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Case 8:19-cv-02529-TPB-AEP Document 40 Filed 07/23/20 Page 1 of 9 PageID 240
`
`STEPHANIE DICKENS,
`
`
`
`v.
`
`PEPPERIDGE FARM
`INCORPORATED,
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`
`Case No. 8:19-cv-2529-T-60AEP
`
`
`
`
`
`/
`
`ORDER GRANTING IN PART AND DENYING IN PART “DEFENDANT’S
`DISPOSITIVE MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED
`COMPLAINT AND INCORPORATED MEMORANDUM OF LAW”
`
`This matter is before the Court on “Defendant’s Dispositive Motion to
`
`Dismiss Plaintiff’s First Amended Complaint and Incorporated Memorandum of
`
`Law,” filed on March 3, 2020. (Doc. 31). Plaintiff responded in opposition to the
`
`motion on March 17, 2020. (Doc. 32). The Court held a hearing to address this
`
`matter on June 24, 2020. (Doc. 39). Upon review of the motion, response, court file,
`
`and record, the Court finds as follows:
`
`Background1
`
`Defendant Pepperidge Farm Incorporated hired Plaintiff Stephanie Dickens
`
`in 2009. In November 2014, Defendant promoted her to the role of General Utility
`
`
`1 The Court accepts the well-pleaded facts in Plaintiff’s amended complaint as true for purposes of
`ruling on the pending motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court
`is not required to accept as true any legal conclusions couched as factual allegations. See Papasan v.
`Allain, 478 U.S. 265, 286 (1986).
`
`
`Page 1 of 9
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`

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`Case 8:19-cv-02529-TPB-AEP Document 40 Filed 07/23/20 Page 2 of 9 PageID 241
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`Worker. According to the allegations in her amended complaint and EEOC
`
`documents, Plaintiff was denied promotion and transfer opportunities in 2016 and
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`2017.
`
`On February 22, 2018, Plaintiff discovered a roach infestation in one of
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`Defendant’s wheat gluten tanks. Plaintiff believed Defendant had violated several
`
`federal regulations mandating that food processing plants implement certain
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`protections against pest infestation and food contamination.2 She informed her
`
`supervisor, but Defendant took no remedial action. However, on April 5, 2018,
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`Plaintiff was suspended and demoted.
`
`On October 11, 2018, Plaintiff met with the EEOC and completed an intake
`
`questionnaire. After the meeting, Plaintiff remained in consistent contact with the
`
`EEOC via email. On April 29, 2019, the EEOC received Plaintiff’s formal charge of
`
`discrimination, and the EEOC issued Plaintiff a right to sue letter on May 1, 2019.
`
`Plaintiff filed her claim in state court on July 29, 2019. Defendant timely
`
`removed the case to this Court under 28 U.S.C. § 1331. On February 18, 2020,
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`Plaintiff filed her amended complaint alleging: (1) retaliation under the Florida
`
`Private Whistleblower Act (“FWA”); (2) gender discrimination under Title VII; (3)
`
`retaliation under Title VII; (4) gender discrimination under the Florida Civil Rights
`
`Act (“FCRA”); and (5) retaliation under the FCRA.
`
`
`
`
`
`
`2 See 21 C.F.R. §§ 117.20, 117.35.
`
`
`Page 2 of 9
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`

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`Case 8:19-cv-02529-TPB-AEP Document 40 Filed 07/23/20 Page 3 of 9 PageID 242
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`Legal Standard
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`Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a
`
`short and plain statement of the claim showing the [plaintiff] is entitled to relief.”
`
`While Rule 8(a) does not demand “detailed factual allegations,” it does require “more
`
`than labels and conclusions, and a formulaic recitation of the elements of a cause of
`
`action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive
`
`a motion to dismiss, factual allegations must be sufficient “to state a claim to relief
`
`that is plausible on its face.” Id. at 570.
`
` When deciding a Rule 12(b)(6) motion, review is generally limited to the four
`
`corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233
`
`(M.D. Fla. 1995). However, the Court “may consider a document attached to a
`
`motion to dismiss … if the attached document is (1) central to the plaintiff's claim
`
`and (2) undisputed.” Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing
`
`Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). Further, federal courts
`
`regularly take judicial notice of government documents, such as EEOC filings, at
`
`the motion to dismiss stage. See, e.g., Smith v. Atl. Beach, No. 3:18-cv-1459-J-
`
`34MCR, 2020 WL 708145, at *1 (M.D. Fla. Feb. 12, 2020); Pettiford v. Diversified
`
`Enter of S. Ga., Inc., No. 7:18-cv-105, 2019 WL 653813, at *2 (M.D. Ga. Feb. 15,
`
`2019); Jones v. Bank of Am., 985 F. Supp. 2d 1320, 1326 (M.D. Fla. 2013). Where
`
`there is a contradiction between the exhibits and the pleadings, the exhibits govern.
`
`See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007).
`
`
`
`
`
`
`
`Page 3 of 9
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`

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`Case 8:19-cv-02529-TPB-AEP Document 40 Filed 07/23/20 Page 4 of 9 PageID 243
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`Analysis
`
`Defendant contends the amended complaint should be dismissed because: (1)
`
`Plaintiff has not exhausted her administrative remedies under Title VII or the
`
`FCRA; and (2) Plaintiff has failed to state a claim as to all counts. The Court
`
`examines these arguments as to each count.
`
`Count I - Retaliation Under the FWA
`
`Defendant argues that Plaintiff has failed to state a claim for retaliation
`
`under the FWA. Under the FWA, “[a]n employer may not take any retaliatory
`
`personnel action against any employee because the employee has … [o]bjected to or
`
`refused to participate in, any activity, policy, or practice of the employer which is a
`
`violation of a law, rule, or regulation.” § 448.102(3), F.S. To state a claim for
`
`retaliation under the FWA, a plaintiff must sufficiently plead that: (1) she objected
`
`to or refused to participate in an illegal activity, policy, or practice of the defendant;
`
`(2) she suffered an adverse employment action; and (3) the adverse employment
`
`action was causally connected to her objection or refusal. Gleason v. Roche
`
`Laboratories, Inc., 745 F. Supp. 2d 1262, 1270 (M.D. Fla. 2010); see Sierminski v.
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`Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000).
`
`Upon review, the Court finds that Plaintiff has sufficiently pled that (1) she
`
`objected to Defendant’s allegedly illegal failure to sufficiently follow federal
`
`regulations protecting against pest infestations and food contamination;3 (2) that
`
`she was demoted; and (3) that her demotion was casually connected to her objection
`
`
`3 Florida courts disagree on the scope of statutory protections under the FWA. The Fourth District
`Court of Appeal requires only that an employee show “a good faith, objectively reasonable basis to
`Page 4 of 9
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`

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`Case 8:19-cv-02529-TPB-AEP Document 40 Filed 07/23/20 Page 5 of 9 PageID 244
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`to Defendant’s failure to comply with federal regulations. Consequently, the motion
`
`to dismiss is denied as to Count I.
`
`Counts II-V: Discrimination & Retaliation Under Title VII & the FCRA
`
`Defendant contends that Counts II-V should be dismissed for several reasons
`
`including (1) that the counts are rife with pleading defects and (2) that Plaintiff
`
`failed to timely exhaust her administrative remedies before filing her claim.
`
`Pleading Defects
`
`Through her EEOC questionnaire, formal charge, and amended complaint,
`
`Plaintiff appears to allege that she was subjected to these unlawful actions by
`
`Defendant:
`
`(1)
`
`(2)
`
`(3)
`
`at some point, Plaintiff was denied a training opportunity by her
`manager;
`once Plaintiff became a General Utility Worker, she was picked
`on and held to a higher standard than her counterparts;
`in 2016 and 2017, Plaintiff was denied promotion and transfer
`opportunities;
`on April 5, 2018, Plaintiff was written up for an issue with a
`machine she was not responsible for, suspended, and demoted;
`and
`at some point after April 5, 2018, Plaintiff was not given a
`promotional opportunity or performance reviews.
`Though Rule 8 does not ask for much, it does require that a plaintiff alleging
`
`(4)
`
`(5)
`
`discrimination or retaliation “include the basic facts” of the claims, including the
`
`
`believe” that her employer was engaged in illegal activity, while “the Second District Court of Appeal
`limits the FWA’s protections to employees who object to actual violations of a law, rule, or
`regulation.” David v. BayCare Health Sys., Inc., No. 8:19-cv-2136-T-60JSS, 2019 WL 6842085, at *2
`(M.D. Fla. Dec. 16, 2019) (Barber, J.). Here, Plaintiff alleges an actual violation of the law, so her
`amended complaint satisfies Rule 8 under either standard.
`Page 5 of 9
`
`
`

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`Case 8:19-cv-02529-TPB-AEP Document 40 Filed 07/23/20 Page 6 of 9 PageID 245
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`pertinent dates of the alleged activity. See, e.g., Laster v. Dollar Gen. Corp., No.
`
`8:12-cv-2685-T-17MAP, 2013 WL 2147556, at *3, *4 (M.D. Fla. May 16, 2013).
`
`Plaintiff’s only allegations that include any dates are: (1) the denial of promotion
`
`and transfer opportunities in 2016 and 2017, and (2) the disciplinary action,
`
`suspension, and demotion on April 5, 2018. To the extent that Plaintiff intends to
`
`seek relief for any other actions, her amended complaint – even when viewed in
`
`consideration of the other facts included in her EEOC documents – fails to satisfy
`
`Rule 8. As such, Counts II-V are due to be dismissed without prejudice.
`
`Exhaustion Requirement
`
`As a prerequisite to bringing claims under Title VII and the FCRA, a plaintiff
`
`must timely file a charge of discrimination. See 42 U.S.C. § 2000e-5; § 760.11, F.S.
`
`“In Florida, a deferral state, Title VII requires charges of discrimination be filed
`
`with the EEOC within 300 days of the discriminatory act. The FCRA requires the
`
`filing of a charge of discrimination with a state commission or the EEOC within 365
`
`days of the alleged discrimination.” Pedrioli v. Barry Univ., Inc., No. 6:17-cv-00577-
`
`Orl-40GJK, 2018 WL 538743, at *2 (M.D. Fla. Jan. 24, 2018) (internal citations
`
`omitted).
`
`The most recent well-pleaded incident in the amended complaint occurred on
`
`April 5, 2018. Under Title VII and the FCRA, Plaintiff “can only file a charge to
`
`cover discrete acts that occurred within the appropriate time period.” See Nat l R.R.
`
`Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). However, Plaintiff alleges
`
`that Defendant’s conduct constitutes a continuing violation. Upon review, the Court
`
`finds that Plaintiff’s allegations describe conduct that the Supreme Court has
`Page 6 of 9
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`
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`

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`Case 8:19-cv-02529-TPB-AEP Document 40 Filed 07/23/20 Page 7 of 9 PageID 246
`
`clearly defined as discrete acts. See id. Accordingly, Plaintiff had to file a charge of
`
`discrimination by January 30, 2019, to preserve her Title VII claims, and by April 5,
`
`2019, to preserve her FCRA claims.4
`
`The EEOC did not receive Plaintiff’s formal charge until April 29, 2019,
`
`which is beyond the deadline for Plaintiff to bring her charges under either Title VII
`
`or the FCRA. For this reason, Plaintiff asks the Court to consider the October 11,
`
`2018, questionnaire as a charge for limitations purposes.
`
`An intake questionnaire may not normally constitute a charge, but a court
`
`may construe a questionnaire as a charge where it: “(1) was verified; (2) contained
`
`the basic information required by a charge under 29 C.F.R. § 1601.12; and (3) the
`
`form's language could reasonably have been interpreted to represent a charge.”
`
`Jones, 985 F. Supp. 2d at 1327-28 (quoting Wilkerson, 270 F.3d at 1320-21); see also
`
`E.E.O.C. v. Summer Classics, Inc., 471 F. App’x 868, 871 (11th Cir. 2012) (quoting
`
`Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 402 (2008)). To read a document as a
`
`charge, an objectively reasonable reader must be able to construe it as an attempt to
`
`“activate the machinery and remedial processes of the EEOC.” Summer Classics,
`
`471 F. App’x at 871 (quoting Holowecki, 552 U.S. at 402). Such as reading is only
`
`possible where the language includes “a request for the agency to take remedial
`
`action ... or settle a dispute between the employer and the employee.” Id.
`
`
`4 In some cases, a court may apply equitable tolling, but doing so is “an extraordinary remedy that
`should be extended only sparingly and is inappropriate when a plaintiff did not file an action
`promptly or failed to act with due diligence.” Brooks v. CSX Transp., Inc., 555 F. App’x 878, 880-81
`(11th Cir. 2014) (quoting Bost v. Fed. Exp. Corp., 372 F.3d 1233, 1241 (11th Cir. 2004)) (internal
`quotations omitted). Plaintiff does not argue that she should be entitled to equitable tolling and thus
`the Court does not consider such relief at this time.
`Page 7 of 9
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`

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`Case 8:19-cv-02529-TPB-AEP Document 40 Filed 07/23/20 Page 8 of 9 PageID 247
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`For example, in Fatz, the plaintiff’s questionnaire met this standard where
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`her questionnaire included: (1) a fax cover page that stated “[p]lease file
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`immediately;” and (2) a checkmark next to a box stating “I want to file a charge of
`
`discrimination, and I authorize the EEOC to look into the discrimination I described
`
`above.” Fatz v. Winn-Dixie Stores, Inc., No. 6:12-cv-1668-Orl-36DAB, 2013 WL
`
`4080330, at *8-9 (M.D. Fla. Aug. 13, 2013).
`
`Here, Plaintiff’s questionnaire cannot be read to request that the EEOC
`
`prepare a charge. In fact, nothing in the questionnaire can be read as a request for
`
`any action by the EEOC. The questionnaire itself calls Plaintiff the “Potential
`
`Charging Party,” Plaintiff did not add anything to the questionnaire which could be
`
`construed as a request by her to treat the questionnaire as a charge, and Plaintiff
`
`later filed a charge of discrimination. See, e.g., Bost v. Fed. Exp. Corp., 372 F.3d
`
`1233, 1241 (11th Cir. 2004). Further, no evidence or well-pleaded fact suggests that
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`there were any misleading communications between Plaintiff and the EEOC that
`
`led her to believe she had satisfied her minimum responsibilities under the law. Id.
`
`As a result, Plaintiff’s questionnaire cannot be treated as a charge, and the Court
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`must instead rely on the formal charge filed on April 29, 2019, which is beyond the
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`deadline under both Title VII and the FCRA.
`
`However, the Court dismisses Counts II-V without prejudice, with leave to
`
`amend. If Plaintiff intends to file an amended complaint, she must attach any
`
`document which she relies upon to show that she has satisfied the exhaustion
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`requirement or, alternatively, that she is entitled to equitable tolling.
`
`
`
`
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`Page 8 of 9
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`

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`Case 8:19-cv-02529-TPB-AEP Document 40 Filed 07/23/20 Page 9 of 9 PageID 248
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`It is therefore
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`ORDERED, ADJUDGED, and DECREED:
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`1. “Defendant’s Dispositive Motion to Dismiss Plaintiff’s First Amended
`
`Complaint and Incorporated Memorandum of Law” (Doc. 31) is
`
`GRANTED IN PART and DENIED IN PART.
`
`2. The motion is GRANTED to the extent that it seeks dismissal of Counts
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`II-V, which are DISMISSED WITHOUT PREJUDICE.
`
`3. The motion is otherwise DENIED.
`
`4. Plaintiff may file an amended complaint on or before August 6, 2020.
`
`Failure to file an amended complaint by the deadline will result in this
`
`Order becoming a final judgment as to Counts II-V. See Auto. Alignment
`
`& Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 719-20
`
`(11th Cir. 2020).
`
`DONE and ORDERED in Chambers, in Tampa, Florida, this 23rd day of
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`July, 2020.
`
`
`
`
`
`
`
`
`TOM BARBER
`UNITED STATES DISTRICT JUDGE
`
`Page 9 of 9
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`

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