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Case 8:12-cv-02666-JSM-EAJ Document 22 Filed 07/11/13 Page 1 of 3 PageID 100







Case No. 8:12-cv-2666-T-30EAJ





THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss Count

II of Plaintiff’s Amended Complaint (Dkt. 20) and Plaintiff’s Response in opposition (Dkt.

21). The Court, having reviewed the motion, response, and being otherwise advised in the

premises, concludes that the motion should be granted without prejudice to Plaintiff to file

a second amended complaint.


In this employment case, Plaintiff’s original complaint, filed on November 26, 2012,

contained one count under the Equal Pay Act. Plaintiff Christiana Hill Moseley alleged that

her employer Defendant McKesson Medical-Surgical, Inc. (“McKesson”) paid her less than

her male counterparts for equal work during her employment.

On June 12, 2013, Moseley filed an amended complaint, with leave of Court, which

added a claim of sex discrimination under the Florida Civil Rights Act of 1991 (“FCRA”).

Case 8:12-cv-02666-JSM-EAJ Document 22 Filed 07/11/13 Page 2 of 3 PageID 101

Moseley alleges that McKesson subjected Moseley “to disparate treatment based on her sex,

including being paid less than her male counterparts.” (Dkt. 19 at ¶14).

McKesson now moves to dismiss Moseley’s FCRA sex discrimination claim because

Moseley alleges only legal conclusions in support of this claim. The Court agrees.

Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for

failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When

reviewing a motion to dismiss, a court must accept all factual allegations contained in the

complaint as true, and view the facts in a light most favorable to the plaintiff. See Erickson

v. Pardus, 551 U.S. 89, 93-94 (2007). However, unlike factual allegations, conclusions in

a pleading “are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 S. Ct. 1937,

1950 (2009). On the contrary, legal conclusions “must be supported by factual allegations.”

Id. Indeed, “conclusory allegations, unwarranted factual deductions or legal conclusions

masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d

1183, 1185 (11th Cir. 2003).

Here, Moseley’s sex discrimination claim is not supported by factual allegations. As

McKesson points out, the only facts pled in support of Count II are that Moseley is female,

was employed by McKesson, and was paid less than men who held the same position. These

facts do not support a claim of intentional discrimination in violation of the FCRA. And

merely alleging that Moseley was “subjected to disparate treatment based on her sex” and

that McKesson’s actions “were willful and done with malice” are insufficient to state an

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Case 8:12-cv-02666-JSM-EAJ Document 22 Filed 07/11/13 Page 3 of 3 PageID 102

actionable claim because these statements amount to legal conclusions. Moseley needs to

plead facts that support these conclusory statements.

In sum, Count II simply sets forth threadbare recitals of the elements of a violation of

the FCRA; this is insufficient to state a claim under Fed. R. Civ. P. 12(b)(6).

It is therefore ORDERED AND ADJUDGED that:


Defendant’s Motion to Dismiss Count II of Plaintiff’s Amended Complaint

(Dkt. 20) is granted to the extent set forth herein. Count II of Plaintiff’s

Amended Complaint is dismissed without prejudice.


Plaintiff may file a Second Amended Complaint within fourteen (14) days of

this Order to add a claim under the FCRA if Plaintiff can plead sufficient facts

in support of this claim consistent with the Court’s ruling herein.

DONE and ORDERED in Tampa, Florida on July 11, 2013.

Copies furnished to:
Counsel/Parties of Record


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