Gerber v. Vincent’s Men Hairstyling, Inc.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2011
JAIMI GERBER,
Appellant,
v.
VINCENT’S MEN’S HAIRSTYLING, INC. and VINCENT CAMPO,
Appellees.
No. 4D09-5059
[ March 30, 2011 ]
TAYLOR, J.
Plaintiff was employed as a receptionist for Vincent’s Men’s
Hairstyling Shop, Inc. She filed a complaint against the shop alleging
that its owner, Vincent Campo, touched her in a sexual manner on
multiple occasions, causing her physical and emotional harm. Her
complaint included claims against the shop for negligent retention and
supervision (Count I) and vicarious liability (Count II), and a claim
against Campo for battery (Count III).1
Defendants moved to dismiss her complaint, asserting that, though
the complaint sounded in negligence, the complaint was actually for
sexual harassment and discrimination; as such, plaintiff was required to
comply with the pre-suit procedures set forth in Title VII of the Federal
Civil Rights Act of 1964, 42 U.S.C. section 2000e-5(f)(1), and the Florida
Civil Rights Act (FCRA), section 760.11, Florida Statutes (2009). The
trial court agreed a n d granted defendants’ motion to dismiss.
In
addition, the trial court granted the defendants’ motion for attorney’s fees
and costs under section 57.105, Florida Statutes (2009). Because the
trial court’s dismissal of the complaint improperly foreclosed plaintiff
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While these claims were pending, plaintiff also filed a charge of discrimination
with the Equal Employment Opportunity Commission (EEOC) for sexual
harassment, intending to later amend her complaint to include a count for
violations of Title VII and the Florida Civil Rights Act once the EEOC made a
reasonable cause determination or 180 days passed without a determination.
from pursuing viable common law tort claims against her employer, we
reverse.
At the outset, we reject defendants’ contention that the order
dismissing plaintiff’s complaint is not final for appeal purposes because
it was entered “without prejudice.” “[A]n order which strikes the entirety
of a claim is the equivalent of an order which dismisses, and either is
final. The phrase ‘with prejudice’ in such an order is redundant.” Gries
Inv. Co. v. Chelton, 388 So. 2d 1281, 1282 (Fla. 3d DCA 1980). Here,
when granting defendants’ motion to dismiss, the trial court stated that
“Plaintiff may not re-file until such time as conditions precedent of
sexual harassment statutes [are] met.” Because plaintiff maintained that
her common law claims were viable under tort law, the trial court’s
dismissal foreclosed any remedy based in tort and effectively ended the
litigation on the merits. The order is thus reviewable on appeal.
We next address plaintiff’s argument that the trial court erred in
dismissing her claims because she failed to comply with the pre-suit
procedures required by Title VII or the FCRA. Defendants persuaded the
trial court that plaintiff couched her complaint in terms of a tort action
in an attempt to circumvent the pre-suit procedures of Title VII and the
FCRA. Accordingly, the court dismissed the complaint, believing it had
no jurisdiction to hear the matter until those pre-suit requirements were
satisfied.
Florida law permits multiple causes of action to co-exist. Florida Rule
of Civil Procedure 1.110(g) states that “[a] pleader may set up in the same
action as many claims or causes of action or defenses in the same right
as the pleader has, and claims for relief may be stated in the alternative
if separate items make up the cause of action, or if 2 or more causes of
action are joined.” It further provides that “[a] party may also state as
many separate claims or defenses as that party has, regardless of
consistency and whether based on legal or equitable grounds or both.”
In this case, plaintiff filed a three-count complaint for negligent
retention and supervision, vicarious liability, and battery. Specifically,
she alleged that she was battered by defendant Campo, that the battery
resulted from the defendant hairstyling shop’s negligent retention and
supervision of its employees, and that the shop was vicariously liable for
the acts of its employees. The fact that the complaint alleges a “hybrid”
of facts supporting both common law tort violations and statutory sexual
harassment violations is not dispositive, as the allegations in plaintiff’s
complaint c a n stand on their own under common law.
If, upon
completion of the EEOC administrative process, plaintiff chooses to seek
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amendment of her complaint to add statutory sexual harassment claims,
that is her prerogative. Meanwhile, plaintiff is free to file a complaint
setting forth claims based on common law torts, as opposed to statutory
violations. The trial court thus erred in dismissing her complaint. See
Rivera v. Torfino Enters., Inc., 914 So. 2d 1087, 1090 (Fla. 4th DCA 2005)
(reversing dismissal of plaintiff’s whistleblower’s complaint against her
former employer where anti-retaliatory provisions of both the
Whistleblower’s Act and the Florida Civil Rights Act overlapped with each
other and there was no reason for not harmonizing the statutes and
giving effect to both); Underwood v. Rhone-Poulenc Rorer Pharm., Inc.,
890 So. 2d 429, 431 (Fla. 4th DCA 2004) (reversing summary judgment
and holding that allegations under the Whistleblower’s Act and the
Florida Civil Rights Act were intertwined and that at least some of them
stated a cause of action precluding summary judgment).
Defendants argue that, even if plaintiff set forth sufficient facts to
establish common law tort claims, the Florida Workers’ Compensation
Act, §§ 440.015 and 440.11, Florida Statutes (2009), is the exclusive
remedy against her employer. “[W]orkers’ compensation generally is the
sole tort remedy available to a worker injured in a manner that falls
within the broad scope a n d policies of the workers’ compensation
statute.” Byrd v. Richardson-Greenshields Sec., Inc., 552 So. 2d 1099,
1100 (Fla. 1989). Section 440.11 states that workers’ compensation is
the exclusive remedy “in place of all other liability, including vicarious
liability, of such employer to any third-party tortfeasor and to the
employee … on account of such injury or death.” Section 440.02(19),
Florida Statutes (2009), defines “injury” as a “personal injury or death by
accident arising out of and in the course of employment …. This damage
must specifically occur as the result of an accident in the normal course
of employment.”
In Byrd, the Florida Supreme Court adopted a two-part test to
determine what types of injuries are compensable under workers’
compensation. 552 So. 2d at 1104. First, the injury must “‘arise out of’
employment in the sense that it is caused by a risk inherent in the
nature of the work in question.” Id. at 1104 n.7 (citing Strother v.
Morrison Cafeteria, 383 So. 2d 623, 624-26 (Fla. 1980). “It is immaterial
whether the injury is caused by an intentional or unintentional act, so
long as that act arose out of this type of risk.” Id. “Second, the injury
must occur ‘in the course of’ employment.” Id. In other words, the
question rests on whether the injury “substantially originated from the
‘time and space’ of work, resulting in an injury directly linked to the work
environment or work-related activities.” Id. (citing Strother, 383 So. 2d at
628).
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Under this analysis, the Florida Supreme Court held that “as a matter
of public policy, sexual harassment should not and cannot be recognized
as a ‘risk’ inherent in any work environment.” Id. Moreover, the
exclusiveness of recovery under workers’ compensation does not apply
“[w]hen an employer commits an intentional tort that causes the injury
or death of the employee.” See § 440.11(b). In order to circumvent
recovery under workers’ compensation, the employee must prove, “by
clear and convincing evidence, that . . . [t]h e employer deliberately
intended to injure the employee; or . . . [t]h e employer engaged in
conduct that the employer knew, based on prior similar accidents or on
explicit warnings . . . was virtually certain to result in injury or death to
the employee.” See § 440.11(b)1 and 2.
Accordingly, an employer cannot intentionally injure an employee and
enjoy immunity from suit under the Workers’ Compensation Act. See §
440.11(b). “[A]n injury intentionally inflicted by the employer himself or
his or her alter egos does not fall within these principles, since workers’
compensation was not established to excuse misconduct of this type.”
Byrd, 552 So. 2d at 1101 n.5. (citing Schwartz v. Zippy Mart, Inc. 470 So.
2d 720, 724 (Fla. 1st DCA 1985)). While the supreme court noted that
Florida’s workers’ compensation act covered “a wide variety of injuries
caused by intentional torts, provided there [was] a sufficient nexus with
the activities of the workplace itself,” the court did not recognize a new
cause of action for common law negligence for sexual harassment. Byrd,
552 So. 2d at 1101. However, “it appears that the [Byrd] [c]ourt simply
adopted the more narrow position that corporations that allow employees
to commit intentional torts such as battery . . . as part of a sexually
harassing environment c a n no longer hide behind th e workers’
compensation exclusion rule to escape liability.” Vernon v. Med. Mgmt.
Assocs. of Margate, Inc., 912 F. Supp. 1549, 1564 (S.D. Fla. 1996)
(emphasis added).
In Doe v. Footstar Corp., 980 So. 2d 1266, 1267-68 (Fla. 2d DCA
2008), the second district held that that the worker’s compensation
exclusivity rule barred the plaintiffs’ common law causes of action
against their child’s employer for negligent hiring, retention, and
supervision and for assault, battery, and rape. Although the court cited
Byrd as authority, we disagree with the second district’s reasoning in Doe
and do not interpret Byrd as disallowing plaintiff’s battery claim under
the workers’ compensation exclusivity rule. In Byrd, the supreme court
held that the workers’ compensation exclusivity rule did not bar the
plaintiffs’ claim alleging “the specific type of battery” arising from sexual
harassment against a n employer. 552 So. 2d at 1104. There, the
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plaintiffs based their claims o n incidents “in which male employees
repeatedly touched the women and made verbal sexual advances on
them in the workplace during working hours.” Id. at 1100. The supreme
court reasoned that the workers’ compensation exclusivity rule did not
bar the claims “because these causes of action address the very essence
of the policies against sexual harassment—a n injury to intangible
personal rights” and “we d o not perceive the battery alleged in this
instance as involving wage loss or workplace injury, but an unlawful
intrusion upon personal rights . . . .” Id. at 1104, 1105 n.8. Similarly, in
this case, the plaintiff’s injuries allegedly resulted from a battery, which
is not directly related to the work environment or work-related activities.
For these reasons, we certify conflict with Doe.
We next consider whether the trial court erred in granting the
defendants’ attorney’s fees and costs pursuant to section 57.105(1),
Florida Statutes (2009). Here, it appears that the trial court based its
award of section 57.105 attorney’s fees upon its erroneous determination
that plaintiff improperly filed her complaint in circuit court before
complying with the pre-suit procedures set forth under Title VII and the
FCRA. Accordingly, we reverse the trial court’s award of attorney’s fees
and costs under section 57.105.
Reversed and Remanded.
GERBER, J., and ROSENBERG, ROBIN L., Associate Judge, concur.
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*
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Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David Krathen, Judge; L.T. Case No. 09-49949CACE.
Lawrence J. McGuinness and Juliana Gonzalez of Lawrence J.
McGuinness, P.A., Miami, for appellant.
William J. McFarlane of the Law Offices of McFarlane Dolan &
Barnett, Coral Springs, for appellees.
Not final until disposition of timely filed motion for rehearing.
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