Endemano v. Secretary, Department of Homeland Security et al
Filing
38
ORDER granting in part and denying in part 21 The Secretary's Motion to Dismiss. a. Counts I and III are DISMISSED with prejudice to the extent they seek to impose liability for actions occurring before September 1, 2009, because those acti ons are time-barred. b. Counts I and III are DISMISSED without prejudice to the extent they seek to impose liability for actions occurring on or after September 1, 2009, because Endemano failed to state a claim upon which relief can be granted as t o such actions. c. In all other respects, the Secretary's Motion to Dismiss is DENIED. To the extent that Endemano wishes to re-plead claims dismissed without prejudice, she is granted leave to file a Second Amended Complaint within TWENTY-ONE (21) days of the date of this Order, which cures the deficiencies noted in this Order. Otherwise, this action will proceed on the Amended Complaint. Signed by Judge Charlene Edwards Honeywell on 3/19/2014. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TRIXY E. ENDEMANO,
Plaintiff,
v.
Case No: 6:13-cv-348-Orl-36TBS
SECRETARY, DEPARTMENT OF
HOMELAND SECURITY,
Defendant.
ORDER
This cause comes before the Court upon Defendant Secretary of the Department of
Homeland Security’s (the “Secretary”) Amended Motion to Dismiss Plaintiff Trixy E.
Endemano’s (“Endemano”) Complaint (“Motion to Dismiss”) (Doc. 21). Endemano filed a
response in opposition to the Motion to Dismiss (Doc. 24). For the reasons that follow, the Motion
to Dismiss will be granted in part and denied in part.
I.
BACKGROUND
A.
Facts1
This action arises from Endemano’s allegations that during a period from September 2007
through October 2009, she was subjected to sex discrimination, a hostile work environment, and
retaliation by her employer, the Transportation Security Administration (“TSA”), primarily due to
the actions of her supervisor, James Zloto (“Zloto”). See Doc. 12.
1
The following statement of facts is derived from the Amended Complaint (Doc. 12), the
allegations of which the Court must accept as true in ruling on the instant Motion to Dismiss.
Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992).
The TSA, a component of U.S. Department of Homeland Security (“DHS”), is responsible
for protecting the Nation’s transportation systems, including aviation. See Transportation Security
Administration, Mission, Vision and Core Values (Jan. 14, 2014), http://www.tsa.gov/abouttsa/mission-vision-and-core-values. The Federal Air Marshal Service (“FAMS”) is a unit of the
TSA that seeks to protect the Nation’s aviation system by deploying Federal Air Marshals
(“FAMs”) to detect, deter, and defeat hostile acts targeting U.S. air carriers, airports, passengers,
and crews. See Transportation Security Administration, Federal Air Marshals (Feb. 26, 2013),
http://www.tsa.gov/about-tsa/federal-air-marshals. At all times relevant hereto, Endemano was
employed by the TSA as a FAM based in the Tampa regional FAMS office, which falls under the
direction of the Orlando Field Office. Doc. 12 ¶¶ 6, 16. Endemano was originally based in the
Washington, D.C. Field Office, but was transferred to the Tampa office in September 2007. Id. ¶¶
15–16. Zloto, an Assistant to the Special Agent in Charge (“ATSAC”) with the FAMS, was
Endemano’s direct supervisor and worked primarily in the Tampa office, although he reported to
his supervisors in Orlando. Id. ¶ 17. Endemano alleges that almost immediately upon her transfer
to the Tampa office, she was subjected to a series of acts of sex discrimination and abusive conduct
by Zloto, as detailed below. Id. ¶ 16.
On October 1, 2007, Endemano had a personal emergency and was forced to call out of
work for the next day. Id. ¶ 22. It was late at night and Endemano was only carrying her personal
phone, so she called the mission operation center to get Zloto’s phone number. Id. When she
called, Endemano was unknowingly given the phone number for Greg Mertz (“Mertz”), who is
the assistant to the federal security director. Id. Endemano called the number, not realizing that
she was speaking to Mertz, and at no point did Mertz ever correct her. Id. Endemano advised
Mertz that she needed to call out sick and he told her he would get someone else to fill in for her.
2
Id. The next morning at approximately 8:30 a.m., Endemano received a phone call from Zloto,
who immediately screamed at her, exclaiming “How can you be so dumb as to call Greg Mertz?”
Id. Endemano tried to explain what had happened, but Zloto continued interrupting her and told
her that she was contradicting herself and that she was lying. Id. Because Endemano did not want
to argue with Zloto, she asked him to contact the mission operation center for a recording of the
conversation, but Zloto refused. Id.
In late 2007 or early 2008, Endemano and her partner, FAM Joseph,2 had an encounter
with a Southwest Airlines employee, which led to Endemano and FAM Joseph jointly writing a
memorandum discussing the employee’s failure to follow policy. Id. ¶ 23. Zloto proceeded to
“grill” Endemano on the sequence of events and details of what occurred, “yell[ing] and
scream[ing]” at her. Id. After making Endemano repeat the story several times, Zloto then asked
FAM Joseph about the incident and the memorandum. Id. FAM Joseph corroborated what
occurred and informed Zloto that he and Endemano had jointly written the memorandum. Id. It
was only after speaking to FAM Joseph that Zloto stopped interrogating Endemano. Id.
In August 2008, Endemano was assigned to fly several missions with FAM Richard while
his normal partner was on medical leave. Id. ¶ 24. During this time period, FAM Richard asked
how Endemano felt about becoming permanent partners. Id. Endemano agreed that it would be a
good idea and asked FAM Richard to make the request to Zloto, because she felt Zloto might be
more receptive to a request from FAM Richard than from her. Id. Within one or two days, FAM
2
Pursuant to a Court Order, the Clerk was directed to remove the original complaint filed by
Endemano from the docket and substitute it with a redacted complaint (the “Amended Complaint”)
provided by the Secretary that would omit the names and other Sensitive Security Information of
the FAMs who were discussed in the complaint. See Doc. 10. As with the Amended Complaint,
and in a continuing effort to protect the identities of the FAMs, this Order refers to each FAM
(other than Endemano) by first name only.
3
Richard told Endemano that he had spoken with Zloto, who had agreed to make Endemano and
FAM Richard partners and that this change would be effective by the next roster. Id. However,
when Endemano and FAM Richard received their next rosters at the end of September 2008, they
had not been assigned as partners. Id. Shortly thereafter, FAM Richard contacted Endemano and
told her that he had spoken with Zloto again regarding the two of them becoming partners, and
that Zloto had said he would make it happen. Id. ¶ 25. FAM Richard told Endemano that there
was something else Zloto said, but that he was reluctant to disclose it to her. Id. He chuckled
nervously and told Endemano that Zloto had asked him, “Why, do you want to sleep with her?”
Id. Endemano was highly upset by this comment and expressed her feelings to FAM Richard, who
said, “Maybe I shouldn’t have told you this.” Id. Several weeks later, Endemano confided to
FAM Scott about Zloto’s comment, and FAM Scott corrected her and stated that he had learned
that the actual wording was, “Why? Do you want to fuck her?” Id. Endemano asked FAM Scott
how he knew this, and he told her that FAM Richard had told him that these were the exact words
Zloto used, and that FAM Richard had basically “cleaned it up” when he told her about Zloto’s
comment. Id. Endemano was humiliated as the story quickly spread throughout the offices in
Tampa and Orlando and her coworkers questioned her about the incident. Id.
On December 10, 2008, in accordance with a new policy concerning Law Enforcement
Availability Pay justification, Endemano submitted her timesheet and attached the required
justification sheet, which included several flight delays. Id. ¶ 27. Zloto told Endemano to correct
the justification sheet and required her to specify the cause of each flight delay along with
additional information regarding each replacement flight. Id. Endemano asked Zloto how he
expected her to remember this when that requirement had not been communicated to the FAMs.
Id. He responded, “You are a law enforcement officer and should be attentive to detail.” Id. These
4
details were not required of others, including the two male FAMs present in the room. Id.
Endemano walked to a computer and sat down, while Zloto proceeded to lean across the table and
scream in her face, “DO YOU HAVE A BRAIN?” Id. While screaming at Endemano, Zloto came
into physical contact with her.3 Id. ¶¶ 27–28, 35.
Toward the end of 2008, during her performance review, Endemano had a conversation
with Zloto regarding sick calls. Id. ¶ 29. Endemano told Zloto that it was wrong that he demanded
a reason when someone called in sick and that he then proceeded to send the reason out in an email
for others to see. Id. Official policy did not require employees to disclose their medical issues
unless they were out for an extended period of time. Id. Endemano believed Zloto’s practice in
requesting and disclosing this information was an invasion of privacy and unprofessional. Id.
Additionally, Endemano was embarrassed and uncomfortable telling her male supervisor that she
was sick due to a female medical issue. Id. However, their conversation failed to resolve the issue
and Zloto continued to ask for a reason for Endemano’s absences. Id.
At the end of January 2009, Endemano attended a FAMS operational security briefing in a
conference room at the airport. Id. ¶ 30. At the conclusion of the briefing, while she was having
a conversation with another FAM, Zloto approached Endemano and asked if she had a “hot date”
the night before. Id. Endemano knew that he was referring to her rapid departure following the
“check ride” the previous day and she believed the comment was utterly inappropriate. Id. Zloto
had not mentioned wanting to have a discussion after the flight and Endemano had no desire to
delay getting home. Id. During the check ride, Zloto had given Endemano her performance
ratings. Id. Endemano believed that the performance ratings were completely unjustified and
derived from Zloto’s biased feelings towards her rather than on her actual performance. Id. Zloto
3
The Amended Complaint does not allege precisely the manner of the contact. See Doc. 12 ¶ 27.
5
never offered any explanation as to why Endemano received such low scores, and nothing was
noted within any of her previous reviews to indicate such concerns and criticisms. Id. In fact, that
review was in direct contradiction to Endemano’s normal review, which indicated that she met
expectations. Id.
In April 2009, Endemano participated in training at the Hillsborough County training
facility. Id. ¶ 32. Zloto was present that day for the purpose of conducting performance reviews
in the cafeteria near the training room. Id. Zloto entered the training room after the instructors
announced that he was there for the performance reviews. Id. Endemano was sitting in the front
of the training room when Zloto entered and noticed that she had a bandage on her ear, which she
had used to cover a recent piercing in accordance with official policy. Id. He laughed and
remarked, ‘Was someone nibbling on your ear last night?” Id. Endemano was embarrassed in a
room full of men and stated, “Wow. That sounds like an EEO [complaint] in the making.” Id.
Zloto answered, “Go ahead, file it—you’re not the first.” Id.
In May 2009, Endemano turned in her timesheet to Zloto without submitting
documentation for scheduled overtime, which was his personal requirement rather than an official
Orlando Field Office policy. Id. ¶ 33. The informal practice among the squads in general was that
the team leader on an international mission was supposed to send an email to all the FAMs on that
mission with a breakdown of the hours they worked, including overtime. Id. In Endemano’s
experience, this was not practiced regularly or consistently, and she specifically recalls only one
email from a team leader during her entire tenure in the Orlando Field Office. Id. After this
particular trip, Endemano did not submit the documentation because she had not received the email
with the breakdown of time from her team leader. Id. Prior to submitting her timesheet, Endemano
compared her hours with FAM Scott’s timesheet. Id. Endemano observed that she and FAM Scott
6
had listed the same hours and that FAM Scott had also not submitted the required documentation
as an attachment to his timesheet. Id. On May 18, 2009, Zloto sent Endemano an email entitled
“T&A pp8 Missing Attachments.” Id. In the email, Zloto referenced that Endemano was late in
her submission and that she was missing documentation for annual leave taken on May 8 and May
9, as well as the overtime justification. Id. Endemano concedes that she was late in her submission.
Id. However, she responded in an email explaining that she had not received any overtime
documentation from the Orlando Field Office and pointing out that she was aware that her partner
also had not submitted any documentation. Id. Zloto then replied that Endemano was supposed
to receive the documentation from the team leader for the mission. Id. Endemano knew this and
replied once again that she had not received it from the team leader. Id. Zloto then replied and
stated, “Trixy, provide the attachments.” Id. Endemano did not discuss the issue with Zloto again,
and she did not provide any further documentation as she believed that the information was Zloto’s
responsibility. Id. Shortly thereafter, Endemano contacted FAM Scott to confirm that he had not
turned in any overtime documentation, and to see if he had any issues with Zloto regarding the
overtime. Id. FAM Scott stated that he had not submitted the documentation and that Zloto had
no issues with him regarding the overtime. Id. After a couple of weeks, Endemano still had not
been paid for the overtime, so she contacted former security assistant Heather Cernan (“Cernan”)
for assistance. Id. Cernan told Endemano she would look into it, and eventually Endemano was
paid. Id.
On June 3, 2009, Endemano was in the office for training, and Zloto asked her to stay to
meet with him at the conclusion of training. Id. ¶ 34. The two of them met in ATSAC Matt Ryan’s
(“ATSAC Ryan”) office with ATSAC Ryan present. Id. Zloto handed Endemano a one-page
Letter of Counseling (“LOC”), dated May 21, 2009 and entitled, “Failure to Request Annual leave
7
and Exhaustion of Current Annual leave Balance.” Id. Endemano read the LOC and, feeling that
it was unjust, questioned its validity. Id. Zloto explained that the LOC was referring to her failure
to request advance leave for leave she took from May 8 through May 16, 2009, and he explained
the policy regarding advance leave requests and that Endemano should have known to submit the
request. Id. Endemano was confused and told Zloto that she was unaware of this policy and that
she felt it was his responsibility to make her aware of policies pertinent to her job. Id. The official
leave policy states that supervisors must make their subordinates aware of policies that affect them.
Id. Endemano further explained to Zloto that at the time she submitted her leave request she had
counted on “Regular Days Off” that ended up changing due to an international mission. Id. She
also told Zloto that she knew that other male FAMs had exhausted their leave time without
repercussions, and that the LOC was nothing more than retaliation for an email she had sent
complaining about management. Id. During their conversation, Zloto screamed at Endemano and
continued to move his chair closer to her until he finally hit her foot and the box of pastries next
to her foot. Id. ¶ 35. Zloto came into contact with Endemano a second time when his animated
hand gestures caused him to touch her hand. Id.
The aforementioned email, which Endemano believes was the basis for Zloto’s retaliation,
was one she sent to Zloto, Administrative ATSAC Randy Busch (“ATSAC Busch”), and Christine
Lewandowski on May 30, 2009, concerning a workers compensation claim she made on May 20,
2009. Id. ¶ 36. In the email, Endemano expressed dissatisfaction with management because of
communication breakdowns. Id. Endemano also expressed dissatisfaction with the fact that,
without her knowledge, she had been taken off the schedule due to a traumatic injury when, in
fact, she was medically fit and capable of working. Id. In fact, Endemano had been working all
week. Id. ATSAC Busch was upset about Endemano’s May 30 email and told her that it took him
8
three days to calm down over it because of the reference to “management”. Id. Endemano told
ATSAC Busch that she was actually upset with Zloto, and not ATSAC Busch, since Zloto had
been uncooperative, condescending, and disrespectful when she called him to discuss the matter.
Id. Moreover, the LOC incorrectly listed the absence as occurring in April 2009 when it really
occurred in May 2009, and if Zloto had reviewed Endemano’s leave balance in April 2009, he
would have seen that she had sufficient annual leave for the dates she was on leave. Id.
On October 5, 2009, Endemano submitted a travel voucher to Zloto, and attached receipts
for expenses claimed for various tolls. Id. ¶ 37. Zloto responded that day with an email stating
that he was returning the voucher and that she needed to resubmit the toll documentation without
omissions. Id. That afternoon, Endemano sent an email to Zloto stating that she had submitted all
pertinent information and that there was no reason why she should be required to resubmit the
voucher with personal information that did not pertain to her work travels. Id. Endemano also
informed Zloto that she knew he had already approved vouchers with redacted personal
information from other individuals and that she was being singled out and treated differently from
her male counterparts. Id. Endemano knew this because prior to sending her responsive email to
Zloto, she had called FAM Scott to complain about the issue. Id. FAM Richard was in the office
with FAM Scott at the time of the phone call, and he told FAM Scott to tell Endemano that he had
submitted his voucher without personal information, as well, but that his voucher had already been
approved. Id.
On October 6, 2009, Zloto replied that he did not recall approving travel vouchers with
redacted information from other individuals. Id. ¶ 38. Endemano contacted FAM Richard directly
and he confirmed that his voucher did not contain all his personal information and suggested that
she review his voucher in his inbox. Id. Endemano reviewed the voucher and saw that FAM
9
Richard’s personal travel information had not been redacted, but he had omitted his personal
information. Id. Specifically, his toll statement was in a different format, which enabled him to
omit his transponder number and his customer number. Id. Endemano replied to Zloto that she
did not understand what information he thought was lacking, and she resubmitted the voucher
showing the information in a new format that was similar to the one used by FAM Richard, this
time including the toll locations for the expenses claimed. Id. Approximately two hours later,
Endemano received an email from Zloto that copied the Assistant Special Agent in Charge, Mr.
Cook (“ASAC Cook”), 4 and advised that Zloto had spoken with FAM Richard about some
personal information that had not been submitted, but that, unlike Endemano, FAM Richard had
not redacted anything. Id. Zloto directed Endemano to submit documentation verifying all
information in the voucher and stated that he would like to meet with her regarding the matter. Id.;
see Doc. 12 at 27. On October 7, 2009, Endemano, believing that any further attempts at
reimbursement would be futile, replied with one final email, copying ASAC Cook, in which she
stated that she was declining a meeting with Zloto due to the fact that she did not believe that he
wanted to find a resolution to the matter, but only wanted to belittle her. Doc. 12 ¶ 38. In a
subsequent meeting, ASAC Cook told Endemano that he would be contacting Zloto and advising
him to approve her voucher immediately. Id. ¶ 39.
A few days prior to the travel voucher incident, on October 2, 2009, FAM Kevin had sent
Endemano her schedule of duties for the next day. Id. ¶ 40. Endemano believed that some of the
scheduled hours were incorrectly allocated, and she and FAM Kevin engaged in a series of emails
regarding the matter. Id. In a final email, FAM Kevin advised that Endemano’s hours had been
4
ASAC Cook held the second-highest management position in the Orlando Field Office and was
responsible for the performance of Zloto. Doc. 12 ¶ 38.
10
“adjusted to reflect the correct time,” but Endemano noticed that there was now an extra
assignment. Id. Endemano believed that this was done out of spite and that FAM Kevin was upset
that she had made him correct the original email various times. Id. However, Endemano
conducted her assignments and forgot about the incident. Id. Three days later, on October 5, 2009,
Endemano was leaving the office and was approached by FAM Kevin, who asked her in a mocking
manner if she had enjoyed the extra time she had been assigned. Id. On October 6, 2009,
Endemano emailed Zloto, who was FAM Kevin’s supervisor, regarding the matter, with a copy to
FAM Kevin. Id. ¶ 41. Approximately one week later, Zloto had not replied or addressed the
matter with Endemano, causing her to believe that Zloto was reinforcing FAM Kevin’s retaliation.
Id. Endemano’s dealings with FAM Kevin had previously been positive, but when he was
promoted and began reporting to Zloto, Endemano noticed that FAM Kevin’s demeanor had
changed. Id. Endemano spoke with several other FAMs, who agreed that FAM Kevin had
acquired an arrogant demeanor under Zloto’s supervision. Id.
On October 8, 2009, Endemano was contacted by ASAC Cook, who asked her to report to
the Orlando Field Office as soon as possible to discuss the allegations from her October 7 email to
Zloto regarding the travel voucher. Id. ¶ 42. Later that day, Endemano met with ASAC Cook and
Supervisory Agent Sonya Hightower (“Hightower”) for approximately 30 minutes and outlined
her concerns about Zloto. Id. ASAC Cook asked Endemano to provide a written memorandum
breaking down her email with more specific details. Id. Hightower then approached the Special
Agent in Charge, Joseph Samuels (“SAC Samuels”), and relayed Endemano’s complaints of
discrimination and retaliation. Id. SAC Samuels did not make any meaningful comment to
Hightower, nor was Hightower directed to take steps to address Zloto’s conduct. Id. ASAC Cook
11
directed Endemano to return to Tampa and continue reporting to Zloto, and told her that she should
be respectful of Zloto and do as she was instructed. Id.
During her employment with the FAMS, Endemano learned that she was not the first
woman to complain about Zloto’s treatment of women. Id. ¶ 43. For example, Endemano had
been told by many of her coworkers about FAM Dawn’s ongoing battle with Zloto over her toll
receipts years ago. Id. FAM Dawn, after seeing no resolution, wrote to Orlando management that
she would no longer be claiming her tolls since she was exhausted from fighting with Zloto about
every toll receipt. Id. Zloto’s actions caused FAM Dawn a great deal of emotional distress, which
eventually forced her to leave the FAMS. Id. In addition, Endemano learned that on one occasion
Zloto, responding to an incident where a female passenger had allowed her dog to roam free in an
aircraft, angrily told the passenger that she needed to be slapped. Id. ¶ 44. Finally, Endemano had
been told that when another female FAM, FAM Sukeena, had visited the Tampa office on business
with a male FAM, Zloto made comments to her about where the mall was located and encouraged
her to go shopping while the men talked business. Id. ¶ 45.
B.
Procedural History
On October 16, 2009, Endemano filed an informal complaint of sex discrimination and
hostile work environment with an Equal Employment Opportunity (“EEO”) counselor in the
TSA’s Office of Civil Rights and Liberties (“OCRL”). Id. ¶ 10; Doc. 21-1, Declaration of Sonja
DeWitt (“DeWitt Dec.”), ¶ 4. On February 13, 2010, Endemano filed a formal complaint with the
OCRL. Doc. 12 ¶ 10; DeWitt Dec. ¶ 6. On November 2, 2010, the OCRL provided Endemano
with a notice of her right to request a hearing before an Equal Employment Opportunity
Commission (“EEOC”) administrative judge or, alternatively, to receive a Final Agency Decision
(“FAD”).
DeWitt Dec. ¶ 7.
Endemano initially requested a hearing before an EEOC
administrative judge, but later withdrew her request for a hearing and requested a FAD. Id. ¶¶ 8–
12
9. The OCRL then issued a FAD concluding that Endemano failed to prove that the TSA
discriminated against her. Id. ¶ 10.
On February 28, 2013, within 90 days of her receipt of the FAD, Endemano filed a
complaint with this Court. See Doc. 1; Doc. 12 ¶ 11. The Amended Complaint, see supra n. 2,
asserts the following claims: (1) Count I – sex discrimination in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”); (2) Count II – hostile work environment in violation of Title VII;
and (3) Count III – retaliation in violation of Title VII. See Doc. 12. On August 13, 2013, the
Secretary filed the instant Motion to Dismiss, seeking dismissal of the Amended Complaint in its
entirety. See Doc. 21.
II.
STANDARD OF REVIEW
To survive a motion to dismiss, a pleading must include a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009)
(quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of
a cause of action are not sufficient. Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Mere naked assertions, too, are not sufficient. Id. A complaint must contain
sufficient factual matter, which, if accepted as true, would “state a claim to relief that is plausible
on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Court, however, is not bound to accept
as true a legal conclusion stated as a “factual allegation” in the complaint. Id. Therefore, “only a
complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679.
13
III.
DISCUSSION
A.
Sex Discrimination
Title VII requires that personnel actions affecting Federal Government employees “be
made free from any discrimination based on race, color, religion, sex, or national origin.”5 42
U.S.C. § 2000e-16(a). Before bringing a Title VII claim in federal court, however, an aggrieved
employee must exhaust her administrative remedies. See 42 U.S.C. § 2000e-16(c); Brown v. Gen.
Servs. Admin., 425 U.S. 820, 832 (1976); Brown v. Snow, 440 F.3d 1259, 1262 (11th Cir. 2006).
One such requirement is that the employee must file a formal complaint with the agency that
allegedly discriminated against her. Snow, 440 F.3d at 1262; 29 C.F.R. § 1614.106. An additional
requirement is that, prior to filing the formal complaint with the agency, the employee must initiate
contact with an EEO counselor within 45 days of the alleged discriminatory act or, in the case of
a personnel action, within 45 days of the effective date of the personnel action, in an attempt to
informally resolve the matter. Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008); Robinson
v. Jojanns, 147 F. App’x 922, 924 (11th Cir. 2005); 29 C.F.R. § 1614.105(a)(1). Failure to initiate
contact within the 45-day period generally results in the claims at issue being barred for failure to
exhaust administrative remedies. Shiver, 549 F.3d at 1344.
In its Motion to Dismiss, the Secretary argues that because Endemano did not initiate
contact with an EEO counselor until October 16, 2009, any claims she may have had for actions
occurring more than 45 days prior to that date—i.e., those actions occurring before September 1,
2009—are barred for failure to exhaust administrative remedies. Doc. 21 at 5–7. In response,
Endemano does not dispute that claims for actions occurring before September 1, 2009 are barred.
5
The protections afforded by 42 U.S.C. § 2000e-16(a) are equivalent to those granted by the more
well-known anti-discrimination provision of Title VII, 42 U.S.C. § 2000e-2(a), which covers
private employers. See Putman v. Sec’y, Dep’t of Veterans Affairs, 510 F. App’x 827, 829 (11th
Cir. 2013); Clark v. Potter, 232 F. App’x 895, 896 (11th Cir. 2007).
14
See Doc. 24 at 6. Rather, she only seeks to hold the Secretary liable on her Title VII discrimination
claim with respect to the two post-September 1, 2009 incidents—Zloto’s failure to authorize
reimbursement for Endemano’s travel voucher relating to tolls, and FAM Kevin’s rescheduling of
Endemano’s duties, both of which occurred in October 2009. Id. at 6–10. Because there is no
dispute that Endemano’s claims for actions occurring before September 1, 2009 are barred, the
Court will grant the Secretary’s Motion to Dismiss as to the Title VII discrimination claim with
respect to such actions.
With respect to the two post-September 1, 2009 incidents, the Secretary asserts that
Endemano fails to state a claim for sex discrimination based on disparate treatment. Id. at 7–11.
The Court agrees. To establish a prima facie claim of disparate treatment, a plaintiff must
demonstrate that: (1) she was a member of a protected class; (2) she was qualified for the job; (3)
she suffered an adverse employment action; and (4) her employer treated similarly situated
employees outside the protected class more favorably. Hopkins v. Saint Lucie Cnty. Sch. Bd., 399
F. App’x 563, 565 (11th Cir. 2010); Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.
2004). Although a plaintiff need not prove these elements at the pleading stage, the “ordinary
rules for assessing the sufficiency of a complaint [still] apply,” and the plaintiff must allege
sufficient factual matter to support her claim under the Iqbal standard. Uppal v. Hosp. Corp. of
Am., 482 F. App’x 394, 396 (11th Cir. 2012). The Secretary argues that with respect to the two
post-September 1, 2009 incidents, Endemano fails to properly allege that she was treated
differently from her male counterparts or that she suffered an adverse employment action. Doc.
21 at 7–11.
With respect to FAM Kevin’s modification of Endemano’s work schedule, the Court agrees
that the Amended Complaint fails to include any allegation from which the Court can reasonably
15
infer that the modification was due to Endemano’s sex. In fact, the Amended Complaint states
that the modification was done “out of spite” because FAM Kevin “was upset that she had made
him correct the email various times.” Doc. 12 ¶ 40. In addition, the Amended Complaint alleges
that FAM Kevin mockingly asked Endemano if she enjoyed her extra assignment, and that FAM
Kevin had become “arrogant” since he began reporting to Zloto. Id. ¶¶ 40–41. There is simply
nothing in these allegations to support the inference that FAM Kevin was treating Endemano
differently from male counterparts based on her sex.
Moreover, FAM Kevin’s alleged modification of Endemano’s work schedule does not
amount to an adverse employment action. To establish an adverse employment action in a Title
VII discrimination claim, an employee “must show a serious and material change in the terms,
conditions, or privileges of employment. Moreover, the employee’s subjective view of the
significance and adversity of the employer’s action is not controlling; the employment action must
be materially adverse as viewed by a reasonable person in the circumstances.” Davis v. Town of
Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). “Although [Title VII] does not require
proof of direct economic consequences in all cases, the asserted impact cannot be speculative and
must at least have a tangible adverse effect on the plaintiff’s employment.” Id. Put simply, “the
protections of Title VII simply do not extend to everything that makes an employee unhappy.” Id.
at 1242. “[A]pplying the adverse action requirement carefully is especially important when the
plaintiff’s claim is predicated on [her] disagreement with [her] employer’s reassignment of job
tasks.” Id. at 1244. Courts have been reluctant to hold that changes in job duties amount to adverse
employment action when unaccompanied by any tangible harm. Id.
Here, FAM Kevin’s modification of Endemano’s work schedule by adding an assignment
cannot be said to be a serious and material change in the terms, conditions, or privileges of her
16
employment. For one, FAM Kevin’s addition of a single extra assignment to Endemano’s
schedule on one occasion cannot be said to be a “serious and material” change. Moreover,
Endenamo cannot sincerely claim that the additional assignment caused her tangible harm; in fact,
the Amended Complaint states that she simply conducted the additional assignment and “forgot
about the incident.” See Doc. 12, ¶ 40. Courts have consistently held that a mere increase in
workload, unaccompanied by tangible harm, does not amount to an adverse employment action.
See Brown v. Lamberti, No. 09-60494-CIV, 2010 WL 4179313, at *10 (S.D. Fla. Oct. 20, 2010)
(finding that the long hours the plaintiff worked during Hurricane Wilma as an emergency
responder fell “squarely into the category of ‘increased work loads’” and were therefore not
adverse employment actions); Ausby v. Florida, 624 F. Supp. 2d 1353, 1364 (M.D. Fla. 2008)
(concluding that an employee’s increased caseload did not amount to an adverse employment
action where the employee failed to show tangible harm); McGuire v. Miami-Dade Cnty., 418 F.
Supp. 2d 1354, 1359 (S.D. Fla. 2006) (finding that the plaintiff did not establish an adverse
employment action where she merely alleged that she had been required to perform job duties that
were excessive). Accordingly, Endemano has failed to adequately allege that she suffered an
adverse employment action with respect to FAM Kevin’s modification of her schedule. Due to
this deficiency, as well as Endemano’s failure to adequately allege that FAM Kevin’s modification
of her schedule caused her to be treated differently from her male colleagues, the Court will grant
the Secretary’s Motion to Dismiss as to the Title VII discrimination claim with respect to the
schedule modification.
As to Zloto’s rejection of Endemano’s travel voucher, Endemano has adequately alleged
that she was treated differently from her male colleague, FAM Richard, because his travel voucher,
which was also missing information, was approved by Zloto while hers was not. Doc. 12 ¶¶ 37–
17
38. The Secretary attempts to argue that Endemano and FAM Richard were not similarly situated
because Endemano redacted information from her voucher while FAM Richard simply failed to
include certain information in his voucher. Doc. 21 at 9. This distinction is not material for
purposes of this analysis. The key point is that Zloto approved FAM Richard’s voucher, which
was missing information, while rejecting Endemano’s voucher, which was also missing
information. Equally unavailing is the Secretary’s argument that Zloto “had spoken” with FAM
Richard about the missing information, and therefore there was not disparate treatment. See id.
The fact that Zloto “spoke” with FAM Richard about the missing information does nothing to
obviate the critical point—that Zloto approved FAM Richard’s voucher while rejecting
Endemano’s.
Notwithstanding this finding, the Court concludes that Endemano has failed to state a claim
for discrimination as to Zloto’s rejection of the voucher because such an action does not constitute
an adverse employment action. The rejection of a voucher for toll expenses cannot be said to be a
serious and material change in the terms, conditions, or privileges of Endemano’s employment.
Courts have repeatedly rejected the argument that an employer’s failure to reimburse expenses
amounts to an adverse employment action. See Fyfe v. City of Fort Wayne, 241 F.3d 597, 602 (7th
Cir. 2001) (holding that an employer’s failure to reimburse $156.89 in travel expenses did not
amount to an adverse employment action); Benningfield v. City of Houston, 157 F.3d 369, 376–77
(5th Cir. 1998) (holding that an employer’s failure to reimburse travel expenses was an
“administrative matter” and not an adverse employment action); Davis v. Carey, 63 F. Supp. 2d
361, 370 (S.D.N.Y. 1999) (holding that a police department’s denial of an officer’s request for
reimbursement of $150 for an undercover drug purchase was “too trivial and inconsequential” to
amount to an adverse employment action). Moreover, Endemano’s assertion that her reputation
18
was “damaged” because ASAC Cook learned about the voucher incident is conclusory, and she
fails to allege any tangible harm. Accordingly, Zloto’s alleged rejection of the voucher does not
amount to an adverse employment action, and the Court will grant the Secretary’s Motion to
Dismiss as to the Title VII discrimination claim with respect to this incident.
B.
Retaliation
Title VII’s anti-retaliation provision makes it unlawful for an employer to discriminate
against an employee “because [s]he has opposed any practice made an unlawful employment
practice by [Title VII], or because [s]he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a);
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1268 (11th Cir. 2010). The protections of
42 U.S.C. § 2000e-3(a), which cover private employers, apply equally to employees of the Federal
Government pursuant to 42 U.S.C. § 2000e-16(a). Wiggins v. Sec’y, Dep’t of Army, 520 F. App’x
799, 800 (11th Cir. 2013) (citing Llampallas v. Mini–Circuits, Lab, Inc., 163 F.3d 1236, 1243
(11th Cir. 1998)).
In its Motion to Dismiss, the Secretary argues that Endemano did not raise the issue of
retaliation in her formal or informal EEO complaints, and that she is therefore barred from bringing
a retaliation claim because she failed to exhaust her administrative remedies. Doc. 21 at 20–21.
Endemano does not dispute that her EEO complaints failed to specifically allege retaliation, but
she maintains that her retaliation claim grew out of her complaints of discrimination and hostile
work environment, thereby permitting her to bring a retaliation claim in this action. Doc. 24 at 18.
With respect to the requirement that a claimant exhaust her administrative remedies, the
Eleventh Circuit has explained:
The purpose of exhaustion is to permit the department the first opportunity to
investigate the alleged discriminatory or retaliatory practices, and a plaintiff’s
judicial complaint is thereby limited by the scope of the investigation that can
19
reasonably be expected to grow out of the administrative charge of discrimination
or retaliation. See Gregory v. Georgia Dep’t of Human Res., 355 F.3d 1277, 1279–
80 (11th Cir. 2004). The proper inquiry is, therefore, whether the plaintiff’s judicial
complaint was like or related to, or grew out of, the administrative allegations. See
id. at 1280. Judicial claims are allowed if they “amplify, clarify, or more clearly
focus” the charges made before the agency, and, given that we are reluctant to allow
procedural technicalities to bar Title VII claims, the scope of the administrative
charges should not be strictly construed. See id. at 1279–80 (quotation omitted).
Basel v. Sec’y of Def., 507 F. App’x 873, 875 (11th Cir. 2013).
Although Endemano’s EEO complaints may not have specified retaliation, the
complained-of conduct in the EEO filings included the June 2009 incident where Zloto issued a
LOC to Endemano for violating the annual leave policy, which she believed was retaliation for
writing an email in which she expressed her dissatisfaction with management. See Doc. 21-2 at 3.
As such, the OCRL’s investigation of her sex discrimination and hostile work environment
complaints could be reasonably expected to uncover evidence of retaliation. Given the strict
construction accorded to procedural bars to Title VII claims, the Court finds that Endemano’s
retaliation claim reasonably grew out of her EEO complaints. See Gregory, 355 F.3d at 1280
(holding that a claimant’s retaliation claim was not administratively barred for failing to
specifically allege retaliation on the EEOC charge where “[a]n EEOC investigation of her race and
sex discrimination complaints leading to her termination would have reasonably uncovered any
evidence of retaliation.”). Notwithstanding this finding, however, the Court does find that
Endemano’s retaliation claim with respect to the June 2009 LOC is time-barred because she did
not consult with an EEO counselor within 45 days of the issuance of the LOC. See supra, Part
III.A.
Moreover, even assuming that Endemano’s EEO complaints could have reasonably
uncovered evidence of retaliation for incidents occurring on or after September 1, 2009, she has
failed to state a claim for retaliation with respect to such incidents. To establish a prima facie case
20
of retaliation, a plaintiff must show that: (1) she engaged in statutorily protected conduct; (2) she
suffered adverse employment action; and (3) there is “some causal relation” between the two
events. Alvarez, 610 F.3d at 1268 (quoting McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir.
2008)). To qualify as “statutorily protected conduct,” a plaintiff’s opposition must be to a “practice
made unlawful by [Title VII.]” Brush v. Sears Holdings Corp., 466 F. App’x 781, 786 (11th Cir.
2012), cert. denied, 133 S. Ct. 981 (U.S. 2013). In the Amended Complaint, there is no allegation
that Endemano expressed her opposition to purported sex discrimination in the workplace at any
time prior to her filing of the EEO complaints. Accordingly, Endemano has failed to state a claim
for retaliation, and the Secretary’s Motion to Dismiss will be granted as to this claim.
C.
Hostile Work Environment
The Supreme Court has held that “[w]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment, Title VII is violated,”
thereby giving rise to a hostile work environment claim. Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993) (internal citations and quotations omitted). Before turning to the merits of Endemano’s
hostile work environment claim, the Court first addresses the Secretary’s argument that under
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and Eleventh Circuit
precedent interpreting Morgan, any acts of discrimination or retaliation occurring before
September 1, 2009 are time-barred and cannot be considered as part of Endemano’s hostile work
environment claim.
In Morgan, the Supreme Court considered “whether, and under what circumstances, a Title
VII plaintiff may file suit on events that fall outside [the timely-filing] period.” 536 U.S. at 105.
The Court separated its analysis into two parts—one for “discrete acts” of discrimination or
retaliation, and the other for hostile work environment claims. See id. at 110–21. The Court
21
observed that “discrete acts” were those such as termination, failure to promote, denial of transfer,
or refusal to hire. Id. at 114. Those acts “are easy to identify,” and each “constitutes a separate
actionable ‘unlawful employment practice.’” Id. The Court reiterated a principle from its prior
holdings, observing that “discrete discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges,” because “each discriminatory act starts a
new clock for filing charges alleging that act.” Id. at 113. The Court noted that untimely acts
could be used “as background evidence in support of a timely claim,” but they could not
themselves form the basis for liability. Id. The Court distinguished discrete acts from hostile work
environment claims, stating that “[h]ostile environment claims are different in kind from discrete
acts” because “[t]heir very nature involves repeated conduct.” Id. at 115. With respect to hostile
work environment claims, the unlawful employment practice does not occur on any particular day,
but rather “over a series of days or perhaps years and, in direct contrast to discrete acts, a single
act of harassment may not be actionable on its own.” Id. Thus, the Court held that “[a] charge
alleging a hostile work environment claim . . . will not be time barred so long as all acts which
constitute the claim are part of the same unlawful employment practice and at least one act falls
within the time period” for filing the charge. Id. at 122. Accordingly, “[a] court’s task is to
determine whether the acts about which an employee complains are part of the same actionable
hostile work environment practice, and if so, whether any act falls within the statutory time
period.” Id.
The Eleventh Circuit has placed great weight on Morgan’s distinction between hostile
work environment claims and discrete acts of discrimination and retaliation. See McCann, 526
F.3d at 1378–79; Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 970 (11th Cir. 2008);
Smithers v. Wynne, 319 F. App’x 755, 756–57 (11th Cir. 2008); Chambless v. Louisiana-Pac.
22
Corp., 481 F.3d 1345, 1349–50 (11th Cir. 2007); Ledbetter v. Goodyear Tire & Rubber Co., Inc.,
421 F.3d 1169, 1178–80 (11th Cir. 2005), aff’d, 550 U.S. 618 (2007).
Discrete acts of
discrimination and retaliation “cannot be brought under a hostile work environment claim that
centers on ‘discriminatory intimidation, ridicule, and insult.’” McCann, 526 F.3d at 1379 (quoting
Morgan, 536 U.S. at 116). Hiring decisions, work assignments, and instances of retaliation
constitute discrete acts that cannot be considered part of a hostile work environment claim. Davis,
516 F.3d at 970. Therefore, “[i]n determining whether claims are timely, courts must distinguish
between allegations which charge discrete acts of discrimination or retaliation from allegations
that charge repeated acts or events centering on discrimination, intimidation, and ridicule.”
Freeman v. City of Riverdale, 330 F. App’x 863, 866 (11th Cir. 2009). However, “[w]here [a
timely] discrete act is sufficiently related to a hostile work environment claim so that it may be
fairly considered part of the same claim, it can form the basis for consideration of untimely, nondiscrete acts that are part of the same claim. The pivotal question is whether the timely discrete
acts are sufficiently related to the hostile work environment claim.” Chambless, 481 F.3d at 1350.
Turning to the allegations in the Amended Complaint, the Court notes that, as explained
previously, Endemano alleges only two timely acts—Zloto’s rejection of Endemano’s travel
voucher and FAM Kevin’s rescheduling of Endemano’s duties, both of which occurred in October
2009. See supra, Part III.A. Under Morgan, the nine untimely acts occurring before September
1, 2009 are time barred unless they can be considered part of the same hostile work environment
claim as one of the two timely acts. See Morgan, 536 U.S. at 122.
The Secretary argues that, for one, FAM Kevin’s rescheduling of Endemano’s duties
cannot be considered part of an actionable hostile work environment claim because there is no
allegation, nor can it be reasonably inferred, that the rescheduling was due to Endemano’s sex.
23
Doc. 21 at 13. The Secretary is correct. “For an act to be considered part of an actionable hostile
work environment claim, it must be of ‘a sexual or gender-related nature.’”
Menefee v.
Montgomery Cnty. Bd. of Educ., 137 F. App’x 232, 233 (11th Cir. 2005) (quoting Gupta v. Fla.
Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000)). The Court has already found that the
Amended Complaint fails to include any allegation from which the Court can reasonably infer that
FAM Kevin’s modification of Endemano’s schedule was due to her sex. See supra, Part III.A.
Accordingly, this act cannot be considered part of an actionable hostile work environment claim,
and cannot be used to “save” the untimely acts. Menefee, 137 F. App’x at 233.
This leaves Zloto’s rejection of Endemano’s travel voucher as the only timely act that could
potentially “save” the nine untimely acts to form a hostile work environment claim. The Secretary
argues that Zloto’s rejection of the voucher cannot “save” three of the untimely acts because they
are not sufficiently related to the voucher incident. Doc. 21 at 13–14. These three untimely acts
are: (1) Zloto’s question to a male FAM, “Why? Do you want to fuck her?”, when referring to
Endemano; (2) Zloto asking Endemano if she had a “hot date” the night before; and (3) Zloto
asking Endemano, “Was someone nibbling on your ear last night?” Id. The Court, however, finds
that these three sexually-charged comments are sufficiently related to Zloto’s rejection of
Endemano’s travel voucher because, viewing the allegations in the light most favorable to
Endemano, Zloto’s refusal to authorize reimbursement is the same type of “discriminatory
intimidation, ridicule, and insult” that characterized the sexually-charged comments. Chambless,
481 F.3d at 1350. Accordingly, those three untimely acts can be “saved” by the timely travel
voucher incident and asserted as part of a single hostile work environment claim.
As to the remaining six untimely acts, the Secretary seeks to exclude them on the basis that
they are discrete acts that were required to be timely challenged as separate discrimination or
24
retaliation claims, and that they are not sufficiently related to Zloto’s rejection of the travel
voucher. Doc. 21 at 14–16. The six untimely acts are: (1) Zloto screaming at Endemano, “How
can you be so dumb as to call Greg Mertz?” in response to her calling out of work; (2) Zloto yelling
at Endemano regarding a memorandum she wrote about a flight attendant’s failure to follow
policy, and only stopping when a male FAM corroborated her story; (3) Zloto screaming at
Endemano, “DO YOU HAVE A BRAIN?” and coming into physical contact with her; (4) Zloto
continuing to ask Endemano for a reason why she was taking sick leave after she complained about
it, even though Endemano felt uncomfortable disclosing female medical issues; (5) Zloto requiring
Endemano to submit documentation for annual leave and overtime justification when FAM Scott
was not required to do so; and (6) Zloto screaming at Endemano and coming into contact with her
when she complained that the LOC was retaliation. Id. The Court finds that each of the foregoing
acts are appropriately considered to be part of a hostile work environment claim rather than discrete
acts, because they center on intimidation, ridicule, and insult. See McCann, 526 F.3d at 1379. The
six acts are not hiring decisions, work assignments, or instances of retaliation, each of which are
deemed to be discrete acts. See Davis, 516 F.3d at 970. Moreover, the acts are sufficiently related
to Zloto’s rejection of the travel voucher because they are part of the same pattern of intimidation,
ridicule, and insult. Chambless, 481 F.3d at 1350. Therefore, the six untimely acts can be “saved”
by the timely travel voucher incident and asserted as part of a single hostile work environment
claim.
The Secretary also attempts to exclude from Endemano’s hostile work environment claim
her allegations that other women suffered from Zloto’s abusive conduct. Doc. 21 at 14 n.7. The
Secretary acknowledges that an employer’s conduct towards other employees can be used in a
hostile work environment claim. Id. (citing Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d
25
798, 811 (11th Cir. 2010)). Nonetheless, the Secretary asserts that Endemano failed to exhaust her
administrative remedies with respect to Zloto’s abusive conduct towards other women because
Endemano did not include those incidents in her EEO complaints. Id. The Court has only been
provided with the OCRL’s response rather than the actual EEO complaints. Therefore, at this
stage of the litigation, the Court has insufficient information to exclude the incidents. The
Secretary also attempts to exclude the other women’s incidents by arguing that Endemano fails to
allege that she was aware of the incidents while the hostile work environment was ongoing. Doc.
21 at 14 n.7. However, construing the Amended Complaint in the light most favorable to
Endemano, the Court finds that it can be reasonably inferred that she knew about the incidents
during the hostile work environment period. Accordingly, Zloto’s abusive conduct towards other
women can be considered as part of Endemano’s hostile work environment claim.
Finally, the Secretary argues that even if the untimely acts can be considered part of
Endemano’s hostile work environment claim, the Amended Complaint fails to state a claim for
hostile work environment because the alleged harassment was not sufficiently severe and
pervasive. Id. at 16–19. To plead a claim for hostile work environment, the plaintiff must allege
that: (1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the
harassment was based on her membership in the protected group; (4) it was severe or pervasive
enough to alter the terms and conditions of employment and create a hostile or abusive working
environment; and (5) the employer is responsible for that environment under a theory of either
vicarious or direct liability. Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010)
(emphasis added). Notably, however, “a Title VII complaint need not allege facts sufficient to
make out a classic . . . prima facie case,” although “it must provide enough factual matter (taken
26
as true) to suggest” intentional discrimination. Davis, 516 F.3d at 974 (internal citations and
quotations omitted).
The Court finds that Endemano has alleged enough factual matter which, taken as true,
states a plausible claim for hostile work environment. The Amended Complaint alleges that over
a roughly two-year period, Zloto made three sexually-charged comments to or regarding
Endemano, that he told an airline passenger that she needed to be slapped, and that he told another
female FAM where the mall was located and encouraged her to go shopping while the men talked
business. When Endemano suggested, in a room full of men, that she would file an EEO complaint
regarding one of the sexually-charged comments, Zloto answered, “Go ahead, file it—you’re not
the first,” thereby leaving the impression that sexual harassment was tolerated and pervasive in the
workplace. In addition, the Amended Complaint alleges that Zloto screamed at Endemano on a
number of occasions, including two incidents where he came into contact with her. Furthermore,
the allegations reveal that Zloto’s requirements of Endemano were often different from those he
imposed on male FAMs, raising the inference that he was attempting to bully her due to her sex.
Taken together, and interpreted in the light most favorable to Endemano, these allegations
sufficiently claim that the harassment was severe and pervasive.6 Accordingly, the Secretary’s
Motion to Dismiss will be denied as to the hostile work environment claim.
Accordingly, it is hereby ORDERED:
1.
The Secretary’s Motion to Dismiss (Doc. 21) is GRANTED in part and DENIED
in part:
6
For these reasons, the Court also rejects the Secretary’s arguments that Endemano does not
sufficiently allege that the abusive conduct was related to her sex or that the conduct interfered
with her work performance. See Doc. 21 at 18, 19.
27
a.
Counts I and III are DISMISSED with prejudice to the extent they seek to
impose liability for actions occurring before September 1, 2009, because
those actions are time-barred.
b.
Counts I and III are DISMISSED without prejudice to the extent they seek
to impose liability for actions occurring on or after September 1, 2009,
because Endemano failed to state a claim upon which relief can be granted
as to such actions.
c.
2.
In all other respects, the Secretary’s Motion to Dismiss is DENIED.
To the extent that Endemano wishes to re-plead claims dismissed without prejudice,
she is granted leave to file a Second Amended Complaint within TWENTY-ONE
(21) days of the date of this Order, which cures the deficiencies noted in this Order.
Otherwise, this action will proceed on the Amended Complaint.
DONE and ORDERED in Orlando, Florida on March 19, 2014.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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