Opinion
CASE NO. 01-2607-CIV-SEITZ
July 24, 2001
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Defendant The Wet Seal, Inc. ["Wet Seal"], a Delaware corporation, has moved to dismiss Floridian Plaintiff Lillian Pabon's ["Pabon"] lawsuit for failure to state a claim under FED. R. Civ. P. 12(b). Title 28, section 1332 of the United States Code vests this Court with subject-matter jurisdiction to resolve this dispute. ( See Def.'s Not. of Removal, Jun. 20, 2001, at 2 (citing Plaintiffs stipulation that damages exceed 575,000).) Pabon alleges that Wet Seal violated the Florida Civil Right Act, FLA. STAT. ANN. § 760.10 et seq. ["FCRA"], by firing her because of her age, 36. ( See Id. (Compl. ¶ 7.)) This specific allegation forecloses Pabon's FCRA suit.
Although FCRA and its federal counterparts, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provide different remedies for age discrimination, courts have found that the same analytical framework applies. FCRA and ADEA are governed by the same standards of proof. See, e.g., Louis v. Encore Computer Corp., 949 F. Supp. 836, 840 (S.D. Fla. 1996) (King, J.); Pettis v. Brown Group Retail, Inc., 896 F. Supp. 1163, 1165 n. 2 (N.D. Fla. 1995); Bell v. Desoto Mem'l Hosp., Inc., 842 F. Supp. 494, 497 (M.D. Fla. 1994); see also Florida Dep't of Comm. Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991). Hence, to establish a prima facie case of age discrimination, Pabon must demonstrate that she falls within the class protected under federal and state law—persons between the ages of 40 and 70. See Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1346 (11th Cir. 2000) (perceiving no error in trial judge's instruction, during ADEA/FCRA case. that plaintiff must belong to protected group "40 years of age or over"); see also Carisoti v. Post-Newsweek Stations of Florida, 956 F. Supp. 994, 1000, 1005 (S.D. Fla. 1996) (Ungaro-Benages, J.); Louis, 949 F. Supp. at 838. Plaintiff has affirmatively pled that she does not belong to the class protected by FCRA because she was 36 years of age at the time of her termination. (Compl. ¶ 7.) It is therefore
ORDERED that Wet Seal's Motion to Dismiss [D.E. No. 1] is GRANTED, and this case DISMISSED with prejudice. Any pending motions are DENIED as moot. This case is CLOSED.