`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`STEPHANIE DICKENS,
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`Plaintiff,
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`v.
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`PEPPERIDGE FARM INCORPORATED,
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` Case No. 19-cv-02529
`Dispositive Motion
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`Defendant.
`_____________________________________________/
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`DEFENDANT’S PARTIAL MOTION TO DISMISS COUNTS II AND III OF
`PLAINTIFF’S THIRD AMENDED COMPLAINT AND INCORPORATED
`MEMORANDUM OF LAW
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`Defendant, Pepperidge Farm Incorporated (“Defendant”), by and through
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`its undersigned counsel and pursuant to F.R.C.P. 12(b), hereby moves to dismiss
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`Counts II and III of the Third Amended Complaint filed by Plaintiff, Stephanie
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`Dickens (“Plaintiff”) on March 8, 2021 [Dkt. 89]. In support, Defendant submits the
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`following memorandum of law and states:
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`I.
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`BACKGROUND AND PROCEDURAL HISTORY
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`A. The Original Complaint.
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`On July 29, 2019, Plaintiff filed a five-count Complaint (the “Original
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`Complaint”) [Dkt. 1] against Defendant alleging retaliation under the Florida
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`Private Whistleblower’s Act (“FPWA”) as well as gender discrimination and
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`retaliation under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”)
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`Page 1 of 17
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`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 2 of 23 PageID 470
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`and the Florida Civil Rights Act (“FCRA”). Specifically, Count I of the Original
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`Complaint alleged retaliation under the FPWA. Count II alleged gender
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`discrimination under Title VII. Count III alleged retaliation under Title VII. Count
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`IV alleged gender discrimination under the FCRA. Count V alleged retaliation
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`under the FCRA.
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`In response to the Original Complaint, Defendant filed a Motion to Dismiss
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`(the “First Motion to Dismiss”) on November 4, 2019, asserting that, among other
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`deficiencies, the Plaintiff failed to exhaust her administrative remedies prior to
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`filing Plaintiff’s Title VII and FCRA Claims, rendering the claims time-barred.
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`[Dkt. 7]
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`On December 6, 2019, Plaintiff moved to amend her Original Complaint (the
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`“Motion to Amend”), which amendment was nearly indistinguishable from the
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`Original Complaint. [Dkts. 17; 17-1] Accordingly, Defendant opposed the
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`amendment as futile. [Dkt. 20]
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`On January 16, 2020, the Court held a hearing on the Motion to Amend. At
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`the hearing, Plaintiff represented that she had one or more documents potentially
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`proving that she had filed a timely charge of discrimination with the EEOC. [Tr. of
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`Mot. Hr’g 7:3–18; 10:4–25, January 16, 2020] The Court granted Plaintiff leave to
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`amend her Complaint but directed her to attach the alleged document(s) as an
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`exhibit to the amended complaint. [Tr. of Mot. Hr’g 13:9–14:1, 15:1–3, 22–23,
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`Page 2 of 17
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`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 3 of 23 PageID 471
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`January 16, 2020]
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`B. The First Amended Complaint and the Order of Dismissal.
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`Plaintiff filed her First Amended Complaint on February 18, 2020 (the last
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`day of the 33-day deadline), with no exhibits attached or filed with such pleading,
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`contrary to this Court’s prior ruling. [Dkt. 28] Instead, the First Amended
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`Complaint alleged, without documentary support, that an October 2018 EEOC
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`intake questionnaire constituted Plaintiff’s timely charge of discrimination. [Dkt.
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`28 ¶ 21]
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`On March 3, 2020, Defendant moved to dismiss the First Amended
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`Complaint (the “Second Motion to Dismiss”), asserting, among other things, that
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`the Plaintiff ‘s Title VII and FCRA claims were still time-barred. [Dkt. 31] After a
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`hearing on June 24, 2020, on July 23, 2020, the Court entered an order granting the
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`Second Motion to Dismiss without prejudice as to Plaintiff’s gender discrimination
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`and retaliation claims and denying the Second Motion to Dismiss with respect to
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`Plaintiff’s FPWA claim. [Dkt. 40]
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`C. The Second and Third Amended Complaints.
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`On November 18, 2020, Plaintiff filed her Second Amended Complaint.1
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`[Dkt. 64] Like the Original Complaint and First Amended Complaint, the Second
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`1 On February 12, 2021, the Court denied Defendant’s motion to strike the Second Amended
`Complaint and granted Plaintiff’s oral motion to file the Second Amended Complaint on
`grounds unrelated to the instant motion. [Dkt. 84]
`Page 3 of 17
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`Amended Complaint alleged retaliation under the FPWA (Count I), gender
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`discrimination under the FCRA (Count II), and retaliation under the FCRA (Count
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`III).
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`Plaintiff filed her Third Amended Complaint on March 8, 2021 in response to
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`this Court’s Order dated February 17, 2021. [Dkt. 85] As stipulated, the Third
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`Amended Complaint is identical to the Second Amended Complaint in all
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`substantive respects, but for its allegations to support the existence of diversity
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`jurisdiction. The Third Amended Complaint alleges retaliation under the FPWA
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`(Count I), gender discrimination under the FCRA (Count II), and retaliation under
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`the FCRA (Count III).
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`Counts II and III of the Third Amended Complaint (Plaintiff’s FCRA claims)
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`are still fatally flawed. Again, these claims are still time-barred as Plaintiff failed to
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`demonstrate that she exhausted her administrative remedies on these claims prior
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`to filing suit. Specifically, Plaintiff filed her Charge of Discrimination well after the
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`applicable deadline expired, and, even if the Charge of Discrimination was timely
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`(which it is not) the Charge of Discrimination failed to state any alleged facts to
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`support a retaliation claim altogether. Additionally, Counts II and III of the Third
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`Amended Complaint fail to plead facts sufficient to state a claim for discrimination
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`or retaliation under the FCRA. As such, Counts II and III of the Third Amended
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`Complaint should be dismissed with prejudice.
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`Page 4 of 17
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`II. MEMORANDUM OF LAW
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`A. Legal Standard for Motion to Dismiss.
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`Pursuant to Federal Rule of Civil Procedure 8(a)(2), a complaint must
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`contain a short and plain statement of the claim showing the plaintiff is entitled to
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`relief to “give the defendant fair notice of what the…claim is and the grounds upon
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`which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554–55, (2007) (internal
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`quotation omitted). A complaint that offers “labels and conclusions” or a
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`“formulaic recitation of the elements of a cause of action will not do.” Twombly, 550
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`U.S. at 555. While the pleading standard set forth in Rule 8 does not require
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`detailed factual allegations, it does demand “more than an unadorned, the-
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`defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009). Accordingly, a complaint containing “naked assertion[s]” without “further
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`factual enhancement” is insufficient. Id. Moreover, “conclusory allegations,
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`unwarranted factual deductions or legal conclusions masquerading as facts will
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`not prevent dismissal.” Moseley v. McKesson Medical-Surgical, Inc., 2013 WL 3639686
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`(M.D. Fla. July 11, 2013).
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`B. Counts II and III Should Be Dismissed with Prejudice Because
`Plaintiff Failed to Exhaust Her Administrative Remedies.
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`Plaintiff’s amended FCRA claims should be dismissed with prejudice, as
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`Plaintiff failed to file a timely charge of discrimination prior to bringing suit.
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`Further, in addition to being time-barred, Plaintiff’s retaliation claim (Count III) is
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`Page 5 of 17
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`also precluded because Plaintiff failed to include any retaliation claims in her
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`Charge of Discrimination.
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`1. Plaintiff Failed to File a Timely Charge of Discrimination.
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`Plaintiff failed to file a timely charge of discrimination prior to bringing suit.
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`As a condition precedent to filing an FCRA action, a plaintiff must exhaust all
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`administrative remedies by filing a timely charge with the appropriate agency.
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`Schober v. Town of Fort Myers Beach, Fla., 2014 WL 6469881 at *4-5 (M.D. Fla.
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`November 17, 2014). Specifically, the FCRA requires that a plaintiff file her charge
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`within 365 days of the alleged discrimination to preserve any FCRA claims. Id. at
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`*4. A claim is time-barred if not filed within this strict time limit. Id.
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`Each incident of alleged discrimination constitutes a separate “discrete
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`discriminatory act [that] starts a new clock for filing charges alleging that act.”
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`Brooks v. CSX Transportation, Inc., 2013 WL 12091685 at *4 (M.D. Fla. March 29,
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`2013), affirmed in 555 Fed.Appx. 878 (11th Cir. 2014) (quoting Natl R.R. Passenger
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`Corp. v. Morgan, 536 U.S. 101 (2002)). Further, “‘discrete discriminatory acts are not
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`actionable if time barred, even when they are related to acts alleged in timely filed
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`charges.’” Id. Failures to promote, demotions, and refusals to transfer are all
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`examples of “discrete acts” requiring a timely filed charge for each separate
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`incident. Brooks, 2013 WL 12091685 at *4 (citing Morgan, 536 U.S. 101). Likewise,
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`adverse write-ups and suspensions are also considered discrete acts of
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`Page 6 of 17
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`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 7 of 23 PageID 475
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`discrimination. Manley v. DeKalb County, Georgia, 587 Fed.Appx. 507, 512 (11th Cir.
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`2014). Consequently, a plaintiff cannot sue for such discrete acts unless each
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`separate act was timely submitted to the appropriate agency. See Schober, 2014 WL
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`6469881 at *4-5.
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`Plaintiff failed to file a timely charge of discrimination in this case. As the
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`Court has already found, [Dkt. 40], all of the acts alleged in the Third Amended
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`Complaint to support Plaintiff’s FCRA claims—denying her for promotions and
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`transfers, and taking disciplinary action such as demoting and suspending her
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`[Dkt. 28 ¶¶ 52–69]—constitute discrete acts.2 See Manley, 587 Fed.Appx. at 512;
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`Brooks, 2013 WL 12091685 at *4. Thus, Plaintiff was required to timely submit each
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`of these acts to the EEOC/FCHR.
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` According to Plaintiff’s Charge of
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`Discrimination attached hereto as Exhibit A (the “Charge”),3 the last act of
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`2 The United States Supreme Court has made it clear that Plaintiff cannot group these discrete acts
`together in an effort to argue that they collectively constitute a continuing violation. Steinberg v.
`Donahoe, 2014 WL 1356711, at *7 (S.D. Fla. Apr. 7, 2014) (citing Morgan, 536 U.S. at 108–115)
`(rejecting plaintiff’s argument that employer’s multiple anti-Semitic comments should be “taken
`as a whole” to constitute a continuing violation). Consequently, Plaintiff’s allegation that these
`discrete acts are “not an isolated occasion” [Dkt. 89 ¶ 67] or that they collectively constituted
`hostile work environment harassment [Dkt. 89 ¶¶ 60, 64, 73, 89] does nothing to change the fact
`that they are still discrete acts and, consequently, time-barred. See Jackson v. Sec'y of Dep't of
`Veterans Affairs, 2018 WL 4091988, at *8 (M.D. Fla. 2018) (rejecting plaintiff’s argument that
`multiple sexually explicit emails constituted hostile work environment or a continuing
`violation); see also Schober, 2014 WL 6469881 at *4 (“A plaintiff may not circumvent the limitations
`period merely by labeling an act a ‘continuing’ violation.”).
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`3 The Court may consider the Plaintiff’s Charge of Discrimination on a motion to dismiss
`because the Charge is central to the Plaintiff’s case and its authenticity is not challenged. E.g.
`Lambert v. Alabama Dept. of Youth Services, 150 Fed.Appx. 990, 993–994 (11th Cir. 2005)
`(considering EEOC charge of discrimination attached to motion to dismiss in affirming
`dismissal of Title VII claims); Hodge v. Orlando Utilities Com'n, 2009 WL 5067758, at *4 (M.D. Fla.
`Page 7 of 17
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`discrimination occurred on April 5, 2018 (a suspension and/or demotion).
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`Consequently, Plaintiff was required to file her Charge no later than April 5, 2019
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`to preserve her FCRA claims. However, Plaintiff’s Charge was not filed until April
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`29, 20194—well after this deadline had expired. Consequently, Plaintiff’s FCRA-
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`based claims are time-barred. Defendant requests that the Third Amended
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`Complaint be dismissed with prejudice accordingly. See Schober, 2014 WL 6469881
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`at *4-5 (dismissing Title VII claims with prejudice where plaintiff failed to file
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`timely EEOC charge); see also Fleming v. The Florida Bar, 994 F.Supp.2d 1255, 1261
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`(N.D. Fla. 2014) (dismissing complaint with prejudice where plaintiff failed to
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`exhaust her administrative remedies with the EEOC prior to filing suit); Lambert,
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`150 Fed.Appx. at 994 (affirming dismissal with prejudice for same reason); Buade v.
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`Terra Group, LLC, 259 So.3d 219, 223 (Fla. 3d DCA 2018) (same).
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`2. The Intake Questionnaire Does Not Constitute a Charge of
`Discrimination.
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`Like the First Amended Complaint, the Third Amended Complaint alleges
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`that Plaintiff’s initial EEOC intake questionnaire constituted Plaintiff’s timely
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`Dec. 15, 2009) (same); see also Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (holding that
`documents attached to motion to dismiss may be considered if document is central to plaintiff’s
`claim and document’s authenticity is not challenged); Brivik v. Law, 545 Fed.Appx. 804, 806 (11th
`Cir. 2013) (holding that where exhibits attached to motion to dismiss contradict conclusory
`allegations in the complaint, the exhibits govern).
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`4 A charge is deemed filed on the date it is stamped received by the agency (the “filing stamp”).
`Ridley v. Sears Home Improvement Products, Inc., 2009 WL 4349322, at *2, *6 n.10 (M.D. Fla. Nov.
`25, 2009); Francois v. Washmonbo, Inc., 2007 WL 1362796, at *2 (S.D. Fla. May 9, 2007); see also F.S.
`§ 760.11(1) (“If the date the [charge] is filed is clearly stamped on the face of the [charge], that
`date is the date of filing.”).
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`Page 8 of 17
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`charge of discrimination. [Dkt. 89 ¶ 27] The questionnaire is attached hereto as
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`Exhibit B.5
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` However, the Court already found that Plaintiff’s
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`intake
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`questionnaire did not constitute her charge and that it must instead rely on the
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`April 29, 2019 formal charge attached hereto as Exhibit A, which was filed after
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`the deadline. [Dkt. 40] For the same reasons, Plaintiff’s even earlier letter to the
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`EEOC dated August 29, 2018 also cannot constitute her charge. [Dkt. 89 ¶ 29] In
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`fact, as the Third Amended Complaint alleges (and the exhibits attached thereto
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`demonstrate), Plaintiff was “in constant contact” with the EEOC to revise her
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`charge up until her Charge was filed on April 29, 2019, even emailing the EEOC
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`investigator “on several occasions after she signed the charge” to add additional
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`allegations to her draft charge. [Dkt. 89 ¶¶ 24–25] Simply put, neither Plaintiff’s
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`initial intake questionnaire nor her initial inquiry letter to the EEOC constitute a
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`timely charge in this case. Consequently, Plaintiff has not demonstrated (and
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`cannot demonstrate) that she exhausted her administrative remedies, as
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`previously addressed by this Court in its prior rulings. [Dkt. 40; Tr. of Mot. Hr’g
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`13:9–14:1, 15:1–3, 22–23, January 16, 2020] Defendant respectfully requests that
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`Counts II and III of the Third Amended Complaint be dismissed with prejudice.
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`5 The Court may consider the intake questionnaire on this motion to dismiss for the reasons
`discussed in note 4, supra.
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`Page 9 of 17
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`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 10 of 23 PageID 478
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`3. Plaintiff Failed to Include Any Claims of Retaliation in Her
`Charge of Discrimination.
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`Even if Plaintiff’s Charge of Discrimination was timely (and it was not), her
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`amended retaliation claims are still precluded, as they were not included in the
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`Charge.
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`In addition to the foregoing timing requirement, a plaintiff’s complaint is
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`limited by the substantive allegations made in her EEOC charge. Ortiz v. Waste
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`Management Inc. of Florida, 2019 WL 1755807 at *3 (M.D. Fla. April 19, 2019).
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`Specifically, “in order to exhaust his or her administrative remedies, a plaintiff
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`must include the factual bases for all of his or her Title VII claims in the charge.”
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`E.g. Buade, 259 So.3d at 222. For example, because gender discrimination and
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`retaliation are entirely separate causes of action, the plaintiff is required to allege
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`facts in the charge to support each of his or her discrimination and retaliation
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`claims. Id. Where a plaintiff’s charge only contains facts relating to the
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`discrimination claim without specific facts supporting a retaliation claim, dismissal
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`of the claim for retaliation with prejudice is proper. Id.
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`Likewise, even when a plaintiff has provided a sufficient factual narrative for
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`either discrimination or retaliation in the charge, the plaintiff is barred from
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`bringing a judicial action based on acts that are not included in the narrative.
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`Fleming, 994 F.Supp.2d at 1260. “Claims in court may ‘amplify, clarify or more
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`clearly focus the allegations in the EEOC complaint,’ but
`Page 10 of 17
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`‘new acts of
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`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 11 of 23 PageID 479
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`discrimination are inappropriate.’” Id. (quoting Gregory v. Ga. Dep’t of Human Res.,
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`355 F.3d 1277, 1279 (11th Cir. 2004)) (holding that plaintiff could not bring a claim
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`on any instance of a failure to promote that was not cited in her charge of
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`discrimination).
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`Plaintiff failed to allege any facts supporting a retaliation claim in her Charge
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`of Discrimination. Specifically, although the Charge attached as Exhibit A includes
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`a boilerplate “discrimination statement” stating that the plaintiff believes she was
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`retaliated against in violation of Title VII, the Charge does not contain any facts
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`supporting a claim for retaliation. This provides an additional basis to dismiss her
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`retaliation claims with prejudice. Steinberg v. Donahoe, 2014 WL 1356711, at *7 (S.D.
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`Fla. 2014) (denying motion to amend as futile where plaintiff’s charge of
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`discrimination did not contain any facts supporting claim of retaliation); Buade, 259
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`So.3d at 222–223 (affirming dismissal with prejudice where plaintiff’s charge of
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`discrimination contained facts supporting discrimination claim but no factual
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`narrative supporting a claim of retaliation).
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`For the reasons discussed above, Counts II and III of the Third Amended
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`Complaint should be dismissed with prejudice.
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`C. Count II Fails to State a Claim for Gender Discrimination under the
`FCRA.
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`Even if Plaintiff had exhausted her administrative remedies for her amended
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`discrimination claims, the Third Amended Complaint fails to plead sufficient facts
`Page 11 of 17
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`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 12 of 23 PageID 480
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`to state a claim for gender discrimination under the FCRA.6
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`To establish a prima facie case for discrimination under Title VII or the FCRA,
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`a plaintiff must prove: (1) she is a member of a protected class; (2) she was qualified
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`for the position; (3) she suffered an adverse employment action; and (4) she was
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`treated less favorably than a similarly situated individual outside [her] protected
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`class. Veale v. Florida Dept. of Health, 2013 WL 5703577, *3 (M.D. Fla. July 29,
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`2013). “Although a Title VII complaint need not allege facts sufficient to make out
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`a classic McDonnell Douglas prima facie case, it must provide enough factual matter
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`(taken as true) to suggest intentional . . . discrimination.” Nurse v. City of Alpharetta,
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`775 Fed.Appx. 603, 606 (11th Cir. 2019) (internal quotation omitted). For example,
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`with regard to the fourth element, mere allegations that a plaintiff is treated
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`differently than similarly situated employees solely because of gender is not
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`sufficient. Scribner v. Collier County, 2011 WL 2746813 at *4 (M.D. Fla. July 14, 2011).
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`“When comparing her treatment to a non-protected employee under the fourth
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`element, the plaintiff must show that she and the other employee were similarly
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`situated in all relevant respects.” Arafat v. School Bd. Of Broward County, 549
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`Fed.Appx. 872, 874 (11th Cir. 2013) (affirming dismissal with prejudice of
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`discrimination claim where female plaintiff merely “generically referenced
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`6 The FCRA is modeled after Title VII, and decisions construing Title VII are applicable to
`claims under the FCRA. Veale v. Florida Dept. of Health, 2013 WL 5703557 n. 2 (M.D. Fla. July 29,
`2013).
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`Page 12 of 17
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`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 13 of 23 PageID 481
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`younger males”).
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`Like the previous complaints, the Third Amended Complaint fails to plead
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`sufficient facts to support a claim for gender discrimination under the FCRA.
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`Specifically, Plaintiff generally alleges that she was denied “essential
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`job
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`promotions and job transfers in favor of men with less seniority and experience.”
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`[Dkt. 89 ¶ 59] She further vaguely alleges that she was given “harsher, and more
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`frequent reprimands than [her] male counterparts were given for the same
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`conduct.” [Dkt. 89 ¶ 62] Further, she alleges that she was “given a bizarre, five (5)
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`day suspension for a situation that did not warrant such a drastic punishment”
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`[Dkt. 89 ¶ 63] and that she was demoted on or about April 2018. [Dkt. 89 ¶ 50]
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`Additionally, Plaintiff generically alleges she “was routinely passed over for
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`positions that she was entitled to under Defendant’s policies and procedures yet
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`was denied in favor of males with less experience and less seniority.” [Dkt. 89 ¶
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`69] Finally, Plaintiff again groups these conclusory allegations together and
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`appears to attempt to characterize them as collectively constituting hostile work
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`environment harassment. [Dkt. 89 ¶¶ 64]
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`Plaintiff’s general, conclusory allegations are insufficient. Plaintiff wholly
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`fails to allege the specific positions and/or transfers she applied for, when she was
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`rejected for them, or that she was qualified for any of them. Similarly, she fails to
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`identify what specific reprimands she received, when she received them, or what
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`Page 13 of 17
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`conduct allegedly warranted them. In the same way, she fails to provide sufficient
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`detail for the “bizarre” suspension or the demotion. See Shah v. Orange Park Medical
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`Center, Inc., 2016 WL 4943925 (M.D. Fla. 2016) (dismissing discrimination claims
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`where complaint contained only general, conclusory allegations regarding the
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`allegedly discriminatory actions); Veale, 2013 WL 5703557 at *3 (dismissing
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`discrimination claim where complaint lacked “specific facts to explain how the
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`disparate treatment occurred”); Steinberg, 2014 WL 1356711, at *10 (denying
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`motion to amend as futile where plaintiff failed to “specify what types of benefits
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`or job assignments he was purportedly refused”).
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`Moreover, the Third Amended Complaint’s generic reference to unidentified
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`male comparators is insufficient. See Arafat, 549 Fed.Appx. at 874 (affirming
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`dismissal with prejudice of discrimination claim where female plaintiff merely
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`“generically referenced younger males”); Scribner, 2011 WL 2746813 at *4
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`(dismissing discrimination claim where allegations regarding alleged comparator
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`were conclusory); Steinberg, 2014 WL 1356711, at *10–11 (denying motion to
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`amend as futile where proposed amended complaint failed to identify any
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`comparators and instead merely alleged that plaintiff was denied benefits
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`“‘while other non-Jewish employees were not so denied’”). Accordingly, Count II
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`of the Third Amended Complaint should be dismissed.
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`Page 14 of 17
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`D. Count III Fails to State a Claim for Retaliation under the FCRA.
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`Similar to the discrimination claims discussed above, the Third Amended
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`Complaint is also devoid of sufficient facts to state a claim for retaliation under the
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`FCRA. To state a cause of action for retaliation under the FCRA, the plaintiff must
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`allege sufficient facts to show: (1) she engaged in statutorily protected expression;
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`(2) she suffered an adverse employment action; and (3) there was a causal
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`relationship between the two events. Jones-Gooch v. Brennan, 2019 WL 3084725 at *4
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`(M.D. Fla. 2019).
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`Like the previous complaints, Plaintiff’s amended retaliation claims fail to
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`sufficiently allege any specific adverse employment actions that were taken against
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`her. Instead, the Third Amended Complaint improperly relies on generic,
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`boilerplate, conclusory allegations of retaliation. Specifically, the Third Amended
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`Complaint alleges that Defendant retaliated against Plaintiff by denying her certain
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`unidentified promotions and transfers, by subjecting her to certain unidentified
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`disciplinary actions (including a vague reference to a suspension and demotion),
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`and by subjecting her to “harsher scrutiny.” [Dkt. 89 ¶¶ 60, 73, 89] Again, Plaintiff
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`groups these conclusory allegations together, attempting to characterize them as
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`collectively constituting hostile work environment harassment. Id. Plaintiff fails to
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`include any facts as to what specific promotion denials, transfer denials, and
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`disciplinary actions Plaintiff asserts were motivated by retaliation. See Jones-Gooch
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`Page 15 of 17
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`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 16 of 23 PageID 484
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`v. Brennan, 2019 WL 3084725 at *4 (M.D. Fla. April 30, 2019), report and
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`recommendation adopted, 2019 WL 3082953 (dismissing retaliation claim where
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`complaint failed to sufficiently allege basic facts such as when plaintiff engaged in
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`the protected activity, when the retaliation occurred, what the retaliation was, and
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`who carried out the retaliation).
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`Additionally, the Third Amended Complaint only contains conclusory,
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`speculative allegations that there was a causal relationship between Plaintiff’s
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`alleged complaint of discrimination and the alleged adverse employment actions
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`taken against her. Notably, Plaintiff does not allege when she made the complaints
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`or when the supposed adverse employment actions occurred. See Smith v. Bottling
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`Group, LLC, 2016 WL 2944070 at *4 (M.D. Fla. May 20, 2016) (dismissing retaliation
`
`claim where plaintiff did not allege when he made the complaints to Human
`
`Resources). Importantly, the Third Amended Complaint wholly fails to allege that
`
`the Defendant, or those who made the alleged adverse employment decisions,
`
`knew of Plaintiff’s complaint when the adverse actions were taken. See Arrington v.
`
`Alabama Power Company, 769 Fed.Appx. 741, 746 (11th Cir. 2019) (dismissing
`
`retaliation claim where plaintiff failed to allege that defendant’s decision-maker
`
`was aware that plaintiff had made a complaint). For the foregoing reasons, Count
`
`III of the Third Amended Complaint should be dismissed.
`
`Page 16 of 17
`
`
`
`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 17 of 23 PageID 485
`
`III. CONCLUSION
`
`For the foregoing reasons, Defendant respectfully requests that the Court
`
`grant the present motion and dismiss Counts II and III of the Third Amended
`
`Complaint with prejudice.
`
`LOCAL RULE 3.01(G) CERTIFICATION
`
`Pursuant to Rule 3.01(g) of the Local Rules of the Middle District of Florida,
`
`the undersigned counsel conferred with Plaintiff’s counsel by telephone regarding
`
`the relief requested herein. The parties do not agree on the resolution of this
`
`motion.
`
`SHUMAKER, LOOP & KENDRICK, LLP
`
`
`
`
`By: /s/ Chris Cavaliere
`MICHELE LEO HINTSON, ESQ.
`Florida Bar No. 604941
`CHRISTOPHER CAVALIERE, ESQ.
`Florida Bar No. 85776
`mhintson@shumaker.com
`ccavaliere@shumaker.com
`101 East Kennedy Boulevard, Suite 2800
`Tampa, Florida 33602
`PH: (813) 229-7600/FAX: (813) 229-1660
`Attorneys for Defendant
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that on March 22, 2021, I electronically filed the
`foregoing with the Clerk of the Court by using the CM/ECF system which will
`send a notice of electronic filing to all parties of record.
`
`/s/ Chris Cavaliere
`ATTORNEY
`
`
`
`Page 17 of 17
`
`
`
`.
`
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`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 18 of 23 PageID 486
`Case 8:19-cv-02529-TPB-AEP Document 31 Filed 03/03/20 Page 18 of 23 PageID 206
`
`Precharge language: PERSONAL HARM: l have been employed by the above-named Respondent
`since March 2, 2009. i started as a production helper and worked with Derek Hall, Biscuit Manager. During
`this time, he had denied me a training opportunity and I felt was not allowing me to advance; therefore, I bid
`for positions outside his section.
`I worked'In sanitation different until November 2014. When I blded'In the
`department as a General Utility worker. Since I was awarded a utility, lfeel that l am being picked on, held
`to different standards and written up for things that other general utility workers are not written up for This
`was evident on April 5, 2018, when l was presented a write-up for an issue with a machine that i didn't do
`and the male that was operating the machine didn't receive a writeup for. Despite my rebuttal, l 7
`was disqualified from the General Utility job. l was suspended for five days and demoted to a Role Line
`Packaging position at a lower hourly pay rate.
`In addition, I have bid on other positions'In both 2016 and
`2017 but l was denied the positions while less senior people have been given the position.
`i complained to
`Corporate Human Resources and was told theywouldinvestgaabot-t-haveaetareiveti—any—iepllow~up\
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`RES ONDENT’S REA:SON On Aprilw5 2018, Derek Halland Francy Arbonis HR,presented with a
`wn'te--up that stated, in summary, on 3/26/2018 and on 4/04/2018, there were incidents while i wasrunning
`the BL2 and because of the facts outlined above you will be suspended for five days, 4/6/2018 through
`4/11/2018, retum 4/12/2018. You have been a General Utility on PM and 2 years NC for two and half years
`and have received several write-ups, six verbal's, five written and two suspensions. At this time, it is in
`your best interest and in the best interest of the company to remove you from your position as General
`Utility and to place you on available work. You will have the opportunity to bid on open positions with
`exception of General Utility and all operator positions within the processing department provided you are
`within the policy guidelines.
`
`(20“
`
`DlSCRIMlNATlON STATEMENT.
`I believe I have been discriminated against due to my Sex (Female) and
`retaliated against due tomycomplaints in Violation'In Title Vll of the Civil RightsAct Of 1964. as amended
`IN“
`on AW“.
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`Received
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`APR 29 2019
`
`Tampa Field Office
`
`EXHIBIT A
`
`
`
`Case 8:19-cv-02529-TPB-AEP Document 91 Filed 03/22/21 Page 19 of 23 PageID 487
`Case 8:19-cv-02529-TPB-AEP Document 31 Filed 03/03/20 Page 19 of 23 PageID 207
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`
`
`, EEOC Form 5 (1.1109)
`
`CHARGE OF DISCRIMINATION -
`This form Is effected by the Privacy Act of 1974. See enclosed Privacy Act
`Statement and other information before completing this term.
`
`‘
`
`.
`
`1
`
`r
`
`‘
`
`1 Charge Presented To:
`
`Agency(ies) Charge No(s):
`
`Florida Commission On Human Relations
`-
`State or local Agency, Ifany
`in your best interest and'In the best irtterést of the company to remove you from your position as General Utility and to place you on
`available work. You will have the opportunity to bid on open positions with exception of General Utility and all operator positions
`within the processing department provided you are within the policy guidelines.
`
`DISCRIMINATION STATEMENT: I believe I have been discfiminated a