United States District Court, S.D. Florida
P. GAYLES, UNITED STATES DIS/TRICT JUDGE.
CAUSE comes before the Court upon Defendant
Zimmerman Advertising, LLC's Motion to Dismiss Counts II
and IV of Plaintiff's Complaint [ECF No. 7]. The Court
has carefully reviewed the Motion, the record, and the
applicable law. For the reasons discussed below,
Defendant's Motion is granted.
Alison Kessler (“Plaintiff”) brings this action
against Defendant Zimmerman Advertising, LLC
(“Defendant”) alleging that Defendant
discriminated and retaliated against her based on her
sex/gender and her pregnancy.
March 4, 2016, Plaintiff began her employment with the
Defendant. On June 10, 2016, Plaintiff notified Scott Thaler
(“Thaler”), her supervisor, that she was
pregnant. In response, Thaler told Plaintiff that it would be
a problem if she could not travel for work due to her
pregnancy. Plaintiff responded that she remained fully
capable of performing her job duties because she had already
traveled twice since becoming pregnant and she could fly for
monthly client meetings if needed. Four days after Plaintiff
disclosed her pregnancy, upper management, including Jordan
Zimmerman, Defendant's Chairman, asked Plaintiff to
participate in a conference call with her main client,
Kane's Furniture. During the call, Plaintiff was asked
why she did not have more communications with her client.
Plaintiff responded that she had several calls with
Kane's Furniture and traveled twice to their headquarters
in Tampa. In response, Mr. Zimmerman insulted Plaintiff for
several minutes stating: “How could you be so
stupid” and “You can't even make a phone call
when we paid to relocate you to Florida?” [EFC No. 1].
Later that afternoon, Plaintiff was terminated.
January 8, 2017, Plaintiff filed a charge of discrimination
against Defendant with the United States Equal Employment
Opportunity Commission (EEOC) and the Florida Commission on
Human Relations (FCHR). On August 23, 2017, Plaintiff filed a
four count Complaint against Defendant asserting: (1)
sex/gender discrimination under both Title VII and the
Florida Civil Rights Act (“FCRA”) (Counts I and
III) and (2) retaliation under both Title VII and the FCRA
(Counts II and IV) [ECF No. 1]. Defendant has moved to
dismiss Counts II and IV with prejudice, arguing that
Plaintiff has failed to allege any statutorily protected
activity and a “but for” link between
Plaintiff's actions and her termination.
Standard of Review
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Although this pleading standard “does not
require ‘detailed factual allegations, ' . . . it
demands more than an unadorned, the
Id. (alteration added) (quoting Twombly,
550 U.S. at 555).
must contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555
(citation omitted). Indeed, “only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Iqbal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556). To meet this
“plausibility standard, ” a plaintiff must
“plead[ ] factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (alteration
added) (citing Twombly, 550 U.S. at 556). When
reviewing a motion to dismiss, a court must construe the
complaint in the light most favorable to the plaintiff and
take the factual allegations therein as true. See Brooks
v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d
1364, 1369 (11th Cir. 1997).
VII prohibits retaliation against an employee who has opposed
an unlawful employment practice. See 42 U.S.C.
§ 2000e-3(a). To prove a prima facie case for
retaliation, the Plaintiff must establish that: “(1)
she engaged in an activity protected under Title VII; (2) she
suffered an adverse employment action; and (3) there was a
causal connection between the protected activity and the
adverse employment action.” Crawford v.
Carroll,529 F.3d 961, 970 (11th ...