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 Second Amended Complaint (Doc. # 30), filed on July 25,
2019. Plaintiff Brenda Alvarez filed a response in opposition
on August 21, 2019. (Doc. # 35). For the reasons that follow,
the Motion is denied.
worked for the District as a senior financial reporting
analyst from May 31, 2016, to October 20, 2017. (Doc. # 29 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 that “[t]he
disparate treatment and retaliation came at the hands of
specifically, but not limited to, David Persaud, [the
District's] chief financial officer (‘CFO');
Steven Schaible, [the District's] human resources
(‘HR') director; and Tom Phillips, [the
District's] executive director.” (Id.).
- Alvarez's supervisor - “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.). 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). He also “sent
[Alvarez] harassing email communications and interfered with
[her] work-related discussions with others in the
workplace.” (Id.). 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
July 2017, Alvarez made a formal complaint to Phillips in
which she “addressed the targeted mistreatment
Plaintiff 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 her formal complaint against
“Persaud's hostile, improper and illegal conduct
toward [Alvarez] continued and intensified, causing [her] to
suffer severe anxiety and emotional distress.”
(Id.). 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 Second Amended 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
compensation, ” allegedly “in retaliation for
making the complaints.” (Id.).
health began to suffer 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.). Alvarez “was the only salaried employee
required to submit leave requests for these type [of]
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 7). Alvarez “had already requested
FMLA leave and provided notice and documentation to Schaible;
however, upon information and belief, Schaible denied
receiving the submission of Plaintiff's first set of FMLA
documentation.” (Id.). Schaible later
contacted Alvarez on October 13, 2017, “threaten[ing]
to terminate [her] if she failed to provide additional
documentation regarding her FMLA request by October 20,
2017.” (Id.). But Alvarez had already
“submitted all of the documents she was provided to
submit which were supported by the proper signatures and
of Schaible's demand for further paperwork, Alvarez quit,
which she claims was a constructive termination.
(Id.). According to her, “[n]o reasonable
person would have remained in that work environment under
these circumstances.” (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). Then, the District moved to dismiss
the Amended Complaint, (Doc. # 21), and the Court dismissed
the Amended Complaint as a shotgun complaint on July 3, 2019.
(Doc. # 28).
the Court's leave, Alvarez filed the Second Amended
Complaint on July 11, 2019. (Doc. # 29). The Second Amended
Complaint contains twelve counts: Count I for
“Gender-Based Disparate Treatment” under Title
VII; Count II for “Gender-Based Disparate
Treatment” under Florida's Civil Rights Act (FCRA);
Count III for “Age-Based Disparate Treatment”
under the Age Discrimination in Employment Act (ADEA); Count
IV for “Age-Based Disparate Treatment” under the
FCRA; Count V for “Constructive Discharge” under
Title VII; Count VI for “Constructive Discharge”
under the ADEA; Count VII for “Constructive
Discharge” under the FCRA; Count VIII for
“Retaliation” under Title VII; Count IX for
“Retaliation” under the ADEA; Count X for
“Retaliation” under the FCRA; Count XI for
“FMLA Interference”; and Count XII for
“FMLA Retaliation.” (Id.).
District now moves to dismiss the Second Amended Complaint.
(Doc. # 30). Alvarez has responded (Doc. # 35), 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
complaint. Stephens v. Dep't of Health & Human
Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). But,
[w]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555
(2007)(internal citations omitted). Courts are not
“bound to accept as true a legal conclusion couched as
a factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986). “The scope of review must be
limited to the four corners of the complaint” and