United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
matter is before the Court on consideration of Defendant
Lakeland Area Mass. Transit District's Motion to Dismiss
the Amended Complaint (Doc. # 21), filed on June 11, 2019.
Plaintiff Brenda Alvarez filed a response in opposition on
July 2, 2019. (Doc. # 27). For the reasons that follow, the
Motion is granted.
worked for the District as a senior financial reporting
analyst from May 31, 2016, to October 20, 2017. (Doc. # 16 at
2). She “is a member of protected classes due to her
gender (female), her age (over 40), and because she reported
[the District's] unlawful employment activities and was
subject to retaliation thereafter.” (Id. at
1). Alvarez insists she was a satisfactory employee.
(Id. at 2). Alvarez alleges “[t]he disparate
treatment and retaliation came at the hands of specifically,
but not limited to, David Persaud, [the District's] CFO;
Steven Schaible, [the District's] human resources
(‘HR') director; and Tom Phillips, [the
District's] executive director.” (Id.).
supervised Alvarez and “demeaned and ridiculed [her]
repeatedly and publicly in multiple staff meetings, and in
the presence of [her] professional colleagues” -
allegedly because of Alvarez's gender and age.
(Id. at 2). Persaud “micro-manage[d],
intimidate[d] and bull[ied]” Alvarez; for example, he
“glared menacingly and excessively at [Alvarez] when in
proximity to her.” (Id. at 3). The Complaint
also alleges that Persaud treated various male or younger
female employees better than he treated Alvarez, even when
those other employees did not perform satisfactorily.
(Id. at 3-4).
July 2017, Alvarez made a formal complaint to Phillips in
which she “addressed the hostile work environment [she]
experienced due to Persaud's gender-based and age-based
animus, and to Persaud's inappropriate, improper, and
illegal actions and work-place conduct.” (Id.
at 5). The next day, Alvarez met with Schaible - the HR
director - to discuss the specifics of her formal complaint
against Persaud. (Id. at 5).
“Persaud's hostile, improper and illegal conduct
toward [Alvarez] continued and intensified, causing [her] to
suffer severe anxiety and emotional distress.”
(Id. at 5). Alvarez believes “Persaud's
amplified post-Complaint hostile conduct toward [her] was in
retaliation for [her] complaint and was intended to force
[her] to resign.” (Id.). When Alvarez did not
resign, “Persaud simply excluded [her] from staff and
grant meetings, thereby interfering with [Alvarez's]
ability to competently and successfully perform the essential
duties and functions of her position, ” and committed
other allegedly retaliatory conduct. (Id.).
according to the Complaint, the District's human
resources department and internal equal employment
investigator failed to properly investigate Alvarez's
formal complaint against Persaud. (Id. at 6).
Schaiable then “directed negative written evaluations
of [Alvarez's] job performance.” (Id.).
Alvarez was also “denied a promised increase in
health began to suffer, allegedly as a result of the
discriminatory and retaliatory actions she faced.
(Id.). She was required “to submit leave
requests for physician and other health care related
appointments.” (Id.). But Alvarez “was
the only salaried employee required to submit leave requests
for these type appointments.” (Id.).
September 2017, Alvarez “submitted documentation for
the second time notifying Schaible that she was filing for
Family and Medical Leave Act (FMLA) benefits.”
(Id. at 6-7). Schaible contacted Alvarez on October
13, 2017, “threaten[ing] to terminate [her] if she
failed to provide additional documentation . . . by October
20, 2017.” (Id. at 7). Because of this,
Alvarez quit, which she claims was a constructive
termination. (Id.). Alvarez's replacement was a
41-year-old woman. (Id.).
initiated this action in state court on January 15, 2019.
(Doc. # 4-1). The District removed the case to this Court on
April 30, 2019. (Doc. # 4). When the District moved to
dismiss the Complaint (Doc. # 6), Alvarez filed an Amended
Complaint. (Doc. # 16). The Amended Complaint contains six
counts: Count I labelled “Gender-Based Disparate
Treatment, ” under Title VII and Florida's Civil
Rights Act (FCRA); Count II labelled “Age-Based
Disparate Treatment, ” under the FCRA and the Age
Discrimination in Employment Act (ADEA); Count III labelled
“Constructive Discharge, ” under the FCRA, Title
VII, and the ADEA; Count IV labelled “Retaliation,
” under the FCRA, Title VII, and the ADEA; Count V for
FMLA interference; and Count VI for FMLA retaliation. (Doc. #
the District moves to dismiss the Amended Complaint. (Doc. #
21). Alvarez has responded (Doc. # 27), and the Motion is
ripe for review.
motion to dismiss pursuant to Rule 12(b)(6), this Court
accepts as true all the allegations in the complaint and
construes them in the light most favorable to the plaintiff.
Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262
(11th Cir. 2004). Further, the Court favors the plaintiff
with all reasonable inferences from the allegations in the