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UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LEAH VALENTINE,

Plaintiff,

v. Case No. 3:09cv334/MCR/EMT

LEGENDARY MARINE FWB, INC.

a Florida corporation, and 

LEGENDARY, INC., a Florida

corporation,

Defendants.

_______________________________/

O R D E R

Plaintiff Leah Valentine has filed a second amended complaint against Defendants

Legendary Marine FWB, Inc. and Legendary, Inc. (collectively “Legendary”) (doc. 33),

claiming that her termination from employment while on maternity leave violated her rights

under the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq.; Title VII

of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e-2; the

Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”); and the Florida Civil Rights

Act, Fla. Stat. § 760.10 (“FCRA”). The six-count second amended complaint alleges: 

Count I, interference with her right to exercise leave under the FMLA; Count II, retaliation

for exercising her right to leave under the FMLA; Count III, employment discrimination on

the basis of sex under Title VII; Count IV, retaliation under Title VII; Count V, pregnancy

discrimination in violation of the PDA; and Count VI, sex discrimination under the FCRA.

Pending before the court is Legendary’s Motion to Dismiss Plaintiff’s Second Amended

Complaint (doc. 35), pursuant to Federal Rule of Civil Procedure 12(b)(6), which Valentine

opposes (doc. 40). In support of her opposition, Valentine attached Exhibit A – the cause
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determination of the Florida Commission on Human Relations (“FCHR”), referenced in her

complaint. Legendary then filed Defendants’ Motion to Strike Exhibit A Attached to

Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss and

Incorporated Memorandum of Law (doc. 41), pursuant to Rule 12(f), which Valentine also

opposes (doc. 50). Having considered the motions, the court now denies the motion to

strike, and grants in part and denies in part the motion to dismiss. 

Motion to Strike

A motion to strike permits a court, on its own motion or by motion of a party, to

“strike from a pleading an insufficient defense or any redundant, immaterial, impertinent,

or scandalous matter.” Fed. R. Civ. P. 12(f). A document incorporated into a complaint

by reference and attached to a motion to dismiss may be considered without converting

a motion to dismiss into a motion for summary judgment “only if the attached document is: 

(1) central to the plaintiffs claim, and (2) undisputed.” Horsley v. Feldt, 304 F.3d 1125,

1134 (11th Cir. 2002). In this context, a document is “undisputed” if its authenticity is not

challenged. Id. “[I]f the document's contents are alleged in a complaint and no party

questions those contents, [the court] may consider such a document provided it meets the

centrality requirement imposed in Horsley.” Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir.

2005). Furthermore, a motion to strike is appropriately granted only if “the matter sought

to be omitted has no possible relationship to the controversy, may confuse the issues, or

otherwise prejudice a party.” Reyher v. Trans World Airlines, Inc., 881 F. Supp. 574, 576

(M.D. Fla. 1995). “Because this standard is rarely met, ‘[m]otions to strike are generally

disfavored by the Court and are often considered time wasters.’” U.S. ex rel. Chabot v.

MLU Servs., Inc., 544 F. Supp. 2d 1326, 1330 (M.D. Fla. 2008) (quoting Somerset Pharm.,

Inc. v. Kimball, 168 F.R.D. 69, 71 (M.D. Fla.1996) (alteration in original)). Additionally, a

Rule 12(f) motion has been characterized as a “drastic remedy” which is “rarely granted

absent a showing of prejudice.” Stephens v. Trust for Pub. Land, 479 F. Supp. 2d 1341,

1346 (N.D. Ga. 2007).

The second amended complaint sufficiently references the FCHR’s cause

determination, though it is not physically attached to the complaint. See Day, 400 F.3d at

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1276 (stating “a document need not be physically attached to a pleading to be incorporated

by reference into it”). Legendary asserts that the FCHR’s cause determination should be

stricken because the complaint references it only for jurisdictional purposes and not within

the complaint’s statement of facts. The fact that the document is referenced only under

the heading ”Conditions Precedent,” which includes paragraphs 1 though 4, rather than

under the heading “Statement of Facts,” which includes paragraphs 16 through 35 of the

complaint, is a distinction without a difference. Each substantive count expressly and fully

incorporates all of paragraphs 1 though 35, including paragraph 3's reference to the

FCHR’s cause determination. To draw a distinction based upon the headings given to

those paragraphs would be to “‘elevate form over substance,’” which is inappropriate in

reviewing pleadings. See Williams v. Blue Cross and Blue Shield of Fla., Inc., No.

3:09cv225, 2009 WL 3710760, at *1 (N.D. Fla. 2009) (quoting Intel Broth. of Elec. Workers,

Local Union No. 323 v. Coral Elec. Corp., 576 F. Supp. 1128, 1134 (S.D. Fla. 1983)); see

also Fed. R. Civ. P. 8(e) (requiring courts to construe pleadings “so as to do justice”). 

Furthermore, contrary to Legendary’s arguments, the fact that the referenced document

was attached to the plaintiff’s opposition to the motion to dismiss, instead of attached to

the complaint or to the motion to dismiss, presents no basis for distinguishing this case

from others cited by the plaintiff. See, e.g., Gross v. White, 340 Fed. Appx. 527, 534 (11th

Cir. 2009) (unpublished) (finding no error in the district court’s consideration of a document

referenced in the second amended complaint but attached only to the plaintiff’s opposition

to a motion to dismiss); Horsely, 304 F.3d at 1134 (noting, the fact that a referenced

document was attached to an answer rather than a motion to dismiss required no different

result for purposes of the “incorporation by reference doctrine”). The court finds that the

FCHR cause determination is central to the plaintiff’s claims because it is a condition

precedent to suit and neither party disputes its contents or authenticity. See Day, 400 F.3d

at 1276; Horsely, 304 F.3d at 1134. There is also no allegation that defendant would suffer

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prejudice from the court’s consideration of this document. See Stephens, 479 F. Supp. 1

2d at 1346. The court accordingly denies Legendary’s motion to strike.

Motion to Dismiss

A motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure seeks

dismissal of the complaint for failure to state a claim on which relief can be granted.

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

claim showing that the pleader is entitled to relief,” and this does not require detailed

allegations. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In considering a Rule

12(b)(6) motion, the court accepts all factual allegations of the complaint as true and

construes them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d

1282, 1284 (11th Cir. 2008). The motion is properly denied if the complaint “contain[s]

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007)). This “plausibility standard” requires a showing of “more than a sheer

possibility” that the defendant is liable on the claim. Id. The allegations of the complaint

must set forth enough facts “to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555. In other words, the complaint must contain sufficient factual matter,

accepted as true, to permit a court “to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. However, the court need

not credit “[t]hreadbare recitals” of the legal elements of a claim unsupported by plausible

factual allegations, because “the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.” Id. “[T]he court limits its

consideration to the pleadings and exhibits attached thereto” and incorporated into the

complaint by reference. Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342,

1352 n.7 (11th Cir. 2006) (internal marks omitted); Long v. Murray, No 6:09-cv-1320, 2009

 Such documents may even be admissible at trial. The Eleventh Circuit has stated that “an EEOC

1

determination is ordinarily admissible” at trial, and questions of admissibility are best left to the trial court’s

discretion. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1288 (11th Cir. 2008) (citing Barfield v. Orange

County, 911 F.2d 644 (11th Cir. 1990), cert. denied, 500 U.S. 954 (1991)).

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WL 4042961 at *1 (M.D. Fla. 2009) (slip op.) (stating, “a court must limit its consideration

to the complaint, the written instruments attached to it as exhibits, ‘documents incorporated

into the complaint by reference, and matters of which a court may take judicial notice,’“

quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323 (2007)).

Legendary argues that the entire second amended complaint is a mere formulaic

recitation of the elements with bare legal conclusions. The court disagrees. Valentine

asserts in the second amended complaint that Legendary was an eligible employer within

the meaning of the FMLA, Title VII, the PDA, and the FCRA, and that she was an eligible

employee, supported by factual allegations that meet the jurisdictional requirements. In 2

the complaint, Valentine asserts the following factual allegations. Legendary hired

Valentine in September 2003 at its Destin, Florida store, where she worked full time until

January 2006, when she moved to Legendary’s store in Fort Walton Beach, Florida, where

she worked as the inventory coordinator until informed of her termination in January 2008. 

Valentine became pregnant and notified her employer on December 3, 2007, that she

would be taking maternity leave at the end of the month. Valentine and Legendary agreed

that she would exercise her right under the FMLA for 12 weeks of leave when her child was

born and would return to the same position after that leave period. In reliance on that

agreement, Valentine trained others to perform her duties. Valentine worked full time until

December 21, 2007; her baby was born on December 22; she was terminated in January

2008. Valentine alleges that Legendary was nearing the end of a reduction in force when

she started her leave, and that all affected employees were laid off by the end of

December 2007. Valentine emailed Legendary’s general manager in January 2008 to

discuss her return to work and was informed by her immediate supervisor that her

employment was terminated and her position had been eliminated. Valentine alleges that

no other employee was terminated during the month of January. Valentine alleges that

For example, Valentine pleads that she met the conditions precedent to filing suit, citing relevant

2

dates and agency documents; she asserts she was employed by defendants for at least 12 months and

rendered at least 1,250 hours of service during the 12-month-period preceding the exercise of her FMLA

rights; and she asserts Legendary employed more than 50 employees within 75 miles of Valentine’s assigned

work site.

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Legendary interfered with her use of FMLA leave rights, retaliated against her for

exercising those rights, and that its unlawful retaliatory practices were motivated at least

in party by Valentine’s use of protected FMLA leave. These are factual allegations, not

mere legal conclusions.

In Count I and II, Valentine claims discrimination and retaliation in violation of the

FMLA and has sufficiently alleged facts showing she was entitled to maternity leave under

the FMLA but was denied its benefits and that she was retaliated against by being

terminated her for using those benefits. See Russell v. N. Broward Hosp., 346 F.3d 1335, 

1340 (11th Cir. 2003); Parris v. Miami Herald Pub. Co., 216 F.3d 1298, 1301 (11th Cir.

2000) (“To state a claim under the FMLA, a plaintiff must prove three elements at trial: (1)

[she] availed [herself] of a protected right under the FMLA; (2) [she] suffered an adverse

employment decision; and (3) there is a causal connection between the protected activity 3

and the adverse employment decision.”). Legendary asserts that Valentine has not pled

the denial of a benefit to which she was entitled under the FMLA. To the contrary, the right

to be restored to her original position or an equivalent position at the end of the leave

period, which the facts here allege, is a substantive right guaranteed by the FMLA. See

29 U.S.C. § 2614(a)(1); see also Strickland v. Water Works and Sewer Bd. of City of

Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2001). Legendary also asserts Counts I

and II should be dismissed because Valentine was terminated as part of a legitimate

reduction in force and therefore had no right to reinstatement. This, however, is a question

for a later stage of the proceedings because it is the employer’s burden to demonstrate a

legitimate reduction in force that eliminated the employee’s position and interfered with her

reinstatement after FMLA-protected leave. See Parris, 216 F.3d at 1301 n.1; see also

O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1354 (11th Cir. 2000). Although

it is sufficient at the pleading stage that Valentine alleges she was terminated in January

The facts alleged demonstrate that Valentine was terminated while she was on maternity leave.

3

Close temporal proximity may be a sufficient causal connection for a claim. See Schaaf v. Smithkline

Beecham Corp., No. 09-10806, 2010 W L 1286781, at *6 (11th Cir. Apr. 6, 2010) (citing Martin v. Brevard

County Pub. Sch., 543 F.3d 1261, 1268 (11th Cir. 2008)).

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2008 while exercising FMLA rights, she additionally alleges that no other employees were

terminated as part of a reduction in force after December 2007.

Legendary argues that Counts III (discrimination under Title VII), V (violation of the

PDA), and VI (violation of the FCRA) fail to state a claim because Valentine has not

specifically pled the elements of a valid prima facie discrimination claim. The court rejects

this assertion. It is not necessary to plead facts demonstrating a prima facie case of

discrimination, which is an evidentiary standard, in order to withstand a motion to dismiss

for failure to state a claim. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11

(2002). Discrimination on the basis of sex includes discrimination on the basis of 4

pregnancy or childbirth. See Byrd v. Lakeshore Hosp., 30 F.3d 1380, 1381-82 (11th Cir.

1994) (“It is today settled principle that the PDA and Title VII are violated when pregnant

employees are denied privileges afforded non-pregnant temporarily disabled employees,”

including sick leave benefits); Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387

(11th Cir. 1998) (noting “Florida courts have held that decisions construing Title VII are

applicable when considering claims under the [FCRA]”); see also Carsillo v. City of Lake

Worth, 995 So. 2d 1118, 1119-20 (Fla. 3d DCA 2008) (noting FCRA does not specifically

mention pregnancy as sex discrimination but liberally construing the FCRA to include

pregnancy discrimination; noting Florida statues are construed the same as a federal act

when patterned after one). Defendants argue Valentine cannot claim to have been fired

for being pregnant because she was fired after she gave birth, but this argument is

unavailing; The facts allege that Valentine was fired while she was still on maternity leave,

and this states a plausible claim. See, e.g., Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d

358, 363 (3d Cir. 2008) (noting “a typical pregnancy discrimination claim” includes

allegations of being “fired while on maternity leave”). 

The Court in Twombly and Iqbal disposed of the standard set by Conley v. Gibson, 355 U.S. 41,

4

46 (1957), that a court may dismiss a complaint only if it is clear the plaintiff could prove “no set of facts” that

would warrant relief. Although this standard is recited in Swierkiewicz, 534 U.S. at 514, the Court in Twombly

cited Swierkiewicz positively. Twombly, 550 U.S. at 554-56 & 569-70. Also, the Eleventh Circuit has since

cited it as well for the proposition that “a Title VII complaint need not allege facts sufficient to make out a

classic McDonnell Douglas prima facie case.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 973

(11th Cir. 2008).

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Legendary argues that Valentine has not alleged facts sufficient to state the Title VII

retaliation claim in Count IV because she does not claim she was engaged in any protected

Title VII activity. The court agrees. A claim of retaliation under Title VII requires an

allegation that the adverse employment action is the result of making a Title VII charge or

participating in Title VII enforcement proceedings, or opposing any discriminatory practice. 

See 42 U.S.C. § 2000e-3(a); Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 59

(2006). Valentine has not alleged that she was discriminated against for making a Title VII

claim or opposing discriminatory practices, and the FCHR cause determination does not

reference a claim of Title VII retaliation. Instead, Valentine argues that the elements of

Title VII retaliation are the same as a FMLA retaliation claim and she need only

demonstrate an adverse action as a result of exercising a protected right, which she

asserts was her right to maternity leave under the FMLA. Exercising FMLA rights,

however, is simply not the same as opposing a discriminatory practice or participating in

an enforcement proceeding under Title VII. Additionally, a generalized claim of

discrimination is not sufficient to raise a Title VII retaliation claim. See Marshall v. Mayor

and Alderman of City of Savannah, Ga., No. 09-13444, 2010 WL 537852, at *8-9 (11th Cir.

Feb. 17, 2010) (unpublished) (citing Coon v. Ga. Pac. Corp., 829 F.2d 1563, 1568-69 (11th

Cir. 1987)). Accordingly, Count IV will be dismissed. 

Conclusion

Count IV fails to state a claim of retaliation under Title VII. However, the second

amended complaint sufficiently details the events leading to Valentine’s termination to give

rise to plausible claims of discrimination in violation of the FMLA, Title VII, the PDA, and

the FCRA, and retaliation in violation of the FMLA. 

Accordingly, it is hereby ORDERED:

1. Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint (doc.

35) is GRANTED in part and DENIED in part as follows:

a. Count IV is dismissed;

b. The motion is denied as to Counts I, II, III, V, and VI.

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2. Defendants’ Motion to Strike Exhibit A Attached to Plaintiff’s Memorandum

of Law in Opposition to Defendants’ Motion to Dismiss and Incorporated Memorandum of

Law (doc. 41) is DENIED.

DONE AND ORDERED this 26th day of April, 2010.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE 

 

 

Case No. 3:09cv334/MCR/EMT