United States District Court, S.D. Florida
ORDER GRANTING MOTION TO DISMISS
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE
case is an offshoot of the underlying complaint addressed by
the United States Supreme Court in Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338 (2011). In Dukes, the
Supreme Court reversed the certification of a nationwide
class of female Wal-Mart employees claiming gender
discrimination. The Plaintiff here, Monica Urban-Klohn, after
again seeking relief through a regional class action and then
as a member of a 44-plaintiff complaint, now seeks redress
individually. In her amended complaint (Am. Compl., ECF No.
3), Urban-Klohn lodges two counts under Title VII regarding
her compensation: in count one she alleges disparate
treatment and in count two she alleges disparate impact.
Walmart contends Urban-Klohn does not plead specific,
individualized facts showing that she, herself, was
discriminated against, either through disparate treatment or
impact; Urban-Klohn fails to establish standing; and
Urban-Klohn's claims are all time-barred. After careful
review, the Court agrees that Urban-Klohn fails to state a
claim under Federal Rule of Civil Procedure 12(b)(6) and thus
grants Wal-Mart's motion (ECF
No. 7) and dismisses Urban-Klohn's complaint.
began working for Walmart in 1996, in its store number 1847.
(Am. Compl. at ¶ 17.) Before working at store 1847, she
had worked for Publix, McDonald's, a pet store, and
another Walmart store in a different location. (Id.
at ¶ 18.) Although it is not entirely clear, it appears
Urban-Klohn first worked as a cashier and then in the pet
department. (Id.) She learned all she could about
the pet department and applied to be the pet department
manager several times. (Id. at ¶¶ 19-20.)
Each time, however, the position went to a male.
(Id. at ¶ 20.) While working in the pet
department, Urban-Klohn was asked to train her male
colleagues. (Id. at ¶ 21.) Feeling that she was
thus already performing the role of the department manager,
Urban-Klohn asked her store manager, Larry Smith, why she was
not being promoted into that position. (Id. at
¶ 22.) Although she does not recount how he answered
her, she says that she learned from coworkers that Smith
refused to put a woman in that position. (Id. at
¶ 23.) Lastly, Urban-Klohn also became aware that men in
her same, or lower, position were making more money than she
was. (Id. at ¶ 24.) She worked at Walmart until
also provides an additional sixty paragraphs of background
information regarding Walmart's organizational structure,
the roles various salaried positions played in the
organization regarding compensation and promotional
decisions, and a number of policies and practices that guided
these decisions. (E.g., id. at ¶¶
25-85.) Urban-Klohn additionally sets forth facts showing
that Walmart's management team was aware that, on
average, female employees were paid less than men and many
female employees experienced other disparities. (Id.
at ¶¶ 43, 73-85).
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all the
complaint's allegations as true, construing them in the
light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A
pleading must only contain “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). A motion to dismiss
under Rule 12(b)(6) challenges the legal sufficiency of a
complaint. See Fed. R. Civ. P. 12(b)(6). In
assessing the legal sufficiency of a complaint's
allegations, the Court is bound to apply the pleading
standard articulated in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). That is, the complaint
“must . . . contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its
face.” Am. Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1289 (11th Cir. 2010) (quoting
Twombly, 550 U.S. at 570). “Dismissal is
therefore permitted when on the basis of a dispositive issue
of law, no construction of the factual allegations will
support the cause of action.” Glover v. Liggett
Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)
(internal quotations omitted) (citing Marshall Cnty. Bd.
of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171,
1174 (11th Cir. 1993). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. “The plausibility standard is not akin to
a ‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
Urban-Klohn fails to sufficiently allege that Walmart
intentionally discriminated against her with respect to her
Title VII of the Civil Rights Act, it is unlawful for an
employer “to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's . . .
sex.” 42 U.S.C. § 2000e-2(a)(1).
“[C]omplaints alleging discrimination . . . must meet
the ‘plausibility standard' of Twombly and
Iqbal.” Henderson v. JP Morgan Chase Bank,
N.A., 436 Fed. App'x 935, 937 (11th Cir. 2011).
Thus, Urban-Klohn's complaint must contain
“sufficient factual matter” to support a
reasonable inference that Walmart engaged in intentional
gender discrimination against her in relation to her
compensation. Henderson, 436 Fed. App'x at 937.
There are any number of ways Urban-Klohn can do this,
including “alleging facts showing that
similarly-situated [male employees] were offered more
favorable [employment] terms, ” id., or direct
evidence of discrimination, Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). After
careful review, the Court agrees with Walmart and finds
Urban-Klohn has not set forth sufficient factual allegations
that would demonstrate, either directly or circumstantially,
that she personally suffered any adverse employment
consequences based on intentional gender discrimination
regarding her compensation.
challenges this conclusion, relying on Swierkiewicz v.
Sorema N. A., 534 U.S. 506 (2002), and at the same time
insisting she has met Twombly's plausibility
standards by pleading “enough fact to raise a
reasonable expectation that discovery will reveal
evidence” of the defendant's liability. (Pl.'s
Resp., ECF No. 13, 12 (quoting Twombly, 550 U.S. at
556).) While the Court agrees that Swierkiewicz
supports Urban-Klohn's position that she need not set
forth evidence establishing a prima facie case under the
McDonnell frameworkin order to survive dismissal, the
Court nonetheless disagrees that that case absolves her from
alleging actual facts which support her claim of gender
discrimination. See Pouyeh v. UAB Dept. of
Ophthalmology, 625 Fed. App'x 495, 497 (11th Cir.
2015) (holding that a complaint must contain factual
allegations demonstrating, either directly or
circumstantially, that a defendant's actions were
discriminatory); Henderson, 436 Fed. App'x at
938 (requiring a plaintiff to plead facts that “raise
a plausible inference that [the defendant] discriminated
against [the plaintiff]”). Ultimately,
Urban-Klohn's allegations cannot carry her past
example, in support of her insistence that she has set forth
sufficient facts, Urban-Klohn points to her allegations that
“she was paid less than similarly-situated male
employees, ” and “review[ed] . . . male
employee[s'] paystubs showing they were earning more than
females.” (Pl.'s Resp. at 13.) But these
allegations are nothing but “[t]hreadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, ” and therefore “do not
suffice.” Watts v. Ford Motor Co., 519 Fed.
App'x 584, 586 (11th Cir. 2013) (quoting Iqbal,
556 U.S. at 678). And while the Court agrees with Urban-Klohn
that “[s]he is not required to lay out every single
detail of her employment in her Complaint” (Pl.'s
Resp. at 13), she must nonetheless provide at least some
“nonconclusory descriptions of specific, discrete facts
of the who, what, when, and where variety” that
plausibly show she is actually entitled to relief.
Watts, 519 Fed. App'x at 587 (quoting
Feliciano v. City of Miami Beach, 707 F.3d 1244,
1253 (11th Cir. 2013)). It is not enough, as Urban-Klohn
adamantly maintains, for her to simply “identif[y] the
store where she worked and the years she was employed by
Wal-Mart.” (Pl.'s Resp. at 13.) There is nothing in
these facts that would differentiate between an employee who
experienced discrimination from one who did not. See
Veale v. Florida Dept. of Health, 2:13-CV-77-FTM-38UAM,
2013 WL 5703577, at *5 (M.D. Fla. July 29, 2013) (requiring
“allegations of specific facts to explain how the
disparate treatment occurred” in order to properly
plead Title VII discrimination).
the allegations Urban-Klohn sets forth within her disparate
treatment count, or elsewhere, save her, as she suggests.
These allegations, too, all suffer from their threadbare and
conclusory nature as shown, by example, in the following:
• “Wal-Mart violated Title VII by paying Plaintiff
less than similarly-qualified or less-qualified male