United States District Court, S.D. Florida
ORDER GRANTING MOTION TO DISMISS
G. COOKE UNITED STATES DISTRICT JUDGE
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.
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.
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),  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).
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.).
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).
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).
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.
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.”).
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).
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 ...