Desporte-Bryan v. Bank of America, 007476CIVGOLD.

• Decision Date: 21 June 2001
• Docket Number: No. 007476CIVGOLD.,007476CIVGOLD.
• Citation: Desporte-Bryan v. Bank of America, 147 F.Supp.2d 1356 (S.D. Fla. 2001)
• Parties: Marjorie S. DESPORTE-BRYAN, Plaintiff, v. BANK OF AMERICA, f/k/a Nationsbank f/k/a Barnett Bank, Defendant.
• Court: U.S. District Court — Southern District of Florida

147 F.Supp.2d 1356

Marjorie S. DESPORTE-BRYAN, Plaintiff, v. BANK OF AMERICA, f/k/a Nationsbank f/k/a Barnett Bank, Defendant.

No. 007476CIVGOLD.

United States District Court, S.D. Florida.

June 21, 2001.

Marjorie S. Desporte-Bryan, Coconut Creek, FL, pro se.

Chad K. Lang, Joan M. Canny, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL, for Defendant Bank of America d/b/a Barnett Bank.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

GOLD, District Judge.

THIS CAUSE comes before the Court upon Defendant's Motion to Dismiss Plaintiff's First Amended Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim for Relief [D.E. 22], filed on January 26, 2001. Plaintiff filed a Response [D.E. 25] on February 12, 2001, and Defendant filed a Reply [D.E. 30] on March 5, 2001.

The pro se¹ Complaint was originally filed on October 5, 2001, with a First Amended Complaint and Demand for Jury Trial filed on January 8, 2001. The First Amended Complaint (hereinafter referred to as "the complaint") contains the following three counts: (1) Age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); (2) Race discrimination in violation of Title VII; and (3) National origin discrimination in violation of Title VII and 42 U.S.C. § 1981. Jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1331, federal question jurisdiction.

Defendant argues that the complaint should be dismissed pursuant to Fed. R.Civ.P. 12(b)(1), lack of jurisdiction over the subject matter, or, in the alternative, Fed.R.Civ.P. 12(b)(6), failure to state a claim upon which relief may be granted. Having reviewed and carefully considered the parties' arguments, the applicable law, and the record as a whole, the Court concludes that Defendant's motion to dismiss should be granted.

I. Background

The facts alleged in the Complaint, taken as true and read in the light most favorable to the Plaintiff for purposes of this Order, reveal the following.

Plaintiff Marjorie S. Desporte-Bryan is female, black, a naturalized American citizen of Jamaican descent, and over 40 years old. Plaintiff alleges that she was subjected to unlawful discrimination based on her age, race, and national origin by Defendant Bank of America f/k/a NationsBank f/k/a Barnett Bank (hereinafter referred to as "Defendant" or "Bank").

On or about May 8, 1997, Plaintiff applied for a position in the Professional Sales Manager Program at Bank. On or about May 15, 1997, Plaintiff met with Bank's Human Resources Generalist, who recommended Plaintiff for a second interview. It was the practice of Bank to have candidates interviewed by the hiring committee for the Professional Sales Manager Program. The hiring committee is made up of four of Bank's officers (two Branch Managers, one male and one female, the Human Resources Generalist, and a Market Executive). On or about May 15, 1997, Plaintiff met with a white male Branch Manager, and on or about May 16, 1997, Plaintiff met with the Market Executive for the Central Area, who is also a white male. No appointment was set for the Plaintiff to meet with the white female Branch Manager.

About two weeks later (approximately May 30, 1997), Bank's Human Resources Generalist informed Plaintiff that she was not chosen to participate in the Professional Sales Manager Program. Plaintiff alleges, on information and belief, that the reason given by Bank to deny Plaintiff employment in the program was pretextual, and that the application was denied so that Bank could employ much younger, mostly white college graduates without any foreign accent indicating national origin of Jamaican descent.

Bank's Human Resources Generalist encouraged Plaintiff to apply for a lower Senior Sales and Service Associate position and to wait until Bank was hiring again for the Professional Sales Manager Program to reapply. On or about June 12, 1997, Plaintiff was interviewed by the Branch Manager and Sales and Service Manager of Bank's Fort Lauderdale Office. Plaintiff was thereafter turned down for the Senior Sales and Service Associate position and was offered a lower position. On information and belief, the reason given by Bank for Plaintiff's denial was pretextual. Plaintiff was denied the position so that Bank could hire a much younger white American female.

On or about June 23, 1997, Plaintiff was interviewed by the Branch Manager of Bank's Deer Creek office and was offered the position by Bank's Human Resources Department, which Plaintiff accepted. However, on June 30, 1997, Bank informed Plaintiff that there was a misunderstanding and that Plaintiff was not accepted for the position. On information and belief, Bank's reason was pretextual. Plaintiff was denied the position so that Bank could hire a much younger college graduate.

Plaintiff alleges that, on information and belief, Defendant has engaged in a pattern and practice of discriminating against candidates for employment and employees on the basis of age, race, and national origin.

Plaintiff alleges that on December 17, 1997, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (the "EEOC"). On July 7, 2000, the EEOC issued a Notice of Right to Sue (Conciliation Failure), and this lawsuit was filed within 90 days of receipt of the notice.

Plaintiff seeks back pay, front pay, prejudgment interest, compensatory damages, punitive damages, attorneys' fees, costs, a permanent injunction prohibiting Defendant from engaging in discriminatory conduct, and the institution of sensitivity training.

II. Standard of Review

A. Rule 12(b)(1)

Attacks on subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) come in two forms. "Facial attacks" on the complaint "require[ ] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)). "Factual attacks," on the other hand, challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id.

These two forms of attack differ substantially. On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion — the court must consider the allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). But when the attack is factual, the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990). In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Id. at 412-13 (quoting Mortensen, 549 F.2d at 891).

In this case, the Defendant has made a factual attack upon the Complaint with respect to whether the Defendant is subject to successor liability for the alleged violations of Barnett Bank and whether Defendant is therefore an "employer" under the applicable statutes. Because the facts necessary to determine jurisdiction concern the relationship between Barnett Bank and Bank of America subsequent to the acts of which Plaintiff complains, the merits of Plaintiff's claims are not implicated by this inquiry and the Court may consider the parties' affidavits and other evidence without converting this motion to a motion for summary judgment. See Lawrence, 919 F.2d at 1529. Plaintiff bears the burden of proving the existence of subject matter jurisdiction. See Boudreau v. United States, 53 F.3d 81, 82 (5th Cir.1995).

B. Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that dismissal of a claim is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir.1994) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)). On a motion to dismiss, the Court must accept as true all facts alleged and draw all inferences therefrom in the light most favorable to the non-moving party. See Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994). A very low sufficiency threshold is necessary for a complaint, or counterclaim, to survive a motion to dismiss. See Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted). Moreover, a complaint should not be dismissed for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." M/V Sea Lion v. v. Reyes, 23 F.3d 345, 347 (11th Cir.1994) (citation omitted). However, a plaintiff must do more than merely "label" its claims. See Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996). Dismissal is appropriate only when no construction of the factual allegations of a complaint will support the cause of action. See Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993) (citation omitted).

III. Discussion

Defendant makes a...