Sunday, May 17, 2020

Jaeckle v. Flagler College, Inc.: Plaintiff Dr. Tina Jaeckel's Motion to File Second Amended Complaint

COMES NOW Plaintiff, Tina Jaeckle (“Plaintiff”), by and through the undersigned counsel, and moves this Court for leave to file a Second Amended Complaint in the above-styled action, and as grounds in support, states as follows:
1. IX of the 2.
breach of 3. employer 4.
presently 5. February
This case is partially based on a claim for employer retaliation in violation of Title Education Amendments of 1972, 20 U.S.C. § 1681 et seq (“Title IX”). (See Doc. 1).
Plaintiff originally filed this action in state court on or about July 17, 2018 as a contract case.
Plaintiff amended the original complaint on October 23, 2019 to include a claim for retaliation in violation of Title IX.
Flagler College, Inc. (“Defendant”) removed the action to this Court where it is pending. (Doc. 1).
Plaintiff previously moved this Court to amend the Complaint a second time on 28, 2020 when she filed her Motion for Leave to File Amended Complaint (“Motion to
Amend”). (Doc. 25).
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6. The Second Amended Complaint and Demand for Jury Trial (“Amended Complaint”) raised several additional claims for relief including front pay, backpay, reinstatement, and punitive damages.
7. On March 20, 2020, the United States Magistrate Judge entered an order denying the Motion to Amend on grounds that such amendment would be futile because punitive damages are not available in private actions brought to enforce Title IX and denying Plaintiff’s Motion for Leave to File a Reply as a case cited in Plaintiff’s Motion for Leave to File a Reply was distinguishable (“Magistrate’s Order”). (Doc. 29).
8. On April 3, 2020, Plaintiff filed her Objection to the United States Magistrate Judge’s Order Entered March 20, 2020 (“Objection”). (Doc. 30).
9. On April 24, 2020, this Court entered the Order on the Objection which authorized Plaintiff to resubmit her Motion for Leave to Amend no later than May 8, 2020. (Doc. 32).
  1. This Motion is Plaintiff’s compliance with this Court’s April 24, 2020 Order.
  2. Plaintiff now files this Motion for Leave to Amend based upon the facts she
discovered which lead to a basis for Plaintiff to seek punitive damages, and Plaintiff seeks to specifically plead for alternative equitable and special damages she is seeking as relief in this case.
12. Defendant’s willful and wanton disregard for Title IX complaints gives rise to a claim for punitive damages. In particular, Defendant has engaged in a pattern of complete and deliberate indifference to the requirements of Title IX by committing ongoing egregious violations with no sign of relenting, as more specifically outlined in the attached Second Amended Complaint. Furthermore, Defendant has acted with malice and reckless indifference towards Plaintiff’s federally protected right to raise a Title IX complaint. Plaintiff seeks to amend the Complaint to include facts supporting her claim for punitive damages and a request for the same.
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It is appropriate to allow leave to amend to add a claim for punitive damages. See Ritter v. Nonprofit Info. Networking Ass’n, 2017 WL 821851, at 2-3 (M.D. Fla. Mar. 2, 2017).
13. In addition, Plaintiff seeks to amend to request reinstatement with back pay as a form of alternative equitable relief, or alternatively back pay and front pay. The claims for front pay, backpay, and reinstatement are appropriate prayers for relief in the present case and leave to amend to include additional remedies is appropriate. See In re Private Capital Partners, 139 B.R. 120, 125 (Bankr. S.D.N.Y. 1992), citing Foman, 371 U.S. at 182-83.
  1. Attached as Exhibit A to this Motion is the proposed Second Amended Complaint.
  2. Defendant will not be prejudiced if leave is granted as the issues raised stem from
the same or similar sets of facts.
16. As a result, this Motion for Leave to Amend should be granted.
I. Leave to Amend Complaints Must be Freely Given and Only Denied for Futility if it Appears Certain Plaintiff Would be Unable to Recover Under any Set of Facts
The Motion to Amend should be granted because it is not certain on the face of the Amended Complaint that there are no facts that would support the claims for front pay, backpay, reinstatement, and punitive damages.
A party may freely amend its pleadings once as a matter of course within 21 days of service, with opposing counsel’s written consent, or with leave of the court. Fed. R. Civ. P. 15(a). Leave should be freely given when justice requires. Id. The Supreme Court held that “this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Courts will permit amendment of pleadings for virtually any purpose, including to add claims, alter legal theories or request different or additional relief.” In re Private Capital Partners, 139 B.R. at 125 (emphasis added),citing Foman, 371 U.S. at 182-83. A plaintiff should be allowed to test their claims on the merits
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absent a showing of reason such as undue delay, bad faith, dilatory motive, futility of amendment, etc. Foman, 371 U.S. at 182. In other words, “[a] court should deny a motion to amend only for good reasons, such as ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of amendment.’” Estate of Ratcliffe v. Pradera Realty Co., 2007 WL 3084977, at *4 (S.D.N.Y. Oct. 19, 2007), citing Foman, 371 U.S. at 182. District courts do not have broad discretion to permit denial absent a substantial reason.See Lee v. Sec. Check, LLC, 2009 WL 2044687, at 1 (M.D. Fla. July 10, 2009), citing Dussouy v. Gulf Coast Inv. Corp., 660 F. 2d 594, 598 (5th Cir. 1981).
Amending a complaint is futile only “when the complaint as amended would still be properly dismissed or be immediately subject to summary judgment for the defendant.” Cockrell, 510 F.3d at 1310, citing Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004). A motion for leave to amend should only be denied as futile if the amended complaint “appears to a certainty that the plaintiff would be unable to recover under any set of facts.” See State St. Bank & Trust Co. v. Denman Tire Corp., 240 F.3d 83, 87 (1st Cir. 2001)(emphasis added); see also, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)(holding that a motion to dismiss should be granted “only if it clear that no relief could be granted under any set of facts that could be provided consistent with the allegations”). Leave to amend should not be denied “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.” See Estate of Ratcliffe, 2007 WL 3084977 at *5, citing Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998).
In Cockrell, 510 F.3d 1307, the Eleventh Circuit affirmed the denial of a motion for leave to amend a complaint because the proposed amendment would be futile. The amendment proposed by the plaintiff sought to assert a cause of action against a deputy for excessive force; however,
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the factual allegations named a different deputy as the culpable party. Id. The Eleventh Circuit determined that, even if the amendment were allowed, the defendant would obviously be immediately entitled to a summary judgment on the merits because the complaint made no allegations related to the deputy against whom plaintiff was seeking relief. Id.
Similarly, in Hall, 367 F.3d 1255, the Eleventh Circuit affirmed the denial of a motion for leave to amend the complaint because the three new claims asserted in the amended complaint would have been subject to dismissal as a matter of law. Id. at 1263. Two of the new claims asserted relied upon facts contrary to a previously entered summary judgment. Id. The third new claim was based in fraud; however, the fraud was allegedly committed against a deceased individual and fraud claims do not survive the death of an aggrieved. Id. Thus, on the face of the amended complaint, it was obvious that plaintiff did not state a valid cause of action for any of the newly asserted claims. Therefore, the motion for leave to amend was properly denied. Id.
Plaintiff’s Second Amended Complaint is not obviously subject to dismissal as the amendments in Cockrell and Hall. In both Hall and Cockrell, the face of the amended complaints made it abundantly obvious that plaintiff would not survive a motion to dismiss or motion for summary judgment under well settled principles of the lawId. That is not the case here as is detailed infra. Plaintiff’s claims for front pay, backpay, reinstatement, and punitive damages are not obviously subject to immediate dismissal or summary judgment as there is no certainty that Plaintiff will be unable to recover based on her Second Amended Complaint under any set of facts.See Id.; State St. Bank & Trust Co., 240 F.3d at 87; Hishon, 467 U.S. at 73; Estate of Ratcliffe, 2007 WL 3084977 at *5; Cooper, 140 F.3d at 440. Therefore, this Motion for Leave to Amend should be granted.
a. Title IX Employer Retaliation Claims Should Allow for Punitive Damages Pursuant to Title VII Framework for Employment Discrimination
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This Motion for Leave to Amend should be granted because punitive damages under Title IX employer retaliation claims is, at most, an unsettled, if not uncharted altogether, novel area of the law that should be explored on the facts.
The United States Supreme Court decided that punitive damages are not available in private actions brought under Title VI of the Civil Rights Act of 1964 in its decision in Barnes v. Gorman, 536 U.S. 181 (2002). The court noted in Barnes that its reasoning for disallowing punitive damages under Spending Clause legislation was because any wrongs incurred by the plaintiff were “made good” when a plaintiff is compensated for the loss. Barnes, 536 U.S. at 189.
Title IX is generally considered to be modeled after Title VI, as the United States Supreme Court observed in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). As a result, the Fourth Circuit, in Mercer v. Duke University, 50 Fed.Appx. 643, 644 (4th Cir. 2002), appliedBarnes to a private action enforcing Title IX as it relates to denying punitive damages. The Southern District of Florida adopted Mercer and struck a prayer for punitive damages in an action brought to enforce Title IX in Doe v. School Bd. Of Miami-Dade Cnty., 403 F. Supp. 3d 1241, 1268-69 (S.D. Fla. 2019). The Southern District noted that the plaintiff in this case did not cite any authority allowing punitive damages, and thus the Court followed the reasoning in Mercer as the court was not presented with any authority contradicting MercerId.
While Title IX, as a general matter, is modeled after Title VI, the analysis and law implicated when employment discrimination and retaliation are at issue will necessarily differ. Both Mercer and School Bd. Of Miami-Dade Cnty. were suits brought by students against institutions rather than employees alleging employment discrimination against their employer. Id. Plaintiff does not necessarily disagree with this aforementioned rationale and reasoning regarding cases brought by students against institution for sexual discrimination; however, these cases and rationales are inapposite of the issues before this Court.
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Traditionally, employment discrimination and retaliation claims have been brought under Title VII, but a plaintiff is not deprived of other remedies and is not limited exclusively to Title VII for relief. Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 459 (1975). Title VII is the appropriate template when analyzing Title IX’s substantive standards in an employment retaliation context. See Doe v. Mercy Catholic Medical Center, 850 F.3d 545 (3rd Cir. 2017). The Third Circuit, in Mercy Catholic Medical Center, held that Title VII standards governed both retaliation and quid pro quo sexual harassment standards arising under Title IX and used only one of the substantive standards from Title IX in its analysis of the plaintiff’s Title IX employment discrimination claim. Id. at 563-67. (holding “Title VII’s familiar framework ‘generally governs’ Title IX retaliation claims”).
Under Title VII, punitive damages are available in a private action against a private employer. See Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534 (1999). Congress made additional remedies available in Title VII actions, to include punitive damages, in 1991. Id. The United States Supreme Court observed that “Congress plainly sought to impose two standards of liability – one for establishing a right to compensatory damages and another, higher standard, that a plaintiff must satisfy to qualify for a punitive award. Id. Under the 1991 standards, a plaintiff may recover punitive damages if they demonstrate that the respondent “engaged in a discriminatory practice. . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Id.
Retaliation under Title IX is modeled after Title VII, not Title VI. See Doe, 850 F.3d at 564. As a result, reliance on Mercer and School Bd. Of Miami-Dade Cnty. is distinguishable. Since Title VII allows for punitive damages, it stands to reason that employer retaliation claims under Title IX that are modeled after Title VII would also include punitive damages. See Kolstad, 527 U.S. at 534.
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b. The Availability of Punitive Damages Under Title IX have been Recognized in Certain Circumstances
Prior to the Barnes decision upon which the Mercer Court based its reasoning, the District Court of Massachusetts held that it would consider punitive damages under Title IX against a school district, which traditionally would not be subject to punitive damages, if the plaintiff could show that the school district “demonstrated complete indifference to the requirements of Title IX and has committed ongoing egregious violations with no sign of relenting.” Canty v. Old Rochester Regional Sch. District, 66 F. Supp. 2d 114, 117 (D. Mass. 1999); see also Doe v. Oyster River Co- op. School Dist., 992 F. Supp. 467, 483 n.17 (D.N.H. 1997).The court in Canty observed punitive damages may be the best or only way of forcing the violator into compliance and it would consider awarding them despite punitive damages generally not being allowed in that type of lawsuit. Id.
The district court in Mercer discussed Canty’s standard for punitive damages of ongoing egregious violations as applied to a private party. Mercer v. Duke Univ., 181 F. Supp. 2d 525, 546- 47 (M.D.N.C. 2001), vacated in part, 50 Fed. App’x. 643 (4th Cir. 2002). The district court determined that because the defendant in Mercer was a private entity and not a municipal entity,Canty’s heightened standard would not be required and thus the lower standard of “reckless indifference towards a federally protected right, is the appropriate standard for assessing [d]efendant’s conduct.” Id. Ultimately, the District Court’s ruling regarding punitive damages was overturned as to the lower standard it chose to apply, but the heightened standard outlined in Cantyhas not otherwise been overturned or addressed, and it would serve to force a violator with ongoing, egregious violations into complying with Title IX. See Canty, 54 F. Supp. 2d at 117.
Prior to the Barnes decision, a jury awarded a plaintiff $50,000.00 in punitive damages for the University of Maine System’s employment discrimination against the plaintiff, specifically, retaliation. The retaliation was in response to the plaintiff speaking out on behalf of students who were being harassed or discriminated against on the basis of gender. Nelson v. Univ. of Maine Sys., 944 F. Supp. 44 (D. Me. 1996).
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The Canty Court established a heightened standard for allowing punitive damages in circumstances in which punitive damages were not otherwise historically allowed. See Canty, 54 F. Supp. 2d 114. Plaintiff’s Second Amended Complaint accounted for this heightened standard by pleading several ongoing, egregious violations of Title IX committed by Defendant.
At most, this is an unsettled area of the law with intricacies that have yet to be explored by any court, particularly any court that is controlling in the present case. Therefore, it is not clear or certain on the face of the complaint that Plaintiff is not entitled to punitive damages, and therefore, this Motion for Leave to Amend should be granted as the Second Amended Complaint is not futile.
c. It is Contrary to the Law to Deny a Motion to Amend as Futile for Novel Issues in the Law
The court should be reluctant to dismiss an action on the face of the pleadings when the theory of liability is novel. Greenier v. Pace, Local No. 1188, 201 F. Supp. 2d 172, 182 (D. Me. 2002); Green v. Crew, 1996 WL 524395, at *8 (E.D.N.Y. Sept 5, 1996); Logiodice v. Trustees of Maine Cent. Inst, 135 F. Supp 2d 199, 205-06 (D. Me 2001). This is because new legal theories should be explored considering the facts. Id. “[A] fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Hayden v. Alabama Dep’t of Pub. Safety, 506 F. Supp. 2d 944, 956- 57 (M.D. Ala. 2007). The court in Hayden held that if a plaintiff can plead with any heightened pleading requirements, the court would allow the issue at bar of first impression to advance to the summary judgment stage. Id. at 57.
Plaintiff’s Second Amended Complaint presents a unique theory of liability for punitive damages under Title IX as it relates to a specific set of facts, those involving employer retaliation. As in Greenier, where the plaintiff brought a new legal theory advancing the idea that a claim for deliberate acquiescence existed under Title VII or the ADA, the Plaintiff in the present case is
advancing an idea that punitive damages are available under Title IX against a private entity that Page 9 of 13
unlawfully retaliates against their employees for raising concerns about potential Title IX violations (or alternatively under the heightened standard of ongoing, egregious violations of Title IX).
The plaintiff in Hayden attempted to advance an equal protection class-of-one theory that was far from clear in the case law. Hayden, 506 F. Supp. 2d at 955. The court held that if the plaintiff could provide a factual basis for his equal protection claims, the court would allow the claims to proceed to summary judgment and survive a motion to dismiss. Id. at 57. Here, Plaintiff has specifically alleged new facts to account for the heightened standard she believes would be applicable under her theory of liability for punitive damages under Title IX in the employment retaliation context. As a result, this Motion for Leave to Amend should be granted and the Second Amended Complaint and Plaintiff’s claims should be heard on the merits.
II. Back Pay, Front Pay, and Reinstatement
Plaintiff seeks backpay and reinstatement to her position with Defendant, or in the alternative seeks relief in the form of back pay and front pay. Courts have broad authority to award appropriate relief in employment discrimination and retaliation actions, including back pay and reinstatement. Reiner v. Family Ford, Inc., 146 F. Supp. 2d 1279, 1284-85 (M.D. Fla 2001), citing42 U.S.C. § 2000e-5(g); Lalowski v. Corinthian Sch., Inc., 2013 WL 1788353, at 2 (N.D. Ill. Apr. 26, 2013); Miller v. Bd. Of Regents of Univ. of Minnesota, 2019 WL 586674 at 1 (D. Minn. Feb. 13, 2019), amended in part, 402 F. Supp. 3d 568 (D. Minn. 2019); Nelson v. Univ. of Maine Sys., 944 F. Supp. 44, 50 (D. Me. 1996). Reinstatement is presumptively the appropriate remedy in a wrongful termination case such as the one before the Court. Id.; United States Equal Opportunity Commission v. W & O, Inc., 213 F.3d 600, 619 (11th Cir. 2000); Miller, 2019 WL 586674 at 1. The Court should look to the discord and antagonism between the parties to determine if
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reinstatement might be rendered ineffective as a remedy. Id.; Lalowski, 2013 WL 1788343, at 7. If reinstatement is found to be inappropriate, the alternative relief is front pay. Id.
Plaintiff would still be employed by Defendant and engaging in her passion, teaching students, had Defendant not retaliated against her. Plaintiff still wishes to impart her knowledge with the students of Flagler College and seeks the presumptive remedy available to her, which is reinstatement. See Reiner, 146 F. supp. 2d 1279, at 1284. If the Court should determine the antagonism and animosity between the parties is too great, Plaintiff requests, should she prevail, the Court engage in the appropriate analysis to determine an award of front pay. Id. In either circumstance, Plaintiff seeks the backpay to which she was entitled prior to being unlawfully terminated.
The current litigation before the Court is in the early stages of discovery. The Second Amended Complaint should have no effect on any deadlines imposed on the parties and will not prejudice Defendant. The proposed amended pleadings provide factual information to place Defendant on notice as to the allegations against it and the damages being sought. There is no delay or dilution to the pending litigation. The proposed amendment is not futile for the reasons set forth herein, and there has been no undue delay, bad faith or dilatory motive on the part of Plaintiff, or repeated failures by Plaintiff to cure deficiencies by amendments previously allowed which would give rise to denying this Motion. The proposed amendments to the Second Amended Complaint are appropriate under the law and are otherwise ripe for this Court to review on the merits. This Motion is being filed pursuant to the April 24, 2020 Order authorizing Plaintiff to file this Motion prior to May 8, 2020 (Doc. 32) and is therefore timely and appropriate. Defendant will not be prejudiced by the granting of this Motion.
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This Court should not limit its ability to decide the issues presented in the Second Amended Complaint on the merits at this juncture. The Second Amended Complaint is not obviously subject to dismissal, and even if the belief is punitive damages or some other issue in the Second Amended Complaint is unlikely to be awarded, it is still incumbent upon this Court to allow that to be determined on the merits.
WHEREFORE, Plaintiff respectfully requests this Court grant Plaintiff’s motion for leave to file the second amended complaint, deem the attached second amended complaint filed as of the date of the order granting leave to amend, allow Defendant 14 days to respond to the second amended complaint from the date of the Court’s order granting leave to amend, and for such other and further relief as the Court deems just and proper.
LOCAL RULE 3.01(g)
Counsel for Plaintiff certifies that he has conferred with counsel for Defendant and counsel for Defendant will oppose this Motion.
Respectfully submitted May 7, 2020.
/s/ Ryan Williams
Ryan Williams, Esq.
Florida Bar No. 87453
105 Solana Road, Suite C
Ponte Vedra Beach, FL 32082 Primary: Ph: (904) 930-4100
Co-Counsel for Plaintiff
/s/Shane M. Smith
Shane M. Smith, Esq.,
Florida Bar No. 107872
3845 W. Eau Gallie Blvd., Suite 104 Melbourne, FL 32934
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Ph: 321-724-1919
Co-Counsel for Plaintiff
I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed in the US District Court, Middle District of Florida, via CM/ECF, which will send a notice of electronic filing to all counsel of record on May 7, 2020:
/s/ Ryan Williams
Ryan Williams, Esq.

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