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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

 

CAROL LUKE,

Plaintiff, CASE NO. 4:10-cv-00524-SPM-WCS 

vs.

RESIDENTIAL ELEVATORS, INC.,

Defendant.

____________________________________/

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS [DOC. 5]

Plaintiff responds to Defendant‟s Motion To Dismiss and says the motion should be denied. 

Its arguments are frivolous; Defendant should be ordered to answer forthwith.

Summary Of Argument

Defendant‟s motion is based on three grounds, none of them justified. First, Defendant 

argues that Plaintiff did not exhaust her administrative remedies. But satisfaction of administrative 

prerequisites can be averred generally, and no proof need be attached to the Complaint. Second, 

Defendant argues that Plaintiff failed to timely file her lawsuit. Again, this is an affirmative defense; 

it is Defendant’s burden to allege and prove this defense. Third, Defendant argues that Plaintiff‟s 

Complaint is not sufficiently specific. But Plaintiff need not allege all the details of her claim. It 

need only show that a claim is plausible. Plaintiff has done that. The Motion should be denied.

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Argument

This is an employment discrimination case. It is similar in some ways, and different in some 

ways, than a case previously pending before this Court and tried to a verdict in favor of another 

employee in whose case Plaintiff Luke testified. Christine Camp v. Residential Elevators, Case No. 

4:08cv00073-SPM-WCS (N.D. Fla.). Ms. Luke here alleges, as she testified before this Court at 

trial, that she also lost out on positions given to males for which she was equally or better qualified; 

that she suffered blatant threats of retaliation; and further that she has since been falsely accused of 

all manner of wrongdoing in retaliation for her assertion of protected rights, including the filing of a 

lawsuit that was patently retaliatory in nature.

Defendant’s first argument – that Plaintiff failed to exhaust her administrative remedies –

turns the procedure for testing the truth of this on its head. Plaintiff need only generally aver 

satisfaction of conditions precedent. Fed.R.Civ.P. 9(c.). Plaintiff need not, as Defendant wrongly 

argues, detail the nitty-gritty of her exhaustion efforts in the Complaint. The U.S. Supreme Court 

held, in Leatherman v., Tarant County Narcotics Intelligence And Coordination Unit, 507 U.S. 163 

(1993), that courts cannot, absent express statutory language, impose more stringent

pleading standards than those established by the Federal Rules of Civil Procedure. Moreover, 

because failure to exhaust administrative remedies is an affirmative defense, Residential Elevators, 

not Plaintiff, hasthe burden of pleading and proving the defense. See, e.g., Williams v. Runyon, 130 

F.3d 568, 573 (3d Cir. 1997) (Title VII case noting that “failure to exhaust administrative remedies is 

an affirmative defense [and] the defendant bears the burden of pleading and proving that 

the plaintiff has failed to exhaust administrative remedies.”).

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Defendant’s second argument - that Plaintiff‟s lawsuit is untimely – is equally unfounded. 

As with Defendant‟s first argument, a plaintiff‟s purported failure to comply with a statute of 

limitations is indeed an affirmative defense which the Defendant has the burden of pleading and 

proving. It has not done so. Smith v. Duff & Phelps, Inc., 5 F.3d 488, 492 n. 9 (11th Cir. 1993). In 

Zillyette v. Capital One Financial Corp., 179 F.3d 1337 (11th Cir. 1999), the court explained: “Since 

Franks and Lewis, we have continued to approach these issues on a case-by-case basis to fashion a 

fair and reasonable rule for the circumstances of each case. In addition, we have continued to require 

plaintiffs to assume some minimum responsibility in resolving their claims. Taking these 

considerations into account, we agree with the Second Circuit in Sousa v. N.L.R.B., 817 F.2d 10, 11 

(2d Cir.1987), that a plaintiff is entitled to a reasonable time to pick up the letter upon receipt of a 

notice of delivery and therefore conclude that a three-day period, analogous to the federal rule 

governing time for taking action after service by mail, see Fed.R.Civ.P. 6(e), provides an appropriate 

period for a plaintiff to act to receive an unsuccessfully delivered letter. Providing a three-day period 

also provides a clear rule that will enable parties to be aware of when they must act or forfeit their 

right to sue. Any other hardships to plaintiffs can be accommodated by the equitable tolling rules, 

which are generally applicable in Title VII actions against both private and government employers. 

See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 

(1990); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94, 102 S.Ct. 1127, 71 L.Ed.2d 234 

(1982).”

In sum, while it is not the three-day mailing time under the rules of procedure, it is like it. 

Under Eleventh Circuit precedent – which inexplicably did not make its way into the analysis 

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Defendant provided this Court - absent proof by Defendant that Plaintiff failed in fact to file within 

90 days of her actual receipt of the right to sue letter, its argument fails. 

Defendant’s third argument – that Plaintiff‟s gender discrimination and retaliation claims fail 

to state a cause of action – are based on both an errant view of the law of pleadings and on a 

misstatement of the language of the Complaint.

Like many motions of its genre, Residential Elevators‟ filing in essence conflates or 

improperly confuses standards of proof with standards of pleading. A Complaint need only lay out 

facts that show a claim is plausible. Ashcroft v. Iqbal 129 S.Ct. 1937 (2009). It is of course not 

necessary for a plaintiff to prove their claims in the pleading. Defendant‟s motion is silent about the

applicability, if any, of Iqbal to its arguments, so Plaintiff must assume Defendant does not seriously 

challenge Plaintiff‟s satisfaction of her pleading obligation. Defendant‟s only explicit argument is 

that Plaintiff must expressly plead that she was qualified for the position(s) for which she, like 

Christine Camp, was excluded (Motion at p. 4, paragraph 11) and that by virtue of the passage of a 

set period – a temporal proximity argument – Plaintiff just cannot have a retaliation claim (Motion at 

p. 4, paragraph 12).

As U.S. District Judge Robert Hinkle, in rejecting a post-Iqbal motion to dismiss, noted, “A 

complaint thus „does not need detailed factual allegations,” nor must it “allege with precision all the 

elements of a cause of action.” He further cited authority for the notion that a complaint‟s 

allegations must be accepted as true even if the factual allegations themselves are doubtful in fact. 

Smith v. Florida Parole Commission, Order Denying Motion To Dismiss, Case No. 4:09cv354-

RH/WCS (N.D. Fla. Filed January 5, 2010).

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Simply put, Plaintiff‟s Complaint does not fail because she did not include a rote allegation 

that she was qualified for the positions that males obtained. That can be fairly read into the overall 

body of the Complaint. Second, the suggestion that Plaintiff cannot for reasons of temporal 

proximity make out a retaliation claim is ludicrous. Defendant‟s argument is wrong in two ways. 

Its statement that Plaintiff‟s retaliation claim is that she was fired twelve months after her testimony 

is simply false. Plaintiff testified at Christine Camp‟s trial in February 2009, not in September 2008. 

While Plaintiff also gave deposition testimony before that, it was Luke‟s appearance before the jury 

– and her scathing testimony about the sexist and discriminatory practices of Defendant – that is 

alleged in Paragraph 8 of the Complaint. And Plaintiff alleges she was harassed in other ways in 

retaliation. Temporal proximity has its greatest weight – for better and for worse – when a plaintiff 

has nothing but timing as an argument for causality. That is not this case. Defendant‟s monocular 

focus on timing and temporal proximity, when Plaintiff has alleged the retaliation to include far more 

than that – borders on frivolity.

CONCLUSION

The motion should be denied.

Respectfully submitted

MARIE A. MATTOX, P. A.

 /s/ James Garrity 

James Garrity (FBN: 539211)

310 East Bradford Road

Tallahassee, FL 32303

Telephone: (850) 383-4800

Facsimile: (850) 383-4801

ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished by CM/ECF service 

only to all counsel of record this 10th day of January 2011.

 /s/ James Garrity 

James Garrity

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