES, Defendant.



         This matter comes before the Court on defendant's Motion to Dismiss (Doc. #10) filed on March 27, 2017. Plaintiff filed a Response (Doc. #15) on April 24, 2017; a Reply (Doc. #20) was also filed. On April 6, 2017, defendant filed a Notice of Partial Withdrawal of its Motion to Dismiss (Doc. #13), withdrawing its argument for dismissal under the Florida Civil Rights Act (Counts I-IV); therefore, the Court will not consider dismissal of these counts. For the reasons set forth below, the motion is granted with leave to amend.


         This is a disability, age, race, and national origin discrimination case brought by plaintiff Manuel A. Ponce (plaintiff or Ponce), a fifty-three year old Hispanic male of Cuban descent, against his former employer of twenty-seven years, the City of Naples (defendant or City). Plaintiff filed a thirteen count Complaint (Doc. #2) in state court on February 8, 2017, which was removed to this Court on March 8, 2017, based upon federal question jurisdiction. The Complaint alleges violations under the Florida Civil Rights Act (FCRA) (Counts I-V), Family Medical Leave Act (FMLA) (Counts VI-VII), Americans with Disabilities Act (ADA) (Counts VIII-X), Title VII (Count XI), 42 U.S.C. § 1981 (Count XII), and the Age Discrimination in Employment Act (ADEA) (Count XIII).

         As alleged in plaintiff's Complaint (Doc. #2), plaintiff was initially hired by the City on or about September 26, 1988, in the Solid Waste Division as a Service Worker II. (Id. ¶ 8.) Throughout his employment, plaintiff was also classified as a Service Worker III, Equipment Operator III and IV, and Meter Reader. (Id. ¶ 9.) In 2011, plaintiff was promoted to the position of Heavy Equipment Operator, the position he held as of the date of his termination of employment in February 2016. (Id. ¶ 10.) Plaintiff worked as a Front Load Driver from 2009-2013, emptying large commercial dumpsters throughout the City. (Id. ¶ 11.)

         In October 2013, plaintiff suffered a heart attack and remained out of work for approximately one month. (Doc. #2, ¶ 12.) Upon his return to work at the City, he was assigned to drive a dumpster carrier, which was a smaller truck, and his job function was to retrieve, exchange, and/or distribute dumpsters throughout the City. (Id.) He remained in this job function until in or about May 2015. (Id.)

         In December 2014, after experiencing pain in his right shoulder, an MRI revealed a torn rotator cuff. (Doc. #2, ¶ 13.) At that time, plaintiff elected to forego any surgical or other medical intervention and continued operating the dumpster carrier without any problems. (Id. ¶ 14.) In April 2015, due to a coworker's absence, plaintiff's supervisor assigned him to perform residential garbage collection which required manual pickup of garbage containers. (Id. ¶ 15.) In doing so, plaintiff injured his shoulder. (Id.) Plaintiff notified the City of his injury and initiated a worker's compensation claim. (Id.) Plaintiff's medical providers assigned him to light duty, which he remained from May to August of 2015 while receiving various medical treatments for his shoulder injury. (Id. ¶ 16.)

         The light duty assignments included picking weeds and other landscape work on City property for which plaintiff was never trained and had not previously done, and was otherwise physically unequipped to perform. (Doc. #2, ¶ 16.) In July 2015, plaintiff suffered a heat stroke and was taken to the emergency room; despite this, the City assigned plaintiff to pick weeds again one week later, when plaintiff suffered another heat stroke, requiring medical attention. (Id. ¶¶ 17-18.)

         On or about August 19, 2015, plaintiff underwent surgical repair of his shoulder, remaining out of work on FMLA leave until on or about December 22, 2015. (Doc. #2, ¶ 19.) Upon returning to work, the City inexplicably notified plaintiff that he was being placed on probation. (Id. ¶ 20.) The City also told plaintiff that he did not know how to speak English, and “speaks gibberish.” (Id. ¶ 21.) Furthermore, without justification, on January 19, 2016, defendant accused plaintiff of misconduct without justification and suspended his employment for three days. (Id. ¶ 22.) Defendant again accused plaintiff of misconduct on January 25, 2016. (Id. ¶ 23.)

         On or about February 4, 2016, the City advised plaintiff that he could resign his employment, and that if he failed to do so, the City would terminate his employment. (Doc. #2, ¶ 24.) Plaintiff no longer works for the City and the City replaced plaintiff with an individual who is significantly younger. (Id. ¶ 25.) Plaintiff has received a Notice of Right to Sue letter from the Equal Employment Opportunity Commission. (Id. ¶ 26.)

         Defendant now moves to dismiss Counts VI, VIII, X, and XI[1]for failure to state a claim.


         Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (internal citations omitted). Thus, the Court engages in a two-step approach: “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.


         A. FMLA ...

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