Susan Monaghan v. Worldpay US, Inc.

Case: 17-14333 Date Filed: 04/02/2020 Page: 1 of 40

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________

No. 17-14333
_____________________
D.C. Docket No. 1:16-cv-00760-CC

SUSAN MONAGHAN,

Plaintiff-Appellant,

versus
WORLDPAY US, INC.,
Defendant-Appellee.
_____________________
Appeal from the United States District Court
for the Northern District of Georgia
___________________________

(April 2, 2020)

Before JORDAN and TJOFLAT, Circuit Judges, and HINKLE, ∗ District Judge.

PER CURIAM:

Susan Monaghan appeals from the district court’s grant of summary

∗The Honorable Robert L. Hinkle, Senior United States District Judge for the Northern District
of Florida, sitting by designation.
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judgment in favor of her former employer, Worldpay US, Inc., on her claim of

retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3(a).

Following a review of the record, and with the benefit of oral argument, we reverse

and remand.

The district court applied our decision in Gowski v. Peake, 682 F.3d 1299,

1312 (11th Cir. 2012), and required Ms. Monaghan to show that the alleged

retaliation was sufficiently pervasive to alter the conditions of her employment.

But the proper standard in a retaliation case is the one set out by the Supreme

Court in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57

(2006), and confirmed by this circuit in Crawford v. Carroll, 529 F.3d 961, 974

(11th Cir. 2008)—the retaliation is material if it “well might have dissuade[d] a

reasonable worker from making or supporting a charge of discrimination.” Under

this standard, a jury must decide Ms. Monaghan’s retaliation claim.

I

Viewed in the light most favorable to Ms. Monaghan, see Bucklew v.

Precythe, 139 S.Ct. 1112, 1137 (2019), the facts relevant to the retaliatory

harassment claim are relatively straightforward. 1

Ms. Monaghan, who is white and over 40 years old, worked as an executive

1
Ms. Monaghan’s version of events is disputed, and we do not suggest that the facts summarized
here set out what actually happened. But at the summary judgment stage, it is Ms. Monaghan’s
version that counts.
2
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assistant at Worldpay from September 2 to November 21 of 2014. Worldpay

terminated Ms. Monaghan’s employment during the 90-day probationary period

applicable to new employees.

Tammi Daniel, who is black, was Ms. Monaghan’s immediate supervisor

from September 2 to November 3, when Ruth Hrubala (who is white and over 50

years of age) replaced Ms. Daniel. About a week after Ms. Monaghan began her

tenure at Worldpay, Ms. Daniel made a number of race- and age-based comments

to her. For example, Ms. Daniel told Ms. Monaghan that she needed a “suntan” to

work in the executive suite, that she was “too old” to fit in at Worldpay, and that

she was “over the hill.” Ms. Daniel, referring to Ms. Monaghan, also told another

employee that “this little white woman is giving me drama over here,” and that

Worldpay “did not need another older executive assistant around here.” Ms.

Monaghan says that she verbally reported Ms. Daniel’s discriminatory comments

to the Worldpay executives she supported, as well as to others, but not to anyone in

human resources. According to Ms. Monaghan, the executives told her to avoid

Ms. Daniel, or to stop reporting such conduct because Ms. Daniel was a black

female and Worldpay did not want to get sued.

On October 2, Ms. Daniel called Ms. Monaghan into a meeting in a

conference room and berated her for about 45 minutes regarding her complaints to

the executives concerning the discriminatory remarks. Ms. Daniel was angry and

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told Ms. Monaghan that she had “cut her own throat” by making the complaints.

Ms. Daniel also instructed Ms. Monaghan not to have any contact with the

executives she supported unless it was directly related to work on a specific task.

Ms. Daniel did not stop there. She told Ms. Monaghan that she was “fucked,” that

she would be blackballed, that her days working for Worldpay were numbered, and

that she “better watch it” because Ms. Daniel and her boyfriend knew where she

lived. Ms. Daniel ended the meeting by pounding her fists on a table, leaning

towards Mr. Monaghan, and saying: “I’m so pissed off at you, Susan Monaghan.

How dare you make complaints about me.” Ms. Monaghan contends that she told

some of the executives about Ms. Daniel’s behavior at this meeting, but they again

refused to consider her complaints.

About two weeks later, around October 20, Ms. Daniel told Ms. Monaghan

that she was training another person “to take your job. You better watch it, white

girl.” Ms. Monaghan again complained to an executive that Ms. Daniel was

making racist remarks, but once again the complaint fell on deaf ears.2

In late October, while Ms. Monaghan was eating a banana sandwich for

lunch, Ms. Daniel asked her how old she was. Ms. Daniel remarked that the only

person she knew who ate that type of sandwich was her own mother.

At an offsite meeting on October 29, Ms. Daniel told Ms. Monaghan that she

2
Around this time, another Worldpay employee heard April Watkins, the human resources
director, tell Ms. Daniel that she needed to find a way to make Ms. Monaghan “disappear.”
4
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would be resigning. A human resources executive, who was listening to the

conversation, asked Ms. Daniel if she had plenty of “give a damn” money. Ms.

Daniel asked Ms. Monaghan if she knew that that meant, and when Ms. Monaghan

said no, Ms. Daniel said “you white girls kill me.” Ms. Daniel also told Ms.

Monaghan that she needed to “watch herself.” Ms. Monaghan reported these

comments but was generally told to ignore Ms. Daniel because she was leaving the

company.

In mid-November, Ms. Hrubala, who had taken over for Ms. Daniel, began

to ignore Ms. Monaghan. Worldpay terminated Ms. Monaghan’s employment on

November 20 and asserts that it did so due to “lack of confidence, lack of trust, and

lack of teamwork.” But Ms. Monaghan says that Ms. Hrubala told her that she was

being discharged for “complain[ing] and complain[ing]” to the executives, that

they were tired of her “complaining,” and that she did not “fit in with” Worldpay.3

Ms. Watkins told Ms. Monaghan “I need you to understand that today is for

Tammi” as she was escorting her out of the building on the day of her termination.

Ms. Monaghan understood that comment to mean that Worldpay was retaliating

against her by firing her because Ms. Daniel had been discharged.

3
Ms. Hrubula made the decision to fire Ms. Monaghan, but she consulted with Ms. Watkins and
the executives whom Ms. Monaghan supported. These executives were aware of Ms.
Monaghan’s complaints about Ms. Daniel. Given the reasons Ms. Hrubula gave to Ms.
Monaghan for her firing, a reasonable jury could find that Ms. Hrubula knew of Ms. Monaghan’s
complaints from the executives or others.
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II

We review the district court’s summary judgment order de novo. See

Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019). Before we

begin our discussion, we explain what claim we are addressing.

Count II of Ms. Monaghan’s complaint asserted a Title VII retaliation claim

against Worldpay. See D.E. 1 at 9–10. Count III, a claim under 42 U.S.C. § 1981

for unlawful racial discrimination, mentioned retaliation in passing but only in a

concluding paragraph alleging that Worldpay was liable for damages. See id. at

11. Count V, a claim for unlawful age discrimination under the Age

Discrimination in Employment Act, 29 U.S.C. § 623 et seq., did not mention

retaliation at all and did not cite to the Act’s anti-retaliation provision, § 623(d).

See id. at 12–13.

In her response to Worldpay’s motion for summary judgment, however, Ms.

Monaghan proceeded as though she had asserted retaliation claims under § 1981

and the ADEA as well as under Title VII. See D.E. 73 at 7. The magistrate judge

apparently proceeded on this assumption as well. See D.E. 85 at 30–31. It is

unclear whether the district court analyzed retaliation only under Title VII. See

D.E. 91 at 5–6.

On appeal, Ms. Monaghan asserts (or at the very least suggests) that she

pursued (and is pursuing) distinct retaliation claims under Title VII, § 1981, and

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the ADEA. But we need only address Ms. Monaghan’s Title VII retaliation claim.

That was the only retaliation claim pled in the complaint, and “a plaintiff cannot

amend h[er] complaint through argument made in h[er] brief in opposition to the

defendant’s motion for summary judgment.” Miccousukee Tribe of Indians of Fla.

v. United States, 716 F.3d 535, 559 (11th Cir. 2013).4

III

The term “retaliatory harassment” is not new to Title VII law, see, e.g.,

Adams v. Reed, 567 F.2d 1283, 1285 n.4 (5th Cir. 1978) (noting that the Title VII

defendant had not appealed district court’s injunction prohibiting “retaliatory

harassment”), but its contours have not always been clear. In Wu v. Thomas, 996

F.2d 271, 273–74 (11th Cir. 1993), we left open whether Title VII’s anti-retaliation

provision, set out as part of 42 U.S.C. § 2000e-3(a), permits a claim for retaliatory

harassment which “caused the employee no tangible harm, such as loss of salary,

benefits, or position.” A couple of years later, we held that “Title VII’s protection

against retaliatory discrimination extends to adverse actions which fall short of

ultimate employment decisions.” Wideman v. Wal-Mart Stores, Inc., 141 F.3d

1455, 1456 (11th Cir. 1998). We concluded that, viewed collectively, the acts

complained of by the plaintiff—being improperly listed as a no-show for work,

4
Ms. Monaghan does not appeal the grant of summary judgment on her discrimination claims
and discusses her termination in the context of her retaliation claim. Because all her arguments
are focused on the retaliation claim, that is the only claim we address.
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receiving reprimands and a suspension, and having a supervisor solicit co-workers

for negative comments about the plaintiff, threaten to shoot the plaintiff in the head

if she called headquarters to complain, and a delay in authorizing medical

treatment for the plaintiff’s allergic reaction—were “sufficient to constitute

prohibited discrimination.” Id.

A

It has long been settled that Title VII makes discriminatory treatment

actionable only if it reaches a sufficient level of substantiality. Trivial slights are

not actionable. See, e.g., Oncale v. Sundown Offshore Servs., Inc., 523 U.S. 75, 81

(1998) (noting that Title VII is not a general civility code). Articulating the

dividing line between substantial and trivial has not always been easy. But by

now, apart from one outlier addressed later, the standards, if not always their

proper application in any given case, are pretty well established.

First, some events are substantial enough standing alone to be actionable.

These have sometimes been referred to as “tangible” or “adverse” employment

actions. See, e.g., Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d

1227, 1231 (11th Cir. 2006) (“tangible employment action”); Jefferson v. Sewon

Am., Inc., 891 F.3d 911, 920–21 (11th Cir. 2018) (“adverse employment action”).

The terms are interchangeable, at least as applied to this kind of discrimination

claim. See Brown v. Snow, 440 F.3d 1259, 1266 (11th Cir. 2006) (“Under our case

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law, the definitions of tangible employment actions and adverse employment

actions are essentially the same.”).

Tangible employment actions consist of things that affect continued

employment or pay—things like terminations, demotions, suspensions without pay,

and pay raises or cuts—as well as other things that are similarly significant

standing alone. See Davis v. Town of Lake Park, 245 F.3d 1232, 1238–39 (11th

Cir. 2001); Gillis v. Ga. Dep’t of Corr., 400 F.3d 883, 888 (11th Cir. 2005). A

claim that an employee has suffered a tangible employment action based on race or

other prohibited characteristics is sometimes referred to as a disparate-treatment

claim. See, e.g., Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 985–86 (1988);

Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977); Crawford

v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Such a claim arises under 42

U.S.C. § 2000e-2(a)(1), which prohibits discrimination with respect to

“compensation, terms, conditions, or privileges of employment.”

Second, mistreatment based on race or other prohibited characteristics,

including subjection to adverse conditions, is actionable even if the mistreatment

does not rise to the level of a tangible employment action, but only if the

mistreatment is “sufficiently severe or pervasive” that it can be said to alter the

terms, conditions, or privileges of employment. See Miller v. Kenworth of Dothan,

Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris v. Forklift Sys., Inc.,

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510 U.S. 17, 21 (1993)). A claim based on this kind of mistreatment is often

referred to as a hostile-environment claim. When the mistreatment involves

unwelcome sexual advances, the claim may be referred to alternatively as a sexual-

harassment claim. See, e.g., Cotton, 434 F.3d at 1231 (noting that “sexual

harassment” is actionable if it results in either a tangible employment action or a

hostile environment); Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1244 (11th Cir.

2004) (noting that “sexual harassment” is actionable if it creates a “hostile or

abusive environment”). Such a claim arises under the same Title VII provision as

a disparate-treatment claim, 42 U.S.C. § 2000e-2(a)(1)—the provision that

prohibits discrimination in compensation, terms, conditions, or privileges of

employment.

Third, mistreatment based on retaliation for protected conduct—for

example, making or supporting a charge of discrimination—is actionable whether

or not the mistreatment rises to the level of a tangible employment action, but only

if the mistreatment “well might have dissuaded a reasonable worker from making

or supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 68

(quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). Burlington

Northern recognized that this retaliation standard protects employees more

broadly—and is more easily satisfied—than the standard applicable to claims of

discrimination. See id. at 67. Claims of this kind—retaliation claims—arise under

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42 U.S.C. § 2000e-3(a). In contrast to the disparate-treatment provision, § 2000e-

2(a)(1), the retaliation provision is not limited to discrimination with respect to

compensation, terms, conditions, or privileges of employment.

In Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008), we recognized that

Burlington Northern set out a different standard for retaliation claims. We said

that under Burlington Northern, “in the context of a Title VII retaliation claim, a

materially adverse action ‘means it well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.’” Id. at 974 (quoting

Burlington Northern, 548 U.S. at 68). We applied the “well might have dissuaded”

standard again in Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1268 (11th

Cir. 2010).

Not surprisingly, every other circuit also has adopted this standard for

retaliation claims after Burlington Northern. See, e.g., Billings v. Town of Grafton,

515 F.3d 39, 52–53 (1st Cir. 2008); Kessler v. Westchester Cty. Dep’t of Soc.

Servs., 461 F.3d 199, 207–08 (2d Cir. 2006); Moore v. City of Phila., 461 F.3d

331, 341 (3d Cir. 2006); Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir.

2011); Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 n.9 (5th Cir. 2008);

Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 593–96 (6th Cir. 2007);

Szymanski v. Cty. of Cook, 468 F.3d 1027, 1029 (7th Cir. 2006); Clegg v. Ark.

Dep’t of Corr., 496 F.3d 922, 928–29 (8th Cir. 2007); Campbell v. Haw. Dep’t of

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Educ., 892 F.3d 1005, 1021 (9th Cir. 2018); Williams v. W.D. Sports, N.M., Inc.,

497 F.3d 1079, 1083, 1086–87, 1090 (10th Cir. 2007); Velikonja v. Gonzales, 466

F.3d 122, 124 (D.C. Cir. 2006).

B

That brings us to the outlier. In Gowski v. Peake, 682 F.3d 1299 (11th Cir.

2012) (per curiam), four plaintiffs alleged they were subjected to a wide range of

mistreatment at the hospital where they were employed. Only two of the plaintiffs,

both doctors, were involved in the appeal, and we discuss only their claims.

The doctors alleged they were mistreated in retaliation for complaining

about discrimination and proceeded to trial. The verdict form separately presented

claims that the doctors suffered retaliatory mistreatment that rose to the level of

tangible employment actions, on the one hand, and retaliatory mistreatment that

constituted a hostile environment, on the other hand. See id. at 1308. The jury

resolved the retaliatory-tangible-adverse-actions claim against the two doctors but

resolved the retaliatory-hostile-environment claim in their favor. See id. The

defendant appealed, asserting, among other things, that there was no such thing as

a retaliatory-hostile-environment claim. We had no trouble resolving that issue in

the doctors’ favor. We acknowledged that our circuit had never so held but that

every other circuit to address the issue had recognized such a claim. See id. at

1311–12.

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That left for decision whether the evidence was sufficient to support the

verdict in the doctors’ favor. We held that it was. Curiously, however, we began

the discussion of this issue by setting out not the Burlington Northern standard,

and not our unrestricted adoption of that standard in Crawford, but the standard

applied in older cases. We said that to return a verdict for the doctors, the jury had

to find the mistreatment at issue was “sufficiently severe or pervasive to alter the

terms and conditions of employment, thus constituting an adverse employment

action.” Gowski, 682 F.3d at 1312. This “terms and conditions” language came

from the wrong statute—§ 2000e-2(a)(1) instead of § 2000e-3(a). And we said this

even though we had just cited cases from other circuits recognizing retaliatory-

hostile-environment claims—and cited those that applied the “severe or pervasive”

standard as having been “abrogated on other grounds” by Burlington Northern.

See Gowski, 682 F.3d at 1311 (citing three cases abrogated on other grounds by

Burlington Northern, including, for example, Jensen v. Potter, 435 F.3d 444, 449

(3d Cir. 2006) (adopting the “severe or pervasive” standard for a retaliatory-

hostile-environment claim)).

We agree with Ms. Monaghan, and with the EEOC as amicus curiae, that the

articulation of the retaliation standard in Gowski is inconsistent with Burlington

Northern and Crawford. Our adherence to the prior-panel rule is strict, but when

there are conflicting prior panel decisions, the oldest one controls. See, e.g., Cohen

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v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir. 2000). We now reaffirm that

the standard applicable to all Title VII retaliation claims is the Burlington Northern

“well might have dissuaded” standard, precisely as our pre-Gowski opinion in

Crawford said.

C

The remaining question is whether the evidence, viewed in the light most

favorable to Ms. Monaghan, satisfied Burlington Northern. Understanding that the

“well might have dissuaded” standard is contextual, see Burlington Northern, 548

U.S. at 69, we conclude that it did.

According to Ms. Monaghan, at the October 2 meeting Ms. Daniel told her

that she had “cut her own throat,” that she was “fucked,” that she would be

blackballed, and that her days at Worldpay were numbered. Ms. Daniel also

threatened Ms. Monaghan, telling her that she “better watch it” because Ms. Daniel

and her boyfriend knew where she lived. Ms. Daniel ended the meeting by

pounding her fists on a table and saying to Ms. Monaghan “[h]ow dare you make

complaints against me.” Around October 20, Ms. Daniel told Ms. Monaghan that

she was training another person to “take your job,” and again threatened her: “You

better watch it, white girl.” These statements from a supervisor—which threatened

both termination and possible physical harm—"well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” See

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Burlington Northern, 548 U.S. at 70–72 (holding that a jury could reasonably find

that reassignment to a less prestigious and more arduous position and a 37-day

suspension without pay were—despite the receipt of backpay—materially adverse

retaliatory actions).

In addition, Worldpay fired Ms. Monaghan. Termination easily satisfies the

“well might have dissuaded” standard, and a reasonable jury could find that the

termination was retaliatory. First, when Ms. Monaghan was terminated, Ms.

Hrubala told her that she was being fired for “complain[ing] and complain[ing].”

As noted earlier, a jury could draw the inference that the reference to Ms.

Monaghan’s “complain[ing]” was to the complaints about Ms. Daniel. Second,

Ms. Watkins told Ms. Monaghan “I need you to understand this is for Tammy”

when she escorted her out of the building. This statement, by a Worldpay

executive, is additional evidence supporting the inference that the termination was

retaliation for Ms. Monaghan’s complaints about Ms. Daniel.5

IV

We reverse the district court’s grant of summary judgment on Ms.

Monaghan’s Title VII retaliation claim and remand for a jury trial on that claim.

REVERSED AND REMANDED.

5
In closing, we note that Ms. Daniel’s conduct and the termination are alternative theories of
retaliation. So a jury could find for Ms. Monaghan based on Ms. Daniel’s conduct even if it
concludes that the termination was not retaliatory.
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TJOFLAT, Circuit Judge, concurring in part, dissenting in part.

The District Court gave Worldpay US, Inc. summary judgment on Susan

Monaghan’s claims that Worldpay retaliated against her in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), 42 U.S.C. § 1981, and the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(d). 1 I concur

in Court’s decision to reverse the District Court’s judgment and remand the case

for further proceedings; for genuine issues of material fact remain to be litigated. I

write separately because I disagree with the Court that our rule barring the

amendment of a complaint in a memorandum filed in opposition to a motion for

summary judgment precludes us from considering the retaliation claims the

District Court rejected. True, Monaghan did amend her complaint—specifically

Counts II, III and V—in her memorandum opposing Worldpay’s motion, but the

bar is inoperative here because Worldpay went along with the amendment,

effectively consenting to it within the meaning of Federal Rule of Civil Procedure

15(a)(2). 2 And the District Court did, too. It granted Worldpay summary

1
“Plaintiff generally maintains . . . that Defendant is liable for retaliation . . . under 42
U.S.C. § 1981, Title VII, and the ADEA.” The District Court made this statement in reviewing
Monaghan’s objections to the Magistrate Judge’s Report and Recommendation (“R&R”), which
recommended that the District Court grant Worldpay’s motion for summary judgment on those
retaliation claims.
2
Rule 15(a)(2) provides that after the defendant has filed a responsive pleading, a
complaint can be amended “only with the opposing party’s written consent or the court’s leave.”
Fed. R. Civ. P. 15(a)(2).
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judgment on the retaliation claims Monaghan presented in her memorandum. A

review of the way in which the case was litigated makes this clear.

I.
Susan Monaghan’s complaint provided the background for this litigation,

nothing more. The complaint contained five counts. All were based on a set of

factual allegations that were common to all counts. 3 The counts asserted the

following claims: Count I—“Race Discrimination in Violation of Title VII of the

Civil Rights Act of 1964,” Count II—“Retaliation in Violation of Title VII of the

Civil Rights Act of 1964,” Count III—“Violation of 42 U.S.C. § 1981,” Count

IV—“Claims for Relief Under Civil Rights Act of 1991,” 4 and Count V——

3
For convenience, and to put my remarks in context, I have made the complaint an
appendix to this opinion.
4
Although Count IV did not cite the United States Code for the relevant provision of the
Act, I assume that Monaghan was referring to 42 U.S.C. § 1981(a), “Damages in cases of
intentional discrimination in employment,” which states, in pertinent part:

(a) Right of recovery
(1) Civil rights
In an action brought by a complaining party under section 706 or 717 of the Civil
Rights Act of 1964 against a respondent who engaged in unlawful intentional
discrimination (not an employment practice that is unlawful because of its
disparate impact) prohibited under section 703, 704, or 717 of the Act, and
provided that the complaining party cannot recover under section 1981 of this
title, the complaining party may recover compensatory and punitive damages as
allowed in subsection (b), in addition to any relief authorized by section 706(g) of
the Civil Rights Act of 1964, from the respondent.
....
(b) Compensatory and punitive damages
(1) Determination of punitive damages
A complaining party may recover punitive damages under this section against a
respondent (other than a government, government agency or political subdivision)
if the complaining party demonstrates that the respondent engaged in a
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“Violations of the Age Discrimination in Employment Act, as Amended.” Counts

II through V incorporated by reference all of the complaint’s factual allegations

and each of the preceding counts, such that Count V was an amalgamation of all

counts.5 To complicate matters further, the count-specific allegations were mere

“legal conclusion[s] couched as . . . factual allegation[s].” Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S. Ct. 1937, 1950 (2009) (internal quotations omitted).6

discriminatory practice or discriminatory practices with malice or with reckless
indifference to the federally protected rights of an aggrieved individual.
(2) Exclusions from compensatory damages
Compensatory damages awarded under this section shall not include backpay,
interest on backpay, or any other type of relief authorized under section 706(g) of
the Civil Rights Act of 1964.

Count IV was not an independent claim. Rather, if Monaghan prevailed on her Count III claim
brought under 42 U.S.C. § 1981, she might be able to recover punitive damages under §
1981a(b).
5
This is classic “shotgun” pleading. See Weiland v. Palm Beach Cty. Sheriff’s Office,
792 F.3d 1313, 1320–23 (11th Cir. 2015) (explaining shotgun pleadings). In responding to a
multiple-count complaint like the one Monaghan filed, the defendant is unable to determine
which factual allegations pertain to which count, and to the extent the counts are fused together,
to determine the elements of the fused claim. So, as here, the defendant, rather than undertaking
such determinations, simply replies to the complaint in kind with a bevy of one-sentence
affirmative defenses that apply indiscriminately to all counts.
6
Due to its shotgun nature and conclusory allegations, Monaghan’s complaint failed to
comply with the requirements of Fed. R. Civ. P. 8(a), as interpreted by the Supreme Court in
Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S. Ct. 1955, 1974 (2007), by “‘stat[ing] a claim for relief that is plausible on its face.’”
Had Worldpay moved the District Court to dismiss the complaint or to require a more definite
statement, see Fed. R. Civ. P. 12(b)(6) and 12(e), the Court would have granted its motion. But
Worldpay did not move the Court to do that. Although its first affirmative defense alleged that
the complaint failed to state a claim for relief, the Magistrate Judge to whom the case was
referred, and thus the District Court, could not consider the defense because Worldpay did not
present it to the Court for disposition pursuant to a Fed. R. Civ. P. 12(c) motion for judgment on
the pleadings.
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Worldpay replied to Monaghan’s complaint in kind, filing an answer with

sixteen affirmative defenses, all but one consisting of one sentence. 7 None of the

defenses referenced a specific count; thus, all defenses applied to all counts. After

the parties joined issue in this way, discovery ensued. When it concluded,

Worldpay moved the District Court for a summary judgment on all of Monaghan’s

claims. The motion referred to her claims collectively: that “her employment was

terminated on the basis of her age and race (Caucasian); that she was subjected to a

hostile work environment on the basis of her age and race; and, that she was

subjected to retaliation for allegedly reporting age and race discrimination.”8

In her response memorandum (“Opposition Memorandum”), Monaghan

stated that she was “not moving forward on her claims of a hostile work

environment.” Instead, she was moving forward on her claims of retaliation under

“42 U.S.C. § 1981, Title VII and the ADEA.” Monaghan was presenting two

7
Several affirmative defenses—the second, third, fourth, fifth, seventh, eight, eleventh,
fourteenth, and sixteenth—were nothing but bald conclusions that in the context of this case
were incomprehensible. For example, the Complaint alleged that Worldpay “purports to
provide a legitimate non-discriminatory reason for the adverse action, [but] this reason is . . .
pre-textual.” The Complaint didn’t reveal the reason. Worldpay’s answer alleged that it had
“legitimate non-discriminatory reasons for its actions,” but failed to reveal the reasons. The
seventh affirmative defense alleged that “all actions . . . Worldpay [took] . . . were for
legitimate, non-discriminatory and non-retaliatory business reasons and factors,” but it once
again failed to say what those reasons were. The sixteenth defense alleged that “Plaintiff’s
claims may be barred in whole or in part on the doctrines of laches, waiver, estoppel, or
unclean hands,” but failed to indicate the basis for the doctrines’ applications.
8
Worldpay’s description of Monaghan’s claims did not square with what the complaint
alleged. The complaint contained no allegation that Monaghan’s employment was “terminated
on the basis of her age and race.” Nor did it contain the words “hostile work environment.”
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claims of retaliation. First, Worldpay retaliated against her for engaging in

protected activity, for complaining of “Daniel’s racist and ageist statements to the

executives she worked for.” And second, Daniel, and thus Worldpay, retaliated

against her in two ways: (1) by telling her that “she ‘cut her own throat,’ was

blackballed and ‘f-ed’ and her days ‘were numbered because [she] was too old to

‘fit in’ the office,” and (2) with “thinly veiled threats of bodily harm, telling [her

repeatedly] ‘to watch it’ because her boyfriend knew where [she] lived [and] had

money.”

In its reply brief, Worldpay argued that any retaliation claim based on

Daniel’s conduct was not properly before the District Court because Monaghan

had not presented it in her complaint (and had not obtained leave to amend it

pursuant to Federal Rule of Civil Procedure 15(a)(2)). According to Worldpay,

“[t]he only retaliation claim alleged in the Complaint is based on the termination of

Plaintiff’s employment.”

The Magistrate Judge to whom the case had been referred took Worldpay’s

motion for summary judgment under advisement. In her Report and

Recommendation (“R&R”) on the motion, the Magistrate Judge explained

Monaghan’s two theories of retaliation as the Magistrate Judge understood them:

Worldpay retaliated against Monaghan (1) when it terminated her employment

because of her protected activity, and (2) when Daniel, in her supervisory capacity

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over Monaghan, created a hostile work environment.9 The Magistrate Judge did

not address Worldpay’s argument that the second retaliation theory was not

properly before the District Court. Instead, the Magistrate Judge assumed that it

was. She described Monaghan’s second theory of retaliation (as explained in

Monaghan’s Opposition Memorandum) as follows:

In this case, Plaintiff asserts that during a period of approximately a
month between Plaintiff’s first purported complaints of discrimination
and Daniel’s discharge, Daniel retaliated against her by (1)
threatening to terminate her employment; (2) issuing “thinly veiled
threats of bodily harm” when Daniel said to “watch it” and said she
and her boyfriend knew where Plaintiff lived; and (3) grooming
O’Neal as Plaintiff’s replacement.10

The Magistrate Judge conceptualized the second theory of retaliation as a

“retaliatory hostile work environment claim,” citing our decision in Gowski v.

Peake, 682 F.3d 1299, 1312 (11th Cir. 2012), as her authority. To prevail on such

claim, the employee must establish that (1) she engaged in statutorily protected

activity, (2) after doing so, was subjected to harassment that was (3) caused by her

protected activity, and the harassment (4) was sufficiently severe or pervasive to

alter the terms of her employment. The Magistrate Judge found that Daniel’s

“threats to terminate” Monaghan’s employment or “replace” her with O’Neal

9
As the Magistrate Judge expressed it in her R&R to the District Court, “[i]n this case,
Plaintiff asserts that she was retaliated against for complaining about Daniel’s alleged
discriminatory comments and/or conduct (1) when Daniel created a hostile work environment for
Plaintiff while Daniel was still employed by Worldpay and (2) when Plaintiff was discharged.”
10
This paraphrases what Monaghan stated in her Opposition Memorandum.
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“d[id] not amount to a sufficiently material adverse action to constitute retaliation.”

Nor did Daniel’s implied threats to her physical safety meet the threshold. The

threats were not “‘extremely serious’ enough without a tangible employment

action to amount to a material change in the terms and conditions of employment.”

Monaghan’s retaliatory hostile work environment claim accordingly failed.

Turning to Monaghan’s retaliatory termination claim, the Magistrate Judge

acknowledged the existence in the record of evidence that Monaghan “was

terminated for her purported complaints about race and/or age-based

discrimination” and that such evidence amounted to “circumstantial evidence of

improper retaliatory intent under Title VII and/or the ADEA.” But that was not

enough to make out a claim of retaliatory termination. Monaghan failed to

introduce evidence that the decisionmaker, Ruth Hrubala, who had replaced Daniel

as her supervisor on November 3, 2014, “knew about the substantive contents of

[her] complaints.” Worldpay had presented “uncontradicted evidence” that the

decisionmaker was unaware that Monaghan had engaged in protected activity. The

Magistrate Judge therefore found that Monaghan’s retaliatory termination claim

also failed.

Monaghan objected to the Magistrate Judge’s R&R on several grounds,

including those relevant to her claim that Worldpay terminated her employment

because she complained of race and age discrimination and to her claim (presented

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in her Opposition Memorandum) that Worldpay retaliated against her based on

Daniel’s conduct.11

Regarding the retaliatory termination claim, Monaghan took issue with the

Magistrate Judge’s position that Hrubala, as the decisionmaker, was unaware that

Monaghan had engaged in protected activity. In Monaghan’s mind, Hrubala was

not the decisionmaker. All she did was make a “recommendation” to the HR

department, which consulted with the ELTs, all of whom were aware of the

complaints of discrimination Monaghan had made and determined whether

Monaghan should be discharged.

Regarding the retaliation claim based on Daniel’s conduct, Monaghan

contended that the Magistrate Judge erroneously treated her claim as a “hostile

work environment” claim under Gowski rather than a retaliation claim under

Burlington N. & Santa Fe Ry. Co. v. White, and the standard it established:

Whether the retaliatory conduct “could well dissuade a reasonable worker from

making or supporting a charge of discrimination.” 548 U.S. 53, 57, 126 S. Ct.

2405, 2409 (2006).

The District Court overruled Monaghan’s objections to the Magistrate

Judge’ R&R and adopted the R&R as the opinion of the Court. Referring to the

11
Worldpay made no objection to the R&R. It therefore waived its argument that the
Magistrate Judge erred in considering the claim Monaghan asserted for the first time in her
Opposition Memorandum.
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Magistrate Judge’s treatment of the claim presented in Monaghan’s Opposition

Memorandum—retaliation by Worldpay based on Daniel’s conduct—the Court

reframed the claim as a retaliatory harassment claim and rejected it. It did so

because, as it read the record, Worldpay’s conduct did not alter the terms or

conditions of Monaghan’s employment.

II.

This is the way the case was litigated in the District Court. At the end of the

day, the question for the District Court was pure and simple: whether the evidence

adduced during discovery was sufficient to create a material issue of fact on claims

of retaliation asserted under Title VII, 42 U.S.C. §1981, and the ADEA. Like the

Magistrate Judge’s R&R, the District Court’s dispositive order is silent as to where

in Monaghan’s complaint these claims were alleged—other than to imply that the

claims were presented in the counts brought under those three statutes. It was

sufficient that Monaghan fleshed them out in her Opposition Memorandum. I

submit that, on remand, the District Court’s task is to treat this case as presenting

claims of retaliation under Title VII, 42 U.S.C. § 2000e-3(a), 42 U.S.C. § 1981,12

and the ADEA, 29 U.S.C. § 623(d).

12
The substantive standard governing retaliation claims brought under Title VII and §
1981 is the same in this Circuit. See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277
(11th Cir. 2008) (“To establish a claim of retaliation under Title VII or section 1981, a plaintiff
must prove that he engaged in statutorily protected activity, he suffered a materially adverse
action, and there was some causal relation between the two events.”). However, § 1981, by its
statutory language, only applies to claims premised on racial discrimination. See 42 U.S.C. §
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* * *

In this case, the plaintiff alleged claims under Title VII in Count II, under 42

U.S.C. § 1981 in Count III, and under the ADEA in Count V. Only one of the

counts, Count II, contained a claim of retaliation; Monaghan was fired “because of

protected activity.” Count II said nothing about retaliation based on Daniel’s

conduct. Counts III and V alleged that Monaghan was subjected to “different

terms and conditions of employment” due to race (Count III) and age (Count V),

but said nothing about retaliation for engaging in protected activity.13 What

Monaghan did with her Opposition Memorandum was to insert facts discovery

established into Counts II, III and V and thus create new claims of retaliation.

Count II now included (in addition to the retaliatory discharge claim) a claim that

Daniel, acting for Worldpay, retaliated against Monaghan because she had

complained of her conduct. Count III then replicated Count II’s dual claims of

retaliation. Likewise Count V. These are the counts the District Court

adjudicated. It did so, albeit tacitly, after augmenting Counts II, III and V with

facts the parties’ discovery disclosed and thus expanding the claims they asserted.

The tactic of filing a complaint consisting of claims pled like the claims

here, with labels identifying the legal theories on which the claims were based and

1981(a) (“All persons within the jurisdiction of the United States shall have the same right[s] . . .
as [are] enjoyed by white citizens”).
13
The word “retaliation” appeared in the final sentence of Count III as one of the
conditions of employment, not as an act precipitated by protected complaints of discrimination.
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conclusory statements to support them, are commonplace in the Eleventh Circuit,

especially in employment discrimination cases. The tactic bears fruit when, as

here, the defendant foregoes a motion to dismiss or for a more definite statement

and, treating the complaint as legally sufficient,14 responds to it in kind. The

complaint’s claims, though legally insufficient as pled, become sufficient after the

defendant moves for summary judgment. At this point, the plaintiff buttresses her

claims in a memorandum in opposition to the defendant’s motion. In fact, the

more nebulous and insufficient the complaint the greater the potential for

presenting claims beyond the contours of its allegations. The memorandum is

likely to be the defendant’s first notice of what the plaintiff is actually contending.

That was the situation here. But the defendant could hardly complain. After all,

by foregoing a challenge to the complaint’s sufficiency at the outset, the defendant

practically invites the scenario that develops.

It goes without saying that the manner in which this case was litigated hardly

comports with the litigation model the framers of the Federal Rules of Civil

Procedure created. The complaint and answer the parties filed here should not

have been permitted to go forward. The pleadings did little, if anything, more than

to notify the District Court of a legal dispute in Worldpay’s workplace. The

14
In theory, the defendant treats the complaint as legally sufficient even though it asserts
as an affirmative defense that the complaint fails to state a claim for relief. I say this because the
defendant never presents the defense to the district court for adjudication in a motion for
judgment on the pleadings.
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District Court should have required the plaintiff to replead her complaint without

waiting for the defendant to respond. As we stated in Byrne v. Nezhat, 261 F.3d

1075, 1133 (11th Cir. 2001), the “district court must intervene . . . and order a

repleading . . . even if the defendant does not move for a more definite

statement.”15

15
This is in keeping with the district court’s “power and duty to define the issues at the
earliest stage of litigation.” Johnson Enters. of Jacksonville v. FPL Grp., Inc., 162 F.3d 1290,
1333 (11th Cir. 1998). Congress has enforced a similar policy in cases in which “a prisoner
seeks redress from a governmental entity” in a civil action brought in district court. 28 U.S.C. §
1915A. A district court “shall . . . dismiss the [prisoner’s] complaint . . . , if the complaint . . .
fails to state a claim upon which relief may be granted.” Id. (emphasis added).

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APPENDIX

COMPLAINT FOR DAMAGES

COMES NOW, Plaintiff Susan Monaghan ( “Plaintiff”), by and through the
undersigned counsel, and files this, her Complaint for Damages, respectfully
showing the Court as follows:

JURISDICTION AND VENUE
1.
Plaintiff invokes the jurisdiction of this court pursuant to Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (“Title VII”), 42 U.S.C.
§ 1981, Civil Rights Act of 1991, and the Age Discrimination in Employment Act
of 1967, as amended (“ADEA”). This Court has jurisdiction of this matter
pursuant to 28 U.S.C. §§ 1331 and 1343, 42 U.S.C. § 12117, 42 U.S.C. § 2000e-
5(f), and 29 U.S.C. § 2617(2)(a).
2.

Defendant WorldPay US, Inc. ( “Defendant” or “WorldPay”) does business
in this judicial district. Additionally, the unlawful employment practices alleged in
this Complaint were committed within this District.

PARTIES
3.

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Plaintiff is a citizen of the United States of America, and is subject to the
jurisdiction of this Court.
4.

Defendant WorldPay US, Inc. ( “Defendant” or “WorldPay”) is qualified and
licensed to do business in Georgia, and at all times material hereto has conducted
business within this District.
5.

Defendant can be served through their Registered Agent of record, Corporation
Service Company, 40 Technology Parkway South, Suite 300, Norcross, GA 30092.

ADMINISTRATIVE PROCEDURES
6.

Plaintiff has fulfilled all conditions necessary to proceed with this cause of action
under Title VII. Plaintiff filed a charge of discrimination with the EEOC on March
24, 2015; the EEOC issued its Notice of Right to Sue on February 17, 2016.
7.

Plaintiff timely files this action within ninety (90) days of receipt of the Notice of
Right to Sue from the EEOC.

FACTUAL ALLEGATIONS
8.

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Defendant is now, and at all times relevant hereto, has been an employer engaged
in an industry affecting commerce within the meaning of §701(b), (g) and (h) of
Title VII and has employed more than the requisite number of persons for the
requisite duration under Title VII.
9.

Defendant hired Plaintiff on or about September 2, 2014, as an Executive Assistant
to the CIO, CTO, and SVP.

10.

Plaintiff’s direct supervisor, Tammi Daniel, began to subject Plaintiff to race-based
discrimination almost immediately after Plaintiff started working for Defendant.
11.

For example, Ms. Daniel told Plaintiff that she needed a “suntan” in order to sit in
their office.
12.

Ms. Daniel’s expressed to Plaintiff that she did not have the time to train her, but
then allowed a temporary employee that began a week after Plaintiff to shadow
her.
13.

Plaintiff complained to Bernie McGarrigle, CIO for Defendant, on or about
September 9, 2014, about Ms. Daniel’s race-based comment and resistance to help
Plaintiff.

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14.

Following Plaintiff’s complaint to Mr. McGarrigle, Ms. Daniel continued to harass
and threaten Plaintiff.
15.

For example, Ms. Daniel told Plaintiff that she was not a fit for the office because
she had complained.
16.

Ms. Daniel also told Plaintiff that she was “too old” to fit in at the office.
17.

Ms. Daniel also forbade Plaintiff from speaking to any other ELT member about
anything other than for a specific task Plaintiff was performing, thereby making it
more difficult for Plaintiff to successfully do her job.
18.

Ms. Daniel also told Plaintiff that she was “blackballed” and asked if Plaintiff had
“enough sense” to understand what that phrase meant.
19.

Ms. Daniel also told Plaintiff that Plaintiff’s days working for Defendant were
numbered.
20.

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Ms. Daniel told Plaintiff that April Watkins, the Chief Human Resources Officer at
the time, was her boss and close friend, so Plaintiff was f****d.

21.

Ms. Daniel also threatened Plaintiff, stating that she and her boyfriend knew where
Plaintiff lived.
22.

On or about October 6, 2014, Plaintiff approached Mr. McGarrigle for a second
time in an attempt to report the discrimination and harassment by Ms. Daniel.
23.

Plaintiff told Mr. McGarrigle that she had prepared an email that she wanted to
send to him.
24.

Mr. McGarrigle’s response was that if it was about Ms. Daniel, then he did not
want to hear anything else, and to not send him an email that was “inappropriate.”
25.

After Mr. McGarrigle refused to hear Plaintiff out, Plaintiff printed the complaint
and asked Steve Karp, the SVP of Products, to look it at.

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26.

After reading Plaintiff’s complaint, Mr. Karp stated “don’t send this to me. I don’t
want to know.”
27.

Plaintiff expressed her frustration to Mr. Karp and told him that she had been
threatened by Ms. Daniel, to which Mr. Karp replied “I don’t want to hear it, it’s
too much.”
28.

Approximately two weeks after Plaintiff’s second complaint, Plaintiff was notified
that Ms. Daniel would be leaving the company.
29.

The same week Plaintiff came home to find the glass in her front door shattered.
30.

Ms. Daniel was permitted to work for a few additional weeks in order to train her
replacement, during which time she continued to torment Plaintiff.
31.

Instead of taking action to ensure that the harassment and discrimination of
Plaintiff ceased, Defendant allowed Ms. Daniel to continue to target Plaintiff.

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32.

In November 2014, Plaintiff’s car was tampered with.
33.

On November 21, 2014, Plaintiff was terminated.
34.

Chief Human Resource Office April Watkins told Plaintiff that Plaintiff was being
terminated because of her complaints of discrimination.
35.

Others outside the Plaintiff’s protected class were treated differently.
36.

Although Defendant purports to provide a legitimate non-discriminatory reason for
the adverse action, this reason is a pre-textual in nature.
37.

Defendant fired Plaintiff because of her protected activity, ie., complaining about
being harassed and discriminated against on the basis of her race and age.

COUNT I: RACE DISCRIMINATION IN VIOLATION OF
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
38.

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Plaintiff re-alleges the preceding paragraphs as if set forth fully herein.
39.

Defendant’s actions in subjecting Plaintiff to different terms and conditions of
employment constitutes unlawful discrimination and retaliation on the basis of her
race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. 2000e et seq. and 42 U.S.C. section 1981A.
40.

Defendant has willfully and wantonly disregarded Plaintiff’s rights, and its
discrimination against Plaintiff was undertaken in bad faith.
41.

The effect of the conduct complained of herein has been to deprive Plaintiff of
equal employment opportunity, and has otherwise adversely affected her status as
an employee because of her race.
42.

Accordingly, Defendant is liable for the damages Plaintiff has sustained as a result
of Defendant’s unlawful discrimination

COUNT II: RETALIATION IN VIOLATION OF
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
43.

Plaintiff re-alleges the preceding paragraphs as if set forth fully herein.

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44.

Defendant’s actions, as detailed above, in terminating Plaintiff because of her
protected activity constitutes unlawful intentional retaluation in violation of Title
VII.
45.

Defendant willfully and wantonly disregarded Plaintiff’s rights, and Defendant’s
retaliation against Plaintiff was untertaken in bad faith.
46.

Accordingly, Defendant is liable for the damages Plaintiff has sustained as a result
of Defendant’s unlawful retaliation.
CLAIM III: VIOLATION OF 42 U.S.C. § 1981
47.

Plaintiff re-alleges the preceding paragraphs as if set forth fully herein.
48.

Defendant’s actions in subjecting Plaintiff to different terms and conditions of
employment constitutes unlawful discrimination on the basis of race in violation of
42 U.S.C. section 1981.

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49.

The effect of the conduct was to deprive Plaintiff of economic opportunites, and
otherwise adversely effected Plaintiff's status as an employee, because of his race.
50.

As a direct and proximate result of these actions, Plaintiff has been made a victim
of acts that adversely affected his psychological and physical well being.
51.

As a direct and proximate result of Defendant’s unlawful employment practices,
Plaintiff has been embarrassed, humiliated and has suffered damage to his
emotional health, and has lost back pay and front pay.
52.

Defendant has willfully and wantonly disregarded Plaintiff’s rights, and
Defendant’s discrimination against Plaintiff was undertaken in bad faith.
53.

Accordingly, Defendant is liable for the damages Plaintiff has sustained as a result
of Defendant’s unlawful retaliation.

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COUNT IV: CLAIMS FOR RELIEF UNDER
CIVIL RIGHTS ACT OF 1991
54.

Plaintiff re-alleges the preceding paragraphs as if set forth fully herein.
55.

Defendant discriminated against Plaintiff, and in failing and refusing to take any
appropriate remedial action to remedy the unlawful employment practices has not
only deprived Plaintiff of equal employment opportunities, but has exhibited
malice or reckless indifference to the federally protected rights of Plaintiff.
56.

Plaintiff thus seeks compensatory and punitive damages pursuant to §102(a)(1) of
the Civil Rights Act of 1991.

COUNT V: VIOLATIONS OF THE AGE DISCRIMINATION
IN EMPLOYMENT ACT, AS AMENDED
57.

Plaintiff re-alleges the preceding paragraphs as if set forth fully herein.
58.

Defendant’s actions in subjecting Plaintiff to different terms and conditions of
employment constitutes unlawful discrimination on the basis of her age in violation
of ADEA, as amended.

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59.

Defendant has willfully and wantonly disregarded Plaintiff’s rights, and
Defendant’s discrimination against Plaintiff was undertaken in bad faith.
60.

The effect of the conduct complained of herein has been to deprive Plaintiff of
equal employment opportunity, and has otherwise adversely affected her status as
an employee because of her age.
61.

As a direct and proximate result of Defendant’s violation of the ADEA, Plaintiff
has lost wages and benefits.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment as
follows:
(a) General damages for mental and emotional suffering caused by Defendant’s
misconduct;

(b) Punitive damages based on Defendant’s willful, malicious, intentional, and
deliberate acts, including ratification, condonation and approval of said acts;

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(c) Special damages and/or liquidated damages for lost wages and benefits and
prejudgment interest thereon;

(d) Reasonable attorney's fees and expenses of litigation;

(e) Trial by jury as to all issues;

(f) Prejudgment interest at the rate allowed by law;

(g) Declaratory relief to the effect that Defendant WorldPay, Inc. has violated
Plaintiff’s statutory rights;

(h) Injunctive relief of reinstatement, or front pay in lieu thereof, and prohibiting
Defendant WorldPay, Inc. from further unlawful conduct of the type described
herein; and,

(i) All other relief to which Plaintiff may be entitled.

Respectfully submitted this 9th day of March, 2016.

40