Recent Docket Entry
Devore v. Bern's Steak House, Inc.: Second Amended Complaint and Demand for Jury Trial
A server alleges the restaurant that employed her for about seventeen years terminated her one day after she had anxiety symptoms at work. The restaurant has moved to dismiss her amended complaint.
Court: M.D. Fla.Case: 8:26-cv-01552
Documents
Amended Complaint and Demand for Jury Trial
Defendant's Motion to Dismiss Plaintiff's Amended Complaint and Demand for Jury Trial
Second Amended Complaint and Demand for Jury Trial
Element Map and Affirmative-Defense Negation Map
16 pp.
View PDFSECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, Kelly Devore ("Plaintiff"), sues Defendant, Bern's Steak House, Inc. ("Defendant"), and alleges:
PRELIMINARY STATEMENT
1. On or about April 24, 2025, Defendant terminated Plaintiff's employment, one day after Plaintiff had a panic attack at work. Plaintiff had worked for Defendant for about seventeen years, principally as a Server.
2. Plaintiff has anxiety. Before September 2024, Plaintiff told one of Defendant's managers that she has anxiety and post-traumatic stress disorder and gave Defendant medical documentation concerning those conditions. In or about September 2024, Plaintiff told Lauren Williams, in Defendant's Human Resources department, about the anxiety and the medication prescribed for it.
3. On or about April 23, 2025, Plaintiff told Defendant's call-out line that she was having a panic attack and would report to work as soon as she was able. Plaintiff arrived by the start of service and began working. Defendant's Head Chef, Chad, accused Plaintiff of being drunk and directed her outside. Plaintiff attempted to explain to Chad that she was having a panic attack. Williams came outside and observed Plaintiff's symptoms. Defendant's management then told Plaintiff to leave. The next day, Chad called Plaintiff and told her that Defendant had terminated her employment.
4. Plaintiff sues under the Americans with Disabilities Act and the Florida Civil Rights Act of 1992 for that discharge. Plaintiff also sues under section 440.205, Florida Statutes, for statements Williams made to Plaintiff in December 2023, after Plaintiff filed a workers' compensation claim for a knee injury she suffered in Defendant's kitchen.
I. JURISDICTION AND VENUE
5. Count I arises under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). This Court has jurisdiction over Count I under 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a).
6. Count II arises under the Florida Civil Rights Act of 1992, chapter 760, Florida Statutes ("FCRA"). Count II challenges the same termination of Plaintiff's employment that Count I challenges. This Court has supplemental jurisdiction over Count II under 28 U.S.C. § 1367(a).
7. Count III arises under section 440.205, Florida Statutes. Count III challenges statements that Williams made to Plaintiff on or about December 6, 2023, after Plaintiff filed a workers' compensation claim for a knee injury she suffered at work. The knee injury and the events that followed it, pleaded in Sections B through D below, caused Plaintiff's anxiety symptoms to intensify, as pleaded in Section E. Williams received Plaintiff's disclosure of the anxiety condition in or about September 2024 and observed Plaintiff's panic attack on or about April 23, 2025. This Court has supplemental jurisdiction over Count III under 28 U.S.C. § 1367(a).
8. Plaintiff worked for Defendant in Hillsborough County, Florida. But for the termination of her employment, Plaintiff would have continued to work for Defendant in Hillsborough County, Florida. The events pleaded in this Second Amended Complaint occurred in Hillsborough County, Florida.
9. Venue is proper in this District under 42 U.S.C. § 2000e-5(f)(3), made applicable to Count I by 42 U.S.C. § 12117(a), and under 28 U.S.C. § 1391(b)(2).
10. Hillsborough County lies within the Tampa Division of this Court.
II. PARTIES AND PERSONS
11. Plaintiff is an adult individual.
12. Defendant is a Florida profit corporation. Defendant operates a restaurant in Hillsborough County, Florida.
13. Defendant is engaged in an industry affecting commerce. At all times material, Defendant employed 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.
14. Defendant employed Plaintiff from on or about August 17, 2007 until on or about April 24, 2025.
15. Lauren Williams ("Williams") was Defendant's Human Resources Representative and a member of Defendant's management in November and December 2023. Williams worked in Defendant's Human Resources department in or about September 2024. Williams was at Defendant's restaurant on or about April 23, 2025.
16. Joseph Cabra ("Cabra") was one of Defendant's managers in 2024.
17. Chad ("Chad") was Defendant's Head Chef on or about April 23 and April 24, 2025.
III. ADMINISTRATIVE PROCEEDINGS
18. On or about February 17, 2026, Plaintiff filed a charge of discrimination against Defendant with the U.S. Equal Employment Opportunity Commission ("EEOC"). Plaintiff dual-filed the charge with the Florida Commission on Human Relations ("FCHR"). The charge alleged disability discrimination and retaliation by Defendant.
19. On or about February 25, 2026, the EEOC issued Plaintiff a notice of right to sue on the charge.
20. Plaintiff commenced this action on May 22, 2026, within 90 days after receiving the EEOC notice.
21. On or about August 31, 2026, more than 180 days after Plaintiff filed the charge, the FCHR issued Plaintiff a Notice of State Rights on the charge.
22. All conditions precedent to this action have occurred, have been performed, or have been waived.
IV. SCOPE OF THE CLAIMS
23. Counts I and II challenge Defendant's termination of Plaintiff's employment on or about April 24, 2025. Count III challenges the statements Williams made to Plaintiff on or about December 6, 2023.
V. FACTUAL ALLEGATIONS
A. Plaintiff worked for Defendant for about seventeen years, principally as a Server
24. Defendant hired Plaintiff as a Server on or about August 17, 2007.
25. Plaintiff worked for Defendant until Defendant terminated her employment on or about April 24, 2025.
26. Plaintiff worked as a Server for most of that period. Plaintiff also worked for Defendant in a Front Desk position and in a Reservations Department position during the periods described in Sections C and D.
27. Plaintiff's Server duties included serving the guests at the tables assigned to Plaintiff's section.
28. Plaintiff performed her job duties satisfactorily during her employment.
29. Plaintiff had no significant history of non-medical attendance, disciplinary, or performance issues during her employment.
B. Plaintiff injured her knee at work and filed a workers' compensation claim
30. On or about November 5, 2023, Plaintiff was walking through Defendant's kitchen while working. A wine steward stretched his leg backward. Plaintiff tripped and injured her left knee.
31. Plaintiff delayed filing an incident report. Plaintiff delayed because she understood that other employees had been retaliated against after reporting workplace injuries.
32. By on or about November 7, 2023, Plaintiff's knee pain had increased. On or about November 7, 2023, Plaintiff filed a workers' compensation claim for the knee injury and sought medical treatment.
33. After Plaintiff's hospital visit, Plaintiff's medical provider issued Plaintiff crutches. Plaintiff's medical provider placed Plaintiff on work restrictions. The restrictions temporarily prevented Plaintiff from performing her regular Server duties.
34. During that period, Plaintiff experienced pain and instability in her left knee. The knee injury limited Plaintiff's ability to walk, stand, bend, lift, and climb stairs.
35. After Plaintiff filed the workers' compensation claim, Williams and other members of Defendant's management questioned Plaintiff repeatedly about when Plaintiff would be fit to return to work.
36. Plaintiff told Williams that returning to work before medical clearance could jeopardize Plaintiff's recovery.
C. Williams told Plaintiff that refusing a Front Desk position would end her employment and her workers' compensation case
37. On or about December 6, 2023, Williams told Plaintiff that Plaintiff needed to return to work in a Front Desk position.
38. Williams told Plaintiff that if Plaintiff did not accept the Front Desk position, Defendant would terminate Plaintiff's employment, and Plaintiff's workers' compensation case would be cancelled.
39. Williams knew of Plaintiff's workers' compensation claim when Williams made those statements.
40. Plaintiff reluctantly accepted the Front Desk position. Plaintiff began working at the Front Desk on or about December 9, 2023.
41. The Front Desk position required prolonged standing. The prolonged standing exacerbated Plaintiff's knee pain and limitations.
42. On or about December 24, 2023, Plaintiff returned to work as a Server. Plaintiff continued to experience symptoms from the knee injury.
D. Plaintiff reinjured her knee while running trays and later returned to serving
43. After returning to serving, Plaintiff worked a smaller section to limit the use of her knee. Plaintiff took moments of rest and moved at a slower pace when working. Defendant's managers questioned Plaintiff frequently about her knee.
44. On or about January 30, 2024, Plaintiff underwent an MRI. The MRI showed a high-grade tear of the posterior cruciate ligament in Plaintiff's left knee.
45. Plaintiff told Williams of the diagnosis. Plaintiff told Williams that, while awaiting further treatment, Plaintiff needed to exercise caution and limit activities that could aggravate the knee.
46. After that report, Defendant continued to assign Plaintiff duties that required extended walking and carrying trays, including running trays exclusively.
47. On one occasion in 2024, another Server covered the tables in Plaintiff's section. Plaintiff told Cabra that she had no tables left to serve. Cabra instructed Plaintiff to spend about two more hours running trays. The trays weighed about 40 pounds.
48. The tray-running assignment aggravated Plaintiff's knee injury. After returning home, Plaintiff could not walk. Plaintiff contacted Williams that day and reported that her knee pain had become so severe that she was unable to walk.
49. Plaintiff asked Williams for an accommodation limiting the walking and physical exertion required of her while she continued treatment. Defendant reassigned Plaintiff to a position in the Reservations Department.
50. After completing some physical therapy, Plaintiff returned to serving tables on or about July 28, 2024.
E. Plaintiff's anxiety intensified, and Plaintiff disclosed her conditions to Defendant
51. Plaintiff has anxiety and post-traumatic stress disorder ("PTSD").
52. Before September 2024, Plaintiff told one of Defendant's managers that she has anxiety and PTSD. Plaintiff gave Defendant medical documentation concerning those conditions.
53. Plaintiff had generally been able to manage her anxiety and to minimize significant flare-ups.
54. After Plaintiff returned to serving in July 2024, Plaintiff experienced anxiety that her knee would be aggravated again if she were required to run trays repeatedly or to perform other duties that required extended walking and carrying. Plaintiff feared that requesting limits on those duties would jeopardize her employment.
55. The knee injury, together with Plaintiff's concerns about her physical limitations and her continued employment, caused Plaintiff's anxiety symptoms to intensify.
56. In or about September 2024, Plaintiff suffered a panic attack. Plaintiff sought medical treatment. A medical provider prescribed Plaintiff medication to manage her anxiety.
57. Plaintiff told Williams, in Defendant's Human Resources department, of the anxiety condition and the prescribed medication.
58. When Plaintiff experiences a significant flare-up of anxiety or a panic attack, the condition substantially limits Plaintiff's ability to breathe, communicate, concentrate, and think clearly. During an episode, Plaintiff must rest and regulate her breathing and heart rate before her symptoms worsen.
59. To monitor her symptoms and prevent further flare-ups, Plaintiff began wearing a heart monitor at work.
60. Plaintiff's anxiety had been present for more than six months before April 23, 2025.
F. Plaintiff had a panic attack at work on or about April 23, 2025
61. On or about April 23, 2025, Plaintiff was running behind schedule for work. Plaintiff became concerned that Defendant would discipline her for arriving late. A panic attack began.
62. That day, before arriving at work, Plaintiff contacted Defendant's call-out line. Plaintiff told Defendant that she was experiencing a panic attack and was attempting to report to work as soon as she was able.
63. Plaintiff arrived at work by the start of service. Plaintiff began performing her Server duties.
64. While Plaintiff was introducing herself to a new employee, Chad approached Plaintiff. Chad accused Plaintiff of being drunk. Chad directed Plaintiff to accompany him outside.
65. Chad's accusation and confrontation worsened Plaintiff's anxiety symptoms. Plaintiff experienced another or continued panic attack.
66. Outside, Plaintiff attempted to explain to Chad that she was experiencing a panic attack. During the panic attack, Plaintiff struggled to breathe, to communicate, and to form words.
67. Williams came outside. Williams observed Plaintiff while Plaintiff was experiencing the symptoms.
68. After Plaintiff's symptoms subsided, Defendant's management instructed Plaintiff to leave work. Plaintiff drove herself home.
G. Defendant terminated Plaintiff's employment the next day
69. On or about April 24, 2025, Chad called Plaintiff. Chad told Plaintiff that Defendant had terminated her employment, effective immediately.
70. Plaintiff was working as a Server when Defendant terminated her employment.
71. When Defendant terminated Plaintiff's employment, Defendant had received the disclosures pleaded in paragraphs 52 and 57 and the call-out message pleaded in paragraph 62, Chad had heard Plaintiff attempt to explain that she was experiencing a panic attack, and Williams had observed Plaintiff's panic attack.
H. Plaintiff's losses
72. The termination caused Plaintiff to lose wages and benefits. The termination caused Plaintiff future pecuniary losses.
73. The termination caused Plaintiff emotional pain and suffering, humiliation, inconvenience, mental anguish, and loss of enjoyment of life.
COUNT I Discrimination Through Discharge — 42 U.S.C. § 12112(a)
74. Plaintiff incorporates paragraphs 5 and 8 through 23, and Sections A through H of the Factual Allegations (paragraphs 24 through 73).
75. Count I arises under 42 U.S.C. § 12112(a).
76. Defendant is a covered entity and an employer within the meaning of the ADA.
77. Plaintiff has anxiety. Anxiety is a mental impairment. When Plaintiff's anxiety is active in a significant flare-up or panic attack, the anxiety substantially limits Plaintiff's ability to breathe, communicate, concentrate, and think clearly. Plaintiff's anxiety was active on or about April 23, 2025. Plaintiff is an individual with a disability under the ADA.
78. In the alternative, Defendant regarded Plaintiff as having a mental impairment. Williams knew of Plaintiff's anxiety condition and medication from Plaintiff's disclosure in or about September 2024. On or about April 23, 2025, Plaintiff told Defendant's call-out line that she was experiencing a panic attack, attempted to explain to Chad that she was experiencing a panic attack, and displayed the symptoms of the panic attack in Williams's presence. Plaintiff's anxiety had been present for more than six months before April 23, 2025. Defendant terminated Plaintiff's employment the next day because of that actual or perceived impairment.
79. Plaintiff was a qualified individual. Plaintiff could perform the essential functions of the Server position. Plaintiff worked as a Server for most of about seventeen years. Plaintiff returned to serving tables on or about July 28, 2024 and was working as a Server when Defendant terminated her employment. Plaintiff had generally been able to manage her anxiety and to minimize significant flare-ups. On or about April 23, 2025, Plaintiff arrived by the start of service and performed her Server duties until Chad directed her outside. Before that day, Plaintiff had no significant history of non-medical attendance, disciplinary, or performance issues.
80. Defendant knew of Plaintiff's anxiety before it terminated her employment, by the routes pleaded in paragraph 71.
81. On or about April 24, 2025, Defendant terminated Plaintiff's employment. Chad communicated the termination to Plaintiff.
82. Defendant terminated Plaintiff's employment one day after Plaintiff's panic attack at work. Chad, who had accused Plaintiff of being drunk while Plaintiff was experiencing the panic attack, communicated the termination. Williams, who had received Plaintiff's disclosure of her anxiety condition in or about September 2024, observed the panic attack. Defendant's management sent Plaintiff home after the panic attack.
83. Defendant terminated Plaintiff's employment because of her disability. Plaintiff's disability was a but-for cause of the termination.
84. Defendant acted with malice or with reckless indifference to Plaintiff's federally protected rights. Williams, who worked in Defendant's Human Resources department when Plaintiff disclosed her anxiety condition and medication to her, observed the panic attack. Defendant terminated Plaintiff's employment the next day.
85. The termination caused Plaintiff the losses pleaded in Section H.
86. Plaintiff is entitled to recover her reasonable attorney's fees and costs under 42 U.S.C. § 12205.
WHEREFORE, Plaintiff requests judgment against Defendant on Count I for: (a) back pay and lost benefits caused by the termination; (b) reinstatement to the Server position or, in the alternative, front pay; (c) compensatory damages for the pecuniary and non-pecuniary losses caused by the termination, including emotional pain and suffering, humiliation, inconvenience, mental anguish, and loss of enjoyment of life; (d) punitive damages; (e) prejudgment and post-judgment interest; (f) reasonable attorney's fees and costs under 42 U.S.C. § 12205; and (g) such other relief as the Court finds proper.
COUNT II Discrimination Through Discharge — Section 760.10(1)(a), Florida Statutes
87. Plaintiff incorporates paragraphs 6 and 8 through 23, and Sections A through H of the Factual Allegations (paragraphs 24 through 73).
88. Count II arises under section 760.10(1)(a), Florida Statutes.
89. Defendant is an employer within the meaning of the FCRA.
90. Plaintiff has anxiety. Anxiety is a mental impairment and a handicap within the meaning of section 760.10, Florida Statutes. When Plaintiff's anxiety is active in a significant flare-up or panic attack, the anxiety substantially limits Plaintiff's ability to breathe, communicate, concentrate, and think clearly. Plaintiff's anxiety was active on or about April 23, 2025.
91. In the alternative, Defendant regarded Plaintiff as having a mental impairment, by the facts pleaded in paragraphs 57, 60, 62, 66, and 67. Defendant terminated Plaintiff's employment the next day because of that actual or perceived impairment.
92. Plaintiff could perform the essential functions of the Server position, by the facts pleaded in paragraphs 24 through 29, 50, 53, 63, and 70.
93. Defendant knew of Plaintiff's anxiety before it terminated her employment, by the routes pleaded in paragraph 71.
94. On or about April 24, 2025, Defendant terminated Plaintiff's employment. Chad, who had accused Plaintiff of being drunk while Plaintiff was experiencing the panic attack, communicated the termination one day after the panic attack. Williams, who had received Plaintiff's disclosure of her anxiety condition, observed the panic attack.
95. Defendant discharged Plaintiff because of her handicap.
96. Defendant acted with malice or with reckless indifference to Plaintiff's rights under section 760.10, Florida Statutes, by the facts pleaded in paragraph 94.
97. The termination caused Plaintiff the losses pleaded in Section H, including mental anguish and loss of dignity.
98. Plaintiff is entitled to recover her reasonable attorney's fees and costs under section 760.11(5), Florida Statutes.
WHEREFORE, Plaintiff requests judgment against Defendant on Count II for: (a) back pay and lost benefits caused by the termination; (b) reinstatement to the Server position or, in the alternative, front pay; (c) compensatory damages for the pecuniary and non-pecuniary losses caused by the termination, including mental anguish, loss of dignity, and other intangible injuries; (d) punitive damages as permitted by section 760.11(5), Florida Statutes; (e) prejudgment and post-judgment interest; (f) reasonable attorney's fees and costs under section 760.11(5), Florida Statutes; and (g) such other relief as the Court finds proper.
COUNT III Threat to Discharge, Intimidation, and Coercion — Section 440.205, Florida Statutes
99. Plaintiff incorporates paragraphs 7 through 17 and 23, and Sections A through D of the Factual Allegations (paragraphs 24 through 50).
100. Section 440.205, Florida Statutes, provides: "No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law."
101. Defendant was Plaintiff's employer in November and December 2023.
102. On or about November 7, 2023, Plaintiff filed a valid claim for compensation under the Workers' Compensation Law for the knee injury she suffered at work on or about November 5, 2023.
103. After Plaintiff filed the claim, Williams and other members of Defendant's management questioned Plaintiff repeatedly about when Plaintiff would be fit to return to work. Plaintiff told Williams that returning to work before medical clearance could jeopardize her recovery.
104. On or about December 6, 2023, about one month after Plaintiff filed the claim, Williams told Plaintiff that Defendant would terminate Plaintiff's employment if Plaintiff did not accept a Front Desk position, and that Plaintiff's workers' compensation case would be cancelled if Plaintiff did not accept the Front Desk position.
105. Williams made those statements as Defendant's Human Resources Representative and a member of Defendant's management, in the course of Defendant's communications with Plaintiff about her return to work.
106. Williams's statements threatened Plaintiff with discharge. Williams's statements referred to Plaintiff's workers' compensation case. Williams made the statements by reason of Plaintiff's claim for compensation.
107. Plaintiff reluctantly accepted the Front Desk position after Williams made those statements. Plaintiff began working at the Front Desk on or about December 9, 2023. The Front Desk position required prolonged standing. The prolonged standing exacerbated Plaintiff's knee pain and limitations.
108. Williams's statements, and the prolonged standing in the Front Desk position Plaintiff accepted after those statements, injured Plaintiff.
WHEREFORE, Plaintiff requests judgment against Defendant on Count III for: (a) compensatory damages for the injury caused by the conduct alleged in Count III; (b) prejudgment and post-judgment interest; (c) costs; and (d) such other relief as the Court finds proper.
DEMAND FOR JURY TRIAL
Plaintiff demands trial by jury on all issues so triable.
Dated this ___ day of October 2026.
Signature block omitted.
39 rows
Element Map and Affirmative-Defense Negation Map
ELEMENT MAP
Count I — Discrimination through discharge, 42 U.S.C. § 12112(a)
| Element | Paragraphs | Authority | Gap or note |
|---|---|---|---|
| Covered entity / employer | 12, 13, 76 | § 12111(2), (5)(A) | Pleaded on the statutory formula and "industry affecting commerce" from the Amended Complaint's "in excess of fifteen" and the restaurant business. Headcount not confirmed from payroll. |
| Disability, actual (episodic) | 51, 53, 55, 56, 58, 60, 77 | § 12102(1)(A), (2)(A), (4)(D); Mazzeo | Limits attributed to anxiety and panic attacks only (breathing, communicating, concentrating, thinking). PTSD is pleaded as a disclosed condition, not as a limiting impairment, because the record states no PTSD-specific limitation. |
| Disability, regarded as (alternative) | 57, 60, 62, 66, 67, 78 | § 12102(1)(C), (3)(A)–(B) | Pleads the prohibited action (discharge) because of the actual or perceived impairment, with the perception routes (Williams's knowledge, the call-out message, the attempted explanation, Williams's observation). Duration fact (¶ 60) answers the six-month half of "transitory and minor." Gap: no fact shows Chad perceived a mental impairment rather than intoxication; the pleading does not claim he did. |
| Qualified individual | 24–29, 50, 53, 63, 70, 79 | § 12111(8); Holly at 1256 | Gap: essential functions pleaded only as serving the guests at assigned tables (¶ 27). The record supplies nothing more. Add from the client or a job description. No accommodation is pleaded as necessary to qualification; the count pleads she could perform the functions. |
| Employer knowledge | 52, 57, 62, 66, 67, 71, 80 | — | Pleaded actor by actor. Gap: the decision-maker is not identified; the record establishes only that Chad communicated the termination (¶ 69) and that Williams observed (¶ 67). No fact states who received the call-out message. If the decision-maker is known, plead that person's knowledge in Section G. |
| Adverse action: discharge | 69, 81 | § 12112(a) | Established. |
| Causation, but-for | 82–83 | Akridge; Swierkiewicz (no prima facie pleading) | Facts: one-day sequence; the accuser communicated the termination; the HR recipient of the September 2024 disclosure observed the episode; seventeen-year record without significant non-medical history. Gaps the client may fill: whether any reason was stated on April 24 or in any separation or unemployment paper; whether any test for intoxication was done; whether Plaintiff had consumed alcohol. None is pleaded because none is in the record. |
| Damages | 72–73, 85 | § 1981a(a)(2) | Established; pleaded as caused by the termination. |
| Punitive mental state | 84 | § 1981a(b)(1); Kolstad at 535–46 | Pleaded generally with the facts the record has (HR knowledge; HR observation; next-day discharge). Gap: no fact bears on Defendant's policies, training or good-faith compliance efforts; none is invented. |
| Exhaustion and timeliness | 18–20, 22 | § 12117(a); § 2000e-5(e)(1), (f)(1); Morgan; Wilkerson; Gregory | Discharge on or about April 24, 2025 to charge on or about February 17, 2026 = 299 days; day 300 = February 18, 2026. Gap: the charge's filing date is pleaded "on or about" because the record states it that way; obtain the stamped charge. Gap: whether the charge narrative reaches the discharge and the anxiety condition is a document question (Gregory); the pleading states only what the record states (¶ 18). |
Count II — Discrimination through discharge, Fla. Stat. § 760.10(1)(a)
| Element | Paragraphs | Authority | Gap or note |
|---|---|---|---|
| Employer | 12, 13, 89 | § 760.02(7) | Same headcount note as Count I. |
| Handicap, actual; regarded as (alternative) | 51–60, 90–91 | § 760.10(1)(a); Holly at 1255 (same framework) | Count II uses the statutory word "handicap" once and otherwise tracks Count I by cross-reference. No record-of alternative. |
| Qualified | 24–29, 50, 53, 63, 70, 92 | Holly | Same essential-functions gap. |
| Knowledge | 71, 93 | — | Same decision-maker gap. |
| Discharge | 69, 94 | § 760.10(1)(a) | Established. |
| Causation | 94–95 | Holly; Akridge by analogy | Same facts as Count I. |
| Damages; punitive | 96–97 | § 760.11(5) | Mental anguish and loss of dignity pleaded in the statute's words. Punitive demand made "as permitted by section 760.11(5)"; the $100,000 cap is not pleaded (correct). Same good-faith gap. |
| Administrative prerequisites | 18, 20–22 | § 760.11(1), (3), (5) (2026), (7), (8); Woodham | Charge 299 days after discharge (365-day limit). Gap: the August 31, 2026 document is pleaded by the title the record gives it ("Notice of State Rights") and by its date (more than 180 days after filing). The pleading does not state that the FCHR made no determination within 180 days, because the record does not. Obtain the notice: if it is a no-cause determination, § 760.11(7) and Woodham govern the route and the count may fail as pleaded. Note: this action was commenced May 22, 2026, 94 days after the charge; the amendment pleads the later agency events. Address Rule 15(d) in the motion papers, not here. |
Count III — Threat to discharge, intimidation and coercion, Fla. Stat. § 440.205
| Element | Paragraphs | Authority | Gap or note |
|---|---|---|---|
| Employer | 101 | § 440.205 | Established. |
| Protected activity: valid claim for compensation | 32, 102 | § 440.205; Hornfischer at 706; Andrews at 1193 | Claim filed on or about November 7, 2023 for a kitchen injury on or about November 5, 2023; MRI later showed a torn PCL (¶ 44). |
| Prohibited act: threat to discharge; intimidation or coercion | 38, 104, 106 | § 440.205; Chase at 97–98; Juback; Hornfischer ("discharge is not essential") | Both reported statements pleaded together (¶¶ 38, 104). The termination threat is the load-bearing half. Exposure: Defendant will read the "case would be cancelled" sentence as a description of § 440.15(6)'s consequence and the whole exchange as a suitable-employment dispute under Montes de Oca. The record does not state what restrictions applied to Front Desk work on December 6, so ¶ 36 (early return could jeopardize recovery) and ¶ 38 (termination, which § 440.15(6) does not authorize) are the only distinguishing facts pleaded. |
| "By reason of" the claim | 33–36, 39, 103, 106 | Hornfischer (no specific intent, but causation required); Andrews (knowledge required) | Facts: the statement referred to the workers' compensation case; it followed the claim by about one month; it followed repeated return-to-work questioning and Plaintiff's medical-clearance statement. Pleadable at Rule 12. Not more than that. |
| Agency | 15, 105 | — | Williams as Human Resources Representative and management in November–December 2023, in return-to-work communications. |
| Injury | 40–41, 107–108 | Scott (emotional distress recoverable in a discharge action) | Gap: emotional distress from the threat is not in the record and is not pleaded. The only pleaded injury is the knee-pain exacerbation from prolonged standing in the position accepted after the statements. Expect the argument that this is a workers' compensation injury, not § 440.205 damages. The prayer is confined to the injury caused by the Count III conduct; no wages, no fees. |
Counts not pleaded, with the element that fails
| Count | Element that fails on this record |
|---|---|
| ADA / FCRA failure to accommodate | No request identified in the record was denied: the hourly-break request has no pleaded response; the walking-limit request was met with the Reservations reassignment. Every accommodation event predates the charge by more than 365 days, and each is a discrete act (Morgan). |
| ADA / FCRA retaliation | No protected activity is tied to the discharge by knowledge and causation. The call-out message and the attempted explanation on April 23 are disclosures, not requests, as the record states them. If the client's account of April 23 includes a request for time, a break or another adjustment, the count becomes available with one-day proximity, subject to charge scope. |
| § 440.205 retaliatory discharge | Seventeen months between the claim and the discharge; no fact ties the claim to the discharge decision or to any identified decision-maker. |
AFFIRMATIVE-DEFENSE NEGATION MAP
| Anticipated defense | Counts | Facts pleaded against it | Paragraphs | Strength |
|---|---|---|---|---|
| Untimely charge (300 days ADA; 365 days FCRA) | I, II | The discharge date and the charge date are pleaded; the arithmetic is 299 days. The scope paragraph confines Counts I and II to the discharge, so no 2023–2024 act is the "unlawful employment practice" (Morgan). | 18, 23, 69 | Complete on the face, subject to the stamped charge date. |
| Failure to exhaust; discharge outside the charge (Gregory) | I, II | Charge named Defendant and alleged disability discrimination and retaliation. | 18 | Partial. Whether the charge narrative reaches the April 2025 discharge and the anxiety condition is a document question the pleading cannot answer. |
| FCRA prematurity; no-cause routing under § 760.11(7) (Woodham) | II | FCHR notice issued more than 180 days after the charge; conditions precedent alleged generally. | 21–22 | Partial. Depends on the notice's contents. The pleading does not assert the absence of a determination. |
| Transitory and minor (defeats regarded-as only) | I, II | Anxiety and PTSD disclosed before September 2024; medication prescribed September 2024; anxiety present more than six months before April 23, 2025. | 52, 56, 60, 78, 91 | Answers "transitory." "Minor" is answered by the pleaded limits when active (¶¶ 58, 77). |
| Not a qualified individual (intoxication or misconduct) | I, II | About seventeen years; no significant non-medical attendance, disciplinary or performance history; generally managed her anxiety; arrived by the start of service and worked; told the call-out line it was a panic attack; attempted to tell Chad; Williams observed the symptoms. | 26–29, 53, 62–63, 66–67, 79, 92 | Partial. The record does not state that Plaintiff was not intoxicated, so the pleading does not. The accusation stands as Chad's statement, not as a resolved fact. |
| Legitimate non-discriminatory reason (Doc. 28's framing; not an affirmative defense at Rule 12) | I, II | Same facts, plus: the accuser communicated the termination; the HR recipient of the September 2024 disclosure watched the episode; management sent Plaintiff home after the attack. | 64, 67–69, 71, 82, 94 | No reason is pleaded because none is in the record. If a reason was given, plead it so the sequence can be read against it. |
| Punitive good-faith limit (Kolstad) | I, II | The actor with knowledge worked in Human Resources and observed the episode; discharge followed the next day. | 57, 67, 84, 96 | Partial. Nothing in the record addresses policies or training; nothing is pleaded. |
| Suitable-employment dispute under § 440.15(6) (Montes de Oca) | III | Plaintiff told Williams that early return could jeopardize recovery; the statement threatened termination, which § 440.15(6) does not authorize; the statement tied the workers' compensation case to acceptance of the position. | 36, 38, 104, 106 | Partial. The record does not state the restrictions in force on December 6; the pleading does not claim them. |
| Four-year limitations (§ 440.205) | III | Not pleaded; the December 6, 2023 date appears on the face and is inside any four-year period. | 37 | Face of the pleading. |
| Workers' compensation exclusivity | III | Not addressed on the face. | — | A brief question (Scott), not a pleading question. |
| Supplemental-jurisdiction decline (§ 1367(a), (c); Palmer) | II, III | Count II: same discharge as Count I. Count III: knee injury and its sequel intensified the anxiety; Williams in both chains; one chronology pleaded in order. | 6–7, 15, 33–57 | Partial for Count III. The connection is pleaded from the record's own causal statement; whether it satisfies Article III is for the court. |
| Relation back / supplementation (Rule 15(c)(1)(B), 15(d)) | I, II | Not a pleading matter. The motion for leave addresses it. | — | Outside the pleading. |
Confirmation. The pleading pleads the facts in the middle column and never names, argues or anticipates any defense in this table. The scope paragraph (¶ 23) identifies what each count challenges; it does not disclaim the evidentiary use of the 2023–2024 events, which Counts I and II incorporate in full.