Case 1:14-cv-22383-CMA Document 27 Entered on FLSD Docket 11/25/2014 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 14-22383-CIV-ALTONAGA/O’Sullivan
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`OLGA MELENDEZ,
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`Plaintiff,
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`vs.
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`TOWN OF BAY HARBOR ISLANDS,
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`Defendant.
`_________________________________/
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`ORDER
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`THIS CAUSE came before the Court on Defendant, Town of Bay Harbor Islands’s (the
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`“Town[’s]” or “Bay Harbor[’s]”) Motion to Dismiss Amended Complaint . . . (“Motion”) [ECF
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`No. 22], filed September 19, 2014. On October 10, 2014, Plaintiff, Olga Melendez
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`(“Melendez”) filed her Response . . . (“Response”) [ECF No. 25]. The Town filed its Reply . . .
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`[ECF No. 26] on October 20, 2014. The Court has carefully reviewed the parties’ written
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`submissions and applicable law.
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`I. BACKGROUND1
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`This case concerns a female Bay Harbor police officer’s discrimination claims against her
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`employer, the Bay Harbor police department. (See generally Am. Compl.). Bay Harbor is a
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`Florida municipality in Miami-Dade County. (See id. ¶ 7). Melendez joined the police
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`department as an officer in March 2003. (See id. ¶¶ 6, 13).
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`In April 2012, Melendez informed her superiors she was pregnant and requested she be
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`reassigned to light duty “due to her pregnancy and discomfort sitting in a patrol car.” (Id. ¶ 16).
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`Melendez alleges “there were light duty tasks available . . . such as paperwork for the exhibit
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`1 The facts are taken from Melendez’s Amended Complaint [ECF No. 15], are presented in the light most
`favorable to Melendez, and are taken as true.
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`room,” but she was “denied the ability to work light duty,” which forced her to take a leave of
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`absence pursuant to the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. (Id.
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`¶ 17 (alteration added)). Melendez claims “non-pregnant workers were afforded the ability to
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`work light duty,” and she lost compensation while on FMLA leave, as she could have been
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`working. (Id. ¶¶ 17–18). Melendez further alleges the department did not have a suitable
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`changing area for female employees, and she was forced to use a former male lavatory covered
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`with a shower curtain as a makeshift changing room. (See id. ¶¶ 19–20). She claims a male
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`colleague walked in on her changing multiple times, and as a result she “constantly had a fear
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`that she would be walked in on at any moment by a male co-worker.” (Id. ¶ 21). This same
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`superior — Sergeant Alan Block — “regularly made sexual advances” toward Melendez and
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`created a hostile work environment. (Id. ¶ 22).
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`On September 19, 2013, Melendez filed a Charge of Discrimination with the Equal
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`Opportunity Employment Commission (“EEOC”) (“EEOC Charge”). (See id. ¶¶ 14–15; Charge
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`of Discrimination (“EEOC Charge”) [ECF No. 15-2]). She received a Notice of Right to Sue
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`from the EEOC on March 28, 2014. (See Am. Compl. ¶ 11; Notice of Right to Sue [ECF No.
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`15-1]). Melendez initiated this suit on June 26, 2014 ( see Complaint [ECF No. 1]), and
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`thereafter filed her Amended Complaint (see Am. Compl.).
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`The Amended Complaint states six claims for relief: (1) discrimination on the basis of
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`pregnancy under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended by the
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`Pregnancy Discrimination Act of 1978 (“PDA”), 42 U.S.C. section 2000e(k); (2) sex
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`discrimination under Title VII, 42 U.S.C. section 2000e-2(a); (3) hostile work environment under
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`Title VII, 42 U.S.C. section 42 U.S.C. section 2000e-2(a); (4) discrimination based on pregnancy
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`under the Florida Civil Rights Act of 1992, Florida Statutes section 760.10(1) (the “FCRA”); (5)
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`2
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`sex discrimination under the FCRA, Florida Statutes section 760.10(1); and (6) hostile work
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`environment under the FCRA, Florida Statutes section 760.10(1). Bay Harbor seeks dismissal of
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`all counts and the striking Melendez’s requests for punitive damages. (See generally Mot.).
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`II. LEGAL STANDARD
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`“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although
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`this pleading standard “does not require ‘detailed factual allegations,’ . . . it demands more than
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`an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550
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`U.S. at 555). Pleadings must contain “more than labels and conclusions, and a formulaic
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`recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Indeed,
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`“only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal,
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`556 U.S. at 679 (citing Twombly, 550 U.S. at 556).
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`To meet this “plausibility standard,” a plaintiff must “plead[] factual content that allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556 (alteration added)). “The mere possibility
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`the defendant acted unlawfully is insufficient to survive a motion to dismiss.” Sinaltrainal v.
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`Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (citing Iqbal, 556 U.S. at 678). When
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`reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to
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`the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue
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`Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
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`3
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`III. ANALYSIS
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`Melendez states claims for sexual harassment as well as discrimination on the basis of
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`sex and pregnancy under Title VII and the FCRA. (See generally Am Compl.). Bay Harbor
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`argues all of Melendez’s claims are time-barred and, even if timely, they fail to state claims for
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`relief. (See generally Mot.). Bay Harbor also asserts Melendez’s requests for punitive damages
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`must be stricken. (See id. 2, 10). The Court considers each argument in turn.
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`A. Timeliness
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`Bay Harbor argues Melendez’s Title VII claims are time-barred because she failed to file
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`her EEOC Charge within 300 days of the alleged discrimination, and her FCRA claims are
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`similarly untimely, as the FCRA requires a plaintiff to file a complaint within 365 days of the
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`discriminatory acts. (See id. 1–4). Melendez insists the discriminatory acts were ongoing, and
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`she actually initiated the requisite administrative process on June 11, 2013, when she filed an
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`Intake Questionnaire with the EEOC. (See Resp. 2–4; see also Am. Compl. Ex. C [ECF No. 15-
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`3]).
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`Title VII requires plaintiffs to “exhaust certain administrative remedies before filing a
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`suit for employment discrimination.” E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271
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`(11th Cir. 2002) (citations omitted). A plaintiff initiates the administrative process by filing a
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`timely charge of discrimination. See id. (citations omitted). “For a charge to be timely in a
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`deferral state such as Florida, it must be filed within 300 days of the last discriminatory act.” Id.
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`(citing 42 U.S.C. § 2000e-5(e)(1)). A limitations period may be extended where a discriminatory
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`practice constitutes a “continuing violation.” Id. “In determining whether a discriminatory
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`employment practice constitutes a continuing violation, [a court] must distinguish between the
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`present consequence of a one-time violation, which does not extend the limitations period, and
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`4
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`the continuation of the violation into the present, which does.” Id. (internal quotation marks and
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`citation omitted); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 120 (2002) (“A
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`court’s task is to determine whether the acts about which an employee complains are part of the
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`same actionable [discriminatory practice], and if so, whether any act falls within the statutory
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`time period.” (alteration added)).
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`Courts consider “whether the claims were related in subject matter, frequency, and
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`permanence” in deciding whether a continuing practice exists. Roberts v. Gadsden Mem’l Hosp.,
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`835 F.2d 793, 800 (11th Cir. 1988) (citation omitted). “[W]here the allegedly discriminatory
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`incidents are substantially identical and the acts of alleged discrimination are frequent a finding
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`of a continuing violation is more likely.” Lewis v. Bd. of Trustees of Ala. State Univ., 874 F.
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`Supp. 1299, 1304 (M.D. Ala. 1995) (alteration added; citation omitted).
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`Although the Town insists Melendez’s allegations relate solely to the initial denial of
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`light duty work in April 2012 (see Mot. 3), Melendez maintains the discrimination continued for
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`several months past that date, as she continued to lose pay and benefits throughout her pregnancy
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`due to the FMLA leave she was forced to take. (See Resp. 3–4). Her description of the nature of
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`her claim is the more accurate one. To the extent she asserts she was harmed by the denial of
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`light duty during her pregnancy, she has alleged a continuing violation. See Bazemore v. Friday,
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`478 U.S. 385, 395–96 (1986) (holding a perpetuation of salary disparities constituted a
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`continuing violation); Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 448 (11th Cir.
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`1993) (“Partners discriminated against Calloway not only on the day that it offered her less than
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`her white predecessor, but also on every day of her employment.”); Lewis, 874 F. Supp. at 1304
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`(“The Board’s repeated refusal to change Lewis’[s] schedule could be characterized as an
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`ongoing policy to discriminate against Lewis . . . and a continuing state of non-accommodation
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`of Lewis’[s] disability.” (alterations added)).
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`Melendez alleges she suffered an ongoing harm — one that extended well past April
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`2012 — every day she was denied the ability to perform light duty while her non-pregnant peers
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`were given such opportunities. (See Am. Compl. ¶¶ 17, 26). Melendez also correctly notes she
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`initiated the EEOC’s “machinery and remedial processes” long before September 2013 by filing
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`an EEOC Intake Questionnaire on June 11, 2013. Whorton v. Wash. Metro. Area Transit Auth.,
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`924 F. Supp. 2d 334, 346 (D.D.C. 2013). A Rule 12(b)(6) dismissal on statute of limitations
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`grounds is appropriate only if it “is apparent on the face of the complaint.” Omar ex rel. Cannon
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`v. Lindsey, 334 F.3d 1246, 1251 (11th Cir. 2003). Bay Harbor has not established Melendez’s
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`claims are untimely.
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`B. Failure to State a Claim
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`1. Discrimination Claims – Counts I, II, IV, and V
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`Title VII of the Civil Rights Act of 1964 makes it unlawful “to fail or refuse to hire or to
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`discharge any individual, or otherwise to discriminate against any individual with respect to his
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`compensation, terms, conditions, or privileges of employment, because of such individual’s race,
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`color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “The PDA provides that the
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`prohibition against sex-based employment discrimination in Title VII, 42 U.S.C. [section]
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`2000e-2(a)(1), applies with equal force to discrimination on the basis of ‘pregnancy, childbirth,
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`or related medical conditions.’” Nelson v. Chattahoochee Valley Hosp. Soc’y, 731 F. Supp. 2d
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`1217, 1229 (M.D. Ala. 2010) (alteration added) (quoting 42 U.S.C. § 2000e(k)).
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`A plaintiff makes out a prima facie case of sex or pregnancy2 discrimination under Title
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`VII or the FCRA3 by establishing she or: “(1) he is a member of a protected class; (2) he was
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`qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced
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`by a person outside his protected class or was treated less favorably than a similarly-situated
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`individual outside his protected class.” Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep’t
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`of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell
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`Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Bay Harbor asserts Melendez has not
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`established a prima facie case of discrimination on the basis of pregnancy or gender under either
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`Title VII or the FCRA because she has not identified a similarly-situated individual with respect
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`to her pregnancy discrimination claims and fails to allege an adverse employment action with
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`respect to her gender discrimination claims. (See Mot. 5–8).
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`A plaintiff need not necessarily establish a prima facie case under McDonnell Douglas to
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`survive a motion to dismiss, but she must nevertheless satisfy the pleading requirements of Iqbal
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`and Twombly. See Uppal v. Hosp. Corp. of Am., 482 F. App’x 394, 396 (11th Cir. 2012);
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`Ashmore v. F.A.A., No. 11-CV-60272, 2011 WL 3915752, at *2–3 (S.D. Fla. Sept. 2, 2011);
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`Washington v. Sprint Food Stores, Inc., No. 1:10-CV-823-TWT-ECS, 2010 WL 5463137, at *2
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`(N.D. Ga. Dec. 2, 2010). Although courts have dismissed complaints that are “‘[t]hreadbare
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`recitals of the elements of a cause of action,’” Uppal, 482 F. App’x at 396 (alteration added;
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`2 “The analysis required for a pregnancy-discrimination claim is the same type of analysis used in other
`Title VII sex-discrimination suits.” Nelson, 731 F. Supp. 2d at 1229 (citing Armstrong v. Flowers Hosp.,
`Inc., 33 F.3d 1308, 1312–13 (11th Cir. 1994)).
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` “The Eleventh Circuit has determined the FCRA is modeled after Title VII, so that federal case law
`regarding Title VII is applicable to construe the Act.” Mohamed v. Pub. Health Trust of Miami-Dade
`Cnty., No. 09-21235-CIV, 2010 WL 2844616, at *4 (S.D. Fla. July 19, 2010) (internal quotation marks
`and citations omitted). See also Rodriguez v. City of Clermont, 681 F. Supp. 2d 1313, 1335 n.23 (M.D.
`Fla. 2009) (“Claims brought under the FCRA are analyzed under the same framework as claims under
`Title VII.” (citing Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998))).
`Accordingly, the Court addresses the claims together.
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`quoting Iqbal, 556 U.S. at 678), or no more than “‘conclusory allegations without notice of the
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`factual grounds on which they purport to be based,’” Ashmore, 2011 WL 3915752, at *4
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`(quoting Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1271 (11th Cir. 2004)), a plaintiff is
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`not required “to identify each similarly situated nonminority employee for a discrimination claim
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`to pass muster at the motion to dismiss stage,” Raja v. Englewood Cmty. Hosp., Inc., No. 8:12-
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`cv-02083-JDW-AEP, 2013 WL 4016518, at *3 (M.D. Fla. Aug. 6, 2013) (“[T]he Second
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`Amended Complaint sufficiently alleges racial animus and that ECH intended to discriminate
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`against Dr. Raja by treating similarly situated nonminority employees more favorably than him.”
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`(alteration added)). Melendez need not identify by name a specific comparator to sufficiently
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`plead a claim of discrimination. See Veale v. Fla. Dep’t of Health, No. 2:13-cv-77-FtM-
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`38UAM, 2013 WL 5703577, at *5 n.3 (M.D. Fla. July 29, 2013) (“It does not appear that
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`Plaintiff is required to name specific employees at the pleading stage.” (citing Turner v. Fla.
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`Prepaid Coll. Bd., 522 F. App’x 829, 832 (11th Cir. 2013) (recognizing a plaintiff may create a
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`triable issue concerning discriminatory intent through a convincing mosaic of circumstantial
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`evidence))); Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (“[T]he
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`plaintiff’s failure to produce a comparator does not necessarily doom the plaintiff’s case.”
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`(alteration added)). Counts I and IV, for discrimination on the basis of pregnancy, state claims
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`for relief.
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`Melendez’s claims of sex discrimination, however, must be dismissed, as Melendez has
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`not alleged she suffered an adverse employment action. In the Title VII context, an adverse
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`employment action is “a serious and material change in the terms, conditions, or privileges of
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`employment.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001)
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`(emphasis in original). “‘A tangible employment action constitutes significant change in
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`employment status such as hiring, firing, failing to promote, reassignment with significantly
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`different responsibilities or a decision causing a significant change in benefits.’” Webb-Edwards
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`v. Orange Cnty. Sheriff’s Office, 525 F.3d 1013, 1031 (11th Cir. 2008) (quoting Burlington
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`Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
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`Counts II and V complain of the “unsuitable” changing room facilities provided to female
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`employees of the police department. (Am. Compl. ¶¶ 34, 56). Melendez insists the inadequacy
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`of the facilities constitutes an adverse action, arguing “if this type of sex discrimination and
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`humiliation is not sufficient [to constitute an adverse employment action,] then Plaintiff’s
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`allegations that she has lost pay and benefits from Defendant’s other actions of sex and
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`pregnancy discrimination are more than sufficient to demonstrate very significant adverse
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`employment actions.” (Resp. 8 (alteration added)). But Melendez’s allegations regarding lost
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`pay and benefits relate to her pregnancy discrimination claims in Counts I and IV, not her sex
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`discrimination claims in Counts II and V. (Compare Am. Compl. ¶¶ 24–28, with id. ¶¶ 32–36).
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`Melendez bases her claims for sex discrimination on the police department’s “willful failure to
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`provide suitable changing areas for female employees” — a condition Melendez presumably
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`operated under since she joined the department over a decade ago. (Id. ¶ 32).
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`“[T]o prove adverse employment action in a case under Title VII’s anti-discrimination
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`clause, an employee must show a serious and material change in the terms, conditions, or
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`privileges of employment.” Davis, 245 F.3d at 1239 (alteration added; emphasis in original).
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`Melendez does not claim the terms and conditions of her employment were altered — in fact, she
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`claims they were not changed at all. (See Am. Compl. ¶¶ 32, 34, 56). “[T]he protections of Title
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`VII simply do not extend to everything that makes an employee unhappy.” MacLean v. City of
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`St. Petersburg, 194 F. Supp. 2d 1290, 1298 (M.D. Fla. 2002) (alteration added; internal quotation
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`marks and citation omitted). Melendez has not alleged an adverse action, but a continued
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`frustration, and her complaints regarding a discriminatory environment are addressed by Counts
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`III and VI, wherein she alleges Bay Harbor created a hostile work environment. In light of the
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`above, Counts II and V are dismissed.
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`2. Hostile Work Environment Claims – Counts III and VI
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`“[A] plaintiff may establish a violation of Title VII by proving that discrimination based
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`on sex has created a hostile or abusive work environment.” Meritor Sav. Bank v. Vinson, 477
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`U.S. 57, 66 (1986) (alteration added). To state a claim of hostile work environment, a plaintiff
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`must allege:
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`(1) that [s]he belongs to a protected group; (2) that [s]he has been subject to
`unwelcome harassment; (3) that the harassment must have been based on a
`protected characteristic of the employee, such as national origin; (4) that the
`harassment was sufficiently severe or pervasive to alter the terms and conditions
`of employment and create a discriminatorily abusive working environment; and
`(5) that the employer is responsible for such environment under either a theory of
`vicarious or direct liability.
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`Thompson v. City of Miami Beach, Fla., 990 F. Supp. 2d 1335, 1339 (S.D. Fla. 2014) (alterations
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`added; internal quotation marks omitted) (quoting Miller v. Kenworth of Dothan, Inc., 277 F.3d
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`1269, 1275 (11th Cir. 2002)).
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`Bay Harbor argues Melendez has not stated a claim for hostile work environment based
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`on sexual harassment in Counts III and VI because she “fails to allege conduct that is objectively
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`severe or pervasive to be actionable under federal or Florida law.” (Mot. 9 (emphasis omitted)).
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`Melendez alleges she experienced a hostile work environment due to her superior’s unwanted
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`and “frequent” sexual advances as well as that superior’s repeated intrusions into the female
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`changing room while Melendez was changing. (Am. Compl. ¶¶ 21–22, 41–43, 63–65). The
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`Court “cannot say that [Melendez] could prove no set of facts consistent with her allegations”
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`which would amount to a hostile work environment. Lewis, 874 F. Supp. at 1304 (alteration
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`added).
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`Finally, Bay Harbor’s argument Melendez’s claims for hostile work environment are
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`administratively barred is similarly unpersuasive. (See Mot. 4–5). According to Bay Harbor,
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`Melendez is foreclosed from asserting hostile work environment claims because she failed to
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`explicitly raise them in her EEOC Charge. (See id.). Yet, a claim of hostile work environment
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`can “be inferred” from administrative submissions. Whorton, 924 F. Supp. 2d at 348. “[A]
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`plaintiff need not use any magic words in a charge much less use the specific term ‘hostile work
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`environment’ in order to properly exhaust such a claim.” Id. (alteration added; citation omitted).
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`In her EEOC Charge, Melendez states she was discriminated against on the basis of sex,
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`she complains of the changing facilities provided to females, and she states Sergeant Block
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`walked in on her while changing. (See EEOC Charge). “A plaintiff may adequately exhaust
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`administrative remedies without specifically alleging a hostile work environment claim in her
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`formal EEO complaint so long as the hostile work environment claim is like or reasonably
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`related to the allegations in the formal EEO complaint and grows out of such allegations.”
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`Na’im v. Rice, 577 F. Supp. 2d 361, 372 (D.D.C. 2008) (alterations, internal quotation marks,
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`and citations omitted). Melendez’s hostile work environment claim is reasonably related to the
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`allegations in her EEOC Charge. Therefore, Counts III and VI are not dismissed on this basis.
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`C. Punitive Damages
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`In each of her six causes of action, Melendez has included associated requests for
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`punitive damages. (See Am. Compl. ¶¶ 29, 37, 46, 53, 60, 69). Bay Harbor argues Melendez’s
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`requests for punitive damages must be stricken, as “[p]unitive damages are not recoverable
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`against a municipality under Title VII and the FCRA.” (Mot. 10 (alteration added; citations
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`omitted)). Melendez wholly fails to address this argument in her Response ( see generally
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`Resp.), and therefore concedes the point. See Glass v. Lahood, 786 F. Supp. 2d 189, 210
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`(D.D.C. 2011) (noting “when a plaintiff files an opposition to a dispositive motion and addresses
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`only certain arguments raised by the defendant, a court may treat those arguments that the
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`plaintiff failed to address as conceded” (citations and internal quotation marks omitted)).
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`Accordingly, the requests for punitive damages are stricken.
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`IV. CONCLUSION
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`For the foregoing reasons, it is
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`ORDERED AND ADJUDGED that Defendant, Town of Bay Harbor Islands’s Motion
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`[ECF No. 22] is GRANTED in part and DENIED in part. Counts II and V are DISMISSED.
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`Plaintiff’s requests for punitive damages are STRICKEN. Defendant shall file an answer to the
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`remaining claims within the time permitted by the Rules.
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`DONE AND ORDERED in Miami, Florida, this 25th day of November, 2014.
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`counsel of record
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` _________________________________
` CECILIA M. ALTONAGA
` UNITED STATES DISTRICT JUDGE
`
`12
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`cc: