Gensheimer v. Vision Ace Hardware, LLC

Filing 43

ORDER granting in part and denying in part 37 Defendant Vision Ace Hardware, LLC's Motion to Dismiss Plaintiff's Amended Complaint. Count I is DISMISSED without prejudice. Plaintiff William Gensheimer may file a Second Amended Complaint on or before November 29, 2018.Signed by Judge Sheri Polster Chappell on 11/16/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM GENSHEIMER,
Plaintiff,
v.

Case No: 2:18-cv-422-FtM-38MRM

VISION ACE HARDWARE, LLC,
Defendant.
/
OPINION AND ORDER1
Before the Court is Defendant Vision Ace Hardware, LLC's Motion to Dismiss
Plaintiff’s Amended Complaint (Doc. 37) and Plaintiff William Gensheimer's Response
(Doc. 42).
Background
This is an employment-discrimination and whistleblower case. The Court recounts
the factual background as pled in Plaintiff’s Amended Complaint, which it must take as
true to decide whether the Amended Complaint states a plausible claim. See Chandler
v. Sec’y Fla. Dep’t of Transp., 695 F.3d 1194, 1198-99 (11th Cir. 2012). Gensheimer, a
gay man, worked for Vision Ace as a Sales Associate for two months in 2017. (Doc. 35
at 3). During his employment, supervisors treated him differently than heterosexual

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employees by sending him home for unexplained reasons, publicly reprimanding him,
dismissing his requests for help, and giving him shorter breaks than other employees.
(Doc. 35 at 5). And Gensheimer’s coworkers made sexual jokes and comments that
made him feel uncomfortable, such as calling him a “pansy” and saying things like, “I don’t
know how you’re not into vagina.” (Doc. 35 at 5).
Gensheimer’s duties included dispensing chlorine and propane, both of which are
regulated by state and federal government agencies.

Vision Ace failed to instruct

Gensheimer on proper handling of the substances. (Doc. 35 at 3-4). When Gensheimer
complained to store management and Vision Ace’s Human Resources Director, they
dismissed his concerns, and Gensheimer was terminated soon after. (Doc. 35 at 4).
Gensheimer has sued Vision Ace for Title VII discrimination based on gender nonconformity and for violating the Florida Whistleblower Act. Vision Ace moves to dismiss
the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6).
Legal Standard
When considering a Rule 12(b)(6) motion to dismiss, courts 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). The preferential standard of review,
however, does not let all pleadings adorned with facts survive to the next stage of
litigation. The Supreme Court has been clear on this point—a district court should dismiss
a claim when a party does not 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 facts pled, that the opposing party is
liable for the alleged misconduct. See Iqbal, 556 U.S. at 678. This plausibility standard

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requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 557 (internal quotation marks omitted)). And a plaintiff must allege
more than labels and conclusions amounting to a formulaic recitation of the elements of
a cause of action. Twombly, 550 U.S. at 555.
Discussion
A. Discrimination Based on Gender Non-Conformity (Count I)
The 11th Circuit recognizes gender non-conformity claims under Title VII, but not
discrimination claims based on sexual orientation. Evans v. Ga. Reg’l Hosp., 850 F.3d
1248 (11th Cir. 2017); see also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
(recognizing actionable discrimination when a woman was denied a promotion because
she was aggressive, harsh, and foul-mouthed, traits her bosses viewed as masculine).
The concurring and dissenting opinions in Evans highlight the difficulty courts face when
distinguishing between actionable gender non-conformity claims and nonactionable
sexual orientation claims, which can often overlap.

Evans, 850 F.3d at 1258-73.

Gensheimer aims for the actionable end of that spectrum by alleging discrimination
“based not on his sexual orientation per se, but because his gender identification did not
conform to those of Defendant’s stereotypical vision of male employees.” (Doc. 35 at 5).
Yet the only distinction Gensheimer draws between himself and his coworkers is that they
are straight and he is gay. The Court will thus dismiss Count I without prejudice and grant
Gensheimer leave to amend.
B. Whistleblower Retaliation (Count II)
It is unlawful in Florida to retaliate “against an employee because the employee
has…[o]bjected to…any activity, policy, or practice of the employer which is in violation

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of a law, rule, or regulation.” Fla. Stat. §448.102. The parties, and courts in this District,
disagree whether a plaintiff must prove an actual violation, or if a good-faith belief of a
violation is enough. Compare Burns v. Medtronic, Inc., No. 8:15-CV-2330-T17-TBM,
2016 WL 3769369, at *5 (M.D. Fla. July 12, 2016) (holding that a Florida Whistleblower
Act “claim need only be supported by a plausible allegation of what Plaintiff, in good faith,
believes to be a violation of a law, rule or regulation”) with Graddy v. Wal-Mart Stores
East, LP, 237 F. Supp. 3d 1223, 1226-27 (M.D. Fla. 2017) (adopting the “actual violation”
standard).
The Court need not weigh in on the debate at this point because Gensheimer has
alleged that Vision Ace violated federal laws and regulations by not training its employees
on proper handling of chlorine and propane, and Vision Ace does not dispute that its
alleged practices, if proven true, were violations. The Court may revisit this issue if
Gensheimer cannot prove an actual violation and must rely on his good-faith belief. But
for now, it is enough under either standard that Gensheimer has plausibly alleged actual
violations. Count II survives.
Accordingly, it is now
ORDERED:
Defendant Vision Ace Hardware, LLC's Motion to Dismiss Plaintiff’s Amended
Complaint (Doc. 37) is GRANTED in part and DENIED in part.
1. Count I is DISMISSED without prejudice.
2. Plaintiff William Gensheimer may file a Second Amended Complaint on or
before November 29, 2018.

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DONE and ORDERED in Fort Myers, Florida this 15th day of November, 2018.

Copies: All Parties of Record

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