Case 8:19-cv-02529-TPB-AEP Document 96 Filed 08/19/21 Page 1 of 7 PageID 513
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`
`STEPHANIE DICKENS,
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`
`
`v. Case No. 8:19-cv-2529-TPB-AEP
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`PEPPERIDGE FARM
`INCORPORATED,
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`
`
`
`
`Plaintiff,
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`Defendant.
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`
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`
`
`
`
`
`
`/
`
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
`PARTIAL MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S
`THIRD AMENDED COMPLAINT
`
`This matter is before the Court on “Defendant’s Partial Motion to Dismiss
`
`Counts II and III of Plaintiff’s Third Amended Complaint and Incorporated
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`Memorandum of Law,” filed on March 22, 2021. (Doc. 91). On April 5, 2021,
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`Plaintiff filed her response in opposition to the motion. (Doc. 92). Based on the
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`motion, response, court file, and record, the Court finds as follows:
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`Background1
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`Plaintiff Stephanie Dickens began working for Defendant Pepperidge Farm
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`Incorporated in 2009. In November 2014, she was promoted to General Utility
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`Worker. On February 22, 2018, Plaintiff discovered a roach infestation in one of
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`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 7
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`
`
`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`
`STEPHANIE DICKENS,
`
`
`
`v. Case No. 8:19-cv-2529-TPB-AEP
`
`PEPPERIDGE FARM
`INCORPORATED,
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`
`
`
`
`
`
`
`
`/
`
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
`PARTIAL MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S
`THIRD AMENDED COMPLAINT
`
`This matter is before the Court on “Defendant’s Partial Motion to Dismiss
`
`Counts II and III of Plaintiff’s Third Amended Complaint and Incorporated
`
`Memorandum of Law,” filed on March 22, 2021. (Doc. 91). On April 5, 2021,
`
`Plaintiff filed her response in opposition to the motion. (Doc. 92). Based on the
`
`motion, response, court file, and record, the Court finds as follows:
`
`Background1
`
`Plaintiff Stephanie Dickens began working for Defendant Pepperidge Farm
`
`Incorporated in 2009. In November 2014, she was promoted to General Utility
`
`Worker. On February 22, 2018, Plaintiff discovered a roach infestation in one of
`
`
`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 7
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`Case 8:19-cv-02529-TPB-AEP Document 96 Filed 08/19/21 Page 2 of 7 PageID 514
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`Defendant’s wheat gluten tanks. Plaintiff believed Defendant had violated several
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`federal regulations mandating that food processing plants implement certain
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`protections against pest infestation and food contamination. She informed her
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`supervisor, but Defendant took no remedial action. On April 5, 2018, however,
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`Defendant suspended and demoted Plaintiff. She alleges these actions were taken
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`in retaliation for her raising the contamination issue. She also alleges that these
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`actions, as well as denials of promotions and transfers in 2016 and 2017, constituted
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`gender discrimination and retaliation for her complaining about discrimination.
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`Plaintiff filed suit in state court on July 29, 2019, asserting state and federal
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`claims. Defendant timely removed the case to this Court. Plaintiff filed an
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`amended complaint, which the Court dismissed with leave to amend. Plaintiff’s
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`second amended complaint dropped her federal claims. With Defendant’s
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`agreement, she then filed a third amended complaint, which alleged diversity of
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`citizenship as the basis for the Court’s jurisdiction. Plaintiff’s third amended
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`complaint alleges claims for: retaliation under the Florida Private Whistleblower
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`Act (“FWA”) (Count I); gender discrimination under the Florida Civil Rights Act
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`(“FCRA”) (Count II); and retaliation under the FCRA (Count III). Defendant moves
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`to dismiss Counts II and III.
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`Legal Standard
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`Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a
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`short and plain statement of the claim showing the [plaintiff] is entitled to
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`relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual
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`allegations,” it does require “more than labels and conclusions, and a formulaic
`Page 2 of 7
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`Case 8:19-cv-02529-TPB-AEP Document 96 Filed 08/19/21 Page 3 of 7 PageID 515
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`recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 555 (2007). In order to survive a motion to dismiss, factual
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`allegations must be sufficient “to state a claim to relief that is plausible on its
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`face.” Id. at 570. When deciding a Rule 12(b)(6) motion, review is generally limited
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`to the four corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp.
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`232, 233 (M.D. Fla. 1995).
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` Furthermore, when reviewing a complaint for facial sufficiency, a court “must
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`accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in the
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`light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232,
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`236 (1974)). “[A] motion to dismiss should concern only the complaint’s legal
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`sufficiency, and is not a procedure for resolving factual questions or addressing the
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`merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC,
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`8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara,
`
`J.).
`
`Failure to Exhaust Administrative Remedies
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`Analysis
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`As a prerequisite to filing suit under the FCRA, a plaintiff must file a timely
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`charge of discrimination with the EEOC or the Florida Commission on Human
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`Relations (“FCHR”) within 365 days of the alleged discrimination. § 760.11, F.S.;
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`Pedrioli v. Barry Univ., Inc,, No 6:17-cv-577-Orl-40GJK, 2018 WL 538743, at *2
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`(M.D. Fla. Jan 24, 2018). Defendant argues that the last act of discrimination
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`alleged by Plaintiff occurred on April 5, 2018 and that Plaintiff was therefore
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`required to file her administrative charge no later than April 5, 2019. Defendant
`Page 3 of 7
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`Case 8:19-cv-02529-TPB-AEP Document 96 Filed 08/19/21 Page 4 of 7 PageID 516
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`further argues that because Plaintiff filed her charge on April 29, 2019, which is the
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`date the EEOC stamped on the charge, the filing was untimely.2
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`The date stamp on the charge, however, is only presumptively the date of
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`filing, and the presumption can be overcome by other evidence. See Roeder v. Fla.
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`Dep’t of Env’tal Protection, 303 So. 3d 979, 981-82 (Fla. 1st DCA 2020). Plaintiff
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`appears to have signed the charge on March 25, 2019, and her complaint alleges she
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`filed it on that date. (Doc. 89 at ¶ 8). The complaint attaches a March 26, 2019
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`letter from the EEOC suggesting that Plaintiff may have submitted some form of
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`the same charge on March 25, 2019. (Doc. 89-5). The complaint also attaches a
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`letter Plaintiff sent to the EEOC in August 2018 complaining of gender
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`discrimination with respect to promotions. (Doc. 89-1). Unlike the intake
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`questionnaire the Court previously ruled did not constitute a charge, this letter
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`expressly invoked the machinery and remedial process of the agency. It asked the
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`EEOC to review Plaintiff’s case and to “determine if I meet the requirement for
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`filing a gender, discrimination and bully harassment case . . . .” (Id.). At this stage
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`of the proceedings, the Court cannot determine from the record whether and to
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`what extent Plaintiff’s claims are administratively barred.
`
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`2 The EEOC charge, as well as other complaint exhibits referred to herein, are deemed to be
`part of the pleading for all purposes. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-
`06 (11th Cir. 2007); see also Jones v. Bank of Am., 985 F. Supp. 2d 1320, 1326 (M.D. Fla.
`2013) (“In ruling on a Rule 12(b)(6) motion, the court focuses principally on the complaint,
`but may also consider documents attached to a pleading and matters of which a court may
`take judicial notice.”).
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`Page 4 of 7
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`Case 8:19-cv-02529-TPB-AEP Document 96 Filed 08/19/21 Page 5 of 7 PageID 517
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`Defendant argues alternatively that Plaintiff’s administrative charge
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`contains an insufficient factual narrative to preserve the claim for retaliation
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`asserted in Count III. Plaintiff’s charge, however, completed without the assistance
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`of counsel, expressly stated she had been discriminated against on the basis of sex
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`and retaliated against for complaining of actions in violation of Title VII. (Doc. 89-4
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`at 2). It sets forth the adverse employment actions on which her claims were based,
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`including the denial of promotions in 2016 and 2017, and her discipline, suspension,
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`and demotion in April 2018.3 (Id. at 1). The scope of an administrative complaint
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`“should not be strictly interpreted.” Gregory v. Ga. Dep’t of Human Resources, 355
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`F.3d 1277, 1280 (11th Cir. 2004) (internal quotations omitted); Sheridan v. State of
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`Fla., Dep’t of Health, 182 So. 3d 787, 789 (Fla. 1st DCA 2016) (holding that
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`administrative preconditions on the right to sue for discrimination “must be
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`narrowly construed in a manner that favors access” to courts). In this case, the
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`EEOC could reasonably have been expected to investigate Plaintiff’s claims of
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`retaliation, and they are therefore not barred. See Gregory, 355 F.3d at 1280-81
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`(holding that if a claim alleged in a lawsuit is within the scope of the EEOC
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`investigation that could reasonably be expected to grow out of the administrative
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`charge, the claim is sufficiently preserved).
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`The Court accordingly denies the motion to dismiss Counts II and III based
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`on a failure to allege exhaustion of administrative remedies. This ruling is without
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`prejudice to Defendant’s ability to raise its arguments that Plaintiff’s claims are
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`3 As discussed below, Plaintiff’s claims going forward will be limited to these alleged
`discriminatory actions.
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`Page 5 of 7
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`Case 8:19-cv-02529-TPB-AEP Document 96 Filed 08/19/21 Page 6 of 7 PageID 518
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`administratively barred, in whole or part, in a motion for summary judgment on a
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`more complete record.
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`Failure to State a Claim
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`Defendant argues that Counts II and III fail to state claims for relief under
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`Rule 8. The Court’s prior Order dismissing Plaintiff’s amended complaint without
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`prejudice ruled that the amended complaint, read in conjunction with Plaintiff’s
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`administrative charge, alleged that Plaintiff was denied promotions and transfers
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`in 2016 and 2017, and was subjected to disciplinary action, suspension, and
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`demotion in April 2018. (Doc. 40 at 5-6). However, the Court ruled that to pursue
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`any other alleged acts of discrimination, Plaintiff must plead additional facts
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`regarding the alleged incidents, including the relevant dates. (Id. at 6).
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`The third amended complaint, however, fails to plead additional facts. As to
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`other adverse employment actions, including claims of “harassment” or hostile work
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`environment, Plaintiff’s allegations remain vague and conclusory, with no specifics
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`or time frames offered to give Defendant fair notice of the claims. Plaintiff has not
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`responded to Defendant’s argument as to the legal sufficiency of Counts II and III.
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`Defendant’s motion to dismiss Counts II and III of the third amended complaint is
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`therefore granted in part. Counts II and III are dismissed with prejudice and
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`without leave to amend as to all claims of gender discrimination or retaliation
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`except those based on the denials of promotion or transfers in 2016 and 2017 and
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`Plaintiff’s suspension and demotion in April 2018. As to the latter claims,
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`Defendant may raise its arguments as to the lack of suitable comparators, lack of
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`causation, and other elements in a motion for summary judgment.
`Page 6 of 7
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`Case 8:19-cv-02529-TPB-AEP Document 96 Filed 08/19/21 Page 7 of 7 PageID 519
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`Accordingly, it is
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`ORDERED, ADJUDGED, and DECREED:
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`1. “Defendant’s Partial Motion to Dismiss Counts II and III of Plaintiff’s Third
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`Amended Complaint and Incorporated Memorandum of Law” (Doc. 91) is
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`GRANTED IN PART and DENIED IN PART.
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`2. The motion is GRANTED IN PART. Counts II and III are DISMISSED
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`WITH PREJUDICE and without leave to amend as to all claims except
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`claims for gender discrimination and retaliation based on denials of
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`promotions and transfers in 2016 and 2017 and Plaintiff’s suspension and
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`demotion in April 2018.
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`3. The motion is otherwise DENIED.
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`DONE and ORDERED in Chambers, in Tampa, Florida, this 19th day of
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`August, 2021.
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`TOM BARBER
`UNITED STATES DISTRICT JUDGE
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`Page 7 of 7
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