Hite v. Hill Dermaceuticals, Inc.

Filing 9

ORDER denying 5 Defendant's Partial Motion to Dismiss the Complaint. Signed by Judge Virginia M. Hernandez Covington on 1/8/2013. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOZETTE HITE,
Plaintiff,
v.

Case No. 8:12-cv-2277-T-33AEP

HILL DERMACEUTICALS, INC.,
Defendant.
_______________________________/
ORDER
This

cause

comes

before

the

Court

pursuant

to

Defendant’s Partial Motion to Dismiss the Complaint (Doc. #
5), filed on November 27, 2012.

Plaintiff filed a response

in opposition to the motion (Doc. # 8) on December 22,
2012.
I.

For the reasons that follow, the motion is denied.

Background
In 2003, Plaintiff Jozette Hite commenced employment

as

a

sales

representative

Dermaceuticals, Inc.

with

Defendant

(Doc. # 1 at ¶ 8; Doc. # 5 at 1).

March of 2008, Hite gave birth to her first son.
10.

Some

time

thereafter,

Hite’s

supervisor

Hill
In

Id. at ¶
“expressed

doubts that a woman such as [Hite] could care for children
and handle a full-time career.”

Id. at ¶ 11.

Hite claims

that she “was encouraged to consider a different career

path by her supervisor based on her gender and role as a
caregiver to her son.”

Id. at ¶ 12.

Hite alleges that her supervisor learned in October of
2009 “from other female employees” that Hite was pregnant
again.

Id.

at

¶

14.

Hite’s

supervisor

allegedly

questioned Hite “to ascertain if [Hite] was pregnant and,
if so, whether it was planned.”

Id. at ¶ 15.

Hite claims

that she “was initially reluctant to confirm that she was
pregnant with her second child based on how she was treated
after her first child was born.”

Id. at ¶ 16.

Hite gave birth to her second child in March of 2010,
after

which

Hite

“wanted

leave.”

Id.

at

¶¶

supervisor

allegedly

to

take

17-18.
pressured

8

weeks

While
[Hite]

on
to

of

maternity

leave,
return

Hite’s
to

work

earlier than anticipated, stating to [Hite] that her job
was on the line.”

Id. at ¶ 19.

As a result of this

alleged pressure, Hite returned to work after six weeks of
leave.

Id. at ¶ 20.

When Hite returned to work, she began to “take breaks
to express milk.”

Id. at ¶ 22.

Because of these breaks,

Hite claims that “her loyalty was questioned without any
justifiable basis other than on [Hite’s] gender and role as
a

caregiver

for

her

children.”
2

Id.

Shortly

before

Defendant discharged Hite in November of 2010, Hite was
allegedly
milk.”

“prohibited

from

taking

breaks

to

pump

breast

Id. at ¶ 23.

Despite

receiving

a

positive

evaluation

in

May

of

2010, Hite “was informed [in October of 2010 that] her
sales numbers were ‘low.’”
4,

2010,

Id. at ¶¶ 21, 25.

Defendant——allegedly

unhappy

On November
with

Hite’s

performance——placed Hite on a performance improvement plan.
Id. at ¶ 26.

On November 11, 2010, Hite was terminated.

Id. at ¶ 27.
On October 5, 2012, Hite filed the instant action,
alleging gender discrimination in violation of Title VII,
42 U.S.C. § 2000e, et seq., and the Florida Civil Rights
Act

(FCRA),

Fla.

Stat.

§

760.01,

et

seq.

(Count

I);

pregnancy discrimination in violation of Title VII and the
FCRA (Count II); and violations of the Family and Medical
Leave Act (FMLA), 29 U.S.C. § 2601, et seq. (Count III).
On November 27, 2012, Defendant filed a partial motion to
dismiss, arguing that Count III, Hite’s alleged violations
of the FMLA, should be dismissed with prejudice as untimely
filed.
II.

(Doc. # 5).

Legal Standard
In

reviewing

a

motion

to
3

dismiss,

a

trial

court

accepts as true all factual allegations in the complaint
and construes the facts in the light most favorable to the
plaintiff.

Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004).

However, 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).

In Bell Atlantic Corp. v. Twombly, the Supreme Court
articulated

the

standard

by

which

claims

should

be

evaluated on a motion to dismiss:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough
to raise a right to relief above the speculative
level.
550 U.S. 544, 555 (2007) (internal citations omitted).
In

accordance

Procedure
accepted

8(a)
as

with

calls

true,

to

Twombly,
“for

sufficient

‘state

plausible on its face.’”

Federal

a

claim

to

Rule
factual
relief

for

relief

must

Civil

matter,
that

is

Ashcroft v. Iqbal, 556 U.S. 662,

663 (2009) (quoting Twombly, 550 U.S. at 570).
claim

of

include

“factual

A plausible

content

[that]

allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
4

Id.

III. Discussion
The FMLA provides, in relevant part:
(1)

Exercise of rights

It shall be unlawful for any employer to
interfere with, restrain, or deny the exercise of
or the attempt to exercise, any right provided
under this subchapter.
(2)

Discrimination

It shall be unlawful for any employer to
discharge or in any other manner discriminate
against any individual for opposing any practice
made unlawful by this subchapter.
29 U.S.C. § 2615(a)(1)-(2).

Generally, claims based on

violations of the FMLA “may be brought . . . not later than
2 years after the date of the last event constituting the
alleged violation for which the action is brought.”
U.S.C. § 2617(c)(1).
is

extended

to

This two-year statute of limitations

three

willful violation.”

29

years

for

claims

brought

“for

a

Id. § 2617(c)(2).

Defendant argues in its motion to dismiss that Hite’s
FMLA claims are untimely, and thus that the Court should
dismiss

Count

III

with

prejudice.

(Doc.

#

5

at

3).

Specifically, Defendant argues that, because Hite does not
attempt to allege that Defendant’s violation of the FMLA
was willful, the two-year limitations period applies, yet
Hite alleges several instances of discriminatory conduct
5

that occurred more than two years before Hite filed the
instant Complaint.

Id. at 4-5.

The Court agrees that Hite has not attempted to allege
that Defendant’s violations were willful; Hite’s Complaint
is devoid of any allegation that Defendant “knew or showed
reckless disregard for the matter of whether its conduct
was prohibited by the statute.”

See Majors v. Morgan Tire

& Auto, Inc., No. CV104-047, 2005 WL 2709634, at *11 (S.D.
Ga. Oct. 21, 2005) (citing McLaughlin v. Richland Shoe Co.,
486 U.S. 128, 133 (1988) and reasoning that, since “[t]he
term ‘willful’ is not specifically defined in the FMLA, and
it appears that neither the United States Supreme Court nor
the Eleventh Circuit has defined it with respect to the
FMLA,” the FLSA standard for willfulness applies to FMLA
claims as well); Scheibel v. Huckleberry, Sibley & Harvey
Ins.

&

Bonds,

Inc.,

No.

6:09-cv-1249-Orl-28GJK,

4627910, at *1 (M.D. Fla. Dec. 2, 2009).

2009

WL

Furthermore, in

her response to Defendant’s motion to dismiss, Hite did not
dispute

the

lack

of

any

allegation

in

the

Complaint

pertaining to Defendant’s willfulness or otherwise indicate
that anything but the two-year limitations period should
apply.

Therefore,

the

Court

6

will

apply

the

two-year

limitations

period

in

evaluating

the

instant

motion

to

dismiss.
To

support

Defendant

refers

its
to

statute-of-limitations
the

incidents

argument,

alleged

in

Hite’s

Complaint that purportedly occurred before October 5, 2010—
—exactly two years before Hite filed this action.

Although

Hite’s Complaint indicates that some of Defendant’s alleged
actions, including pressuring Hite to return to work early
during her maternity leave (Doc. # 1 at ¶¶ 19-20), occurred
before October 5, 2010, Hite maintains that her termination
date falls within the two-year limitations period, and thus
that her FMLA claim should survive the motion to dismiss.
(Doc. # 8 at 1).

The Court agrees.

“Statutes of limitations serve important purposes in
promoting the fair administration of justice.”
Garcia, 434 F.3d 1254, 1260 (11th Cir. 2006);

Arce v.
see

also

Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965)
(“Statutes of limitations are primarily designed to assure
fairness to defendants.
preventing

surprises

Such statutes promote justice by

through

the

revival

of

claims

that

have been allowed to slumber until evidence has been lost,
memories

have

faded,

and

witnesses

have

(internal quotation and citation omitted).
7

disappeared.”)
Accordingly,

Hite’s opportunity to state a claim for any violation of
the

FMLA

based

entirely

on

independent

events

occurring

before October 5, 2010, has expired.
However, accepting as true all factual allegations in
the Complaint and construing the facts in the light most
favorable to Hite, the Court concludes at this juncture
that

the

FMLA’s

“last

statute

event”
of

for

purposes

limitations

November 11, 2010.

was

of

interpreting

Hite’s

(Doc. # 1 at ¶ 39).

the

termination

on

While the Court

acknowledges Defendant’s argument that “Plaintiff does not
allege

that

her

termination

was

related

to

conduct

protected by the FMLA” (Doc. # 5 at 5), a more in-depth
inquiry

relating

to

the

causal

link

between

Hite’s

termination and her protected activity under the FMLA is
reserved

for

the

summary

judgment

stage,

and

would

be

inappropriate in evaluating the present motion to dismiss.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant’s Partial Motion to Dismiss the Complaint
(Doc. # 5) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
8th day of January, 2013.

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Copies: All Counsel of Record.

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