Hewerdine v. Eli Lilly & Co.

Decision Date02 February 2021
Docket NumberCase No. 3:20-cv-659-MMH-JRK
PartiesJUSTINE HEWERDINE, Plaintiff, v. ELI LILLY AND COMPANY, a Foreign Profit Corporation, Defendant.
CourtU.S. District Court — Middle District of Florida
I. Status

This cause is before the Court on Defendant Eli Lilly and Company's Dispositive Motion to Dismiss and Memorandum in Support (Doc. No. 17; "Motion"), filed August 27, 2020. Plaintiff responded in opposition on September 24, 2020. See Plaintiff's Response in Opposition to Defendant's Motion to Dismiss and Incorporated Memorandum of Law (Doc. No. 27). The following day, Plaintiff refiled the response to redact certain personal identifiers fromExhibits A and B. See Plaintiff's Response in Opposition to Defendant's Motion to Dismiss and Incorporated Memorandum of Law (Doc. No. 29; "Response").2 With leave of Court, see Order (Doc. No. 31), Defendant filed a reply and Plaintiff filed a sur-reply. See Defendant Eli Lilly and Company's Reply in Support of Its Motion to Dismiss (Doc. No. 36; "Reply"), filed October 15, 2020; Plaintiff's Sur-Reply in Opposition to Defendant's Motion to Dismiss and Incorporated Memorandum of Law (Doc. No. 37; "Sur-Reply"), filed October 28, 2020.

On September 23, 2020, the Honorable Marcia Morales Howard, United States District Judge, referred the Motion to the undersigned for a report and recommendation regarding an appropriate resolution. See Order (Doc. No. 26). Upon due consideration and for the reasons stated below, the undersigned recommends that the Motion be granted and the Complaint be dismissed without prejudice.

II. Background

Plaintiff initiated this action on June 26, 2020 by filing a Complaint and Demand for Jury Trial (Doc. No. 1; "Complaint") against Defendant, her former employer. In general, this case arises out of Plaintiff's alleged wrongful termination and Defendant's purported failure to compensate Plaintiff for workperformed while she was on vacation. Plaintiff asserts Defendant's conduct violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., ("ADEA"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., ("Title VII"); and the Florida Civil Rights Act, Fla. Stat. § 760.01, et seq., ("FCRA"). Plaintiff also asserts breach of contract and unjust enrichment claims based on Defendant's failure to adequately compensate her. Specifically, the Complaint alleges as follows.

Plaintiff worked for Defendant as a pharmaceutical sales representative from around 1997 to "on or about" August 9, 2018, when she was terminated. Complaint at 2 ¶ 12, 3 ¶ 20. During her employment with Defendant, "Plaintiff developed relationships with customer accounts, managed territories, and generated sales by visiting, meeting and calling physicians in her area to educate them regarding Defendant's products and provide such physicians with samples." Id. at 3 ¶ 22.

In January 2017, David Ricks became Defendant's new Chief Executive Officer. Id. at 4 ¶ 24. "Immediately upon his arrival, Mr. Ricks began to publicly stress the fact that he wanted to increase the percentage of 'millennial sales representatives to 40% of the overall sales force by 2020.'" Id. ¶ 25. Thereafter, "Defendant began to systematically terminate older, longer-tenured employees to prevent such older sales representatives, like Plaintiff, from vesting or further vesting in [their] pension and retirement benefits." Id. at 5 ¶ 31.

On August 9, 2018, Defendant's Human Resources ("HR") department informed Plaintiff that "they believed she had reported making certain sales calls to clients and/or potential clients back in July, but that they believed she did not make such calls." Id. ¶ 33. Plaintiff "denied any wrongdoing and/or admitted that, at worst, she may have mistakenly logged incorrect dates and/or providers, but if done, then such acts were not done intentionally, but in error." Id. ¶ 34. "[W]ithout any further investigation into what Plaintiff's explanations were for the alleged discrepancies, Defendant terminated Plaintiff immediately." Id. ¶ 35. "[O]ther similarly situated younger and/or male sales representatives" had their explanations investigated and were not terminated or otherwise disciplined by Defendant. See id. 5-6 ¶¶ 36-38. "Plaintiff was replaced by a younger and/or male sales representative after her termination." Id. at 6 ¶ 39.

On around August 17, 2018, Plaintiff contacted Defendant's HR department "to inquire why her final paycheck was for approximately half of what she would usually receive." Id. ¶ 40. The HR department told Plaintiff that she had "taken some vacation days during the pay period prior to her termination" and that because she "was out of [paid time off ('PTO'),] her pay was reduced accordingly." Id. ¶ 41. Plaintiff "disputed that she had taken PTO days since she had spent several hours during each of the alleged 'PTO days' performing work for Defendant by attending conference calls, answeringcopious emails and dealing with other work-related issues." Id. ¶ 42. The HR department responded that "there was 'nothing they could do' for Plaintiff and refused to pay her for the days she spent working for Defendant and/or to reimburse Plaintiff for the days which were improperly deducted from her paycheck." Id. at 7 ¶ 43. Defendant, however, "pays other similarly situated younger and/or male sales representatives for days missed if [they] perform a partial day of work even if [they] are out of their [PTO] hours." Id. ¶ 45.

Plaintiff asserts six counts against Defendant: discrimination based on age in violation of the ADEA (Count I); discrimination based on age in violation of the FCRA (Count II); discrimination based on sex in violation of Title VII (Count III); discrimination based on sex in violation of the FCRA (Count IV); breach of contract (Count V); and unjust enrichment (Count VI). See id. at 7-12.

Plaintiff alleges the Complaint is timely because she "timely filed" a charge of discrimination with the Florida Commission on Human Relations ("FCHR") and filed the Complaint within ninety days of receiving a notice of dismissal (presumably from the FCHR). Id. at 2 ¶¶ 8-10. The charge of discrimination and the notice of dismissal are not attached to the Complaint.

Plaintiff asserts the Court has subject matter jurisdiction under 28 U.S.C. § 1331 over the federal law claims (ADEA and Title VII)3 and supplementaljurisdiction under 28 U.S.C. § 1367 over the remaining, state law claims. See id. ¶ 4.

III. Standard

In reviewing and deciding a motion to dismiss for failure to state a claim premised on Rule 12(b)(6), Federal Rules of Civil Procedure ("Rule(s)"), "the court [generally] limits its consideration to the pleadings and exhibits attached thereto." Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (citation omitted); see also Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1201 (11th Cir. 2012) (in reviewing an order on a motion to dismiss, stating the Court "take[s] as true the facts alleged in [the] complaint and attached exhibits" (citation omitted)).

Ordinarily, courts may not consider matters outside the pleadings without converting the motion into one for summary judgment. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010) (citing Fed. R. Civ. P. 12(d)). Courts, however, "may consider an extrinsic document if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged." Id. (citation omitted). A document is "central" to a plaintiff's claim when it is "at the very heart of the plaintiff's claim." Int'l Bhd. of Teamsters v. Amerijet Int'l, Inc., 932 F. Supp. 2d 1336, 1344 (S.D. Fla. 2013). In determining centrality, courts have also considered whether "the plaintiff would unquestionably have to offer a copy of [the document] in order to prove his or her case." McCanna v.Eagle, No. 2:08-cv-421-CEH-SPC, 2009 WL 1510159, at *2 (M.D. Fla. May 5, 2009) (unpublished) (citing Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1285 (11th Cir. 2007)).

"To 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)); see also Darrisaw v. Pa. Higher Educ. Assistance Agency, 949 F.3d 1302, 1303 (11th Cir. 2020). "Labels and conclusions" or "a formulaic recitation of the elements of a cause of action" that amount to "naked assertions" will not do. Iqbal, 556 U.S. at 678 (citation omitted). Moreover, a complaint must "contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (citation omitted). A plaintiff's factual allegations, even though taken as true and in the light most favorable to the plaintiff, must be sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citation omitted).

IV. Discussion

Defendant moves to dismiss all counts. As explained below, Plaintiff's federal claims under the ADEA and Title VII claims are due to be dismissed for failure to state a claim because, as Defendant argues, Plaintiff's charge ofdiscrimination was not timely filed. As to the FCRA, breach of contract, and unjust enrichment state law claims, the undersigned recommends that the Court decline to exercise supplemental jurisdiction over such claims 4 and dismiss them.5

A. ADEA and Title VII Claims

Defendant asserts the ADEA and Title VII required Plaintiff to file a charge of discrimination within 300 days after her termination on August 9, 2018. Motion at 7. Defendant argues that Plaintiff failed to meet this requirement because she did not file a charge until September 23, 2019, which was "well over 400 days...

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