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Cordero v. City of Coral Gables

United States District Court, S.D. Florida

February 26, 2018

CITY OF CORAL GABLES, a Florida municipal corporation, Defendant.



         This is an employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and the Florida Civil Rights Act (“FCRA”), Fla. Stat. §§ 760.01, et seq. I have jurisdiction under 28 U.S.C. §§ 1331 and 1367.

         Pending is Defendant's Motion to Dismiss Plaintiffs First Amended Complaint, or, in the Alternative, Motion to Strike for a More Definite Statement (ECF No. 21). For the reasons that follow, I grant the motion.


         Plaintiff Jesus Cordero, a black Dominican male and employee of Defendant City of Coral Gables, has worked for Defendant continuously since May 2000. (ECF No. 16 ¶¶ 11, 14). He was hired as an “Entry Level Service Worker II.” (Id. ¶ 14). Sometime in 2002 or 2003, he was promoted to “Automotive Mechanic” (a level 17C classification), [1] which is his current employment classification. (Id.). Cordero also is a Union Steward for Teamsters Local 769 in Miami Dade Florida, has engaged in various union activities, and has assisted in filing grievances against the City of Coral Gables throughout the relevant time period. (Id. ¶ 16).

         In March 2015, Cordero applied for the position of Fleet Analyst. (Id. ¶ 19). Defendant denied his application without an interview. (Id.). Instead, Defendant hired Jean-Pierre Pacheco, a white Italian-Columbian male. (Id.). Cordero alleges Defendant hired Pacheco despite the fact that Cordero had superior qualifications. (Id.).

         Cordero's Union filed a grievance on his behalf alleging violation of the Collective Bargaining Agreement (“CBA”) between the Union and Defendant. (ECF No. 21-2). The arbitrator ruled that Defendant breached the CBA, and instructed it to interview Cordero as if the position were still open, and if he was a better fit for the position than Pacheco, to transfer Pacheco to his old position and transfer Cordero to the Fleet Analyst position. (ECF No. 21-2 at 12). Conversely, if, after interviewing Cordero, Defendant decided not to make a change, it simply needed to inform Cordero that it had abided by the arbitrator's award and the status quo remained. (Id.). Defendant interviewed Cordero as per the arbitrator's instructions, but did not end up offering him the position. (ECF No. 16 ¶ 21).

         Cordero filed a charge against Defendant with the EEOC, which included an explanation of the grounds for the charge. (ECF No. 21-1). Cordero's narrative alleges he was discriminated against because of his race and national origin, but does not allege he was retaliated against because of his Union position and/or the grievance the Union filed on his behalf. (Id. at 4). The EEOC reviewed the charge and issued Cordero a Notice of Right to Sue. (ECF No. 16-1).

         Cordero brings suit under 42 U.S.C. § 2000e, et seq., and and the Florida Civil Rights Act (“FCRA”) for race and national origin discrimination (Count I), and retaliation (Count II). He claims Defendant violated his civil rights by continuously denying him a lateral transfer despite his qualifications for the position, and retaliated against him for engaging in protected activity as Steward for the Union. He seeks back pay, compensatory damages, promotion, injunctive relief and attorney's fees.


         Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” In order to state a claim, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Further, Rule 10(b) mandates that “each claim [be] founded upon a separate transaction or occurrence.” A proper complaint “will present each claim for relief in a separate count, as required by Rule 10(b), and with such clarity and precision that the defendant will be able to discern what the plaintiff is claiming.” Anderson v. Dist. Bd. of Tr. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366-67 (11th Cir. 1996); Cesnick v. Edgewood Baptist Church, 88 F.3d 902, 905-07 (11th Cir. 1996) (dismissing a “shotgun” pleading framed in complete disregard of the principle that separate causes of action should be plead in separate counts.”).

         The complaint must “give the defendant fair notice of what the [ ] claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (citations omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds' of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. “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 (2009) (quoting Twombly, 550 U.S. at 570).


         Defendant asserts two grounds for dismissing Cordero's Complaint: (1) Count II's allegation that Cordero engaged in a statutorily protected activity as a Steward for the Union falls outside the scope of the charge filed with the EEOC; and (2) Count I “appears to incorporate claims that were not within the scope of the charge of ...

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