           Case: 19-10263   Date Filed: 04/01/2020   Page: 1 of 17



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10263
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:17-cv-00546-SPC-MRM



COLLEEN MOORE,

                                                           Plaintiff-Appellant,

                                  versus

SAN CARLOS PARK FIRE PROTECTION & RESCUE,

                                                          Defendant-Appellee.

                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (April 1, 2020)

Before JORDAN, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 19-10263       Date Filed: 04/01/2020      Page: 2 of 17



       Colleen Moore appeals the district court’s grant of San Carlos Park Fire

Protection and Rescue’s (“San Carlos Park”) motion to dismiss her operative

complaint 1 for failure to state a claim in her sexual harassment and hostile work

environment suit brought pursuant to Title VII of the Civil Rights Act of 1964

(“Title VII”)2 and the Florida Civil Rights Act of 1992 (“FCRA”). 3 On appeal,

Moore contends that the district court erred because she alleged discriminatory acts

that were not time-barred and because she adequately stated a constructive

discharge claim. 4 We hold that the district court did not err in dismissing Moore’s

complaint and affirm.

                                       I. Background

   A. Facts of the Case

       Although this litigation commenced in October of 2017, the facts giving rise

to Moore’s claims date back to as early as 1991, when Moore began volunteering

as a firefighter for San Carlos Park. Moore claims that throughout her employment

at San Carlos Park—beginning when she joined as a volunteer in 1991 and

continuing during her employment as a full-time firefighter from 1993 through


       1
         The operative complaint is Moore’s third and final amended complaint, which she filed
on March 7, 2018 (and varies only slightly from the initial complaint). Her EEOC charge was
attached to it.
       2
         Codified at 42 U.S.C. § 2000e.
       3
         Codified at Fla. Stat. § 760.
       4
         Moore does not challenge the district court’s denial of her motion for leave to amend
her complaint a fourth time because “allowing her to amend would be futile and unduly
prejudicial to San Carlos.”
                                              2
              Case: 19-10263    Date Filed: 04/01/2020    Page: 3 of 17



2013—she “was subjected to repeated and pervasive comments and behavior

because of her sex by agents of [San Carlos Park], who at all relevant times had the

authority or apparent authority to hire, promote, discipline and/or fire employees.”

      Moore resigned on November 5, 2013, after more than 20 years of service.

Following her resignation, on February 27, 2014, Moore filed a charge of

discrimination with the EEOC, alleging discrimination based on gender and

retaliation in violation of Title VII of the Civil Rights Act of 1964 (“EEOC

charge”). Moore submitted the following statement in her EEOC charge:

      I am a Female. I was employed by the Respondent for 20 years. I
      was subjected to a hostile work environment fduring [sic] my entire
      employment because of my gender. I was harassed, called “the girl”
      and disciplined for incidents that other male employees are not
      disciplined for. On or about February 2010, I was demoted because I
      did not send a male Driver Engineer to take a drug test. I filed a
      grievance and won my rank back in 2011 with complete back pay.
      During my demotion I took the Lieutenant and the Battalion Chief test
      and when I was made whole I became the Battalion Chief. On or
      about August 2013, Gene Rison was selected as Assistant Chief.
      Since that time, I have been suspended for two days without pay,
      disciplined and written up and forced to resign from my position. I
      was forced to resign because I was demoted from Battalion Chief
      down 2 ranks and 9 steps to Firefighter 4.

      I was told by Gene Rison that I was being demoted due to neglect of
      duty and my probationary status.

      I believe that I have been discriminated against because of my gender
      and retaliated against in violation of Title VII of the Civil Rights Act
      of 1964, as amended.




                                          3
                Case: 19-10263     Date Filed: 04/01/2020   Page: 4 of 17



      While her EEOC charge generally claims she suffered a hostile work

environment during her entire twenty-year employment, the earliest specific

instance of discrimination she alleged occurred on February 1, 2010 and the latest

took place on November 5, 2013. 5

      In its response to Moore’s charge, the EEOC indicated that it was unable to

conclude that the information Moore had provided established a violation of the

relevant statutes.

      On October 5, 2017, Moore filed her original complaint against San Carlos

Park. Her operative complaint sounds in three counts: Employment Discrimination

Due to Hostile Work Environment in Violation of Title VII of the Civil Rights Act

of 1964 and the Florida Civil Rights Act of 1992 (Count One): Sexual Harassment

(Count Two); Retaliatory Hostile Work Environment in Violation of Title VII of

the Civil Rights Act of 1964 (Count Three); and Constructive Discharge (Count

Four). In support of these counts, Moore alleges as follows:

      Because of her sex, SCPF supervisory employees participated in a
      continuing series of severe and pervasive acts of disparate treatment
      towards [Moore], creating a continuing hostile working environment
      throughout her entire employment, including but not limited to these
      incidents:

               a. Continuous jokes and comments regarding [Moore’s] sex by
                  supervisors.
               b. One supervisor regularly stroked [Moore’s] hair in the
                  presence of others.

      5
          Moore resigned on November 5, 2013.
                                                4
 Case: 19-10263    Date Filed: 04/01/2020   Page: 5 of 17



c. Another supervisor repeatedly and unwarrantedly singled
   out [Moore] for warnings regarding the length of her hair.
d. Two other supervisors subjected [Moore] to unwelcome
   physical and sexual advances.
e. Another supervisor subjected [Moore] to tasks as a fire
   inspector, requiring [Moore] to be on her feet for long
   periods of time during the third trimester of her pregnancy
   instead of the typical “light duty” tasks similarly situated
   male firefighters were assigned.
f. SCPF supervisors subjected [Moore] to discriminatory
   treatment upon her return from leave after the birth of her
   son.
g. SCPF changed the longstanding rules of examination for
   promotion in order to discriminate against [Moore].
h. SCPF supervisors intentionally delayed [Moore’s] receipt
   indicia of rank because of her sex.
i. Supervisors subjected [Moore] to unnecessary and
   unwarranted criticism and instruction regarding the length of
   her hair.
j. SCPF gave [Moore] repeated counseling and/or other
   discipline more severe than any received by any SCPF male
   firefighter employee for similar minor infractions.
k. Supervisors placed [Moore] in position requiring her to
   work as subordinate to employees [Moore] had once
   supervised.
l. Supervisors instructed [Moore] not to wear uniform items
   that her to wear during promotion examinations, thus setting
   her apart from all the other candidates.
m. Contrary to long standing policy, supervisors denied
   [Moore] a shift change at her promotion to Battalion Chief
   to undermine her new supervisory status.
n. One supervisor instructed his subordinates not to trade shifts
   with firefighters on [Moore’s] shift to limit opportunities to
   have time off work, effectively making the working
   environment on [Moore’s] shift less desirable for others,
   thereby causing resentment among those so assigned.
o. One supervisor continued his practice of referring to
   [Moore] as the “girl” for years, even after she was promoted
   to Battalion Chief and effectively was the same rank as that
   supervisor.
                            5
              Case: 19-10263     Date Filed: 04/01/2020   Page: 6 of 17



             p. SCPF supervisors refused to allow other employees to
                socialize with [Moore] while on shift, effectively isolating
                [Moore] from all other employees.
             q. [Moore’s] immediate supervisor removed [Moore] from
                acting Battalion Chief status, contrary to longstanding
                procedures.
             r. Supervisors denied [Moore] requested training in
                preparation for her role as a Battalion Chief.

       In support of her sexual harassment claim, Moore claims that:

       On one occasion early in her career at SCPF, one supervisor
       sequestered [Moore] in a locked room alone, grabbed her, kissed her,
       and placed his hand under [Moore’s] shirt, touching her chest,
       stomach and breasts, without permission or acquiescence.

And,

       [i]n 2010, a fire inspector grabbed [Moore’s] buttocks in front of her
       entire crew during a briefing. [Moore] immediately removed him from
       the room and instructed him that she would not tolerate such behavior,
       signaling the unwelcome nature and rejection of the sexual advance.

       Moore further claims that San Carlos Park retaliated against her for initiating

formal grievances regarding the alleged discriminatory acts. She bases her

retaliation claim on her February 2010 demotion:

       On February 18, 2010, [Moore] was demoted. [Moore] grieved that
       demotion as permitted in her employment contract. At arbitration, the
       arbitrator found that the demotion was more severe than the
       punishment received by similarly situated males, whereupon SCPF
       was instructed to reinstate [Moore] to the rank and tenure MOORE
       earned prior to the disparate treatment.

She also mentions a later demotion at an unspecified date:

       As discipline for the minor infractions, her supervisor again demoted
       MOORE to the rank of firefighter and assigned her to be a subordinate
                                          6
              Case: 19-10263     Date Filed: 04/01/2020    Page: 7 of 17



      to the same supervisor responsible for unwanted sexual advances and
      who had demeaned MOORE throughout her career by referring to her
      as “the girl.”
      Finally, Moore alleges that “[t]he practices and actions of SCPF’s

supervisors and decision makers, including the threats of increased hostility,

caused [her] great emotional distress.” As a result, she claims that:

      Upon advice of her psychiatrist, [she] resigned on November 5, 2013.
      The continuing inescapable harassment and hostility [she]
      experienced and would experience in lieu of her resignation was so
      severe that [her] resignation operates as a constructive discharge.

      While her complaint lists a number of incidents she alleges amount to sexual

harassment and a hostile work environment over the course of her career, she

provides little context for these allegations. All but three of Moore’s allegations

lack dates. Two of these incidents—one of the alleged demotions and an incident

where a fire inspector groped her from behind—occurred at some point in 2010.

She also alleges that her 2013 resignation operated as a constructive discharge.

While she identifies one supervisor in her EEOC charge, Moore does not identify

who committed any of the acts outlined her complaint, generally referring to the

alleged wrongdoers as “supervisors.”

   B. Procedural History

      This case comes to this Court early in the life of the litigation, but the

procedural history is lengthy, repetitive, and, for the purposes of the analysis

below, unnecessary to address in detail; a brief summary suffices. On October 5,


                                           7
              Case: 19-10263    Date Filed: 04/01/2020    Page: 8 of 17



2017, Colleen Moore filed her first complaint against her former employer, San

Carlos Park, alleging violations of Title VII and FCRA. The district court allowed

Moore to amend her complaint three times. Each time, in lieu of an answer, San

Carlos Park moved to dismiss Moore’s complaint as untimely under Rule 12(b)(6)

of the Federal Rules of Civil Procedure, because it depended exclusively on factual

allegations that occurred outside of the applicable statute of limitations—some

apparently dating back to when Moore first joined the San Carlos Park Fire

Department in 1993.

      Upon the filing of Moore’s third amended complaint, the district court

granted San Carlos Park’s motion to dismiss with prejudice. It found that Moore’s

claims based on (1) hostile work environment (Count I); (2) sexual harassment

(Count II); and (3) retaliatory hostile work environment (Count III) failed because

Moore had “not identified a single act falling within the limitations period.” The

district court observed that “[a]t best, Moore offers a vague statement that some

unidentified timely acts are sufficiently related to her hostile work environment to

bring her entire twenty-year tenure into play.” And as for Moore’s constructive

discharge claim (Count IV), the district court determined that Moore did “not

allege facts showing that a reasonable person in the same situation would find her

working conditions intolerable,” and therefore dismissed it. After the district court

denied her motion for reconsideration, Moore appealed.


                                          8
              Case: 19-10263     Date Filed: 04/01/2020    Page: 9 of 17



                                    II. Discussion

      Moore raises two arguments on appeal. First, Moore claims the district

court erred in dismissing her hostile work environment and sexual harassment

claims (Counts I–III) as time-barred. She contends that even if the underlying

events occurred outside of the limitations period, she also alleged events that took

place within the limitations period and those events established a continuing

violation. Second, Moore argues the district court improperly dismissed her

constructive discharge claim (Count IV). Here she argues that, as a component of

her other claims, she alleged facts sufficient to show she was suspended and

demoted because of her sex. We review de novo the district court’s dismissal

pursuant to Rule 12(b)(6), see Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185

(11th Cir. 2003), and affirm the district court’s dismissal of all four claims.

      When considering a motion to dismiss under Rule 12(b)(6), the reviewing

court must accept all factual allegations in the complaint as true and view them in

the light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). A district court should nevertheless dismiss a claim where a party does not

plead facts that make the claim facially plausible. See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). A claim is facially plausible when the court can draw a

reasonable inference, based on facts pled, that the opposing party is liable for the

alleged misconduct. See Iqbal, 556 U.S. at 678.


                                           9
                Case: 19-10263        Date Filed: 04/01/2020        Page: 10 of 17



       Title VII prohibits an employer from discriminating against an individual

“with respect to [her] compensation, terms, conditions, or privileges of

employment” because of the individual’s sex. 42 U.S.C. § 2000e-2(a)(1). Title

VII’s prohibition encompasses various forms of sexual harassment, including a

hostile work environment. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 116 (2002) (Title VII’s prohibition on discrimination includes the creation of

a hostile work environment). Relatedly, Title VII recognizes a claim for retaliatory

hostile work environment. See Gowski v. Peake, 682 F.3d 1299, 1311–12 (11th

Cir. 2012).

       Before a plaintiff may bring suit under Title VII, she must exhaust her

administrative remedies. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th

Cir. 2001). The plaintiff initiates the administrative process by timely filing a

charge of discrimination. See 42 U.S.C. § 2000e–5(b); Wilkerson, 270 F.3d at

1317. A plaintiff in Florida must file an administrative charge of discrimination

within 300 days of the last discriminatory act.6 See § 2000e-5(e)(1); Bost v. Fed.

Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004) (“For a charge to be timely in

Florida, a deferral state, it must be filed not more than 300 days after the alleged



       6
          Florida is a “deferral state,” meaning it has an entity “with the authority to grant or seek
relief” for allegedly unlawful employment practices. 42 U.S.C.A. § 2000e-5. In states with such
entities, an employee must file the charge with the EEOC within 300 days of the objectionable
employment practice. Morgan, 536 U.S. at 109. In states without such entities, an employee
must file the EEOC charge within 180 days. Id.
                                                 10
              Case: 19-10263     Date Filed: 04/01/2020    Page: 11 of 17



unlawful employment practice occurred.”); E.E.O.C. v. Joe’s Stone Crabs, Inc.,

296 F.3d 1265, 1271 (11th Cir. 2002) (same).

      The timeliness rules differ for discrete acts of discrimination and hostile

work environment claims. “[D]iscrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely filed charges.

Each discrete discriminatory act starts a new clock for filing charges alleging that

act.” Morgan, 536 U.S. at 113. Discrete acts are “easy to identify” and include

“termination, failure to promote, denial of transfer, or refusal to hire.” Id. at 114.

“The existence of past acts and the employee’s prior knowledge of their

occurrence, however, does not bar employees from filing charges about related

discrete acts so long as the acts are independently discriminatory and charges

addressing those acts are themselves timely filed.” Id. at 102.

      In contrast, “[a] hostile work environment claim is composed of a series of

separate acts that collectively constitute one ‘unlawful employment practice.’” Id.

at 117 (quoting § 2000e–5(e)(1)). As the Supreme Court has explained:

      It does not matter . . . that some of the component acts of the hostile
      work environment fall outside the statutory time period. Provided
      that an act contributed to the claim occurs within the filing period, the
      entire time period of the hostile environment may be considered by a
      court for the purposes of determining liability.

Id. (emphasis added). Also, a hostile work environment claim can be a

combination of discrete acts and non-discrete acts in certain circumstances. See


                                           11
             Case: 19-10263     Date Filed: 04/01/2020    Page: 12 of 17



Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345, 1350 (11th Cir. 2007)

(“Where the discrete act is sufficiently related to a hostile work environment claim

so that it may be fairly considered part of the same claim, it can form the basis for

consideration of untimely, non-discrete acts that are part of the same claim.”).

      In situations where discrete and non-discrete acts make up a hostile work

environment claim, the “pivotal question is whether the timely discrete acts are

sufficiently related to the hostile work environment claim.” Id. The Supreme

Court has indicated that acts may be part of the same unlawful employment

practice if the “pre- and post-limitations period incidents involve the same type of

employment actions, occurred relatively frequently, and were perpetrated by the

same managers.” Morgan, 536 U.S. at 120; Heath v. Bd. of Supervisors for S.

Univ. & Agric. & Mech. Coll., 850 F.3d 731, 740 (5th Cir. 2017), as revised (Mar.

13, 2017) (focusing on same features); Baird v. Gotbaum, 792 F.3d 166, 169 (D.C.

Cir. 2015) (same).

   A. Hostile Work Environment Claims

        We first consider whether the district court erred in dismissing Moore’s

claims that she was subjected to employment discrimination and retaliation due to

a hostile work environment.

      Moore’s complaint only alleges one timely act. Because Moore filed her

EEOC charge on February 27, 2014, Title VII requires that she allege


                                          12
             Case: 19-10263    Date Filed: 04/01/2020   Page: 13 of 17



discriminatory acts which occurred on or after May 3, 2013—in other words,

within 300 days from the date of her EEOC charge. See § 2000e-5; Joe’s Stone

Crabs, Inc., 296 F.3d at 1271. Three factual allegations in the complaint include

references to dates. But two of those allegations concern incidents that occurred in

2010—years before the applicable cutoff date. The only remaining dated

allegation—that she was constructively discharged sometime 2013—constitutes a

timely adverse act.

      Moore also points us to her EEOC charge attached to her complaint, which

alleges two timely adverse acts—discipline and demotion. The EEOC charge

states that she was suspended and forced to resign at some point during or after

August 2013 when:

      Gene Rison was selected as Assistant Chief. Since that time, I have
      been suspended for two days without pay, disciplined and written up
      and forced to resign from my position. I was forced to resign because
      I was demoted from Battalion Chief down 2 ranks and 9 steps to
      Firefighter 4.

      Moore’s complaint and EEOC charge, taken together, indicate that three

timely adverse employment actions occurred in 2013: Moore’s demotion,

suspension, and constructive discharge. While timely, however, these adverse

employment actions alone do not demonstrate a hostile work environment.

Accordingly, we turn to whether any of the untimely acts contained in her

complaint and EEOC charge are “sufficiently related” so that they “may fairly be


                                         13
             Case: 19-10263      Date Filed: 04/01/2020   Page: 14 of 17



considered part of the same [hostile work environment] claim.” Chambless, 481

F.3d at 1350. But the allegations in the complaint are so vague that it is practically

impossible for a court to determine whether Moore’s claims that she was

suspended, demoted, and constructively discharged are “sufficiently related” to any

of the vague factual allegations of discrimination. Chambless, 481 F.3d at 1350;

see also Morgan, 536 U.S. at 120 (“A court’s task is to determine whether the acts

about which an employee complains are part of the same actionable hostile work

environment practice, and if so, whether any act falls within the statutory time

period.”). While the complaint lists a series of discrete acts, it does not provide the

dates of those acts or mention the supervisor responsible for any alleged acts.

Similarly, her EEOC charge alleges Moore was harassed, called “the girl,” and

disciplined more severely than men, but does not provide any details supporting

those allegations. Without connecting names or dates to each incident, we cannot

determine who committed the acts or when they were committed. See Morgan,

536 U.S. at 120. Thus, Moore has not established that the three timely adverse acts

are sufficiently related to any of the other complained of acts, such that they

support the same hostile work environment claim.

      Accordingly, the timely adverse acts in the complaint and EEOC charge,

considered along with Moore’s untimely allegations, do not allow Moore to

proceed with a hostile work environment claim.


                                          14
              Case: 19-10263     Date Filed: 04/01/2020    Page: 15 of 17



   B. Sexual Harassment Claim

      We next consider whether Moore has alleged actionable discrete acts that

may establish a claim for sexual harassment. “Discrete acts such as termination,

failure to promote, denial of transfer, or refusal to hire” must fall within the

limitations period to be actionable. Morgan, 536 U.S. at 114. Again, the only

timely acts Moore alleges are her suspension, demotion, and constructive

discharge, but she does not tie these actions to sexual harassment. To the contrary,

according to her EEOC charge, Gene Rison told Moore that she “was being

demoted due to neglect of duty and [her] probationary status.” Further, her

complaint broadly states that San Carlos subjected her “to a severely hostile

working environment over her entire career as a firefighter with SCPF’s history of

sexual harassment, retaliation and disparate treatment of [her] due to her sex.

However, “[a]n introductory conclusion cannot take the place of factual allegations

in stating a plausible claim for relief.” Edwards v. Prime, Inc., 602 F.3d 1276,

1300−1301 (11th Cir. 2010). And the only factual allegations supporting Moore’s

sexual harassment claim are vague and untimely. Because her complaint, together

with her EEOC charge, does not plausibly allege that anyone at San Carlos Park

harassed Moore because of her gender within the applicable limitations period, the

district court did not err in dismissing Moore’s sexual harassment claim.

   C. Constructive Discharge Claim

                                           15
             Case: 19-10263     Date Filed: 04/01/2020   Page: 16 of 17



      Moore’s remaining argument is that the district court erred in ruling that she

failed to plead any facts showing that she was constructively discharged. The

threshold to prove constructive discharge is “quite high”—even “higher than the

standard for proving a hostile work environment.” Hipp, 252 F.3d 1208, 1231

(11th Cir. 2001). To succeed on a constructive discharge claim, a plaintiff must

show “that working conditions were ‘so intolerable that a reasonable person in

[her] position would have been compelled to resign.’” Id. (quoting Poole v.

Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir. 1997)). “In

evaluating constructive discharge claims, [courts] do not consider the plaintiff’s

subjective feelings. Instead, [they] employ an objective standard.” Id. In

determining whether a reasonable person would be compelled to resign, courts

consider the amount of time between the objectionable acts and the constructive

discharge, with a longer gap cutting against reasonableness. See Spence v.

Maryland Casualty Co., 995 F.2d 1147 (2nd Cir.1993) (no constructive discharge

where harassment had ceased several months before he stopped working); Steele v.

Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir.1989) (no constructive

discharge where harassment stopped several weeks before the employees

resigned).

      Moore has not pled facts sufficient to support a claim for constructive

discharge. As we noted in analyzing Moore’s other claims, the allegations in


                                         16
             Case: 19-10263     Date Filed: 04/01/2020    Page: 17 of 17



Moore’s complaint are extremely vague: most do not reference specific dates or

circumstances in which the allegedly discriminatory acts occurred. Moore claims

she was constructively discharged when she resigned on November 5, 2013. She

alleges that she was demoted twice—once sometime in 2010 and again in August

2013—and groped at some point in 2010. She has alleged numerous additional

discriminatory acts without mentioning perpetrators or dates when these acts

occurred. With at least a three-month gap between her latest demotion and her

resignation, and with no way of determining when the other discriminatory acts

occurred, we cannot determine whether a “reasonable person in [her] position

would be compelled to resign.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d

1311, 1317 (11th Cir. 1989).

      For the reasons stated above, the district court did not err in dismissing

Moore’s complaint.


      AFFIRMED.




                                         17
