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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

KENNETH MCGHEE,

Plaintiff,

vs. CASE NO. 5:10cv279/RS-EMT

HEALTHCARE SERVICES 

GROUP, INC., SOVEREIGN 

HEALTHCARE OF BONIFAY, LLC,

and NANCY HALL,

Defendants.

_________________________________________/

ORDER

Before me is Defendants Nancy Hall and Sovereign Healthcare of Bonifay‟s 

motion to dismiss (Doc. 11). 

I. STANDARD OF REVIEW

In order to overcome a motion to dismiss, a plaintiff must allege enough 

facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). Granting a motion to dismiss is 

appropriate if it is clear that no relief could be granted under any set of facts that 

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could be proven consistent with the allegations of the complaint. Hishon v. King & 

Spalding, 467 U.S. 69, 104 S. Ct. 2229, 2232 (1984). I must construe all 

allegations in the complaint as true and in the light most favorable to the plaintiff. 

Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 

1310 (11th Cir. 2000), citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 

1229 (11th Cir. 1999). 

II. BACKGROUND

Plaintiff was employed by Defendant Healthcare Services Group 

(“Healthcare”). Healthcare was under contract with Defendant Sovereign 

Healthcare of Bonifay (“Bonifay”) as a vendor. Plaintiff‟s position was to oversee 

the cleanliness of the Bonifay facility. Plaintiff‟s wife was employed by Bonifay, 

and in May of 2009 filed a charge of discrimination with the Florida Commission

on Human Rights and the Equal Employment Opportunity Commission, alleging 

that Bonifay discriminated against her on the basis of her disability. Plaintiff 

alleges that in retaliation for his wife‟s protected activity he was terminated by his 

employer, Healthcare, at the request of Defendant Hall and Defendant Bonifay. 

Plaintiff now brings claims against Defendants Bonifay and Hall for tortious 

interference with a business relationship, and a claim against Defendant Bonifay 

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for retaliation. Defendants Hall and Bonifay have moved for dismissal of all 

counts against them.1

III. ANALYSIS

Tortious Interference with a Business Relationship

The elements of tortious interference with a business relationship are: (1) the 

existence of a business relationship, not necessarily evidenced by an enforceable 

contract, under which the plaintiff has legal rights; (2) the defendant‟s knowledge 

of the relationship; (3) an intentional and unjustified interference with the 

relationship by the defendant; and (4) damage to the plaintiff as a result of the 

interference. Salit v. Ruden, 742 So.2d 381, 385 (Fla. 4th DCA 1999). For the 

interference to be “unjustified” under the third element, the interfering defendant 

must be “a third party, a stranger to the business relationship.” Id. at 386. 

Defendants argue that Plaintiff‟s claims for tortious interference should be 

dismissed because Bonifay and Hall are not third parties to the contractual 

relationship between Bonifay and Healthcare; therefore, their interference fails to 

satisfy the third element. See id. However, it is clear from Plaintiff‟s complaint 

that the business relationship with which Plaintiff alleges Defendants interfered is 

the employment relationship between Plaintiff and Healthcare. Bonifay and Hall 

 

1 Defendants‟ motion is entitled “Motion to Dismiss Third Amended Complaint with Prejudice”

and consistently refers to Plaintiff‟s “third amended complaint.” (Doc. 11). Plaintiff has only 

filed one amended complaint (Doc. 8). Therefore, I construe Defendants‟ motion as a motion to 

dismiss Plaintiff‟s first amended complaint.

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were not parties to the employment relationship between Plaintiff and Healthcare, 

and therefore they satisfy the requirement that the interference come from a third 

party to the contract. 

Defendants also allege that Hall was “privileged to interfere” as an employee

of Bonifay. However, this privilege only applies to employees who interfere with 

their employer‟s contract with another. Sloan v. Sax, 505 So.2d 526, 528 (Fla. 3d 

DCA 1987). Again, it is clear that Plaintiff has alleged Hall interfered with his 

employment relationship with Healthcare, not the contract between Healthcare and 

Bonifay. Therefore, because Hall was not an employee of a contracting party, this 

exception does not apply. Dismissal is not warranted on Plaintiff‟s claims of

tortious interference with a business relationship.

Retaliation

Defendants have argued that Plaintiff‟s retaliation claim fails because he did 

not personally participate in the protected activity. Previously, there was a split in 

the circuits on third-party reprisal claims, and the issue had yet to be addressed by 

the Eleventh Circuit. However, the Supreme Court recently addressed this issue in 

Thompson v. North American Stainless, 131 S.Ct. 863 (2011). In Thompson, the 

Supreme Court rejected a categorical rule that third-party reprisals do not violate 

Title VII and held that an employer‟s alleged act of firing an employee in 

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retaliation against that employee‟s fiancée who engaged in protected activity, if 

proven, constituted unlawful retaliation. Thompson at 867-68. 

The Court emphasized that not every person injured by a Title VII violation

could sue: for example, a shareholder could not sue a company for firing a valuable 

employee for racially discriminatory reasons if he could show the value of his 

stock decreased as a consequence. Id. at 869. The Supreme Court adopted the

“zone of interests test,” under which a plaintiff may not sue unless he “falls within 

the „zone of interests‟ sought to be protected by the statutory provision whose 

violation forms the legal basis for his complaint.” Thompson at 870 (citing Lujan 

v. National Wildlife Federation, 497 U.S. 871, 883, 110 S.Ct. 3177 (1990)). 

Applying the “zone of interest” test, the Supreme Court found that the Plaintiff in 

Thompson, as an employee, satisfied the test because the purpose of Title VII is to 

protect employees from their employers‟ unlawful actions. Thompson at 870. In

addition, Thompson was not an accidental victim of the retaliation or merely 

collateral damage of the employer‟s unlawful act. His employer intended to injure 

him to punish the employee who engaged in the protected action. See id.

Defendants argue in their supplemental memorandum (Doc. 21) that 

Thompson does not apply to this case because Plaintiff and his wife were employed 

by different companies, unlike the Plaintiff in Thompson. However, the “zone of 

interest” test set forth by the Supreme Court in Thompson only denies the right of 

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review “if the plaintiff‟s interests are so marginally related to or inconsistent with 

the purposes implicit in the statute it cannot reasonably be assumed that Congress 

intended to permit the suit.” Thompson at 870 (citing Clare v. Securities Industry 

Assn., 479 U.S. 388, 399-400, 107 S.Ct. 750 (1987)). It cannot be said that 

Plaintiff McGhee‟s interests do not satisfy this broad test and are only marginally 

related to the purpose of Title VII, nor assumed that Congress did not intend to 

permit this type of suit. Similar to the plaintiff in Thompson, Plaintiff McGhee

was an employee, and the purpose of Title VII is to protect employees from their

employers‟ unlawful actions. See Thompson at 870. Furthermore, as in

Thompson, Plaintiff alleges he was intentionally injured as a means of punishing

his wife for her protected activity. See id.

Although Plaintiff and his wife were employed by different entities,

Thompson gives no indication that this prohibits recovery. Plaintiff‟s employer

was a subcontractor of Bonifay, and Plaintiff‟s physical workplace was at the

Bonifay facility. The two employers and their employees are clearly intertwined,

and under Plaintiff‟s version of the facts Bonifay used its relationship with

Healthcare to retaliate against Plaintiff‟s wife for her protected activity. Allowing

employers to induce their subcontractors to fire the subcontractor‟s employees in

retaliation for the protected activity of a spouse would clearly contravene the

purpose of Title VII. It is easy to conclude that a reasonable worker might be 

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dissuaded from engaging in protected activity if she knew that her husband would 

be fired by his employer. See Thompson at 868. Therefore, under the test set forth

in Thompson Plaintiff‟s interests fall within the “zone of interests” of those

intended to be protected by Title VII. Thus, Plaintiff has stated a plausible claim

for relief and dismissal of his retaliation claim is not warranted.

IV. CONCLUSION

Defendants‟ motion to dismiss (Doc. 11) is denied.

ORDERED on March 2, 2011.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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