# Alvarez v. Lakeland Area Mass Transit District

> District Court, M.D. Florida · August 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10103553

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10103553

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10103553. Public record. Not legal advice.