Bonner v. Sarasota County School Board

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHERAINA BONNER,

Plaintiff,

v. Case No. 8:19-cv-2740-T-33AEP

SARASOTA COUNTY SCHOOL BOARD,

Defendant.

________________________________/

ORDER

This matter is before the Court on consideration of

Defendant Sarasota County School Board’s Motion to Dismiss

or, in the Alternative, to Strike (Doc. # 29), filed on

January 2, 2020. Plaintiff Cheraina Bonner filed a response

in opposition on January 10, 2020. (Doc. # 30). The Motion is

granted as set forth below.

I. Background

Bonner, an administrative assistant with the School

Board, initiated this case on November 4, 2019. (Doc. # 1).

The School Board moved to dismiss the initial complaint (Doc.

# 17), and Bonner ultimately filed an amended complaint on

December 9, 2019. (Doc. # 25).

With the School Board’s consent, Bonner filed a second

amended complaint on December 19, 2019. (Doc. # 28). In the

second amended complaint, Bonner asserts two claims under

Title VII for sexual harassment (Count I) and retaliation

(Count II). (Id.).

Bonner alleges that Jeffrey Maultsby, her boss and

Assistant Superintendent for the school district, sexually

harassed her and that the School Board retaliated against her

for reporting the harassment. Bonner alleges that Maultsby,

among other things, (i) sent her over 800 unwanted text

messages, including messages stating that he loved and missed

her, and (ii) forced her “to rub his arm in his office to

feel his shirt even after [Bonner] refused multiple times.”

(Doc. # 28 at 3-4).

Bonner also alleges that, before Maultsby became

Assistant Superintendent, she told him “that she had been

applying for jobs that would be a promotion for her,” but

Maultsby responded that “he would not let [her] leave and

would not permit her to receive another job.” (Id. at 3, 13).

Nevertheless, Bonner “took exams and received her CDL license

in an effort to gain the position of Supervisor in the busing

area,” a position she “was most qualified for.” (Id. at 3,

14). When Bonner told Maultsby about the position, “he

responded that she was not permitted to leave her position as

his assistant and he would not permit her to take that

position.” (Id.). Bonner ultimately did not receive the

promotion, which would have included a pay raise. (Id.).

According to Bonner, her “not receiving the position is sexual

harassment and hostile work environment and is a direct damage

of such.” (Id. at 14).

The School Board filed the instant Motion on January 2,

2020. (Doc. # 29). In the Motion, the School Board takes issue

only with certain paragraphs regarding an alleged denial of

promotion by Maultsby. (Id.). Specifically, the School Board

asks that the Court dismiss the second amended complaint

because of the inclusion of paragraphs 18-22, 119-128, and

256 or, alternatively, strike these paragraphs. (Id. at 1).

Bonner has responded (Doc. # 30), 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 Court must limit its

consideration to well-pleaded factual allegations, documents

central to or referenced in the complaint, and matters

judicially noticed. La Grasta v. First Union Sec., Inc., 358

F.3d 840, 845 (11th Cir. 2004).

Additionally, the Federal Rules of Civil Procedure give

courts discretion to “strike from a pleading . . . any

redundant, immaterial, impertinent, or scandalous matter.”

Fed. R. Civ. P. 12(f). “Motions to strike are generally

disfavored and will be denied ‘unless the allegations have no

possible relation to the controversy and may cause prejudice

to one of the parties.’” Clark v. Zale Corp., No. 6:12-cv-

1667-Orl-28GJK, 2013 WL 4927902, at *3 (M.D. Fla. Sept. 12,

2013)(quoting Somerset Pharm., Inc. v. Kimball, 168 F.R.D.

69, 71 (M.D. Fla. 1996)). “Though the standard of review for

motions to strike is ‘stringent,’ they can be granted ‘where

the allegations are insufficient as a matter of law to succeed

under provable facts.’” Id. (quoting Smith v. City of Lake

City, No: 3:12–cv–553–J–99MMH–TEM, 2012 WL 4772286, at *1

(M.D. Fla. Oct. 8, 2012)).

III. Analysis

The Court begins by addressing Bonner’s argument that

the School Board violated Local Rule 3.01(g) in filing its

Motion. (Doc. # 30 at 2). Local Rule 3.01(g) exempts motions

to dismiss from the requirement that parties confer before

filing a motion. Local Rule 3.01(g), M.D. Fla. Local Rule

3.01(g) does not, however, exempt motions to strike from the

conferral requirement. Thus, the School Board was technically

required to confer with Bonner regarding the portion of its

Motion seeking to strike certain paragraphs of the second

amended complaint. Nevertheless, as the Motion primarily

seeks to dismiss the second amended complaint, which did not

require conferral, the Court finds the School Board’s

violation of Local Rule 3.01(g) harmless. The Court will not

deny the Motion for violating Local Rule 3.01(g), as Bonner

requests.

A. Shoehorned Failure-to-Promote Claim

According to the School Board, “Bonner attempts to

shoehorn her promotion claim into her claim of hostile work

environment sexual harassment by claiming that the promotion

denial constituted sexual harassment.” (Doc. # 29 at 4).

“However, unlike hostile work environment harassment, the

denial of a promotion is a discrete employment decision.”

(Id.). The School Board insists that “[c]laims for sexual

harassment and claims for failure to promote are distinctly

different claims with different burdens of proof and

defenses.” (Id.). Thus, the School Board appears to argue

that Count I should be dismissed to the extent it relies on

the allegation that Bonner was denied a promotion.

The School Board is incorrect that Bonner cannot assert

a sexual harassment claim based both on a hostile work

environment and a denial of a promotion. A denial of a

promotion can form the basis of a sexual harassment claim.

“Sexual harassment in the workplace can alter the terms

and conditions of employment in either of two ways. One way

is if the employee’s refusal to submit to a supervisor’s

sexual demands results in a tangible employment action being

taken against her.” Hulsey v. Pride Restaurants, LLC, 367

F.3d 1238, 1245 (11th Cir. 2004).1 The Eleventh Circuit has

said explicitly that a promotion denial is a tangible

employment action that can form the basis of a tangible

employment action sexual harassment claim. See Id. at 1245

(“As defined by the Supreme Court, a tangible employment

action is ‘a significant hiring, firing, failing to promote,

reassignment with significantly different responsibilities,

or a decision causing a significant change in benefits.’”

(emphasis added)(citation omitted)).

“The second way for sexual harassment to violate Title

VII is if it is sufficiently severe and pervasive to

effectively result in a change (sometimes referred to as a

constructive change) in the terms and conditions of

employment, even though the employee is not discharged,

demoted, or reassigned.” Id. “This is hostile work

environment harassment.” Id. Because the hostile work

environment theory does not depend on tangible employment

1 The tangible employment action theory of sexual harassment

was once called quid pro quo harassment. See Id. at 1245 n.4

(“Like a lot of other courts, we formerly used the term ‘quid

pro quo’ to describe situations where a benefit of employment

was tied to a demand for sexual favors. Since the Supreme

Court instructed us that term should no longer be used in the

analysis of whether an employer is liable under Title VII, we

have used the preferred term ‘tangible employment action’ to

refer to harassment that culminates in a discharge, demotion,

or undesirable reassignment.” (citation omitted)).

actions, a promotion denial does not form the basis of a

sexual harassment claim premised on hostile work environment.

By and large, Count I for “sexual harassment” espouses

a hostile work environment theory. For example, the

allegations that Maultsby sent Bonner numerous text messages,

made inappropriate sexual comments, and forced Bonner to

touch his arm all fit squarely in the hostile work environment

theory of sexual harassment. (Doc. # 28 at 3-7). Nevertheless,

the allegations of the promotion denial could potentially

support the application of the tangible employment action

sexual harassment theory.

The Eleventh Circuit has held that plaintiff-employees

are not required to plead harassment claims under the two

different theories as separate claims because they are the

same claim. See Hulsey, 367 F.3d at 1246 (explaining that the

plaintiff “was not required to plead tangible employment

action as a separate claim [from hostile work environment

sexual harassment], because it is not a separate claim”).

Thus, Bonner’s addressing both theories in Count I is

acceptable and does not support dismissal of the tangible

employment action theory.

B. Exhaustion of Administrative Remedies

Regardless of whether the promotion denial allegations

were improperly “shoehorned” into the sexual harassment

claim, the School Board contends that Bonner has not

administratively exhausted the promotion denial allegations.

(Doc. # 29 at 11-12). The Court agrees.

As a preliminary matter, the Court notes that Bonner

filed a new EEOC charge on January 2, 2020 — the same day the

instant Motion was filed. (Doc. # 30-2). That charge advances

a sexual harassment claim premised on denial of a promotion,

explaining that: “Mr. Maultsby refused Ms. Bonner a promotion

as part of the sexual harassment” and that Bonner “would like

to add to her sexual harassment claim the refusal to permit

promotion or change in work position.” (Id.). But, as Bonner

acknowledges, the EEOC has not issued her a right to sue

letter.

Bonner has cited no authority for the proposition that

her promotion denial allegations should be considered

administratively exhausted based on the pending January 2

EEOC charge. Indeed, authority suggests the opposite. See,

e.g., Barclay v. First Nat’l Bank of Talladega, No. 1:14-CV-

01573-KOB, 2014 WL 5473829, at *6 (N.D. Ala. Oct. 28,

2014)(“The court cannot hear Barclay’s Title VII failure to

promote claim until she receives a right to sue letter from

the EEOC.”); Lopez v. City of W. Miami, No. 1:14-CV-23293-

UU, 2015 WL 12978166, at *2 (S.D. Fla. Sept. 16, 2015)(“The

record plainly shows that Plaintiff’s allegation that she

‘exhausted all administrative remedies required of her’ had

no reasonable factual basis. When she filed the Second Amended

Complaint, Plaintiff knew she had filed a second EEOC charge

that was still pending. Thus, whatever claims arose out of

the second charge had clearly not been exhausted.”), aff’d,

662 F. App’x 733 (11th Cir. 2016). Thus, the Court limits its

analysis to the EEOC charges for which Bonner has received

right to sue letters.

Before filing a suit under Title VII, a plaintiff must

exhaust her available administrative remedies by filing a

charge with the EEOC. Anderson v. Embarq/ Sprint, 379 F. App’x

924, 926 (11th Cir. 2010)(citing 42 U.S.C. § 2000e–5(e)(1)).

“The starting point of ascertaining the permissible scope of

a judicial complaint alleging employment discrimination is

the administrative charge and investigation.” Id. A

plaintiff’s complaint is “limited by the scope of the EEOC

investigation which can reasonably be expected to grow out of

the charge of discrimination.” Alexander v. Fulton County,

207 F.3d 1303, 1332 (11th Cir. 2000); see also Sanchez v.

Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir.

1970)(noting that the allegations in a complaint filed

pursuant to Title VII may encompass any kind of discrimination

like or related to the allegations contained in the charge).

Therefore, claims — even new claims — “are allowed if

they amplify, clarify, or more clearly focus the allegations

in the EEOC complaint.” Anderson, 379 F. App’x at 926

(internal quotations omitted). Conversely, “allegations of

new acts of discrimination are inappropriate.” Gregory v. Ga.

Dep’t of Human Res., 355 F.3d 1277, 1279–80 (11th Cir. 2004).

Nonetheless, courts are “extremely reluctant to allow

procedural technicalities to bar claims brought under [Title

VII].” Sanchez, 431 F.2d at 460–61. Thus, “the scope of an

EEOC complaint should not be strictly interpreted.” Id. at

465.

In its Motion, the School Board goes through Bonner’s

EEOC charges for which she has been issued a right to sue

letter. (Doc. # 29 at 5-11). The Court considers these EEOC

charges central to the second amended complaint and no

question of their authenticity has been raised. See, e.g.,

Barclay, 2014 WL 5473829, at *2 (“The court may consider the

2013 EEOC charge on a motion to dismiss without converting

the motion to one for summary judgment because the 2013 EEOC

charge is central to Barclay’s complaint and both parties

accept the 2013 EEOC charge as authentic.”); Arnold v. United

Parcel Serv., Inc., No. 7:11-CV-00118 HL, 2012 WL 1035441, at

*1 (M.D. Ga. Mar. 27, 2012)(“Here, the EEOC Charge is central

to the complaint because the underlying allegations are

violations of Title VII discrimination. Additionally, the

contents of the EEOC Charge are not in dispute by either

party. . . . Therefore, the Court will consider Plaintiff’s

EEOC Charge in ruling on Defendant’s Motion to Dismiss.”).

Notably, the EEOC charges do not mention Maultsby’s comments

about denying Bonner a promotion. (Doc. ## 29-2, 29-3, 29-4,

29-5, 29-6). Nor do they mention that Bonner ever applied for

a promotion, let alone did not receive one.

While Bonner was not required to plead her tangible

employment action theory in a separate count from her hostile

work environment theory in the second amended complaint,

Hulsey, 367 F.3d at 1246, Bonner was still required to

administratively exhaust the tangible employment action

theory in her EEOC charge. In Minix v. Jeld-Wen, Inc., 237 F.

App’x 578 (11th Cir. 2007), the Eleventh Circuit held that a

plaintiff was barred from alleging harassment based on a

tangible employment action when the EEOC charge discussed

only a hostile work environment. The court explained that

“[a]n allegation of harassment premised on a supervisor’s

tangible employment action is not ‘like or related to’ and

does not ‘gr[o]w out of’ an allegation of harassment premised

solely on the existence of a hostile working environment.

Those theories are wholly distinct and represent entirely

different ways of demonstrating a violation of Title VII.”

Id. at 588.

Thus, the Minix court concluded that “Sims’s new

allegation that Fetner took a tangible employment action

against her does not in any way ‘amplify, clarify, or more

clearly focus’ any of the hostile-environment allegations

made in her EEOC charge. Rather, Sims’s tangible-employment-

action allegation is an ‘allegation[ ] of [a] new act[ ] of

discrimination’ that we have said is ‘inappropriate’ where,

as here, it has not been alleged in a previous EEOC charge.”

Id.

As in Minix, Bonner has not administratively exhausted

the promotion denial allegations. Contrary to Bonner’s

assertion, an EEOC investigation into the alleged promotion

denial could not reasonably be expected to grow out of

Bonner’s EEOC charges. Thus, Bonner is barred at this juncture

from relying on the promotion denial allegations to form the

basis of her sexual harassment claim under the tangible

employment action theory. However, as the promotion denial

allegations also serve as useful background information on

Bonner’s interactions with Maultsby, the Court does not find

it necessary to strike the promotion denial allegations. See

MDT Pers., LLC v. Camoco, LLC, No. 8:10-cv-2545-T-33MAP, 2011

WL 2078637, at *1 (M.D. Fla. May 25, 2011)(“A motion to strike

will ‘usually be denied unless the allegations have no

possible relation to the controversy and may cause prejudice

to one of the parties.’” (citation omitted)).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

Defendant Sarasota County School Board’s Motion to

Dismiss or, in the Alternative, to Strike (Doc. # 29) is

GRANTED to the extent Bonner has not exhausted her

administrative remedies for the promotion denial allegations.

However, the Court declines to strike the promotion denial

allegations from the second amended complaint. Bonner may

still proceed on her sexual harassment claim under the hostile

work environment theory, which Bonner has administratively

exhausted. The School Board’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 January, 2020.

fan fr. Munahy (noiyh

VIR! IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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