Rivera v. The CSI Companies Inc

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

YESENIA RIVERA,

Plaintiff,

v. Case No: 8:24-cv-01450-WFJ-NHA

THE CSI COMPANIES INC.,

Defendant.

__________________________________/

ORDER

Before the Court is Defendant the CSI Companies Inc.’s (“CSI” or the

“Defendant”) Motion to Dismiss the Complaint. Dkt. 14. Plaintiff Yesenia Rivera

(“Ms. Rivera” or the “Plaintiff”) has filed a Response in Opposition. Dkt. 18. Upon

careful consideration, the Court concludes that the Complaint is sufficient to

withstand dismissal.

BACKGROUND

On or about March 2022, Ms. Rivera began working at CSI, a company

providing medical consultants to hospitals, for approximately one year before her

termination by Defendant. Dkt. 1 ¶¶ 8-9, 86. Ms. Rivera alleges that a couple of

weeks into her employment, she began to receive “unwarranted and unwelcome

sexual advances” from a coworker named Michael Brown (“Brown”). Id. ¶ 11. The

first instance of sexual harassment began “sometime around mid-to-end March

2022,” when “Brown told Rivera that the CSI Team Leads sleep with females and

promises them additional hours if they will sleep with them.” Id. ¶ 12-15. In the

“following day[s],” Ms. Rivera alleges that Brown made several inappropriate

comments, such as “you know that new girl Yessie, I would like to lay her down on

the bed and eat her p***y cause you can tell she has good sweet p***y” and “there’s

a new girl here and you have to see her. She has a cute face and a fat a**.” Id. ¶ 21.

The second instance of harassment began “several weeks later” when Brown

and Ms. Rivera were assigned to the same hospital. Id. ¶¶ 27-28. During this

incident, Brown and Msugh Tuse (also known as “Soup”) blocked Ms. Rivera from

leaving the hospital cafeteria and questioned Plaintiff on “why girls get offended

when you tell them they have a cute face and fat a**.” Id. ¶¶ 32-33. “The next day,”

Plaintiff alleges she told her Team Lead Starr Gross (“Gross”) about the incident,

but Gross informed Ms. Rivera that “she should not have caused a scene” and that

“since Brown and Soup have been with CSI for many years, the company would

always believe them and not someone so new.” Id. ¶¶ 41-54. Further, Plaintiff

alleges Gross even told her that “if she found Brown attractive, she wouldn’t mind

the unwarranted sexual comments that he had been making against her.” Id. ¶ 46.

“The following day,” Gross, Brown, and Soup accused Ms. Rivera of contacting

CSI’s human resources department (“CSI HR”) after a company-wide e-mail was

sent out reminding employees about its policy on sexual harassment in the

workplace. Id. ¶¶ 48-49. These coworkers allegedly threatened Plaintiff saying,

“this will get bad, just wait and see”. Id. ¶ 50.

Ms. Rivera eventually contacted CSI’s HR department and talked with Alicia

Clough (“Clough”), VP of HR. Id. ¶ 53. On an unspecified Monday, Ms. Rivera met

with Clough, informed her of the harassment, and provided video footage of prior

incidents. Id. ¶ 56. The Complaint claims CSI HR disciplined Brown by prohibiting

him from working on the same assignment with Ms. Rivera, but Brown still ended

up working with Plaintiff. Id. ¶ 57, 71, 74

The third incident occurred around “two weeks” later when CSI assigned

Plaintiff to a hospital in Georgia where Brown was also working. Id. ¶¶ 57-58. When

Ms. Rivera informed Clough of the situation, the HR VP allegedly “professed

ignorance” and claimed Ms. Rivera had never informed HR of the prior incidents.

Id. ¶ 63. During the Georgia assignment, Ms. Rivera claims she received unsolicited

pictures of naked men and recognized one individual as David Dar (“Dar”), a friend

of Brown. Id. ¶ 66. After reporting the photos, CSI HR told Plaintiff it had already

taken disciplinary actions against Brown but was unable to locate Dar. Id. ¶ 70.

The fourth and final incident occurred on or about January 2, 2023, when

Plaintiff “began getting phone calls from unknown women calling her offensive

names and threatening bodily harm.” Id. ¶ 77. The Complaint alleges these calls

were likely from Brown’s “wife/girlfriend” who also worked for CSI. Id. ¶ 82. When

Plaintiff reported these calls to HR, Clough confirmed the identity of one of the

callers but refused to tell Ms. Rivera “because [] the person is ‘important to CSI.’”

Id. ¶ 83.

On March 19, 2023, CSI terminated Ms. Rivera’s employment with the

company. Id. ¶ 86. Plaintiff claims this termination occurred “shortly after” Clough

told her “how difficult it will be for [Plaintiff] moving forward in the company

because [Plaintiff] had reported Brown for sexual harassment.” Id. ¶ 87.

On or about September 19, 2023, Plaintiff filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 6. After

exhausting her remedies with the EEOC, Ms. Rivera filed the instant Complaint. Id.

¶ 7. It alleges sex discrimination and retaliation under Title VII of the Civil Rights

Act of 1991 (“Title VII”) and the Florida Civil Rights Act (“FCRA”). Id. ¶¶ 88–103.

Defendant CSI moves to dismiss all counts in the Complaint, arguing that Plaintiff’s

discrimination claims are untimely and fail to allege a claim upon which relief can

be granted. See Dkt. 14.

DISCUSSION

For the reasons discussed below, the Court finds Plaintiff has sufficiently pled

all counts in her complaint. Defendant’s motion to dismiss for failure to state a claim

is denied.

I. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the Court must accept all the complaint’s allegations as true, construing

them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d

1282, 1284 (11th Cir. 2008). A pleading must only contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2).

In assessing the legal sufficiency of a complaint’s allegations, the Court

applies the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint

“must . . . contain sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1289

(11th Cir. 2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678. However, conclusory allegations, unwarranted deductions of facts, and legal

conclusions masquerading as facts will not prevent dismissal. Oxford Asset Mgmt.,

Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

II. Claims Pursuant to Title VII and the FCRA

Plaintiff raises four counts in the Complaint: Count I—sex discrimination

under Title VII; Count II—retaliation under Title VII; Count III—sex discrimination

in violation of the FCRA; and Count IV1—retaliation in violation of the FCRA.2

Defendant filed a motion to dismiss all counts, arguing that “(1) Plaintiff’s

discrimination claims are statutorily barred as untimely; (2) Plaintiff cannot state a

claim for discrimination based on her sex because she fails to allege facts to support

her contention that she was treated less favorably than a similarly situated individual

outside her protected class; and (3) Plaintiff cannot state a retaliation claim because

she fails to allege facts to support that she engaged in protected activity or that any

alleged protected activity was the but-for cause of her termination.” Dkt. 14 at 1–2.

The Court will address each argument in turn.

a. Counts I and III- Timeliness of Plaintiff’s Hostile Work Environment

Claims

Defendant first contends the discrete discrimination acts raised by Plaintiff are

not actionable because they arose outside the 300-day limitations period. Dkt. 14 at

1 In Plaintiff’s Complaint, Count IV is mistakenly numbered as “Count VI.” See Dkt. 1 at 17.

2 Plaintiff makes parallel sex discrimination and retaliation claims under the Florida Civil Rights

Act of 1992. See Fla. Stat. § 760.10. The FCRA is modeled after Title VII, so prior courts have

found claims brought under both statutes are analyzed under the same framework. See Harper v.

Blockbuster Ent. Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (citing Florida case law).

Accordingly, Plaintiff’s state-law claims do not require a separate discussion because the

outcome is the same under federal law. See Alvarez v. Royal Atl. Dev., Inc., 610 F.3d 1253, 1271

(11th Cir. 2010); Byrd v. BT Foods, Inc., 948 So. 2d 921, 925 (Fla. 4th DCA 2007).

5. As a general matter, Title VII prohibits an employer from discriminating against

an individual “with respect to [her] compensation, terms, conditions, or privileges

of employment” because of the individual’s sex. 42 U.S.C. § 2000e-2(a)(1). This

prohibition encompasses various forms of sexual harassment, including discrete acts

of discrimination and a hostile work environment claim. See AMTRAK v. Morgan,

536 U.S. 101, 116 (2002) (noting Title VII’s prohibition on discrimination includes

a hostile work environment claim).

Turning to timeliness, a plaintiff must exhaust all administrative remedies

before bringing a suit under Title VII. Wilkerson v. Grinnell Corp., 270 F.3d 1314,

1317 (11th Cir. 2001). The plaintiff initiates the administrative process by timely

filing a charge of discrimination. See 42 U.S.C. § 2000e-5(b); Wilkerson, 270 F.3d

at 1317. A plaintiff in Florida must file an administrative charge of discrimination

within 300 days of the last discriminatory act. See 42 U.S.C § 2000e-5(e)(1); Bost v.

Fed. Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004) (“For a charge to be timely

in Florida, a deferral state, it must be filed not more than 300 days after the alleged

unlawful employment practice occurred.”); Moore v. San Carlos Park Fire Prot. &

Rescue, 808 F. App’x 789, 795 n.6 (11th Cir. 2020) (same).

However, the timeliness deadlines for discrete acts of discrimination and

hostile work environment claims are different. Discrete discriminatory acts are “not

actionable if time-barred, even when they are related to acts alleged in timely filed

charges. Each discrete discriminatory act starts a new clock for filing charges

alleging that act.” Morgan, 536 U.S. at 113. A discrete act can be “easy to identify”

and includes “termination, failure to promote, denial of transfer, or refusal to hire.”

Id. at 114.

On the other hand, a hostile work environment claim is “composed of a series

of separate acts that collectively constitute one unlawful employment practice.” Id.

at 117. Even if some component acts of the hostile work environment fall outside

the statutory period, it does not matter so long as “an act contribut[ing] to the claim

occurs within the filing period, [and thus] the entire time period of the hostile

environment may be considered by a court for the purposes of determining liability.”

Id. A hostile work environment claim may also be a combination of non-discrete

acts and discrete acts. See Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345,

1350 (11th Cir. 2007) (“Where the discrete act is sufficiently related to a hostile

work environment claim so that it may be fairly considered part of the same claim,

it can form the basis for consideration of untimely, non-discrete acts that are part of

the same claim.”). In instances “where discrete and non-discrete acts make up a

hostile work environment claim, the ‘pivotal question is whether the timely discrete

acts are sufficiently related to the hostile work environment claim.’” Moore, 808 F.

App’x at 796 (quoting Chambless, 481 F.3d at 1350).

Here, Plaintiff filed her charge of discrimination with the EEOC on September

19, 2023. Dkt. 1 ¶ 6. As such, any alleged discrete acts of discrimination must have

occurred on or after November 23, 2022, to be timely under Title VII. Defendant

contends Plaintiff’s allegations are time-barred because Brown’s inappropriate

conduct occurred on or about March 2022, and there is nothing in the Complaint that

indicates such conduct continued beyond that period of time. Dkt. 14 at 6–7.

However, Defendant mischaracterizes Counts I and III as claims for discrete acts of

discrimination. As the Complaint plainly states, Plaintiff’s allegations about

Brown’s (and other CSI employees’) conduct are “allegations regarding the sexually

hostile environment.” Dkt. 1 at 3 (emphasis added). The Court, viewing the

Complaint in the light most favorable to Plaintiff, finds Ms. Rivera is making a

hostile work environment claim. Because Plaintiff is raising a hostile work

environment claim, the Court’s analysis on timeliness shifts to “whether the timely

discrete acts are sufficiently related to the hostile work environment claim.” Moore,

808 F. App’x at 796 (citation omitted).

i. Plaintiff’s Untimely Allegations are Sufficiently Related to her

Timely Adverse Act

As currently pled, the Complaint only seems to raise two timely adverse

acts—the January 2, 2023, incident where Plaintiff began receiving harassing phone

calls from an unknown individual and Ms. Rivera’s termination on March 19, 2023.

Dkt. 1 ¶¶ 77, 86-87. It is possible Plaintiff is raising additional timely acts within the

statutory period, but the Court cannot tell because the Complaint only uses vague

terms such as “several weeks later,” “the next day,” “the following day,” “a short

while later,” “on Monday,” “the following Friday,” and “around this time.” Dkt. 1

¶¶ 27, 42, 48, 55, 56, 58, 66. While Plaintiff’s two alleged acts are timely, these

adverse employment actions alone do not demonstrate a hostile work environment.

As such, this Court must determine whether any of the untimely acts in the

Complaint are “sufficiently related” so that they “may fairly be considered part of

the same [hostile work environment] claim.” Moore, 808 F. App’x at 797 (quoting

Chambless, 481 F.3d at 1350).

Here, the allegations in the Complaint are so temporally vague that it is

difficult for the Court to determine whether Plaintiff’s termination is “sufficiently

related” to any of the untimely harassment allegations committed in March 2022.

Chambless, 481 F.3d at 1350; see also Morgan, 536 U.S. at 120 (“A court’s task is

to determine whether the acts about which an employee complains are part of the

same actionable hostile work environment practice, and if so, whether any act falls

within the statutory time period.”). The Complaint does, however, add two important

sentences that allows it to survive a motion to dismiss. Plaintiff asserts CSI’s HR

told her “how difficult it will be for her moving forward in the company because she

had reported Brown for sexual harassment,” and termination occurred “shortly

after” this meeting with HR. Dkt. 1 ¶¶ 85, 87 (emphasis added). With these two

sentences, the Court finds the prior instances of harassment are “sufficiently related”

to at least one timely adverse act (i.e., Plaintiff’s termination), such that they support

the same hostile work environment claim. Accordingly, Counts I and III are not time-

barred under Rule 8(a)’s low bar for notice pleading.

b. Counts I and III- Failure to State a Claim for Sex Discrimination.

Next Defendant argues Plaintiff has failed to properly allege claims for sex

discrimination under Title VII and the FCRA. The Court disagrees and finds the

Complaint sufficiently states a claim for sex discrimination.

As discussed previously, sexual harassment is a form of discrimination that

Title VII prohibits, and a hostile work environment is a recognized form of sexual

harassment. See Morgan, 536 U.S. at 116 (stating the discrimination prohibited by

Title VII includes the creation of a hostile work environment). A hostile work

environment exists when “the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the

conditions of [her] employment.” Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir.

2012). To show a hostile work environment, a plaintiff must allege that (1) she

belongs to a protected class; (2) she was subjected to unwelcome sexual harassment,

such as sexual advances, requests for sexual favors, and other conduct of a sexual

nature; (3) she was harassed based on her sex; (4) the harassment was sufficiently

severe or pervasive to alter the terms of her employment; and (5) that her employer

was responsible under either a theory of vicarious or direct liability. See Mendoza v.

Borden, Inc., 195 F.3d 1238, 1258 (11th Cir. 1999).

The “severe or pervasive” element requires the plaintiff to prove the work

environment is both subjectively and objectively hostile. Adams v. Austal, U.S.A.,

L.L.C., 754 F.3d 1240, 1249 (11th Cir. 2014). “The employee must subjectively

perceive the harassment as sufficiently severe and pervasive to alter the terms or

conditions of employment, . . . [and] the objective severity of harassment should be

judged from the perspective of a reasonable person in the plaintiff’s position,

considering all the circumstances.” Id. (quotation marks omitted). A court can look

to several factors when considering whether the harassment was objectively severe

or pervasive: “(1) the frequency of the conduct; (2) the severity of the conduct; (3)

whether the conduct is physically threatening or humiliating, or a mere offensive

utterance; and (4) whether the conduct unreasonably interferes with the employee’s

job performance.” Sutherland v. Boehringer-Ingelheim Pharm., Inc., 700 F. App’x

955, 960 (11th Cir. 2017) (quoting Mendoza, 195 F.3d at 1246).

Here, the Court, accepting the alleged facts in the Complaint as true, finds

Plaintiff’s claims are sufficient under the above standard. Ms. Rivera has alleged she

is a woman who was subjected to workplace harassment during her one year of

employment with CSI. Dkt. 1 ¶ 11. The Complaint outlines at least four instances of

unwelcome sexual harassment by coworkers over the course of Plaintiff’s

employment. See id. ¶¶ 15-82. More specially, the March 2022 allegations involving

Brown can be classified as either sexual advances or requests for sexual favors. See

Id. ¶¶ 15-34. Plaintiff’s allegations also make it clear that the harassment from

Brown and other coworkers was due to her sex. See id. ¶¶ 15, 21, 32-34. Further,

Plaintiff asserts CSI was aware of the sexual harassment based on several meetings

Ms. Rivera had with CSI’s HR department. See id. ¶¶ 56, 70, 83.

Finally, while the “severe or pervasive” element is a closer call, Plaintiff still

meets the exceedingly low threshold of sufficiency to survive a motion to dismiss.

See Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A.,

et al., 711 F.2d 989, 995 (11th Cir. 1983). While the conduct alleged does not meet

all the objective factors, much of Brown’s conduct (before being removed from

assignments with Plaintiff) can be deemed to be frequent and some alleged instances

of harassment can be reasonably viewed as physically threatening and humiliating.

See Id. ¶¶ 15-34, 66, 77. Accordingly, Ms. Rivera may proceed with a sexually

hostile work environment claim under Counts I and III.

c. Counts II and IV- Failure to State a Claim for Retaliation

The Court also rejects Defendant’s final argument that Plaintiff failed to

sufficiently state a claim for retaliation under Title VII and the FCRA. To establish

a prima facie case under Title VII for retaliation, a plaintiff is required to show that

(1) she engaged in statutorily protected activity; (2) she suffered an adverse

employment action; and (3) there was a causal relation between the protected activity

and the adverse action. See Terrell v. Paulding Cty., 539 F. App’x 929, 933 (11th

Cir. 2013) (citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.

2001)).

Concerning the causation element, a plaintiff must allege her “protected

activity was a but-for cause” of her termination. Yelling v. St. Vincent's Health Sys.,

82 F.4th 1329, 1338 (11th Cir. 2023); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570

U.S. 338, 352 (2013) (“Title VII retaliation claims must be proved according to

traditional principles of but-for causation.”). In other words, “a plaintiff must prove

that had she not complained, she would not have been fired.” Jefferson v. Sewon

Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018)). “The burden of causation can [also]

be met by showing close temporal proximity between the statutorily protected

activity and the adverse employment action.” Thomas v. Cooper Lighting, Inc., 506

F.3d 1361, 1364 (11th Cir. 2007). However, “mere temporal proximity, without

more, must be ‘very close.’” Id. (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.

268, 273 (2001)).

Here, elements one and two have been sufficiently pled in the Complaint.

Plaintiff engaged in statutorily protected activity by reporting instances of sexual

harassment to CSI’s HR department, and Ms. Rivera suffered an adverse

employment action when her employment was terminated by CSI. Dkt. 1 ¶¶ 56, 69,

82, 86; see also Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)

(“It is undisputed that [plaintiff] has met the first two elements of his prima facie

case of retaliatory discrimination, i.e., that he engaged in statutorily protected

conduct (reporting alleged race discrimination) and suffered an adverse employment

action (termination).”).

At this stage in the proceeding, the Court also finds the Complaint sufficiently

alleged some causal relationship between the protected activity and adverse action.

Plaintiff claims Defendant terminated her “shortly after” an HR employee told her

that “reporting [] Brown would make it difficult for her to continue working at CSI.”

Id. ¶ 87. Put another way, had Ms. Rivera not complained about Brown’s conduct,

she would not have been fired. However, the Court notes Defendant’s arguments

regarding the “temporal proximity” between Brown’s conduct and Plaintiff’s

termination are an important issue to be explored during discovery. See Thomas, 506

F.3d at 1364 (“[I]n the absence of other evidence tending to show causation, if there

is a substantial delay between the protected expression and the adverse action, the

complaint of retaliation fails as a matter of law.”) (emphasis added). Accordingly,

Counts II and IV have sufficiently stated a claim for retaliation under Title VII and

the FCRA.

CONCLUSION

Accordingly, it is hereby ORDERED and ADJUDGED that Defendant’s

Motion to Dismiss Plaintiff’s Complaint, Dkt. 14, is DENIED. The Defendant must

file a responsive pleading within 14 days of the entry of this Order.

DONE AND ORDERED at Tampa, Florida, on September 23, 2024.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record