Pagan v. Wal-Mart Associates, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOSE PAGAN,

Plaintiff,

v. Case No: 8:21-cv-1095-VMC-JSS

WAL-MART ASSOCIATES, INC.,

Defendant.

____________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant Wal-Mart Associates, Inc.’s Motion to Dismiss the

Amended Complaint (Doc. # 12), filed on June 10, 2021.

Plaintiff Jose Pagan responded on June 24, 2021. (Doc. # 15).

For the reasons below, the Motion is denied.

I. Background

According to the operative complaint, Plaintiff Jose

Pagan worked for Defendant Wal-Mart Associates, Inc. from

February 26, 2018, through March 13, 2020, as a sales floor

associate. (Doc. # 7 at ¶ 12). Pagan is a male who is in a

same-sex relationship. (Id. at ¶¶ 15-16).

While he was employed at Wal-Mart, one of Pagan’s co-

managers, “Roselin,” commented that “she did not approve of

[Pagan’s] lifestyle.” (Id. at ¶ 14). Specifically, Roselin

disparaged Pagan for “lacking stereotypical male

characteristics,” “being gay,” and “dress[ing] like a girl.”

(Id. at ¶¶ 14-15). Roselin “made it known that she did not

appreciate the way [Pagan] dressed and wanted [Pagan] to

change to dress more like a man.” (Id.).

Pagan “first complained about [this]

discrimination/harassment to upper [Wal-Mart] management

around November 2019. [Pagan] complained to the ethics

hotline about the discriminatory comments and the unequal

treatment . . . but nothing was done, nor did [Pagan] get a

response.” (Id. at ¶ 17).

In December 2019, Pagan “needed a few days off . . . for

[his] same sex marriage.” (Id. at ¶ 16). Roselin “denied this

[request] because she said, ‘[I]n the eyes of God that is

abominable.’” (Id.). Pagan complained a second time “via the

ethics hotline . . . around December 2019, regarding [these]

discriminatory comments and [this] unequal treatment . . .

[Pagan] was instructed to just fix the issue in the store

himself.” (Id. at ¶ 18). Pagan then made a third complaint by

“[bringing] the discrimination/harassment to the attention of

Nathan, the store manager . . . but again nothing was done.”

(Id. at ¶ 19). Subsequently, “on or about December 24, 2019,”

“[Pagan] filed his fourth complaint with upper management via

the ethics hotline.” (Id. at ¶ 20). “This time, management

outside the store location [] instructed Co-Manager Roselin

[] to approve [Pagan’s] days off for [his] same sex wedding.”

(Id.).

“At this point, the retaliation began as it was the first

time Co-Manager Roselin learned of [Pagan’s] complaints of

discrimination and harassment.” (Id. at ¶ 21). “For example,

Co-Manager Roselin would follow [Pagan] to the bathroom

asking [Pagan] why [he] complained to the Ethics Line[,] which

was never done before [Pagan’s] [fourth] complaint of

discrimination to upper management.” (Id. at ¶ 22). Roselin

also began “approach[ing] [Pagan] in an aggressive manner,

starting fights with [Pagan], yelling at [Pagan] accusing him

of not doing his job during his lunch and other breaks, which

was never done before [Pagan’s] [fourth] complaint of

discrimination to upper management.” (Id. at ¶ 23).

Additionally, “[Pagan] was approved for medical leave

from March [5,] 2020 to March 14, 2020.” (Id. at ¶ 25).

Roselin “demanded that [Pagan] return[] to work prior to the

expiration of medical leave that was approved by the third

party administers of [Wal-Mart’s] medical leave policies.”

(Id. at ¶ 24). Pagan returned to work as requested, but

Roselin terminated his employment on March 13, 2020. (Id. at

¶ 25).

Based on this conduct, Pagan filed a complaint in state

court alleging retaliation (Count 1), discrimination based on

sexual orientation (Count 3), discrimination based on

religion (Count 4), discrimination based on sex (Count 7),

and discrimination based on disability (Count 9) under the

Florida Civil Rights Act (FCRA), retaliation (Count 2),

discrimination based on sexual orientation (Count 5),

discrimination based on religion (Count 6), and

discrimination based on sex (Count 8) under Title VII of the

Civil Rights Act, and discrimination based on disability

under the Americans with Disabilities Act (ADA) (Count 10).

(Doc. # 1-1).

Wal-Mart removed the case to federal court on May 6,

2021. (Doc. # 1). Pagan filed an amended complaint on May 27,

2021, narrowing his allegations to retaliation under the FCRA

(Count 1), retaliation under Title VII (Count 2),

discrimination based on sex under the FCRA (Count 3), and

discrimination based on sex under Title VII (Count 4). (Doc.

# 7).

Now, Wal-Mart moves to dismiss the amended complaint for

failure to state a claim. (Doc. # 12). Pagan has responded

(Doc. # 15) 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).

III. Analysis

In its Motion, Wal-Mart makes two arguments in favor of

dismissal: (1) that the amended complaint is not a “short and

plain statement of the claim,” but instead “a quintessential

‘shotgun’ pleading that repeats every factual allegation

under each count”; and (2) that the retaliation claims (Counts

1 and 2) must fail because “there is no causal connection

between [Pagan’s] alleged engagement in a protected activity

and [his] termination.” (Doc. # 12 at 2-3). The Court

addresses each argument in turn.

1. Shotgun Pleading

First, Wal-Mart moves to dismiss the amended complaint

as an impermissible shotgun pleading. (Id. at 5). The Eleventh

Circuit has “identified four rough types or categories of

shotgun pleadings”: (1) “a complaint containing multiple

counts where each count adopts the allegations of all

preceding counts”; (2) a complaint that is “replete with

conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action”; (3) a complaint

that does “not separat[e] into a different count each cause

of action or claim for relief”; and (4) a complaint that

“assert[s] multiple claims against multiple defendants

without specifying which of the defendants are responsible

for which acts or omissions, or which of the defendants the

claim is brought against.” Weiland v. Palm Beach Cnty.

Sheriff’s Off., 792 F.3d 1313, 1322-23 (11th Cir. 2015). “The

unifying characteristic of all types of shotgun pleadings is

that they fail to . . . give the defendants adequate notice

of the claims against them and the grounds upon which each

claim rests.” Id. at 1323.

Wal-Mart argues that Pagan’s amended complaint is a

shotgun pleading because “each count [of the amended

complaint] incorporates all of the same factual allegations.”

(Doc. # 12 at 7). According to Wal-Mart,

it is virtually impossible to know which

allegations of fact are intended to support which

claims alleged in [Pagan’s] Amended Complaint . .

Reading through [the] Amended Complaint requires

the reader to read the same paragraphs on numerous

occasions - because they are all incorporated into

each count - and then parse through each of the

allegations to identify those that have some

relevance to that particular cause of action.

(Id. at 7-8). Wal-Mart concludes that Pagan’s allegations are

“disorganized, confusing, and impermissibly vague and they do

not apprise [Wal-Mart], or the Court, of the claims asserted

against [Wal-Mart].” (Id.).

The Court disagrees. First, none of the counts in the

amended complaint incorporate the allegations of prior

counts. The only paragraphs incorporated into each count are

1 through 8, which cover the demand for a jury trial and the

“parties, venue and jurisdiction” section. (Doc. # 7). This

is perfectly acceptable “so long as the counts do not

incorporate the allegations of the previous counts.” Alvarez

v. Lakeland Area Mass Transit Dist., No. 8:19-cv-1044-VMC-

SPF, 2019 WL 2868943, at *3 (M.D. Fla. July 3, 2019); see

also Weiland, 792 F.3d at 1324 (11th Cir. 2015)

(“[Plaintiff's] re-alleging of paragraphs 1 through 49 [from

the fact section] at the beginning of each count looks, at

first glance, like the most common type of shotgun pleading.

But it is not.”). Dismissal is not warranted on this ground.

Second, although the amended complaint reiterates the

same factual allegations in each count, the repetition “is

not [] so extensive or confused as to make it impossible to

determine what is being alleged or against whom.” Streeter v.

City of Pensacola, No. 3:05CV286/MCR, 2007 WL 4468705, at *2

(N.D. Fla. Dec. 18, 2007). On the contrary, Pagan’s amended

complaint identifies with specificity the supervisor who

allegedly discriminated and retaliated against him (Roselin),

the subject matter of the alleged discrimination (his sexual

orientation), the alleged protected conduct (his complaints

to upper management), the alleged retaliatory conduct

(increased harassment and his eventual termination) and the

alleged time-period of the discriminatory and retaliatory

conduct (roughly December 24, 2019 through March 13, 2020).

(Doc. # 7). The Court is satisfied that from these

allegations, “a single legal theory pertaining to each count

is now reasonably identifiable, especially when the text is

considered together with the individual heading for each

count.” Streeter, 2007 WL 4468705, at *2 (declining to dismiss

a complaint containing discrimination and retaliation claims

as a shotgun pleading despite the allegations tending to be

“overly broad” and “repetitive”).

Furthermore, as Pagan points out, “Count 1 is a claim

for retaliation under the FCRA, which is patterned on (uses

the same case law and standard of law) as Count 2, the claim

for retaliation under Title VII,” and “Count 3 is a claim for

discrimination under the FCRA, which is patterned on (uses

the same case law plus standard of law) as Count 4, the claim

for retaliation under Title VII.” (Doc. # 15 at 3). Therefore,

some repetition is understandable and indeed, to a certain

point, unavoidable.

Although the amended complaint may have benefited from

more clarity or succinctness, “[t]he allegations are not so

vague or ambiguous that a responsive pleading could not

possibly be framed.” Streeter, 2007 WL 4468705, at *2. Wal-

Mart’s first argument is thus not grounds for dismissal and

the Motion is denied as to this request.

2. Retaliation Claims

Next, Wal-Mart requests dismissal of Counts 1 and 2 of

the amended complaint because Pagan “fails to state a claim

of retaliation under either the FCRA or Title VII.” (Doc. #

12 at 8).

To state a claim for retaliation under Title VII, Pagan

must allege that “(1) [he] engaged in statutorily protected

activity; (2) [he] suffered a materially adverse employment

action; and (3) there was a causal link between the two.”

Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 856 (11th

Cir. 2010) (internal citation omitted). “Decisions construing

Title VII guide the analysis under the FCRA [], which was

patterned after Title VII . . . Therefore, the Court’s

analysis of [Pagan’s] Title VII claims is equally applicable

to [Pagan’s] FCRA claims.” Dalberiste v. GLE Assocs., Inc.,

No. 18-CV-62276, 2021 WL 966009, at *1 (S.D. Fla. Mar. 5,

2021), report and recommendation adopted, No. 18-62276-CIV,

2021 WL 965771 (S.D. Fla. Mar. 15, 2021).

In its Motion, Wal-Mart does not contest that Pagan

engaged in protected activity and suffered an adverse

employment action. (Doc. # 12 at 8-11). Wal-Mart’s only

challenge to Counts 1 and 2 is that Pagan fails to satisfy

the third element of causation. (Id.). According to Wal-Mart,

the “sole basis” for Pagan’s retaliation claims is temporal

proximity. (Id. at 10). But Wal-Mart points out that “there

is a four-month gap in time between November 2019 and March

2020.” (Id. at 9). Wal-Mart contends that this lapse is “too

long to permit an inference of causation based on temporal

proximity alone.” (Id.).

In response, Pagan emphasizes the timeline alleged in

the amended complaint. (Doc. # 15 at 3-4). According to Pagan,

he complained about discrimination to upper management four

times, beginning in November 2019. (Doc. # 7 at ¶¶ 17-20).

But the first time he complained, “nothing was done,” the

second time he “was instructed to just fix the issue in the

store himself,” and the third time “again nothing was done.”

(Id. at ¶¶ 17-19). Only after Pagan complained the fourth

time, around December 24, 2019, does he allege that upper

management “instructed Co-Manager Roselin[] to approve

[Pagan’s] days off work for [Pagan’s] same sex wedding.” (Id.

at ¶¶ 20-21). According to Pagan, it was only “[a]t this

point” that “Roselin learned of [Pagan’s] complaints of

discrimination and harassment,” and it was only at this point

“the retaliation began.” (Id.).

Specifically, although Roselin had previously expressed

disapproval of Pagan’s “lifestyle,” and generally “made it

known that she did not appreciate the way Plaintiff dressed

and wanted Plaintiff to change to dress more like a man,”

(Id. at ¶¶ 14-15), it was only after she learned of Pagan’s

complaints to upper management that she “would follow [Pagan]

to the bathroom asking [Pagan] why [he] complained to the

Ethics Line.” (Id. at ¶ 22).

Furthermore, it was only after Roselin learned of the

complaints that she began “approach[ing] [Pagan] in an

aggressive manner, starting fights with [Pagan], [and]

yelling at [Pagan] accusing [him] of not doing his job during

his lunch and other breaks.” (Id. at ¶ 23). Per Pagan’s

timeline, “[this] was never done before [Pagan’s] [fourth]

complaint of discrimination to upper management.” (Id.).

Pagan concludes that the “the totality of the circumstances”

demonstrate that “retaliation began at the first moment that

Co-manager Roselin’s attention was called [to] [Pagan’s]

protected activity.” (Doc. # 15 at 5, 9).

Although the Eleventh Circuit has held that “the lapse

of three months between [a defendant’s] alleged discovery of

[a plaintiff’s] statutorily protected expression and the

adverse employment action is too long to permit an inference

of causation based on temporal proximity alone,” Gilliam v.

U.S. Dep’t of Veterans Affs., 822 F. App’x 985, 990 (11th

Cir. 2020) (emphasis added), the Court agrees that this

timeline is sufficient to plausibly allege a causal

connection between Roselin learning of Pagan’s complaints and

her later adverse employment actions. “[C]lose temporal

proximity is only one of several methods of demonstrating a

causal connection. Therefore, a court cannot simply engage in

a rote evaluation of [a] time lag in evaluating the

sufficiency of a retaliation claim, but instead must read the

complaint holistically and take into account relevant

context.” Conde v. Int’l Bhd. of Teamsters Loc. Union 728,

No. 1:17-cv-78-TWTJCF, 2017 WL 1395519, at *6 (N.D. Ga. Mar.

24, 2017), report and recommendation adopted sub nom. Conde

v. Truck Drivers & Helper Loc. 728 & Affiliates, No. 1:17-

cv-78-TWT, 2017 WL 1376238 (N.D. Ga. Apr. 17, 2017) (internal

citations and quotation marks omitted).

Indeed, even “where there is a lack of temporal

proximity, circumstantial evidence of a ‘pattern of

antagonism’ following the protected conduct can also give

rise to the inference.” Kachmar v. SunGard Data Sys., Inc.,

109 F.3d 173, 177 (3d Cir. 1997); see also Adetuyi v. City &

Cnty. of San Francisco, 63 F. Supp. 3d 1073, 1090 (N.D. Cal.

2014) (“[A] pattern of ongoing retaliation following

protected conduct supports a finding of causation.”) (citing

Wood v. Dollar Rent-A-Car Sys., Inc., 128 F. App’x 620, 622

(9th Cir. 2005)).

Taking Pagan’s allegations as true, Roselin frequently

commented on Pagan’s sexual orientation prior to learning of

his complaint. But it was only after she learned of complaints

to upper management that she escalated the situation by

following him to the bathroom, aggressively starting fights

and yelling at him, and harassing him about “not doing his

job” during breaks. (Doc. # 7 at ¶ 27). This behavior

allegedly continued until Pagan’s termination in March. (Id.

at ¶¶ 24-26). “To show causation, a plaintiff in a retaliation

case need prove only that retaliatory animus was one factor

in the adverse employment decision.” Brown v. Ala. Dep’t of

Transp., 597 F.3d 1160, 1182 (11th Cir. 2010) (internal

citation omitted). Taking all reasonable inferences in favor

of Pagan, the Court agrees that Roselin’s change in behavior

after she discovered Pagan’s complaints, in combination with

temporal proximity, supports an inference that Pagan’s

termination in March was at least partially motivated by

retaliatory animus.

Pagan’s allegations thus sufficiently state a plausible

claim for retaliation under both the FCRA and Title VII. The

Motion is denied.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Wal-Mart Associates, Inc.’s Motion to Dismiss

the Amended Complaint (Doc. # 12) is DENIED.

(2) Wal-Mart’s answer to the amended complaint is due

fourteen days from the date of this Order, August 10,

2021.

DONE and ORDERED in Chambers in Tampa, Florida, this

27th day of July, 2021.

bio I. Heen, jut

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

15