Perrero et al v. Walt Disney Parks And Resorts U.S. Inc.

MOTION to dismiss for failure to state a claim and Memorandum of Law

M.D. Fla.January 10, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION LEONARDO PERRERO, et al., Plaintiffs, v. WALT DISNEY PARKS AND RESORTS U.S., INC., Defendant. / Case No. 6:16-cv-02144-CEM-TBS DISPOSITIVE MOTION DEFENDANT WALT DISNEY PARKS AND RESORTS U.S., INC.’S MOTION TO DISMISS AND MEMORANDUM OF LAW Pursuant to Federal Rule of Civil Procedure 12(b)(6), Walt Disney Parks and Resorts U.S., Inc. (“Disney Parks”) respectfully moves for an order dismissing the Complaint (Doc. 1). INTRODUCTION In October 2014, Disney Parks announced a reorganization of its information-technology (“IT”) department through which certain IT functions would be assumed by outside commercial vendors. The reorganization was intended to transform Disney Parks’s IT department from one concentrating on maintenance of existing IT systems to one concentrating on developing new technologies. Disney Parks outsourced the maintenance, quality-assurance, and related work to specialized, outside commercial vendors, and the employees affected by the reorganization were given the opportunity to apply for other jobs at Disney Parks or its affiliates. This Court has already dismissed two putative class action lawsuits arising from that reorganization. In January 2016, two of the plaintiffs here, Leonardo Perrero and Dena Moore, brought lawsuits alleging that Disney Parks had conspired with the outside commercial vendors to make false statements on visa applications filed on behalf of the vendors foreign employees. Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 1 of 14 PageID 106 2 The Court (Presnell, J.) dismissed both Perrero’s and Moore’s complaints, finding that the statements challenged by Plaintiffs were either not false or had not in fact been made. See Perrero v. HCL America, Inc., Case No. 6:16-cv-112-Orl-31TBS, 2016 WL 5943600, at *4 (M.D. Fla. Oct. 13, 2016); Moore v. Cognizant Technology Solutions, Case No. 6:16-cv-113-Orl- 31TBS, 2016 WL 5943593, at *4 (M.D. Fla. Oct. 13, 2016). The instant Complaint is equally without merit and should likewise be dismissed. First, Plaintiffs’ claim for alleged “procedural violations” of the Older Workers Benefit Protection Act (“OWBPA”) should be dismissed because Plaintiffs plead no facts to plausibly support such a claim. This claim also fails for the independent reason that Plaintiffs did not first exhaust their administrative remedies by raising the alleged violation with the Equal Employment Opportunity Commission (“EEOC”). Nor is the relief requested by Plaintiffs available under the OWBPA, and, in any event, Plaintiffs may not pursue their OWBPA claim on behalf of a class under Rule 23.1 Second, Plaintiffs’ claims of race and national origin discrimination under Title VII and Section 1981 must be dismissed because the Complaint fails to state a claim of intentional discrimination or even to allege facts sufficient to put Disney Parks on notice of the basis for those claims. Third, the individual Title VII claims of certain Plaintiffs must also be dismissed because they failed to exhaust administrative remedies. 1 On January 9, 2017, Plaintiffs’ counsel advised counsel for Disney Parks of Plaintiffs’ intent not to pursue the OWBPA claims asserted in the Complaint (Counts III, VI). However, as an amended complaint has not yet been filed, and in light of the deadline for Disney Parks to file a response to the Complaint, Disney Parks addresses the bases for their dismissal in this motion. Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 2 of 14 PageID 107 3 MEMORANDUM OF LAW I. Standard of Review The pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), apply to discrimination cases under both Title VII, 42 U.S.C. § 2000e (“Title VII”) and 42 U.S.C. § 1981 (“Section 1981”). See, e.g., Hopkins v. Saint Lucie Cnty. School Board, 399 F. App’x 563, 564 (11th Cir. 2010). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 662. Under Rule 8, a complaint must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. Therefore, a complaint must plead “sufficient factual matter” to support a reasonable inference of discrimination. Henderson v. JP Morgan Chase Bank, N.A., 436 F. App’x 935, 937 (11th Cir. 2011). Allegations that are merely “compatible with” a claim of unlawfulness do not suffice, and where the facts alleged are “more likely explained by[] lawful” conduct, the complaint fails. Twombly, 550 U.S. at 680. Although the Court must generally assume that the allegations in the complaint are true on a motion to dismiss pursuant to Rule 12(b)(6), the Court is not required to accept the veracity of legal conclusions or factual allegations that are not “well-pleaded.” American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010). The Complaint falls far short of meeting these pleading requirements. II. The Court Should Dismiss Counts III and VI for Alleged Violations of the OWBPA A. Plaintiffs Have Not Stated a Claim for Failure “to Provide Notice” Under the OWBPA Plaintiffs claim individually (Count VI) and on behalf of a purported class (Count III) that Disney Parks violated the OWBPA by failing to provide certain unspecified “notices required by the procedures outlined in the OWBPA.” Compl. ¶¶ 76, 94. Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 3 of 14 PageID 108 4 The OWBPA, which was an amendment to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., (“ADEA”), “requires that waivers of potential age-discrimination claims be knowing and voluntary,” and, to that end, sets forth specific notice requirements.2 29 U.S.C. §§ 626(f); Burlison v. McDonald’s Corp., 455 F.3d 1242, 1245 (11th Cir. 2006). Where employers have failed to provide the requisite notice, waivers of ADEA claims are unenforceable. See Cummings-Harris v. Kaiser Foundation Health Plan of Georgia, Inc., 2013 WL 5350937, at *5 (N.D. Ga. Sept. 23, 2013) (citing Griffin v. Kraft Gen. Foods, Inc., 62 F.3d 368, 373 (11th Cir. 1995)). 3 Plaintiffs, however, do not allege that they signed or were even asked to sign waivers of any kind, much less waivers of age discrimination claims. Nor do they allege that Disney Parks has attempted to enforce any such waivers against them. Unless an employer is attempting to enforce an ADEA waiver or an employee attempting to avoid one, there simply is no claim under the OWBPA. See Gray v. Oracle Corp., 2006 WL 2987936, at *1 (D. Utah Oct. 17, 2006). All the Complaint alleges is that Disney Parks “failed to provide each Plaintiff with the notice required by OWBPA.” Compl. ¶¶ 52, 76. That is precisely the sort of formulaic recitation of the elements of a cause of action that Iqbal and Twombly prohibits. Uppal v. Hosp. 2Although the Complaint does not specify which section of the OWBPA was violated, Plaintiffs may be relying on the section requiring an employer to disclose in writing the job titles and ages of those employees retained or not retained when an employer seeks to obtain a release of ADEA claims in the context of a group layoff. 29 U.S.C. § 626(f)(1)(H)) The OWBPA also contains other conditions that could potentially be characterized as “notice,” such as requiring that employees be given a specific period of time within which to consider entering into the release. 29 U.S.C. § 626(f)(1)(F). Whatever the “notice” on which Plaintiffs intended to rely, their OWBPA claims fail for the reasons set forth above. 3 The ADEA prohibits employment discrimination against persons who are 40 or older. 29 U.S.C. §§ 623(a)(1), 631. Six of the plaintiffs were under 40 on January 31, 2015, and therefore cannot bring a claim under the OWBPA. See charges of discrimination, Exs. A-9; A-12; A-13; A-19; A-23; A-28 (showing that Plaintiffs Farooq, Houle, Jagadesan, Lynch, Moss and Rossi were under 40 on the termination date). This Court may consider such documents when they are appended to a motion to dismiss. See, e.g., Hodge v. Orlando Utilities Commission, 2009 WL 5067758, at *3 (M.D. Fla. Dec. 15, 2009) (considering EEOC charges of discrimination attached to motion to dismiss); Camp v. Bridgeway Center, Inc., 2014 WL 5430277, at *5 (N.D. Fla. Oct. 22, 2014) (agency documents not attached to complaint considered on motion to dismiss); Garry v. Walgreen Co., 2013 WL 3449196, at *1, n. 1 (M.D. GA. July 9, 2013) (considering an employee information form attached as an exhibit to the defendant’s motion to dismiss because the date of termination was central to the plaintiff’s Title VII and Section 1981 claims). Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 4 of 14 PageID 109 5 Corp. of America, 482 F. App’x 394, 395 (11th Cir. 2012). Plaintiffs have not alleged a single fact in support of their OWBPA claims, and they should be dismissed. B. Plaintiffs Failed to Exhaust Their Administrative Remedies Plaintiffs are also barred from filing an action under the OWBPA because they did not first exhaust their administrative remedies by filing charges of discrimination with the EEOC alleging an OWBPA violation or a like or related claim.4 29 U.S.C. § 626(d); Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279-80 (11th Cir. 2004) (“the ‘scope’ of the judicial complaint is limited to the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination” (citation omitted)). No Plaintiff filed any charge that mentions the OWBPA or any waivers of age discrimination claims. In fact, four of the 30 Plaintiffs alleged no age discrimination at all.5 Those who did based their claims solely on a contention that their “replacements” were younger. See Exs. A-1-8; A-10-12; A-14-18; A-20-27; A-29-30. Plaintiffs here assert no age discrimination claim based on that allegation, nor do they suggest that Disney Parks attempted to obtain a waiver of such claims. Thus, a claim for violations of the OWBPA could not reasonably be expected from their charges—even those based on alleged age discrimination. See, e.g., Mulhall v. Advance Security, 19 F.3d 586, 589 n.8 (11th Cir. 1994) (finding promotion claim barred where charge mentioned only unequal pay); Anderson v. Embarq/Sprint, 379 F. App’x 924, 926-27 (11th Cir. 2010). 4 The Complaint makes no reference to the charges of discrimination that must be filed as a prerequisite to individual lawsuits under Title VII and the ADEA, but simply alleges that conditions precedent have been fulfilled. Compl. ¶ 34. 5 Plaintiffs Farooq, Jagadesan, Lynch, and Rossi did not raise age discrimination in their charges. See Exs. A-9; A- 13; A-19; A-28. Further, six other Plaintiffs failed to exhaust their administrative remedies. The arguments in Points IV.A and B below addressing the individual Title VII claims apply equally to the individual ADEA claims. . Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 5 of 14 PageID 110 6 C. The OWBPA Does Not Provide the Relief Plaintiffs Seek The OWBPA claims must also be dismissed for the independent reason that the statute does not provide a right of action for damages. See Cummings-Harris, 2013 WL 5350937, at *1 (every court to address the issue has held there is no independent cause of action for damages); Gray, 2006 WL 2987936, at *1. Similarly, the OWBPA does not provide injunctive relief other than to void a non-compliant waiver, which Plaintiffs do not seek. Krane v. Capital One Services, Inc., 314 F. Supp. 2d 589, 606-10 (E.D. Va. 2004); Whitehead v. Oklahoma Gas & Elec. Co., 187 F.3d 1184, 1191 (10th Cir. 1999). D. The ADEA Does Not Permit Rule 23 Class Actions Finally, the class remedy Plaintiffs seek under Rule 23 does not exist. Plaintiffs plead Count III “on behalf of the Class” under Rule 23. See Compl. ¶¶ 53-60, 74. But the ADEA, of which the OWBPA is a part, does not permit class actions under Rule 23. Instead, Plaintiffs must follow the procedures for opt-in collective actions outlined in 29 U.S.C. § 216(b). See, e.g., Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2001) (“Plaintiffs wishing to sue as a class under ADEA must utilize the opt-in class mechanism provided in 29 U.S.C. § 216(b) instead of the opt-out class procedure provided in Fed. R. Civ. P. 23); King v. General Elec. Co., 960 F.2d 617, 621 (7th Cir. 1992) (the procedures set forth in Section 216(b) preempt the class action procedures under Rule 23) (citing LaChapelle v. Owens–Illinois, Inc., 513 F.2d 286, 289 ((5th Cir.1975)). Plaintiffs’ class claim therefore may not be maintained under Rule 23, and Count III should be dismissed. Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 6 of 14 PageID 111 7 III. The Court Should Dismiss Counts I, II, IV and V for National Origin and Race Discrimination Plaintiffs’ claims for discrimination on the basis of national origin (Title VII; Counts I, IV) and race (Section 1981; Counts II, V) should likewise be dismissed for failure to state a claim. A. Plaintiffs Fail to Allege a Plausible Claim of Race or National Origin Discrimination To meet the standards of Twombly and Iqbal, a plaintiff must plead facts that either support a prima facie case under Title VII and Section 1981 or otherwise create a plausible inference of discrimination. Johnson v. Infirmary Health Systems, Inc., 2013 WL 6062587, at *3 (S.D. Ala. Nov. 18, 2013) (collecting cases). A conclusory recitation of the elements of a Title VII or Section 1981 claim, even if coupled with an allegation that the complained-of actions were “because of” a protected characteristic, is a legal conclusion not entitled to a presumption of truth, and will not suffice to state a claim. Foster v. Select Medical Corp., 2012 WL 1415499, at *4 (M.D. Fla. Apr. 24, 2012).6 A prima facie case under either Title VII or Section 1981 requires a plaintiff to plead facts sufficient to establish that he or she is a member of a protected class, was qualified for the job, was terminated, and was treated less favorably than similarly situated employees outside of the protected class. Crisman v. Florida Atlantic Univ. Bd. of T’tees, 2016 WL 5682544, at *5 (11th Cir. Oct. 3, 2016); Hopkins v. St. Lucie County School Board, 399 F. App’x 563, 564-65 (11th Cir. 2010). In the context of a reduction-in-force as alleged here (Compl. ¶ 43), instead of 6 See, e.g., Eldredge v. EDCare Mgt., Inc., 2014 WL 590336, at *3 (S.D. Fla. Feb. 14, 2014) (granting motion to dismiss complaint based on conclusory allegations such as “defendant’s behavior was based on her sex”); Meuse v. McDonald, 2016 WL 5843511, at *1 (M.D. Ala. Sept. 30, 2016), adopting in relevant part report and recommendation, 2016 WL 5844172 (N.D. Ala. Sept. 7, 2016) (granting motion to dismiss disparate treatment claim based on conclusory contention that the plaintiff was “‘subjected to disparate treatment, sexist and racist comments,’” was the only male in his department and received discriminatory work assignments); Uppal v. Hosp. Corp. of America, 482 F. App’x at 394 (dismissing Title VII claim where the plaintiff alleged only that similarly situated employees outside of her protected class were treated differently without any supporting facts). Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 7 of 14 PageID 112 8 the “similarly situated” prong, a plaintiff can alternatively demonstrate that he or she was qualified to assume another position at the time of termination and that the employer intended to discriminate in reaching the employment decision. Id.; see also Fuller v. Edwin B. Stimpson Co., 598 F. App’x 652, 653 (11th Cir. 2015) (instead of dissimilar treatment, a plaintiff may plead intentional discrimination by showing that the employer “(1) consciously refused to consider retaining the plaintiff because of his race or (2) regarded race as a negative factor in such consideration”). The Complaint fails either to set forth a prima facie case or to provide any other fact leading to an inference of intentional discrimination. Plaintiffs do not allege that they were treated less favorably than similarly situated Disney Parks employees on the basis of race or national origin. 7 The Complaint, which says nothing about Plaintiffs’ own races or national origins, also fails to allege any facts concerning the races or national origins of Disney Parks employees who were retained and not laid off as part of the reorganization, i.e., those employees who were arguably treated more favorably than Plaintiffs in the reduction in force. The Complaint includes allegations about the national origin of the employees of the outside commercial vendors who performed Plaintiffs’ functions after the reorganization, but these people cannot be the relevant comparators: There is no non- conclusory allegation that they are employees of Disney Parks or that they are otherwise similarly situated to Plaintiffs.8 Moreover, the Complaint does not include a single fact that 7 “Similarly situated” means an employee who is comparable in all relevant aspects. DeCosta v. ARG Resources, LLC, 2012 WL 12865835, at *3 (S.D. Fla. Dec. 7, 2012) (granting motion to dismiss and holding that reference to “non-black and non-Jamaican similar employees was insufficient to identify comparator); Scribner v. Collier Cty., 2011 WL 2746813, at *4 (M.D. Fla. July 14, 2011); Ashmore v. FAA, 2011 WL 3915752, at *4 (S.D. Fla. Sept. 2, 2011). 8 Plaintiffs’ unadorned allegations that their “replacements” were under Disney Parks’s “direction and management” and that Disney Parks was a “joint employer of the replacement workers” (Compl. ¶¶ 33, 46) are legal conclusions or, at best, factual allegations that are not well-pleaded, and thus ought not to be considered on a motion to dismiss. American Dental Ass’n, 605 F.3d at 1290; Lopez v. Assurance Quality Group, Inc., No. 3:13-cv-077, 2013 WL 12090613 (N.D. Ga. Nov. 8, 2013), report and recommendation adopted at Doc. 70 (N.D. Ga. Dec. 10, 2013) (granting motion to dismiss where plaintiff in Title VII and Section 1981 case failed to set forth any facts to support conclusory recitations of joint employer status). Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 8 of 14 PageID 113 9 allows any inference that Disney Parks considered Plaintiffs’ races or national origins in making the decision to outsource the IT maintenance, quality-assurance, and related work to specialized outside commercial vendors. Plaintiffs allege that after they were notified of the layoff, they were given the opportunity to apply for other employment opportunities with Disney Parks for which they were allegedly well-qualified, but that they did not receive these jobs. Compl. ¶¶ 49-50. Again, the Complaint includes no allegation even suggesting that Disney Parks was motivated by Plaintiffs’ races or national origins when it made hiring decisions about these other positions. See Crisman, 2016 WL 5682544, at *5 (noting that an employer is not required to rehire an employee who is being laid off, but only to consider the employee for a position for which he applied, without regard to any protected classification). Indeed, the Complaint does not identify the race or national origin of any of the individuals selected by Disney Parks for the positions for which Plaintiffs applied, much less claim that these individuals were of national origins or races different from Plaintiffs. See Johnson, 2013 WL at 6062587, at *3 (granting motion to dismiss where complaint failed to plead specific facts linking promotion decision to race or religion); Coutu v. Martin Cnty. Bd. of Cnty. Comm’nrs, 47 F.3d 1068, 1073 (11th Cir. 1995). Apart from the failure to assert facts to support a prima facie case, the Complaint points to no other fact that would lead to a reasonable inference of intentional discrimination in connection with the reorganization and the resulting layoffs. A passing reference to alleged “curt treatment” or to training the alleged “replacement” workers – without anything to tie these references to race or national origin – is insufficient. The Complaint thus fails to provide any factual assertion creating a plausible inference of intentional discrimination. The few facts alleged are more likely explained by lawful conduct, Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 9 of 14 PageID 114 10 such as a commonplace outsourcing relationship, than they are by intentionally discriminatory conduct. Twombly, 550 U.S. at 680. The mere assertion that Plaintiffs were terminated “based solely on their national origin or race” (Compl. ¶ 47) is nothing more than non-actionable, conclusory speculation. B. Plaintiffs Fail to Provide Proper Notice of the Claims They Allege These pleading deficiencies are compounded by the fact that Plaintiffs have grouped thirty individual claims within two counts titled “Individual Plaintiffs’ Claim[s]” (Counts II, V). Further, both the class and individual discrimination counts (Counts I, II, IV, V) combine and confuse two discrete legal theories (hostile work environment and disparate impact). In doing so, Plaintiffs fail to give Disney Parks appropriate notice of the scope of their claims. While Plaintiffs share a termination date, each Plaintiff had a different job, as detailed in the Complaint (¶¶ 4-32). Their discrimination claims thus turn on facts that are particular to each of them. For example, the Complaint alleges (¶ 49) that Plaintiffs were not hired for “several available positions posted by Defendant.” But Plaintiffs nowhere identify which of them applied for which position, what positions are at issue, or who ultimately obtained the positions. The Complaint makes no attempt to separate these individual claims, each of which may also be subject to different affirmative defenses. See Fed. R. Civ. P. 10(b). Also, Plaintiffs allege Disney Parks created a “hostile work environment by treating Plaintiffs differently than before,” and incorporate that allegation into each of their discrimination claims, which are titled “Disparate Treatment.” Compl. ¶¶ 48, 61, 67, 79, 85. To the extent Plaintiffs intend to proceed on a hostile work environment theory, they have failed to give Disney Parks appropriate notice. See Hand v. ABN AMRO Mortgage Group, Inc., 2013 WL 6383128, at *4 - 5 (S.D. Ga. Dec. 5, 2013) (dismissing complaint where multiple claims were combined into single counts, and “[i]t is not even clear what causes of action have been raised”); Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 10 of 14 PageID 115 11 Desrouleaux v. Quest Diagnostics, Inc., 2009 WL 5214964 (S.D. Fla. Dec. 29, 2009) (dismissing complaint where it was unclear whether a hostile work environment or disparate treatment claim was being alleged). In any event, the Complaint fails to plead any plausible hostile work environment claim. Plaintiffs allege only that Disney Parks “was being curt and unprofessional towards Plaintiffs but treating the foreign replacements with special treatment.” Compl. ¶ 48. These allegations fall short of the type of severe or pervasive conduct required to state a claim for hostile work environment under Title VII or Section 1981. See, e.g., Foster, 2012 WL 1415499, at *5 (granting motion to dismiss where hostile work-environment plaintiff failed to plead facts showing that the harassment was “sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment, and that the employer is responsible for the environment under either a theory of vicarious or direct liability”).9 Indeed, the Complaint does not include a single allegation tying the allegedly hostile work environment to Plaintiffs’ national origins or races. IV. Certain Individual Plaintiffs Failed to Exhaust Administrative Remedies Barring Their Title VII Claims In order to bring a suit under Title VII, a plaintiff must first exhaust administrative remedies by filing a timely charge of discrimination with the EEOC. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). Six plaintiffs—Angel, Archer, Cerep, Houle, Moss and Paskins—failed to exhaust their administrative remedies, and cannot maintain individual claims under Title VII. 10 Camp v. Bridgeway Center, Inc., 2014 WL 5430277, at *5 (N.D. Fla. 9 See, e.g. Argeropoulos v. ExideTechnologies, 2009 WL 2132443 (E.D.N.Y. July 8, 2009) (dismissing potential hostile work environment claim because non-specific general allegations of continuous discriminatory comments were insufficient to state a cause of action); Johnson, 2013 WL at 6062587I, at *3. 10 There may be additional grounds (on facts not yet known) to challenge whether other individual Plaintiffs may have similarly failed to exhaust their administrative remedies, either by failing to file a document that could be Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 11 of 14 PageID 116 12 Oct. 22, 2014) (exhaustion of administrative remedies is a matter that should be raised in a motion to dismiss).11 A. Plaintiffs Angel, Archer, Cerep, Houle, Moss Five of these six Plaintiffs (Angel, Archer, Cerep, Houle, and Moss) did not file their charges within the 300-day period provided in Florida. See Schoelzel v. Volusia Cnty., 2015 WL 368939 (M.D. Fla. Jan. 27, 2015) (“in Florida, only those employment discrimination ‘claims arising within 300 days prior’ to an administrative charge are actionable”). The last adverse act set forth in the Complaint was the termination on January 31, 2015, making November 27, 2015 the outside date by which a charge could be filed. The dates of Plaintiffs’ signatures or the stamped date of filing on the charge12 (or its equivalent) are all more than 300 days later.13 Under the most generous reading of the Complaint, these Plaintiffs’ charges are untimely and their Title VII claims must be dismissed.14 See, e.g., Schoelzel, 2015 WL at 368939; Garry, 2013 WL at 3449196. construed as timely charged or by failing to file charges that adequately describe the discrimination claimed in the Complaint. 11 Additionally, Plaintiff Phil Barnett’s claims have been brought in the name of the wrong party. Although he is alleged to be a resident of Apopka, Florida (Compl. ¶9), his charge was brought by Diana Barnett as Representative of his Estate. Thus, only the Estate could be a proper plaintiff here. See Ex. A-5; n. 2 above. 12 Plaintiffs Angel, Archer, and Houle filed Technical Assistance Questionnaires (“TAQs”) with the Florida Commission on Human Relations instead of charges. Exs. A-2; A-3; A-12. 13 Angel (Feb. 23, 2016) (Ex. A-2); Archer (Jan. 6, 2016 and Jan. 16, 2016, respectively) (Ex. A-3); Cerep (Dec. 7, 2015) (Ex. A-7); Houle (Jan. 28, 2016) (Ex. A-12); Moss (Jan. 27, 2016 and Jan. 28, 2016, respectively) (Ex. A-23). 14 Disney Parks maintains that the 300-day period actually began when Plaintiffs were informed of the termination in October 2014, not on the date of the actual termination. This would mean the 300-day period had expired even sooner, and a number of the other charges would have been filed late. For purposes of this motion only, and in the absence of discovery or a clear statement by Plaintiffs of the claims they are asserting (see Point III.B above), Disney Parks assumes that January 31, 2015 is the start date of the 300-day period, as it would be the latest day possible under any legal theory. Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 12 of 14 PageID 117 13 B. Paskins Plaintiff Paskins voluntarily withdrew his charge; he cannot maintain a lawsuit based on a withdrawn charge.15 See Williams v. Tradewinds Services, Inc., 2103 WL 832405, at *6 (N.D. Ind. Mar. 4, 2013) (plaintiff who voluntarily withdraws an administrative charge of discrimination before obtaining a right-to-sue letter, abandons the claims in the charge, fails to exhaust administrative remedies, and may not sue (collecting cases)); Lewis v. Norfolk Southern Corp., 271 F. Supp. 2d 807, 815 (E.D. Va. 2003) (after 300 days have passed, “Once the EEOC states it is terminating proceedings relating to a charge, a prospective defendant has the right to expect that this forecloses potential litigation”). CONCLUSION There are no factual allegations that could sustain an OWBPA claim. Six plaintiffs cannot assert an OWBPA claim at all because they were not or are not older workers. None of the plaintiffs exhausted their OWBPA administrative remedies. The relief they seek is not afforded by the OWBPA in the first place. There are no factual allegations that would support race or national origin claims and six plaintiffs failed even to exhaust their administrative remedies as to their individual Title VII claims. As stated at the outset, there is nothing sustainable about the Complaint and Disney Parks respectfully requests that the Court dismiss it in its entirety. 15 On November 18, 2015, the EEOC issued a Notice of Charge of Discrimination from Paskins; the Notice did not attach a charge, and did not request a response from Disney Parks. See Ex. A-24. On February 3, 2016, the EEOC informed Disney Parks that Paskins’ charge had been withdrawn at his request, and stated that it accepted the withdrawal and was terminating the processing of the charge. See id; 29 C.F.R. § 1601.10 (requiring EEOC consent to the withdrawal of a charge). Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 13 of 14 PageID 118 14 Dated this 10th day of January, 2017. Respectfully submitted, /s/ Mary Ruth Houston Mary Ruth Houston, Esq. Florida Bar No.: 834440 E-mail: mhouston@shutts.com Secondary E-mail: mljohnson@shutts.com Glennys Ortega Rubin, Esq. Florida Bar No.: 0556361 E-mail: grubin@shutts.com Secondary E-mail: rsouza@shutts.com SHUTTS & BOWEN LLP 300 South Orange Ave., Suite 1000 Orlando, FL 32801 Telephone: (407) 423-3200 Facsimile: (407) 425-8316 Counsel for Walt Disney Parks and Resorts U.S., Inc. CERTIFICATE OF SERVICE I hereby certify that I have on this 10th day of January, 2017, electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will automatically send e- mail notification of such filing to the following attorneys of record: Luis A. Cabassa Wenzel Fenton Cabassa, P.A. 1110 N. Florida Ave., Ste. 300 Tampa, FL 33602 Telephone: 813-224-0431 Email: lcabassa@wfclaw.com Email: twells@wfclaw.com Sara Blackwell The Blackwell Firm 2243 Palm Terrace Sarasota, FL 34321 Telephone: 941-961-3046 E-mail: sara@theblackwellfirm.com /s/ Mary Ruth Houston Of Counsel ORLDOCS 15133967 14 Case 6:16-cv-02144-CEM-TBS Document 12 Filed 01/10/17 Page 14 of 14 PageID 119 Case 6:16-cv-02144-CEM-TBS Document 12-1 Filed 01/10/17 Page 1 of 2 PageID 120 Case 6:16-cv-02144-CEM-TBS Document 12-1 Filed 01/10/17 Page 2 of 2 PageID 121 Case 6:16-cv-02144-CEM-TBS Document 12-2 Filed 01/10/17 Page 1 of 6 PageID 122 Case 6:16-cv-02144-CEM-TBS Document 12-2 Filed 01/10/17 Page 2 of 6 PageID 123 Case 6:16-cv-02144-CEM-TBS Document 12-2 Filed 01/10/17 Page 3 of 6 PageID 124 Case 6:16-cv-02144-CEM-TBS Document 12-2 Filed 01/10/17 Page 4 of 6 PageID 125 Case 6:16-cv-02144-CEM-TBS Document 12-2 Filed 01/10/17 Page 5 of 6 PageID 126 Case 6:16-cv-02144-CEM-TBS Document 12-2 Filed 01/10/17 Page 6 of 6 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