Harapeti v. CBS Television Stations Inc.

SILVA HARAPETI, Plaintiff, v. CBS TELEVISION STATIONS INC., Defendant.

No. 20-22995-CIV-WILLIAMS

United States District Court, S.D. Florida

July 2, 2021

REPORT AND RECOMMENDATION

LAUREN F. LOUIS, UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on Defendants CBS Television Stations Inc., CBS Broadcasting, Inc. and CBS Corporation's Motion to Dismiss Plaintiff's Third Amended Complaint (ECF No. 43). This Motion was referred to the undersigned pursuant to 28 U.S.C. § 636 and the Magistrate Judge Rules of the Local Rules of the Southern District of Florida, by the Honorable Kathleen M. Williams United States District Judge for a report and recommendation (ECF No. 68). Having reviewed the Motion to Dismiss Plaintiff's Response (ECF No. 50), Defendants' Reply (ECF No. 51) and being otherwise duly advised on the matter the undersigned RECOMMENDS that Defendants' Motion to Dismiss be GRANTED, in part.

I. BACKGROUND

This action was filed by Harapeti individually and on behalf of other similarly situated individuals against Defendants CBS Television Stations, Inc. (“CBS Television”), CBS Broadcasting, Inc. (“CBS Broadcasting”) and CBS Corporation (“CBS Corporation”) (collectively “CBS” or “Defendants”)^[[1] for Defendants' alleged violation of the Equal Pay Act 1936, 29 U.S.C. § 206, et seq. (“EPA”); unlawful discrimination and retaliation predicated on Plaintiff's sex (gender) and age in violation of Title VII of the Civil Rights Act of 1964 as amended (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Florida Civil Rights Act of 1992, Florida Statutes, Chapter 760, et seq. (“FCRA”); and for intentional and negligent infliction of emotional distress (ECF No. 40). While initially filed in state court, this matter was removed to the Southern District of Florida on July 21, 2020 (ECF No. 1).

As stated in the Third Amended Complaint, Plaintiff was jointly employed by Defendants as a freelance reporter and paid on a per-diem basis. Plaintiff alleges that each time she was hired, she was assured that she would be considered for a full-time reporter position when an opening became available (ECF No. 40 at ¶ 20). According to Plaintiff, despite various opportunities for full-time positions becoming available, she was never offered one because of Defendants' “systematic practice of giving full-time employment contracts, top news story assignments, and increased salaries to both males and younger female employees” (id. at ¶ 23). In her Third Amended Complaint, Plaintiff identifies several full-time positions that became available during her employment that were offered to “younger, less experienced” females, despite “inquir[ing] about the position[s] on multiple occasions” and despite assurances that she would be considered when an opening became available (id. at ¶¶ 28-32). Plaintiff also alleges that “male employees were given more resources and greater choice of story selection, along with other income opportunities” (id. at ¶ 34). For example, Plaintiff states that she was told she “could not have her own personal business and work for Defendant as a freelancer simultaneously, ” while male employees “were never questioned regarding their own side businesses” (id. at ¶¶ 39-42). Plaintiff further claims that “female freelance employees got paid at a lower rate than their male counterparts for equal work” and “Defendant has consistently hired men at considerably higher rates than women” (id. at ¶¶ 57-58).

In addition, Plaintiff alleges that she was intimidated and retaliated against for voicing complaints to management. She states that in May 2017, Defendants had a meeting with her “just to tell her not to report issues she was having at work to Human Resources, the General Manager, or to any of her superiors” (id. at ¶ 47). Plaintiff also describes being “assaulted, both verbally and physically, by individuals whom would physically impact her in the area she was placed to cover” and indicates that after reporting incidents where she had been assaulted, she was told by the Vice President of News, “this is not a whining session” and “[t]he fact is that people are shitty people and we have to deal with it. We all create our own perception and reality around what happens to us” (id. at ¶¶ 72-73). Plaintiff further claims that “Defendant failed to take any corrective action to Plaintiff's complaints about harassment and discrimination instead condoning and fostering an environment where sexual assault and abusive behavior was not only acceptable, but it was the norm” (id. at ¶ 47). Further, Plaintiff claims Defendants retaliated against her, and “after years of continuously being subjected to a hostile work environment and continuously being passed over for full-time positions to younger female employees, having male counterparts continuously given preferential treatment and higher pay, and continuously enduring verbal and physical assaults while on the job with not a single corrective action taken, and after Plaintiff continuously complained about all of this, on or about March 16, 2018, Defendant constructively discharged Plaintiff” (id. at ¶ 82).

In her Third Amended Complaint, Plaintiff raises eleven counts: age discrimination in violation of the Age Discrimination in Employment Act (Count I); sex discrimination in violation of Title VII of the Civil Rights Act of 1964 as amended (Count II); discrimination in compensation against Defendants CBS Television Stations, Inc., CBS Broadcasting Inc., and CBS Corporation under the Equal Pay Act of 1963, 29 U.S.C. § 206, et seq. (Counts III-V); retaliation in violation of Title VII (Count VI); age discrimination in violation of the Florida Civil Rights Act of 1992, Florida Statutes, Chapter 760, et seq. (Count VII); sex discrimination in violation of the FCRA (Count VIII); retaliation in violation of the FCRA (Count IX); intentional infliction of emotional distress (Count X); and negligent infliction of emotional distress (Count XI). In addition to bringing EPA claims on behalf of herself and other similarly situated, Plaintiff also sought conditional certification of a collective action under the Equal Pay Act of 1963 (ECF No. 38).

Defendants seek dismissal with prejudice of Counts I, II, IV, V, VI, VII, VIII, IX, and X, in their entirety, as well as the claim for a collective action in Count III. Relevant to the instant Motion, the undersigned has since issued a report and recommendation concluding Plaintiff's request for conditional certification of a collective action should be denied (ECF No. 63), which was adopted (ECF No. 64).

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court's consideration is limited to the allegations in the complaint. See GSW, Inc. v. Long Cty., 999 F.2d 1508, 1510 (11th Cir. 1993). All factual allegations are accepted as true and all reasonable inferences are drawn in the Plaintiff's favor. See Speaker v. U.S. Dep't. of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010); see also Roberts v. Fla. Power & Light Co., 146 F.3d 1305, 1307 (11th Cir. 1998). Although a plaintiff need not provide “detailed factual allegations, ” a complaint must provide “more than labels and conclusions.” Twombly, 550 U.S. at 555. “[A] formulaic recitation of the elements of a cause of action will not do.” Id. Rule 12(b)(6) does not allow dismissal of a complaint because the court anticipates “actual proof of those facts is improbable” but the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Watts v. Fla. Int'l Univ., 495 F.3d 1289 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 545).

III. ANALYSIS

Defendants make the following arguments in their motion to dismiss: (1) Plaintiff fails to state an EPA collective action claim; (2) Plaintiff's Title VII and ADEA disparate treatment and retaliation claims are time-barred and should be dismissed; (3) Plaintiff's FCRA disparate treatment and retaliation claims should fail; (4) Plaintiff cannot establish a timely hostile work environment claim under Title VII or the FCRA; (5) Plaintiff fails to allege facts sufficient to support her intentional infliction of emotional distress claim; and (6) Plaintiff fails to allege a joint employer relationship. Based on these arguments, Defendants seek dismissal with prejudice of Counts I, II, IV, V, VI, VII, VIII, IX, and X, in their entirety, as well as the claim for a collective action in Count III. Defendants do not seek dismissal of Plaintiff's individual claims under Count III or claim for negligent infliction of emotional distress under Count XI.

In Response, Plaintiff avers that (1) she has established a prima facie case under the EPA; (2) her collective action claims have been sufficiently pled; (3) her Federal Discrimination claims are not time barred, and such an argument regarding status of limitations is an affirmative defense and inappropriate for a Motion to Dismiss; (4) the discrimination against her was a continuing action; and (5) her infliction of emotional distress claims are adequately pled.

A. EPA Collective Action

In Counts III, IV, and V, Plaintiff seeks-on behalf of herself and other similarly situated individuals-back-pay damages, an additional amount as liquidated damages equal to the amount of back pay awarded, costs, and reasonable attorney's fees for Defendants' alleged violations of the EPA. Defendants argue that “Plaintiff's attempt to expand this case beyond her individual claims should fail because Plaintiff...