Kessler v. Zimmerman Advertising, LLC
ORDER granting 7 Defendant's Motion to Dismiss. Signed by Judge Darrin P. Gayles (hs01)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-61691-DPG-GAYLES/SELTZER
ZIMMERMAN ADVERTISING, LLC,
a Delaware Limited Liability Company,
THIS CAUSE comes before the Court upon Defendant Zimmerman Advertising, LLC’s
Motion to Dismiss Counts II and IV of Plaintiff’s Complaint [ECF No. 7]. The Court has
carefully reviewed the Motion, the record, and the applicable law. For the reasons discussed
below, Defendant’s Motion is granted.
Plaintiff Alison Kessler (“Plaintiff”) brings this action against Defendant Zimmerman
Advertising, LLC (“Defendant”) alleging that Defendant discriminated and retaliated against her
based on her sex/gender and her pregnancy.
I. The Allegations
On March 4, 2016, Plaintiff began her employment with the Defendant. On June 10,
2016, Plaintiff notified Scott Thaler (“Thaler”), her supervisor, that she was pregnant. In
response, Thaler told Plaintiff that it would be a problem if she could not travel for work due to
her pregnancy. Plaintiff responded that she remained fully capable of performing her job duties
because she had already traveled twice since becoming pregnant and she could fly for monthly
client meetings if needed. Four days after Plaintiff disclosed her pregnancy, upper management,
including Jordan Zimmerman, Defendant’s Chairman, asked Plaintiff to participate in a
conference call with her main client, Kane’s Furniture. During the call, Plaintiff was asked why
she did not have more communications with her client. Plaintiff responded that she had several
calls with Kane’s Furniture and traveled twice to their headquarters in Tampa. In response, Mr.
Zimmerman insulted Plaintiff for several minutes stating: “How could you be so stupid” and
“You can't even make a phone call when we paid to relocate you to Florida?” [EFC No. 1]. Later
that afternoon, Plaintiff was terminated.
II. Procedural Background
On January 8, 2017, Plaintiff filed a charge of discrimination against Defendant with the
United States Equal Employment Opportunity Commission (EEOC) and the Florida Commission
on Human Relations (FCHR). On August 23, 2017, Plaintiff filed a four count Complaint against
Defendant asserting: (1) sex/gender discrimination under both Title VII and the Florida Civil
Rights Act (“FCRA”) (Counts I and III) and (2) retaliation under both Title VII and the FCRA
(Counts II and IV) [ECF No. 1]. Defendant has moved to dismiss Counts II and IV with
prejudice, arguing that Plaintiff has failed to allege any statutorily protected activity and a “but
for” link between Plaintiff’s actions and her termination. 1
I. Standard of Review
“To survive a motion to dismiss, a 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)). Although
this pleading standard “does not require ‘detailed factual allegations,’ . . . it demands more than
Defendant has not moved to dismiss Counts I and III of the Complaint.
an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. (alteration added) (quoting
Twombly, 550 U.S. at 555).
Pleadings must contain “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 (citation omitted).
Indeed, “only a complaint that states a plausible claim for relief survives a motion to dismiss.”
Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). To meet this “plausibility standard,” a
plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. at 678 (alteration added) (citing Twombly,
550 U.S. at 556). When reviewing a motion to dismiss, a court must construe the complaint in
the light most favorable to the plaintiff and take the factual allegations therein as true. See
Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
II. Retaliation Claims
Title VII prohibits retaliation against an employee who has opposed an unlawful
employment practice. See 42 U.S.C. § 2000e-3(a). To prove a prima facie case for retaliation, the
Plaintiff must establish that: “(1) she engaged in an activity protected under Title VII; (2) she
suffered an adverse employment action; and (3) there was a causal connection between the
protected activity and the adverse employment action.” Crawford v. Carroll, 529 F.3d 961, 970
(11th Cir. 2008). Defendant contends that Plaintiff failed to allege that she participated in
protected activity. The Court agrees. 2
To establish that she engaged in a statutorily protected activity, Plaintiff must allege that
she voiced opposition to an unlawful employment practice or participated in any manner in an
investigation, proceeding, or hearing concerning an unlawful employment practice. See 42
U.S.C. § 2000e-3(a); see also Crawford v. Metro. Gov’t. of Nashville, 555 U.S. 271, 277-78
The Court applies the same legal analysis to Title VII and FCRA claims that are based on the
same set of facts. Hampton v. City of S. Miami, 186 F. App’x. 967, 970 n. 2 (11th Cir. 2006) (Title VII and FCRA).
(2009) (discussing the opposition clause of Title VII’s anti-retaliation provision); Anduze v. Fla.
Atl. Univ., 151 F. App’x 875, 877 (11th Cir. 2005) (discussing the participation clause of Title
VII’s anti-retaliation provision). Plaintiff fails to allege that she voiced opposition to any practice
of the Defendant. Rather she alleges that Defendant terminated her because of her pregnancy.
These allegations are clearly sufficient to state a claim for discrimination “because of sex.” See
Hubbard v. Meritage Homes of Fla., Inc., 520 F. App'x 859, 862 (11th Cir. 2013) (holding that
“[t]he phrase ‘because of sex’ or on the ‘basis of sex’ in Title VII includes ‘because of or on the
basis of pregnancy, childbirth, or related medical conditions.’”) However, they do not support a
finding that Plaintiff opposed Defendant’s employment practices.
Indeed, the Court cannot construe Plaintiff’s statements that she is capable of performing
her duties and that she can still travel for work as a complaint or opposition. Plaintiff‘s
statements are more analogous to a reassurance that she can still perform her duties while
pregnant. See Slater v. Energy Serv. Grp. Int'l, Inc., 441 F. App'x 637, 642 (11th Cir. 2011)
(holding that Slater’s e-mail was not a complaint, but a “reassurance that Slater's pregnancy
would not cause Progress Energy any problems”); Sullivan v. Paycor, Inc., No. 3:13-CV-00028H, 2013 WL 2286069, at *5 (W.D. Ky. May 23, 2013) (plaintiff’s mere pregnancy
announcement was not a protected activity unless she asserted legally afforded rights in relation
to her pregnancy); Quinn v. Henry Ford Health Sys., No. 15-10653, 2017 WL 214428, at *2
(E.D. Mich. Jan. 18, 2017) (pregnancy alone is not a protected activity but repeatedly asking for
a promotion despite being pregnant could be protected activity); Oliver v. Scranton Materials,
Inc., No. 3:14-CV-00549, 2015 WL 1003981, at *6 (M.D. Pa. Mar. 5, 2015) (holding that “the
appropriate claim is one for discrimination not retaliation” when a plaintiff requested additional
maternity leave without opposing anything because she did not “confront” any practice and an
employer cannot retaliate against employees for only requesting maternity leave) (internal
quotation and citation omitted). Accordingly, the Defendant’s motion to dismiss Plaintiff‘s
retaliation claims is granted. 3
Finally, Defendant argues that the Court should dismiss Plaintiff‘s claims with prejudice
because her EEOC charge does not adequately raise a retaliation claim. To proceed with her
claims, the Plaintiff must have exhausted her administrative remedies by filing a charge with the
EEOC. Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004).
Additionally, the Plaintiff’s Complaint is limited to the facts that can reasonably grow out of the
EEOC charge. See Thomas v. Miami Dade Pub. Health Tr., 369 F. App'x 19, 22 (11th Cir.
In her EEOC charge, Plaintiff stated that her employer discriminated against her based on
her sex/gender and retaliated against her based on her pregnancy. Moreover, Plaintiff checked
both the “SEX” box and the “RETALIATION” box on the EEOC form. See [ECF No. 1 Exhibit
A]. The Court finds that this is sufficient for Plaintiff to be given an opportunity to replead her
retaliation claim, particularly in light of the Federal Rules of Civil Procedure’s mandate that
leave to amend should be freely given. Fed. R. Civ. P. 15(a). However, the Court cautions
Plaintiff that without any additional allegations regarding retaliation she will fail to state a claim.
Because the Court finds that Plaintiff did not engage in statutorily protected activity, it does not
Based on the foregoing, it is
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss [ECF No. 7] is
GRANTED. Counts II and IV are DISMISSED without prejudice.
DONE AND ORDERED in Chambers at Miami, Florida, this 8th day of November,
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
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