Testa v. GSA Access Group, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SANDRA TESTA,

Plaintiff,

v. Case No: 8:24-cv-2739-CEH-SPF

GSA ACCESS GROUP, LLC,

d/b/a FedBiz Access,

Defendant.

___________________________________/

ORDER

This matter comes before the Court on Defendant’s Motion to Dismiss

Amended Complaint (Doc. 10). In the motion, Defendant GSA Access Group, LLC

d/b/a FedBiz Access requests dismissal of Plaintiff’s Amended Complaint for failure

to state a cause of action. Plaintiff filed a response in opposition. Doc. 12. The Court,

having considered the motion and being fully advised in the premises, will grant in

part the Defendant’s Motion to Dismiss Amended Complaint and give Plaintiff the

opportunity to amend her complaint.

I. BACKGROUND1

Plaintiff Sandra Testa (“Plaintiff” or “Testa”), who is 88 years old, worked for

Defendant GSA Access Group, LLC d/b/a FedBiz Access (“Defendant” or

1 The following statement of facts is derived from the Amended Complaint (Doc. 8), the

allegations of which the Court must accept as true in ruling on the instant Motion to Dismiss.

Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de Centro Am., S.A. v.

Latin Am. Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994 (11th Cir. 1983).

“FedBiz”) as a Senior Contracting Specialist since 2011. Doc. 8 ¶¶ 7, 8. While

employed with FedBiz, Testa was an exemplary employee. Id. ¶ 9. During the COVID-

19 pandemic, Testa was asked to work from home because of her age and the risk of

her becoming ill. Id. ¶ 10. She was assured her compensation would not change. Id.

However, shortly after starting to work remotely, FedBiz’s president (Mike Toups)

informed Testa that she would no longer be paid based on commissions and by the

hour, but instead by commission and the amount of time she spent talking to clients

(“talk time”) times two. Id. ¶ 11. Because she typically only spent two hours of her

eight-hour day on the phone with clients, this meant Testa would only be paid for four

hours of work each day. Id. ¶ 12. FedBiz’s other employees similarly only spent about

two hours of talk time but were still paid for an eight-hour day. Id. ¶ 13. Testa requested

multiple times to be able to return to the office, but her requests were refused due to

her age. Id. ¶ 14. Testa’s supervisor was aware that Testa worked 60 hours weekly but

was only paid on her commissions. Id. ¶ 16. In 2021, Testa was paid approximately

$114,000, but in 2022, Plaintiff was paid only $ 74,000. Id. ¶¶ 17, 22.

In 2022, Testa requested to be able to return to her previous payment scheme

which would match the compensation received by the Defendant’s younger employees

who were permitted to work in office. Id. ¶ 18. In August 2022 Testa began coming

into the office for Monday meetings. Id. ¶ 20. She again requested to be allowed to

work in the office, but she was told to continue to work from home. Id. ¶ 21. FedBiz’s

president Toups told Testa, “at your age, you should retire soon.” Id.

On March 27, 2023, Testa was discharged. Id. ¶ 24. She was told the reason for

her termination was because her position was eliminated. Id. ¶ 24. FedBiz hired a sales

account specialist shortly after Testa’s termination. Id. ¶ 25. Testa sued FedBiz in a

one-count complaint alleging violations of the Age Discrimination in Employment

Act of 1967 (“ADEA”) and the Florida Civil Rights Act (“FCRA”) in discharging her,

reducing her compensation, and altering her terms of employment because of her age.

Doc. 8 ¶ 28. FedBiz moves to dismiss the Amended Complaint. Doc. 10. Plaintiff filed

a response in opposition. Doc. 12.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a

“short and plain statement of the claim showing that the pleader is entitled to relief.”

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels,

conclusions and formulaic recitations of the elements of a cause of action are not

sufficient. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain

sufficient factual matter, which, if accepted as true, would “state a claim to relief that

is plausible on its face.” Id. (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.” Id.

(citation omitted). The court, however, is not bound to accept as true a legal

conclusion stated as a “factual allegation” in the complaint. Id.

III. DISCUSSION

The ADEA prohibits employers from taking an adverse employment action

against an employee who is at least 40 years of age because of that employee’s age. 29

U.S.C. §§ 623(a), 631(a). The Florida Civil Rights Act similarly prohibits such

unlawful conduct by an employer. See Fla. Stat. § 760.10(1)(a). Age discrimination

claims brought under the FCRA are analyzed under the same framework as the

ADEA. Rainey v. United Parcel Serv., Inc., 816 F. App’x 397, 400 (11th Cir. 2020).

FedBiz moves to dismiss Testa’s ADEA and FCRA claims, arguing Testa’s

Amended Complaint is a shotgun pleading because she commingles causes of action

in a single count; Testa is not a member of a protected class; she fails to exhaust

administrative remedies; she fails to sufficiently allege age discrimination through

direct or circumstantial evidence; and because she fails to plead but-for causation. Doc.

10. Testa acknowledges her causes of action should be set forth in separate counts but

otherwise opposes the motion. Doc. 12. The Court addresses each of Defendant’s

arguments in turn below.

A. Shotgun Complaint

In addition to including “a short and plain statement of the claim showing that

the pleader is entitled to relief[,]” Fed. R. Civ. P. 8(a)(2); Ashcroft, 556 U.S. at 677-78;

each claim of a plaintiff’s complaint must be “limited as far as practicable to a single

set of circumstances,” and each claim founded on a separate transaction or occurrence

must be stated in a separate count or defense if doing so would promote clarity. Fed.

R. Civ. P. 10(b). FedBiz argues dismissal is warranted because Testa combines her

claims for alleged violations of the ADEA and FCRA in the same count. Doc. 10 at

6. The Court agrees. In her response to Defendant’s motion, Plaintiff acknowledges

this pleading deficiency. Doc. 12 at 13. Accordingly, the Amended Complaint is due

to be dismissed as a shotgun pleading. Because Testa will be given the opportunity to

file an amended complaint, the Court addresses Defendant’s remaining arguments.

B. ADEA Protects Individuals Over the Age of 40

Plaintiff alleges she is 88 years old. Doc. 8 ¶ 7. Defendant argues that Plaintiff

is not a member of a protected class under the ADEA because she is not between the

ages of 40 and 70. Doc. 10 at 15. Defendant’s argument is meritless. As Plaintiff’s

response points out, the ADEA was amended, effective January 1, 1987, to remove

the maximum age limitation of 70. See PL 99–592 (HR 4154), PL 99–592, October 31,

1986, 100 Stat 3342 (noting that Section 12 of the ADEA is amended “(1) in subsection

(a) by striking out ‘but less than seventy years of age’, and (2) in subsection (c)(1) by

striking out ‘but not seventy years of age’”). Thus, FedBiz’s motion to dismiss based

on this argument fails.

C. Exhaustion of Administrative Remedies

Before filing suit under the ADEA, a plaintiff must exhaust the available

administrative remedies by filing a charge with the EEOC. See 29 U.S.C. §

626(d)(1)(A) (stating plaintiff must file age discrimination charge within 180 days after

the alleged discrimination). The purpose of the exhaustion requirement is to allow the

EEOC to “have the first opportunity to investigate the alleged discriminatory

practices[.]” Gregory v. Ga. Dep’t of Human Resources, 355 F.3d 1277, 1279 (11th Cir.

2004) (citations and quotations omitted). For this reason, a plaintiff is not permitted to

allege new acts of discrimination that were not raised in the EEOC charge. Id. at 1280.

In her Amended Complaint, Testa alleges that she has performed all conditions

precedent that are necessary to maintain this action. Doc. 8 ¶ 5. Although not attached

to her Amended Complaint, Testa filed a Charge of Discrimination with the EEOC

dated April 18, 2023, alleging discrimination based on her age in violation of the

ADEA and the FCRA. Doc. 10-1. FedBiz attaches the Charge to its motion to dismiss.

Id. “[A] court may consider a document attached to a motion to dismiss without

converting the motion into one for summary judgment if the attached document is (1)

central to the plaintiff’s claim and (2) undisputed.” Day v. Taylor, 400 F.3d 1272, 1276

(11th Cir. 2005); see Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369

(11th Cir. 1997) (“[W]hen the plaintiff refers to certain documents in the complaint

and those documents are central to the plaintiff’s claim, then the Court may consider

the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the

defendant’s attaching such documents to the motion to dismiss will not require

conversion of the motion into a motion for summary judgment.”) “A document is

central to a complaint when it is a ‘necessary part of [the plaintiff’s] effort to make out

a claim.” Madura v. Bank of Am., N.A., 767 F. App’x 868, 870 (11th Cir. 2019) (per

curiam) (alteration in original) (quoting Day, 400 F.3d at 1276). “In this context,

‘undisputed’ means the authenticity of the document is not challenged.” Day, 400 F.3d

at 1276. Testa does not challenge the authenticity of the Charge of Discrimination,

and because it is central to Plaintiff’s age discrimination claim, the Court may

appropriately consider it.

FedBiz argues that Testa fails to state a claim because the allegations of the

Amended Complaint exceed the scope of the EEOC charge, and she therefore failed

to exhaust administrative remedies. Doc. 10 at 6–10. FedBiz further argues that any

attempt to cure her failure to exhaust would be untimely. Id. at 10–11. Specifically,

FedBiz contends that because the Charge of Discrimination only identifies the latest

date that the discrimination took place (March 27, 2023, her date of discharge) and the

box regarding “continuing action,” is not checked, any complaint by Plaintiff about

the terms and conditions of her employment and/or her compensation are barred for

failure to exhaust her administrative remedies as to those issues before the EEOC.

In response, Testa argues that being forced to work from home, which resulted

in decreased compensation, was discriminatory and is related to her discharge claim.

While a plaintiff is generally not permitted to allege new acts of discrimination that

were not raised in the EEOC charge, Gregory, 355 F.3d at 1280, the scope of an EEOC

charge “should not be strictly interpreted,” see Batson v. Salvation Army, 897 F.3d 1320,

1327 (11th Cir. 2018) (citations omitted), and courts are “extremely reluctant to allow

procedural technicalities to bar discrimination claims.” Kelly v. Dun & Bradstreet, Inc.,

557 F. App’x 896, 899 (11th Cir. 2014) (quoting Ray v. Freeman, 626 F.2d 439, 443 (5th

Cir. 1980)2). Accordingly, any claim that “can reasonably be expected to grow out of

the charge of discrimination” in the EEOC is permissible, including claims that

“amplify, clarify, or more clearly focus the allegations in the EEOC charge.” Gregory,

355 F.3d at 1280 (quotations omitted).

As an initial matter, contrary to FedBiz’s suggestion, Plaintiff’s failure to check

the “continuing action” box on her EEOC form is not necessarily dispositive of her

claims. See Batson, 897 F.3d at 1328 (concluding that plaintiff had exhausted her

administrative remedies even though she had not checked the “retaliation” box in her

EEOC charge). “[T]he proper inquiry is whether the plaintiff’s complaint is like or

related to, or grew out of, the allegations contained in the EEOC charge.” Batson, 897

F.3d at 1328 (quotations omitted).

In the charging document, Testa states she was discharged on March 27, 2023,

due to her age; FedBiz falsely claimed her position was eliminated; her compensation

decreased from $114,000 in 2021 to $74,000 in 2022; and there was no reason for her

discharge. Doc. 10-1. The Court finds that the alleged discriminatory conduct

described in Testa’s Amended Complaint is related to or reasonably grew out of her

EEOC charge. The prohibition against raising “new acts of discrimination” not alleged

before the EEOC “is best understood to bar fundamentally new ‘types’ of

discrimination claims that are alleged in a complaint but not derivative of the initial

2 In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all decisions

of the former Fifth Circuit handed down prior to October 1, 1981. 661 F.2d 1206, 1209 (11th

Cir. 1981) (en banc).

charge.” Donovan v. Westcor Land Title Ins. Co., 6:20-cv-544-PGB-GJK, 2020 WL

13357822, *7 (M.D. Fla. July 8, 2020).

The allegations of Plaintiff’s Amended Complaint do not raise a new type of

discrimination. Rather, both her EEOC charge and her Amended Complaint assert

claims of age discrimination. Although the discriminatory act specifically named in

the EEOC charge is Plaintiff’s discharge, she did not claim that this was the only act

that occurred; instead, she discussed how her compensation scheme was changed and

the fact that she was paid less in 2022 than in 2021, as well as her employer’s alleged

false statement that her position was eliminated.3 Doc. 10-1. Given Testa’s statements

in her Charge including her decreased compensation from one year to the next, it is

reasonable to expect the EEOC investigation would have encompassed all possibly-

discriminatory actions that occurred during the relevant period leading up to the

discharge. See Donovan, 2020 WL 13357822, *8. The Court declines to strictly interpret

the scope of Testa’s EEOC charge, see Batson, 897 F.3d at 1327, and therefore finds, in

a light favorable to the Plaintiff, that the allegations of discrimination are sufficiently

“like or related to” those brought before the EEOC. The motion to dismiss on

3 In support of her argument, Testa additionally attaches copies of FedBiz’s Position

Statement (Doc. 12-1) and her rebuttal statement (Doc. 12-2). The Court may appropriately

consider on a motion to dismiss documents attached to a plaintiff’s complaint. See Fed. R.

Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the

pleading for all purposes.”). The Court notes, however, that these documents were not

exhibits to the Amended Complaint. Rather, the documents were attached as exhibits to her

response to the motion to dismiss. A response to a motion to dismiss is not a pleading. See

Fed. R. Civ. P. 7. To the extent that Plaintiff wishes the Court to consider the documents,

they should be made a part of her pleadings.

exhaustion grounds is due to be denied. Because the exhaustion argument has been

rejected, the Court need not address Defendant’s argument that it is too late to cure

any failure to exhaust.

D. Direct and/or Circumstantial Evidence of Discrimination

“A plaintiff can establish age discrimination through either direct or

circumstantial evidence.” Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013)

(citing Mora v. Jackson Mem'l Found., Inc., 597 F.3d 1201, 1204 (11th Cir. 2010). FedBiz

argues that Testa cannot state a claim because she does not sufficiently allege either

direct or circumstantial evidence. First, FedBiz contends that stray retirement-related

comments are not directly probative of discrimination. “Direct evidence of

discrimination would be evidence which, if believed, would prove the existence of a

fact without inference or presumption.” Carter v. City of Miami, 870 F.2d 578, 581–82

(11th Cir. 1989) (citing Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 n. 13 (11th

Cir. 1988)). Defendant is correct that “not every comment concerning a person’s age

presents direct evidence of discrimination.” Carter, 870 F.2d at 582 (citing Young v.

Gen. Foods Corp., 840 F.2d 825, 829 (11th Cir. 1988)). Instead, courts consider only the

most blatant remarks, whose intent could be nothing other than to discriminate

because of an employee’s age, to be direct evidence of discrimination. Carter, 870 F.2d

at 582. For example, comments that a plaintiff lacked the “wherewithal” to perform

his job, “moved in slow motion,” and was “not proactive,” “not aggressive,” and being

approximately the same age as his manager’s father did not constitute direct evidence

of discrimination. Young, 840 F.2d at 829. Similarly, a manager’s repeated jokes about

plaintiff’s age, questioning plaintiff who is the oldest in the accounting department,

and asking plaintiff how she likes working with a “bunch of babies” did not constitute

direct evidence of age discrimination of 43-year-old discharged plaintiff. Rollins v.

TechSouth, Inc., 833 F.2d 1525, 1530 & n.6 (11th Cir. 1987) (noting that “[i]t is rare

that direct evidence of discrimination exists,” but finding manager’s statements raised

an inference that age discrimination motivated the discriminatory conduct).

Here, Testa alleges Defendant asked Plaintiff to work from home due to her age

and her risk of getting ill during the COVID pandemic; “Plaintiff repeatedly requested

to return to the office, and was denied each time because of her age;” Toups denied

Plaintiff’s request to return to her previous payment scheme which would match all of

Defendant’s younger employees; in denying her request to return to work in the office,

Toups “suggested that Plaintiff retire and enjoy her senior years;” and Toups told

Plaintiff to “stay working from home, at your age you should retire soon.” Doc. 8 ¶¶

10, 14, 18, 19, 21.

Testa argues that Defendant’s forcing her to work from home in 2020 because

of her age and never allowing her to return to the office, coupled with comments

encouraging her to retire soon, is either direct evidence or at least a mosaic of

circumstantial evidence of discrimination. The Eleventh Circuit has held that in an age

discrimination case, “the quintessential example of direct evidence” would be a

manager’s statement saying, “Fire Earley—he is too old.” Merritt v. Dillard Paper Co.,

120 F.3d 1181, 1190 (11th Cir. 1997) (quoting Earley v. Champion Intern. Corp., 907

F.2d 1077, 1081 (11th Cir. 1990)). The Eleventh Circuit recognizes that “remarks

merely referring to characteristics associated with increasing age, or facially neutral

comments from which a plaintiff has inferred discriminatory intent, are not directly

probative of discrimination.” Carter, 870 F.2d at 582.

While Testa alleges she was required to work from home because of her age and

her requests to return to the office were met with refusal, she also indicates it began at

the time of the pandemic out of a concern for her health. Thus, some degree of

inference or presumption is necessary to conclude the conduct of not allowing her to

ever return to the office was because of her age. Similarly, Testa’s discharge requires

an inference or presumption to conclude her termination constituted age

discrimination. As such, her allegations fall short of being the type of blatant remarks

that courts in this Circuit have found to be direct evidence of discrimination. Because

Plaintiff will be permitted to amend, she may include, to the extent any exist, any

additional allegations she contends constitute direct evidence.

Alternatively, Testa relies on a mosaic of circumstantial evidence to establish

her age-discrimination claim. FedBiz argues that Testa cannot establish a claim based

on circumstantial evidence because she fails to allege that a substantially younger

person filled the position from which Testa was discharged and she fails to plead “but-

for” causation.4 Where the evidence of discrimination is circumstantial, courts employ

4 Defendant also contends that Testa is not a member of a protected class under the ADEA

because she is older than 70 years of age. That argument was addressed and rejected in

subsection III (B) above.

the three-stage burden shifting framework established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973), to evaluate a claim under the ADEA. Chapman v. Al

Transp., 229 F.3d 1012, 1024 (11th Cir. 2000). Under this framework, the plaintiff first

must establish a prima facie case of age discrimination. Coleman v. Quaker Oats Co., 232

F.3d 1271, 1281 (11th Cir. 2000). An ADEA plaintiff can establish a prima facie case

of discrimination by showing that she: “(1) was a member of the protected age group,

(2) was subjected to adverse employment action, (3) was qualified to do the job, and

(4) was replaced by or otherwise lost a position to a younger individual.” Chapman,

229 F.3d at 1024 (citation omitted). Once a plaintiff establishes a prima facie case of

discrimination, the burden shifts to the defendant employer to articulate a legitimate,

nondiscriminatory reason for the challenged employment action. Id. If the employer

satisfies its burden, the plaintiff must then prove that the reason advanced by the

employer constitutes mere pretext for age discrimination. Id.

Notably, however, at the motion to dismiss stage, a plaintiff need not establish

a prima facie case. Buchanan v. Delta Air Lines, Inc., 727 F. App’x 639, 642 (11th Cir.

2018). Instead, at the pleading stage, the plaintiff need only allege facts adequate to

raise his or her right to relief above a speculative level. Id. (citing Iqbal, 556 U.S. at

678).

Here, FedBiz argues that Plaintiff fails to allege that she was replaced by a

substantially younger person. The Court agrees. Plaintiff alleges: “Defendant hired a

significantly [sic] Sales Account Specialist shortly after Plaintiff’s termination.” Doc.

8 ¶ 25. In amending her complaint, Plaintiff should provide a clearer statement as to

what she is alleging regarding the person hired to replace her. As it pertains to her

compensation and being able to work in the office, she has adequately alleged that

younger employees were permitted to work in the office while she was not and the

younger workers were compensated under a more favorable payment scheme.

Finally, FedBiz contends that Testa does not allege but-for causation, arguing

that she only alleges self-serving and conclusory statements. In the Amended

Complaint, she alleges her requests to return to the office were refused with the

comments that she should retire and enjoy her senior years. Doc. 8 ¶ 19. She was

repeatedly denied requests to return to the office because of her age. Id. ¶ 14. She was

told that at her age she should retire. Id. ¶ 21. Accepting Testa’s allegations as true,

which the Court must do on the instant motion, she has adequately alleged that her

age was the but-for cause of the Defendant’s discriminatory conduct. Accordingly, it

is

ORDERED:

1. Defendant's Motion to Dismiss Amended Complaint (Doc. 10) is

GRANTED, in part, as set forth herein.

2. Plaintiff’s Amended Complaint is dismissed as a shotgun pleading.

3. Plaintiff is granted leave to amend to correct the pleading deficiencies set

forth in this order. The Second Amended Complaint shall be filed within fourteen (14)

days of the date of this order.

4. Failure to file a Second Amended Complaint within the time permitted

will result in dismissal of this action without prejudice and without further notice.

DONE AND ORDERED in Tampa, Florida on April 30, 2025.

Chakene Charts Mo TL ol gel

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record

Unrepresented Parties, if any

15