UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 1:20-CV-22995-KMW

SILVA HARAPETI, 

Plaintiff,

vs.

CBS TELEVISION STATIONS INC.

A Foreign Profit Corporation,

Defendant.

_______________________________

DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED 

COMPLAINT (ECF NO. 40) AND SUPPORTING MEMORANDUM OF LAW

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TABLE OF CONTENTS

Page

I. INTRODUCTION .................................................................................................. 1

II. RELEVANT FACTS.............................................................................................. 4

III. LEGAL STANDARD............................................................................................. 6

IV. ARGUMENT.......................................................................................................... 7

A. Plaintiff Fails To State An EPA Collective Action Claim...................................... 7

B. Plaintiff’s Title VII and ADEA Disparate Treatment and Retaliation 

Claims Are Time-Barred and Should Be Dismissed. ........................................... 10

1. Plaintiff’s Title VII and ADEA Disparate Treatment and Retaliation 

Claims are Untimely Because She Received Notice of Right to Sue 

over 90 Days before Filing Her Original Complaint. ...................................... 10

2. Plaintiff’s Title VII and ADEA Disparate Treatment and Retaliation 

Claims are Also Untimely Because She Failed to Comply with the 

300-Day Deadline to File Her Charge of Discrimination. ............................... 11

C. Plaintiff’s FCRA Disparate Treatment and Retaliation Claims Fail. ................... 15

D. Plaintiff Cannot Establish A Timely Hostile Work Environment Claim 

Under Title VII Or The FCRA.............................................................................. 16

E. Plaintiff Fails To Allege Facts Sufficient To Support Her Intentional 

Infliction Of Emotional Distress Claim. ............................................................... 17

F. Plaintiff Fails to Allege a Joint Employer Relationship. ...................................... 19

G. The Claims Should Be Dismissed With Prejudice. .............................................. 20

V. CONCLUSION..................................................................................................... 20

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Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant CBS Television Stations

Inc. (“CBS TV”), along with CBS Broadcasting, Inc. and CBS Corporation (collectively, the “New 

Defendants,” and together with CBS TV, “Defendants”) respectfully move to dismiss all claims in 

Plaintiff Silva Harapeti’s (“Plaintiff”) Third Amended Complaint (ECF No. 40) (hereinafter, the 

“Third Amended Complaint” or “TAC”), with the exception of Plaintiff’s individual claim under 

the Equal Pay Act 1936, 29 U.S.C. §§ 206, et seq. (the “EPA”) (Count III) and Plaintiff’s state law 

claim for negligent infliction of emotional distress.

1

I. INTRODUCTION

In the fourth iteration of her operative pleading, Plaintiff makes no effort to remedy the 

defects identified in CBS TV’s (now moot) Motion to Dismiss the Second Amended Complaint.2 

Indeed, Plaintiff’s Third Amended Complaint is substantively identical to her Second Amended 

Complaint, and only seeks to add two entities as defendants: CBS Broadcasting, Inc. and CBS 

Corporation (collectively, the “New Defendants”). See Motion to Amend (ECF No. 37) at 1. 

Beyond this addition, there are little to no substantive modifications—the Third Amended 

Complaint alleges conclusorily that all Defendants “jointly employed Plaintiff,” and copies and 

pastes the deficient Count III from Plaintiff’s Second Amended Complaint against CBS TV into 

two new Counts against the New Defendants. Compare Second Amended Complaint (ECF No. 

 1 Although CBS Corporation and CBS Broadcasting, Inc. respond to the Third Amended 

Complaint through this Motion, neither is a proper party to this lawsuit and, in fact, one no longer 

exists. CBS Corporation ceased to exist in December of 2019, when it merged with Viacom to 

create ViacomCBS, Inc. This information is a matter of public record. CBS Broadcasting, Inc., 

on the other hand, owns and operates only a handful of CBS-affiliated TV stations, none of which 

employed Plaintiff. See Harapeti v. CBS Television Stations Inc., No. 20-cv-20961 (S.D. Fla.), 

Declaration of Joel Goldberg (ECF No. 48-1) ¶¶ 5–6. 

2 CBS TV filed a Motion to Dismiss Plaintiff’s Second Amended Complaint on September 1, 2020. 

See (ECF No. 25). Plaintiff responded (ECF No. 29) and on October 6, 2020, CBS TV filed its 

reply (ECF No. 35), making the motion ripe for the Court’s adjudication. Thereafter, on October 

16, 2020, Plaintiff moved for leave to amend solely to add two new Defendants. See Motion to 

Amend (ECF No. 37) at 1 (“Plaintiff seeks to amend her third amended complaint to add the 

Defendants named in the declarations filed by Defendant in opposition to Plaintiff’s Correct 

Motion for Conditional Certification of a Collective Action . . . in the companion FLSA case, 

number 1:20-CV-20961-KMW . . . .”). The Court granted leave to amend, thereby mooting CBS 

TV’s Motion to Dismiss. See Paperless Order Granting Motion (ECF No. 39); Paperless Order 

Denying as Moot Motion to Dismiss (ECF No. 42).

 

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16) ¶¶ 106–115 and TAC ¶¶ 106–115 (Count III against CBS TV) with ¶¶ 110–121 (Count IV 

against CBS Broadcasting Inc.) and ¶¶ 114–127 (Count V against CBS Corporation). 

To the point, in her now fourth attempt at pleading plausible claims for relief, Plaintiff

continues to stand by her woefully deficient allegations and persists in the manipulation of her

factual allegations in an attempt to avoid the timeliness defenses CBS TV originally asserted two 

Motions to Dismiss ago. See (ECF No. 8). Like all of its predecessors, Plaintiff’s Third Amended 

Complaint, fails to set forth facts sufficient to establish claims for relief against Defendants.

Specifically, Plaintiff asserts nine causes of action against CBS TV: two individual claims

for alleged sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) (Count 

II) and the Florida Civil Rights Act of 1992 (“FRCA”) (Count VIII); a claim for gender 

discrimination in compensation under the EPA (Count III); two claims for age discrimination

under the Age Discrimination in Employment Act (the “ADEA”) (Count I) and the FCRA (Count 

VII); retaliation under Title VII (Count VI) and the FCRA (Count IX); intentional infliction of 

emotional distress claim (“IIED”) (Count X); and negligent infliction of emotional distress claim

(“NIED”) (Count XI). Plaintiff purports to bring Count III on behalf of herself and an unspecified 

group of female CBS TV employees. See TAC ¶ 107. With the Third Amended Complaint, 

Plaintiff parrots her individual and collective EPA claim under Count III as Counts IV and V 

directed to CBS Broadcasting and CBS Corporation, respectively.3 See id. ¶ 111 (Count IV), ¶ 

115 (Count V).4

Plaintiff’s purported collective actions under the EPA should be dismissed because she 

does not allege any facts to plausibly support this claim. Tellingly, even though CBS TV moved 

on these grounds in its first Motion to Dismiss and its second Motion to Dismiss, Plaintiff does 

not (because she cannot) add any new factual allegation to cure the deficiencies with respect to her 

collective action claim (now claims). Indeed, just like the Amended Complaint and the Second

Amended Complaint, the Third Amended Complaint contains no more than a handful of 

conclusory allegations asserting that CBS TV violated the EPA by failing to pay “similarly situated 

 3 Throughout this Motion, where Defendants reference claims generally, Defendants intend to refer 

to only those claims that are subject to this Motion. 

4 The Third Amended Complaint’s paragraph enumeration is confusing. For instance, Plaintiff 

skips over ¶¶ 114–115 in Count III, but includes those paragraph numbers in Count V after ¶ 121. 

Similarly, in Count V, Plaintiff skips over ¶¶ 118–121—those paragraph numbers can instead be 

found in the preceding Count IV. 

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females on par with their male counterparts.” Plaintiff does not identify who the similarly situated 

females are, who their male counterparts are, what job responsibilities they hold, where they work,

or their respective pay rates and pay structures. The only factual allegations relating to female 

employees expose that Plaintiff received “significantly” less than those employees. These bare 

bones allegations are then repeated in Counts IV and V. But Plaintiff’s bare-boned recitation of 

the collective action standard without supporting facts falls far below the well-established pleading 

standards in the Eleventh Circuit. Accordingly, Plaintiff’s EPA collective action claims—Counts 

III, IV, and V—should be dismissed.

Plaintiff’s remaining claims fare no better. Plaintiff claims that she was a freelance reporter 

working for CBS TV “on and off” between 2011 and March 2018. She alleges that CBS TV

favored males and younger, female employees, that she was harassed by third parties while 

reporting on news and sporting events, and that she was retaliated against for complaining about 

her work environment in violation of Title VII, the ADEA, and the FCRA. None of these claims 

can proceed because they are all untimely. Specifically, Plaintiff filed her charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”) on January 9, 2019, more than 

300 days (or 365 days for purposes of the FCRA) after the last date of any allegedly unlawful

conduct. Despite having reviewed this timeliness argument several times in CBS TV’s prior 

motions to dismiss, Plaintiff does not add any new timely, factual allegations in her Third

Amended Complaint. Rather, Plaintiff responds to the timeliness argument by: (1) altering her 

thrice-pled allegation regarding when she received notice from the EEOC; (2) deleting references

to the previously pled fact that she gave two weeks’ notice—and thus triggered the limitations 

period for filing a charge with the EEOC—outside the limitations period; and (3) misrepresenting 

the EEOC’s position and protocol during a lapse in appropriations, which is clearly set forth on 

the EEOC’s website.

5 Even at this stage of the case, Plaintiff’s attempt to alter/remove allegations 

previously pled and misrepresent a government agency’s website should not be given credence. 

Accordingly, her Title VII, ADEA, and FCRA claims are time-barred and fail as a matter of law. 

Plaintiff also does not allege a plausible claim for IIED. Because the Eleventh Circuit 

“strongly disfavors” IIED claims in the employment context, such claims are reserved for 

 5 CBS TV’s Request for Judicial Notice of the EEOC website that Plaintiff purports to represent 

in her Third Amended Complaint is located at (ECF No. 24). 

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situations where there is “relentless” physical and verbal abuse. Plaintiff’s allegations do not meet 

this rigorous standard, and therefore, her IIED claim also fails and should be dismissed. 

Finally, Counts IV and V should be dismissed for the independent reason that Plaintiff has 

failed to allege a joint employment relationship. Plaintiff alleges no facts to support a reasonable 

inference that either CBS Broadcasting Inc. (Count IV) or CBS Corporation (Count V) exerted 

control over Plaintiff’s employment or otherwise jointly employed Plaintiff. Instead, the only 

allegations relating to a joint employer relationship is Plaintiff’s single, conclusory contention that 

Defendants “jointly employed Plaintiff.” See TAC ¶ 5. Plaintiff does not even identify the New 

Defendants in the Third Amended Complaint other than naming them in the pleading’s preamble. 

See TAC, General Allegations, ¶¶ 1–17. 

In short, Plaintiff has now had three opportunities to amend her complaint, yet she still fails 

to provide factual allegations to support her claims for relief. For this reason, as discussed in 

greater detail below, CBS respectfully requests that the Court grant its Motion to Dismiss and 

dismiss with prejudice 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, allow this case to proceed only on Plaintiff’s individual 

claims under the EPA (Count III) and for negligent infliction of emotional distress (Count XI). 

II. RELEVANT FACTS6

Plaintiff filed a Charge of Discrimination with the EEOC on January 9, 2019. TAC ¶ 11. 

Plaintiff filed suit against CBS TV on May 26, 2020 and subsequently amended her complaint on 

June 19, 2020. See Notice (ECF No. 1) ¶¶ 1–2. CBS timely removed the action to this Court on 

July 21, 2020. See id. CBS filed its first Motion to Dismiss on August 4, 2020. (ECF No. 8). 

On the day that her Opposition was due, and without conferring with CBS or seeking leave from 

the Court, Plaintiff filed her Second Amended Complaint (ECF No. 16) on August 18, 2020. CBS 

TV filed its second Motion to Dismiss (ECF No. 25), which was fully briefed as of October 6, 

2020. On October 16th, Plaintiff moved to amend. See (ECF No. 37). On October 20th, the Court 

granted Plaintiff’s request and Plaintiff filed the Third Amended Complaint. See (ECF Nos. 39, 

40). This Motion, which reiterates all of the arguments from CBS TV’s second Motion to Dismiss 

(ECF No. 25), followed shortly thereafter on October 21, 2020. 

 6 For purposes of this Motion only, Defendants accept Plaintiff’s factual allegations as true.

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Like the Second Amended Complaint, Plaintiff continues to allege that: (1) she was 

discriminated against on the basis of her age in violation of the ADEA and the FCRA (Counts I 

and VII); (2) she was discriminated against on the basis of her sex in violation of Title VII and the 

FCRA (Counts II and VIII); (3) she and “other similarly situated females” were not paid “on par 

with their male counterparts” in violation of the EPA (Counts III, IV, and V); (4) she was subjected

to unlawful retaliation in violation of Title VII and the FCRA (Counts VI and IX); and (5) she 

suffered intentional and negligent infliction of emotional distress (Counts X and XI). 

In support of her individual Title VII, ADEA, and FCRA claims, Plaintiff contends that 

the following allegedly discriminatory and retaliatory conduct occurred between April 2011 and 

January 2018:

 April 2011, June 2011, April 2012, later in 2012, and 2015: Plaintiff was denied a 

promotion in favor of a “younger, less experienced female,” TAC ¶¶ 29–33.

 February 2016: Plaintiff was told that she could not have her own personal business 

while working for Defendant as a freelancer, while CBS permitted a male employee to 

maintain a personal business, id. ¶¶ 39–43.

 November 2016: CBS hired a younger, female freelance reporter who was “paid 

significantly more than Plaintiff was being paid as a freelance reporter,” and CBS 

refused Plaintiff’s request to have her pay match the rate of the younger freelance 

reporter, id. ¶ 45–46.

 May 2017: CBS told Plaintiff not to report work issues to her supervisors, id. ¶ 47.

 June 2017: Plaintiff inquired about a full-time position and was told that there was 

none, which was one way she alleges she was “retaliated against [] for voicing 

complaints,” id. ¶¶ 48–50.

 July 2017: CBS hired a younger, female freelance reporter who “was paid significantly 

more than Plaintiff was, despite having the same exact position,” id. ¶ 52.

 In or around September 2017: Plaintiff learned that she was paid less than a male 

employee who worked “the same shifts, the same hours, and delivered the same news,”

id. ¶¶ 65–66.

 September 9, 2017: Plaintiff was “harassed and groped by [a third party] individual,”

while covering Hurricane Irma, id. ¶ 69.

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 November 11, 2017: while reporting on a sporting event, Plaintiff was “verbally, 

physically, and sexually assaulted by a fan,” id. ¶ 70.

 December 30, 2017: Plaintiff complained that she did not feel safe working at an 

assigned location, id. ¶ 72.

 January 2018: Plaintiff allegedly reported incidents of assault to CBS, id. ¶ 73.

 January 2018: CBS hired a younger, female reporter who was paid “$33,000 more than 

Plaintiff,” id. ¶ 53.

In support of her EPA claim, Plaintiff avers detailed factual allegations, relating only to her

individual claim for relief, including that she “was paid at a lower rate than her [colleagues], who 

were similarly situated, including but not limited to, Hank Tester (“Mr. Tester”), David Sutta (“Mr. 

Sutta”), Ted Scouten (“Mr. Scouten”), and Cary Codd (“Mr. Codd”).” Id. ¶ 63; see also id. ¶¶ 35–

38 (Plaintiff was denied “other income opportunities” that Mr. Sutta enjoyed); id. ¶ 64 (Plaintiff 

was paid less than “another male per-diem employee, Mr. Tester”); id. ¶¶ 65–66 (Plaintiff was 

paid less than “another male per-diem employee, Mr. Mends”). 

In contrast, the allegations relating to her collective action EPA claim are conclusory and 

do no more than parrot the elements of the claim: 

 “Male freelance workers performed the same and/or similar work under the same 

and/or similar working conditions as female freelance reporters, had the same and/or 

similar responsibilities, and used the same and/or similar system and equivalent 

equipment to perform their duties.” Id. ¶ 60.

 Plaintiff and the “EPA opt-in Class (a) are similarly situated in that (b) they were 

subjected to Defendant’s common practice of sex-based (gender) discrimination in

failing to compensate female freelance employees on par with their male counterparts.” 

Id. ¶ 11.

III. LEGAL STANDARD

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a plaintiff to make a “short

and plain statement of the claim showing that [he or she] is entitled to relief” in order to provide

a defendant “fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 550 (2007) (citation omitted). Noncompliance with this requirement

subjects a pleading to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), which

should be granted where a plaintiff is unable to delineate “enough facts to state a claim to relief

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that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Twombly at

570). The Supreme Court has held that a complaint that only makes “threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements” and that “do[es] not

permit the court to infer more than the mere possibility of misconduct” is insufficient to

overcome a motion to dismiss. Id. at 679. Since Twombly and Iqbal, courts in the Eleventh Circuit 

have held that on a motion to dismiss, the court is “not required to accept a plaintiff's legal 

conclusions” and should ignore “unwarranted deductions of facts.” Sinaltrainal v. Coca-Cola Co., 

578 F.3d 1252, 1260 (11th Cir. 2009) (citing Ashcroft, 556 U.S. at 663). This holds true for 

putative collective action claims brought on behalf of allegedly similarly situated employees. See, 

e.g., Jimenez v. Fla. Supplement, LLC, 2016 U.S. Dist. LEXIS 123968 (S.D. Fla. Sept. 13, 2016) 

(granting motion to dismiss FLSA claim); St. Croix v. Genentech, Inc., 2012 US. Dist. LEXIS 

86742, at *6 (M.D. Fla. June 22, 2012) (same); Pickering v. Lorillard Tobacco Co., 2011 U.S. 

Dist. LEXIS 3647, at *4-5 (M.D. Ala. Jan. 13, 2011) (same).

IV. ARGUMENT

A. Plaintiff Fails to State an EPA Collective Action Claim.

Plaintiff purports to bring her EPA claim as a collective action covering a presumably large 

group of undefined women. And though she has twice amended her complaint, her attempt to 

expand this case beyond her individual claims should fail because Plaintiff has not pled any facts 

to support a broad, nationwide collective action. 

The EPA provides:

No employer having employees subject to any provisions of this section shall 

discriminate . . . between employees on the basis of sex by paying wages to 

employees . . . at a rate less than the rate at which [it] pays wages to employees of 

the opposite sex . . . for equal work on jobs the performance of which requires equal 

skill, effort, and responsibility, and which are performed under similar working 

conditions.

29 U.S.C. § 206(d)(1). “An action [under the EPA] may be maintained . . . by any

one or more employees for and in behalf of . . . themselves and other employees

similarly situated.” 29 U.S.C. § 216(b). In other words, the EPA allows a plaintiff

to bring a collective action claim on behalf of similarly situated female employees

who were allegedly discriminated against in their pay. “[T]he Eleventh Circuit has directed that 

the employees should be ‘similarly situated’ with respect to their job requirements and with regard 

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to their pay provisions.” St. Croix, 2012 US. Dist. LEXIS 86742, at *6 (citing Morgan v. Family 

Dollar Stores, 551 F.3d 1233, 1259 (11th Cir. 2008)). 

As CBS TV argued in its first and second Motions to Dismiss, courts routinely dismiss 

§ 216(b) collective action claims where a plaintiff fails to allege facts demonstrating she and other 

employees are similarly situated. For example, in St. Croix, the court granted defendant’s motion 

to dismiss where plaintiff provided only her job title—“which is not the same as a job 

description”—and where the complaint “provide[d] no description of the job duties (or even the 

job titles) of the alleged similarly situated employees. Nor are there any allegations concerning 

the similarly situated employees’ pay provisions.” 2012 U.S. Dist. LEXIS 86742, at *6–7. 

Likewise, in Jimenez, the court granted the defendant’s motion to dismiss a FLSA collective action 

claim:

Plaintiff alleges only that “there are other similarly situated current and former 

employees in the packaging department working, or previously working, for 

Defendant” and that these employees “in the packaging department performed 

similarly [sic] duties for Defendant and were subject to similar policies as to 

compensation.” [] These allegations are conclusory and, therefore, insufficient to 

state a claim for a collective action under the FLSA.

Jimenez, 2016 U.S. Dist. LEXIS 123968, at *10–11; see also Kemp v. Target Corp., 2013 U.S. 

Dist. LEXIS 133303, at *9–10 (N.D. Al. 2013) (dismissing EPA claim based on “formulaic,”

conclusory allegations, including that putative class members were “‘similarly situated female 

employees who work as Team Leads’ and ‘all other female Team Leaders’ who perform work 

requiring ‘equal skill, effort, and responsibility’ ‘under similar working conditions’ as male 

employees”).

Despite having four bites at the apple to state a legally cognizable collective action claim, 

Plaintiff’s allegations fall woefully short of this Circuit’s notice pleading requirement. Simply 

put, the Third Amended Complaint does not include any facts supporting the existence of a 

collective action. Tellingly, nowhere in the Third Amended Complaint does Plaintiff even define 

the collective group of “similarly situated” employees: the Third Amended Complaint does not 

state the job titles of the “similarly situated females,” let alone their job requirements, as required 

by the Eleventh Circuit. Instead, the Third Amended Complaint leaves unanswered fundamental 

questions regarding the allegedly similarly situated employees: What are their job titles and job 

requirements? What level of skill, effort, and responsibility was required to perform their work? 

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What are their pay provisions or compensation structures? Much like the allegations in Jimenez 

and Kemp that warranted dismissal, the only allegations here are conclusory and are “not entitled 

to the assumption of truth” under the Iqbal standard. See Iqbal, 556 U.S. at 679; TAC ¶ 60

(alleging that similarly situated employees work “in the same and/or similar working conditions, 

had the same and/or similar responsibilities, and used the same and/or similar system[s]”). 

Plaintiff’s EPA collective claims in Counts III, IV, and V should be dismissed for this reason.

Notably, the only factual allegations in the Third Amended Complaint in support of 

Plaintiff’s EPA claims are individual in nature, and stand in stark contrast to the utter lack of such 

allegations regarding the unidentified “similarly situated females” on whose behalf Plaintiff 

purports to bring a collective action. The Third Amended Complaint identifies Plaintiff’s own 

alleged comparators and describes their respective pay rates. See, e.g., TAC ¶ 63 (“Specifically, 

Plaintiff was paid at a lower rate than her [colleagues], who were similarly situated, including but 

not limited to, Hank Tester (“Mr. Tester”), David Sutta (“Mr. Sutta”), Ted Scouten (“Mr. 

Scouten”), and Cary Codd (“Mr. Codd”).”). These allegations underscore what this case is actually 

about: Plaintiff’s individual claim that she was paid less than her colleagues.

The Third Amended Complaint actually includes allegations that demonstrate why the EPA 

collective action could not be maintained. Plaintiff asserts repeatedly that other female 

employees—including female freelance reporters—were compensated at higher rates than her. 

See TAC ¶ 52 (female freelance reporter paid “significantly more than Plaintiff was, despite having 

the same exact position”) (emphasis added); id. ¶ 53 (younger female freelance reporter paid 

$33,000 more than Plaintiff); id. ¶¶ 29–33 (alleging specific examples of “younger, less 

experienced female[s]” receiving higher pay and/or full-time positions over Plaintiff). The fact 

that Plaintiff acknowledges that other female reporters made more than her only highlights that 

Plaintiff’s allegations comparing her own pay rate to that of male employees are not representative 

of the claims of other female employees. If anything, Plaintiff’s allegations about higher paid 

female employees establish that she is not similarly situated to those individuals even though she 

purports to include them in her collective action.

Accordingly, Plaintiff’s EPA collective action claims under Counts III, IV, and V fail and 

should be dismissed with prejudice. 

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B. Plaintiff’s Title VII and ADEA Disparate Treatment and Retaliation Claims 

Are Time-Barred and Should Be Dismissed.

To bring an action under Title VII and the ADEA in Florida, “a complainant must file a 

charge with the Florida Commission on Human Relations (FCHR) and the Equal Employment 

Opportunity Commission (EEOC) within 300 days of the alleged discrimination.” Dozier v. Coe, 

699 So. 2d 722, 723 (Fla. 1st DCA 1997) (citing 29 U.S.C. § 626(d)(2)). “[T]he timely filing of 

an EEOC complaint is a precondition to a Title VII action.” Jackson v. Seaboard Coast Line R. 

Co., 678 F.2d 992, 1011 (11th Cir. 1982). “In a ‘deferral state’ such as Florida, an administrative 

charge is considered to be timely filed when it is brought within 300 days of the alleged unlawful 

employment practice.” Earls v. Keystone Auto. Indus., 2010 U.S. Dist. LEXIS 32531 *4-5 (S.D. 

Fla. Mar. 31, 2010) (quoting Maynard v. Pneumatic Prods. Corp., 256 F.3d 1259, 1262-63 (11th 

Cir. 2001)). When an individual does not timely file an administrative charge, dismissal is 

appropriate. See Bost v. Fed. Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004); Sheffield v. 

UPS, 403 F. App’x 452, 454 (11th Cir. 2010). After receiving a Notice of Right to Sue from the 

EEOC, a plaintiff has 90 days to commence a civil action. See Fort Bend Cnty., Texas v. Davis, 

139 S. Ct. 1843, 1847 (2019).

1. Plaintiff’s Title VII and ADEA Disparate Treatment and Retaliation Claims

are Untimely Because She Received Notice of Right to Sue over 90 Days 

before Filing Her Original Complaint.

With respect to the 90-day deadline, Plaintiff’s Third Amended Complaint is a conspicuous 

attempt at amending to avoid this limitations period. In Plaintiff’s Second Amended Complaint, 

Plaintiff unambiguously alleged that “[o]n or about February 25, 2020, [she] received a Notice of 

Determination from the EEOC.” SAC ¶ 14. This allegation was presented, nearly word-for-word, 

in her original Complaint and her Amended Complaint. See Complaint (ECF No. 1-1) at 5 ¶ 10 

(“On or about February 25, 2020, Plaintiff received a Notice of Right to Sue . . . .”); Amended 

Complaint (ECF No. 1-1) at 27 ¶ 10 (“On or about February 25, 2020, Plaintiff received a Notice 

of Right to Sue . . . .”). In the Third Amended Complaint, however, Plaintiff contradicts her three 

prior allegations in order to avoid the 90-day deadline, alleging for the first time that she did not 

receive the Notice of Determination on February 25th, but instead the EEOC “issued” the Notice 

on that date and it “was not mailed until February 26, 2020.” See TAC ¶ 14. 

Although an amended pleading supersedes the former pleading, courts in this District have 

nonetheless looked to prior pleadings where the amendment is a “transparent attempt . . . to avoid 

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a dispositive defense.” Fernandez v. Sch. Bd. of Miami-Dade Cty., 201 F. Supp. 3d 1353, 1361 

n.1 (S.D. Fla. 2016) (accepting allegations as previously pled where plaintiff “manipulated the 

allegations in their pleadings to avoid a dispositive defense,” twice alleging facts forming the basis 

for the dispositive defenses, but conspicuously removing them in a subsequent amendment); see 

also Afr. Growth Corp. v. Republic of Angl., 2020 U.S. Dist. LEXIS 146986, at *44 n.13 (S.D. Fla. 

Aug. 13, 2020) (“While reconcilable ‘small variations’ between the complaints are acceptable, a 

plaintiff may not blatantly change the facts to respond to a defendant’s motion to dismiss and 

while doing so contradict the facts set forth in the prior pleading.” (citations omitted)). 

This Court should do the same here. Plaintiff has thrice repeated the same allegation, which 

has been identified in two prior motions to dismiss, and her updated allegation serves only to avoid 

the fact that Plaintiff filed her Complaint on May 26, 2020, 91 days after February 25, 2020. 

Accordingly, her Title VII and ADEA claims should be dismissed as they are untimely. See Scott 

v. Piedmont Columbus Reg’l Hosp., 806 F. App’x 954, 955 (11th Cir. 2020) (“If the EEOC issues 

a right-to-sue letter, the employee must bring suit in federal court within 90 days of the receipt of 

that letter.”); Martin v. Kmart Corp., 1995 U.S. Dist. LEXIS 3971, at *3 (M.D. Fla. Mar. 27, 1995) 

(granting motion to dismiss ADEA claim because “[u]nder Title VII, the requirement that a 

claimant file a civil action within ninety (90) days after receipt of a right to sue notice is akin to a 

statute of limitations”).

2. Plaintiff’s Title VII and ADEA Disparate Treatment and Retaliation Claims

are Also Untimely Because She Failed to Comply with the 300-Day 

Deadline to File Her Charge of Discrimination. 

Moreover, Plaintiff’s Title VII and ADEA claims are time-barred for the independent 

reason that Plaintiff failed to comply with the 300-day deadline to file her charge of discrimination 

with the EEOC. Plaintiff filed her charge of discrimination with the EEOC on January 9, 2019, 

TAC ¶ 11, more than 300 days (or 365 days for purposes of the FCRA) after the last date of any 

allegedly unlawful conduct. 

In determining when an allegedly unlawful employment practice occurred, courts consider 

the nature of the employment practice. “A discrete retaliatory or discriminatory act ‘occurred’ on 

the day that it ‘happened,’” such that “each discrete discriminatory act starts a new clock for filing 

charges alleging that act.” AMTRAK v. Morgan, 536 U.S. 101, 110, 113 (2002). Discrete acts are 

acts that are easy to identify and include, but are not limited to, a failure to promote or denial of 

transfer. Id. at 114. Therefore, when determining when a discrete act occurred, and when the 

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limitations period began to run, the focus is on the discriminatory act, not on the future 

consequences of the discrimination. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1979). 

As set forth above in Section II, supra, Plaintiff’s failure to promote, discrimination, and 

retaliation claims rely on factual allegations that occurred between 2011 and January 2018. Thus, 

even viewing the allegations in the light most favorable to Plaintiff, more than 300 days elapsed 

between the last date of the alleged discriminatory or retaliatory conduct and the date she filed her 

EEOC charge and her claim remains time-barred. See Bost, 372 F.3d at 1238 (11th Cir. 2004) 

(“The ADEA requires that an individual exhaust available administrative remedies by filing a 

charge of unlawful discrimination with the EEOC before filing a lawsuit.”); Sheffield, 403 F. 

App’x at 454 (11th Cir. 2010) (“It is firmly established that, in order to bring an action for age 

discrimination or retaliation under the ADEA, a plaintiff must first file a timely charge of 

discrimination with the EEOC or appropriate state or local agency”).

Although CBS TV raised this exact argument in its first and second Motions to Dismiss, 

Plaintiff does not claim to have timely, factual claims regarding alleged conduct within the statute 

of limitations period. Instead, she attempts to salvage her untimely Title VII and ADEA claims 

by misrepresenting EEOC protocol. Specifically, Plaintiff alleges that the EEOC “tolled the filing 

deadline for Plaintiff’s Charge as it did for all Charges” until February 12, 2019, due to a lapse in 

appropriations that occurred between December 22, 2018 to January 26, 2019. See TAC ¶ 12. 

This argument lacks merit for several reasons. For one, Plaintiff filed her claim on January 9, 2019

(TAC ¶ 11)—in the middle of the alleged “lapse”—so Plaintiff’s representation that the EEOC 

was not accepting new charges is vitiated by her own conduct. Moreover, Plaintiff misstates the 

EEOC’s posted protocol during the period in question.7 Contrary to Plaintiff’s allegations, the 

EEOC web page makes clear that the shutdown did not affect deadlines set by law, such as the 

300-day filing requirement. The EEOC explicitly states, “Note: The EEOC accepted charges 

during this time to preserve individuals’ rights under the law.” See Request for Judicial Notice 

 7 Defendants concurrently request that the Court take judicial notice of the EEOC web page in 

which the EEOC discusses the impact of the lapse in appropriations referenced by Plaintiff, and 

a second web page where the EEOC states its contingency plans in the event of lapsed 

appropriations. See Request for Judicial Notice (ECF No. 24), Exs. A, B. Judicial notice of 

government agency websites is appropriate. See also Prince v. Fla., Dep’t of Corr., 2017 U.S. 

Dist. LEXIS 222538, at *3 (M.D. Fla. June 27, 2017) (“The Court takes judicial notice of the 

intake questionnaire on the EEOC website”) (citing E.E.O.C. v. Summer Classics, Inc., 41 F. 

Supp. 3d 1287, 1289 (N.D. Ala. 2011), aff’d, 471 F. App’x 868 (11th Cir. 2012)).

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(ECF No. 24), Ex. A; see also id. (the 90-day period to file a lawsuit after receiving a notice to sue 

is “not affected by the lapse in appropriations . . . [because] [t]his deadline is set by law.”). 

Moreover, the EEOC Shutdown Contingency Plan web page states, “We will accept charges that 

must be filed in order to preserve the rights of a claimant during a shutdown.” Id., Ex. B.

While Plaintiff alleges the filing deadline was tolled until February 12, 2019, that deadline 

related to EEOC filings for open charges only—the web page discusses that deadline under a bold 

heading titled “Open Charges of Discrimination.” Id. Because Plaintiff misstates the EEOC’s 

protocol, any contention that the protocol renders her claim timely should be rejected. See Fed. R. 

Evid. 201 (courts may judicially notice facts not subject to “reasonable dispute”). As such, there 

is no basis for equitable tolling based on Plaintiff’s failure to file her charge. See Abram v. Fulton 

Cnty. Gov’t, 598 F. App’x 672, 675 (11th Cir. 2015) (“Equitable tolling is not warranted where 

the plaintiff failed to exercise due diligence or where she failed to file her action in a timely fashion, 

despite knowing (or being in a position to know) that the limitations period was running.”).8

The second argument CBS TV made in its prior Motions to Dismiss was that to the extent 

Plaintiff argues that she meets the 300-day deadline for her termination claim because she was 

constructively discharged and she worked a day or two into the limitations period, she is incorrect. 

Specifically, in her Complaint and Amended Complaint, Plaintiff alleged that she put in her two 

weeks’ notice on or about March 2, 2018. See Compl. (ECF No. 1-1 at 4) ¶ 83; Amended 

Complaint ¶ 83 (same). In light of these express allegations, CBS TV argued that, under U.S. 

Supreme Court precedent, the limitations period began to run when Plaintiff put in her notice. See 

Motion to Dismiss (ECF No. 8) at 8 (citing Green v. Brennan, 136 S. Ct. 1769, 1782 (2016) (“If 

an employee gives ‘two weeks’ notice’ . . . the limitations period begins to run on the day he tells 

his employer, not his last day at work.”); Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 

2000) (“We think that the date that [plaintiff’s ADEA] claim accrued was the date when she gave 

 8 Even if equitable tolling applied, all discrete acts that occurred prior to February 25, 2018—i.e.,

300 days before the beginning of the shutdown period—are still untimely. Therefore, with the 

exception of the date on which Plaintiff gave her two weeks’ notice in early March, each discrete 

act discussed in this Section still occurred outside the limitations period. 

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definite notice of her intention to retire”)

9

; Green v. Serv. Mfg., 2017 U.S. Dist. LEXIS 123334 at 

*10, N. 4 (N.D. Ga. July 14, 2017) (granting motion to dismiss and explaining that limitations runs 

on the “date the plaintiff advises her employer of her resignation, not the date that her resignation 

becomes effective”)). 

In a startling and last ditch effort to avoid this argument that Plaintiff’s claims are untimely, 

Plaintiff simply strikes from her Second Amended Complaint, and now Third Amended 

Complaint, the allegation that she gave two weeks’ notice. Instead, she now summarily concludes 

that she was “constructively discharged” on March 16, 2018. See SAC ¶ 82; TAC ¶ 82. But

Plaintiff cannot change allegations to defeat a motion to dismiss. While courts typically do not 

look beyond the face of the complaint on a motion to dismiss, courts in this Circuit have recognized 

that where, as here, a plaintiff blatantly changes factual allegations in the amended complaint in 

an attempt to avoid dismissal, the court may rely upon admissions made in an earlier complaint.

See, e.g., Afr. Growth Corp., 2020 U.S. Dist. LEXIS 146986, at *44 n.13. The court’s decision in 

Fernandez, supra, is again instructive. There, the court relied on the facts set forth in the original 

complaint and first amended complaints to analyze a motion to dismiss because, in the second 

amended complaint, the plaintiffs “manipulated the allegations in their pleadings to avoid a 

dispositive defense.” Fernandez, 201 F. Supp. 3d at 1361 & n.1. As in Fernandez, Plaintiff 

attempts to avoid a dispositive timeliness defense by simply removing allegations from the Second 

Amended Complaint, including that she gave two weeks’ notice. The Court should not 

countenance such gamesmanship and should consider the allegations as set forth in Plaintiff’s 

earlier complaints: Plaintiff gave two weeks’ notice before her last day of work, which was on or 

about March 16, 2018. Compl. (ECF No. 1-1) ¶ 83; Amended Complaint ¶ 83. Because that date 

was necessarily before March 15, 2018, Plaintiff did not timely file her EEOC charge.

Accordingly, all of the discrete acts in Plaintiff’s Complaint occurred outside the 

limitations period and are, therefore, time-barred.

 9 While Defendants acknowledge that the Flaherty Court considered a district court’s order on a 

motion for summary judgment rather than a motion to dismiss, the pronouncement cited 

nonetheless identifies the legal standard that courts apply to determine when a plaintiff’s claim 

begins to accrue upon giving notice of resignation. Thus, the legal standard from Flaherty applies 

equally where allegations establish that Plaintiff gave notice of her resignation outside of the 

applicable limitations period.

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C. Plaintiff’s FCRA Disparate Treatment and Retaliation Claims Fail. 

“As a prerequisite to bringing a civil action based upon an alleged violation of the FCRA, 

the claimant is required to file a complaint with the FCHR within 365 days of the alleged 

violation.” Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So. 2d 891, 894 (Fla. 2002)

(citing § 760.11(1), Fla. Stat). The timely filing of an administrative complaint with the FCHR is 

a condition precedent that must be pled when filing the civil action. Maynard v. Taco Bell of Am., 

Inc., 117 So. 3d 1159, 1161 (Fla. 5th DCA 2013). 

Here, Plaintiff does not—because she cannot—plead that she timely filed the 

administrative complaint under the FCRA. Plaintiff’s FCRA claims are based on the same alleged 

conduct as her Title VII and ADEA claims, but the FCRA sets a 365-day limitations period. 

Because Plaintiff filed her charge on January 9, 2019, any act that occurred prior to January 9, 

2018 is time barred. As discussed in Sections II and IV(C), supra, the discrete acts alleged in the

Second Amended Complaint—failure to promote, discrimination, retaliation, and constructive 

discharge—all occurred prior to January 9, 2018. The remaining allegations are all conclusory 

and cannot support a claim for relief under the Iqbal standard. See, e.g., TAC ¶ 61 (“Throughout 

Plaintiff’s employment, Defendant paid male freelance employees at a higher rate than Plaintiff”); 

id. ¶ 81 (“Defendant[] continued to intimidate and retaliate against Plaintiff”). 

To the extent Plaintiff argues that her claim survives because she gave her two weeks’ 

notice within the 365 days prior to the filing of her charge, she is again incorrect. “Constructive 

discharge occurs when an employer deliberately makes an employee’s working conditions 

intolerable and thereby forces him to quit his job.” Bryant v. Jones, 575 F.3d 1281, 1298 (11th 

Cir. 2009). Plaintiff’s FCRA constructive discharge claim cannot be sustained as a matter of law 

because the entirety of her claim is based on two specific incidents of harassment, which occurred

in September and November of 2017.10 “[W]hile [Plaintiff’s] termination occurred during the 

statutory period, [s]he [cannnot] use it as the lynchpin to pull in a time-barred act.” McCall v. 

Butler Health Sys./Butler Mem’l Hosp., 2013 U.S. Dist. LEXIS 170719, at *25 (W.D. Pa. Dec. 4, 

2013) (quotations omitted) (granting motion to dismiss constructive discharge claim that was 

 10 While Plaintiff alleges that there were “three separate incidents,” TAC ¶ 77, the factual 

allegations set forth only two incidents: one in September 2017 and another in November 2017. 

Id. ¶¶ 69–70. Plaintiff’s allegations leave no doubt that these “incidents and Defendants responses 

to each of them” establish the basis of her constructive discharge claim. Id. ¶ 77

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based on time-barred discriminatory acts) (citing Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 

(2d Cir. 2004)); see also Matthews v. City of Gulfport, 72 F. Supp. 2d 1328, 1338 (M.D. Fla. 1999) 

(“[W]here a plaintiff is unable to support a hostile work environment claim, she is also unable to 

support a claim of constructive discharge.”).

11 And, because Plaintiff’s remaining allegations are 

conclusory, they cannot support a claim for relief under Twombly. See, e.g., TAC ¶ 81 (“As time 

went on, Defendant’s continued to intimidate and retaliate against Plaintiff for voicing her 

complaints.”); see also McCall, 2013 U.S. Dist. LEXIS 170719 (disregarding “broad[] 

alleg[ations] that unlawful conduct continued up to the date of retirement [, since] Plaintiff alleges 

no specific facts” supporting a timely claim) (citing Twombly, 550 U.S. at 561–62). Therefore, 

Plaintiff’s constructive discharge claim is also untimely.

For these reasons, just as Plaintiff’s claims under Title VII and the ADEA should be 

dismissed, so too should Plaintiff’s identical claims under the FCRA. 

D. Plaintiff Cannot Establish A Timely Hostile Work Environment Claim Under 

Title VII Or The FCRA.

To the extent Plaintiff alleges a hostile work environment claim, that claim, like her other 

individual claims, also should be dismissed. A hostile work environment claim is comprised of a 

series of related, separate acts that “collectively constitute one ‘unlawful employment practice.’” 

Morgan, 536 U.S. at 113. Because all related acts constitute a single employment practice, a 

hostile work environment claim can include non-timely acts “provided that an act that contributed 

to the claim occurs within the filing period.” Id. at 117 (emphasis added). If none of the separate 

acts occurred during the limitations period, the hostile work environment claim is time-barred. See 

Stewart v. Jones Util. and Contracting Co. Inc., 806 F. App’x 738, 741–42 (11th Cir. 2020) 

(affirming grant of motion to dismiss hostile work environment claims because “a Title VII 

plaintiff cannot recover for acts that occurred before the filing period”); Chambless v. LouisianaPac. Corp., 481 F.3d 1345, 1350 (11th Cir. 2007) (upholding dismissal of hostile work 

environment claim where “untimely acts [] comprise[d] that claim”). 

 11 Although the Matthews Court considered the validity of a constructive discharge claim in the 

context of a motion for summary judgment, the court’s holding that, as a matter of law, a 

constructive discharge claim cannot survive where the facts do not give rise to a hostile work 

environment claim applies equally here. As discussed in Section IV(E), infra, Plaintiff’s hostile 

work environment claim is untimely. 

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Courts in this Circuit routinely dismiss hostile work environment claims where a plaintiff 

fails to allege an act falling within the limitations period. See Moore v. San Carlos Park Fire 

Protection & Rescue, 2018 U.S. Dist. LEXIS 138727, at *9–10 (M.D. Fla. Aug. 16, 2018), aff’d 

808 F. App’x 789 (11th Cir. 2020) (granting motion to dismiss where, “[d]espite [plaintiff’s] 

argument otherwise, her claims are not timely under the continuation theory. This is because she 

has not identified a single act falling within the limitations period.”); Restrepo v. Int’l Vapor Grp., 

Inc., 2017 U.S. Dist. LEXIS 82146, at *11–12 (S.D. Fla. May 26, 2017) (granting motion to 

dismiss hostile work environment claim “[b]ecause the [complaint] fails to allege that any 

discriminatory acts that occurred within 300 . . . days of . . . the date Plaintiff filed her EEOC 

charge”). Here, Plaintiff fails to state a viable hostile work environment claim because she has not 

alleged a single act of sexual harassment within the applicable time period under Title VII or the 

FCRA. See supra Section II. Even using the longer, 365-day period afforded to her under state 

law, Plaintiff would need to allege an act of harassment that occurred after January 9, 2018. She 

does not. See id. Based on the allegations in the Second Amended Complaint, Plaintiff 

experienced two incidents of alleged sexual harassment by third parties, both in 2017. See TAC

¶¶ 69–70. Therefore, because Plaintiff has not identified a single, timely act occurring within the 

limitations period, her hostile work environment claims are time-barred and should be dismissed.

E. Plaintiff Fails To Allege Facts Sufficient To Support Her Intentional Infliction 

Of Emotional Distress Claim. 

Plaintiff’s allegations do not support a claim for IIED. To establish IIED under Florida 

law, the conduct must be “so outrageous in character, and extreme in degree as to go beyond the 

bounds of decency and be deemed utterly intolerable in a civilized society.” Valdes v. GAB Robins 

N. Am., Inc., 924 So. 2d 862, 866 (Fla. 3d DCA 2006). Sufficiently outrageous conduct is rarely 

found in the employment setting and “only when the plaintiff is able to show that he was the victim 

of relentless physical, as well as verbal harassment.” Carroll v. Neumann, 204 F. Supp. 2d 1344 

(S.D. Fla. 2002) (internal citations and quotations omitted); see also Scelta v. Delicatessen Support 

Servs., Inc., 57 F. Supp. 2d 1327, 1357 (M.D. Fla. 1999) (“In the employment context, Florida law 

has a strong disfavor for claims of intentional infliction of emotional distress.”). Moreover, the 

alleged resulting emotional distress must be “of such intensity or duration that no ordinary person 

should be expected to endure it.” Henderson v. Hovnanian Enterprises, Inc., 884 F. Supp. 499, 

503 (S.D. Fla. 1995). 

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Whether a plaintiff experienced this type of distress is a question of law for the court to 

resolve, not a question of fact for the jury. Roberts v. Amtrust Bank, 2014 U.S. Dist. LEXIS 

176128, at *6 (S.D. Fla. Dec. 22, 2014). Courts in this Circuit routinely grant motions to dismiss

IIED claims where the alleged conduct does not meet the rigorous standard used by courts to assess 

such claims. For example, in Noah v. Assor, 379 F. Supp. 3d 1284 (S.D. Fla. 2019), a plaintiff 

asserted harassment and IIED claims, alleging she was subjected to “harassing conduct, such 

as sexual propositions, multiple physical trespasses, stalking related behavior, sexually lewd 

comments, and repeated expressions of jealousy.” Id. at 1291. While the court denied the motion 

to dismiss the quid pro quo and hostile environment harassment claims, the court granted the 

motion to dismiss the IIED claim, stating:

Here, there is no doubt the alleged sexually harassing conduct, if true, is more than 

inappropriate and offensive. But even when taking all Plaintiff’s allegations as true 

and considering them in the light most favorable to Plaintiff, under Florida law, the 

conduct alleged does not rise to one of the “extremely rare circumstances” where 

intentional infliction of emotional distress claims are upheld. The touchstone of 

these cases is the presence of relentless physical, as well as verbal, harassment.

* * *

The fact is that courts dismiss intentional infliction of emotional distress claims 

alleging offensive and unwelcome sexual advances—even when those advances are 

coupled with unwanted offensive physical touching.

Id. (citations omitted) (emphasis added). 

Plaintiff’s allegations do not give rise to one of the “extremely rare circumstances” where 

an IIED claim should be upheld. At best, Plaintiff’s allegations establish that she was physically 

touched by a third party on two occasions, and that CBS retaliated against her for complaining 

about this conduct. Courts have held that far more egregious conduct does not meet the standard 

of “outrageous” conduct under Florida law. See Hare v. Citrus World Inc. ̧ 39 F. Supp. 2d 1365, 

1369-70 (M.D. Fla. 1999) (granting motion to dismiss IIED claim where plaintiffs alleged 

defendant “on several occasions” would make obscene comments, touch and grab their waist, and 

suggestively rub their stomach and shoulders); Blount v. Sterling Healthcare Grp., Inc., 934 F. 

Supp. 1365, 1371 (S.D. Fla. 1996) (granting motion to dismiss IIED claim where plaintiff alleged 

that defendant made verbal offensive comments and also rubbed plaintiff’s breasts with his arm, 

hugged her tightly, and massaged the back of her head); Howry v. Nisus, Inc., 910 F. Supp. 576, 

580-81 (M.D. Fla. 1995) (granting motion to dismiss IIED claim where plaintiff alleged the 

defendant physically touched the plaintiff and himself in a suggestive manner, used obscene 

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language, and commented on sex organs); compare Stockett v. Tolin, 791 F. Supp. 1536, 1556 

(S.D. Fla. 1992) (finding that defendant’s repeated and relentless grabbing/touching of plaintiff’s 

private body parts, repeated kissing of plaintiff, physical attacks, and repeated verbal 

licentiousness amounted to outrageous behavior). Thus, Plaintiff’s IIED claim should be 

dismissed.

F. Plaintiff Fails to Allege a Joint Employer Relationship. 

Although not clearly asserted, Plaintiff appears to bring CBS Broadcasting, Inc. and CBS 

Corporation into the fray as alleged joint employers of Plaintiff (even though she did not work for 

these entities). See TAC ¶ 18 (referring to “Defendant” in the singular and noting that “Plaintiff 

began working for Defendant on or about February 21, 2011 . . . .”). Her bare bones, conclusory 

allegations fail to allege sufficient facts to allow for the inference of such a relationship, however.

To determine whether a defendant is a joint employer on the FLSA, the Eleventh Circuit 

looks at eight factors: 

(1) the nature and degree or control of the workers; (2) the degree of supervision, 

direct or indirect, of the work; (3) the power to determine the pay rates or the 

methods of payment of the workers; (4) the right, directly or indirectly, to hire, fire, 

or modify the employment conditions of the workers; (5) preparation of payroll and 

the payment of wages; (6) ownership of facilities where work occurred; (7) 

performance of a specialty job integral to the business; and (8) investment in 

equipment and facilities.

Freeman v. Key Largo Volunteer Fire & Rescue Dep’t, Inc., 494 F. App’x 940, 943 (11th Cir. 

2012) (quoting Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1176 (11th Cir. 2012)). 

Here, Plaintiff fails to allege a single fact directed to any of the aforementioned factors. 

Instead, Plaintiff levels a single conclusory assertion, in a single paragraph of the TAC, that 

Defendants “jointly employed Plaintiff.” See TAC ¶ 5. At no point does Plaintiff offer any 

explanation as to how CBS Broadcasting, Inc. or CBS Corporation acted as Plaintiff’s employer 

(they were not). In fact, Plaintiff does not even identify either CBS Broadcasting, Inc. or CBS 

Corporation in the Third Amended Complaint other than naming them in the pleading’s preamble. 

See TAC, General Allegations, ¶¶ 1–17. The individual Counts against the New Defendants 

(Counts IV and V) offer no clarity and instead parrot the boilerplate allegations of Count III. See 

supra Section IV(A); compare TAC ¶¶ 106–115 (Count III against CBS TV) with ¶¶ 110–121 

(Count IV against CBS Broadcasting, Inc.) and ¶¶ 114–127 (Count V against CBS Corporation). 

The dearth of allegations to support a joint employer relationship warrant the dismissal of Counts 

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IV and V. See Amponsah v. Directv, Inc., No. 1:14-CV-3314-ODE, 2015 U.S. Dist. LEXIS 

177530, at *14–15 (N.D. Ga. Apr. 16, 2015) (dismissing joint employer claims where complaint 

provided "very little detail" regarding the elements of the joint employment relationship).

G. The Claims Should Be Dismissed With Prejudice.

The claims discussed herein should be dismissed with prejudice. In the Eleventh Circuit, 

“[t]hree attempts at proper pleading are enough.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 

1057 (11th Cir. 2015). Indeed, “a district court may properly deny leave to amend the complaint 

under Rule 15(a) when such amendment would be futile.” Hall v. United Ins. Co. of Am., 367 F.3d 

1255, 1263 (11th Cir. 2004) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The Eleventh 

Circuit has found that amendment is futile when an amended complaint is still subject to dismissal 

as a matter of law. Hall, 367 F.3d at 1263. 

Plaintiff has now pled her claims four separate times, but she has not added any new factual 

allegations that can make her claims timely or otherwise sufficient. Instead, she simply alters or 

removes facts to manipulate the allegations to avoid applicable limitations periods. As to her IIED 

claims, she fails to add any new factual allegations—and she has had three opportunities to do 

so—that make the alleged conduct “outrageous,” as required under the law. As such, further 

amendment would be futile. See Crawford’s Auto Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 945 

F.3d 1150, 1163 (11th Cir. 2019) (affirming dismissal of claims with prejudice where district court

“compared Plaintiffs’ Complaint with their first amended complaint (which had been dismissed as 

a matter of law) and found the claims Plaintiffs asserted in their operative complaint ‘told 

essentially the same story.’”); Williams v. Wal-Mart Stores, Inc., 2019 U.S. Dist. LEXIS 176828, 

at *25-26 (S.D. Fla. Oct. 10, 2019) (dismissing complaint with prejudice where plaintiff had 

“multiple opportunities to amend her complaint”). For these reasons, Plaintiff’s claims should be 

dismissed with prejudice.

V. CONCLUSION

For all of the reasons set forth above, Defendants respectfully requests that this Court 

dismiss, with prejudice, 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, allow this case to proceed only on Plaintiff’s 

individual claims under the EPA (Count III) and for negligent infliction of emotional distress 

(Count XI), and grant such other and further relief as the Court deems just and proper. 

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Respectfully submitted this 21st day of October, 2020. 

BAKER & MCKENZIE LLP

Attorneys for CBS Television Stations, Inc.

Sabadell Financial Center

1111 Brickell Avenue, Suite 1700

Miami, Florida 33131

Telephone: (305) 789-8900

Facsimile: (305) 789-8953

By: /s/ William V. Roppolo

William V. Roppolo, Esq.

Florida Bar No. 182850

william.roppolo@bakermckenzie.com

Benjamin C. Davis, Esq.

Florida Bar No. 110734

benjamin.davis@bakermckenzie.com

Blair J. Robinson (Pro Hac Vice)

Paul C. Evans (Pro Hac Vice)

BAKER & MCKENZIE LLP

452 Fifth Avenue

New York, NY 10018

Telephone: (212) 626-4100

Facsimile: (212) 310-1632

blair.robinson@bakermckenzie.com

paul.evans@bakermckenzie.com

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 21, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document 

is being served this day on all counsel of record or pro se parties identified on the attached Service 

List in the manner specified, either via transmission of Notices of Electronic Filing generated by 

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized 

to receive electronically Notices of Electronic Filing. 

By: /s/ William V. Roppolo

 William V. Roppolo, Esq.

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SERVICE LIST

SILVA HARAPETI, 

v.

CBS TELEVISION STATIONS, INC.

CASE NO. 20-22995-CIV-Williams

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Peter M. Hoogerwoerd, Esq.

REMER & GEORGES-PIERRE, PLLC

44 West Flagler Street

Suite 2200

Miami, Florida 33130

pmh@rgpattorneys.com

Phone: (305) 416-5000

Facsimile: (305) 416-5005

Attorneys for Plaintiff Silva Harapeti

Case 1:20-cv-22995-KMW Document 43 Entered on FLSD Docket 10/21/2020 Page 25 of 25