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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DEBRA BENTLEY,

Plaintiff,

vs. CASE NO. 5:11-cv-221-RJ-CJK

DOLLAR TREE STORES, INC.,

Defendant.

_________________________________________/

ORDER

Before me is Defendant‟s motion to dismiss (Doc. 8).

I. Standard of Review

In order to overcome a motion to dismiss, a plaintiff must allege enough 

facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is 

clear that no relief could be granted under any set of facts that could be proven 

consistent with the allegations of the complaint. Hishon v. King & Spalding, 467 

U.S. 69, 104 S. Ct. 2229, 2232 (1984). I must construe all allegations in the 

complaint as true and in the light most favorable to the plaintiff. Shands Teaching 

Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir. 

2000)(citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir. 

1999)). 

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II. Background

Plaintiff, Debra Bentley, a white female, was employed by Defendant, 

Dollar Tree Stores, Inc., from March 2009 until May 2010. During her 

employment, Plaintiff claims that she was treated differently than similarly situated 

non-white employees of Defendant and that a position, which was promised to her,

was given to a younger, black employee. In addition, Plaintiff claims she was 

treated differently than similarly situated younger employees of Defendant and 

“has been subject to poor treatment on the basis, at least in part, of Plaintiff‟s age.” 

(Doc. 1).

On May 16, 2010, Plaintiff learned that her daughter was seriously ill and 

requested time off to care for the child. Plaintiff claims that she was eligible for 

time off under FMLA, that Defendant knew Plaintiff was eligible for leave under 

FMLA, but that she was not given this leave. Plaintiff was terminated on or 

around June 9, 2010, after she returned to work. (Doc. 1).

Plaintiff has brought this suit alleging race and age discrimination under 42 

U.S.C. § 2000e, 29 U.S.C. § 629, and Chapter 760, Florida Statutes. In addition, 

Plaintiff filed interference and retaliation claims under the Family and Medical 

Leave Act (“FMLA”). 

III. Analysis

Race and Age Discrimination

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Defendant argues that Counts I (race discrimination) and II (age 

discrimination) should be dismissed for failing to establish that Plaintiff properly 

exhausted her administrative remedies before filing the suit in federal court. (Doc. 

8). It is well-settled law that prior to filing race and age discrimination suits in 

federal court, a plaintiff must exhaust all administrative remedies by timely filing 

charges of discrimination with the Equal Employment Opportunity Commission 

(“EEOC”). Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). 

However, it is also well-settled law that a “general averment stating that „all 

conditions precedent to the institution of this lawsuit have been fulfilled‟ is quite 

adequate for pleading purposes.” EEOC v. Klingler Elec. Corp., 636 F.2d 104, 

106 (5th Cir. 1981)(citing Fed. R. Civ. P. 9(c); EEOC v. Standard Forge and Axle 

Co., 496 F.2d 1392 (5th Cir. 1974)). In her Complaint, Plaintiff stated that 

“Plaintiff has satisfied all conditions precedent to bringing this action.” (Doc. 1, p. 

2). This adequately satisfies Plaintiff‟s pleading requirement regarding exhausting 

administrative remedies.

Additionally, Defendant argues that Plaintiff failed to provide a sufficient 

factual basis regarding applying for and being denied the promotion that she was 

allegedly promised. When considering a motion to dismiss, this Court must 

“accept as true the facts as set forth in the complaint and draw all reasonable 

inferences in the plaintiff's favor.” Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 

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2010). In Plaintiff‟s Complaint, she asserts that “she was passed over for the 

position of store manager in Chipley in favor of a black female who is believed to 

be considerably younger than Plaintiff, even though Plaintiff had already been 

promised the position.” (Doc. 1, p. 2). A reasonable inference that Plaintiff in fact 

applied for the position can be drawn from the Complaint, and Plaintiff sufficiently 

alleges that she was denied the promotion. Therefore, Defendant‟s argument fails.

Violation of the FMLA

Defendant also argues that Count 3 (violation of the FMLA) should be 

dismissed because Plaintiff failed to state whether her seriously ill daughter was 

under the age of 18 or over 18 but incapable of self-care as required to be eligible 

for leave under the FMLA. See 29 U.S.C. § 2611(12). As stated above, this Court 

must “accept as true the facts as set forth in the complaint and draw all reasonable 

inferences in the plaintiff's favor.” Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 

2010). In the Complaint, Plaintiff specifically refers to her daughter as a “child.” 

(Doc. 1, p. 2). Because of Plaintiff‟s reference to her daughter as a “child,” a 

reasonable inference can be drawn from the Complaint that Plaintiff‟s daughter is 

under the age of 18. 

Defendant also argues that Plaintiff did not allege that she requested the 

leave and, at the time, did not provide sufficient evidence to Defendant to 

determine if she qualified under the FMLA. However, Plaintiff‟s Complaint 

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clearly states, “Plaintiff needed FMLA leave and requested time off to care for this 

child. Defendant knew that Plaintiff was in need of time off and that she was 

eligible for the time off under the FMLA.” (Doc. 1, p. 2)(emphasis added). 

Accepting Plaintiff‟s alleged facts as true, Plaintiff plead sufficient facts as to 

Count III.

Defendant‟s motion is DENIED.

ORDERED on August 22, 2011.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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