Durosier v. Department of Children and Family Services

Filing 40

ORDER granting 17 Defendant's Motion to Dismiss for Failure to State a Claim. See Order for details. Signed by Judge James I. Cohn on 9/23/2014. (sry)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-62002-CIV-COHN/SELTZER
BETTY DUROSIER,
Plaintiff,
v.
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Defendant.
____________________________/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant’s Motion to Dismiss [DE 17]
(“Motion”). The Court has carefully reviewed the Motion, along with Plaintiff’s Response
[DE 20] and Defendant’s Reply [DE 23], and is otherwise fully advised in the premises.
I.

Background
On September 13, 2013, Plaintiff Betty Durosier filed this action against

Defendant Department of Children and Families. See DE 1 (Compl.). Plaintiff’s claims
arise from her employment with Defendant from May 29, 2009, to August 14, 2012.
See id. at 2, ¶ 6; id. at 3, ¶ 9. In general, Plaintiff alleges that Defendant discriminated
and retaliated against her based on her Haitian national origin. See id. at 2, ¶ 6; id. at
4, ¶ 14.
But the specific claims asserted by Plaintiff, and the facts supporting those
claims, are far less clear. At various points in her Complaint, Plaintiff invokes Title VII
of the Civil Rights Act of 1964, see 42 U.S.C.A. § 2000e–2000e-15 (“Title VII”);
42 U.S.C. § 1981; and the Florida Civil Rights Act of 1992, see Fla Stat. §§ 760.01–
760.11 (“FCRA”). Also sprinkled throughout the Complaint are references to three

discrimination theories: hostile work environment, disparate treatment, and retaliation
(apparently including termination). Indeed, Plaintiff mixes and matches these theories
within three Counts titled, respectively, (1) “DEFENDANTS HAVE VIOLATED TITLE VII
(Disparate Treatment AND hostile work environment) AND SECTION 1981,” (2) “CLAIM
OF RACE DISCRIMINATION IN VIOLATION OF THE FLORIDA CIVIL RIGHTS ACT,”
and (3) “PLAINTIFF’S CLAIM OF RETALIATION IN VIOLATION OF TITLE VII AND
FCRA.” DE 1 at 4-8 (emphasis omitted).
More, Plaintiff offers few tangible facts to support her claims. One paragraph
rattles off a series of generalized allegations against one of Plaintiff’s supervisors:
From the inception Supervisor Arena, used terms as:
unfair treatment about administrative agency policies and procedure such
as constant harassment while on leave of absence and transfer request
denial, constant outlandish complaints and accusations with regular
related duties and appropriate protocols, constant questioning plaintiff’s
ability to perform the job and the plaintiff’s English proficiency, and
retaliation for complaining about the hostile work environment.
DE 1 at 3, ¶ 10. Besides these broadly worded assertions, though, the Complaint
nowhere offers any coherent description of the factual basis for Plaintiff’s claims.
And some paragraphs omit factual information or cross-references that cannot be
gleaned from elsewhere in the Complaint. See id. at 3, ¶ 8 (“That Defendant’s website
reads: [].”); id. at 4, ¶ 18 (claiming that Plaintiff was “subjected [to] a hostile work
environment as described in paragraphs [] because of her national origin”); id. at 7, ¶ 36
(“That the Defendant retaliated against the Plaintiff as described in paragraphs [].).
Last, as relevant here, Plaintiff contends that she has “exhausted her
administrative remedies” and has fulfilled “[a]ll conditions precedent to institution of this
action.” DE 1 at 2, ¶ 3. Specifically, Plaintiff explains that she “filed a charge of
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discrimination with the United States Equal Employment Opportunity Commission
(“EEOC”) and thereafter, by letter the EEOC issued Plaintiff a Notice of Right to Sue,
Plaintiff initiated this action within ninety (90) days of receipt of the EEOC’s Notice of
Right to Sue.” Id.
In response to the Complaint, Defendant filed its present Motion. See DE 17.
Defendant first argues that Plaintiff has not sufficiently pleaded that she timely
exhausted her administrative remedies before filing her Title VII and FCRA claims.
See 42 U.S.C. § 2000e-5(e)(1) (as pertinent here, requiring employee to file EEOC
charge within 300 days after an alleged unlawful employment practice occurred); id.
§ 2000e-5(f)(1) (requiring employee to file civil action within 90 days after receiving
notice of right to sue); Fla. Stat. § 760.11(1), (5) (imposing parallel, though not identical,
filing requirements with the Florida Commission on Human Relations). Too, Defendant
maintains that Plaintiff is improperly seeking to pursue claims that were not included in
her EEOC charge. See Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.
1988) (“It has long been established in this circuit that the scope of a judicial complaint
is defined by the scope of the EEOC investigation that ‘can reasonably be expected to
grow out of the charge of discrimination.’” (quoting Sanchez v. Standard Brands, Inc.,
431 F.2d 455, 466 (5th Cir. 1970))).1 Defendant further asserts that certain counts of
Plaintiff’s Complaint should be dismissed because they combine discrimination and
retaliation claims under distinct statutes with different elements and defenses.
See Fed. R. Civ. P. 8(a)(2), 10(b).

1

Decisions of the former Fifth Circuit issued before October 1, 1981, are binding
precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
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II.

Discussion
To withstand a Rule 12(b)(6) dismissal motion, a complaint must contain factual

allegations that are “enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint therefore must
plead “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 Twombly,
550 U.S. at 570). “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.” Twombly, 550 U.S. at 555
(alteration, citations & internal quotation marks omitted). “Nor does a complaint suffice
if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).
At this stage in the litigation, a court must accept the facts alleged in the
complaint as true and draw all reasonable inferences therefrom in the plaintiff’s favor.
See Twombly, 550 U.S. at 555-56. A complaint should not be dismissed simply
because the court is doubtful that the plaintiff will be able to prove the necessary facts.
See id. Nonetheless, the court may grant a motion to dismiss when, “on the basis of a
dispositive issue of law, no construction of the factual allegations will support the cause
of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171,
1174 (11th Cir. 1993).
For the reasons addressed in Part I, the Court concludes that Plaintiff has not
alleged a plausible claim for relief under any of the cited statutes. The hodgepodge of
legal theories combined in the three Counts of the Complaint, together with the lack of
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any specific allegations supporting these theories, fail to provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Also, Plaintiff’s blending of multiple theories in different counts violates the rule
that “each claim founded on a separate transaction or occurrence . . . must be stated in
a separate count.” Fed. R. Civ. P. 10(b). These are not just technical pleading defects.
They prevent Defendant (and the Court) from having clear notice of the legal and
factual bases of Plaintiff’s claims and from determining whether each claim was
properly exhausted. The Court will therefore dismiss Plaintiff’s Complaint with leave to
replead in accordance with this Order.
Given this ruling, the Court declines to address at this time Defendant’s
arguments concerning Plaintiff’s EEOC charge. Plaintiff should bear in mind, however,
that if Defendant specifically raises these issues again in response to Plaintiff’s
Amended Complaint, then Plaintiff will bear the burden of proving that the condition
precedents for this suit have been met. See Jackson v. Seaboard Coast Line R.R. Co.,
678 F.2d 992, 1010 (11th Cir. 1982); see also Bryant v. Rich, 530 F.3d 1368, 1375
(11th Cir. 2008) (explaining that exhaustion of administrative remedies “should be
decided on a Rule 12(b) motion to dismiss”). The Court also notes that while Plaintiff
may be seeking to pursue a claim under 42 U.S.C. § 1981, that statute applies only to
discrimination based on race, not on national origin. See Little v. United Techs., Carrier
Transicold Div., 103 F.3d 956, 961 (11th Cir. 1997) (“It is well-established that § 1981 is
concerned with racial discrimination in the making and enforcement of contracts.”);
see also Ganpath v. Advance Stores Co., 2011 WL 6069336, at *6 (S.D. Fla. Dec. 6,
2011) (distinguishing alleged race-discrimination claims from unasserted claims for
national-origin discrimination). Assuming that she has a reasonable basis for pursuing
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her claims in light of these restrictions, Plaintiff is free to file an Amended Complaint.
See Fed. R. Civ. P. 11(b).
III.

Conclusion
For the reasons discussed, it is hereby
ORDERED AND ADJUDGED as follows:

1.

Defendant’s Motion to Dismiss [DE 17] is GRANTED;

2.

Plaintiff’s Complaint [DE 1] is DISMISSED WITHOUT PREJUDICE;

3.

By no later than October 14, 2014, Plaintiff may file an Amended Complaint
consistent with this Order. If Plaintiff does not timely file an Amended Complaint,
this case will be closed; and

4.

If Plaintiff elects to file an Amended Complaint, Defendant shall respond to that
Complaint by no later than November 4, 2014.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, this 23rd day of September, 2014.

Copies provided to:
Counsel of record via CM/ECF

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