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Howell v. City of Lake Butler

United States District Court, M.D. Florida, Jacksonville Division

January 16, 2018

ALLYSON HOWELL and EMILY WALKER, Plaintiffs,
v.
CITY OF LAKE BUTLER, a municipality, MICHAEL BANKS, Individually, and THOMAS JENKINS, III, Individually, Defendants.

          ORDER

          Timothy J. Corrigan, Judge

         In this 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).

         I. BACKGROUND

         Howell 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).

         In 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 ¶ 29).

         Plaintiffs 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.

         Defendants 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).

         Defendants 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 at 17-18).

         II. ANALYSIS

         Title 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).[1] “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).

         A. Jurisdictional Challenge

         The 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).

         Whether 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.

         Reasoning that Congress did not clearly state that the limitation was jurisdictional, the Supreme Court held that the requirement is a substantive element of the ...


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