Rodriguez-Hernandez v. Victoria's Secret Stores, LLC
ORDER granting 10 Motion to Dismiss for Failure to State a Claim as to Count I. Signed by Judge Federico A. Moreno on 6/4/2021. See attached document for full details. (zgz)
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
Case Number: 21-21102-CIV-MORENO
VICTORIA'S SECRET STORES, LLC,
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ORDER GRANTING PARTIAL MOTION TO DISMISS
THIS CAUSE came before the Court upon Motion to Dismiss for Failure to State a Claim
as to Count One (D.E. 10), filed on April 22, 2021.
THE COURT has considered the motion, the response, the reply, pertinent portions of the
record, and being otherwise fully advised in the premises, it is
ADJUDGED that the motion is GRANTED.
Plaintiff was a merchandise processor at Victoria's Secret for three years. She was fired in
2019 due to numerous absences from work. She now sues for violation of the AD A's "associational
discrimination" provision, retaliation under the FMLA, and interference with rights under the
FMLA. Defendant only moves to dismiss Count I-associational discrimination under the ADA.
Plaintiffs ADA claim is dismissed because she fails to plausibly allege facts upon which relief
may be granted. The essence of her claim is that she was fired because her employer either thought
she would be distracted (but not too distracted) at work by her mother's disability or because her
employer made the unfounded assumption that Plaintiff would need to be absent a lot in order to
take care of her disabled mother.
However, the allegations demonstrate that she was fired because she was consistently
absent from work. While these allegations may amount to an FMLA violation, they are not an
associational ADA violation because such prolonged absences make Plaintiff unqualified for the
position and being qualified for the job at the time of termination is a necessary element of
Plaintiffs prima facie claim. Thus, the partial motion to dismiss is GRANTED.
The complaint has very few factual allegations. Notably, Plaintiff alleges that Defendant
accused her of having 18 unexcused absences and then terminated her. The complaint also alleges
"Defendant's discriminatory intent was motivated by the perception that Plaintiff might be
mentally distracted by the need to care for her disabled mother, and Defendant's unfounded
assumption that Plaintiff would need to take additional FMLA or other medical leave in order to
care for her mother." Defendant's briefing characterizes that allegation as conclusory-the Court
A. Fed. R. Civ. P. 12(b)(6)
To state a claim, Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain
statement of the claim showing that the pleader is entitled to relief." While the Court must consider
the allegations contained in the plaintiffs complaint as true, this rule "is inapplicable to legal
conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) 1 In
addition, the complaint's allegations must include "more than an unadorned, the-defendantunlawfully-harmed-me accusation." Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,555,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, "[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice." Id (citing Twombly, 550 U.S.
at 555, 127 S.Ct. 1955).
In practice, to survive a motion to dismiss, "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim of relief that is plausible on its face."' Id. (quoting
Twombly, 550 U.S. at 570, 127 S.Ct. 1955). 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. Id. The plausibility standard requires more than a sheer possibility that
a defendant has acted unlawfully. Id. Where a complaint pleads facts that are merely consistent
with a defendant's liability, it stops short of the line between possibility and plausibility of
entitlement to relief. Id. Determining whether a complaint states a plausible claim for relief is a
context-specific undertaking that requires the court to draw upon its judicial experience and
common sense. Id. at 679, 129 S.Ct. 1937. A court may dismiss a case with prejudice if the
allegations of a complaint, even when taken as true, afford no basis for relief or when amendment
would be futile. E.g., Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999); Chiron
Recovery Ctr., LLCv. United Healthcare Servs., Inc., 438 F. Supp. 3d 1346, 1356 (S.D. Fla. 2020).
B. ADA Associational Disability Claim
To establish a prima facie case of association discrimination under the ADA, the plaintiff
must show that: (1) she was subjected to an adverse employment action; (2) she was qualified for
the job at that time; (3) her employer knew at that time that she had a relative with a disability; and
(4) the adverse employment action occurred under circumstances which raised a reasonable
inference that the disability of the relative was a determining factor in the employer's decision.
Sutherland v. Glob. Equip. Co., 789 F. App'x 156, 161 (11th Cir. 2019) (citing Wascura v. City of
S. Miami, 257 F.3d 1238, 1242 (11th Cir. 2001)).
Because being "qualified" for the job and the employer's reason for termination are related, I
will address them together. The Eleventh Circuit has made clear that job presence is a prerequisite
for being qualified. Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1306 (11th Cir. 2000)
(collecting cases). In fact, Plaintiff admits this in her briefing. "An employer's decision to
terminate an employee with a disabled relative is within legal bounds where it is based on an
established record of past absences, or a clear indication of the employee's intent to take additional
time off to care for the disabled relative." Pl. Resp. at 4.
Thus, the only true dispute is over whether Plaintiff adequately alleged that Defendant fired
her because of the absences or for some other, potentially illegal reason. As noted above, the
complaint does nothing to prove that Plaintiffs termination was because her employer was worried
that she would be distracted on the job or an unfounded assumption that she would need lots of
time off. Indeed, her employer cited 18 unexcused absences-an employer would not have to
assume much to know that job presence is an issue. Plaintiff cites no statements from her superiors,
emails about her performance, or conversations with co-workers that would support an inference
that she was terminated for any reason other than the fact that her chronic absences rendered her
unqualified for the position. Count I is dismissed for failure to state a claim.
DONE AND ORDERED in Chambers at Miami, Florida, this
of June 2021.
TES DISTRICT JUDGE
Copies furnished to:
Counsel of Record
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