HERMAN v. EARLY EDUCATION AND CARE INC
ORDER DENYING MOTION TO DISMISS. The motion, ECF No. 10 , is DENIED. In so ruling, this Court cautions the parties. Discovery should have already commenced in earnest. The filing of motions such as this is not good cause to extend discovery deadlines. Signed by JUDGE MARK E WALKER on 7/14/2015. (jem)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
MICHELLE DOBBS HERMAN,
Case No. 5:15cv115-MW/GRJ
EARLY EDUCATION AND
ORDER DENYING MOTION TO DISMISS
Pending before the Court are Defendant’s Motion to Dismiss Amended
Complaint, ECF No. 10, and Plaintiff’s Memorandum in Opposition to Motion to
Dismiss Amended Complaint, ECF No. 13. After considering the matter without
hearing, the motion is DENIED. The motion is not well taken.
STANRDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) requires pleadings to contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.”
When deciding a motion to dismiss, courts must “accept[ ] the allegations in the
complaint as true and constru[e] them in the light most favorable to the plaintiff.”
McCone v. Pitney Bowes, Inc., 582 F. App’x 798, 799 (11th Cir. 2014) (quoting
Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir.
2004)). To survive dismissal, a complaint’s “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). It must also 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) (internal quotations omitted). “A claim is facially plausible
when the court can draw the reasonable inference that the defendant is liable for
the misconduct alleged.” McCone, 582 F. App’x at 799–800 (quoting Iqbal, 556
U.S. at 662) (internal quotation marks omitted).
Michelle Herman, a white female, was employed as a bus driver and support
teacher by Early Education and Care, Inc. ECF No. 6 at 2. While employed, a
black female employee, Danita Carroll, falsely accused Herman of using the “N”
word. Id. Herman reported the false allegations to her then-supervisor William
Johnson, a black male, but no action was taken. Id.
After Johnson retired, Carroll became Herman’s new supervisor. Id. Carroll
allegedly used her new position to discriminate and retaliate against Herman for
her reports about Carroll’s previous false accusations to Johnson. Id. In support of
this contention, Herman cites to a variety of instances in which she was
discriminated and retaliated against. She specifically alleges that Carroll reassigned
Herman’s route to another less experienced, black employee, Kimberly; failed to
discipline Kimberly after she was involved in an accident with students on the bus;
permitted Kimberly to take her son to school on the bus while she was driving but
denied Herman permission to do the same with her stepdaughter; allowed
Kimberly and other black employees to take care of personal matters while on the
clock but denied this privilege to Herman; and allowed Kimberly to arrive late to
work but constantly scrutinized Herman about arriving on time and did not permit
Herman to be late. Id. at 3.
Herman reported Carroll’s “discrimination and retaliation” to Carroll’s
supervisors, Janice Flowers and Pam Fleege, maintaining that the actions were a
result of discrimination and that the action was taken against her because her
replacement, Kimberly, is black. Id. The supervisors informed Herman that if she
continued to make trouble she would be fired. Id.
Herman was later terminated based on a “contrived allegation” on July 1,
2014, less than two months after she reported the discrimination. She was soon
after replaced by a black male. Id. at 4.
This employment discrimination claim arises under Chapter 760, Florida
Statutes §§ 760.01–760.11 (“FCRA”), 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981a.1 Plaintiff Michelle Herman alleges race discrimination and retaliation
against Defendant Early Education and Care, Inc. ECF No. 6. Early Education has
moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that
Herman has failed to state a viable claim upon which relief can be granted. ECF
A. Disparate Treatment Race Discrimination
Early Education first argues that Herman’s Amended Complaint does not
state a viable claim for disparate treatment race discrimination. ECF No. 10 at 6.
Specifically, it argues that Herman’s discrimination claim should be dismissed
because “none of the actions cited . . . would rise to the level of an adverse
employment action.” Id.
In order to allege a prima facie case of race or gender discrimination, 2
Herman must allege that: (1) she belongs to a protected class; (2) she was subject
When interpreting discrimination claims under Title VII, Section 1981, and the FCRA, courts
will apply the same analytical framework. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998) (courts comparing Title VII to Section 1981 discrimination claims);
Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (comparing
Title VII to FCRA).
However, in the employment discrimination context, neither Iqbal nor Twombly, nor the
Federal Rules of Civil Procedure, require a complaint to allege facts establishing each element of
a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L.Ed.2d 668 (1973), to survive dismissal. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508,
122 S. Ct. 992, 152 L.Ed.2d 1 (2002) (holding that a complaint need not contain “specific facts
establishing a prima facie case of discrimination under the framework set forth by ... McDonnell
Douglas”); see also McCone, 582 F. App’x at 801 n. 4 (acknowledging that “Twombly
effectively overruled Swierkiewicz when it rejected the old standard for dismissal” but that “this
to an adverse employment action; (3) her employer treated similarly situated
employees more favorably; and (4) she was qualified to do the job. Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004); Samuels v. University of
South Alabama, 153 Fed. App’x. 612 (11th Cir. 2005). An adverse employment
action is one that “alters the employee’s compensation, terms, conditions, or
privileges of employment deprives him or her of employment opportunities, or
adversely affects his or her status as an employee.” Cotton v. Cracker Barrel Old
Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. 2006).
Here, the Amended Complaint contains sufficient facts to place Early
Education on notice of the alleged discrimination. The Amended Complaint alleges
that Herman was terminated from her position on July 1, 2014 as a result of racial
discrimination. See EFC No. 6 at 5 (“The events set forth herein led, at least in
part, to adverse action against Plaintiff including without limitation her
termination.”). Termination undisputedly satisfies the adverse employment event
requirement, 3 and the Amended Complaint alleges sufficient evidence of
discrimination to plausibly show that the termination was motivated by
discriminatory animus. Early Education’s argument that the “Amended Complaint
had no impact on Swierkiewicz’s statement that a plaintiff is not required to plead a prima facie
case of discrimination in order to survive dismissal”).
Because termination constitutes an adverse employment event, this Court need not decide at
this time whether the other alleged hostilities against Herman, including the alleged differential
application of workplace rules, rise to the level of an adverse employment event.
does not allege that Plaintiff’s separation of employment was discriminatory,” ECF
No. 10 at 7, is belied by the text of the Amended Complaint. The Amended
Complaint does plausibly link the alleged discriminatory events to Herman’s
termination; the discriminatory events are circumstantial evidence of the
discriminatory animus which allegedly motivated the decision to terminate
Therefore, Herman’s Amended Complaint contains sufficient facts to
plausibly state a claim for racial discrimination and place Early Education on
notice of the claims against it.
Early Education next argues4 that Herman’s retaliation claim should be
dismissed because “the Amended Complaint fails to allege facts indicating that
[Herman] engaged in statutorily protected behavior.” ECF No. 10 at 11.
In order to allege a prima facie retaliation claim under Title VII and FCRA,
Herman must allege that: (1) she was engaged in a protected expression; (2) she
suffered an adverse employment action; (3) there is a causal connection between
the expression and the adverse action. Pennington v. City of Huntsville, 261 F.3d
1262, 1266 (11th Cir. 2001) (Title VII); Harper v. Blockbuster Entertainment
Early Education also argues that the Amended Complaint failed to state a claim for hostile
work environment discrimination; however, Herman conceded that it was never her intent to
bring such a claim. ECF No. 13 at 6.
Corp., 139 F.3d 1385, 1388 (FCRA and Title VII). For the complaint to establish
that Herman engaged in statutorily protected behavior, it must allege facts showing
that Herman “has opposed any practice made an unlawful employment practice by
[the Civil Rights Act].” 42 U.S.C. § 2000e-(3)a.
Early Education argues at length that Herman did not engage in protected
activity because the activity she originally reported—the false accusation of using
a racial slur—falls outside the realm of the Civil Rights Act. This Court need not
decide, however, whether reporting the false accusation constitutes protected
activity5 because the Amended Complaint does properly allege other protected
Early Education seems to ignore that the Amended Complaint alleges that
Herman specifically reported racial discrimination to her superiors. It alleges that
Herman “reported Carroll’s ongoing discrimination . . . to her supervisors,” that
she “said that actions against her by Carroll was ‘discrimination’ and that action
was taken against her because her replacement, Kimberly, is black,” and that
“[p]rior to her termination, [she] reported discrimination the last time in May,
Likewise, because Early Education has only argued that the retaliation claim fails due to lack of
protected activity, this Court need not decide whether the alleged hostilities other than
termination constitute an adverse employment action in the retaliation context. The standard for
an adverse employment event in the retaliation context is “more liberal” than in the
discrimination context; “in the context of a Title VII retaliation claim, a materially adverse action
means it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008) (citations and
2014.” ECF No. 6 at 3-4. Herman’s informal complaints of discrimination to her
supervisors constitute protected activity, see Rollins v. State of Fla. Dep’t of Law
Enforcement, 868 F.2d 397, 400 (11th Cir. 1989), and the Amended Complaint
properly alleges that Early Education retaliated against Herman for voicing those
Early Education also briefly argues that even if Herman had complained
about race discrimination, her belief that race discrimination occurred is not
objectively reasonable. ECF No. 10 at 13. This underdeveloped argument,
however, also fails; based on the alleged facts regarding disparate treatment, it
seems objectively reasonable for Herman to have believed that race discrimination
occurred, or at least that the alleged conduct was “close enough to support an
objectively reasonable belief that it” was unlawful discrimination. Clover v. Total
Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999).
Herman has properly pleaded that she engaged in protected activity, and
therefore has alleged facts sufficient to put Early Education on notice of the claims
In sum, this Court holds that the complaint contains sufficient facts to state a
claim upon which relief can be granted on both the race discrimination and the
For the reasons stated,
IT IS ORDERED:
The motion, ECF No. 10, is DENIED. In so ruling, this Court cautions the
parties. Discovery should have already commenced in earnest. The filing of
motions such as this is not good cause to extend discovery deadlines.
SO ORDERED on July 14, 2015.
s/Mark E. Walker
United States District Judge
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