Germain v. Compass Group USA, Inc. et al
ORDER denying 11 Defendants' Motion to Dismiss. See Order for details. Signed by Judge John L. Badalamenti on 4/28/2021. (NM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILNORD GERMAIN, and other
similarly situated employees,
Case No: 2:21-cv-149-JLB-MRM
COMPASS GROUP USA, INC., a foreign
profit corporation, and FLIK
INTERNATIONAL CORPORATION, a
foreign profit corporation,
Presently before the Court is Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint, filed on March 15, 2021. (Doc. 11.) Defendants Compass
Group, USA (“Compass”) and Flik International Corporation (“Flik”) argue that
Counts III and IV of the Amended Complaint—alleging claims for retaliation under
Fla. Stat. § 440.205 against Compass and Flik, separately—should be dismissed. 1
The legal basis for Defendants’ motion is that Plaintiff purportedly fails to
adequately plead the required element for his retaliation claim of an adverse
employment action. See Hornfischer v. Mantee Cnty. Sheriff’s Office, 136 So. 3d
703, 706 (Fla. 2d DCA 2014). 2
Defendants do not move to dismiss Counts I or II, which allege separate
federal wage and hour claim against Compass and Flik.
Defendants suggest other possible deficiencies in Plaintiff’s allegations, but
fail to make any legal argument with respect to those other allegations.
Plaintiff alleges that he was jointly employed by both Defendants, and that
his employment was terminated on or about April 8, 2019. (Doc. 9 ¶¶ 3–4, 9, 11.)
Termination constitutes an adverse employment action under Fla. Stat. § 440.205.
See Coker v. Morris, No. 3:07CV151/MCR/MD, 2008 WL 2856699, at *5 (N.D. Fla.
July 22, 2008) (“Coker has established that she . . . was subjected to an adverse job
action when her employment was terminated.”). Contrary to Defendants’
assertion, the allegation that Plaintiff was discharged from his employment is not
conclusory, and satisfies the requirement for pleading an adverse employment
Defendants’ argument that Plaintiff fails to allege an adverse employment
action appears to be based on the fact that the Amended Complaint does not clearly
specify whether Plaintiff’s theory is that he was fired or that he was constructively
discharged. (Compare Doc. 9 ¶¶ 22–23 with id. ¶¶ 98–102.) But the inclusion of
contradictory theories in the complaint is not improper as Plaintiff is permitted
under the federal rules to plead an actual and a constructive discharge in the
alternative. See Fed. R. Civ. P. 8(d)(2), (3); see, e.g., Luna v. Walgreen Co., 575
F. Supp. 2d 1326 (S.D. Fla. 2008), aff'd, 347 F. App’x 469 (11th Cir. 2009).
Defendants have fair notice of Plaintiff’s alternative legal theories.
Defendants also argue the Amended Complaint fails to give them notice of
the factual basis for Plaintiff’s constructive discharge theory. Defendants argue
that Plaintiff’s allegations are inadequate because they do not plausibly suggest
objectively intolerable working conditions. The Court does not agree. Defendants
cite one case—a non-precedential decision of the Eleventh Circuit, Moore v. San
Carlos Park Fire Prot. & Rescue, 808 F. App’x 789, 798 (11th Cir. 2020). Moore
affirmed the district court’s dismissal of a claim for constructive discharge for
failure to plead a sufficient factual basis. But the allegations there related to a
twenty-year employment, and included references to many different but mostly
vague and seemingly unrelated conduct that allegedly gave rise to the constructive
discharge claim. See id. at 791–93, 798. Here, Plaintiff alleges a one-year
employment period and a single course of conduct giving rise to his constructive
discharge claim. He alleges he was injured and that he requested accommodation
for his injury through light duty and worker compensation benefits through which
he might have received medical care. (Doc. 9 ¶¶ 19–22.) These allegations
plausibly give rise to a claim that Plaintiff’s “working conditions were so intolerable
that a reasonable person in [his] position would have been compelled to resign.”
Moore, 808 F. App’x at 798 (internal quotation marks and citations omitted).
Accordingly, Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint,
Doc. 11 is DENIED.
ORDERED at Fort Myers, Florida, on April 28, 2021.
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