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Bello v. Miami-Dade Police Department/Miami-Dade County

United States District Court, S.D. Florida

September 25, 2019

Yvonne A. Bello, Plaintiff,
Miami-Dade Police Department/Miami-Dade County, Defendant.


          Robert N. Scola, Jr., United States District Judge

         This matter is before the Court on Defendant’s motion to dismiss the Plaintiff’s complaint. (ECF No. 14.) The Plaintiff filed an opposition (ECF No. 17) and the Defendant timely replied (ECF No. 18.) Having considered the record, the parties’ submissions, and the applicable law, the Court grants the Defendant’s motion. (ECF No. 14.)

         I. Background

         The Plaintiff was a police dispatcher for the Miami-Dade Police Department. (ECF No. 6 at ¶ 11.) On March 27, 2019, the Plaintiff filed a four-count complaint for disability discrimination under the Americans with Disabilities Act (ADA), retaliation under the ADA, retaliation under the Family and Medical Leave Act (FMLA), and interference with rights under the FMLA. (ECF No. 1-1.) According to the complaint, the Plaintiff has diabetes, anxiety, and depression and thus falls within the class of individuals protected by the ADA. (ECF No. 6 at ¶¶ 12-13.) At some point, and for some unspecified amount of time, the Plaintiff took approved FMLA leave. (Id. at ¶ 14.) According to the complaint, while she was on leave, she received several disciplinary actions. (Id. at ¶ 16.) On November 25, 2014, Plaintiff received a five-day suspension for tardiness; on February 18, 2015, Plaintiff received a ten-day suspension for tardiness; and on March 23, 2015, Plaintiff received a disciplinary action report. (Id. at ¶¶ 17-19) Plaintiff then filed an EEOC complaint. (Id. at ¶ 21.) In retaliation, Plaintiff was harassed and disciplined. (Id. at ¶ 22.)

         On March 21, 2017, the Plaintiff was again suspended for ten days due to tardiness. (Id. at ¶ 23.) On June 13, 2017, Plaintiff was issued a record of counseling. (Id. at ¶ 24.) On January 18, 2017, the Plaintiff requested an accommodation in the form of allowing her to combine breaks, but she never received a response to the request. (Id. at ¶¶ 26-27.) On June 13, 2017, Lt. Andy Valdes informed Plaintiff that she was no longer allowed to sign up for overtime. (Id. at ¶ 28.) According to the Plaintiff’s allegations, she was terminated because of her disability and in retaliation for her complaints and requests for accommodation. (Id. at ¶ 32.)

         II. Legal Standard

         Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” Fed.R.Civ.P. 8(a). The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quotations and citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). For purposes of Rule 12(b)(6), a court generally may not look beyond the pleadings, which includes any information attached to a complaint. U.S. ex. Rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).

         III. Analysis

         The Defendant moves to dismiss the complaint on the following four grounds: (1) it is a shotgun pleading and fails to comply with Rules 8 and 10; (2) the claims premised on discriminatory or retaliatory intent fail because Plaintiff does not plausibly allege intentional discrimination or retaliation; (3) Plaintiff’s FMLA claims are time-barred; and, (4) to the extent that we can reasonably construe Plaintiff’s claims at all, she does not state a plausible claim for relief. (ECF No. 14 at 2.) The Plaintiff’s response does not even bother to address arguments two through four raised by the Defendant. (ECF No. 17.) The Plaintiff’s response only addresses the shotgun pleading arguments raised in the Defendant’s first grounds for dismissal. Because the Plaintiff fails to address the Defendant’s arguments regarding the merits of her claims, the Court “considers [the Plaintiff] to have therefore abandoned these claims.” Bailey v. Carnival Corp., 369 F.Supp.3d 1302, 1311 n.3 (S.D. Fla. 2019) (Scola, J.). Upon careful review, the Court agrees with the Defendant and dismisses the Plaintiff’s complaint on the merits. Although the Plaintiff has forfeited these arguments, the Court will address the Defendant’s arguments below.

         A. Count I – ADA discrimination claim

         To state a claim for discrimination under the ADA, a plaintiff must allege: “(1) that he is a qualified individual with a disability; (2) that he was excluded from participation in or … denied the benefits of the services, programs, or activities of a public entity or otherwise discriminated [against] by such entity; (3) by reason of such disability.” Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001) (internal citations and quotations omitted). The ADA only protects “qualified individuals” with disabilities, whom the Act defines as individuals who “can perform the essential functions of the employment positions that such individuals holds or desires” with or without a reasonable accommodation. 28 U.S.C. § 12111(8). “If the individual is unable to perform an essential function of his . . . job, even with an accommodation, he is, by definition, not a qualified individual and, therefore, not covered under the ADA.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1229 (11th Cir. 2005).

         The Plaintiff’s complaint fails to allege that she is a “qualified individual” that can perform the job’s essential functions. The complaint alleges that there were at least three instances were the Plaintiff was suspended for tardiness. (ECF No. 6 at ¶¶ 17, 18, 23.) As argued by the Defendants, the ADA does not exempt disabled employees from attendance requirements, generally considered an essential job function. See Davis v. Florida Power & Light Co., 205 F.3d 1301, 1306 (11th Cir. 2000) (noting that “job presence [ ] has been held to be an essential function of a job”). Therefore, the fact that the Plaintiff’s tardiness may have been caused by her disability does not shield her from her employer’s attendance and timeliness requirements. See Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th Cir. 1994) (“The district court correctly reasoned that Jackson has failed to prove he is an otherwise qualified individual because he has failed to satisfy the presence requirement of the job.”). Because the Plaintiff failed to allege that she is a qualified individual, Count I is due to be dismissed.

         B. Count II – ADA ...

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