Order | Filed: July 17, 2026
| Entered: July 17, 2026
Caviglia v. Cemex Construction Materials Florida LLC
Civil Rights: Jobs | Florida Middle
Order on Motion to Dismiss / Failure to State a Claim
ENDORSED ORDER denying Defendant Cemex Construction Materials Florida LLC's motion to dismiss the amended complaint. (Doc. # 24). In the amended complaint (Doc. # 21), Plaintiff David Caviglia asserts a single claim for age discrimination under the Age Discrimination in Employment Act ("ADEA") based on his termination from Defendant. Plaintiff, who is 57, pleads that he provided 24 years of satisfactory work for Defendant, with the plant Plaintiff managed being awarded "Plant of the Year" in both 2022 and 2023. (Id. at 2). But, in 2024 and 2025, Defendant's management began "repeatedly" asking Plaintiff when he planned to retire. (Id. at 3). After Plaintiff answered that he had no intention to retire, he was placed on a performance improvement plan despite his "satisfactory performance." (Id. at 3-4). Eventually his employment was terminated in 2025 and "Defendant replaced Plaintiff with a substantially younger individual." (Id. at 4). In its motion, Defendant insists that Plaintiff has not pled a plausible ADEA claim because (1) Plaintiff's allegation that he was replaced by "a substantially younger individual" was too conclusory because it did not identify the replacement and his qualifications and (2) the allegation about management's inquiries about Plaintiff retiring is "insufficient, as general comments about retirement are not evidence of age discrimination." (Doc. # 24 at 5). True, under the McDonnell Douglas framework, which is one evidentiary framework that applies at the summary judgment stage, "a plaintiff may establish a prima facie case for an ADEA violation by alleging that: (1) she was a member of a protected class; (2) she was subjected to an adverse employment action; (3) she was qualified to do the job; and (4) she was replaced by or otherwise lost a position to a younger individual." Buchanan v. Delta Air Lines, Inc., 727 F. App'x 639, 642 (11th Cir. 2018). But a plaintiff need not "establish a prima facie case [of discrimination] to survive a motion to dismiss." Seiglie v. City of Doral, 819 F. Supp. 3d 1336, 1345 (S.D. Fla. 2026)(citation omitted). At the pleading stage, a plaintiff must merely allege "facts adequate to raise [his] right to relief above a speculative level." Buchanan, 727 F. App'x at 642. Thus, "a complaint alleging employment discrimination must simply state sufficient factual content to allow the court to draw the reasonable inference that the employer had discriminatory intent when it fired the plaintiff." Davis v. Miami-Dade Cnty., No. 23-12480, 2024 WL 4051215, at *5 (11th Cir. Sep. 5, 2024) (citation and internal quotation marks omitted). Under the Rule 12(b)(6) standard, it was not necessary for Plaintiff to specifically identify the younger employee by whom he was replaced and that employee's qualifications to state a plausible claim; indeed, no allegation of a younger replacement was required at all. See Rodriguez v. Orlando Sun Resort & Spa, LLC, No. 6:08-cv-2117-ACC-KRS, 2009 WL 10670721, at *2 (M.D. Fla. Sept. 9, 2009) (explaining that a plaintiff "is not required to 'allege that he was replaced by a substantially younger employee' in order to defeat a motion to dismiss" because "a plaintiff need not establish a prima facie case of discrimination to survive a motion to dismiss"). Likewise, while his managers' repeated inquiries about retirement might not be sufficient at the summary judgment stage, the allegation about these inquiries plausibly supports at the pleading stage that age was the motivation for the adverse employment action. The cases cited by Defendant regarding retirement inquiries were all decided on summary judgment or after a bench trial, so are inapplicable. See Minton v. Am. Bankers Ins. Grp., Inc., No. 02-12942, 2003 WL 21303330, at *1 (11th Cir. Feb. 6, 2003) (summary judgment); Dilla v. West, 179 F.3d 1348, 1349 (11th Cir. 1999) (bench trial); Roberts v. Design & Mfg. Servs., Inc., 167 F. App'x 82, 85 (11th Cir. 2006) (summary judgment). In short, Plaintiff's allegations are enough for the Court to draw the reasonable inference that Plaintiff's age was the but-for cause of his termination. Plaintiff has stated a plausible claim for age discrimination. Defendant's motion is denied, and Defendant must file its answer to the amended complaint within 14 days of this Order. Signed by Judge Virginia M. Hernandez Covington on 7/17/2026. (DMD)