Pedrioli v. Barry University, Inc.

Filing 48

ORDER granting in part and denying in part 41 Defendant Barry University, Inc.'s Motion to Dismiss the Amended Complaint or, in the Alternative, for a More Definite Statement. The hostile work environment claims and retaliation claims are DISMISSED WITHOUT PREJUDICE. The Motion is otherwise denied. Defendant has fourteen (14) days rom the date of this Order to answer the remainder of Plaintiff's Amended Complaint. Signed by Judge Paul G. Byron on 5/15/2018. (JRJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

CARLO PEDRIOLI,
Plaintiff,
v.

Case No: 6:17-cv-577-Orl-40GJK

BARRY UNIVERSITY, INC.,
Defendant.
/
ORDER
This cause is before the Court on Defendant Barry University, Inc.’s Motion to
Dismiss the Amended Complaint or, in the Alternative, for a More Definite Statement
(Doc. 41), filed March 9, 2018. Plaintiff responded in opposition on March 26, 2018. (Doc.
46). Upon consideration, Defendant’s motion is due to be granted in part and denied in
part.
I.

BACKGROUND 1
In this employment discrimination case, Plaintiff alleges that he was unlawfully

terminated from his professorship at Barry School of Law (“Law School”). Plaintiff claims
that in the female dominated environment at the Law School, his female supervisor, Dean
Leticia Diaz (“Dean Diaz”): (1) said she preferred working with women; (2) often
commented that she did not want men in certain departments and positions; and (3)
subjected Plaintiff to more rigorous review than his female counterparts. (Doc. 38, ¶¶ 9–

1

This account of the facts is taken from Plaintiff’s Verified Complaint (Doc. 1). The Court
accepts these factual allegations as true when considering motions to dismiss. See
Williams v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).

14 (“Amended Complaint”)). After receiving a single negative performance review, Dean
Diaz concluded that Plaintiff was “not a good fit” and terminated him. (Id. at ¶¶ 18–19).
Citing his superlative employment record and contributions to the Law School, Plaintiff
maintains that the negative performance review and the attendant reasoning were
proffered to conceal Dean Diaz’s animus and the true basis for Plaintiff’s dismissal—
because he is a male. (Id. ¶¶ 20–28).
Following his termination, Plaintiff initiated this action alleging that Defendant
terminated him on the basis of his gender in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e (“Title VII”), and the Florida Civil Rights Act (“FCRA”). (See Doc.
1 (“Initial Complaint”)). In his Initial Complaint, Plaintiff asserted several theories of
liability in each count, including disparate treatment, hostile work environment and
retaliatory discharge. (Id.). Finding it deficient, the Court dismissed the initial complaint
and granted Plaintiff leave to file an amended complaint. (Doc. 35). Plaintiff did so. In his
Amended Complaint, he again asserts multiple theories of liability in two counts: Count I
alleging Title VII violations; and Count II advancing FCRA violations. (See Doc. 38). In
each Count, Plaintiff alleges that he was “subjected to discrimination, unequal treatment,
and an offensive and hostile work environment.” (Id. ¶¶ 34, 36).
Defendant moves to dismiss the Amended Complaint, arguing that the Amended
Complaint, like its predecessor, fails to state a claim for hostile work environment and
retaliation. 2 (Doc. 41). Plaintiff opposes (Doc. 46), and the matter is now ripe.

2

The Amended Complaint also alleges gender discrimination under a disparate
treatment theory. Defendant, however, has not moved to dismiss Plaintiff’s disparate
treatment claim.

2

II.

STANDARD OF REVIEW
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)(1). Thus, in order to survive a motion
to dismiss made pursuant to Rule 12(b)(6), the complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible on its face 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.
Though a complaint need not contain detailed factual allegations, mere legal
conclusions or recitation of the elements of a claim are not enough. Twombly, 550 U.S.
at 555. Moreover, courts are “not bound to accept as true a legal conclusion couched as
a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Courts must also view the complaint in the light most
favorable to the plaintiff and must resolve any doubts as to the sufficiency of the complaint
in the plaintiff’s favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994) (per
curiam). In sum, courts must (1) ignore conclusory allegations, bald legal assertions, and
formulaic recitations of the elements of a claim; (2) accept well-pled factual allegations as
true; and (3) view well-pled allegations in the light most favorable to the plaintiff. Iqbal,
556 U.S. at 679.

3

III.

DISCUSSION
Defendant moves to dismiss Plaintiff’s hostile work environment and retaliation

claims. (Doc. 41, pp. 6–11). Further, Defendant moves to dismiss the Amended
Complaint for improperly combining multiple claims into each count. (Id. at pp. 5–6). In
the alternative, Defendant moves for a more definite statement. (Id. at pp. 11–12).
A.

Hostile Work Environment Claims

Plaintiff bases his Title VII and FCRA claims, in part, on a hostile work environment
theory. 3 Under this theory, a plaintiff “must allege, and ultimately prove, discriminatory
behavior ‘sufficiently severe to alter the conditions of his employment.’” Short v.
Immokalee Water & Sewer Dist., 165 F. Supp. 3d 1129, 1141 (M.D. Fla. 2016) (alteration
accepted) (quoting Pa. State Police v. Suders, 542 U.S. 129, 133 (2004)). Plaintiff must
allege that: (1) he belongs to a protected group; (2) he has been subject to unwelcome
harassment; (3) the harassment was based on his membership in the protected group;
(4) the harassment was sufficiently severe or pervasive to alter the terms and conditions
of employment and create a discriminatorily abusive working environment; and (5) the
employer is responsible for the harassment under either vicarious or direct liability. Id. In
regards to the “severe or pervasive” element, the Eleventh Circuit has stated:
To be actionable, this behavior must result in both an environment that
a reasonable person would find hostile or abusive and an environment that
the victim subjectively perceives to be abusive. In evaluating the objective
severity of the alleged hostile work environment, we consider (1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the
conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the
3

Because the FCRA was patterned after Title VII, Florida courts have applied decisions
relating to Title VII when analyzing FCRA claims. Harper v. Blockbuster Entm’t Corp.,
139 F.3d 1385, 1387 (11th Cir. 1998). The Court’s analysis of Plaintiff’s Title VII claim
thus applies equally to his FCRA claim.

4

employee's job performance. But Title VII is not a general civility code;
ordinary tribulations of the workplace, such as sporadic use of abusive
language, gender-related jokes, and occasional teasing cannot form the
basis of a claim for actionable harassment or hostile work environment.
Instead, conduct must be extreme to amount to a change in terms and
conditions of employment. Title VII is not a shield against harsh treatment
in the workplace; personal animosity is not the equivalent of [gender]
discrimination.
Corbett v. Beseler, 635 F. App’x 809, 816 (11th Cir. 2015) (internal quotation marks and
citations omitted).
Defendant contends that Plaintiff has failed to plead sufficient facts to support a
hostile work environment claim. (Doc. 41, pp. 6–11). The Court agrees.
As before, the Amended Complaint alleges that Dean Diaz “demonstrated
discriminatory animus towards men.” (Doc. 1, ¶ 11; Doc. 38, ¶ 11). Plaintiff also alleges
that: (1) Dean Diaz expressed a preference for working with women; (2) Dean Diaz often
commented that she did not want men in various departments and positions in the [Barry]
School of Law; (3) Dean Diaz subjected Plaintiff to more rigorous review than his female
colleagues; and (4) Plaintiff was subjected to unwanted gender-based conduct. (Doc. 38,
¶¶ 12–15).
More is not always better. Nothing in these additional allegations inches the
Amended Complaint into the realm of plausibly stating a claim for hostile work
environment. See Alhallaq v. Radha Soami Trading, LLC, 484 F. App’x 293 (11th Cir.
2012) (stating the plaintiff “cannot make actionable ordinary workplace tribulations by
turning a ‘personal feud’ between herself and a coworker into a Title VII religiously hostile
work environment claim”); Gonzalez v. Kellogg Co., No. 8:15-cv-32, 2015 WL 1538151,
at *2–3 (M.D. Fla. Apr. 7, 2015); Thompson v. City of Miami Beach, 990 F. Supp. 2d 1335,
1340–41 (S.D. Fla. 2014) (dismissing hostile work environment race discrimination

5

claim—founded upon three racial slurs and numerous other offensive though non-racial
comments—for failure to state a claim). Indeed, Plaintiff’s allegations amount to little more
than “conclusion[s] couched as [] factual allegation[s]. See Papasan, 478 U.S. at 286.
After ignoring these conclusions, it is obvious that Plaintiff has failed to allege the requisite
“extreme” harassing conduct to sustain his hostile work environment claims. They are
thus due to be dismissed.
Plaintiff requested leave to amend in the event the Court finds the Amended
Complaint fails to state a claim for hostile work environment. This request is denied as
procedurally improper. “Where a request for leave to file an amended complaint simply is
imbedded within an opposition memorandum, the issue has not been raised properly.”
Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (quoting Posner v. Essex Ins.
Co., 178 F.3d 1209, 1222 (11th Cir. 1999)). Plaintiff also failed to comply with Federal
Rule of Civil Procedure 7(b) by neglecting to “set forth [either] the substance of the
proposed amendment or attach a copy of the proposed amendment.” See Long v. Satz,
181 F.3d 1275, 1279 (11th Cir. 1999). Therefore, to the extent Plaintiff still seeks to pursue
a hostile work environment claim, he must file a separate motion seeking leave to amend
in compliance with this Court’s Local Rules and Federal Rules of Civil Procedure.
It is worth mentioning that Plaintiff has now twice failed to come close to alleging
plausible hostile work environment claims. Both times, Plaintiff relied on bald and
conclusory allegations that he was subjected to workplace discrimination. The Court
strongly suspects that further amendment would be futile, and any such motion seeking
leave would likely be denied. See Mann v. Palmer, 713 F.3d 1306, 1316 (11th Cir. 2013).

6

B.

Retaliation Claims

Defendant also moves to dismiss Plaintiff’s retaliation claims, to the extent the
Amended Complaint pleads them. (Doc. 41, pp. 9–11). The Initial Complaint asserted
retaliation claims under Title VII and the FCRA, which were dismissed by this Court’s
Order for failure to state a claim. (Docs. 1, 35). The Amended Complaint makes only a
single fleeting reference to retaliation: “Plaintiff has suffered loss of his job, pay and
benefits, and has suffered stress, humiliation and great emotional distress due to these
discriminatory and retaliatory actions.” (Doc. 38, ¶ 33 (emphasis added)). In response,
Plaintiff “concedes that the Amended Complaint fails to properly plead the retaliation
claims which somehow disappeared from the Amended Complaint, and seeks leave to
amend.” (Doc. 46, pp. 4–5). To the extent the Amended Complaint brings a claim for
retaliation, it is dismissed. With respect to Plaintiff’s seeking leave, his request is flawed.
This request for leave to amend is also procedurally improper. See Rosenberg,
554 F.3d at 967; Long, 181 F.3d at 1279. Taking Plaintiff’s contention that the retaliation
allegations “somehow disappeared from the Amended Complaint” as true, he will
apparently seek to amend. Again, to do so, Plaintiff must file a separate motion seeking
leave to amend. And again, the Court is deeply skeptical that Plaintiff could plead a
plausible retaliation claim in light of the total absence of factual allegations in either the
Initial Complaint or the Amended Complaint establishing that Plaintiff’s termination was
retaliation for statutorily protected activity. 4

4

To state a retaliation claim under Title VII, a plaintiff must allege that: “(1) []he engaged
in statutorily protected expression; (2) []he suffered a materially adverse employment
action; and (3) h[is] employer’s retaliatory motive was the ‘but for’ cause of the adverse
employment action.” Jean Pierre v. Park Hotels & Resort, Inc., No. 17-cv-21955, 2017
WL 4408972, at *3 (S.D. Fla. Oct. 4, 2017). With regard to the “statutorily protected

7

C.

Remaining Dismissal Arguments

Defendant also argues that the Amended Complaint should be dismissed because
it improperly comingles multiple claims in each count. (Doc. 41). True enough, Plaintiff, in
drafting the Amended Complaint, ignored the Court’s explicit directions to set forth each
distinct claim to relief in separate counts (Doc. 35, p. 10). (Doc. 38, ¶¶ 34, 36). However,
Defendant’s argument is now moot given the Court’s analysis that two out of three
theories were insufficiently pled—leaving only a disparate treatment claim under both Title
VII and the FCRA.
D.

Motion for More Definite Statement

Finally, Defendant moves for a more definite statement of all counts. (Doc. 41, pp.
11–12). Federal Rule of Civil Procedure 12(e) states that a party “may move for a more
definite statement of a pleading to which a responsive pleading is allowed but which is so
vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ.
P. 12(e). A more definite statement motion “is appropriate if the pleading is so vague or
ambiguous that the opposing party cannot respond, even with a simple denial, in good
faith, without prejudice to [itself]. The motion is intended to provide a remedy for an
unintelligible pleading, rather than a vehicle for obtaining greater detail.” Ramirez v. FBI,
No. 8:10–cv–1819–T–23TBM, 2010 WL 5162024, at *2 (M.D. Fla. Dec. 14, 2010) (internal
quotation marks and citation omitted) (first quoting Sun Co., (R & M) v. Badger Design &
Constructors, Inc., 939 F. Supp. 365, 368 (E.D. Pa. 1996); then quoting Aventura Cable

expression” element, Plaintiff must allege that he “voiced opposition to an unlawful
employment practice or participated in any manner in an investigation, proceeding, or
hearing, concerning an unlawful employment practice.” Id. (citing 42 U.S.C. § 2000e3(a)). The same analysis applies to retaliation claims brought under the FCRA.
Howard v. Walgreen Co., 605 F.3d 1239, 1244 n.4 (11th Cir. 2010).

8

Corp. v. Rifkin/Narragansett S. Fla. CATV Ltd., 941 F. Supp. 1189, 1195 (S.D. Fla. 1996)).
As for the hostile work environment and retaliation claims, this request is now moot in
light of the dismissal of these claims. As for the disparate treatment claim, the Amended
Complaint is not an “unintelligible pleading,” and a more definite statement is thus not
warranted.
IV.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED that

Defendant Barry University, Inc.’s Motion to Dismiss the Amended Complaint or, in the
Alternative, for a More Definite Statement (Doc. 41) is GRANTED IN PART and DENIED
IN PART. The hostile work environment claims and retaliation claims are DISMISSED
WITHOUT PREJUDICE. The Motion is otherwise denied. Defendant has fourteen (14)
days from the date of this Order to answer the remainder of Plaintiff’s Amended
Complaint.
DONE AND ORDERED in Orlando, Florida on May 15, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

9