Frommer v. TT of Naples, Inc.

Filing 19

OPINION AND ORDER granting 8 Defendant's Motion to Dismiss Plaintiff's Complaint, or in the Alternative Motion to Strike. The 1 Complaint is dismissed without prejudice. Plaintiff may file an Amended Complaint within twenty-one (21) days of the date of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 7/26/2013. (AAA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AVIDAN FROMMER,
Plaintiff,
vs.

Case No.

2:12-cv-583-FtM-29UAM

TT OF NAPLES, INC.,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss Plaintiff’s Complaint, or in the Alternative Motion to
Strike (Doc. #8) filed on December 19, 2012.
Response (Doc. #12) on January 15, 2013.

Plaintiff filed a

For the reasons set forth

below, the motion is granted.
I.
On October 26, 2012, plaintiff Avidan Frommer filed a onecount Complaint (Doc. #1) against defendant TT of Naples, Inc.
(TT).

Plaintiff brings claims for religious discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e (Title VII) and the Civil Rights Act of 1991, 42
U.S.C. § 1981(a).

(Id.)

In the Complaint, plaintiff alleges that he began working for
TT in 2008, as a business manager at its Naples dealership; his
supervisors had known for years that he practiced the Jewish faith;
in the fall of 2010, shortly after plaintiff and his wife committed

to becoming more spiritually observant, plaintiff advised his
supervisors that he needed Saturdays off in order to be able to
observe the Sabbath; the request was initially granted; in November
2010, plaintiff’s general manager sent plaintiff an e-mail stating
that he must begin working on Saturdays; on the following Monday,
plaintiff met with the general manager and informed him that he
could not work Saturdays; the general manager asked plaintiff to
train someone to fill in for him on weekends; plaintiff trained
many

people

including

sales

persons,

sales

managers,

and

a

receptionist and created an excel program to help with their work
in

his

absence;

problems

arose

between

plaintiff

and

his

supervisor, coworkers, and sales managers who resented covering for
him; on March 21, 2011, plaintiff’s supervisor informed plaintiff
that TT would be hiring someone else to perform his duties full
time and would impose a permanent pay cut to his salary; plaintiff
was informed that if he did not sign off on the new plan, he would
be excused from work; later that day, plaintiff learned that his
access to his work e-mail was suspended and was informed by TT’s
human resources department that he had been terminated.

(Id.)

Defendant contends that the Complaint fails to meet the
Federal Rules of Civil Procedure pleading standards, fails to state
a claim upon which relief may be granted, and does not sufficiently
put defendant on notice of the claims brought against defendant.
(Doc. # 8.)

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II.
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).
unadorned,

This is “more than an

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

“Threadbare

1148,

1153

recitals

of

(11th
the

Cir.

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

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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.
III.

A.

Fed. R. Civ. P. 8 and 10
TT asserts that Count I of the Complaint should be dismissed

because Count I fails to put it on notice as to the claims asserted
against it in contravention of Fed. R. Civ. P. 8 and 10.
#8, pp. 14, 15.)

(Doc.

Specifically, TT asserts that plaintiff has

intermixed two separate causes of action found under two separate
federal statutes, Title VII and 42 U.S.C. § 1981, into one count.
(Id.)
Title VII prohibits employers from discriminating against
individuals with respect to compensation, terms, conditions, or
privileges of employment because of the individual’s race, color,
religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(1).

This statute prohibits disparate treatment discrimination in which
an employer discriminates against an employee because of the
person’s membership in a protected group.

Reeves v. C.H. Robinson

Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010)(en banc).
Title VII also requires an employer “make reasonable accommodation
for the religious observances of its employees, short of incurring

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an undue hardship.”

Dixon v. Palm Beach Cnty. Parks & Recreation

Dep't, 343 F. App'x 500, 501 (11th Cir. 2009)(quoting Lake v. B.F.
Goodrich Co., 837 F.2d 449, 450 (11th Cir. 1988)).
To establish a prima facie case of disparate treatment, a
plaintiff must show: “(1) he is a member of a protected class; (2)
he was subject to an adverse employment action; (3) his employer
treated similarly situated employees who were not members of his
protected class more favorably; and (4) he was qualified for the
job or benefit at issue.”

Dixon, 343 F. App'x at 501 (citing

Gillis v. Georgia Dep’t of Corrs., 400 F.3d 883, 887 (11th Cir.
2005)).

To

establish

a

prima

facie

case

of

religious

discrimination based on a failure to accommodate religious beliefs,
a plaintiff must show: “(1) he had a bona fide religious belief
that conflicted with an employment requirement; (2) he informed his
employer of his belief; and (3) he was disciplined for failing to
comply with the conflicting employment requirement.”

Id. at 502

(citing Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d
1317, 1321 (11th Cir. 2007)).
42 U.S.C. § 1981(a) states in relevant part:
All persons within the jurisdiction of the United States
shall have the same right . . . to make and enforce
contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed by
white citizens. . . .

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42 U.S.C. § 1981(a).

The statute is a “prohibition against racial

discrimination in the making and enforcement of contracts” and in
the conduct of a contractual relationship.

Rivers v. Roadway

Express, Inc., 511 U.S. 298 (1994).
The Court concludes that for the sake of clarity plaintiff
must set forth each separate claim in a separate count.
Civ.

P.

10(b).

essentially

a

As

it

shotgun

currently

complaint

exists,

which

the

fails

one

to

Fed. R.
count

provide

necessary clarity for either defendant or the Court.

is
the

Accordingly,

the Complaint will be dismissed without prejudice with leave to
file an amended complaint setting forth the disparate treatment,
reasonable accommodation, and 42 U.S.C. § 1981 claims in separate
counts.
B.

Fed. R. Civ. 12(b)(6)
Because the Complaint is being dismissed with leave to refile,

the Court need not address the separate issue of whether it
sufficiently pleads a claim for disparate treatment, reasonable
accommodation, or 42 U.S.C. § 1981. However, the Court will advise
plaintiff

that

42

U.S.C.

§

1981

is

directed

discrimination and not religious discrimination.

at

racial

See Touron v.

Dade Cnty., Fla., 119 F.R.D. 41, 43 (S.D. Fla. 1988).1
Accordingly, it is now

1

The Court also need not address defendant’s arguments that
plaintiff failed to attach documents referenced in the Complaint
and failed to properly plead punitive damages.
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ORDERED:
1. Defendant’s Motion to Dismiss Plaintiff’s Complaint, or in
the Alternative Motion to Strike (Doc. #8) is GRANTED and the
Complaint (Doc. #1) is DISMISSED WITHOUT PREJUDICE.
2.

Plaintiff may file an Amended Complaint within TWENTY-ONE

(21) DAYS of the date of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this 26th day of
July, 2013.

Copies: Counsel of record

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