Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 1 of 28 PageID 1
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`
`
`
`
`
`Case No.:
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`
`
`Plaintiff,
`
`
`
`
`MELISA ESQUIVEL,
`
`
`v.
`
`SARASOTA COUNTY PUBLIC
`HOSPITAL DISTRICT d/b/a
`SARASOTA MEMORIAL HOSPITAL,
`and RAE DaPRATO, individually,
`
`Defendants.
`
`
`_______________________________/
`
`
`COMPLAINT AND DEMAND FOR JURY TRIAL
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`
`
`COMES NOW, Plaintiff, MELISA ESQUIVEL, by and through his
`
`undersigned counsel and sues the Defendant, SARASOTA COUNTY PUBLIC
`
`HOSPITAL DISTRICT d/b/a SARASOTA MEMORIAL HOSPITAL
`
`(hereinafter referred to as “SARASOTA MEMORIAL HOSPITAL”) and RAE
`
`DaPRATO, individually and states as follows:
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`JURISDICTION AND VENUE
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`
`
`1.
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`Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331,
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`1367 and 1441(b).
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`
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`Page 1 of 28
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`
`
`
`
`
`Case No.:
`
`
`
`Plaintiff,
`
`
`
`
`MELISA ESQUIVEL,
`
`
`v.
`
`SARASOTA COUNTY PUBLIC
`HOSPITAL DISTRICT d/b/a
`SARASOTA MEMORIAL HOSPITAL,
`and RAE DaPRATO, individually,
`
`Defendants.
`
`
`_______________________________/
`
`
`COMPLAINT AND DEMAND FOR JURY TRIAL
`
`
`
`COMES NOW, Plaintiff, MELISA ESQUIVEL, by and through his
`
`undersigned counsel and sues the Defendant, SARASOTA COUNTY PUBLIC
`
`HOSPITAL DISTRICT d/b/a SARASOTA MEMORIAL HOSPITAL
`
`(hereinafter referred to as “SARASOTA MEMORIAL HOSPITAL”) and RAE
`
`DaPRATO, individually and states as follows:
`
`JURISDICTION AND VENUE
`
`
`
`1.
`
`Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331,
`
`1367 and 1441(b).
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`
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`Page 1 of 28
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`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 2 of 28 PageID 2
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`2.
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`Venue lies within the United States District Court for the Middle
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`District of Florida, Tampa Division because a substantial part of the events
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`giving rise to this claim occurred in this Judicial District and is therefore proper
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`pursuant to 28 U.S.C. 1391(b).
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`PARTIES
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`
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`3.
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`Plaintiff, MELISA ESQUIVEL, is a resident of Sarasota County,
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`Florida. At all times material, Plaintiff was an employee of Defendant within
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`the meaning of the Family and Medical Leave Act (FMLA), the Americans with
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`Disabilities Act (ADA), and the Florida Civil Rights Act (FCRA).
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`4.
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`Defendant, SARASOTA COUNTY PUBLIC HOSPITAL DISTRICT
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`d/b/a SARASOTA MEMORIAL HOSPITAL, is an independent special district
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`created and chartered by the laws of the State of Florida, authorized and doing
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`business in this Judicial District.
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` At all times material, SARASOTA
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`MEMORIAL HOSPITAL employed Plaintiff, MELISA ESQUIVEL. At all times
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`material, SARASOTA MEMORAL HOSPITAL employed the requisite number
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`of employees and, therefore, is an employer as defined by the FMLA, ADA,
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`and FCRA.
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`5.
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`Defendant, RAE DaPRATO, is a resident of Manatee County,
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`Florida.
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`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 3 of 28 PageID 3
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`GENERAL ALLEGATIONS
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`
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`6.
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`At all times material, Defendants acted with malice and reckless
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`disregard for Plaintiff’s federal and state protected rights.
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`
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`7.
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`At all times material, Plaintiff was qualified to perform her job
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`duties within the legitimate expectations of her employer.
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`
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`8.
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`Plaintiff has retained the undersigned counsel to represent her in
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`this action and is obligated to pay them a reasonable fee for their services.
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`9.
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`Plaintiff requests a jury trial for all issues so triable.
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`ADMINISTRATIVE PREREQUISITES
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`10. On October 6, 2020, Plaintiff
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`timely filed a Charge of
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`Discrimination with the Equal Employment Opportunity Commission
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`(“EEOC”) and the Florida Commission on Human Relations (“FCHR”).
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`11. On August 18, 2021, the EEOC issued a Notice of Right to Sue
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`related to Plaintiff’s Charge of Discrimination. This Complaint has been filed
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`within ninety (90) days of the issuance of the Dismissal and Notice of Rights;
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`therefore, Plaintiff has met all conditions precedent to filing this Complaint.
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`
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`12.
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`Plaintiff has satisfied all conditions precedent,
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`therefore
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`jurisdiction over this claim is appropriate pursuant to Chapter 760, Florida
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`Page 3 of 28
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`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 4 of 28 PageID 4
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`Statutes, because more than one-hundred and eighty (180) days have passed
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`since the filing of the Charge.
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`
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`13. On February 8, 2021, pursuant to §768.28, Florida Statutes, Plaintiff
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`served her Notice of Claim on the Florida Department of Financial Services, as
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`well as Defendant Sarasota Memorial Hospital related to her negligence claims
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`against Defendant Sarasota Memorial Hospital.
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`
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`14. More than six (6) months have passed since Plaintiff served her
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`Notice on Defendant Sarasota Memorial Hospital; therefore, Plaintiff has
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`satisfied all conditions precedent pursuant to §768.28(6)(d), Florida Statutes.
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`FACTUAL ALLEGATIONS
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`
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`15. On or about August 13, 2018, Plaintiff began her employment with
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`Defendant Sarasota Memorial Hospital as a full-time Administrative Assistant
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`in Defendant’s Risk Management Department. Plaintiff was told that the plan
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`in the department was for Plaintiff to replace the full-time Risk Management
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`Legal Data Specialist, Betsy Niemczak, when Niemczak retired.
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`
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`16.
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`Plaintiff worked in Defendant’s (Sarasota Memorial Hospital) Risk
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`Management department along with seven (7) other employees.
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`17. On or about March 31, 2019, Niemczak retired after approximately
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`26 years of service with Defendant Sarasota Memorial Hospital. For the
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`majority of that time, Niemczak was the only Legal Data Specialist in
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`Defendant’s Risk Management Department.
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`18. Upon Niemczak’s retirement, Plaintiff became the new full-time
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`Legal Data Specialist.
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`19.
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`In or around July 2019, Niemczak came out of retirement and
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`returned to Defendant’s (Sarasota Memorial Hospital) Risk Management
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`department as a part-time Legal Data Specialist.
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`
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`20. On October 15, 2019, Plaintiff was assaulted and battered by her
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`supervisor, Defendant Rae DaPrato (Director, Risk Management).
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` In
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`particular, DaPrato, while attempting to discipline Plaintiff, forcibly grabbed
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`Plaintiff’s left hand and wrist, pointed at Plaintiff and yelled: “you listen to me,
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`I am your boss, and you will do what I tell you to do and change it.” Plaintiff’s
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`wrist was left discolored and in pain.
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`
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`21.
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`This was not Defendant DaPrato’s first assault and battery of an
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`employee during her employment with Defendant Sarasota Memorial
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`Hospital. For example, on one occasion, Defendant DaPrato grabbed an
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`employee by the arm and left bruises.
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`22. On October 16, 2019, Plaintiff reported DaPrato’s behavior to
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`Susan Curran and Conra Frazier in Defendant’s (Sarasota Memorial Hospital)
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`Human Resources department.
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`
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`23. When Plaintiff returned to the Risk Management department after
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`making her complaint to Human Resources, DaPrato was waiting and
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`demanded that Plaintiff meet with her behind closed doors. Plaintiff agreed to
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`meet but requested that the meeting take place in the conference room with the
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`door opened. At first, DaPrato agreed, but then closed the conference room
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`door when she entered and stated to Plaintiff: “what are you pissed off about?”
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`Plaintiff asked DaPrato to open the door. DaPrato refused and continued
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`raising her voice at Plaintiff. At that point, Plaintiff exited the room into the
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`hallway. DaPrato demanded that Plaintiff return to the conference room and
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`close the door. Plaintiff refused and sought a manager to be a witness for the
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`meeting.
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`24.
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`Following the second incident with DaPrato, Plaintiff again
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`contacted Human Resources and informed them of the situation.
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`25.
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`Plaintiff was placed on paid leave by Defendant Sarasota
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`Memorial Hospital pending its investigation into the matter.
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`26. While Plaintiff was on leave, Frazier informed Plaintiff that several
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`employees articulated complaints about DaPrato during Frazier’s investigation
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`into the matter.
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`27. On or about November 1, 2019, Plaintiff filed a complaint with
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`Defendant’s (Sarasota Memorial Hospital) Public Safety Department. Plaintiff
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`requested a copy of the signed complaint but was denied.
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`
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`28. Despite DaPrato’s history of violent and inappropriate workplace
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`behavior, Defendant Sarasota Memorial Hospital did not terminate her
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`employment. Nevertheless, Defendant’s (Sarasota Memorial Hospital) CEO
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`David Verinder released a statement on Defendant’s (Sarasota Memorial
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`Hospital) Facebook page that read in part: “We reject and condemn any form
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`of violence, discrimination, racism, intolerance and inequality. We believe that
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`everyone has a right to feel safe where they live and work.”
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`
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`29. On February 13, 2020, Plaintiff fell ill while at work for Defendant
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`Sarasota Memorial Hospital. Plaintiff’s co-worker, Joanne Scovil (Registered
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`Nurse), took Plaintiff to Defendant’s (Sarasota Memorial Hospital) emergency
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`room in a wheelchair to be assessed due to pain in Plaintiff’s head.
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`
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`30. Hours later, Plaintiff was diagnosed with a brain aneurysm and
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`severe hypokalemia. Plaintiff was immediately hospitalized.
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`31. On February 14, 2020, Plaintiff was unable to work; therefore,
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`Plaintiff contacted DaPrato and informed DaPrato that she was hospitalized
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`and would follow up as soon as she knew the prognosis.
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`
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`32. On February 17, 2020, Plaintiff emailed Loretta Ehlers (LOA –
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`Benefits), informed Ehlers that she was admitted to the hospital on February
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`13, 2020 for a critical medical condition and requested medical leave forms.
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`Plaintiff also spoke with DaPrato and informed DaPrato that she would need
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`to take FMLA leave and that she was in the process of completing the
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`paperwork with Ehlers.
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`
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`33. On February 27, 2020, Plaintiff had her first brain procedure in
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`which Plaintiff’s Interventional Neuroradiologist attempted to coil the
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`aneurysm but had to abort the procedure while performing the embolization
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`because the risk of rupture was too high at the time. The same day, Plaintiff’s
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`Interventional Neuroradiologist submitted a Certification of Health Care
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`Provider on behalf of Plaintiff. In the Certification, Plaintiff’s physician noted
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`that Plaintiff would have to miss work in the future due to follow-up
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`procedures at 6 months and 2 years.
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`34.
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`Plaintiff’s FMLA leave was approved beginning February 13, 2020
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`and was later extended until April 1, 2020.
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`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 9 of 28 PageID 9
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`35. While Plaintiff was on FMLA leave, Niemczak and Allison Bailey
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`(Administrative Assistant) covered Plaintiff’s job duties and responsibilities.
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`36. On March 5, 2020, Plaintiff had her second brain procedure and
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`was admitted to Defendant’s (Sarasota Memorial Hospital) ICU following the
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`procedure.
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`37. On or about March 9, 2020, Cheryl Roberts became the new
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`Director of Risk Management at Defendant Sarasota Memorial Hospital.
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`
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`38. On or about March 31, 2020, Defendant DaPrato retired from her
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`employment with Defendant Sarasota Memorial Hospital. However, DaPrato
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`continued to work for Defendant Sarasota Memorial Hospital and was
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`compensated by Defendant Sarasota Memorial Hospital into May 2020, if not
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`longer.
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`39. On April 1, 2020, Plaintiff reported to work, but was unable to
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`complete the workday due to her serious health condition. Roberts instructed
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`Plaintiff to go to the emergency room since Plaintiff did not look well. Plaintiff
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`declined due to the threat of COVID-19. Instead, Plaintiff treated with
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`paramedics at her home and then with her doctor, who ordered further testing.
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`40. On April 3, 2020, Plaintiff’s physician provided Defendant
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`Sarasota Memorial Hospital a note stating that Plaintiff should be excused from
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`work until April 14, 2020.
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`
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`41. On April 8, 2020, Plaintiff emailed Ehlers and asked if Ehlers
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`received Plaintiff’s doctor’s note related to her medical leave and asked if they
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`could discuss Plaintiff’s Short Term Disability paperwork. Ehlers did not
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`respond.
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`42. On April 10, 2020, Plaintiff sent Ehlers a follow-up email and noted
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`that she also needed to speak with Ehlers regarding continuation of Plaintiff’s
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`health insurance. Ehlers did not respond.
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`43. On April 13, 2020, Plaintiff followed up with Ehlers again. In her
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`email, Plaintiff noted that she spoke with Cheryl Roberts the week prior and
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`explained to Roberts that she was not cleared to return to work and had her
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`leave extended due to her health condition and the need for further testing.
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`Plaintiff again requested information regarding her health insurance and noted
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`her concern that it would lapse.
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`44. On April 14, 2020, Ehlers finally responded and confirmed
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`Plaintiff’s FMLA leave was extended through April 28, 2020.
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`45. On April 28, 2020, Plaintiff contacted Roberts, but Roberts was not
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`available.
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`46. On April 29, 2020, Plaintiff again contacted Roberts, but she was
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`unavailable. Plaintiff spoke with her co-worker, Allison Bailey who told
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`Plaintiff that she would send Roberts a text message reminder to contact
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`Plaintiff. Plaintiff told Bailey that the purpose of her calls was to inform Roberts
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`that she was cleared to return to work.
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`47. On April 29, 2020, Plaintiff’s doctor provided Defendant a return-
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`to-work letter indicating that Plaintiff could return to work for Defendant
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`Sarasota Memorial Hospital on May 4, 2020.
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`
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`48. On April 29, 2020, Lupe (Maria) Manzo (Employee Health
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`Services) emailed Plaintiff and requested that Plaintiff complete Defendant’s
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`(Sarasota Memorial Hospital) Return to Work document that included a
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`requirement that Plaintiff provide Defendant Sarasota Memorial Hospital with
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`a list of medications Plaintiff was taking. Manzo told Plaintiff that it was
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`required for all employees returning to work who missed 40 hours or more.
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`49. On April 30, 2020, Manzo emailed Plaintiff and stated: “I spoke
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`with John Shirk in HR, he needs me to clear you, to be able to do what he’s
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`working on.”
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` 50. Plaintiff did not receive a return call from Roberts until April 30,
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`2020.
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`51. During the April 30, 2020 call, Roberts told Plaintiff that she could
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`not return to work because she was placed on furlough by Defendant Sarasota
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`Memorial Hospital. Plaintiff asked when she was placed on furlough and
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`Roberts told Plaintiff that she made the decision early in the month of April and
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`had a letter but did not inform Plaintiff because she did not know the status of
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`Plaintiff’s health and was not sure when Plaintiff was returning. Roberts
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`further stated that she would send Plaintiff an email with the furlough
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`information.
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`52.
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` During the phone call with Roberts, Plaintiff asked if she was the
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`only employee chosen for furlough in the department and Roberts confirmed
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`that she was. Roberts further told Plaintiff that the furlough should only last
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`until the end of May 2020 and Plaintiff could hopefully return to work on June
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`1, 2020.
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`53. On April 30, 2020, Roberts emailed Plaintiff, stating: “The
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`pandemic has had a devastating financial impact on the organization and
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`patient volumes. Our department along with every other department has had
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`to reduce hours to meet the decrease in patient volumes and reduce cost.”
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`Page 12 of 28
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`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 13 of 28 PageID 13
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`Attached to Roberts’ email was a furlough letter dated April 13, 2020, stating
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`that Plaintiff’s position was being furloughed beginning May 1, 2020.
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`54. Confused, Plaintiff emailed Roberts asking if she could have a
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`furlough notice dated April 30, 2020 since this was the first date in which
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`Plaintiff was notified of the furlough.
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`55.
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`Plaintiff was then provided a Notice of Furlough dated April 30,
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`2020 stating that Plaintiff’s furlough began May 4, 2020.
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`56. On May 18, 2020, Roberts and Conra Frazier (Senior Employee
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`Relations Consultant, Human Resources) called Plaintiff notified Plaintiff that
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`she was terminated from her employment Defendant Sarasota Memorial
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`Hospital. Frazier stated that it was due to budget cuts in the department; yet
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`Frazier noted that the Risk Management department was planning to hire a
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`new employee. Frazier further told Plaintiff that her benefits would end on
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`May 31, 2020 and an email would follow after the call, which would include a
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`severance offer.
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`57.
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`Plaintiff was never offered the option of remaining on furlough,
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`accepting a temporary reduction in pay, or transitioning her position to part-
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`time.
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`58.
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` At the time of Plaintiff’s termination, Human Resources and
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`Plaintiff’s supervisors were aware that Plaintiff would require future FMLA
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`and/or medical leaves for her serious health condition, including brain
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`procedures every other year for the rest of Plaintiff’s life.
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`59. On May 19, 2020, Plaintiff applied for an Administrative Assistant
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`position at SMH Bayside behavioral unit. Despite being qualified for the
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`position, Plaintiff was not granted an interview.
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`60.
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` On June 9, 2020, Frazier finally emailed Plaintiff the proposed
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`Severance and General Release, which was dated May 18, 2020.
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`61.
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`The Severance Letter stated that Plaintiff was terminated because
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`“the restructuring of your department has resulted in the elimination of your
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`position . . .” and “SMHCS has determined that it will not be necessary for you
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`to continue your current role as Risk Management Legal Data Specialist in the
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`System’s Risk Management department.” The letter further stated that
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`Plaintiff’s separation date was May 29, 2020 and that Plaintiff would remain on
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`furlough until then.
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`62. Moreover, the Severance Letter encouraged Plaintiff to meet with
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`Defendant’s (Sarasota Memorial Hospital) Benefits department to review
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`which benefit plans could be continued through the Consolidated Omnibus
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`Budget Reconciliation Act (COBRA).
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`63. On June 9, 2020, Plaintiff emailed Frazier and informed her that
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`she picked up her personal belongings and items were missing, including an
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`expensive pair of Apple AirPods.
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`64. Defendant Sarasota Memorial Hospital failed to timely provide
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`Plaintiff with COBRA paperwork and, since Plaintiff’s health insurance
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`expired, Plaintiff has had to stop important medical care that she needs.
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`65. On June 23, 2020, Roberts emailed Plaintiff and stated that
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`Defendant Sarasota Memorial Hospital would replace the Apple AirPods, but
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`Plaintiff would have to purchase them and submit the receipt to Defendant for
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`reimbursement. On June 29, 2020, Plaintiff emailed Roberts the receipts of
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`purchase for the missing AirPods and for Plaintiff’s missing personal calendar.
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`On July 7, 2020, Defendant Sarasota Memorial Hospital returned Plaintiff’s
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`AirPods and sent Plaintiff a reimbursement check for the personal agenda.
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`66. On June 24, 2020, Plaintiff emailed her resume to the medical staff
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`department manager for consideration of the open Credentialing Analyst
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`position. Despite Plaintiff being qualified for the position, she was not granted
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`an interview.
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`COUNT I
`FAMILY AND MEDICAL LEAVE ACT – INTERFERENCE
`(As to Defendant Sarasota Memorial Hospital)
`
`Plaintiff, MELISA ESQUIVEL, realleges and adopts, as if fully set
`
`67.
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`
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`forth herein, the allegations stated in Paragraphs one (1) through sixty-six (66).
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`
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`68.
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`Plaintiff is an individual entitled to protection under the Family
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`and Medical Leave Act (FMLA), 29 U.S.C. §2601, et seq.
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`
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`69.
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`Plaintiff is an eligible employee within the meaning of the FMLA
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`because Plaintiff worked for Defendant Sarasota Memorial Hospital for twelve
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`(12) months, had at least 1,250 hours of service for the Defendant during twelve
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`(12) months immediately preceding her FMLA leave qualification, and worked
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`at a location where the Defendant had at least fifty (50) employees within
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`seventy-five (75) miles.
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`
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`70. Defendant Sarasota Memorial Hospital is a covered employer
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`under the FMLA in that it had fifty (50) or more employees in twenty (20) or
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`more work weeks in the current or preceding calendar year.
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`
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`71.
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`Plaintiff suffered from a serious health condition within the
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`meaning of the FMLA.
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`
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`72. Defendant’s (Sarasota Memorial Hospital) actions interfered with
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`Plaintiff’s lawful exercise of her FMLA rights. Specifically, Defendant failed to
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`restore Plaintiff to her position with Defendant or a substantially equivalent
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`position.
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`73. Defendant’s actions constitute a violation of the FMLA.
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`74. As a result of Defendant’s unlawful actions, Plaintiff has suffered
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`damages.
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`WHEREFORE, Plaintiff prays for the following damages against
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`Defendant Sarasota Memorial Hospital:
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`a.
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`b.
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`c.
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`Back pay and benefits;
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`Prejudgment interest on back pay and benefits;
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`Front pay and benefits;
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`d.
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`Liquidated damages;
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`e.
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`f.
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`Attorneys’ fees and costs;
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`Injunctive relief; and
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`g.
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`For any other relief this Court deems just and equitable.
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`COUNT II
`FAMILY AND MEDICAL LEAVE ACT -- RETALIATION
`(As to Defendant Sarasota Memorial Hospital)
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`Plaintiff, MELISA ESQUIVEL, realleges and adopts, as if fully set
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`75.
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`forth herein, the allegations stated in Paragraphs one (1) through sixty-six (66).
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`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 18 of 28 PageID 18
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`76. Defendant Sarasota Memorial Hospital retaliated against Plaintiff
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`in violation of the FMLA in that Plaintiff’s utilization of FMLA leave was a
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`substantial or motivating factor that prompted Defendant to:
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`a.
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`b.
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`c.
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`furlough Plaintiff;
`
`terminate Plaintiff’s employment;
`
`deny Plaintiff notice under COBRA; and
`
`d.
`
`fail to hire Plaintiff;
`
`
`
`77. Defendant’s actions constitute violations of the FMLA.
`
`78. As a result of Defendant’s (Sarasota Memorial Hospital) actions
`
`Plaintiff has suffered damages.
`
`
`
`WHEREFORE, Plaintiff prays for the following damages against
`
`Defendant Sarasota Memorial Hospital:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`a.
`
`b.
`
`c.
`
`Back pay and benefits;
`
`Prejudgment interest on back pay and benefits;
`
`Front pay and benefits;
`
`d.
`
`Liquidated damages;
`
`e.
`
`f.
`
`Attorneys’ fees and costs;
`
`Injunctive relief; and
`
`g.
`
`For any other relief this Court deems just and equitable.
`
`Page 18 of 28
`
`
`
`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 19 of 28 PageID 19
`
`COUNT III
`AMERICANS WITH DISABILITIES ACT – DISCRIMINATION
`(As to Defendant Sarasota Memorial Hospital)
`
`Plaintiff, MELISA ESQUIVEL, realleges and adopts, as if fully set
`
`79.
`
`
`
`forth herein, the allegations stated in Paragraphs one (1) through sixty-six (66).
`
`
`
`80.
`
`Plaintiff is an individual entitled to protection under the
`
`Americans with Disabilities Act, as amended, 42 U.S.C. §12112 et seq.
`
`
`
`81.
`
`Plaintiff is an employee within the meaning of the Americans with
`
`Disabilities Act, as amended.
`
`
`
`82.
`
`Plaintiff is an individual with a disability within the meaning of
`
`the Americans with Disabilities Act, as amended. Specifically, Plaintiff’s brain
`
`aneurysm and severe hypokalemia substantially limited one or more major life
`
`activities (e.g., working, concentrating, thinking, communicating) and major
`
`bodily functions (e.g., neurological, muscular, cellular, and vascular).
`
`
`
`83.
`
`Plaintiff was a qualified individual with a disability within the
`
`meaning of the Americans with Disabilities Act, as amended, because Plaintiff,
`
`with or without a reasonable accommodation, could perform the essential
`
`functions of her job.
`
`
`
`84.
`
`By the conduct described above, Defendant Sarasota Memorial
`
`Hospital engaged in unlawful employment practices and discriminated against
`
`
`
`Page 19 of 28
`
`
`
`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 20 of 28 PageID 20
`
`Plaintiff on account of her known disability, and/or because Defendant
`
`regarded her as having a disability, and/or because of Plaintiff’s record of
`
`having a disability in violation of the Americans with Disabilities Act, as
`
`amended. Specifically, Defendant:
`
`
`
`
`
`
`
`(a)
`
`furloughed Plaintiff;
`
`(b)
`
`terminated Plaintiff’s employment;
`
`(c)
`
`deny Plaintiff notice under COBRA; and
`
`(d)
`
`failed to hire Plaintiff.
`
`85.
`
`The above-described acts of disability discrimination constitute a
`
`violation of the Americans with Disabilities Act, as amended, for which
`
`Defendant Sarasota Memorial Hospital is liable.
`
`
`
`86. Defendant’s
`
`(Sarasota Memorial Hospital) unlawful and
`
`discriminatory employment practices toward Plaintiff were intentional.
`
`
`
`87. Defendant’s
`
`(Sarasota Memorial Hospital) unlawful and
`
`discriminatory employment practices were done with malice or with reckless
`
`indifference to the federal-protected rights of Plaintiff.
`
`
`
`88. As a result of Defendant’s (Sarasota Memorial Hospital) unlawful
`
`discrimination, Plaintiff has suffered and continues to suffer damages.
`
`
`
`Page 20 of 28
`
`
`
`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 21 of 28 PageID 21
`
`
`
`WHEREFORE, Plaintiff prays for the following damages against
`
`Defendant Sarasota Memorial Hospital:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`a.
`
`b.
`
`c.
`
`d.
`
`
`e.
`
`f.
`
`g.
`
`h.
`
`Back pay and benefits;
`
`Prejudgment interest on back pay and benefits;
`
`Front pay and benefits;
`
`Compensatory damages for emotional pain and suffering,
`inconvenience, loss of enjoyment of life and humiliation;
`
`Punitive damages;
`
`Attorneys’ fees and costs;
`
`Injunctive relief; and
`
`For any other relief this Court deems just and equitable.
`
`COUNT IV
`FLORIDA CIVIL RIGHTS ACT – DISABILITY/HANDICAP
`DISCRIMINATION
`(As to Defendant Sarasota Memorial Hospital)
`
`Plaintiff, MELISA ESQUIVEL, realleges and adopts, as if fully set
`
`89.
`
`forth herein, the allegations stated in Paragraphs one (1) through sixty-six (66).
`
`90.
`
`Plaintiff is an individual entitled to protection under the Florida
`
`Civil Rights Act, Chapter 760, Florida Statutes.
`
`
`
`91.
`
`Plaintiff is an employee within the meaning of the Florida Civil
`
`Rights Act.
`
`
`
`Page 21 of 28
`
`
`
`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 22 of 28 PageID 22
`
`
`
`92.
`
`Plaintiff is an individual with a disability/handicap within the
`
`meaning of the Florida Civil Rights Act. Specifically, Plaintiff’s brain aneurysm
`
`and severe hypokalemia substantially limited one or more major life activities
`
`(e.g., working, concentrating, thinking, communicating) and major bodily
`
`functions (e.g., neurological, muscular, cellular, and vascular).
`
`
`
`93.
`
`Plaintiff was a qualified individual with a disability within the
`
`meaning of the Florida Civil Rights Act, because Plaintiff, with or without a
`
`reasonable accommodation, could perform the essential functions of her job.
`
`
`
`94.
`
`By the conduct described above, Defendant Sarasota Memorial
`
`Hospital has engaged in unlawful employment practices and discriminated
`
`against Plaintiff on account of her known disability, and or because Defendant
`
`regarded her as having a disability, and/or because of Plaintiff’s record of
`
`having a disability in violation of the Florida Civil Rights Act. Specifically,
`
`Defendant:
`
`(a)
`
`furloughed Plaintiff;
`
`(b)
`
`terminated Plaintiff’s employment;
`
`(c)
`
`deny Plaintiff notice under COBRA; and
`
`(d)
`
`failed to hire Plaintiff.
`
`
`
`Page 22 of 28
`
`
`
`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 23 of 28 PageID 23
`
`
`
`95.
`
`The above-described acts of disability discrimination constitute a
`
`violation of the Florida Civil Rights Act, for which Defendant Sarasota
`
`Memorial Hospital is liable.
`
`
`
`96. Defendant’s
`
`(Sarasota Memorial Hospital) unlawful and
`
`discriminatory employment practices toward Plaintiff were intentional.
`
`
`
`97. Defendant’s
`
`(Sarasota Memorial Hospital) unlawful and
`
`discriminatory employment practices were done with malice or with reckless
`
`indifference to the state-protected rights of Plaintiff.
`
`
`
`98. As a result of Defendant’s (Sarasota Memorial Hospital) unlawful
`
`discrimination, Plaintiff has suffered and continues to suffer damages.
`
`
`
`WHEREFORE, Plaintiff prays for the following damages against
`
`Defendant Sarasota Memorial Hospital:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`a.
`
`b.
`
`c.
`
`d.
`
`
`e.
`
`f.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Back pay and benefits;
`
`Prejudgment interest on back pay and benefits;
`
`Front pay and benefits;
`
`Compensatory damages for emotional pain and suffering,
`inconvenience, loss of enjoyment of life and humiliation;
`
`Punitive damages;
`
`Attorneys’ fees and costs;
`
`Page 23 of 28
`
`
`
`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 24 of 28 PageID 24
`
`
`
`
`
`
`
`g.
`
`h.
`
`Injunctive relief; and
`
`For any other relief this Court deems just and equitable.
`
`COUNT V
`NEGLIGENT SUPERVISION/NEGLIGENT RETENTION
`(As to Defendant Sarasota Memorial Hospital)
`
`Plaintiff, MELISA ESQUIVEL, realleges and adopts, as if fully set
`
`99.
`
`forth herein, the allegations stated in Paragraphs one (1) through sixty-six (66).
`
`
`
`100. Defendant Sarasota Memorial Hospital knew, or in the exercise of
`
`reasonable care, should have known during Defendant Rae DaPrato’s course
`
`of employment with Defendant Sarasota Memorial Hospital of problems with
`
`DaPrato that indicated her unfitness and/or unsuitability as an employee,
`
`agent and/or servant of Defendant Sarasota Memorial Hospital.
`
`
`
`101. Such problems included but are not limited to prior employee
`
`complaints about DaPrato for inappropriate physical behavior.
`
`
`
`102. Defendant Sarasota Memorial Hospital negligently failed to take
`
`further action such as investigating, discharging, or reassigning DaPrato
`
`during the course of her employment, agency and/or service with Defendant
`
`Sarasota Memorial Hospital.
`
`
`
`103. Defendant Sarasota Memorial Hospital owed a duty to Plaintiff to
`
`exercise reasonable care in retaining competent, reliable and safe employees
`
`
`
`Page 24 of 28
`
`
`
`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 25 of 28 PageID 25
`
`who Defendant Sarasota Memorial Hospital knew or should have known
`
`would be suitable to supervise, associate with and work alongside its
`
`employees.
`
`
`
`104. Defendant Sarasota Memorial Hospital breached its duty to
`
`Plaintiff and others similarly situated to exercise reasonable care in retaining
`
`competent, reliable and safe persons by failing to exercise reasonable care in
`
`retaining Rae DaPrato, by failing to institute and/or enforce policies and/or
`
`procedures to properly investigate her background when it knew, or in the
`
`exercise of reasonable care, should have known, she would be unsuitable to
`
`supervise, associate with and work alongside its employees.
`
`
`
`105.
`
`It was reasonably foreseeable to Defendant Sarasota Memorial
`
`Hospital that its negligence in retaining Rae DaPrato would pose a danger to
`
`persons such as Plaintiff and others similarly situated.
`
`
`
`106. As a direct and proximate result of the negligence of Defendant
`
`Sarasota Memorial Hospital, Plaintiff has suffered damages, including, but not
`
`limited to:
`
`
`
`
`
`
`
`a.
`
`b.
`
`c.
`
`
`
`
`
`
`
`
`
`Pain, suffering, anguish, and severe emotional distress;
`
`Embarrassment;
`
`Humiliation;
`
`Page 25 of 28
`
`
`
`Case 8:21-cv-02686 Document 1 Filed 11/15/21 Page 26 of 28 PageID 26
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`d.
`
`Loss of capacity for the enjoyment of life;
`
`e.
`
`f.
`
`g.
`
`h.
`
`i.
`
`j.
`
`Inconvenience;
`
`Loss of employment opportunities;
`
`Loss or diminution of income and employment benefits;
`
`Loss of dignity;
`
`Damage to reputation; and
`
`other non-pecuniary
`
`losses
`
`for which compensatory
`
`damages should be awarded.
`
`WHEREFORE, Plaintiff demands entry of judgment against Defendant
`
`Sarasota Memorial Hospital for compensatory damages, costs, and any other
`
`and further relief that this Court deems just and proper.
`
`COUNT VI
`ASSAULT AND BATTERY
`(As to Defendant Rae DaPrato)
`
`
`
`
`107. Plaintiff, MELISA ESQUIVEL, realleges and adopts, as if full
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