SCLAFANI v. CITY OF MARGATE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CV-61126-RS

ANTHONY SCLAFANI,

Plaintiff,

v.

CITY OF MARGATE,

Defendant.

________________________________________/

ORDER GRANTING MOTION TO DISMISS

This matter is before the Court upon Defendant’s Motion to Dismiss Amended Complaint

[DE 17] (the “Motion”), Plaintiff’s Opposition [DE 21], and Defendant’s Reply [DE 22]. For the

reasons that follow, Defendant’s Motion is granted with leave to replead.

I. BACKGROUND

This is an action brought under the Age Discrimination in Employment Act, 29 U.S.C. §

621, et seq. (“ADEA”), and the Florida Civil Rights Act of 1992, Fla. Stat. § 760.01, et seq.

(“FCRA”). Plaintiff, Anthony Sclafani, a police officer, brings this action against his employer,

Defendant, City of Margate, Florida (the “Defendant” or the “City”), for alleged workplace

discrimination on the basis of age. (Am. Compl. [DE 14] ¶¶ 1-5.) According to the Amended

Complaint, Defendant hired Plaintiff as a police officer in September 1996 and promoted him to

Police Sergeant in October 2015. (Id. ¶ 14.) At all relevant times, Defendant regarded Plaintiff as

an individual employee who was over forty years old. (Id. ¶ 16.) Plaintiff’s primary duties include

supervision of officers and road patrol. (Id. ¶ 15.) Plaintiff alleges that he was routinely dismissed

and not taken seriously when presenting his commanding officers with complaints about the

problematic behavior of his inferior officers. (Id. ¶¶ 17, 18.) On one occasion, Plaintiff wrote a

negative performance review for one such officer, only to have a commanding officer write a

subsequent positive review for that same officer in question. (Id. ¶ 22.) On another occasion,

Plaintiff alleges that a commanding officer undermined and humiliated Plaintiff by interrupting a

briefing Plaintiff was leading with his unit and by taking charge of the briefing. (Id. ¶ 26.) In all,

Plaintiff alleges that he was consistently treated condescendingly in the presence of his

subordinates by Defendant and that this treatment was a result of Defendant targeting him because

of his age. (Id. ¶¶ 17, 26, 51-56.)

In March 2020, Defendant issued Plaintiff’s yearly evaluation, where he received the

highest marks for his performance on the job. (Id. ¶ 35.) The next month, the City’s Police Captain

(who also served as one of Plaintiff’s supervisors) was unhappy with the evaluation and demanded

that the narrative be changed and the overall rating lowered. (Id. ¶ 36.) Plaintiff understood this

to be a significant departure from department policy. (Id.) Plaintiff’s original evaluation stated:

“he has an excellent communication style” and “he’s approachable” but the revised evaluation

stated: “he has a very direct communication style . . . however, that style of communication does

not always work well with Millennial officers that comprise the majority of his Platoon.” (Id.)

This new evaluation also noted that Plaintiff needed to be more in tune with the idiosyncrasies of

Millennial officers and mindful of the “generation gap” in order to improve his relationships with

younger officers. (Id.) Plaintiff refused to sign the amended evaluation; instead, he offered a

formal rebuttal to be included with the amended evaluation. (Id.) Plaintiff alleges that this

treatment, particularly the repeated references to “Millennials” and the “generation gap,” was a

result of Defendant targeting him because of his age. (Id. ¶¶ 36, 70-72.)

Following the evaluation, Plaintiff alleges that Defendant gave him additional, stressful

work beyond the scope of his normal responsibilities in order to force him to retire early. (Id. ¶¶

44, 47.) This included an investigation into an arrest where there may have been evidence

misplaced or misappropriated; Plaintiff alleges that such an internal investigation is beyond the

scope of his normal responsibilities and, as such, caused him hardship. (Id.) Plaintiff further

alleges that Defendant denied his request for additional bereavement leave following the death of

his sister in January 2022. (Id. ¶ 47.) According to Plaintiff, Defendant continues to give Plaintiff

additional responsibilities in order to force his early retirement, and Plaintiff suffers from

depression and anxiety due to Defendant’s actions. (Id. ¶¶ 47-48.)

Plaintiff’s Amended Complaint brings four counts against Defendant: (1) violation of the

ADEA for discrimination based on age; (2) violation of the FCRA for discrimination based on

age; (3) violation of the ADEA for hostile work environment due to age discrimination; and (4)

violation of the FCRA for hostile work environment due to age discrimination.

II. LEGAL STANDARD

Defendant moves to dismiss Plaintiff’s Amended Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where a plaintiff fails to

state a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). To state a claim for

relief, a plaintiff’s allegations must contain a “short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need

detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint may not rest

on “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555.

When reviewing a motion under Rule 12(b)(6), courts must accept the plaintiff’s

allegations as true and evaluate all plausible inferences derived from those facts in favor of the

plaintiff. See United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1066 (11th Cir. 2007). However,

this tenet does not apply to legal conclusions, as courts are not bound to accept as true a legal

conclusion couched as a factual allegation. Twombly, 550 U.S. at 555 (citing Papasan v. Allain,

478 U.S. 265, 286 (1986)); see Iqbal, 556 U.S. at 678. Moreover, “courts may infer from the

factual allegations in the complaint ‘obvious alternative explanations’ which suggest lawful

conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” ADA v. Cigna

Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (citing Iqbal, 556 U.S. at 682). A court considering

a Rule 12(b)(6) motion is generally limited to the facts contained in the complaint and attached

exhibits. Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). The Eleventh Circuit has

endorsed “a ‘two-pronged approach’ in applying these principles: (1) eliminate any allegations in

the complaint that are merely legal conclusions; and (2) where there are well-pleaded factual

allegations, ‘assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.’” ADA, 605 F.3d at 1290 (quoting Iqbal, 556 U.S. at 679).

III. DISCUSSION

A. Age Discrimination

Plaintiff’s Count I and Count II are both for discrimination on the basis of age, with Count

I brought under the ADEA and Count II brought under the FCRA analogue. The ADEA makes it

“unlawful for an employer to…discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual’s age.”

29 U.S.C. § 623(a)(1). The FCRA tracks the language of the federal statute in also prohibiting age

discrimination in the workplace. Fla. Stat. § 760.10(1)(a). Courts applying the FCRA follow

federal law applying the ADEA. See City of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. 4th

DCA 2008) (“Federal case law interpreting . . . the ADEA applies to cases arising under the

[Florida] CRA.”); see also Jones v. United Space Alliance, LLC, 494 F.3d 1306, 1310 (11th Cir.

2007).

To establish a case of age discrimination, a plaintiff must show that: (1) he was a member

of a protected class (i.e., that he was forty years old, or older); (2) he was subjected to an adverse

employment action; (3) he was treated less favorably than a younger, similarly situated employee;

and (4) he was qualified to do the job. East v. Clayton Cty., 436 F. App’x 904, 911 (11th Cir.

2011) (citing Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1457 (11th Cir. 1997)). An

ADEA claim requires that the plaintiff prove that his age was the sole, or “but for,” reason for the

adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009). Moreover,

establishing an “adverse employment action” requires a plaintiff to show a “serious and material

change in the terms, conditions, or privileges of employment . . . as viewed by a reasonable person

in the circumstances.” Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001). “[T]he

asserted impact cannot be speculative and must at least have a tangible adverse effect on the

plaintiff’s employment.” Id.

Plaintiff’s Count I and Count II allege that Defendant engaged in unlawful age

discrimination against Plaintiff by dismissing his legitimate concerns, downgrading his

performance evaluation, increasing the scope of his work, and generally undermining him before

his colleagues. Defendant counters that it did not engage in unlawful age discrimination and that,

in any event, Plaintiff was never subject to an adverse employment action as required to plead a

claim under the ADEA.

The Court finds that Plaintiff’s Count I and Count II both fail as a matter of law. Plaintiff’s

Amended Complaint fails to adequately plead that Plaintiff was subject to an adverse employment

action due to his age, as is required under both statutes. See Davis, 245 F.3d at 1239-40. Davis is

instructive. In that case, the Eleventh Circuit affirmed the district court’s granting of defendant’s

motion for judgment as a matter of law on plaintiff’s discrimination claim because plaintiff’s

negative job performance memoranda and a change in work assignments did not qualify as

“adverse employment actions” as a matter of law. See id. As in Davis, here, Plaintiff attempts to

support his discrimination claim with reference to his downgraded performance evaluation and his

increased workload as evidence of adverse employment actions. But these incidents do not rise to

the level of adverse employment actions under the statutory framework of the ADEA or its FCRA

analogue because they do not have a “tangible adverse effect on the plaintiff’s employment.” Id.

at 1239. If Defendant had used the downgraded performance evaluation as a basis to lower

Plaintiff’s salary or bonus structure, then this combination may have risen to the level of an adverse

employment action. See, e.g., Porterfield v. SSA, Case No. 20-10538, 2021 WL 3856035 (11th

Cir. Aug. 30, 2021) (finding that an employee’s lower performance evaluation score was an

adverse employment action because she received a lower bonus as a result). But the Amended

Complaint is devoid of any allegations that Plaintiff was demoted, terminated, subject to pay

reductions, or that Plaintiff experienced material changes in the terms, conditions, or privileges of

his employment. Because Plaintiff did not suffer an adverse employment action, he has failed to

state a claim for relief under the ADEA or its FCRA analogue, and thus Plaintiff’s Count I and

Count II will be dismissed.

Even assuming, arguendo, that Plaintiff had suffered an adverse employment action, his

discrimination claims would still fail because he has not alleged that age was the sole reason for

any alleged adverse employment action. To support an age discrimination claim, a plaintiff must

allege that age was the sole, or “but for,” reason for the alleged adverse employment action. Gross,

557 U.S. at 177. Here, Plaintiff’s allegations do not claim that age was the sole reason for any

allegedly adverse employment action. Plaintiff generally alleges that Defendant discriminated

against him and that “Defendant had no good faith basis for discrimination against the Plaintiff.”

(Am. Compl. ¶¶ 55-56, 61.) These allegations do not claim that age was the sole, or but for, reason

for Defendant’s alleged discrimination or any alleged adverse employment action suffered by

Plaintiff. Thus, Plaintiff fails to state a claim for relief under either the ADEA or the FCRA, and

Plaintiff’s Count I and Count II are due for dismissal.

B. Hostile Work Environment Due to Age Discrimination

Plaintiff’s Count III and Count IV allege that he was subject to a hostile work environment

because of his age in contravention of the ADEA and the FCRA. Defendant argues that Plaintiff’s

claims are barred because Plaintiff failed to exhaust all administrative remedies by filing a charge

for hostile work environment with the Equal Employment Opportunity Commission (“EEOC”),

and that Plaintiff’s claims fail as a matter of law because any alleged harassment or hostility was

insufficiently severe or pervasive to alter any term or condition of Plaintiff’s employment.

Under the ADEA, a plaintiff must exhaust available administrative remedies by filing a

charge of unlawful discrimination with the EEOC before filing suit. Leach v. State Farm Mut.

Auto. Ins. Co., 431 Fed. App’x 771, 774-75 (11th Cir. 2011). The EEOC charge must present each

claim of discrimination and supporting factual allegations so that a defendant may have notice of

any impending claims. See Barnwell v. McDonald, Case No. 16-CV-23194, 2017 U.S. Dist.

LEXIS 158170 at *6 (S.D. Fla. Sept. 27, 2017) (“Well settled law requires exhaustion of each

discrete claim of discrimination.”) (internal citation omitted). Defendant here argues that, because

Plaintiff’s EEOC charge did not specifically raise a hostile work environment claim, that claim

must be procedurally barred. The Court disagrees.

The Court finds that Plaintiff’s Count III and Count IV for hostile work environment due

to age discrimination are not procedurally barred, but that both fail as a matter of law. The

allegations supporting Plaintiff’s hostile work environment claims clarify and more clearly focus

the allegations in Plaintiff’s EEOC charge, and the alleged events give rise to a claim for hostile

work environment. See Gregory v. Georgia Dep’t of Human Res., 355 F.3d 1277, 1279-80 (11th

Cir. 2004) (“[J]udicial claims are allowed if they amplify, clarify, or more clearly focus the

allegations in the EEOC complaint.”) (internal citations omitted). As such, Plaintiff’s hostile work

environment claims are not procedurally barred. See id. at 1280 (“Courts are extremely reluctant

to allow procedural technicalities to bar claims brought under the Act…as such, the scope of an

EEOC complaint should not be strictly interpreted.”) (internal citations omitted).

Moving to the merits of Plaintiff’s claims in Count III and Count IV, an employer is

responsible for a hostile work environment, and therefore violates the ADEA, where “the

workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently

severe or pervasive to alter the conditions of the victim’s employment.” Fernandez v. Trees, Inc.,

961 F.3d 1148, 1152 (11th Cir. 2020) (internal citation omitted). The elements of a cause of action

for hostile work environment under the ADEA and FCRA are that: (1) a plaintiff belongs to a

protected group; (2) he has been subject to unwelcome harassment; (3) the harassment was based

on his age; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions

of employment and create a discriminatorily abusive working environment; and (5) a basis exists

for holding the employer liable for the harassment. See id. at 1153; see also Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).

The plaintiff’s work environment must be one that both a reasonable person would find

hostile, and that the victim subjectively perceived to be hostile. Miller, 277 F.3d at 1276. To

evaluate the objective severity of the harassment, courts consider the totality of the circumstances,

including: the frequency of the conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

employee’s work performance. Harris v. Forklift Sys., 510 U.S. 17, 23 (1993).

Although Plaintiff’s Count III and Count IV are not procedurally barred, they both fail as

a matter of law because Plaintiff has not alleged that any harassment was sufficiently severe or

pervasive so as to alter the terms or conditions of Plaintiff's employment. The conduct at issue

was not frequent, as Plaintiff has worked for Defendant since 1996 (and was promoted in 2015)

but has only experienced any alleged episodic hostile events beginning in or around September

2019 up through March 2020. Further, Defendant’s conduct never crossed the line from offensive

utterance to physical threats or intimidation of Plaintiff. And although the conduct complained of

could be labelled as insensitive, it was not of such severity as to alter the terms of Plaintiff's

employment, or to an extent that a reasonable person would find Plaintiff's place of employment

a hostile environment. Thus, Plaintiff’s Count II] and Count IV will be dismissed with leave to

replead.

Accordingly, and for the reasons stated herein, it is hereby,

ORDERED that Defendant’s Motion to Dismiss Amended Complaint [DE 17] is

GRANTED:

1. Plaintiff's Amended Complaint [DE 14] is DISMISSED without prejudice.

2. Should Plaintiff seek to file an Amended Complaint, any Amended Complaint would

be due on or before July 14, 2023.

DONE and ORDERED in Fort Lauderdale, Florida, this 6th day of July, 2023.

RODNEY SMITH

UNITED STATES DISTRICT JUDGE

ce: All Counsel of Record