Testa

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 Second

Amended Complaint (Doc. 19). In the motion, Defendant GSA Access Group, LLC

d/b/a FedBiz Access, requests dismissal with prejudice of Plaintiff’s Second Amended

Complaint for failure to state a cause of action. Plaintiff responded in opposition. Doc.

22. The Court, having considered the motion and being fully advised in the premises,

will grant-in-part and deny-in-part Defendant’s Motion to Dismiss Second Amended

Complaint.

I. BACKGROUND1

A. Factual Background

1 The following statement of facts is derived from the Second Amended Complaint (Doc. 18),

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).

Plaintiff Sandra Testa (“Plaintiff”), worked for Defendant GSA Access Group,

LLC, d/b/a FedBiz Access (“Defendant”) from 2011 to 2023. Doc. 18 ¶¶ 8, 23.

Plaintiff is an 88-year-old woman who worked as a Senior Contracting Specialist for

Defendant and described herself as an exemplary employee who generated significant

profits. Id. ¶¶ 7–9. Defendant is a government contracting consulting firm. Id. ¶ 6.

Defendant, with Michael Toups as president at the time, made the decision to have

Plaintiff work from home during the COVID-19 pandemic and pay her at the same

rate. Id. ¶¶ 10–11. This decision was made because of her age and the risk of illness.

Id. ¶ 10. Toups changed her payment scheme two weeks later, and informed Plaintiff

that she would no longer be paid by the hour. Id. ¶ 11. Instead, she would be paid

based on the amount of time she spent talking to clients (“talk time”) times two. Id.

Because Plaintiff only spent two out of eight hours each day talking to clients, she only

was paid for four hours of work. Id. ¶ 12. Defendant’s vice president of sales Tracy

Plant kept in contact with Plaintiff daily and knew Plaintiff was working 60 hours per

week and was only being paid on commissions. Id. ¶ 16. In comparison, Defendant

still permitted all the other employees to work in person, and they were paid for their

full eight hours of work, notwithstanding that those employees also often engaged in

only one or two hours of talk time. Id. ¶ 13.

Plaintiff repeatedly requested to return to the office but was denied because of

her age. Id. ¶ 14. Specifically, in 2022, Plaintiff requested to return to her previous

payment scheme, which would match the “younger employees” working in the office,

but she was denied by company president Toups. Id. ¶ 18. Thereafter, Plaintiff again

requested to return to work in person but was again denied by Toups, who suggested

she “retire and enjoy her senior years.” Id. ¶ 19.

Between 2021 and 2022, her pay decreased from $114,000 $74,000. Id. ¶¶ 17,

22. Defendant suggested that Plaintiff form her own company so she could be paid

exclusively based on her commissions using a Form 1099 to declare her income. Id. ¶

15.

When Plaintiff began coming into the office on Mondays for all-hands

meetings, in or around August 2022, Defendant again denied Plaintiff reentry into in-

person work. Id. ¶ 20. Toups told her to “stay working from home” and suggested that

“at her age she should retire soon.” Id. ¶ 21.

Defendant discharged Plaintiff on or around March 27, 2023, and informed her

that her position had been eliminated. Id. ¶¶ 23–24. Plaintiff claims, “Defendant hired

a significantly [sic] Sales Account Specialist shortly after Plaintiffs termination and

assigned Plaintiff’s duties to younger personnel.” Id. ¶ 26. Plaintiff alleges Defendant

discharged her because of her age. Id. ¶ 27.

B. Procedural Background

Plaintiff filed a Charge of Discrimination with the EEOC dated April 18, 2023,

alleging discrimination based on her age in violation of the Age Discrimination in

Employment Act of 1967 (“ADEA”) and the Florida Civil Rights Act (“FCRA”).

Doc. 10-1. Plaintiff filed this lawsuit in Pinellas County state court in September 2024.

Doc. 1-2. On November 25, 2024, Defendant removed the case to federal court based

upon the Court’s original jurisdiction. Doc. 1. On December 16, 2024, Plaintiff filed

an Amended Complaint alleging a single count of age discrimination under both the

ADEA and the FCRA. Doc. 8. Defendant moved to dismiss the amended complaint,

which the Court granted, in part. Docs. 10, 17. The Court dismissed the Amended

Complaint as a shotgun pleading and granted Plaintiff leave to amend. Doc. 17 at 14.

Plaintiff filed a two-count Second Amended Complaint on May 13, 2025, asserting

claims for violation of the ADEA (Count I) and the FCRA (Count II). Doc. 18.

In her Second Amended Complaint, Plaintiff asserts that Defendant discharged

and otherwise discriminated against her with respect to the terms and conditions of

her employment, compensation, and discharge because of her age. Id. Plaintiff claims

that she met and exceeded Defendant’s legitimate performance expectations, and that

the comment that Plaintiff should “retire and enjoy her senior years” is direct and

circumstantial evidence of age discrimination. Id. ¶¶ 30–31. She asserts that Defendant

falsely represented to the EEOC that she refused to return to the physical offices even

though it was her repeated requests to return in person that Defendant denied. Id. ¶ 25.

Defendant moved to dismiss the Second Amended Complaint under Fed. R.

Civ. P. 12(b)(6), arguing Plaintiff fails to state a cause of action against it. Doc. 19.

Defendant contends that Plaintiff’s Second Amended Complaint fails to cure the

deficiencies of her prior complaints and that any further amendment would be futile.

Defendant requests dismissal with prejudice.

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); see McCreight v. AuburnBank, 117 F.4th 1322, 1334 (11th Cir.

2024). The Florida Civil Rights Act similarly prohibits such unlawful conduct by an

employer. See Fla. Stat. § 760.10(1)(a). “Courts employ the same analysis when

evaluating age discrimination claims under the ADEA and FCRA.” Cardelle v. Miami

Beach Fraternal Order of Police, 593 F. App’x 898, 901 n.6 (11th Cir. 2014) (citing Zaben

v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1455 n.2 (11th Cir. 1997)); see also Rainey v.

United Parcel Serv., Inc., 816 F. App’x 397, 400 (11th Cir. 2020) (“Age discrimination

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

Discrimination in Employment Act[.]”).

Defendant seeks dismissal with prejudice of Plaintiff’s ADEA and FCRA

claims, arguing that Plaintiff’s Second Amended Complaint again fails to state a cause

of action against Defendant. Doc. 19 at 1. “A plaintiff can establish age discrimination

through either direct or circumstantial evidence.” Mora v. Jackson Mem’l Found., Inc.,

597 F.3d 1201, 1204 (11th Cir. 2010). In the Court’s prior order dismissing the

Amended Complaint as a shotgun pleading, the Court noted that Plaintiff’s allegations

fell short of plausibly alleging a theory of age discrimination based on direct evidence.

Doc. 17 at 12. The Court gave Plaintiff, by amending her complaint, the opportunity

to add any additional allegations of direct evidence, to the extent any existed. The

Second Amended Complaint adds no new allegations of direct evidence, and thus

Defendant’s motion is due to be granted to the extent that Plaintiff may not proceed

on a theory of age discrimination based on direct evidence.

In opposing dismissal, Plaintiff argues she has adequately alleged her age

discrimination claim based on circumstantial evidence. For example, she argues that

ageist comments, such as were made to her by Toups, may provide circumstantial

evidence of discrimination. Doc. 22 at 14 (citing Mora v. Jackson Mem'l Found., Inc., 597

F.3d 1201, 1204–05 (11th Cir. 2010) (comments by a supervisor that a plaintiff is “too

old” were circumstantial evidence of age discrimination)). Additionally, she asserts

that she has pleaded a mosaic of direct and circumstantial proof of unlawful motive.2

Finally, she argues that the facts here may fit an unlawful one-person reduction-in-

force scenario.

For reduction-in-force cases, the Eleventh Circuit has implemented a variant of

the McDonnell Douglas test. See Earley v. Champion Int’l Corp., 907 F.2d 1077, 1082 (11th

Cir. 1990). “Generally, a plaintiff in a job-reduction case can establish a prima facie

case by demonstrating (1) that [she]was in a protected age group and was adversely

affected by an employment decision; (2) that [she] was qualified for [her] current

position or to assume another position at the time of discharge or demotion; and (3)

evidence by which a fact finder might reasonably conclude that the employer intended

to discriminate on the basis of age in reaching the decision at issue.” Id. As discussed

in more detail below, the Plaintiff need not establish a prima facie case at this stage of

the proceedings. Rather, at the motion-to-dismiss stage, a complaint alleging

employment discrimination “must simply state sufficient ‘factual content’ to ‘allow[ ]

the court to draw the reasonable inference’ that the employer had discriminatory intent

2 Recently, the Eleventh Circuit clarified that the “convincing mosaic” standard is typically

utilized at the summary judgment stage, after the parties have gone through discovery. Davis

v. Miami-Dade Cnty., No. 23-12480, 2024 WL 4051215, at *4 (11th Cir. Sept. 5, 2024) (citing

Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019) (“[A] plaintiff will always

survive summary judgment if he presents ... a convincing mosaic of circumstantial evidence

that would allow a jury to infer intentional discrimination.” (quotations omitted)). When a

court is looking for “a ‘convincing mosaic’ of circumstantial evidence,” Tynes, 99 F.4th at

946, it is looking for evidence. “At the pleading stage, the question is not one of evidence, but

of pleading facts -- which the court must take as true -- with enough specificity to state a

claim.” Davis, 2024 WL 4051215 at *4 (citing Iqbal, 556 U.S. at 678).

when it fired the plaintiff.” Davis v. Miami-Dade Cnty., No. 23-12480, 2024 WL

4051215, at *5 (11th Cir. Sept. 5, 2024) (quoting Iqbal, 556 U.S. at 678).

When an ADEA claim is based on circumstantial evidence, courts analyze the

shifting of burdens and the presentation of proof under the framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973);

see Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (applying

McDonnell Douglas to evaluate ADEA claims). Under this framework, a plaintiff can

establish a rebuttable presumption of intentional discrimination if she can make out a

prima facie case of discrimination by showing that “(1) she belongs to a protected class,

(2) she was subjected to an adverse employment action, (3) she was qualified to

perform the job in question, and (4) her employer treated ‘similarly situated’ employees

outside her class more favorably.” Davis v. Miami-Dade Cnty., No. 23-12480, 2024 WL

4051215, at *3 (11th Cir. Sept. 5, 2024) (quoting Tynes v. Fla. Dep't of Juvenile Just., 88

F.4th 939, 944 (11th Cir. 2023) (quotations omitted)). The Eleventh Circuit has

recognized that the fourth element may alternatively be satisfied if a plaintiff can show

she was discharged “while a person outside of the class with equal or lesser

qualifications was retained[.]” Lee v. Russell Cnty. Bd. of Educ., 684 F.2d 769, 773 (11th

Cir. 1982) (citations omitted).

Defendant urges the Court to dismiss Plaintiff’s claims because her Complaint

fails to allege a prima facie case in that she does not allege that she was replaced by a

substantially younger person and therefore she cannot satisfy the fourth element.

However, the Supreme Court has clarified that a prima facie case for discriminatory

employment decisions “is an evidentiary standard, not a pleading requirement.”

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). This means that Testa need not

“establish a prima facie age-discrimination case in order to survive a Rule 12(b)(6)

motion to dismiss.” Buchanan v. Delta Air Lines, Inc., 727 F. App’x 639, 642 (11th Cir.

2018) (citing Swierkiewicz, 534 U.S. at 510). Rather, Plaintiff must “allege facts giving

rise to an inference of disparate treatment” or intentional discrimination. Caraway v.

Sec'y, U.S. Dep't of Transp., 550 Fed. App'x 704, 710 (11th Cir. 2013). Stated differently,

Plaintiff must plausibly allege that Defendant discriminated against her based on her

age. See Shah v. Orange Park Med. Ctr., Inc., No. 3:14-cv-1081-MHH-JRK, 2016 WL

4943925, at *4 (M.D. Fla. Sept. 16, 2016) (Howard, J.) (noting that complaints alleging

discrimination must meet the plausibility standard of Twombly and Iqbal).

At 88 years of age, Plaintiff clearly satisfies the age requirement for her claims

of discrimination under the ADEA and FCRA. Plaintiff was discharged, and thus she

has adequately alleged an adverse employment action. The Second Amended

Complaint alleges that Plaintiff was an exemplary, productive employee whose

performance exceeded Defendant’s expectations. Thus, she was qualified to perform

her job. Plaintiff repeatedly requested to be allowed to return to the office, but she was

denied and told to retire and enjoy her senior years. Younger employees were

permitted to return to the office and were paid for their in-office time whereas Plaintiff

was paid based only on “talk-time,” which resulted in decreased pay. When she asked

again about returning to work in the office, she was told to stay working from home

since at her age she should retire soon. Plaintiff was terminated in March 2023. After

her termination, Plaintiff's duties were given to younger personnel. Accepting

Plaintiff's well-pleaded allegations as true and in a light most favorable to her, as the

Court must do on a motion to dismiss, she has plausibly alleged that Defendant

discriminated against her based on her age. Accordingly, Defendant’s motion to

dismiss is due to be denied. It is hereby

ORDERED:

1. Defendant’s Motion to Dismiss Second Amended Complaint (Doc. 19)

is granted-in-part and denied-in-part.

2. The motion is granted to the extent Plaintiff has failed to set forth a claim

of age discrimination based on direct evidence. In all other respects the motion is

denied.

3. Within 14 days, Defendant shall file its Answer to the Second Amended

Complaint.

4. The stay of discovery is lifted.

DONE AND ORDERED in Tampa, Florida on October 17, 2025.

Chaken -_— Aiwarda Mn TDA pl el

Charlene Edwards Honeywell

United States District Judge

Copies furnished to:

Counsel of Record

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