# Pagan v. Wal-Mart Associates, Inc.

> District Court, M.D. Florida · July 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10108008

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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