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Concannon v. International Cruise & Excursions, Inc.

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

May 28, 2019

MICHAEL JOSEPH CONCANNON, Plaintiff,
v.
INTERNATIONAL CRUISE & EXCURSIONS, INC., Defendant.

          REPORT AND RECOMMENDATION

          LESLIE R. HOFFMAN UNITED STATES MAGISTRATE JUDGE

         TO THE UNITED STATES DISTRICT COURT:

         This cause came on for consideration without oral argument on the following motion filed herein:

MOTION:APPLICATION TO PROCEED IN DISTRICT COURT
WITHOUT PREPAYING FEES OR COSTS (Doc. No. 19)
FILED:May 10, 2019

         I. BACKGROUND.

         On December 5, 2018, Plaintiff, Michael Joseph Concannon, filed a Complaint for Employment Discrimination against Defendant, his previous employer, International Cruise & Excursions. Doc. No. 1. He asserted violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and the “Orlando City Ordinance Chapter 57 Anti-Discrimination Ordinance.” Id. at 3.

         In the complaint, Concannon alleged that Defendant discriminated against him based on his “gender/sex” due to his sexual orientation. Id. at 4. Concannon claimed that the discriminatory acts included termination of his employment, retaliation, and harassment. Id. With the complaint, Concannon filed a motion to proceed in forma pauperis. Doc. No. 2.

         Magistrate Judge Spaulding recommended that the Court dismiss the complaint without prejudice because Concannon failed to state a claim under Title VII. Doc. No. 6. Specifically, Concannon failed to establish membership in a class protected under Title VII or that Defendant's conduct otherwise was prohibited under Title VII. Id. at 5-6. As to the anti-discrimination ordinance, Concannon had not stated a basis for the Court's jurisdiction over this claim, and due to the dismissal of Concannon's Title VII claim, Judge Spaulding recommended that the Court decline to exercise supplemental jurisdiction over it. Id. at 7. Judge Spaulding recommended, however, that the Court grant Concannon leave to file an amended complaint. Id. at 8, 9. The Court adopted the recommendation in its entirety. Doc. No. 7.

         On March 25, 2019, Concannon filed an amended complaint; and on March 26, 2019, Concannon filed a second amended complaint. Doc. Nos. 13, 14. On March 27, 2019, Concannon filed a renewed motion to proceed in forma pauperis. Doc. No. 15. Upon referral from the presiding District Judge, the undersigned recommended that the Court dismiss the second amended complaint, with leave to amend, because Concannon had failed to cure the deficiencies in his initial complaint. Doc. No. 16. Specifically, Concannon had again failed to sufficiently plead that he was the member of a protected class under Title VII, and he did not sufficiently allege that he engaged in protected activity under Title VII to state a retaliation claim. Id. The Court adopted that recommendation in its entirety, dismissed the second amended complaint, and permitted Concannon leave to amend. Doc. No. 17.

         On May 10, 2019, Concannon filed a third amended complaint. Doc. No. 18. With the third amended complaint, Concannon filed a renewed motion to proceed in forma pauperis. Doc. No. 19. The motion was referred to the undersigned, and the matter is ripe for review.

         II. ALLEGATIONS OF THE THIRD AMENDED COMPLAINT.

         The third amended complaint contains two counts: (1) violation of Title VII (hostile work environment); and (2) violation of Title VII (retaliation in the workplace). Doc. No. 18, at 2-3. Concannon has removed the majority of the factual allegations that had supported his previous complaints. Id. He alleges only that he was employed by Defendant between May 2014 and January 2016, and that during his employment, he “was subjected to various offensive behavior.” Id. ¶ 3, 4. As to the hostile work environment claim (Count I), Concannon alleges that he “is a member of a protected class”; that he was subjected to “extreme and outrageous behavior, sexual in nature”; that he “suffered intentional discrimination because of his . . . protected class”; the discrimination was pervasive and regular and detrimentally affected ...


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