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Kessler v. Zimmerman Advertising, LLC

United States District Court, S.D. Florida

November 8, 2017

ALISON KESSLER, Plaintiff,
v.
ZIMMERMAN ADVERTISING, LLC, a Delaware Limited Liability Company, Defendant.

          ORDER

          DARRIN P. GAYLES, UNITED STATES DIS/TRICT JUDGE.

         THIS 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.

         BACKGROUND

         Plaintiff 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.

         I. The Allegations

         On 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.

         II. Procedural Background

         On 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.[1]

         ANALYSIS

         I. Standard of Review

         “To 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 defendant-unlawfully-harmed-me accusation.” Id. (alteration added) (quoting Twombly, 550 U.S. at 555).

         Pleadings 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).

         II. Retaliation Claims

         Title 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 ...


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