Wolz v. Disney Store USA, LLC

Filing 20

ORDER granting 14 Disney's Motion to Dismiss Count 5 of the complaint. The Plaintiff shall file her amended complaint on or before April 20, 2018. Disney shall file its response to the amended complaint on or before April 27, 2018. (Amended Complaint due by 4/20/2018. Responses due by 4/27/2018). Signed by Judge Robert N. Scola, Jr on 4/16/2018. (mc)

United States District Court
for the
Southern District of Florida
Rebecca Wolz, Plaintiff,
v.
Disney Store USA, LLC, Defendant.

)
)
) Civil Action No. 17-24697-Civ-Scola
)
)

Order on Defendant’s Motion to Dismiss
The Defendant Disney Store USA, LLC (“Disney”) has filed a motion to
dismiss (ECF No. 14). Asserting claims for violations of the Fair Labor
Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the
Florida Private Whistleblower Act (“FWA”), the Plaintiff Rebecca Wolz alleges, in
pertinent part, that she complained to her supervisors that one of her coworkers was stalking her, and when they failed to take action, she was
constructively discharged. Disney argues that the Plaintiff’s FWA claim should
be dismissed because she did not engage in any statutorily protected activity.
For the reasons set forth below, the Court grants Disney’s motion to dismiss
(ECF No. 14).
1. Background
The Plaintiff was an employee of Disney working as an assistant
manager. She alleges that one of her female co-workers was obsessed with
having a romantic relationship with her, and repeatedly stalked her on a daily
basis. When the Plaintiff complained to her supervisors, they allegedly ignored
her complaints and took no corrective action. The Plaintiff apparently rejected
the co-worker’s advances, after which she allegedly endured a hostile work
environment, resulting in her constructive discharge. In Count 5 of the
complaint (ECF No. 1), the Plaintiff asserts a claim for violation of the FWA,
alleging that Disney retaliated against her because she refused and objected to
being stalked by her co-worker.
2. Legal Standard
When considering a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the Court must accept all of the
complaint’s allegations as true, construing them in the light most favorable to
the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A
pleading need only contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading

standard Rule 8 announces does not require detailed factual allegations, but it
demands more than an unadorned, the-defendant-has-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A
plaintiff must articulate “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” will
not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable
and generous departure from the hyper-technical, code-pleading regime of a
prior era, but it does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Iqbal, 556 U.S. at 679.
Yet, where the allegations “possess enough heft” to suggest a plausible
entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557.
“[T]he standard ‘simply calls for enough fact to raise a reasonable expectation
that discovery will reveal evidence’ of the required element.” Rivell v. Private
Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (citation omitted).
“And, of course, a well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and ‘that a recovery is very
remote and unlikely.’” Twombly, 550 U.S. at 556 (citation omitted).
3. Analysis
The FWA prohibits an employer from taking “any retaliatory personnel
action against an employee because the employee has [o]bjected to, or refused
to participate in, any activity, policy, or practice of the employer which is in
violation of a law, rule, or regulation.” Fla. Stat. § 448.102(3). The FWA defines
“law, rule, or regulation” as including “any statute or ordinance or any rule or
regulation adopted pursuant to any federal, state, or local statute or ordinance
applicable to the employer and pertaining to the business.” Fla. Stat.
§ 448.101(4). “The purpose of the FWA is not only to protect employees from
unlawful termination, but to encourage employers to abide by the various
regulations that govern them.” Pinder v. Bahamasair Holdings Ltd., Inc., 661 F.
Supp. 2d 1348, 1351-52 (S.D. Fla. 2009) (King, J.). In order to state a claim for
violation of the FWA, a plaintiff must allege that she objected to or refused to
participate in an unlawful activity, that she suffered an adverse employment

action, and that a causal relationship exists between her objection and the
employment action. Gleason v. Roche Labs., Inc., 745 F. Supp. 2d 1262, 1270
(M.D. Fla. 2010).
Disney argues that the Plaintiff’s allegations fail to state a claim for
violation of the FWA because she did not engage in any statutorily protected
conduct, as the law, rule, or regulation encompassed by the FWA must be
applicable to Disney and its business, and, in any event, that stalking does not
constitute an “activity, policy, or practice of the employer,” under the FWA. The
Plaintiff maintains that the law, rule, or regulation complained of should not be
interpreted so narrowly, relying upon a footnote in Forrester v. John H. Phipps,
Inc., 643 So. 2d 1109, 1111 n.2 (Fla. 1st DCA 1994), and argues that Disney’s
failure to address the co-worker’s behavior amounted to a ratification of such
behavior.
The Plaintiff’s reliance on Forrester is misplaced, as this Court has
considered and effectively rejected such an interpretation. Indeed, in Pinder,
the Court stated explicitly that “[t]he last phrase of the definition indicates that
the conduct complained of must be in violation of a law, rule or regulation that
is somehow more specifically applicable to the business, as opposed to the
public at large.” Pinder, 661 F. Supp. 2d at 1353. The Court further stated that
“laws against theft, battery, threats, and sexual harassment are generally
applicable laws.” Id. More recently, the Court directly addressed Forrester, in
which the Florida court stated in a footnote that “[g]iven the placement of
commas in section 448.101(4), we view the phrase ‘pertaining to the business’
as modifying only a ‘local statute or ordinance.’” Forrester, 643 So. 2d at 1111
n.2. In rejecting the Florida court’s rationale, this Court aptly noted that such
construction would produce an illogical result—namely, broad protection for
purported violations of state or federal law, and narrow protections for
purported violations of local laws. Little v. Foster Wheeler Constructors, Inc., No.
09-61003-CIV, 2010 WL 2035546, at *7 (S.D. Fla. May 24, 2010) (Seltzer, Mag.
J.). In the present case, the Plaintiff alleges that she complained of violations of
the Florida stalking statute, which is not a law applicable to Disney’s business,
and therefore not covered by the FWA. As such, the Plaintiff fails to state a
claim for violation of the FWA. Because Disney’s first argument is dispositive,
the Court does not consider the remaining argument.
4. Conclusion
Accordingly, Disney’s motion to dismiss Count 5 of the complaint (ECF
No. 14) is granted, with leave to amend. The Plaintiff shall file her amended
complaint on or before April 20, 2018. Disney shall file its response to the
amended complaint on or before April 27, 2018.

Done and ordered at Miami, Florida, on April 16, 2018.
_______________________________
Robert N. Scola, Jr.
United States District Judge