Alvarez v. Lakeland Area Mass Transit District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BRENDA ALVAREZ,

Plaintiff,

v. Case No. 8:19-cv-1044-T-33SPF

LAKELAND AREA MASS TRANSIT

DISTRICT,

Defendant.

______________________________/

ORDER

This matter is before the Court on consideration of

Defendant Lakeland Area Mass Transit District’s Motion to

Dismiss the Second Amended Complaint (Doc. # 30), filed on

July 25, 2019. Plaintiff Brenda Alvarez filed a response in

opposition on August 21, 2019. (Doc. # 35). For the reasons

that follow, the Motion is denied.

I. Background

Alvarez worked for the District as a senior financial

reporting analyst from May 31, 2016, to October 20, 2017.

(Doc. # 29 at 2). She “is a member of protected classes due

to her gender (female), her age (over 40), and because she

reported [the District’s] unlawful employment activities and

was subject to retaliation thereafter.” (Id. at 1). Alvarez

insists she was a satisfactory employee. (Id. at 2). Alvarez

alleges that “[t]he disparate treatment and retaliation came

at the hands of specifically, but not limited to, David

Persaud, [the District’s] chief financial officer (‘CFO’);

Steven Schaible, [the District’s] human resources (‘HR’)

director; and Tom Phillips, [the District’s] executive

director.” (Id.).

Persaud — Alvarez’s supervisor — “demeaned and ridiculed

[her] repeatedly and publicly in multiple staff meetings, and

in the presence of [her] professional colleagues,” allegedly

because of Alvarez’s gender and age. (Id.). Persaud “micro-

manage[d], intimidate[d] and bull[ied]” Alvarez; for example,

he “glared menacingly and excessively at [Alvarez] when in

proximity to her.” (Id. at 3). He also “sent [Alvarez]

harassing email communications and interfered with [her]

work-related discussions with others in the workplace.”

(Id.). The Complaint also alleges that Persaud treated

various male or younger female employees better than he

treated Alvarez, even when those other employees did not

perform satisfactorily. (Id. at 3-5).

So, in July 2017, Alvarez made a formal complaint to

Phillips in which she “addressed the targeted mistreatment

Plaintiff experienced due to Persaud’s gender-based and age-

based animus, and to Persaud’s inappropriate, improper, and

illegal actions and work-place conduct.” (Id. at 5). The next

day, Alvarez met with Schaible — the HR director — to discuss

her formal complaint against Persaud. (Id.).

But “Persaud’s hostile, improper and illegal conduct

toward [Alvarez] continued and intensified, causing [her] to

suffer severe anxiety and emotional distress.” (Id.). Alvarez

believes “Persaud’s amplified post-complaint hostile conduct

toward [her] was in retaliation for [her] complaint and was

intended to force [her] to resign.” (Id.). When Alvarez did

not resign, “Persaud simply excluded [her] from staff and

grant meetings, thereby interfering with [Alvarez’s] ability

to competently and successfully perform the essential duties

and functions of her position,” and committed other allegedly

retaliatory conduct. (Id.).

Additionally, according to the Second Amended Complaint,

the District’s human resources department and internal equal

employment investigator failed to properly investigate

Alvarez’s formal complaint against Persaud. (Id. at 6).

Schaiable then “directed negative written evaluations of

[Alvarez’s] job performance.” (Id.). Alvarez was also “denied

a promised increase in compensation,” allegedly “in

retaliation for making the complaints.” (Id.).

Alvarez’s health began to suffer as a result of the

discriminatory and retaliatory actions she faced. (Id.). She

was required “to submit leave requests for physician and other

health care related appointments.” (Id.). Alvarez “was the

only salaried employee required to submit leave requests for

these type [of] appointments.” (Id.).

In September 2017, Alvarez “submitted documentation for

the second time notifying Schaible that she was filing for

Family and Medical Leave Act (FMLA) benefits.” (Id. at 7).

Alvarez “had already requested FMLA leave and provided notice

and documentation to Schaible; however, upon information and

belief, Schaible denied receiving the submission of

Plaintiff’s first set of FMLA documentation.” (Id.). Schaible

later contacted Alvarez on October 13, 2017, “threaten[ing]

to terminate [her] if she failed to provide additional

documentation regarding her FMLA request by October 20,

2017.” (Id.). But Alvarez had already “submitted all of the

documents she was provided to submit which were supported by

the proper signatures and information.” (Id.).

Because of Schaible’s demand for further paperwork,

Alvarez quit, which she claims was a constructive

termination. (Id.). According to her, “[n]o reasonable person

would have remained in that work environment under these

circumstances.” (Id.). Alvarez’s replacement was a 41-year-

old woman. (Id.).

Alvarez initiated this action in state court on January

15, 2019. (Doc. # 4-1). The District removed the case to this

Court on April 30, 2019. (Doc. # 4). When the District moved

to dismiss the Complaint (Doc. # 6), Alvarez filed an Amended

Complaint. (Doc. # 16). Then, the District moved to dismiss

the Amended Complaint, (Doc. # 21), and the Court dismissed

the Amended Complaint as a shotgun complaint on July 3, 2019.

(Doc. # 28).

With the Court’s leave, Alvarez filed the Second Amended

Complaint on July 11, 2019. (Doc. # 29). The Second Amended

Complaint contains twelve counts: Count I for “Gender-Based

Disparate Treatment” under Title VII; Count II for “Gender-

Based Disparate Treatment” under Florida’s Civil Rights Act

(FCRA); Count III for “Age-Based Disparate Treatment” under

the Age Discrimination in Employment Act (ADEA); Count IV for

“Age-Based Disparate Treatment” under the FCRA; Count V for

“Constructive Discharge” under Title VII; Count VI for

“Constructive Discharge” under the ADEA; Count VII for

“Constructive Discharge” under the FCRA; Count VIII for

“Retaliation” under Title VII; Count IX for “Retaliation”

under the ADEA; Count X for “Retaliation” under the FCRA;

Count XI for “FMLA Interference”; and Count XII for “FMLA

Retaliation.” (Id.).

The District now moves to dismiss the Second Amended

Complaint. (Doc. # 30). Alvarez has responded (Doc. # 35),

and the Motion is ripe for review.

II. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), this

Court accepts as true all the allegations in the complaint

and construes them in the light most favorable to the

plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004). Further, the Court favors the plaintiff

with all reasonable inferences from the allegations in the

complaint. Stephens v. Dep’t of Health & Human Servs., 901

F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal

citations omitted). Courts are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan

v. Allain, 478 U.S. 265, 286 (1986). “The scope of review

must be limited to the four corners of the complaint” and

attached exhibits. St. George v. Pinellas Cty., 285 F.3d 1334,

1337 (11th Cir. 2002).

III. Analysis

The District seeks dismissal on the grounds that the

Second Amended Complaint fails to satisfy minimum pleading

standards and fails to state plausible claims for relief under

the various statutes. (Doc. # 30).

A. Minimum Pleading Standards

The District contends that the Second Amended Complaint

still fails to satisfy the minimum pleading standards set by

Federal Rules of Civil Procedure 8 and 10 and is a shotgun

complaint. (Id. at 4).

The Court disagrees. The Second Amended Complaint is not

a shotgun complaint. It does not combine claims under

different statutes into the same count. To the extent the

District insists that certain counts commingle two different

theories of discrimination (discrimination by tangible

employment action and hostile work environment), such

commingling does not render the Second Amended Complaint a

shotgun complaint.

True, the Court suggested to Alvarez in its Order

dismissing the Amended Complaint that it would be easier to

understand her claims if she separated gender discrimination

and hostile work environment claims into separate counts.

(Doc. # 28 at 9). But the Court never held that such

separation was required. Furthermore, in her response,

Alvarez clarifies that she is not bringing a claim for hostile

work environment under any statute. (Doc. # 35 at 5-6, 18).

Therefore, no separate counts for hostile work environment

were required.

Nor does the Second Amended Complaint violate other

pleading standards set by Rules 8 and 10. The Second Amended

Complaint satisfies Rule 8, even if the separate counts do

not recite “the requisite elements of each cause of action

with an application of the facts thereto” as the District

alleges. (Doc. # 30 at 4); see Fed. R. Civ. P.

8(a)(2)(requiring only “a short and plain statement of the

claim showing that the pleader is entitled to relief”). And

the allegations are laid out in numbered paragraphs with

claims under different statutes asserted in separate counts

— thus satisfying Rule 10. See Fed. R. Civ. P. 10(b).

Thus, the Court declines to dismiss the Second Amended

Complaint based on the minimum pleading standards.

B. The Merits

Next, the District argues that all claims fail to state

plausible claims for relief. (Doc. # 30 at 7-21).

Specifically, the District argues that Alvarez’s claims for

(1) gender discrimination under Title VII and the FCRA, (2)

age discrimination under the ADEA and the FCRA, (3) the

constructive discharge claims under Title VII, the ADEA, and

the FCRA, (4) the retaliation claims under Title VII, the

ADEA, and the FCRA, and (5) the FMLA interference and

retaliation claims fail. The Court will address these claims

separately.

1. Gender Discrimination

Regarding Counts I and II, the District argues Alvarez

has not sufficiently pled “any adverse employment action

taken with respect to her sex.” (Doc. # 30 at 8).

Additionally, the District insists Alvarez’s allegations

about comparators “are conclusory in nature and devoid of the

necessary factual enhancement needed.” (Id. at 10).

In response, Alvarez argues that she has alleged adverse

employment actions based on her gender. (Doc. # 35 at 7). In

addition to the conduct specifically identified as the result

of gender discrimination — humiliation in meetings, micro-

management, harassing emails, and forcing her to submit leave

forms (Doc. # 29 at 2-4) — Alvarez insists the Court should

consider the allegations that she was denied a promised raise

and received negative performance evaluations. (Doc. # 35 at

7). She contends that these actions were taken with both

discriminatory and retaliatory intent. (Id.).

An “adverse employment action” is “a decision of the

employer [that] ‘impact[s] the terms, conditions, or

privileges of [her] job in a real and demonstrable way.’”

Jefferson v. Sewon Am., Inc., 891 F.3d 911, 920–21 (11th Cir.

2018)(citation omitted). “This ‘impact cannot be speculative

and must at least have a tangible adverse effect on the

plaintiff’s employment.’” Id. at 921. “The ‘employee must

show a serious and material change in the terms, conditions,

or privileges of employment’ so that a ‘reasonable person in

the circumstances’ would find ‘the employment action [to] be

materially adverse.’” Id.

Alvarez has sufficiently pled at least one adverse

employment action — the denial of a promised raise. (Doc. #

29 at 6); see Gillis v. Ga. Dep’t of Corr., 400 F.3d 883, 888

(11th Cir. 2005)(“We hold that an evaluation that directly

disentitles an employee to a raise of any significance is an

adverse employment action under Title VII. We note that this

case does not involve disentitlement to a de minimis raise;

rather, the denial of the raise at issue here was an

employment decision that significantly affected Gillis’s

compensation.”); see also Barricks v. Eli Lilly & Co., 481

F.3d 556, 559 (7th Cir. 2007)(“[T]he denial of a raise — as

opposed to missing out on something more transient, like a

bonus — qualifies as an adverse employment action.”). True,

the Second Amended Complaint states that Alvarez was given

negative performance reviews and denied a raise “in

retaliation” for Alvarez complaining to HR. (Doc. # 29 at 5-

6). Nevertheless, the Court reads these allegations in the

light most favorable to Alvarez and finds that these alleged

adverse employment actions were intended to apply to both the

sex and age discrimination claims and the retaliation claims.

Because at least one alleged action is an adverse

employment action, the Court need not decide whether the other

discriminatory conduct rises to the level of an adverse

employment action at this juncture.

Regarding comparators, Alvarez has identified four male

comparators she alleges were treated better than her. (Doc.

# 29 at 4-5, 8). The District’s arguments about whether the

alleged comparators were truly similarly situated to Alvarez

are better addressed at the summary judgment stage.

Determining whether a plaintiff and comparator are “similarly

situated in all material respects” is a fact-intensive

inquiry better suited to summary judgment. See Lewis v. City

of Union City, Ga., 918 F.3d 1213, 1218 (11th Cir.

2019)(reviewing a summary judgment decision and stating “that

a meaningful comparator analysis must be conducted at the

prima facie stage of McDonnell Douglas’s burden-shifting

framework” and that the proper standard for proffered

comparators is whether they are “similarly situated in all

material respects”).

Furthermore, the Court notes that comparator evidence is

not the only means of establishing discrimination under

Eleventh Circuit precedent. See Kent v. City of Birmingham,

No. 2:18-CV-00734-JHE, 2019 WL 1505413, at *3 (N.D. Ala. Apr.

5, 2019)(denying motion to dismiss and stating that the

defendant’s “argument that [the plaintiff] must name a

similarly-situated comparator outside his protected class

does not doom his claim because . . . in some circumstances,

a plaintiff can establish a prima facie Title VII case for

disparate treatment without showing the existence of a

comparator”); see also Rioux v. City of Atlanta, 520 F.3d

1269, 1281 (11th Cir. 2008)(holding that the plaintiff

established a prima facie case of racial discrimination when

he did not present evidence of a comparator but presented

other circumstantial evidence that was sufficient). Thus,

even if Alvarez’s allegations regarding comparators were

insufficient, that would not justify dismissal of these

claims.

Finally, as mentioned above, Alvarez states in her

response that she is not bringing these — or any — claims

under the hostile work environment theory. (Doc. # 35 at 5-

6, 18). Thus, the District’s arguments regarding hostile work

environment are unnecessary.

The Motion is denied as to Counts I and II.

2. Age Discrimination

As with the sex discrimination claims, the District

argues that “none of the alleged employment actions taken

with respect to Plaintiff allegedly premised on her age are

adverse employment actions as a matter of law” and thus cannot

support Alvarez’s claims of age discrimination, Counts III

and IV. (Doc. # 30 at 16). The District also maintains that

Alvarez’s allegations regarding comparators are again

insufficient. (Id.).

The Court rejects these arguments for the same reasons

discussed for the sex discrimination claims. At the pleading

stage, Alvarez has sufficiently alleged at least one adverse

employment action and Alvarez’s allegations about comparators

do not justify dismissal. The Motion is denied as to Counts

III and IV.

3. Constructive Discharge

The District contends that the three constructive

discharge claims, Counts V-VII, fail to state plausible

claims for relief. (Doc. # 30 at 17).

“A constructive discharge occurs when a discriminatory

employer imposes working conditions that are ‘so intolerable

that a reasonable person in [the employee’s] position would

have been compelled to resign.’” Fitz v. Pugmire Lincoln-

Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003)(citation

omitted). This is a high standard and “[o]ne’s working

environment does not become objectively intolerable simply

because it becomes less attractive.” Hipp v. Liberty Nat’l

Life Ins. Co., 252 F.3d 1208, 1231-1235 (11th Cir. 2001); see

also Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir.

2009)(“Establishing a constructive discharge claim is a more

onerous task than establishing a hostile work environment

claim.”).

In its Motion, the District cited this legal standard

for constructive discharge claims. (Doc. # 30 at 17-18).

However, the District cited no authority decided at the motion

to dismiss stage to support its contention that Alvarez’s

allegations fall short of stating a claim. Thus, the District

has not convinced the Court that Alvarez’s allegations are

insufficient at the motion to dismiss stage. See Herbert v.

Architect of Capitol, 839 F. Supp. 2d 284, 298 (D.D.C.

2012)(“[T]he [defendant] has simply failed to support its

argument with any meaningful measure of factual or legal

argument. Courts need not consider cursory arguments of this

kind, and the Court declines to do so here.”).

Taking all allegations in the light most favorable to

Alvarez, the Second Amended Complaint pleads plausible claims

for constructive discharge under Title VII, the ADEA, and the

FCRA. Alvarez has clearly alleged that the conditions she

faced, which included micro-management, harassing emails,

glaring, humiliation in front of coworkers, exclusion from

meetings, a negative performance review, and denial of a

promised raise, among other things, were intolerable. (Doc.

# 29 at 2-6). She specifically alleges that “[n]o reasonable

person would have remained in that work environment under

these circumstances.” (Id. at 7). Thus, the Motion is denied

as to Counts V-VII. The District may reassert its arguments

at the summary judgment stage.

4. Retaliation

Next, the District argues Alvarez has not pled plausible

claims for retaliation under Title VII, the ADEA, and the

FCRA. (Doc. # 30 at 19). However, the District fails to cite

any legal authority in its argument for dismissal of these

claims. Furthermore, the District’s argument for dismissal is

primarily that Alvarez has failed to specify whether she is

proceeding on these claims under a hostile work environment

theory or otherwise. (Id.).

But, again, Alvarez has clarified that she is not

bringing any claims under a hostile work environment theory.

(Doc. # 28 at 5-6, 18). The District’s concern over this issue

is thus moot. And upon review of the Second Amended Complaint,

the Court finds that Alvarez has sufficiently pled her claims

for retaliation. Thus, the District’s Motion is denied as to

the retaliation claims.

5. FMLA Interference and Retaliation

Regarding the FMLA interference claim, Count XI, the

District contends — without citation to any authority — that

Alvarez “simply makes conclusory statements that [she] was

denied rights and benefits conferred by FMLA and that [she]

was harassed after asking for FMLA leave, however, there are

no pled facts that establish any of these allegations.” (Doc.

# 30 at 20). The District emphasizes that Alvarez did take

FMLA leave and that, besides the District’s request for

additional paperwork while Alvarez was on leave, there are

“no factual allegations that [she] was ever prevented from

taking leave or denied any rights or benefits or that

establish any sort of interference with her FMLA rights.”

(Id.). Again, the Court is not persuaded by the District’s

unsupported argument. See Herbert, 839 F. Supp. 2d at 298

(“[T]he [defendant] has simply failed to support its argument

with any meaningful measure of factual or legal argument.

Courts need not consider cursory arguments of this kind, and

the Court declines to do so here.”).

Regardless, the Court finds that Alvarez has

sufficiently stated an FMLA interference claim at the motion

to dismiss stage. “An interference claim occurs when an

employer interferes with, restrains, or denies the exercise

or attempted exercise of FMLA rights or benefits.” Hogancamp

v. Cty. of Volusia, 316 F. Supp. 3d 1354, 1358 (M.D. Fla.

2018)(citing 29 U.S.C. § 2615(a)(1)). Alvarez alleges that

Schaible denied receiving Alvarez’s first set of FMLA

documentation, which required Alvarez to submit a second set

of FMLA documentation to support her leave request in

September 2017. (Doc. # 28 at 7). The allegation regarding

the first set of documentation supports the inference that

Schaible had received the first set of documentation but

deliberately ignored it in order to make it more difficult

for Alvarez to obtain FMLA leave. Furthermore, Alvarez’s

allegation that Schaible demanded Alvarez provide further

paperwork regarding her FMLA request in October of 2017 is

significant. Alvarez states that she “had submitted all of

the documents she was provided to submit which were supported

by the proper signatures and information” before Schaible

demanded more paperwork. (Id.). Taking these allegations in

the light most favorable to Alvarez, it’s plausible that no

further documentation was truly necessary, but Schaible

demanded it while threatening to terminate Alvarez in order

to interfere with her FMLA leave. Thus, at the pleading stage,

Alvarez’s allegations are enough to state a plausible claim

for FMLA interference.

Finally, concerning the FMLA retaliation claim, the

District argues this claim is insufficiently pled because

Alvarez “simply makes conclusory statements that Plaintiff

was harassed and that adverse personnel actions were taken

against her after she made a request for FMLA leave.” (Doc.

# 30 at 20). According to the District, the allegations of

the Second Amended Complaint are “inconsistent” because

while [Alvarez] makes the conclusory allegations

that she was subject to an adverse personnel action

and harassed after requesting leave, [her] pled

facts establish that she was out on leave and that

the only contact she alleged she had with [the

District] after [she] requested FMLA leave was a

request from [the District] to provide additional

FMLA paperwork.

(Id. at 20-21).

But, again, the allegation that Schaible demanded

further paperwork from Alvarez after she had properly

submitted all documentation she was told was necessary

supports the plausible reading that this additional paperwork

was intended to retaliate against Alvarez for taking FMLA

leave. Taking all the allegations in the light most favorable

to Alvarez, the Second Amended Complaint states a claim for

FMLA retaliation.

The District’s Motion is denied as to the FMLA

interference and FMLA retaliation claims, Counts XI and XII.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Lakeland Area Mass Transit District’s Motion

to Dismiss the Second Amended Complaint (Doc. # 30) is

DENIED.

(2) The District’s Answer to the Second Amended Complaint is

due 14 days from the date of this Order.

DONE and ORDERED in Chambers in Tampa, Florida, this

30th day of August, 2019.

fan fr. Munahy (noiyh

VIR! IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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