United States District Court, M.D. Florida, Jacksonville Division
Timothy J. Corrigan, Judge
sex discrimination case, the question arises: Is the
determination whether volunteer firefighters are
“employees” within the meaning of Title VII a
question of subject matter jurisdiction or part of a prima
facie Title VII case? The case is before the Court on
Defendants' Motion to Dismiss, (Doc. 9), to which Allyson
Howell and Emily Walker (collectively
“Plaintiffs”) responded, (Doc. 15). The City of
Lake Butler, Michael Banks, and Thomas Jenkins (collectively
“Defendants”) contend that the Court lacks
subject matter jurisdiction because Plaintiffs are volunteers
and not employees under Title VII. (Doc. 9 at 4-7).
Additionally, Defendants assert that Plaintiffs fail to state
a claim because they do not sufficiently plead: (1) an
employment relationship between the City and the individuals
accused of the discriminatory conduct; and (2) a basis for
imputing liability to the City. (Doc. 9 at 17-20).
began service with the Lake City Fire Department in 2008, and
Walker began service with the Department in February, 2015.
(Doc. 1 ¶¶ 19- 20). Plaintiffs are females, (Doc. 1
¶¶ 31, 39), and were “subjected to repeated
instances of sexual harassment” by Banks, Jenkins, and
other male firefighters. (Doc. 1 ¶¶ 21-22). At the
time of the alleged harassment, Banks was the chief of the
Department. (Doc. 1 ¶ 21). The Complaint describes
eleven instances of harassment by male firefighters occurring
from January, 2014 through October, 2015. (Doc. 1 ¶ 23).
One egregious example of the alleged conduct states:
“Defendant, Jenkins, walked over to Plaintiff, Howell,
grabbed her head, put his crotch in her face, and started
thrusting. Plaintiff, Howell, told him to get off of her[,
]” to which Jenkins responded with inappropriate and
potentially threatening comments. (Doc. 1 ¶ 23(h)). The
remaining ten instances were similarly inappropriate and
perverse. (Doc. 1 ¶ 23).
early November, 2015, Plaintiffs reported the harassment to
City Manager David Mecusker, who told Plaintiffs to write
statements and bring them to his office the following
morning. (Doc. 1 ¶ 24). The following day, Plaintiffs
went to Mecusker's office at City Hall and provided him
with the written statements. (Doc. 1 ¶ 25). Mecusker
informed Plaintiffs that he would start an investigation.
(Doc. 1 ¶ 25). Shortly thereafter, Banks was put on
leave with pay, but then resigned. (Doc. 1 ¶ 26). A
female was appointed to interim chief, and she pressured
Plaintiffs to write a letter to the City seeking Banks's
reinstatement, but Plaintiffs refused to write such a letter.
(Doc. 1 ¶¶ 27-28). In April, 2016, Plaintiffs'
positions with the Department were eliminated. (Doc. 1 ¶
each filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) and
the Florida Commission on Human Relations
(“FCHR”), and received the right to sue. (Doc. 1
¶ 14-15). On June 7, 2017, Plaintiffs filed a sixteen
count complaint alleging: sexual harassment and retaliation
by the City in violation of the Florida Civil Rights Act
(“FCRA”) (Counts I-IV); sexual harassment and
retaliation by the City in violation of Title VII (Counts
V-VII); assault and battery claims against Banks (Counts
IX-XII); and assault and battery claims against Jenkins
(Counts XIII- XVI). The parties are not diverse, and of the
sixteen counts, only the Title VII claims provide the Court
with a basis for federal question jurisdiction. 28 U.S.C.
§ 1331. Plaintiffs seek resolution of remaining claims
pursuant to the Court's supplemental jurisdiction.
Id. § 1367.
filed a motion to dismiss the Complaint pursuant to both
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (Doc.
9 at 4, 16).
contend that the Court lacks subject matter jurisdiction
because Title VII only provides relief to employees, and
because Plaintiffs were volunteer firefighters they are
barred from asserting a Title VII claim. (Doc. 9 at 4-7).
Because only the Title VII claims support original
jurisdiction, Defendants assert that the Court should refuse
to exercise supplemental jurisdiction over the remaining
claims. (Doc. 9 at 16). Further, the motion to dismiss states
that even if jurisdiction is proper, the complaint fails to
state a claim because it does not allege an employment
relationship between the City and the harassers, and fails to
demonstrate that the City knew of the harassment. (Doc. 9 at
17-20). Both, Defendants contend, are required to support a
basis for holding the City liable for the harassment. (Doc. 9
VII prohibits an employer from “discharg[ing] any
individual, or otherwise  discriminat[ing] against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's . . . sex . . . .” 42 U.S.C. §
2000e-2(a) (2012). “While the statute does not define
‘any individual, ' in the Eleventh Circuit and
elsewhere, only those plaintiffs who are
‘employees' may bring a Title VII suit.”
Maeder v. Tom Bush Auto-Plex, Inc., No.
3:14-CV-335-J-34PDB, 2015 WL 1277925, at *2 (M.D. Fla. Mar.
20, 2015) (quotations omitted).
parties assert that Plaintiffs must be
“employees” under Title VII for the Court to have
subject matter jurisdiction. (Doc. 9 at 4-8; Doc. 15 at 2).
Both parties urge the Court, on the Rule 12(b)(1) motion, to
review the affidavits and exhibits to determine whether
Plaintiffs were employees. Defendants assert that under the
Eleventh Circuit's remuneration test, Plaintiffs did not
receive sufficient compensation to be considered employees,
and as such, the complaint should be dismissed for lack of
jurisdiction. (Doc. 9 at 11). Plaintiffs contend that their
compensation is sufficient to create a factual issue. (Doc.
15 at 5-6).
plaintiffs are “employees” under Title VII
“is an element of a plaintiff's claim for relief,
not a jurisdictional issue.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 516 (2006). The United States
Supreme Court provided a “bright line”
administrable test to determine if a statutory limitation is
jurisdictional. Id. at 510-16. To make such a
determination, a court should “inquire whether Congress
has ‘clearly stated' that the rule is
jurisdictional; absent such a clear statement, . . .
‘courts should treat the restriction as
nonjurisdictional in character.'” Sebelius v.
Auburn Reg'l Med. Ctr., 568 U.S. 145, 153-54 (2013).
In Arbaugh, the Supreme Court considered the
provision of Title VII that restricts its applicability to
employers with fifteen or more employees. 546 U.S. at 510.
that Congress did not clearly state that the limitation was
jurisdictional, the Supreme Court held that the requirement
is a substantive element of the ...