Agostino v. Lee County Board of County Commissioners

Filing 21

ORDER granting 15 Lee County Board of County Commissioners' Motion to Dismiss. Caryn Agostino may file an amended complaint on or before July 24, 2017. Failure to do so will result in this case being dismissed without further notice. Signed by Judge Sheri Polster Chappell on 7/10/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CARYN AGOSTINO, an individual
Plaintiff,
v.

Case No: 2:17-cv-236-FtM-99CM

LEE COUNTY BOARD OF COUNTY
COMMISSIONERS,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on review of Defendant Lee County Board of
County Commissioners’ Motion to Dismiss. (Doc. 15). Plaintiff Caryn Agostino has filed
an Opposition to Defendant’s Motion to Dismiss. (Doc. 16). For the following reasons,
the Court grants the motion with leave to amend.
BACKGROUND
This case involves alleged workplace age discrimination. Agostino worked for Lee
County as a Fiscal Manager of Public Safety. (Doc. 1 at ¶¶ 9-10). At the time in question,
she was three years shy of retiring with full pension benefits. (Id. at ¶ 10). During her
fifteen-year tenure, she did not have a negative performance review. (Id. at ¶ 9).

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In December 2015, Agostino’s supervisor, Robert Farmer, had knee replacement
surgery. (Id. at ¶ 11). The next month, he started working part-time at home while
recuperating. (Id. at ¶ 12, Doc. 1-3). But Farmer emailed Agostino telling her to pay his
normal salary and to stop using his sick and vacation time. (Doc. 1 at ¶¶ 13-14, Doc. 13 at 2-3). Agostino responded, “Do you want me to use your sick or vacation time for part
of the day if you are part time?” (Doc. 1-3 at 2). Farmer replied no. (Id.) After the
exchange, Farmer allegedly treated Agostino differently. (Doc. 1 at ¶ 15). According to
Agostino, Farmer talked to her subordinate on budget matters instead of her, and he
excluded her from meetings. (Id. at ¶¶ 16-17).
Three months after Farmer’s surgery, Agostino’s salary came to a head. Agostino
requested a salary increase from Farmer because she allegedly earned less than her
counterparts were and worked the job of two. (Id. at ¶¶ 19-20, 22). But her request went
unanswered. (Id. at ¶ 23).
Fast-forward another two months when matters worsened for Agostino. On May
31, Farmer told her “the Public Safety Department was ‘going in a new direction’ under
his supervision and that she ‘no longer fit into the plans’ he had for the department
because she was considered ‘old school.’” (Id. at ¶ 24). He also allegedly told Agostino
that she had ten days to resign or he would fire her. (Id. at ¶ 25). That same day,
Agostino’s computer access was withdrawn, she was locked out of her office, and she
had to cede her office key and building access card. (Id. at ¶¶ 26-28). Farmer also
emailed several Lee County employees to say, “Effective immediately, Caryn Agostino
has stepped down from the department and her position as Fiscal Manager for Public
Safety. In the interim, Jen Fenske will step up and assume her responsibilities.” (Id. at

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¶ 29; Doc. 1-5). Fenske was thirty years old with allegedly “no training as to the tasks
and responsibilities of Agostino’s position.” (Doc. 1 at ¶ 30).
Agostino remained on administrative leave for the next few weeks. (Id. at ¶ 32).
But she ultimately resigned because Farmer allegedly “made it clear that she was not
wanted in ‘his’ department and that he would force her out of ‘his’ department.” (Id. at ¶
33). And there were no equivalent positions available for her in Lee County. (Id. at ¶ 34).
Agostino’s resignation was actually early retirement, which resulted in her receiving
eighty-five percent of her pension benefits, reduced Social Security benefits, and pricier
insurance. (Id. at ¶ 37).
As a result, Agostino brings this four-count action for age discrimination and
constructive discharge under the Age Discrimination and Employment Act (“ADEA”) and
the Florida Civil Rights Act of 1992 (“FCRA”). (Doc. 1). Lee County now moves to dismiss
the Complaint. (Doc. 15).
STANDARD OF REVIEW
When considering a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the reviewing court must accept all factual allegations in the complaint as true
and view them in a light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). This preferential standard of review, however, does not permit all
pleadings adorned with facts to survive to the next stage of litigation. The Supreme Court
has been clear on this point – a district court should dismiss a claim where a party fails to
plead facts that make the claim facially plausible. See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is facially plausible when the court can draw a reasonable
inference, based on the facts pled, that the opposing party is liable for the alleged

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misconduct. See Iqubal, 556 U.S. at 678. This plausibility standard requires “more than
a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S.
at 557 (internal quotation marks omitted)).
DISCUSSION
As stated, Agostino brings two counts of age discrimination under the ADEA and
FCRA and two counts of constructive discharge under the same statutes. Lee County
moves to dismiss the counts for failure to state a claim and for being duplicative. (Doc.
15). The Court will address Lee County’s arguments in turn.
A. Counts I and II: Age discrimination
The ADEA makes it unlawful for an employer “to discharge any individual or
otherwise discriminate against any individual with respect to h[er] compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). A plaintiff pursuing a claim under the ADEA can establish discrimination with
direct or circumstantial evidence. See Castillo v. Allegro Resort Mktg., 603 F. App’x 913,
917 (11th Cir. 2015). To establish discrimination based on circumstantial evidence, as
here, the McDonnell Douglas burden-shifting framework controls.

See id. (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)). The plaintiff’s prima
facie case is the first step in the framework. This requires the plaintiff to show that she
(1) is over forty years old; (2) was subject to an adverse employment action; (3) was
replaced by a younger individual; and (4) was qualified to do the job. See Chapman v. Al
Transp., 229 F.3d 1012, 1023 (11th Cir. 2000).2

“Courts employ the same analysis when evaluating age discrimination claims under the
ADEA and FCRA. See Cardelle v. Miami Beach Fraternal Order of Police, 593 F. App’x
2

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“To withstand a motion to dismiss, however, a plaintiff asserting discrimination
under ADEA . . . need not allege specific facts establishing a prima facie case of the
employer’s liability.” Castillo, 603 F. App’x at 917 (internal citations omitted). According
to the Eleventh Circuit, the McDonnell Douglas “burden-shifting analysis is an evidentiary
standard, not a pleading requirement, and thus it applies only to summary judgment
motions and beyond.” Id. That does not mean a plaintiff can skirt a motion to dismiss.
The Eleventh Circuit made clear that, “in order to avoid dismissal, a plaintiff’s complaint
must provide enough factual matter (taken as true) to suggest intentional . . .
discrimination.” (internal quotations and citations omitted). Id.; see also Townsend v.
Hilton Worldwide, Inc., No. 8:16-CV-990-17JSS, 2016 WL 6518437, at *6 (M.D. Fla. Nov.
1, 2016) (stating a “[p]laintiff need not allege facts supporting each element of the prima
facie case,” but that she “must allege sufficient facts ‘to support intentional [age]
discrimination’” (internal quotation and citations omitted)).
Here, Plaintiff has alleged that she was over forty and qualified for her job when
she was replaced by a thirty-year old. But her factual allegations end there for stating a
plausible claim of intentional age discrimination. According to Agostino, she has shown
a pattern of age discrimination. This pattern includes Farmer excluding her from meetings
and communicating with her subordinate. (Doc. 16; Doc. 1 at ¶¶ 15-17). But Farmer’s
alleged behavior followed Agostino questioning him about his pay while he was
recuperating. Even the most favorable reading of those allegations has no connection to
Agostino’s age. Likewise, Agostino states that her salary was unequal to Lee County’s

898, 901 n.6 (11th Cir. 2014) (citing Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453,
1455 n.2 (11th Cir. 1997)).

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other fiscal managers. Although she identifies that she was treated differently, she fails
to provide facts showing the difference was because of her age. (Doc. 1, Doc. 1-4).
Agostino’s most convincing allegation is Farmer labeling her “old school.” (Doc. 1
at ¶ 24). “Although some courts have held that the term ‘old-school’ could suggest age
discrimination when combined with other evidence or allegations, the term alone is
insufficient to support an inference of age discrimination.” Brazill v. Cal. Northstate Coll.
of Pharmacy, LLC, No. CIV. 2:12-1218 WBS GGH, 2012 WL 3204241, at *4 (E.D. Cal.
Aug. 2, 2012); see also Ratachie v. AmeriCredit Fin. Servs., Inc., No. CV-11-01351-PHXPGR, 2012 WL 4951218, at *5 (D. Ariz. Oct. 17, 2012) (finding an age discrimination claim
to be “very minimally sufficient to plausibly suggest that the plaintiff was entitled to relief
for age discrimination” where his supervisors twice referred to his ideas as “old school”
and he received “two written reprimands for conduct that younger members of his team
also engaged in without reprimand”). Here, Farmer calling Agostino “old school” is alone
insufficient. To the extent she relies on Farmer’s other alleged discriminatory behavior –
e.g., prefacing his “old school” statement with explaining that his department was “going
in a new direction” and that she “no longer fit into the plans” – neither statement supports
an inference of age discrimination.
The Court, therefore, grants Lee County’s motion to dismiss as to Counts I and II
of the Complaint. But it will grant her leave to amend.
B.

Counts III and IV: Constructive discharge
In addition to age discrimination, Agostino brings two claims for constructive

discharge under the ADEA and FCRA. According to her, the hostile work environment,
shame, and embarrassment forced her to resign from her position. (Doc. 1 at ¶¶ 35-36).

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The threshold to prove constructive discharge is “quite high” – even “higher than
the standard for proving a hostile work environment.” Hipp v. Liberty Nat’l Life Ins. Co.,
252 F.3d 1208, 1231 (11th Cir. 2001). “In evaluating constructive discharge claims,
[courts] do not consider the plaintiff’s subjective feelings. Instead, [they] employ an
objective standard.” Id. To succeed on a constructive discharge claim, a plaintiff must
show “that working conditions were so intolerable that a reasonable person in [her]
position would have been compelled to resign.” Id. (internal quotations omitted); see also
Hellums v. Webster Indus., Inc., 97 F. Supp. 2d 1287, 1296 (M.D. Ala. 2000) (“To succeed
on an ADEA claim based on constructive discharge, a plaintiff must make a twofold
showing: ‘that the employer’s actions were impermissibly motivated by the plaintiff’s age,
and that these actions made the plaintiff’s working conditions so intolerable that
resignation is deemed involuntary.’” (citations omitted)), aff’d 251 F.3d 162 (11th Cir.
2001).
Here, Agostino makes the conclusory statement – with nothing more – that her
work conditions were so intolerable that she had no choice but to resign. Not only do the
allegations fall short of showing that Lee County was motivated by Agostino’s age, but
they also do not even rise to the level of a hostile work environment. And she further fails
to state facts showing that a reasonable person in the same situation would find her
working conditions intolerable. Even drawing all reasonable inferences in Agostino’s
favor, she has failed to provide facts sufficient to state a constructive discharge claim.
The Court, therefore, grants Lee County’s motion to dismiss Counts III and IV of
the Complaint. But it will grant her leave to amend.

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C. Other grounds for dismissal
As further grounds for dismissal, Lee County argues that the age discrimination
claims are duplicative of the constructive discharge claims. At this stage, the Court
disagrees.

Although there is overlap between the standards for intentional age

discrimination and constructive discharge claims, they are not per se duplicative. Without
more factual allegations, the Court cannot say Agostino’s age discrimination and
constructive discharge claims are duplicative.
Finally, Lee County argues that the plain language of the FCRA precludes a claim
for punitive damages. The Court, however, will not dismiss the Complaint on that ground
under Rule 12(b)(6). Other procedural remedies are more appropriate to address the
issue of punitive damages.
Accordingly, it is now
ORDERED:
(1) Lee County Board of County Commissioners’ Motion to Dismiss (Doc. 15) is
GRANTED.
(2) Caryn Agostino may file an amended complaint on or before July 24, 2017.
Failure to do so will result in this case being dismissed without further
notice.
DONE and ORDERED in Fort Myers, Florida this 10th day of July 2017.

Copies: All Parties of Record

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