Opinion
CASE NO. 12-23482-CV-ALTONAGA/Simonton
12-07-2012
VERNELL DECOSTA, Plaintiff, v. ARG RESOURCES, LLC d/b/a ARBY'S, Defendant.
ORDER
THIS CAUSE came before the Court on Defendant, ARG Resources, LLC d/b/a Arby's ("Arby's[']" or "Defendant['s]") Motion to Dismiss, or in the Alternative, For More Definite Statement ("Motion") [ECF No. 4], and Arby's Memorandum of Law in Support . . . ("Memorandum") [ECF No. 5], both filed on October 16, 2012. Plaintiff Vernell Decosta ("Decosta" or "Plaintiff") filed a Response in Opposition . . . ("Response") [ECF No. 12] on October 30, 2012. Arby's filed its Reply ("Reply") [ECF No. 14] on November 9, 2012. The Court has carefully considered the parties' written submissions and applicable law.
I. BACKGROUND
The allegations set forth in the Complaint are taken as true.
Decosta "is a Jamaican Black male [who was] employed by [Arby's] for 14 years." (Compl. ¶ 9 [ECF No. 1]). Decosta alleges during his employment at Arby's, "his manager would treat non-Black and non-Jamaican similar employees better than Plaintiff based on Plaintiff's race and/or national origin in providing more work hours and better pay for white employees and non Jamaican employees." (Id. ¶ 9). Further, Decosta "claims [Arby's] manager Monica Franco would take hours out of Plaintiff's work schedule for discriminatory reason [sic][,]" and would give stolen money to certain employees who would clock Franco in for hours she did not work. (Id.). Decosta "claims that [sic] complained about discrimination to Monica Franco in June 2009 and was fired on in [sic] June 2009 in retaliation for his complaints." (Id.). This case arises from Arby's' alleged treatment of Decosta during his employment as well as Arby's termination of Decosta.
Decosta seeks declaratory and injunctive relief and damages under the Civil Rights Act of 1866, 42 U.S.C. section 1981 ("Section 1981"), and the Florida Civil Rights Act of 1992, Fla. Stat. section 760 ("FCRA"). (See id. ¶ 1). In Count I, Decosta alleges Arby's violated Section 1981 by discriminating against Decosta on account of his race. (See id. ¶¶ 10-33). In Counts II and IV, Decosta alleges Arby's violated the FCRA by discriminating against Decosta on account of his national origin and race, respectively. (See id. ¶¶ 34-45, 52-63). In Counts III and V, respectively, Decosta alleges Arby's violated Section 1981 and the FCRA by terminating Decosta in retaliation for Decosta's opposition to Arby's' unlawful employment practices. (See id. ¶¶ 46-51, 64-69).
The Complaint includes two counts numbered "IV," the second of which is labeled "Count IV: Retaliation in Violation of the FCRA." For ease of reference, the Court refers to this retaliation count as Count V.
II. LEGAL STANDARD
It is well established that "[t]o 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 an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (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. 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 (citing Twombly, 550 U.S. at 556). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949).
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). But pleadings that "are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679; see also Sinaltrainal, 578 F.3d at 1260 ("'[U]nwarranted deductions of fact' in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations.").
III. ANALYSIS
Arby's moves to dismiss Counts I, II, and IV of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing Decosta has failed to allege adequate factual detail to make out a prima facie case of discrimination under Section 1981 or the FCRA based on either disparate treatment or a racially hostile work environment. (See Mem. 5-9). Next, Arby's moves the Court to dismiss Counts III and V of the Complaint, similarly arguing Decosta "fails to provide factual allegations to support each required element of the retaliation claims he attempts to assert." (Id. 9). Finally, should the Court decline to dismiss the Complaint, Arby's alternatively moves the Court to require Decosta to provide a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). The Court addresses Arby's arguments in turn.
A. Counts I, II, and IV: Discrimination Under Section 1981 and the FCRA
The parties agree the FCRA discrimination claims (Counts II and IV), are subject to the same analysis as the discrimination claim under Section 1981 (Count I). As a result, the Court addresses these claims together under a Section 1981 analysis.
As an initial matter, the Court must determine what Decosta must allege in order to survive a motion to dismiss under Rule 12(b)(6). Decosta asserts he "needs only to provide enough facts, taken as true, to suggest intentional discrimination in a complaint." (Resp. 3 (citing Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008))). Arby's insists, "the primary way in which courts have analyzed whether a plaintiff has established the requisite inference of discrimination is to determine whether he has alleged facts that, if taken as true, would be sufficient to establish each of the prima facie elements of his claim." (Reply 2). According to Arby's, Decosta both fails to establish a prima facie case and fails to allege sufficient factual matter to support a reasonable inference of discrimination. (See id. 4).
"In the employment discrimination context, courts have recognized a fair amount of uncertainty as to what plaintiffs must allege in their pleadings in order to survive a motion to dismiss under Rule 12(b)(6)." Ashmore v. F.A.A., No. 11-CV-60272, 2011 WL 3915752, at *2 (S.D. Fla. Sept. 2, 2011) (discussing the development of pleading requirements in employment discrimination cases before and after Iqbal and Twombly). However, in light of Eleventh Circuit and Supreme Court precedent, it appears that if Decosta establishes a prima facie case of discrimination, the Complaint will likely survive this Rule 12(b)(6) Motion. See id. at *3. If the Complaint falls short of alleging such a prima facie case, the Court must then determine whether the allegations are nonetheless sufficient to survive the Motion. See id.
To establish a prima facie case of disparate treatment discrimination based on circumstantial evidence, Decosta must show: "(1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by a person outside his protected class or was treated less favorably than a similarly-situated individual outside his protected class." Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Although Maynard and Ashmore discuss pleading requirements in the context of Title VII discrimination claims as opposed to Section 1981 or FCRA claims, see Maynard, 342 F.3d at 1289; Ashmore, 2011 WL 3915752, at *1, both Title VII and Section 1981 "have the same requirements of proof and use the same analytical framework." Standard v. A.B.E.L., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
Although Decosta has satisfied the first and third elements by alleging he is a "Black individual of Jamaican national origin" (Compl. ¶ 6), and he was "terminated" (id. ¶ 8), Decosta has not established a prima facie case. To establish the fourth element, Decosta must "identify at least one similarly-situated employee who was treated differently than [Decosta]." Dawson v. Miami-Dade Cnty., No. 07-20126 CIV, 2008 WL 1924266, at *8 (S.D. Fla. 2008). Such a comparator "must be similarly situated in all relevant respects." Id. at *9 (internal quotation marks and citation omitted). Here, Decosta merely refers to other "non-Black and non-Jamaican similar employees." (Compl. ¶ 9). Such an allegation is insufficient to "identify any similarly-situation individual outside his class who did not experience discrimination." Ashmore, 2011 WL 3915752, at *4 (emphasis added).
Because Decosta fails to establish a prima facie case, the Court next considers whether the Complaint nonetheless states a claim by alleging sufficient factual matter to support a reasonable inference of discrimination. For the same reason the Complaint fails to establish a prima facie case, however, it also cannot support a reasonable inference of discrimination. In particular, the Complaint fails to "identify any specific nonminority employees . . . who were treated differently in other similar cases." Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1274 (11th Cir. 2004) (emphasis in original); see also Ashmore, 2011 WL 3915752, at *4 (finding the failure to identify a single comparator rendered the complaint fatally deficient even if the plaintiff was not required to allege a prima facie case). Thus, Counts I, II, and IV fail to state a claim for disparate treatment under either applicable pleading standard.
Next, Arby's argues, to the extent Decosta attempts to state a claim based on a racially hostile work environment, the Complaint "come[s] nowhere close to alleging facts that would support [the] required elements." (Mem. 7). Arby's also asserts if Decosta intended to allege both disparate treatment and hostile work environment claims within the same counts, this would violate the one-claim-per-count-rule under Federal Rule of Civil Procedure 10(b), and would independently support dismissal of Counts I, II, and IV. (See id. 5 n.3). Decosta does not respond to Arby's arguments regarding potential hostile work environment claims.
Failure to respond to arguments regarding particular claims in a motion to dismiss is a sufficient basis to dismiss such claims as abandoned or by default. See Hooper v. City of Montgomery, 482 F. Supp. 2d 1330, 1334 (M.D. Ala. 2007) (dismissing claims as abandoned where the plaintiff failed to respond to the defendant's arguments concerning the dismissal of those claims) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)); Phan v. Accredited Home Lenders Holding Co., No. 3:09-cv-328-J-32TEM, 2010 WL 1268013, at *5 (M.D. Fla. Mar. 29, 2010) (dismissing two counts of the complaint as abandoned when the plaintiff failed to respond to arguments for dismissal and did not re-plead the allegations in a subsequent complaint) (citations omitted); W. Coast Life Ins. Co. v. Life Brokerage Partners LLC, No. 08-80897-CIV, 2009 WL 2957749, at *11 (S.D. Fla. Sept. 9, 2009) ("Plaintiff failed to respond to Defendant PVA's motion to dismiss Count 11, which alone constitutes grounds for the Court to dismiss this count by default. See S.D. Fla. L.R. 7.1A."). Because Decosta has failed to respond to Arby's' arguments that Counts I, II, and IV fail to state a claim based on a theory of a hostile work environment, the Court finds any such claims abandoned. The Court therefore does not address Arby's' arguments regarding dismissal of Counts I, II, and IV for violating the one-claim-per-count rule of Federal Rule of Civil Procedure 10(b).
B. Counts III and V: Retaliation
The parties again agree the analytical framework is the same under both Section 1981 and the FCRA for a claim of retaliation; thus, the Court addresses both retaliation claims together under a Section 1981 analysis.
To establish a prima facie retaliation claim under Section 1981, Decosta must allege that: "(1) [he] engaged in a statutorily protected activity; (2) [he] suffered an adverse employment action; and (3) [he] established a causal link between the protected activity and the adverse action." Bryant v. Dougherty Cnty. Sch. Sys., 382 F. App'x 914, 917-18 (11th Cir. 2010) (citing Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009)). Decosta satisfies the causal link element if he provides "sufficient evidence of knowledge of the protected expression and that there was a close temporal proximity between this awareness and the adverse action." Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (internal quotation marks, internal alteration, and citation omitted).
Decosta appears to argue he need not make out a prima facie case in the Complaint for his retaliation claims. Although Decosta asserts he "puts Defendant on notice, in Paragraph 9 of the Complaint, [that] retaliatory conduct has occurred" (Resp. 4), he does not suggest what, precisely, he must allege to state a retaliation claim or how his allegations fulfill that pleading requirement. The Court considers whether the Complaint establishes a prima facie claim for retaliation. See Hopkins v. Saint Lucie Cnty. Sch. Bd., 399 F. App'x 563, 566 (11th Cir. 2010) (affirming dismissal of a retaliation claim for failure to state a prima facie claim of retaliation after applying the "inference of discrimination" standard to the plaintiff's disparate treatment claims.). --------
Even assuming Decosta established he engaged in a statutorily protected activity, Decosta has not sufficiently alleged a causal link. The sole factual allegation on point is: "Plaintiff claims that [sic] complained about discrimination to Monica Franco in June of 2009 and was fired on in [sic] June of 2009 in retaliation for his complaints." (Compl. ¶ 9). Thus, at best Decosta alleges he complained to his manager about discrimination in June, and he was also fired in June. But Decosta "does not allege who decided to terminate his employment, and does not allege that the decision maker was aware of [Decosta's] complaint when he or she made the decision to fire [Decosta]." Gerbier v. J.R. Eight, Inc., No. 11-21040-JLK, at *7-8 (S.D. Fla. Aug. 8, 2011), ECF No. 7. As a result, Decosta has not satisfied the causation element of his retaliation claim. See id. at *8.
C. Alternative Motion for a More Definite Statement
As the Court finds the Complaint fails to state a claim upon which relief may be granted, the Court does not address Arby's alternative argument regarding whether Decosta must provide a more definite statement.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that the Motion [ECF No. 4] is GRANTED. Decosta may file an amended complaint on or before December 21, 2012.
DONE AND ORDERED at Miami, Florida, this 7th day of December, 2012.
/s/ _________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE cc: counsel of record