Krause v. Careers USA

Filing 29

ORDER granting 15 Motion to Dismiss for Failure to State a Claim. Amended Pleadings due by 1/11/2017. Signed by Judge Beth Bloom on 12/30/2016. (pes)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-62284-BLOOM/Valle
DEBORAH KRAUSE,
Plaintiff,
v.
CAREERS USA,
Defendant.
________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant CareersUSA Inc.’s (“CareersUSA”)
Motion to Dismiss Plaintiff Deborah Krause’s (“Ms. Krause”) Complaint, ECF No. [1]. ECF
No. [15] (the “Motion”). The Court has reviewed the Motion, all supporting and opposing
filings, and the record in this case, and is otherwise fully advised in the premises. For the
reasons that follow, the Motion is granted.
I.

BACKGROUND
CareersUSA, an employment staffing company, placed Ms. Krause with Baer’s Furniture

Company, Inc. (“Baer’s”) to work as a CSR/Processor. ECF No. [1] at 6. After three to four
days of training – from April 19, 2016 to April 22, 2016 – Ms. Krause was terminated. Id.
Baer’s supervisor, Sue Dame (“Ms. Dame”), informed Ms. Krause that she had been terminated
“because of a statement she had made as well as some other complaints” Ms. Dame received
from Ms. Krause’s unit. Id. Ms. Dame would not disclose the other complaints she received to
Ms. Krause, but did disclose them to CareersUSA. Id.
Thereafter, Ms. Krause returned to CareersUSA to inquire about the additional
complaints made against her at Baer’s. Id. CareersUSA would not disclose any details about the

Case No. 16-cv-62284-BLOOM/Valle
additional complaints to Ms. Krause, and one of the CareersUSA employees who Ms. Krause
spoke with denied Ms. Krause’s request to relay a message to a supervisor. Id. On or about
April 27, 2016, a CareersUSA supervisor contacted and informed Ms. Krause that she could not
disclose details about the additional complaints. Id. Ms. Krause, in response, explained that the
statement she had made which contributed to her termination was misconstrued. Id.
Ms. Krause completed a Charge of Discrimination for filing with the Equal Employment
Opportunity Commission (“EEOC”) on July 28, 2016. See id. at 9-12. In the EEOC Charge,
Ms. Krause alleged that CareersUSA informed her that she would not be placed into another
position with Baer’s because she was not wanted there and that CareersUSA did not have any
new employment opportunities for her elsewhere. Id. at 9. Ms. Krause, a white female, further
alleged that her race and sex “may have been a factor” in CareersUSA not placing her in another
position. Id. On August 31, 2016, the EEOC issued a Dismissal and Notice of Rights to Ms.
Krause, which indicated that the EEOC, based upon an investigation, was unable to conclude
that the information obtained established a violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e (“Title VII”), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(the “ADA”), the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff–1 (“GINA”),
or the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”). Id. at 7.
The Dismissal and Notice of Rights also advised Ms. Krause of her right to sue. Id.
Ms. Krause then filed a Complaint, ECF No. [1], against CareersUSA on September 23,
2016. Ms. Krause claims that she was “wrongly terminated according to Title VII, Americans
with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age Discrimination
in Employment Act. . . . based on reverse Sexual harassment, discrimination based on race,
color, and reverse sexual orientation of another employee.” Id. at 6. Ms. Krause, pointing again

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to her race and sex (as well as her age, which is 52), believes that CareersUSA accepted as true
Baer’s “false complaints against her, whatever they are, because [] CareersUSA staff’s [sic] the
unit with all or mostly Black representatives.” Id.
CareersUSA filed its Motion on November 22, 2016. See ECF No. [15]. CareersUSA
requests that the Court dismiss the Complaint in its entirety on the basis that it fails to state a
claim under Title VII or any of the other statutes referenced therein – namely, the ADA, GINA,
or the ADEA. Id. at 4-8. In the alternative, CareersUSA argues that the claims asserted under
the ADA, GINA, or the ADEA should be dismissed because Ms. Krause failed to allege
employment discrimination under any of those statutes in her EEOC Charge. Id. at 8-9. Ms.
Krause’s Response, ECF No. [22], followed.
II.

LEGAL STANDARD
Rule 8 of the Federal Rules requires that a pleading contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a
complaint “does not need detailed factual allegations,” it must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest
on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557 (alteration in original)). “Factual allegations must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. These elements
are required to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil

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Procedure, which requests dismissal for “failure to state a claim upon which relief can be
granted.”
When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the
plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in
favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration
Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp.,
LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty.
Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the
factual allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful
conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental
Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). A
court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint
and attached exhibits, including documents referred to in the complaint that are central to the
claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc.
v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the
four corners of the complaint may still be considered if it is central to the plaintiff’s claims and is
undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir.
2002)).
The Court employs “less stringent standards” in assessing pro se pleadings.

See

Lampkin-Asam v. Volusia Cty. Sch. Bd., 261 F. App’x 274, 276-77 (11th Cir. 2008) (quoting
Hepperle v. Johnston, 544 F.2d 201, 202 (5th Cir. 1976)). However, the Court may not act as

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counsel for a party or rewrite deficient pleadings, and pro se litigants must still adhere to
well-established pleading standards. See id. (citing McNeil v. United States, 508 U.S. 106, 113
(1993) and GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)).
Through this lens, the Court addresses the instant Motion.
III.

DISCUSSION
The Complaint asserts that Ms. Krause’s termination from CareersUSA violated Title VII

as well as the ADA, GINA, and the ADEA. The specific allegations in the Complaint and the
EEOC Charge, however, relate exclusively to Ms. Krause’s race and sex, and so the Court will
address first whether the Complaint sates a claim under Title VII.
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin. . . .” 42 U.S.C. § 2000e–2(a)(1). Liability in such cases
“depends on whether the protected trait actually motivated the employer’s decision.’” Young v.
United Parcel Serv., Inc., 135 S. Ct. 1338, 1345 (2015) (quoting Raytheon Co. v. Hernandez,
540 U.S. 44, 52 (2003)). A plaintiff can prove disparate treatment either (1) by direct evidence
that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2)
through circumstantial evidence using the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Young, 135 S. Ct. at 1345. Under the McDonnell
Douglas framework, “[a] plaintiff establishes a prima facie case of disparate treatment by
showing that she was a qualified member of a protected class and was subjected to an adverse
employment action in contrast with similarly situated employees outside the protected class.”
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (citations omitted); see also

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Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (“To make out a prima facie case of
racial discrimination [under Title VII], a plaintiff must show (1) she belongs to a protected class;
(2) she was qualified to do the job; (3) she was subjected to adverse employment action; and (4)
her employer treated similarly situated employees outside her class more favorably.”) (citation
omitted); Lathem v. Dep't of Children & Youth Servs., 172 F.3d 786, 792 (11th Cir. 1999) (“Title
VII plaintiffs establish a prima facie case when they demonstrate: (1) that the plaintiff belongs to
a class protected under Title VII; (2) that the plaintiff was qualified for the job; and (3) that the
misconduct for which the employer discharged the plaintiff was the same or similar to what a
similarly situated employee engaged in, but that the employer did not discipline the other
employee similarly”). That said, “[t]he methods of presenting a prima facie case are not fixed;
they are flexible and depend to a large degree upon the employment situation.” Wilson, 376 F.3d
at 1087 (citation omitted).
“Direct evidence is evidence, which if believed, proves the existence of the fact in issue
without inference or presumption.” Maynard v. Bd. of Regents of Div. of Universities of Florida
Dep’t of Educ. ex rel. Univ. of S. Florida, 342 F.3d 1281, 1289 (11th Cir. 2003) (internal
quotations and alterations omitted).

Even in cases premised on circumstantial evidence,

however, “a complaint in an employment discrimination lawsuit [need] not contain specific facts
establishing a prima facie case of discrimination” to avoid dismissal. Twombly, 550 U.S. at 547
(alterations in original) (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (2002)); see
McCone v. Pitney Bowes, Inc., 582 Fed. Appx. 798, 801 n.4 (11th Cir. 2014). But see Uppal v.
Hosp. Corp. of Am., 482 Fed. Appx. 394, 396 (11th Cir. 2012) (“Although a plaintiff need not
satisfy the McDonnell Douglas framework at the pleading stage in order to state a claim for

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disparate treatment, the ordinary rules for assessing the sufficiency of a complaint [still] apply.”
(footnote and internal quotation marks omitted).
Applying the McDonnell Douglas framework and the flexible standard applicable to
claims made under Title VII, the Court finds that the Complaint fails to sufficiently state a claim
for employment discrimination. In both the Complaint and the EEOC Charge, Ms. Krause
indicated that the stated basis for her termination from Baer’s, as she was told, included a
comment that she made that was allegedly misconstrued and complaints made against her. ECF
No. [1] at 6, 9. Lacking in both the Complaint and the EEOC Charge, however, are any factual
allegations that lend to an inference that a protected trait – i.e., Ms. Krause’s status as a white
female – played a role in her termination. For example, there are no allegations that similarly
situated persons outside of the asserted protected class were treated any differently than Ms.
Krause; that the racial composition of Baer’s staff was “all or mostly black” is simply not enough
to support Ms. Krause’s conclusory assertion that her race and/or sex “may have been a factor”
to her termination and her not being placed in another position by CareersUSA. Id. at 9; see
Wilson, 376 F.3d at 1087; Crawford, 529 F.3d at 970; Lathem, 172 F.3d at 792. Similarly, the
Complaint’s conclusory assertion that CareersUSA believed to be true the false complaints made
against Ms. Krause – complaints that admittedly were never disclosed to Ms. Krause – because
CareersUSA was responsible for the above mentioned racial composition is also unsupported.
See id. at 6.

Accordingly, the Court dismisses Ms. Krause’s claim for employment

discrimination under Title VII without prejudice with leave to amend.
To the extent that the Complaint invokes the ADA, GINA, and the ADEA, see ECF No.
[1] at 6, the Complaint fails to state a claim under each, and so any claims thereunder are also
dismissed without prejudice. As discussed, both the Complaint and the EEOC Charge attribute

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Ms. Krause’s termination to her race and sex – not to any identified disability of Ms. Krause’s,
her genetic information, or her age. 1 Indeed, though Ms. Krause had the option to, she did not
check off any of the latter categories on her EEOC Charge as bases for her alleged
discrimination. See id. at 9. Naturally, then, the Complaint fails to allege that, for purposes of
the ADA, Ms. Krause had a disability, identified a reasonable accommodation to Baer’s or
CareersUSA, and was discriminated because of that disability. See Mont-Ros v. City of W.
Miami, 111 F. Supp. 2d 1338, 1350 (S.D. Fla. 2000) (stating the elements for a prima facie case
of employment discrimination based on a disability under the ADA). With respect to GINA, the
Complaint fails to set forth any factual allegations relating to Ms. Krause’s genetic information
as that term is contemplated under the statute. See Bell v. PSS World, 2012 WL 6761660 (M.D.
Fla. Dec. 7, 2012) (“Genetic information entails ‘information about [an] individual's genetic
tests, the genetic tests of family members of such individuals, and the manifestation of a disease
or disorder in family members of such individual.’”) (quoting 42 U.S.C. § 2000ff(4)(A)), report
and recommendation adopted by 2013 WL 45826 (Jan. 3, 2013). Finally, as to the ADEA, the
Complaint fails to allege that “a substantially younger person filled the position that [Ms.
Krause] sought or from which [s]he was discharged.” 2 See Greene v. Loewenstein, Inc., 99 F.
Supp. 2d 1373, 1378 (S.D. Fla. 2000) (stating the elements for a prima facie case of age
discrimination under the ADEA).

1

The Complaint does identify Ms. Krause’s age, but not in such a way as to suggest that age played any
role in Ms. Krause’s termination from Baer’s. See ECF No. [1] at 6 (“As a 52 year old White Female,
Deborah Krause was discriminated against in Wrongful Termination because of her Race.”) (emphasis
added).
2
The argument in Ms. Krause’s Response that “arguably a substantially younger person filled the position
from which Plaintiff was discharged because of the fact the other employees made her unwelcomed the
first day she went to Bear’s [sic][,]” ECF No. [22] at 4, is not a logical one and is without any basis in
either the Complaint or the EEOC Charge.

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In addition to arguing that the Complaint fails to state a claim under the ADA, GINA, or
the ADEA, CareersUSA also argues that any such claims are now barred “as a matter of law”
because they were not presented in the EEOC Charge. ECF No. [15] at 10. This is not
necessarily so. The Court recognizes the nature of the relationship between an EEOC charge and
an ensuing judicial complaint: “The starting point of ascertaining the permissible scope of a
judicial complaint alleging employment discrimination is the administrative charge and
investigation. . . . A plaintiff’s judicial complaint is limited by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of discrimination.”
Thomas v. Miami Dade Public Health Trust, 369 Fed. Appx. 19, 21-22 (11th Cir. 2010) (quoting
A.M. Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1332 (11th Cir.2000) (internal
quotation marks omitted)); see also Rodriguez v. Sec'y of Dep't of Veterans Affairs, 605 Fed.
Appx. 957, 958 (11th Cir. 2015) (“To determine whether a complaint falls within this scope, [a
court must] ask whether the complaint is ‘like or related to, or grew out of, the allegations
contained in her EEOC charge.’”) (quoting Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277,
1279 (11th Cir.2004)). Here, the “ultimate act that [Ms. Krause] complained about was that she
was terminated[,]” and “[a]t the point at which she filed the [EEOC] charge, she believed that
she was terminated because of her race and sex.” Gregory, 355 F.3d at 1280 (internal quotation
marks and alteration omitted).

The Eleventh Circuit has provided instructive guidance in

addressing similar circumstances:
[The plaintiff] set forth relevant dates of discrimination in the charge, as well as
the reasons why she believed she was terminated. Although not clear in the
record, the EEOC presumably investigated, at least in some fashion, the possible
reasons why [the plaintiff] was terminated, growing from her initial “belief” that
it was because of her race and sex. Indeed, there could be various permutations of
non-legitimate reasons why an employee is ultimately terminated. . . . After a
careful reading of [the] EEOC charge prepared without the assistance of counsel .
. ., [the plaintiff’s] retaliation claim was not administratively barred by her failure
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to mark the retaliation space on the EEOC template form. . . . An EEOC
investigation of her race and sex discrimination complaints leading to her
termination would have reasonably uncovered any evidence of retaliation.
Id. Accordingly, although Ms. Krause’s claims for relief under the ADA, GINA, and the ADEA
are dismissed, Ms. Krause will be granted leave to amend notwithstanding the fact that the
EEOC Charge reflects Ms. Krause’s belief that her termination was on account of her race and
sex. 3
IV.

CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendant

CareersUSA Inc.’s Motion to Dismiss, ECF No. [15], is GRANTED. Plaintiff Deborah Krause
is granted leave to amend and is directed to file an Amended Complaint on or before January
11, 2017.
DONE AND ORDERED in Miami, Florida, this 30th day of December, 2016.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

3

Of course, any future claims alleging the discrimination of Ms. Krause based on disability, genetic
information, or age must be like or related to, or to have grown out of, the allegations contained in the
EEOC Charge. See Rodriguez, 605 Fed. Appx. at 958 (“Plaintiffs may not raise allegations of new acts of
discrimination in the judicial proceedings.”) (internal quotation marks, alteration, and citation omitted).

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