Mars v. Urban Trust Bank

Filing 30

OPINION AND ORDER granting 24 Defendant's Motion to Dismiss Second Amended Complaint. The Second Amended Complaint is dismissed without prejudice to filing a Third Amended Complaint within fourteen (14) days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 9/22/2014. (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 Second Amended Complaint (Doc. #24) filed on
June 5, 2014.

No response has been filed and the time for doing

so has expired.

For the reasons set forth below, the motion is

granted.
I.
On August 14, 2013, plaintiff Jacqueline Mars (plaintiff),
a 56 year old female, filed a five-count Complaint against her
former

employer,

Urban

Trust

Bank

(defendant).

(Doc.

#1.)

Defendant filed a motion to dismiss (Doc. #11), and in response,
plaintiff filed an Amended Complaint asserting claims for: (1)
disparate treatment in violation of the Age Discrimination and
Employment
violation

Act
of

of
the

1967

(ADEA);

Florida

Civil

(2)

age

Rights

discrimination
Act

(FCRA);

in
(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 (Doc. #12).
filed a second motion to dismiss.

Defendant subsequently

(Doc. #15.)

On May 22, 2014,

the Court granted defendant’s motion and dismissed the Amended
Complaint

without

plausibly

allege

prejudice
that

she

because

was

plaintiff

constructively

failed

to

discharged

or

subjected to any discriminatory action that caused a serious and
material change in the terms, conditions, or privileges of her
employment.

(Doc. #22.)

Plaintiff filed a Second Amended Complaint on May 26, 2014,
asserting claims identical to those in the Amended Complaint.
(Doc. #23.)

In addition to the factual allegations contained in

the Amended Complaint, plaintiff alleges that she was unable to
perform her job functions as required because she was denied
training and access to newer equipment because of her gender.
(Id. at ¶ 7(B)(1).)
fashion,

that

Plaintiff also alleges, in a conclusory

defendant’s

discriminatory

(and

retaliatory)

conduct was frequent and done to cause unreasonable interference
with the performance of plaintiff’s job duties.

Defendant’s

hostile comments adversely affected plaintiff’s job performance
and ultimately resulted in her constructive termination.

2

(Id.

at ¶ 7.)

No other factual allegations were added to the Second

Amended Complaint.
II.
Defendant asserts that the Second Amended Complaint should
be

dismissed

because

plaintiff

has

failed

deficiencies in the Amended Complaint.
agrees.

to

correct

(Doc. #24.)

the

The Court

Because the Second Amended Complaint asserts the same

claims as its predecessor, the applicable legal standards, as
set

forth

in

the

Court’s

Opinion

and

Order

dismissing

plaintiff’s Amended Complaint, are incorporated herein.

(Doc.

#22, pp. 3-6, 8.)
As a preliminary matter, the Court finds that dismissal of
Counts I, II, III, and V of the Second Amended Complaint is
warranted because plaintiff has failed to supplement the factual
allegations

pertaining

to

her

claims

for

racial discrimination, and retaliation.

age

discrimination,

Accordingly, Counts I,

II, III, and V are dismissed for the reasons set forth in the
Court’s previous Opinion and Order.

(See Doc. #22, pp. 6-8.)

Dismissal of plaintiff’s claim of gender discrimination is
also warranted.
plaintiff

In support of her gender discrimination claim,

alleges

that

she

was

unable

to

use

new

because defendant refused to train her on its use.
did,

however,

offer

the

training

3

to

male

equipment
Defendant

employees.

As

a

result, plaintiff was unable to perform her job functions as
efficiently as her male counterparts.

Plaintiff also alleges

that she 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 assigned working hours on holidays,
and was forced to sit in the back of the office while male
employees sat in the front.
To satisfy the requirement of adverse employment action,
plaintiff alleges that she was constructively terminated.
constructive
imposes

discharge

working

occurs

conditions

when

that

a

are

discriminatory
so

intolerable

“A

employer
that

a

reasonable person in the employee’s position would have been
compelled to resign.”
348

F.3d

quotation

974,
marks

977

Fitz v. Pugmire Lincoln-Mercury, Inc.,

(11th

Cir.

2003)

(citation

omitted).

In

order

to

and

plausibly

internal
allege

a

constructive discharge, the harassing behavior alleged must be
of such severity or pervasiveness as to alter the conditions of
plaintiff’s employment.

Pennsylvania State Police v. Suders,

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

harassment

alleged

in

the

Second

Amended

Complaint

lacks the severity or pervasiveness necessary to show that “the
terms and conditions of [plaintiff’s] employment were so onerous

4

that

a

reasonable

person

would

feel

compelled

to

resign.”

Stamey v. S. Bell Tel. & Tel. Co., 859 F.2d 855, 860 n.12 (11th
Cir. 1988).

See Nettles v. LSG Sky Chefs, 211 F. App’x 837, 839

(11th

2006)

Cir.

(no

constructive

discharge

when

employer

undermined employee's authority in front of customers, peers,
and subordinates; excluded employee from business meeting with
chairman and denied employee the opportunity to present at a
meeting;

denied

administrative

support

to

employee

for

staff

trip; evaluated the employee as meeting rather than exceeding
expectations; and offering a position on terms and conditions
less

favorable

position).

than

those

offered

to

others

for

the

same

See also Hill v. Winn Dixie Stores, Inc., 934 F.2d

1518, 1527 (11th Cir. 1991) (finding that a written reprimand,
coupled

with

criticism

by

supervisors

and

the

withdrawal

of

customary support, were insufficient to establish constructive
discharge).

Because plaintiff has failed to plausibly allege an

adverse employment action, Count IV is dismissed.
Amended Complaint is therefore dismissed.

The Second

The Court will allow

one more amendment to the pleadings.
Accordingly, it is now
ORDERED:
Defendant’s
(Doc.

#24)

is

Motion
GRANTED

to

Dismiss

and

the

5

Second

Second

Amended

Amended

Complaint

Complaint

is

dismissed without prejudice to filing a Third Amended Complaint
within FOURTEEN (14) DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
of September, 2014.

Copies:
Counsel of record

6

22nd

day