HOUSTON v. MARK DUNNING INDUSTRIES INC

Page 1 of 21
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
FARHEEM HOUSTON,
Plaintiff,
v. 	Case No. 3:25cv1338-TKW-HTC
MARK DUNNING INDUSTRIES INC.,
Defendant.
______________________________/
REPORT AND RECOMMENDATION
Plaintiff Farheem Houston, proceeding pro se, filed this action seeking relief
against his former employer, Defendant Mark Dunning Industries, Inc. (“MDI”), for
racial 	discrimination, 	retaliation, 	hostile 	work 	environment, 	and 	wrongful
termination. He seeks relief under Title VII of the Civil Rights Act of 1964 (“Title
VII”), the Florida Civil Rights Act (“FCRA”), 42 U.S.C. § 1981, and Florida
common law. Doc. 1 at 1. MDI has moved to dismiss this action with prejudice as
time-barred and for failure to state a claim. Doc. 10. Upon consideration of MDI’s
motion (Doc. 10), Houston’s opposition (Doc. 14), and the relevant law, the
undersigned RECOMMENDS the motion be GRANTED IN PART. 	Houston’s
Title VII claims and wrongful termination claim should be DISMISSED WITH
PREJUDICE 	and 	his 	FCRA 	and 	§ 	1981 	claims 	DISMISSED 	WITHOUT
PREJUDICE.
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 1 of 21

Page 2 of 21
Case No. 3:25cv1338-TKW-HTC
I. 	BACKGROUND
The following relevant facts are taken from Houston’s complaint and accepted
as true for purposes of this Report and Recommendation.1 See Doc. 1.
From November 2022 to January 2024, Houston (who is Black) worked as a
waste disposal driver for MDI. In January 2023, Houston’s supervisor, Josiah Peace
(who is Caucasian), “observed” office manager Angela Redd (also Caucasian) being
“harsh” towards Houston, and told Redd to “get off [Houston’s] back.”
In August 2023, Redd told Houston, “If you don’t want to follow the rules,
you should get a greeter job at Walmart.”
On January 28, 2024, Houston texted Peace, stating he was severely ill. Peace
responded, “Damn man. Ok. Well get better dude.” On January 29, 2024, Houston
went to Santa Rosa Medical Group and received a doctor’s note excusing him from
work until February 2, 2024. The same day, Redd texted Houston and said, “Don’t
tell me u quitting after u just got paid out vacation.”
On or around January 30, Redd referred to Houston as “the n***** that quit”
“in front of Peace and co-worker Wallace Hunt, who later provided a notarized
affidavit confirming the incident. 	Peace did not report the racial slur to HR,
“effectively condoning the hostile environment.”
On January 31, 2024, Peace instructed Houston to turn in his keys and badge.
1 When necessary, the facts have been reorganized based on chronology.
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 2 of 21

Page 3 of 21
Case No. 3:25cv1338-TKW-HTC
On February 1, 2024, Redd texted Houston, “If we don’t hear back by 5 today
we will take it as you have resigned your position.” 	Houston alleges Redd’s text
was “falsely framing” Houston’s absence as a “resignation.” 	Houston was “later
informed 	he 	had 	been 	‘voluntarily 	resigned,’” 	despite 	“providing 	medical
documentation.”2
On February 9, Houston received a text stating, “Your check will be paper
and here either Friday or the following Monday … your last day of employment was
Saturday January 27th.”
Houston timely filed a charge with the EEOC on April 10, 2024 (Doc. 1-1 at
2), and the EEOC issued Houston a notice of his right to sue on May 2, 2025 (Doc.
1-1 at 5).
II. 	LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). 	The Court must liberally construe Houston’s pro se
allegations, 	Haines v. Kerner, 404 U.S. 519, 520–21 (1972), but conclusory
allegations and legal conclusions couched as factual allegations are not entitled to a
2 Despite alleging he had been “voluntarily resigned,” Houston also alleges he was “forced to
resign or was constructively terminated due to intolerable working conditions and discriminatory
treatment.” As discussed herein, other similar inconsistencies permeate Houston’s complaint.
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 3 of 21

Page 4 of 21
Case No. 3:25cv1338-TKW-HTC
presumption of truth. Iqbal, 556 U.S. at 681; Papasan v. Allain, 478 U.S. 265, 286
(1986).
III. 	DISCUSSION
In the complaint, Houston identifies the following “Causes of Action”: Count
I: 	Violation of Title VII – Racial Discrimination and Hostile Work Environment;
Count II – Retaliation (Title VII and § 1981); Count III – Wrongful Termination
(Constructive 	Discharge). 	Thus, 	despite 	referencing 	the 	FCRA 	in 	the
“Introduction,” Houston does not appear to state a claim under the FCRA.
Nonetheless, reading Houston’s complaint liberally, as this Court is required to do,
the Court will consider Houston’s race discrimination, hostile work environment,
and retaliation claims as being alleged under Title VII, the FCRA, and § 1981,
particularly since the analytical framework under all three statutes is the same.3
MDI filed a motion to dismiss on the following grounds: 	(1) 	the Title VII
claims are time-barred; (2) Houston’s hostile work environment and wrongful
3 See e.g., Harper v. Blockbuster Ent. Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (“The Florida
courts have held that decisions construing Title VII are applicable when considering claims under
the [FCRA], because the Florida act was patterned after Title VII.”); see also Martinez-Lopez v.
GFA Alabama, Inc., 2025 WL 2503137, at *18 (N.D. Ga. Aug. 28, 2025) (“It is well established
in the Eleventh Circuit that Title VII and Section 1981 ‘have the same requirements of proof and
use the same analytical framework.’”) (citing Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998)); Carter v. Fla. Auto. Servs. LLC, 2014 WL 3385048, at *8 (M.D. Fla. July
10, 2014) (“The same [Title VII] standard also applies to hostile work environment claims under
the Florida Civil Rights Act.”); Smith v. City of Fort Pierce, 565 F. App’x 774, 776 (11th Cir.
2014) (analyzing plaintiff’s Title VII, FCRA, § 1981, and § 1983 retaliation claims under the same
Title VII framework); Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004)
(explaining retaliation claims brought under the FCRA are analyzed under the same framework as
those brought under Title VII).
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 4 of 21

Page 5 of 21
Case No. 3:25cv1338-TKW-HTC
termination claim are outside the scope of the EEOC complaint; (3) Houston has
failed to state a claim for race discrimination or retaliation; and (4) Florida does not
recognize a cause of action for wrongful termination.
As discussed below, the undersigned agrees that Houston’s Title VII claims
are time-barred because Houston filed this action more than 90 days after he received
the EEOC’s right-to-sue letter. The undersigned also agrees Houston fails to state a
claim for discrimination or retaliation under either the FCRA or § 1981, and there is
no common law claim under Florida law for wrongful termination of an at-will
employee.
A. 	Houston’s Title VII Claims are Time-Barred
To be timely filed, a plaintiff must file suit under Title VII within ninety (90)
days after receiving a right-to-sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1).
The 90-day period begins to run “upon the claimant’s receipt of the right-to-sue
letter.” Williams v. Ga. Dep’t of Def. Nat’l Guard Headquarters, 147 F. App’x 134,
136 (11th Cir. 2005). If a plaintiff does not state the date he received the right-to-
sue letter in his complaint, a court presumes the plaintiff received the letter three
days after it was issued. See Winsor v. Home Depot U.S.A., Inc., 743 F. App’x 335,
337 (11th Cir. 2018) (noting “when the district court granted the motion to dismiss,
it did not err in presuming … the letter was received three days” after it was issued)
(citing Kerr v. McDonald’s Corp., 427 F.3d 947, 953 n.9 (11th Cir. 2005)).
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 5 of 21

Page 6 of 21
Case No. 3:25cv1338-TKW-HTC
According to MDI, the 90-day deadline for Houston to file a Title VII claim
ran on July 31, 2025. 	See Doc. 10 at 1. 	MDI’s calculation, however, does not
include the 3-day presumption. Considering the 3-day presumption, Houston’s 90-
day deadline expired on August 4, 2025, rather than July 31.4 Regardless, Houston
did not file suit until August 12, 2025, after the deadline ran. Thus, Houston’s claim
is untimely.
In his opposition, Houston admits he “filed his Complaint in person at the
Clerk’s Office on August 12, 2025, only six days beyond the [90-day] deadline.”
Doc. 14 at 2 (emphasis added). Houston argues, however, that equitable tolling of
the limitations period applies, because (1) he tried to file the complaint with the
CM/ECF e-filing system on August 6, 2025,5 but was unable to do so because the
system “restricts filings from non-attorney accounts,”6 (2) he “acted diligently and
in good faith” to try to resolve the matter with MDI between August 6 and August
12, pre-suit; and (3) he was trying to retain counsel before filing suit. Id.
4 Ninety days after May 5, 2025, was August 3. However, August 3 was a Sunday, and therefore
Houston’s deadline would have been the next business day, August 4.
5 Houston alleges in his opposition that he received the EEOC right-to-sue letter on May 8, 2025,
and thus, contends he had until August 6, 2025, to file suit. As an initial matter, Houston cannot
amend the allegations in the complaint through an opposition to a motion to dismiss. See Eiras v.
Florida, 239 F. Supp. 3d 1331, 1342 (M.D. Fla. 2017) (stating “it is axiomatic that a plaintiff
cannot amend the complaint by arguments of counsel made in opposition to a motion to dismiss”)
(citation omitted). Regardless, even if the Court were to accept the May 8, 2025 receipt date, the
suit is still untimely filed.
6 Despite making this admission, Houston certified he “electronically filed” the complaint on
August 6, via the CM/ECF system. See Doc. 1 at 7.
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 6 of 21

Page 7 of 21
Case No. 3:25cv1338-TKW-HTC
Although equitable tolling can excuse a plaintiff’s late filing, 	see e.g.,
Goldsmith v. City of Atmore, 996 F.2d 1155, 1161 (11th Cir. 1993) (applying
equitable tolling to Title VII’s 90-day requirement), it is an extraordinary remedy a
court should extend only sparingly. See Justice v. United States, 6 F.3d 1474, 1479
(11th Cir. 1993). “A party seeking equitable tolling must prove that (1) he has been
pursuing his rights diligently and (2) some extraordinary circumstance stood in his
way and prevented him from timely filing.” 	See Winsor, 743 F. App’x at 338
(internal citation omitted). 	The Eleventh Circuit “has defined extraordinary
circumstances narrowly,” Jackson v. Astrue, 506 F.3d 1349, 1356 (11th Cir. 2007),
finding such circumstances only where “(1) a state court action is pending; (2) the
defendant concealed acts giving rise to a Title VII claim; or (3) the defendant misled
the employee about the nature of his rights under Title VII.” Manning v. Carlin, 786
F.2d 1108, 1109 (11th Cir. 1986).
Here, Houston is not entitled to equitable tolling.7 First, he has not shown he
was diligent in pursuing his rights. 	To the contrary, he did not attempt to file the
7 Houston also argues equitable tolling is a fact-intensive inquiry “that cannot be resolved on a
motion to dismiss,” citing Booth v. Carnival Corp., 522 F.3d 1148 (11th Cir. 2008). Houston
misunderstands and misinterprets Booth’s procedural posture. In Booth, a wrongful death action,
the district court held a contractual limitations period was subject to equitable tolling during
pendency of a parallel suit in state court. Booth, 522 F.3d at 1149. The district court nonetheless
certified an interlocutory appeal, acknowledging the facts of the case “present[ed] a close
question” as to whether equitable tolling was warranted. Id. The Eleventh Circuit affirmed the
district court’s ruling. Id. There is nothing in Booth suggesting a district court cannot decide
whether equitable tolling applies on a motion to dismiss. 	And other cases cited by Houston
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 7 of 21

Page 8 of 21
Case No. 3:25cv1338-TKW-HTC
complaint until August 6, the day the statute was set to expire (by his calculation).
He also attempted to file the complaint using the CM/ECF system without first
determining whether he even had access to the system. Moreover, he did not try to
retain counsel until after August 6. Doc. 1 at 2-3.
Second, even if Houston had pursued his rights diligently, that alone “is not
sufficient to prevail on the issue of equitable tolling.” Justice, 6 F.3d at 1479. “As
a general rule, equitable tolling is a remedy reserved for circumstances that are ‘truly
beyond the control of the plaintiff.’” Portis v. World Omni Fin., 2000 WL 726220,
at *2 (S.D. Ala. May 16, 2000) (internal citations omitted). Houston does not show
extraordinary circumstances prevented him from meeting the deadline. 	Indeed,
Houston’s untimely filing was entirely within his control. 	The fact that Houston
could not file documents on the CM/ECF system was not due to “technical issues”
or “technicalities,” it was because he is not an attorney—something Houston should
have known. This Court’s Local Rules, which are available online and which pro
se litigants are charged with knowledge and notice of, specifically exclude a pro se
party from the electronic filing requirements. See N.D. Fla. Loc. R. 5.4(A).
indicate the issue can be addressed on a motion to dismiss. See, e.g., Justice, 6 F.3d at 1477-80
(affirming district court’s refusal to apply equitable tolling in response to motion to dismiss based
on the statute of limitations and noting equitable tolling does “not extend to what is at best a garden
variety claim of excusable neglect”).
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 8 of 21

Page 9 of 21
Case No. 3:25cv1338-TKW-HTC
Moreover, the Frequently Asked Questions for CM/ECF posted on this
Court’s website specifically states, “electronic case filing is available to attorneys
admitted to practice” in this District and “pro se parties are authorized to file
pleadings in paper form.” 	See https://www.flnd.uscourts.gov/faqs/cm_ecf. 	And
Houston’s attempts to resolve the matter pre-suit also do not toll the statute of
limitations. See Portis, 2000 WL 726220, at *2 (finding plaintiff’s efforts to obtain
legal counsel insufficient to permit equitable tolling); see also Rodgers v. DeJoy,
2024 	WL 	1055091, 	at 	*1 	(N.D. 	Fla. 	Mar. 	11, 	2024) 	(adopting 	report 	and
recommendation over objections because inability to obtain legal representation is
not an extraordinary circumstance that would excuse plaintiff’s failure to file suit
within 90 days).
Because Houston did not file this action until more than 90 days after he
received the right-to-sue letter, his discrimination, retaliation, and hostile work
environment claims under Title VII are time-barred and should be dismissed with
prejudice.
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 9 of 21

Page 10 of 21
Case No. 3:25cv1338-TKW-HTC
B. 	Houston Fails to State a Claim for Racial Discrimination Under
Either the FCRA or § 1981
Unlike Houston’s Title VII claims, Houston’s discrimination claims under the
FCRA and § 1981 are not time-barred.8 However, Houston has failed to state a claim
for discrimination under any of those statutory regimes because he has failed to
allege facts sufficient to show the existence of either direct or circumstantial
evidence of discrimination.
To state a claim for racial discrimination under the FCRA, a plaintiff must
“provide 	enough 	factual 	matter 	(taken 	as 	true) 	to 	suggest 	intentional 	race
discrimination.” Surtain v. Hamlin Terrace Foundation, 789 F.3d 1239, 1246 (11th
Cir. 2015); see also Smith v. Kendall, 2024 WL 4442040, at *4 (5th Cir. 2024)
(quoting Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (stating plaintiff
must plead two “ultimate elements”: (1) an adverse employment action; (2) taken
against a plaintiff “because of her protected status”)). 	Similarly, to state a claim
under § 1981, a plaintiff must allege (1) intentional race discrimination (2) that
caused a contractual injury. Ziyadat v. Diamondrock Hosp. Co., 3 F.4th 1291, 1296
(11th Cir. 2021). A contractual relationship, as a prerequisite to contractual injury,
includes an at-will employment relationship. See e.g., Knight v. Palm City Millwork
8 Under the FCRA, Houston has one year from the date he received the right to sue letter to file
suit. See Morrison v. Synovus Bank, 2025 WL 2207409, at *7 (S.D. Fla. Aug. 4, 2025); see Fla.
Stat. § 760.11(5). 	The statute of limitations for a § 1981 claim is 4 years from the wrongful
conduct. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004).
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 10 of 21

Page 11 of 21
Case No. 3:25cv1338-TKW-HTC
& Supply Co., 78 F. Supp. 2d 1345, 1348 (S.D. Fla. 1999) (“Because the Court finds
that Florida law recognizes at-will employment agreements as contracts in the broad
legal sense of that term, and because a contrary ruling would frustrate the broad
remedial reach Congress intended when it amended § 1981, we hold that an at-will
employee under Florida law may maintain a § 1981 cause of action for employment
discrimination based on race.”).
A plaintiff may allege intentional discrimination by pleading the existence of
either direct or circumstantial evidence. 	See Lewis v. City of Union City (Lewis I),
918 F.3d 1213, 1220 & n.6 (11th Cir. 2019) (en banc). Direct evidence is evidence
that, “if believed, proves [the] existence of [discriminatory intent] without inference
or presumption.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 921 (11th Cir. 2018)
(quotation marks omitted, alterations in original). 	“Evidence that only suggests
discrimination, or that is subject to more than one interpretation, does not constitute
direct evidence.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997)
(citations omitted). “In contrast, circumstantial evidence merely suggests, but does
not prove, a discriminatory motive, and may be evaluated under the burden-shifting
test established in McDonnell Douglas Corp. v. Green.”9 Jefferson, 891 F.3d at 921-
22 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
9 The McDonnell Douglas framework “is an evidentiary standard, not a pleading requirement.”
See e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002).
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 11 of 21

Page 12 of 21
Case No. 3:25cv1338-TKW-HTC
As an initial matter, in his opposition, Houston conflates his claim for
discrimination with his claim for hostile work environment. 	Under the heading
“Plaintiff’s 	Complaint 	States 	Valid 	Claims 	for 	Race 	Discrimination 	and
Retaliation,” Houston argues he was “subjected to a racially hostile environment,
including being called the N-word by a coworker (“Angela”), and that Defendant
failed to take corrective action after he reported it.” Doc. 14 at 4. He contends this
conduct “constitutes severe and pervasive racial harassment” and cites to a case
involving a hostile work environment claim. 	Id. 	But even if the Court were to
consider the argument as one supporting a discrimination claim, it fails.
First, Redd’s use of the N-word outside of Houston’s presence in a single
instance is not direct evidence of discrimination. 	The Eleventh Circuit has
“repeatedly held that [isolated general racial remarks] are not direct evidence of
discrimination because they are either too remote in time or too attenuated because
they were not directed at the plaintiff.” 	Ross v. Rhodes Furniture, Inc., 146 F.3d
1286, 1291 (11th Cir. 1998) (emphasis omitted); 	see also E.E.O.C. v. Alton
Packaging Corp., 901 F.2d 920, 922, 924 (11th Cir. 1990) (holding that a production
manager’s statement, “you people can’t do a ------- thing right,” to a former black
employee was a “stray remark,” which did not constitute direct evidence of
discrimination by itself).
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 12 of 21

Page 13 of 21
Case No. 3:25cv1338-TKW-HTC
Second, as MDI argues, the comment was not made in the course of Houston’s
termination. “[I]solated stray comments … completely unrelated to the challenged
employment action do not constitute direct evidence of discrimination.” 	Plaisance
v. Travelers Ins. Co., 880 F. Supp. 798, 810 (N.D. Ga. May 20, 1994), aff’d, 56 F.3d
1391 (11th Cir. 1995); Michael’s v. Sasser’s Glass Works Inc., 662 F. Supp. 3d 1223,
1236 (S.D. Fla. 2023) (explaining “remarks that are not tied to a challenged
employment decision … do not qualify under our definition of direct evidence of
discrimination”) 	(emphasis 	in 	original) 	(quoting 	Robertson 	v. 	Riverstone
Cemeteries, LLC, 849 F. App’x 795, 801 (11th Cir. 2021)), aff’d, 2025 WL 588648
(11th Cir. 2025).
Third, the complained-of comment was not made by a decisionmaker. 	See
Melton v. I-10 Truck Ctr., Inc., No. 3:21CV3061-MCR-ZCB, 2023 WL 9106967, at
*10 (N.D. Fla. Nov. 28, 2023) (finding no direct evidence of discrimination where
remarks 	were 	not 	made 	when 	plaintiff 	was 	terminated 	nor 	made 	by 	the
decisionmaker); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.
1998), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006) (“remarks by non-decisionmakers or remarks unrelated to the
decisionmaking process itself are not direct evidence of discrimination”). Houston
asserts in his EEOC charge that he reported to “Mr. Peace, not Ms. Redd.” See Doc.
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 13 of 21

Page 14 of 21
Case No. 3:25cv1338-TKW-HTC
1-1 at 2. Likewise, in the complaint, Houston alleges that Peace told him to turn in
his keys and badge.
Second, although isolated general remarks, when combined with other
evidence, 	may 	constitute circumstantial evidence of discrimination, Houston’s
complaint contains no other evidence of discrimination. Houston does not allege the
existence of a comparator—which is one example of circumstantial evidence—and
his other complaints are unrelated to his race. For example, Houston alleges Peace
noticed Redd was “harsh” toward Houston but does not allege any facts suggesting
Redd’s behavior was based on Houston’s race. 	See Ceus v. City of Tampa, 803 F.
App’x 235, 247 (11th Cir. 2020) (explaining “Title VII does not prohibit or regulate
workplace issues of civility or personality conflicts.”) (citing Burlington, 548 U.S.
at 68). He alleges Redd told him, “If you don’t want to follow the rules, you should
get a greeter job at Walmart,” but does not allege Redd made that comment because
of his race. 	See Greywoode v. Sci. Applications Int’l Corp., 943 F. Supp. 2d 1355,
1371 (M.D. Ala. 2013) (finding a coworker’s communications, “while insensitive
and perhaps unprofessional, do not contain any racial or ethnic statements, insults,
or overtones; they evidence nothing more than disagreements and discord among co-
workers, which is not actionable”). “Unfair treatment, absent discrimination based
on race, sex, or national origin, is not an unlawful employment practice under Title
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 14 of 21

Page 15 of 21
Case No. 3:25cv1338-TKW-HTC
VII.” Coutu v. Martin County Bd. of Cnty. Comm’rs, 47 F.3d 1068, 1074 (11th Cir.
1995) (emphasis in original).
Because Houston fails to allege facts supporting the existence of either direct
or circumstantial evidence of discrimination, he has failed to state a claim for
discrimination under the FCRA and § 1981 (or Title VII). 	See Banks v. Cypress
Chase Condo. Assoc. B., Inc., 616 F. Supp. 3d 1316, 1321 (S.D. Fla. 2022) (“While
the Eleventh Circuit precedent does not require that [plaintiff] set out a prima facie
case under McDonnell Douglas, to survive a 12(b)(6) motion, she still must plead
sufficient facts to raise a plausible inference of discrimination. Her single allegation
about the use of the phrase “you people” does not do that.”).
C. 	Houston Fails to State a Retaliation Claim under the FCRA or
§ 1981
Houston also seeks to recover on a claim of retaliation under the FCRA and
§ 1981. To state a retaliation claim under either statutory scheme, a plaintiff must
allege (1) he engaged in a statutorily protected activity; (2) he suffered an adverse
employment action; and (3) a causal link exists between the protected activity and
the adverse action. Raney v. Vinson Guard Svc, Inc., 120 F.3d 1192, 1196 (11th Cir.
1997); see also Avila v. Childers, 212 F. Supp. 3d 1182, 1189 (N.D. Fla. Sept. 30,
2016). 	An employee engages in protected activity if he either: (1) opposes “any
practice made unlawful under the relevant statutes” or (2) makes a charge, testifies,
assists, or participates “in any manner in an investigation, proceeding, or hearing
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 15 of 21

Page 16 of 21
Case No. 3:25cv1338-TKW-HTC
under the statutes.” 	Smith v. City of Fort Pierce, 565 F. App’x 774, 777 (11th Cir.
2014) (internal citation omitted) (quoting 42 U.S.C. § 2000e-3(a)). 	To establish
causation, a plaintiff must allege that the protected activity was the “but-for” cause
of the adverse employment action. City of Fort Pierce, 565 F. App’x at 778.
Here, although Houston alleges in conclusory fashion that he “engaged in
protected activity by complaining about harassment,” (Doc. 1 at 5), he alleges no
facts in support. For example, he does not identify what he reported, when he made
the report, or to whom he made the report. Houston’s conclusory allegation, without
more, is insufficient to show he engaged in protected activity. 	See Raja v.
Englewood Comm. Hosp., Inc., 2013 WL 4016518, at *5 (M.D. Fla. Aug. 6, 2013)
(plaintiff failed to state a claim where allegations were entirely conclusory regarding
the nature of the protected activity, the timing of the complaints, or the reaction to
the complaints by the defendant); Raphael v. JM Fam. Enters., Inc., 2022 WL
22883519, at *6 (S.D. Fla. Jan. 11, 2022) (“Plaintiff does not plead when she
complained about the allegedly ‘discriminatory conduct.’ Without that information,
the Third Amended Complaint fails to state a causal connection between the
protected activity and her termination.”).
Regardless, even assuming Houston reported Redd’s alleged racial slur, such
action does not constitute protected activity because “a racially derogatory remark
by a co-worker, without more, does not constitute an unlawful employment
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 16 of 21

Page 17 of 21
Case No. 3:25cv1338-TKW-HTC
practice.” 	See Small v. City of Hollywood, 661 F. Supp. 3d 1187, 1205 (S.D. Fla.
2023) (finding single comment that “African Americans are lazy” while an “uncalled
for, ugly, racist statement,” “without more … does not rise to the level of an unlawful
employment practice”) (citing Little v. United Techs., Carrier Transicold Div., 103
F.3d 956, 961 (11th Cir. 1997)).
Similarly, Houston’s conclusory allegation that he engaged in protected
activity by “exercising his right to medical leave” (Doc. 1 at 5) does not support a
retaliation claim. 	While Houston claims to have sought sick leave, Houston does
not allege he had a right to leave, that he was denied leave, or that he reported or
complained of such a denial. 	Raphael, 2022 WL 22883519, at *6 (“The failure to
plead the details of Plaintiff’s protected activity prevents her from also pleading that
her protected activity was the ‘but-for’ cause of the adverse action.”). 	Assuming
Houston was entitled to “medical leave” under some statutory regime, exercising a
right is not the same as opposing or challenging a wrongful employment practice.
See Small, 661 F. Supp. 3d at 1205 (“An employee claiming to have engaged in
protected activity … must have communicated the employee’s belief that the
employer was engaged in discrimination.”).
And, even if Houston had a statutory right to medical leave, had been denied
medical leave, and had complained about it, this is not the type of unlawful practice
protected under § 1981 or the FCRA. 	To constitute statutorily protected activity
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 17 of 21

Page 18 of 21
Case No. 3:25cv1338-TKW-HTC
capable of supporting a § 1981 retaliation claim, an employee’s complaint must
reasonably convey that he is opposing discrimination based specifically upon race,
versus some other type of discrimination or injustice generally. 	See Pennington v.
City of Huntsville, 261 F.3d 1262, 1265 n.1 (11th Cir. 2001); see also Bell v. City of
Auburn, Ala., 722 F. App’x 898, 900 (11th Cir. 2018) (“So, to constitute protected
activity under § 1981, a plaintiff would be required, in part, to subjectively believe
that the unlawful employment practice complained of was racial discrimination.”);
see also Stephen v. H. Lee Moffitt Cancer Ctr. & Research Inst. Lifetime Cancer
Screening Ctr., Inc., 259 F. Supp. 3d 1323, 1341 (M.D. Fla. 2017) (noting that “to
state a claim for retaliation pursuant to § 1981, the protected activity must have been
the type that § 1981 was enacted to prevent i.e., racial discrimination in the making
and enforcement of contracts”). 	And, while the FCRA is broader in scope than §
1981, a request for (or denial of) sick leave is also not an activity protected under
the FCRA. See Edom v. Chronister, 2021 WL 4244845, at *15 (M.D. Fla. Sept. 17,
2021) (“While FCRA is not so narrow, it too has a limited scope. It only applies to
a person who opposed an ‘employment practice’ that is unlawful ‘under this section.’
§ 760.10(7), Fla. Stat. The FCRA is almost exclusively addressed to claims of race
or sex discrimination in employment.”).
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 18 of 21

Page 19 of 21
Case No. 3:25cv1338-TKW-HTC
Because Houston has failed to allege facts sufficient to show that he engaged
in protected activity, his retaliation claims under the FCRA and § 1981 should be
dismissed without prejudice.
D. 	Houston Has Not Stated a Claim for Hostile Work Environment
MDI argues Houston’s claim for hostile work environment is outside the
scope of the EEOC charge. 	The Court, however, does not need to reach that
argument because such a claim under Title VII is time-barred. 	And to the extent
Houston is seeking to assert a hostile work environment claim under the FCRA and
§ 1981, he has failed to state a claim because a single instance of discriminatory
conduct is not “objectively severe.” See Adams v. Austal, USA, LLC, 754 F.3d 1240,
1248 (11th Cir. 2014) (“In determining whether the harassment was objectively
severe, the Supreme Court and the Eleventh Circuit have identified the following
factors for consideration: ‘(1) the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a mere
offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee’s job performance.’”).
E. 	There is No Claim for Wrongful Termination Under Florida Law
for an At-Will Employee
Finally, Houston seeks to allege a claim against MDI under Florida law for
wrongful termination. 	This claim, however, fails as a matter of law because it is
undisputed that Houston was an at-will employee and as such he may not recover
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 19 of 21

Page 20 of 21
Case No. 3:25cv1338-TKW-HTC
for wrongful termination under Florida’s common law. 	See Muller v. Stromberg
Carlson Corp., 427 So. 2d 266, 270 (Fla. 2d DCA 1983); see also Selby v. Tyco
Healthcare Grp., L.P., 301 F. App’x 908, 910 (11th Cir. 2008) (“The district court
did not err in finding [Plaintiff] was an at-will employee and therefore not eligible
to recover under Florida law for wrongful termination.”).10
IV. 	CONCLUSION
For the 	reasons 	set 	forth 	above, MDI’s 	motion 	to 	dismiss 	should 	be
GRANTED and Houston’s claims dismissed.
Accordingly, it is RECOMMENDED:
1. 	That MDI’s motion to dismiss (Doc. 10) be GRANTED IN PART.
2. 	That Houston’s claims under Title VII and for wrongful termination be
DISMISSED WITH PREJUDICE.
3. 	That Houston’s claims under the FCRA and § 1981 be DISMISSED
WITHOUT PREJUDICE.
4. 	That the clerk close the file.
At Pensacola, Florida, this 5 th day of November, 2025.
/s/ Hope Thai Cannon
HOPE THAI CANNON
UNITED STATES MAGISTRATE JUDGE
10 Because Houston may not recover for wrongful termination under state law, there is no reason
to analyze whether his wrongful termination claim is within the scope of Houston’s EEOC charge,
as argued by MDI.
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 20 of 21

Page 21 of 21
Case No. 3:25cv1338-TKW-HTC
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within
fourteen (14) days of the date of the Report and Recommendation. Any different
deadline that may appear on the electronic docket is for the court’s internal use only
and does not control. An objecting party must serve a copy of its objections upon
all other parties. A party who fails to object to the magistrate judge’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1.
Case 3:25-cv-01338-TKW-HTC Document 15 Filed 11/05/25 Page 21 of 21