Richardson v. ABM Janitorial Services

Filing 20

OPINION AND ORDER granting 14 Defendant's Motion to Dismiss. The 1 Complaint is dismissed without prejudice. Plaintiff shall file an amended complaint within twenty one (21) days of this Opinion and Order. Signed by Judge John E. Steele on 4/8/2013. (AAA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
REGINA D. RICHARDSON,
Plaintiff,
vs.

Case No.

2:12-cv-363-FtM-29SPC

ABM JANITORIAL SERVICES,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss (Doc. #14) filed on September 11, 2012.
Response (Doc. #17) on October 9, 2012.

Plaintiff filed a

For the reasons set forth

below, the motion is granted.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This

obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation
omitted).

To survive dismissal, the factual allegations must be

“plausible” and “must be enough to raise a right to relief above
the speculative level.”

Id. at 555.

See also Edwards v. Prime

Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).

This is “more than an

unadorned,

the-defendant-unlawfully-harmed-me

accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take them
in the light most favorable to plaintiff, Erickson v. Pardus, 551
U.S. 89 (2007), but “[l]egal conclusions without adequate factual
support are entitled to no assumption of truth,” Mamani v. Berzain,
654

F.3d

1148,

“Threadbare

1153

recitals

of

(11th

Cir.

the

2011)(citations

elements

of

a

cause

omitted).
of

action,

supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

Iqbal,

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012)(internal quotation marks and citations omitted).

Thus,

the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity
and

then

determine

whether

entitlement to relief.”

they

plausibly

give

rise

to

an

Iqbal, 556 U.S. at 679.
II.

On July 6, 2012, plaintiff Regina D. Richardson (Richardson)
filed a three-count Complaint (Doc. #1) against defendant ABM
Janitorial Services (ABM).

Plaintiff’s claims are labeled: (1)

employment discrimination - Civil Rights Act of 1964/1991; (2)
employment practice - discrimination in hiring under Civil Rights

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Act; and (3) State EEOC violations of the FCHR Act.
Plaintiff

also

intentional

“seeks

damages

misrepresentation

emotional distress.”

under
and

Florida

(Id.)

common

intentional

law

infliction

for
of

(Id., ¶ 7.)

In the Complaint, plaintiff alleges that she worked as a
janitorial service worker with ABM; she was the only African
American employee of the company; and there was a pattern and
practice

of

racial

discrimination

against

African

American

employees by Hispanic and White managers and supervisors, which
consisted of unwarranted criticism and disparagement, harsh and
unreasonable
humiliation,
discipline,

performance

standards,

embarrassment,
pressure

and

invasion

coercion

deliberate failure to train.

threats

to

of

and

privacy,

abandon

(Doc. #1.)

harassment,
harsher

employment,

and

Plaintiff also alleges

that she requested a transfer from one location to another; she was
notified that she was eligible to work in the position; she was
required to receive special training for the position; the Hispanic
supervisor assigned to train her refused to do so; she complained
and management took no action; she attempted to go to training
again and the Hispanic supervisor again failed to train her;
plaintiff

received a

subsequently

negative

discharged;

and

reprimand
that

a

as

a

younger

result
Hispanic

employee was trained and employed for the position.

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and

(Id.)

was

female

Defendant contends that: (1) the Complaint is vague and
confusing and filled with pleading deficiencies, inaccuracies, and
inconsistencies; (2) plaintiff’s claims for age and national origin
discrimination, and retaliation are barred because plaintiff failed
to exhaust her administrative remedies; and (3) the Complaint does
not state a claim upon which relief can be granted.

(Doc. #14.)

III.
The Court finds that the Complaint should be dismissed because
it fails to give defendants fair notice of what the plaintiff’s
claims are and the grounds upon which they rest.
Complaint
elements

consists of
of

the

only one

claim,

and

paragraph,

does

not

allegations are relevant to that count.
claim

under

the

misrepresentation

“Florida
and

does

specify

not

list the

which

factual

Additionally, plaintiff’s

common

intentional

Each count in the

law

for

infliction

intentional
of

emotional

distress,” (Doc. #2, ¶ 7), fails as it is not pled as a count in
the

Complaint.

However,

the

Court

cannot

determine

whether

plaintiff’s claims for age and national origin discrimination, and
retaliation should be dismissed with prejudice. Plaintiff does not
attach a charge of discrimination to her Complaint and while
defendant states that it has attached the charge as an exhibit to
its motion, no exhibit has been filed.

Therefore, the Court will

dismiss the Complaint without prejudice and with leave to file an
Amended Complaint.

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Accordingly, it is now
ORDERED:
1.

Defendant’s Motion to Dismiss (Doc. #14) is GRANTED and

the Complaint (Doc. #1) is dismissed without prejudice.
2.

Plaintiff shall file an amended complaint WITHIN TWENTY

ONE (21) DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this 8th day of
April, 2013.

Copies: Counsel of record

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