Mars v. Urban Trust Bank

Filing 22

OPINION AND ORDER granting 15 Defendant's Motion to Dismiss. The Amended Complaint is dismissed without prejudice to filing a Second Amended Complaint within 14 days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 5/22/2014. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JACQUELINE R. MARS,
Plaintiff,
v.

Case No: 2:14-cv-54-FtM-29CM

URBAN TRUST BANK, a Florida
corporation,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss (Doc. #15) filed on November 13, 2013. Plaintiff
filed an Opposition to Defendant's Motion to Dismiss (Doc. #17) on
November 20, 2013.

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).
“more

than

an

accusation.”

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
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,”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

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

with

a

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

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 well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”

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

Plaintiff Jacqueline Mars, a 56 year old female, was employed
by defendant Urban Trust Bank from September 2009 to April 20,
2010, the date of her constructive discharge.

2

While she was

employed by defendant, plaintiff alleges that she was subjected to
age, racial, and gender discrimination.
Plaintiff filed a five-count Amended Complaint against Urban
Trust Bank on September 5, 2013, alleging: (1) disparate treatment
in violation of the Age Discrimination and Employment Act of 1967
(ADEA); (2) age discrimination in violation of the Florida Civil
Rights Act (FCRA); (3) retaliation in violation of Title VII of
the Civil Rights Act of 1964 (Title VII); (4) unlawful gender
discrimination in violation of Title VII; and (5) unlawful racial
discrimination in violation of Title VII.

Counts I, II, IV, and

V also assert claims for hostile work environment.

Defendant

asserts that the Amended Complaint should be dismissed because
plaintiff has failed to provide sufficient factual support to
render any claim plausible.
III.
The ADEA makes it unlawful for an employer “to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment,
623(a)(1).

because

of

such

individual’s

age.”

29

U.S.C.

§

Likewise, Title VII makes it is unlawful for an

employer “to discharge any individual, or otherwise discriminate
against any individual with respect to his compensation, terms,
conditions,

or

privileges

of

employment,

because

of

such

individual’s race, color, religion, sex, or national origin.”

3

42

U.S.C. § 2000e-2(a)(1).

In order state a plausible claim for

discrimination under the ADEA, Title VII, and the FCRA, 1 plaintiff
must allege that: (1) she is a member of a protected class; (2)
she was subjected to an adverse employment action; (3) her employer
treated similarly situated employees outside of her protected
class

more

favorably

than

qualified to do the job.

she

was

whether

plaintiff

and

(4)

she

was

Burke-Fowler v. Orange Cnty., Fla., 447

F.3d 1319, 1323 (11th Cir. 2006).
is

treated;

has

The only element at issue here

sufficiently

alleged

that

she

was

subjected to an adverse employment action.
In order to satisfy the adverse employment action element,
the employee must show either an ultimate employment decision,
such as termination, failure to hire, or demotion, or, for conduct
that falls short of an ultimate employment decision, “serious and
material

changes

employment.”

in

the

terms,

conditions,

or

privileges

of

Hall v. Dekalb Cnty. Gov’t, 503 F. App’x 781, 787

(11th Cir. 2013) (quoting Crawford v. Carroll, 529 F.3d 961, 97071

(11th

Cir.

discriminatory
affected

her

2008)).
conduct

status

Here,
identified

as

an

plaintiff
in

employee

the
and

alleges
complaint

that

the

adversely

culminated

in

her

constructive termination.

1FCRA

claims are subject to the same analysis as Title VII
claims. Valenzuela v. GlobeGround North Am., LLC, 18 So.3d 17, 21
(Fla. 3d DCA 2009).

4

The threshold for establishing a constructive discharge is
quite high. “A constructive discharge occurs when a discriminatory
employer imposes working conditions that are so intolerable that
a reasonable person in the employee’s position would have been
compelled to resign.”

Fitz v. Pugmire Lincoln-Mercury, Inc., 348

F.3d 974, 977 (11th Cir. 2003) (citation and internal quotation
marks omitted).

The standard for proving constructive discharge

is higher than the standard for proving a hostile work environment
and the plaintiff must do more than merely show that she was
subjected to actionable harassment.

Hipp v. Liberty Nat. Life.

Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001).
To establish a hostile work environment, plaintiff must show
harassing behavior “sufficiently severe or pervasive to alter the
conditions of [her] employment.”

Pennsylvania State Police v.

Suders, 542 U.S. 129, 133 (2004) (quoting Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)).
must

be

considered

discriminatory

when

conduct

All of the circumstances

determining

is

whether

sufficiently

severe

the

allegedly

or

pervasive,

including the conduct’s “frequency[;] . . . its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance;

and

whether

it

employee’s work performance.”

unreasonably

interferes

with

an

Jones v. UPS Ground Freight, 683

F.3d 1283, 1299 (11th Cir. 2012) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)).

To prove a constructive discharge,

5

a plaintiff must demonstrate a greater severity or pervasiveness
of harassment than the minimum required to prove a hostile work
environment.

Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir.

2009).
A.

Counts I and II - Age Discrimination
In support of her claims for age discrimination, plaintiff

alleges that management made comments regarding her age, such as
“you take too long to open account[s];” that she was denied
training; and that Supervisor Robert Caceres disciplined her more
harshly than younger employees when she made an error.

Plaintiff

complained of the discrimination to David Overstreet on December
8, 2009, the day after the discrimination took place.

Despite

plaintiff’s complaints of discrimination, defendant failed to take
any curative action.
conduct

deprived

Plaintiff claims that the aforementioned

her

of

equal

employment

opportunities

and

adversely affected her status as an employee, resulting in her
constructive termination.
The

allegations

regarding

the

adverse

effects

the

discrimination had on plaintiff’s status as an employee and her
constructive termination are merely conclusory.

Plaintiff has not

identified serious and material changes in the terms, conditions,
or privileges of her employment nor has she alleged that the
discriminatory
threatening

or

conduct

was

humiliating,

frequent,
or

6

severe,

interfering

with

physically
her

work

performance.

Because plaintiff has failed to plausibly allege

that she was subjected to an adverse employment action, Counts I
and II will be dismissed.
B.

Count IV – Gender Discrimination
In Count IV, plaintiff alleges that she was forced to use

different office equipment, was sent home early on slow days while
male employees were able to work out their shifts, was given shifts
at the bottom of the shift pool, and was forced to sit in the back
of the office while male employees sat in the front.

Plaintiff,

however, has not alleged how the purported gender discrimination
caused a serious and material change in the terms, conditions, or
privileges of her employment.

Without more, the Court is unable

to conclude that plaintiff has stated a plausible claim for gender
discrimination.

The Court also finds that plaintiff has failed to

allege that the gender discrimination made working conditions so
intolerable that a reasonable person would be compelled to leave.
Accordingly, Count IV will be dismissed.
C.

Count V – Race
In support of her claim for racial discrimination, plaintiff

alleges that she was reprimanded more harshly than non-white
employees and that she was subjected to comments regarding her
race, such as “you need to wait on . . . because she likes her own
kind.”

Noticeably absent from this count are allegations of

adverse employment action; therefore, Count V will be dismissed.

7

IV.
In order to state a claim for retaliation plaintiff must
allege that (1) she engaged in statutorily protected expression;
(2) she suffered an adverse employment action; and (3) the adverse
action was causally related to the protected activity.

Webb-

Edwards v. Orange Cnty. Sheriff’s Office, 525 F.3d 1013, 1028 (11th
Cir. 2008) (citing Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453,
1454 (11th Cir. 1998)).

Plaintiff alleges that following her

complaints of discrimination on December 8, 2009, and January 26,
2010, she was forced to work longer hours during holidays and was
switched to shifts at the bottom of the shift pool.

Plaintiff

also alleges that she was given extra assignments because of her
complaints

of

discrimination.

As

a

result,

plaintiff

was

constructively discharged.
As previously discussed, plaintiff has failed to plausibly
allege that she was constructively discharged.

The Court also

finds that the remaining allegations are insufficient to plausibly
allege adverse employment action because there was not a serious
and material change in the terms, conditions, or privileges of
plaintiff’s employment.

Therefore, Count III will be dismissed.

Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss (Doc. #15) is GRANTED and the
Amended Complaint is dismissed without prejudice to filing a Second

8

Amended Complaint within FOURTEEN (14) DAYS of this Opinion and
Order.
DONE AND ORDERED at Fort Myers, Florida, this
May, 2014.

Copies:
Counsel of record

9

22nd

day of