Rodrigues et al v. SCM I Investments, LLC
Filing
34
ORDER granting in part and denying in part 11 Defendant's Partial Motion to Dismiss. Defendant's Partial Motion to Dismiss is granted as to Forte's claims as an opt-in plaintiff as to Counts I and II and as a plaintiff as to Count III and is otherwise denied. Defendant shall have fourteen (14) days from the date of this Order to file a responsive pleading. Signed by Judge John E. Steele on 11/2/2015. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAELENE
RODRIGUES,
an
individual, SUZANNE FORTE,
an
individual,
and
CHRISTIANE
LEVESQUE,
an
individual,
and
other
similarly
situated
individuals,
Plaintiffs,
v.
Case No: 2:15-cv-128-FtM-29CM
SCM I INVESTMENTS, LLC, a
Florida limited liability
company,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant’s Partial
Motion to Dismiss (Doc. #11) filed on April 6, 2015.
Plaintiffs
filed a Response in Opposition (Doc. #16) on April 30, 2015.
With
leave of court, defendant filed its Reply in Support of its Partial
Motion to Dismiss (Doc. #24) on June 8, 2015.
For the reasons set
forth herein, Defendant’s Partial Motion to Dismiss is granted in
part and denied in part.
I.
Plaintiffs Michaelene Rodrigues (“Rodrigues”), Suzanne Forte
(“Forte”),
and
Christiane
Levesque
(“Levesque”)
(collectively
plaintiffs) are former employees of defendant SCM I Investments,
LLC d/b/a The Wine Loft of Naples (“The Wine Loft” or defendant).
The Complaint (Doc. #1) filed on February 27, 2015, contains three
counts.
Rodrigues alleges age discrimination claims in violation
of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34
(“ADEA”) in Counts I and II.
While not named-plaintiffs in these
two counts, Forte and Levesque allege they are similarly situated
and are therefore opt-in plaintiffs. (Doc. #1, ¶ 17; Doc. #2.)
Rodriques,
Forte,
and
Levesque
all
allege
age
discrimination
claims in violation of the Florida Civil Rights Act, Fla. Stat. §§
760.01-760.11 (“FCRA”) in Count III.
All three counts assert that
there are other similarly situated plaintiffs, and the case seeks
to proceed as a collective action under the ADEA.
Defendant’s
Partial
Motion
to
Dismiss
(Doc.
#11)
seeks
dismissal of portions of the Complaint under Federal Rule of Civil
Procedure 12(b)(6).
Defendant asserts that: (1) Rodrigues failed
to exhaust administrative remedies regarding her ADEA claim, (2)
Forte and Levesque cannot “piggyback” on Rodrigues’ charge of
discrimination to pursue their collective action ADEA claims, and
(3) Plaintiffs’ claims under the FCRA are untimely.
Defendant
seeks dismissal of the ADEA claims with prejudice, dismissal of
Forte and Levesque’s FCRA claims with prejudice, and dismissal or
limitation of Rodrigues’ claims under the FCRA to the extent they
are based on conduct that occurred more than 365 days prior to the
filing of her charge of discrimination.
2
(Id.)
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).
than
an
unadorned,
This requires “more
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,”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
Mamani
2011)(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
“Factual allegations that are merely
defendant’s
liability
3
fall
short
of
being
facially plausible.”
1337
(11th
omitted).
Cir.
Chaparro v. Carnival Corp., 693 F.3d 1333,
2012)(internal
quotation
marks
and
citations
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.
When ruling on a 12(b)(6) motion, “a judge generally may not
consider materials outside of the four corners of a complaint
without first converting the motion to dismiss into a motion for
summary judgment.” Pouyeh v. Bascom Palmer Eye Inst., 613 F. App’x
802, 808 (11th Cir. 2015) (citing Day v. Taylor, 400 F.3d 1272,
1275-76 (11th Cir. 2005)).
“However, a document outside the four
corners of the complaint may still be considered if it is central
to
the
plaintiff’s
authenticity.”
claims
and
is
undisputed
in
terms
of
Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d
1337, 1340 n.3 (11th Cir. 2005) (citing Horsley v. Feldt, 304 F.3d
1125, 1134 (11th Cir. 2002)).
Here, the Court may look to the
EEOC documents attached to defendant’s Motion to Dismiss and
plaintiffs’
Response
in
Opposition
to
defendant’s
Motion
to
Dismiss because the EEOC documents are central to the litigation
and the authenticity of the documents is not in dispute.
“Generally, the existence of an affirmative defense will not
support a motion to dismiss” Quiller v. Barclays American/Credit,
Inc., 727 F.2d 1067, 1069 (11th Cir. 1984), aff’d on reh'g, 764
4
F.2d 1400 (11th Cir. 1985) (en banc) (per curiam) (reinstating
panel opinion), because plaintiffs are not required to negate an
affirmative defense in their complaint.
La Grasta v. First Union
Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).
A complaint may
be dismissed, however, when the existence of an affirmative defense
“clearly appears on the face of the complaint.” Quiller, 727 F.2d
at 1069. “A complaint may be dismissed if an affirmative defense,
such as failure to exhaust, appears on the face of the complaint.
Otherwise,
exhaustion
and
other
raised in a responsive pleading.”
affirmative
defenses
must
be
Bingham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011) (citations omitted).
See also La
Grasta, 358 F.3d at 845 (“[A] Rule 12(b)(6) dismissal on statute
of limitations grounds is appropriate only if it is ‘apparent from
the face of the complaint’ that the claim is time-barred”) (quoting
Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1251 (11th Cir.
2003));
Douglas
v.
Yates,
535
F.3d
1316,
1321
(11th
Cir.
2008)(same).
III.
A. Rodrigues’ Failure to Exhaust
Defendant seeks dismissal of Counts I and II with prejudice
because
plaintiff
Rodrigues
precedent to bringing suit.
failed
to
satisfy
a
condition
Specifically, defendant asserts that
Rodrigues failed to timely file a charge of discrimination with
the EEOC.
(Doc. #11, pp. 7-9.)
5
The ADEA requires, as a condition precedent to filing suit,
that plaintiff exhaust administrative remedies by filing a timely
charge of unlawful discrimination with the EEOC before filing a
lawsuit.
29 U.S.C. § 626(d)(2); Riccard v. Prudential Ins. Co.,
307 F.3d 1277, 1291 (11th Cir. 2002).
To be timely in Florida, a
charge
must
of
unlawful
discrimination
be
filed
with
the
administrative agency not more than 300 days after the allegedly
unlawful employment practice occurred. Bost v. Fed. Express Corp.,
372 F.3d 1233, 1238 (11th Cir. 2004); Brooks v. CSX Transp., Inc.,
555 F. App’x 878, 880 (11th Cir. 2014).
If plaintiff fails to
comply with this requirement, she cannot assert a claim in court.
Sheffield v. United Parcel Serv., Inc., 403 F. App’x 452, 454 (11th
Cir. 2010) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 109 (2002)).
The pleading requirement for compliance with a condition
precedent is set forth in Federal Rule of Civil Procedure 9(c),
which provides:
“In pleading conditions precedent, it suffices to
allege generally that all conditions precedent have occurred or
been performed.
But when denying that a condition precedent has
occurred or been performed, a party must do so with particularity.”
Should a defendant make that denial, “[t]he plaintiff then bears
the burden of proving that the conditions precedent, which the
defendant has specifically joined in issue, have been satisfied.”
6
Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th
Cir. 1982).
Paragraph 18 of the Complaint states that “[a]ll conditions
precedent to the bringing of this action have been satisfied or
waived.”
(Doc. #1.)
This general statement is sufficient to
discharge plaintiff’s duty under Rule 9.
Myers v. Cent. Fla.
Invs., Inc., 592 F.3d 1201, 1224 (11th Cir. 2010).
The Complaint
alleges more, however, stating that Rodrigues filed a charge of
discrimination with the EEOC “on or about July [1]7, 2014.”
#1, ¶ 15). 1
(Doc.
Unless the Complaint, or permissibly considered EEOC
documents, show that these factual allegations are not true, the
motion to dismiss must be denied.
Plaintiff’s
Complaint
alleges
that
Rodrigues
suffered
discrimination through September 23, 2013. (Doc. #1, ¶¶ 24, 55;
Doc. #16-1.)
Taking this allegation as true, Rodrigues needed to
file her administrative charge of discrimination on or before July
20, 2014 for it to be timely.
Defendant asserts that the charge
of discrimination was not filed until August 6, 2014 (Doc. #11, p.
8; Doc. #11-1) or, at the earliest, July 23, 2014. (Doc. #11, p.
1While
plaintiffs’ Complaint (Doc. #1) indicates that
Rodrigues’ charge of discrimination was filed on or about July 7,
2014, plaintiffs acknowledge within their Response in Opposition
to Defendant’s Motion to Dismiss (Doc. #16) that this was a
scrivener’s error and the date the intake questionnaire was filed
was actually July 17, 2015. (Doc. #16, p. 3 n.1.)
7
9; Doc. #11-2.)
Plaintiffs respond that Rodrigues filed her
“charge” when Rodrigues faxed her intake questionnaire to the EEOC
on July 17, 2014, three days before the expiration of the 300 day
time period on July 20, 2014. (Doc. #16, pp. 3-6; Doc. #16-1.)
The issue thus becomes whether the intake questionnaire was a
“charge” of discrimination.
Depending upon its contents, an intake questionnaire can
constitute a charge of unlawful discrimination. Fed. Express Corp.
v. Holowecki, 552 U.S. 389, 395-403 (2008); Wilkerson v. Grinnell
Corp., 270 F.3d 1314, 1321 (11th Cir. 2001).
A charge of age
discrimination must: (1) “be in writing”; (2) “name the prospective
respondent”; and (3) “generally allege the discriminatory act(s).”
29 C.F.R. § 1626.6.
Although these are the only required elements
of a charge under the ADEA, the charge “should” also contain
“certain other information, including the full name, address, and
telephone number of the charging party, full name and address of
the employer, a clear and concise statement of the alleged unlawful
discrimination
including
pertinent
dates,
and
the
approximate
number of employees.” Bost, 372 F.3d at 1238 (citing 29 C.F.R. §
1626.8(a)(1)-(5)).
intake
Another important consideration is whether the
questionnaire
evidences
an
intent
on
behalf
of
the
individual to activate the administrative process. Holowecki, 552
U.S. at 402.
8
The Court finds that the intake questionnaire that Rodrigues
submitted
met
discrimination.
prospective
the
minimum
requirements
of
a
charge
of
The intake questionnaire is in writing, names the
respondent
as
The
Wine
Loft,
and
discriminatory acts. (Doc. #16-1, pp. 2-5.)
sets
forth
the
It also contains
Rodrigues’ full name and address, the full name and address of her
employer, The Wine Loft, pertinent dates regarding her alleged
discrimination, and the approximate number of employees employed
at The Wine Loft. (Id.)
Additionally, the intake questionnaire form that Rodrigues
submitted instructed her to select one of two boxes located on
page 4 of the questionnaire to indicate what she would like the
EEOC to do with the information that she provided. (Doc. #16-1.)
Box one stated: “I want to talk to an EEOC employee before deciding
whether to file a charge.
I understand that by checking this box,
I have not filed a charge with the EEOC.
I also understand that
I could lose my rights if I do not file a charge in time.”
#16-1, p. 5.)
Rodrigues did not check box one.
(Id.)
(Doc.
Box two
stated:
I want to file a charge of discrimination, and I
authorize the EEOC to look into the discrimination I
described above. I understand that the EEOC must give
the employer, union, or employment agency that I accuse
of
discrimination
information
about
the
charge,
including my name. I also understand that the EEOC can
only accept charges of job discrimination based on race,
color, religion, sex, national origin, disability, age,
9
genetic information,
discrimination.
(Id.)
or
retaliation
Rodrigues checked box two. (Id.)
for
opposing
By checking the second
box, Rodrigues indicated to the EEOC that she intended to initiate
the administrative process by submitting the intake questionnaire
to the EEOC.
Taking the factual allegations in plaintiffs’ Complaint as
true, and considering the relevant EEOC documents, the Court finds
that Rodrigues’ intake questionnaire (Doc. #16-1) was sufficient
to constitute a “charge” of unlawful discrimination to the EEOC.
Rodrigues’ charge of discrimination was therefore filed within 300
days
of
the
last
alleged
unlawful
employment
practice.
Accordingly, defendant’s Motion to Dismiss Counts I and II for
failure to exhaust administrative remedies is denied.
B. Forte and Levesque Opt-In Claims
Rodrigues’ Charge of Discrimination
Piggybacking
on
While Rodrigues is the only named-plaintiff in the ADEA
claims, Forte and Levesque assert they are similarly situated and
have opted-in to those claims.
(Doc. #1, ¶ 17; Doc. #2.)
Forte
and Levesque assert that they need not have filed EEOC charges
because they can “piggyback” on Rodrigues’ EEOC charge.
Defendant moves to dismiss Forte and Levesque as opt-in
plaintiffs,
asserting
filing/piggybacking
invalid;
(2)
their
that
rule
neither
because:
claims
do
10
can
(1)
not
utilize
Rodrigues’
arise
out
the
single-
charge
of
is
similar
discriminatory treatment in the same time frame; (3) Forte and
Levesque filed their own EEOC charges; and (4) Rodrigues’ charge
does not contain class-wide allegations. (Doc. #11, pp. 10-12.)
Plaintiffs argue to the contrary.
Ordinarily,
every
(Doc. #16, pp 12-19.)
employee
who
intends
to
sue
for
age
discrimination under the ADEA must first file an administrative
charge of discrimination with the EEOC within the appropriate time
limit.
Bost, 371 F.3d at 1238; Hipp v. Liberty Nat’l Life Ins.
Co., 252 F.3d 1208, 1217 (11th Cir. 2001).
Courts developed an
exception to this rule in class action cases, holding that “under
some circumstances, a grievant who did not file an EEOC charge may
opt into a class action by ‘piggybacking’ onto a timely charge
filed by one of the named plaintiffs in the class action.”
Grayson
v. K Mart Corp., 79 F.3d 1086, 1101 (11th Cir. 1996). This “singlefiling” or “piggybacking” rule was extended to Title VII cases,
Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 450 (11th
Cir. 1993), and ultimately to ADEA cases.
Grayson, 79 F.3d at
1101-02.
See also Hipp, 252 F.3d at 1217; Bost, 371 F.3d at 1239.
This
“a
is
limited
exception”
to
the
general
individual exhaustion of administrative remedies.
F. App’x at 454.
rule
requiring
Sheffield, 403
A plaintiff may piggyback on another plaintiff's
EEOC charge provided “(1) the relied upon charge is not invalid,
and
(2)
the
individual
claims
of
the
filing
and
non-filing
plaintiff arise out of similar discriminatory treatment in the
11
same time frame.” Calloway, 986 F.2d at 450.
Additionally, “[t]o
serve as the basis of an ADEA class action, the underlying EEOC
charge must contain allegation(s) of class-wide discrimination.”
Grayson, 79 F.3d at 1107.
(1)
The First Calloway Requirement
Defendant
asserts
that
piggybacking
is
not
permissible
because Rodrigues’ claim was not timely filed with the EEOC and
was therefore invalid.
As discussed above, the Court concludes
the charge was timely filed with the EEOC.
There are no assertions
that the EEOC claim is otherwise defective.
Therefore the two
opt-in plaintiffs satisfy the first Calloway requirement.
(2)
The
The Second Calloway Requirement
second
Calloway
requirement
is
that
“the
individual
claims of the filing and non-filing plaintiffs must have arisen
out of similar discriminatory treatment in the same time frame.”
Calloway, 986 F.2d at 450.
Defendant asserts that Forte and
Levesque fail to meet the “same time frame” component because Forte
and Levesque allege their discriminatory treatment occurred more
than 300 days before Rodrigues’ charge was filed.
13-15.)
because
(Doc. #11, p.
While plaintiffs concede the timing, they assert that
of
the
nature
of
the
termination
their
claims
were
equitably tolled. (Doc. #16, p. 16.)
In Hipp, the Eleventh Circuit clarified the “same time frame”
requirement of the single filing rule.
12
252 F.3d 1208.
The Court
concluded that the proper rearward cutoff date was “limited to
those plaintiffs who allege discriminatory treatment within the
180 or 300 days before the representative [EEOC] charge [was]
filed.”
scope”
Id. at 1220.
of
the
The Court further held that the “forward
single
filing
rule
representative charge was filed.
ended
on
the
date
the
Id. at 1225. Thus, in order to
piggyback “a plaintiff must have been able to file his or her
charge of discrimination on the date the representative plaintiff
filed the [EEOC] charge.”
Id. at 1214.
In a deferral state such
as Florida, this means no more than 300 days rearward.
As determined by the Court, Rodrigues filed her charge of
discrimination with the EEOC on July 17, 2014.
Going rearward for
300 days results in a cutoff date of September 20, 2013.
Thus, in
order for Forte’s and Levesque’s claims to meet the “same time
frame”
requirement,
the
last
alleged
discriminatory
conduct
against them must have been on or after September 20, 2013.
The
Complaint alleges that Forte was laid-off on July 3, 2013 because
of
age
discrimination
constructively
(Doc.
discharged
discrimination (Id. ¶ 70.)
on
#1,
July
¶
23,
68)
and
2013
Levesque
because
of
was
age
Therefore, unless equitably tolled,
neither can “piggyback” on Rodrigues’ EEOC charge because on July
17, 2014, neither could have filed a timely EEOC charge.
Plaintiffs Forte and Levesque assert that equitable tolling
applies, and therefore they can indeed piggyback on Rodrigues’
13
charge. 2
It is clear that equitably tolling may apply to the ADEA
time requirements, including those of opt-in plaintiffs.
79 F.3d at 1105.
Grayson,
As a matter of law, however, an opt-in plaintiff
who “suspected age discrimination at the time he resigned” cannot
use equitable tolling to save an otherwise untimely ADEA claim.
Hipp, 252 F.3d at 1223 n.13.
The Complaint alleges that one of
defendant’s managers told Forte and Rodrigues in May, 2013, that
they would not be allowed to work a particular party because
“you’re old and look like 40 miles of bad road.”
(Doc. #1, ¶ 26.)
In a July 22, 2013, e-mail from defendant’s general manager, all
employees were told he was making schedule and personnel changes
that were “best for the Wine Loft as a whole,” acknowledged that
some employees were being taken off the work schedule entirely or
having their shifts reduced, and stated that if such employees
felt the “need for a new position elsewhere or additional hours
outside
of
here
I
reference for you.”
completely
understand
(Doc. #1, ¶¶ 27-28.)
and
can
be
a
great
Forte alleges that she
was laid-off on July 3, 2013 because business was slow, but that
the very next day defendant hired a 25 year old woman to replace
her.
(Doc. #1, ¶¶ 68-69.)
Levesque was not assigned any hours or
2
In addition to asserting that equitable tolling allows Forte
and Levesque to utilize the “piggybacking” rule, Plaintiffs also
assert that equitable tolling applies to make their own untimely
charges timely, completely separate from their attempt to
“piggyback” on Rodrigues’ charge. (Doc. #16, pp. 7-12.)
14
shifts to work after the July 22, 2013 e-mail, and was simply told
defendant was “taking the restaurant in a different direction.”
(Doc. #1, ¶¶ 70-71.)
At the time, Levesque was given a favorable
letter of recommendation by defendant.
(Doc. #1, ¶ 72.)
Since Forte has pled facts which show she suspected age
discrimination in at least May, 2013, she cannot utilize equitable
tolling.
In regard to Levesque, the Court is unable to determine
from the facts alleged in the Complaint whether or not she is
entitled to utilize equitable tolling at this time.
To resolve
the issue of equitable tolling for Levesque would take the court
far beyond the four corners of the Complaint and permissibly
considered EEOC documents.
The Court therefore denies the motion
to dismiss in regard to Levesque, leaving the issue for another
day after further development of the record. 3 The motion is granted
as to Forte.
(3)
Forte and Levesque’s Disqualification from Piggyback
Rule Because They Filed Their Own Charges
Defendant next argues that Forte and Levesque cannot utilize
the piggybacking rule because they did in fact file their own
charges of discrimination, which were found to be untimely by the
EEOC. (Doc. #11, pp. 10-12.)
Plaintiffs concede that Forte and
3
Defendant attaches to its Reply an exhibit (Doc. #24-1) that
is outside of the four-corners of the plaintiffs’ Complaint and is
not being taken into consideration in this ruling.
15
Levesque filed individual EEOC charges, which were found to be
untimely, but assert this does not preclude them from utilizing
the piggyback rule. (Doc. #16, pp. 12-16.)
As stated above, the Eleventh Circuit has stated that “a
putative plaintiff who has not filed his own EEOC charge may
‘piggyback’ his claim onto the claim of a plaintiff who has filed
a timely charge.” Hipp, 252 F.3d at 1217.
But what happens when
a putative plaintiff has filed her own EEOC charge?
Can such a
putative plaintiff opt-in to another’s timely EEOC charge if her
own was found to be untimely?
Neither side has cited any binding authority on the issue,
and other courts appear split.
The Eleventh Circuit has addressed
the situation where a person had filed his own EEOC charge, but
failed
to
file
his
lawsuit
within
the
required
attempted to piggyback on another’s timely lawsuit.
90
days
and
Gitlitz v.
Compagnie Nationale Air Fr., 129 F.3d 554, 557 (11th Cir. 1997).
In this situation, the Eleventh Circuit stated:
It is clear that a plaintiff who has not filed
an EEOC charge may “piggyback” on the timely
filing of an EEOC charge by another plaintiff
who faced similar discriminatory treatment in
the same time frame.
. . .
In fashioning the ADEA statute of limitations,
Congress carefully balanced the interests of
plaintiffs and the interests of employers. A
plaintiff who has not filed an individual EEOC
charge may invoke the single-filing rule where
16
such plaintiff is similarly situated to the
person who actually filed an EEOC charge, and
where the EEOC charge actually filed gave the
employer notice of the collective or classwide
nature
of
the
charge.
In
such
circumstances, it is reasonable from the
perspective of the employer's interests and
the interests of economy of administration
within the agency to permit such a plaintiff
to rely upon the other claimant's EEOC charge.
However, where a plaintiff has filed an
individual EEOC charge, such a plaintiff
should be required to rely upon his or her own
EEOC charge, and cannot reasonably rely upon
the other claimant's charge. Thus, we conclude
that
Collins
may
not
“piggyback”
onto
Gitlitz's ADEA claim.
Id. (citations omitted).
The Court concludes that the rationale
of this holding applies equally to this case.
plaintiffs,
having
filed
their
own
The two opt-in
charges
of
unlawful
discrimination with the EEOC, must rely upon their own EEOC charge.
Therefore, the Court holds that Forte and Levesque are barred
from utilizing the “piggybacking” rule in this case.
(4)
Class Allegations in Rodrigues’ Charge
Finally, Defendant assert that Rodrigues’ Charge did not
contain class allegations, putting the employer on notice of the
collective or class-wide nature of the charge. (Doc. #11, p. 18.)
“To serve as the basis of an ADEA class action, the underlying
EEOC
charge
must
contain
allegation(s)
discrimination.” Grayson, 79 F.3d at 1107.
to
put
the
discrimination
employer
on
allegations.
notice
Id.
17
of
of
class-wide
The purpose of this is
the
alleged
Plaintiffs
class-wide
respond
that
Rodrigues’ intake questionnaire and amendment to the Charge of
Discrimination do indicate class-wide discrimination. (Doc. #16,
pp. 17-19.)
The Court has determined that Rodrigues’ intake questionnaire
constituted a charge to the EEOC.
See supra Part III.A.
Within
Rodrigues’ charge of discrimination, she indicated that other
individuals
over
the
age
of
40
experienced
discriminatory
treatment similar to that alleged by Rodrigues. (Doc. #16-1, p.
4.)
This satisfies the requirement of the representative charge
containing class-wide allegations.
C. FCRA Claims
Defendant moves to dismiss plaintiffs’ claims under the FCRA
on the basis that their charges were untimely and they therefore
failed to comply with the conditions precedent to bringing suit.
(Doc. #11, pp. 18-19.)
questionnaire
Plaintiffs respond that Rodrigues’ intake
constituted
a
charge
of
discrimination
and
was
timely, and that Plaintiffs Forte and Levesque are entitled to
equitable tolling. (Doc. # 16, pp. 19-20.)
The FCRA requires that an individual timely file a charge of
discrimination with the Florida Commission on Human Relations
before filing suit for violations of the FCRA.
Woodham v. Blue
Cross Blue Shield of Fla., Inc., 829 So.2d 891, 893 (Fla. 2002).
For a charge to be timely under the FCRA, it must be filed within
365 days of the alleged unlawful employment practice occurred.
18
Fla. Stat. § 760.11(1).
Filing a charge with the EEOC satisfies
this requirement and is commonly referred to as “dual filing.” Id.
Rodrigues’ intake questionnaire sufficiently constituted a
charge of discrimination to the EEOC and was well within the 365
day window under the FCRA.
Forte alleges discrimination from
July 3, 2013 through July 22, 2013, and filed her EEOC Charge on
September
23,
2014,
over
365
days
later.
Levesque
alleges
discrimination from July 3, 2013 through July 22, 2013, and filed
her EEOC Charge on August 20, 2013, more than 365 days later.
discussed
previously,
Forte
and
Levesque
cannot
utilize
As
the
piggybacking rule because they each filed their own charges of
discrimination.
Forte cannot utilize equitable tolling and, at
this point, the Court is unable to determine whether Levesque may
utilize equitable tolling to save her untimely charge.
Accordingly, defendant’s Motion to Dismiss Count III is
granted as to Forte and denied as to Levesque.
Accordingly, it is now
ORDERED:
1) Defendant’s Partial Motion to Dismiss (Doc. #11) is GRANTED
AS TO Forte’s claims as an opt-in plaintiff as to Counts I
and II and as a plaintiff in Count III AND IS OTHERWISE
DENIED.
19
2) Defendant shall have fourteen (14) days from the date of
this Opinion and Order to file a responsive pleading.
DONE AND ORDERED at Fort Myers, Florida, this __2nd__ day of
November, 2015.
Copies: Counsel of record
20
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