Jean Pierre v. Park Hotels & Resort Inc.

Filing 30

ORDER granting in part and denying in part 12 Defendant's Partial Motion to Dismiss. Signed by Judge Darrin P. Gayles on 10/4/2017. (lh00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-21955-GAYLES
MARIE L. JEAN PIERRE,
Plaintiff,
v.
PARK HOTELS & RESORT, INC., a
foreign corporation f/k/a HILTON
WORLDWIDE, INC.,
/

Defendant.

ORDER
THIS CAUSE comes before the Court on Defendant PARK HOTELS & RESORT,
INC.’s, Partial Motion to Dismiss and Incorporated Memorandum of Law (the “Motion”) [ECF
No. 12]. The Court has reviewed the Motion, the parties’ written submissions, and the applicable
law and is otherwise fully advised in the premises. For the reasons that follow, the Motion is
granted in part and denied in part.
I.

BACKGROUND 1

Plaintiff Marie L. Jean Pierre (“Plaintiff”) brings this action against Defendant Park Hotels
& Resort, Inc. (“Defendant”), alleging that Defendant subjected her to discrimination and
retaliation based on her religion in violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e, et seq., and the Florida Civil Rights Act (“FCRA”), § 760.01, Fla.
Stat., et seq. Plaintiff was employed by Defendant as a dishwasher and/or housekeeper from
April 4, 2006, until her termination on March 31, 2016. See Compl. ¶¶ 3, 5. At all relevant times,
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The Court must accept Plaintiff’s allegations, set forth below, as true for purposes
of this motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d 1364, 1369
(11th Cir. 1997).
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Plaintiff was a member of the “Soldiers of Christ Church” and the “Bethel Church” in Miami,
Florida. From the outset of Plaintiff’s employment, Defendant was aware that she could not work
on Sundays due to her religious beliefs. Defendant initially accommodated Plaintiff by allowing
her to have Sundays off from work. However, in or around March of 2009, Plaintiff resigned
from her employment after Defendant scheduled her to work on a Sunday. In an effort to prevent
Plaintiff from resigning, Defendant again accommodated Plaintiff by assigning her a fixed work
schedule where she would have every Sunday off from work. Plaintiff then rescinded her
resignation and was allowed to work a fixed Monday to Thursday schedule until late 2015.
In late 2015, Plaintiff’s supervisor, George Colon (“Colon”), changed her work schedule
so that she would have to work on Sundays. Plaintiff and her pastor provided letters to Mr. Colon
objecting to the denial of her accommodation and explaining that working on Sundays violated
her religious beliefs. These letters were disregarded by Mr. Colon who continued to schedule
Sunday shifts for Plaintiff. Plaintiff then began to enter into agreements with her co-workers for
purposes of swapping shifts so that she would not have to work on Sundays. Mr. Colon allowed
this practice for several weeks but ultimately demanded that Plaintiff cease swapping her Sunday
shifts with other employees. On or about March 27, 2016, Mr. Colon encountered a co-worker
working Plaintiff’s Sunday shift and sent the co-worker home telling her that “he wanted [the
Plaintiff] there” instead. On or about March 31, 2016, Plaintiff was terminated for alleged
misconduct, negligence, and unexcused absences.
Following her termination, Plaintiff dual-filed a charge of discrimination 2 with the Equal

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Defendant attached to its motion to dismiss what appears to be Plaintiff’s EEOC
charge of discrimination. The Court will consider the document as Plaintiff has not challenged its
authenticity and it is central to her claims. See McClure v. Oasis Outsourcing II, Inc., 674 F.
App’x 873, 875 (11th Cir. 2016) (holding that the district court did not err in considering
plaintiff’s EEOC charge on a motion to dismiss because the charge was central to plaintiff’s
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Employment Opportunity Commission (“EEOC”) and the Florida Commission on Human
Relations (“FCHR”). Id. ¶ 21; see also [ECF No. 12-1]. The EEOC issued Plaintiff a Notice of
Right to Sue on February 27, 2017. Compl. ¶ 22. Plaintiff then filed the instant Complaint setting
forth the following claims: Count I – Failure to Accommodate (Title VII); Count II – Hostile
Work Environment (Title VII); Count III – Discriminatory Termination (Title VII); Count IV –
Retaliation (Title VII); Count V – Failure to Accommodate (FCRA); Count VI – Hostile Work
Environment/Discriminatory Termination (FCRA); and Count VII – Retaliation (FCRA).
Defendant moves to dismiss Plaintiff’s Title VII retaliation claim 3 for failure to state a
claim and failure to exhaust administrative remedies. Defendant argues that Plaintiff has failed to
sufficiently allege that she engaged in a protected activity, and that Plaintiff failed to present her
retaliation claim to the EEOC before filing suit. Defendant moves to dismiss Plaintiff’s hostile
work environment claims for failure to state a claim, failure to exhaust administrative remedies,
and as impermissibly duplicative of other counts in the Complaint.
II.

LEGAL STANDARD

To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6),
a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face,’” meaning that it must contain “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While
a court must accept well-pleaded factual allegations as true, “conclusory allegations . . . are not

claims and its authenticity was not in dispute); Gonzalez v. Nat'l Settlement Sols., Inc., 14–
80484–CIV, 2014 WL 4206812, n.2 (S.D. Fla. Aug. 25, 2014) (same).
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For unknown reasons, Defendant did not move to dismiss Plaintiff’s FCRA
retaliation claim.
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entitled to an assumption of truth—legal conclusions must be supported by factual allegations.”
Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “[T]he pleadings are construed broadly,”
Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the
allegations in the complaint are viewed in the light most favorable to the plaintiff, Bishop v. Ross
Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016).
III.

DISCUSSION

The Eleventh Circuit has determined that because the FCRA is modeled after Title VII,
federal case law regarding Title VII is applicable to construe claims under the FCRA. Albra v.
Advan, Inc., 490 F.3d 826, 834 (11th Cir. 2007); Byrd v. BT Foods, Inc., 948 So. 2d 921, 925 (Fla.
4th DCA 2007). Consequently, Plaintiff’s Title VII and FCRA claims are analyzed together where
appropriate.
A. Counts II and VI: Religious Discrimination/Hostile Work Environment
Failure to Exhaust Administrative Remedies
Prior to filing a civil action under Title VII, a plaintiff first must exhaust her
administrative remedies by filing a charge of discrimination with the EEOC. Duble v. FedEx
Ground Package Sys., Inc., 572 F. App’x 889, 892 (11th Cir. 2014), cert. denied, 135 S. Ct. 2379
(2015). A plaintiff’s employment discrimination complaint is generally limited by the allegations
contained in her charge of discrimination and the scope of the EEOC investigation “which can be
reasonably expected to grow out of the charge of discrimination.” Gregory v. Ga. Dep't of
Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004).
Importantly, the Eleventh Circuit has noted that the scope of a charge of discrimination
should not be strictly interpreted and procedural technicalities should not be permitted to bar
claims under Title VII. See Litman v. Sec’y, of the Navy, 15-14507, 2017 WL 3027584, at *4
(11th Cir. July 18, 2017) (citing Gregory, 355 F.3d at 1280). While claims that “amplify, clarify,

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or more clearly focus” the allegations in a charge of discrimination are permitted, allegations of
new acts of discrimination “are inappropriate for a post-charge judicial complaint.” See Gregory,
355 F.3d at 1279-80; Duble, 572 F. App’x at 893.
Defendant moves to dismiss Plaintiff’s hostile work environment claims on the grounds
that her charge of discrimination failed to include any allegations concerning a hostile work
environment. The Court agrees. While Plaintiff’s Complaint alleges that she was repeatedly
reprimanded and mocked for her religious beliefs, these allegations are not contained anywhere
in her charge of discrimination. Plaintiff’s hostile work environment claims also cannot be said
to “amplify, clarify, or more clearly focus” the allegations in her charge of discrimination as her
charge of discrimination is wholly silent as to any alleged harassment based on her religion. See
Ramon v. AT & T Broadband, 195 F. App’x 860, 866 (11th Cir. 2006) (holding that plaintiff
failed to exhaust administrative remedies on her hostile work environment claim where her
EEOC charge did not mention a hostile work environment claim and contained no allegations of
severe and pervasive harassment); Green v. Elixir Indus., Inc., 152 F. App’x 838, 841 (11th Cir.
2005) (affirming district court’s finding that plaintiff failed to exhaust administrative remedies
where the facts alleged in plaintiff’s EEOC charge could not reasonably form the basis of a
hostile work environment claim); Smith v. Panera Bread, 08-60697-CIV, 2009 WL 10667191, at
*4 (S.D. Fla. Aug. 11, 2009) (same).
Next, the Court must determine whether Plaintiff’s hostile work environment claims
should be held in abatement for her to exhaust her administrative remedies or dismissed with
prejudice. In a deferral state such as Florida, a plaintiff must file a charge of discrimination
within 300 days of the last discriminatory act to be timely for purposes of Title VII, Poulsen v.
Publix Super Markets, Inc., 302 F. App’x 906, 907 n. 2 (11th Cir. 2008), and within 365 days for
purposes of the FCRA. See § 760.11(1), Fla. Stat.; Woodham v. Blue Cross & Blue Shield of

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Fla., Inc., 829 So. 2d 891, 894 (Fla. 2002). The last discriminatory act to occur as part of
Plaintiff’s hostile work environment claim was her termination on March 31, 2016. As more than
365 days have passed since Plaintiff’s termination, she cannot cure her failure to exhaust
administrative remedies within the applicable limitations period. Therefore, the Court declines to
address the alternative grounds for dismissal raised by Defendant and dismisses Plaintiff’s
hostile work environment claims with prejudice for failure to exhaust administrative remedies.
B. Count IV: Retaliation in Violation of Title VII
1. Failure to Exhaust Administrative Remedies
Defendant moves to dismiss Plaintiff’s retaliation claim on the grounds that Plaintiff
failed to allege facts supporting a claim of retaliation in her charge of discrimination. Liberally
construing Plaintiff’s charge of discrimination, the Court finds that while Plaintiff failed to
“check-the-box” for retaliation, the facts alleged in her charge of discrimination could have been
reasonably extended to encompass a claim for retaliation. Gregory, 355 F.3d at 1280 (holding
that the failure to check the box marked for retaliation does not bar a subsequent civil claim
where the facts alleged in the EEOC charge reasonably encompass a claim of retaliation).
Plaintiff’s charge of discrimination refers to several oral and written communications
with Defendant regarding the denial of her religious accommodation that preceded her
termination. Plaintiff’s charge of discrimination also alleges that she was terminated following
her attempt to swap her Sunday shift with a co-worker after her religious accommodation was
denied. An EEOC investigation of the factual allegations culminating in Plaintiff’s termination
would reasonably encompass an investigation of a potential claim of retaliation. Gregory, 355
F.3d at 1280. Accordingly, the Court finds that Plaintiff has exhausted her administrative
remedies for bringing a retaliation claim.

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2. Failure to State a Claim
Defendant also argues that Plaintiff’s retaliation claim fails because a request for a
religious accommodation does not constitute a protected activity under Title VII. To state a
claim of retaliation under Title VII, a plaintiff must plausibly allege that: (1) she engaged
in statutorily protected expression; (2) she suffered a materially adverse employment
action; and (3) her employer’s retaliatory motive was the “but for” cause of the adverse
employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 186 L. Ed. 2d
503 (2013); Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008).
Defendant only challenges whether Plaintiff has satisfied the first element of her retaliation
claim.
In order to establish that she engaged in a “statutorily protected expression,”
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. Met. Gov.
of Nashville, 555 U.S. 271, 277-78 (2009) (discussing the opposition clause of Title VII’s
anti-retaliation provision); Anduze v. Florida Atlantic Univ., 151 F. App’x 875, 877 (11th
Cir. 2005) (discussing the participation clause of Title VII’s anti-retaliation provision).
Defendant argues that Plaintiff has failed to state a claim because a request for a religious
accommodation cannot alone constitute a statutorily protected expression. Defendant
argues that because the religious accommodation request did not oppose unlawful
discrimination and did not occur during a proceeding concerning an unlawful employment
practice, it cannot constitute a statutorily protected expression.
The Court need not decide whether a request for a religious accommodation,
standing alone, constitutes a statutorily protected activity because Plaintiff has also alleged

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that she engaged in a protected activity by opposing the denial of her request for a religious
accommodation. First, Plaintiff opposed the denial of her request for a religious accommodation
by writing a letter to her employer where she complained about an unlawful employment
practice 4, to wit: the denial of her requested accommodation. Compl. ¶ 17; see Crawford, 555
U.S. at 276 (“When an employee communicates to her employer a belief that the employer has
engaged in ... a form of employment discrimination, that communication” virtually always
“constitutes the employee’s opposition to the activity.”) (internal citations omitted). Next,
Plaintiff engaged in opposition conduct by attempting to swap her Sunday shifts with co-workers
and “refusing to follow [her] supervisor’s order” to work on Sundays because she believed the
order was discriminatory. Compl. ¶¶ 18-21; Crawford, 555 U.S. at 276 (noting that the
“opposition clause” also protects passive forms of opposition including an employee’s refusal to
follow a supervisor’s discriminatory order). Finally, Plaintiff alleges that she was terminated
because of her opposition to Defendant’s denial of her request for a religious accommodation.
Compl. ¶ 51.
Accordingly, the Court finds that Plaintiff has stated a valid claim of retaliation.
IV.

CONCLUSION

Based on the foregoing, it is ORDERED AND ADJUDGED that:
1.

Defendant’s Motion to Dismiss [ECF No. 12] is GRANTED IN PART and

DENIED IN PART;
2.

Counts II and VI are DISMISSED WITH PREJUDICE; and

3.

Defendant shall answer the remaining counts in the Complaint within fourteen

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Plaintiff has met her burden of demonstrating that she had a good-faith and
reasonable belief that she was being subjected to an unlawful employment practice. Weeks v.
Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002) (citing Little v. United Tech., Carrier
Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)).
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(14) days of the entry of this Order.
DONE AND ORDERED in Chambers at Miami, Florida, this 4th day of October, 2017.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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