United States District Court, M.D. Florida, Ocala Division
S. MOODY. JR. UNITED STATES DISTRICT JUDGE
sued Defendant under the Americans with Disabilities Act,
along with other federal and Florida statutes. Defendant
argues the ADA claims should be dismissed because Plaintiff
never received a right to sue notice from the Equal
Employment Opportunity Commission before filing suit.
Plaintiff argues this condition precedent should be equitably
modified so he can bring all his claims at once, and because
Plaintiff has not heard from the EEOC in more than a year.
Considering the arguments, the Court concludes
Defendant's Motion should be denied.
began working for Defendant in November 2012. (Doc. 1, ¶
12). In January 2016, Plaintiff suffered a heart attack and
was hospitalized. (Doc. 1, ¶ 14-16). Later that month,
Plaintiff gave Defendant's Human Resource manager a
letter from his doctor stating he had not yet been released
to return to work. (Doc. 1, ¶ 18). The HR manager sent
Plaintiff to a doctor retained by Defendant for a second
opinion. (Doc. 1, ¶ 20). That doctor gave Plaintiff
another letter stating he was not cleared to return to work.
(Doc. 1, ¶ 22). When Plaintiff presented the letter from
the second doctor to the HR manager, she terminated
Plaintiff. (Doc. 1, ¶ 24). The HR manager also told
Plaintiff that he could reapply for his position, if it was
still open, once the cardiologist cleared Plaintiff to return
to work. (Doc. 1, ¶ 24). About two months later,
Plaintiff returned to Defendant to reapply for his position.
(Doc. 1, ¶ 25). The HR manager informed Plaintiff that
his position was no longer available and that he should file
for unemployment benefits. (Doc. 1, ¶ 26).
then filed an EEOC Charge of Discrimination under the Florida
Civil Rights Act and ADA on July 7, 2016. (Doc. 1, ¶ 9).
After more than 180 days passed, Plaintiff filed the instant
lawsuit against Defendant. (Doc. 1, ¶ 9). Counts III and
IV of the Complaint allege that Defendant violated the ADA by
terminating Plaintiff and by denying him a reasonable
accommodation. (Doc. 1). At the time Plaintiff filed the
lawsuit, he had not yet received a right to sue notice from
the EEOC. (Doc. 16, p. 3).
TO DISMISS STANDARD
Rule of Civil Procedure 12(b)(6) allows a complaint to be
dismissed for failure to state a claim on which relief can be
granted. When reviewing a motion to dismiss, courts must
limit their consideration to the well-pleaded allegations,
documents central to or referred to in the complaint, and
matters judicially noticed. See La Grasta v. First Union
Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004).
Furthermore, they must accept all factual allegations
contained in the complaint as true, and view the facts in a
light most favorable to the plaintiff. See Erickson,
551 U.S. at 93-94.
conclusions, however, “are not entitled to the
assumption of truth.” Ashcroft v. Iqbal, 556
U.S. 662, 664 (2009). In fact, “conclusory allegations,
unwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal.”
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185
(11th Cir. 2003). To survive a motion to dismiss, a complaint
must instead contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on
its face.” Iqbal, 556 U.S. at 678 (internal
quotation marks and citations omitted). This plausibility
standard is met when the plaintiff pleads enough factual
content to allow the court “to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (internal citations omitted).
instituting a Title VII action in federal district court, a
private plaintiff must file an EEOC complaint against the
discriminating party and receive statutory notice from the
EEOC of his or her right to sue the respondent named in the
charge.” Forehand v. Fla. State Hosp. at
Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996)
(citing 42 U.S.C.A. § 2000e-5(f)(1)). If more than 180
days have passed and the charge has not been dismissed or
other action taken, the EEOC is required to provide the
plaintiff with statutory notice- or a right to sue notice.
Id. Receipt of the right to sue notice is,
therefore, a condition precedent to bringing the Title VII
action. Id. at 1567-68 (citing Pinkard v.
Pullman- Standard, 678 F.2d 1211, 1215 (5th Cir. Unit B
1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729,
74 L.Ed.2d 954 (1983); and Fouche v. Jekyll Island-State
Park Authority, 713 F.2d 1518, 1525 (11th Cir.1983)).
argues Plaintiff failed to state a claim under the ADA
because Plaintiff did not allege he received the right to sue
notice from the EEOC prior to filing the lawsuit. But
Plaintiff argues that the Court should not dismiss the ADA
claims based on his failure to get the right to sue notice
because of the doctrine of equitable modification. The Court
agrees with Plaintiff.
receiving the right to sue notice is a condition precedent to
filing suit, the Eleventh Circuit has explained this
requirement is subject to equitable modification.
Id. Equitable modification is not a per se
rule to be applied in all circumstances, but instead depends
on the equities presented in each case. Id. at 1568.
Generally, equitable modification is appropriate when a
plaintiff has not received the right to sue notice from the
EEOC after more than 180 days from filing a claim and the
plaintiff has not frustrated the EEOC's investigation.
See id.; Pinkard, 678 F.2d at 1217
(discussing equitable modification); Fouche, 713
F.2d at 1526 (concluding that the plaintiff was entitled to
equitable modification because he diligently attempted to
obtain the required notice before filing suit but was unable
to receive it).
has shown that this case warrants equitable modification of
the statutory requirement that he receive the right to sue
notice before filing suit. Plaintiff filed his claim with the
EEOC more than a year before he filed this lawsuit. Despite
more than 180 days having passed, the EEOC failed to issue
the right to sue notice or take any further action. There is
no evidence that the delay by the EEOC was in any way caused
by Plaintiff. And applying equitable modification allows
Plaintiff to bring all of his claims arising from his
termination at one time, as opposed to bringing the FMLA
claims now so the statute of limitations does not expire and
waiting to bring claims under the ADA after receiving the
right to sue notice. Such a delay would be inefficient and
could potentially prejudice Plaintiff. So the Court concludes
the requirement that Plaintiff receive the right to sue
notice before filing suit should be equitably modified.
said, the record before the Court may simply be incomplete to
determine whether Plaintiff played a role in delaying the
EEOC's investigation. So the Court will deny
Defendant's Motion without prejudice to Defendant seeking
dismissal of the ADA claims at a later time if it uncovers