Diaz v. Sheriff of Miami-Dade County et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-cv-20795-BLOOM/Elfenbein
CHERYL DIAZ,
Plaintiff,
v.
MIAMI-DADE COUNTY and
MAJOR BENNY SOLIS,
Defendants.
________________________________/
ORDER ON MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendants Miami-Dade County (the “County”)
and Major Benny Solis’ (“Solis”) (together, “Defendants”) Joint Motion for Final Summary
Judgment and Supporting Memorandum of Law (“Motion”), ECF No. [38]. Plaintiff Cheryl Diaz
filed a Response in Opposition (“Response”), ECF No. [43], to which Defendants filed a Reply,
ECF No. [51]. The Court has carefully reviewed the Motion, the submissions in support and in
opposition, the record, and is otherwise fully advised. For the reasons that follow, Defendants’
Motion is granted.
I. 	BACKGROUND
At all times material to this case, Plaintiff was employed as a Police Lieutenant with the
Miami-Dade Police Department (“MDPD”). ECF No. [37] at ¶ 1.1 Based on the alleged
1 Effective January 7, 2025, the MDPD ceased to exist as a department of Miami-Dade County upon the
establishment of the Miami-Dade Sheriff’s Office (“MDSO”). ECF No. [37] at ¶ 1 n.1. This resulted in a
transfer of law enforcement services from Miami-Dade County to the Miami-Dade Sheriff’s Office. Id.
Therefore, beginning on January 7, 2025, Plaintiff was no longer a County employee and was instead
employed as a deputy sheriff of MDSO. Id. However, at all times relevant to this case, Plaintiff was
employed by MDPD and the County. Id.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 1 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
2
discriminatory and retaliatory treatment experienced during her employment, Plaintiff filed her
Amended Complaint asserting the following claims: Gender Discrimination under Title VII of the
Civil Rights Act of 1991 (“Title VII”) (Count I), Gender Discrimination under the Florida Civil
Rights Act (“FCRA”), Fla. Stat §§ 760.10 et seq. (Count II), Race Discrimination under Title VII
(Count III), Race Discrimination under the FCRA (Count IV), Retaliation under Title VII (Count
V), Retaliation under the FCRA (Count VI), and Retaliation under 42 U.S.C. § 1983 (Count VII).
ECF No. [15].
Defendants now seek summary judgment on all claims for the following four reasons:
(1) the majority of Plaintiff’s allegations before September 22, 2023, including her
removal from the Field Training Coordinator position on September 18, 2023, are
time-barred due to Plaintiff’s failure to exhaust administrative remedies; (2) Major
Solis is entitled to qualified immunity on Count VII because Plaintiff has failed to
allege any legal basis for a § 1983 retaliation claim against him individually; (3)
Plaintiff has failed to establish a prima facie case of gender or race discrimination,
or retaliation; and (4) Plaintiff fails to show that the County’s legitimate,
nondiscriminatory, non-retaliatory, reasons for its employment actions were a
pretext for discrimination or retaliation.
ECF No. [38] at 2.
Plaintiff disagrees and contends that “Plaintiff’s evidence, viewed collectively and in the
light most favorable to her, create[s] a triable issue whether Defendants discriminated and
retaliated against her.” ECF No. [43] at 21. According to Plaintiff, she has “presented
overwhelming temporal proximity, direct evidence of retaliatory animus, powerful comparator
evidence, pattern evidence, statistical evidence, and pretext evidence.” Id.
A. Material Facts
Based on the parties’ briefings, the statements of material facts, and the evidence in the
record, the following facts are not genuinely in dispute unless otherwise noted by the Court.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 2 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
3
Plaintiff, a White female, was initially hired as a police officer by the MDPD in 2000. ECF
No. [37] at ¶ 1. On January 25, 2021, Plaintiff was promoted to her current rank of Police
Lieutenant and assigned to the South District.2 Id. at ¶ 2.
The County is a political subdivision of the State of Florida, and it operated the MDPD
through January 6, 2025. Id. at ¶ 3. Solis became a police officer in 2001 and ultimately served as
the major of the MDPD South District from 2022 through January 2025. Id. at ¶ 4.
Between 2022 and 2025, Plaintiff’s chain-of-command at the South District was comprised
of 	the 	following 	individuals: 	Captain 	Joseph 	Meyer 	and 	Captain 	Ryan 	Howett 	(2022–
2024)/Captain Alexander Diaz de Villegas (2024–2025), Major Benny Solis (2022–2025), Chief
Gina Beato-Dominguez (2022–2024)/Chief Eric Garcia (2024–2025), and Director Stephanie
Daniels (2022–2025). Id. at ¶ 5.
a. 	Major Solis Selects Plaintiff for the Field Training Coordinator
Position
In 2022, Plaintiff interviewed for the position of Field Training Coordinator (“FTC”) of
the MDPD South District because the field training program was, in her words, her “number one
passion in the agency.” Id. at ¶ 6. Plaintiff was interviewed by Captain Alan Sanchez and Captain
Ryan Howett, both of whom conveyed to her that she had done very well in the interview. Id. at ¶
7.
Ultimately, Major Solis was responsible for selecting the FTC, and he decided to select
Plaintiff, though Plaintiff argues that Solis told her that the position was “tentative” and subject to
“intense scrutiny.” Id. at ¶ 8; ECF No. [42] at ¶ 8. Nonetheless, on December 22, 2022, Solis
2 “During the relevant time period, MDPD was a para-military police organization consisting of the
following sworn ranks from lowest to highest: Police Officer, Sergeant, Lieutenant, Captain Major, Chief,
Assistant Director, and Director.” Id. at 2 n.2.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 3 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
4
informed Plaintiff via memorandum that she was being transferred to the FTC position effective
December 26, 2022. ECF No. [37] at ¶ 9.
b. 	Plaintiff’s Performance as FTC
In February 2023, Plaintiff received an annual performance evaluation covering the period
of January 2022 to January 2023. Id. at ¶ 10. In that evaluation, her overall performance was
described as “above satisfactory.” Id. However, Captain Howett noted issues with her managerial
skills throughout the evaluation, including “matters concerning personnel with some of her
subordinates which Lieutenant Diaz has not brought to my attention, but she should have,” as well
as “multiple issues with some of her subordinates, which she has not been able to resolve
successfully. To the contrary, the methods in which Lieutenant Diaz has attempted to address what
she perceived to be a problem, have only inflamed the situation . . . [and] aggravated the
relationship between her and these subordinates.”3 Id.
On April 14, 2023, Captain Howett and Captain Meyer presented Plaintiff with a Record
of Counseling (“ROC”) stemming from Plaintiff’s failure to timely notify the Professional
Compliance Bureau of a March 2023 use of force incident involving a taser. Id. at ¶ 11. The ROC
stated that, given Plaintiff’s role and experience, her failure to report the incident was “an
3 Plaintiff disputes this statement of fact as “misleading” because it fails to provide the context that her
performance reviews prior to becoming an FTC had been “above satisfactory” with no comments regarding
her “interpersonal skills.” ECF No. [42] at ¶ 10. She also points out that it leaves out information regarding
the treatment of her male predecessors and subordinates. Id.
However, Plaintiff’s facts do not actually dispute what Defendants say but instead supplement it with
additional information. And to properly place a material fact in dispute, Plaintiff must provide specific
“evidentiary citations supporting [its] position . . . .” S.D. FLA. L.R. 56.1(b)(2). Accordingly, where Plaintiff
has not properly placed such facts in dispute by providing evidentiary citations to support the dispute, those
facts are deemed admitted. Davis v. Brown, No. 1:16-CV-00735, 2019 WL 1206431, at *4 (N.D. Ga. Mar.
14, 2019) (applying the Northern District of Georgia’s substantially similar local rule and deeming facts
admitted where “Plaintiff simply denied Defendant’s claims of undisputed facts or stated she ‘is without
sufficient information to respond’ to various paragraphs in Defendants’ statement of material fact.”). Thus,
where Plaintiff nominally “disputes” a statement of fact but merely seeks to supplement it with additional
information, the Court will deem the statement of fact admitted.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 4 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
5
unacceptable lapse in judgment.” Id. An ROC is not considered disciplinary action in the MDPD
and does not lead to a loss of pay or benefits. Id. at ¶ 12.
In August 2023, Plaintiff received another performance review for the July 2022 to July
2023 period. Id. at ¶ 13. Again, her overall evaluation was “above satisfactory,” but Captain Meyer
noted concerns regarding her managerial skills.4 Id.
In July 2024, Plaintiff received a third annual performance review for the July 2023 to July
2024 period. Id. at ¶ 14. In that review, Plaintiff’s overall evaluation was “satisfactory,” but
Captain Diaz de Villegas noted that Plaintiff’s judgment “need[ed] improvement,” describing
several incidents that supported that characterization. Id. First, the evaluation pointed to Plaintiff’s
decision to draft and circulate a petition to several Field Training Officers (“FTOs”) under her
command that called for the removal of Sergeant Maria Bustamante, the FTOs’ direct supervisor;
Plaintiff admitted to doing so. Id. at ¶¶ 15, 16. Second, the evaluation noted that Plaintiff “had
been submitting earned Compensatory Time for approval” without telling her supervisor that she
had exceeded the maximum allowed hours. Id. at ¶ 18. Third, the evaluation noted that, during a
counseling 	session 	with 	Captain 	Diaz 	de 	Villegas, 	Plaintiff 	had 	become 	“disrespectful,
argumentative, and insubordinate.” Id. at ¶ 19. Fourth, the evaluation noted that on several
occasions during the rating period, Plaintiff “improperly interpreted and/or failed to apply the
proper Departmental policy, procedure, or rule.” Id. at ¶ 20.5
4 Plaintiff characterizes the evaluation as “contain[ing] contradictory statements” and argues that it failed
to capture (i) Plaintiff being prohibited from disciplining her subordinate, Sergeant Bustamante, despite
documented insubordination, (ii) Plaintiff repeatedly requesting permission to discipline and remove
Sergeant Bustamante, and (iii) that Captain Meyer himself suggested that Plaintiff use a petition to remove
Sergeant Bustamante. ECF No. [42] at 13. Again, however, these matters—even if true—do not actually
dispute the statements of fact presented by Defendants as to what the evaluation said.
5 Again, Plaintiff does not meaningfully dispute that the July 2024 evaluation occurred or said what
Defendants allege it said, but she instead argues that the evaluation contained “multiple factual and policy
violations that undermine its legitimacy.” ECF No. [42] at ¶¶ 14–20. For instance, Plaintiff alleges, Captain
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 5 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
6
c. 	Major Solis Removes Plaintiff from the FTC Position
In August 2023, Major Solis informed Plaintiff that she was being removed from the FTC
position. Id. at ¶ 21. The memorandum stated that the reasons for her removal included
“Effectiveness and/or Efficiency of Unit” and “Operational Necessity.” Id. at ¶ 23.6
d. 	Plaintiff’s DARs7 for 5-Days Suspensions
In September 2023, Captain Joseph Meyer initiated a DAR for Plaintiff’s “poor judgment
and disrespectful behavior towards” Sergeant Bustamante. Id. at ¶ 26. The DAR specifically cited
Plaintiff’s petition, focusing on the fact that Plaintiff failed to obtain chain-of-command approval,
“publicly undermined a subordinate’s authority, and interfered with unit operations.” Id. Plaintiff
was served with the DAR in November 2023 and was suspended for five days in January 2024 as
a result. Id.
In early 2024, Captain Alexander Diaz de Villegas took over as Plaintiff’s direct
supervisor. Id. at ¶ 34. In May 2024, Captain Diaz de Villegas initiated a DAR for Plaintiff’s
“insubordination and violati[on of] the chain of command during a counseling meeting.” Id. at ¶ ¶
35. During the counseling meeting in question, Plaintiff referred to Captain Diaz de Villegas as
“sweetie” and further “interrupted the meeting by making a direct call to the MDPD Director
Diaz de Villegas failed to provide Plaintiff with 90 days’ notice that her performance was “below
satisfactory” as required by policy. Id. In addition, the evaluation criticized Plaintiff for (i) circulating a
petition to remove Sergeant Bustamante without acknowledging that the petition was Captain Meyer’s idea
and (ii) exceeding compensatory time limits without acknowledging that Plaintiff had a greater workload
than was imposed on male FTCs before and after her. Id. Furthermore, the evaluation references Plaintiff
calling Captain Diaz de Villegas “sweetie” during a May 1, 2024 meeting, but Plaintiff immediately
apologized. Id. Finally, Plaintiff was never given an opportunity to improve before receiving “needs
improvement” ratings, which Plaintiff says violates departmental policy. Id.
6 Plaintiff disputes the stated reasons, characterizing them as “conclusory and pretextual” in light of her
exemplary performance as FTC. ECF No. [42] at ¶ 24.
7 Though the parties do not define the term “DAR,” the Court understands the term to refer to a
“Disciplinary Action Report.” Johnson v. Miami-Dade Cnty., 948 F.3d 1318, 1323 (11th Cir. 2020).
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 6 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
7
despite being told not to do so.” Id. Plaintiff was served with the DAR in June 2024, resulting in
5 days of suspension. Id.
e. 	Plaintiff’s Complaints
In March 2023, Plaintiff “sent an email to Captain Howett complaining about her treatment
since being selected as FTC, including that she had not been allowed to discipline or remove
Sergeant Bustamante from the field training program.” Id. at ¶ 21. Plaintiff alleges that her email
explicitly questioned whether her treatment was “because I was a woman” and complained about
her treatment relative to her male predecessor. ECF No. [42] at ¶ 21.8
In September 2023, Plaintiff submitted a written complaint of discrimination to the Miami-
Dade County Office of Human Rights and Fair Employment Practices (“HRFEP”). ECF No. [37]
at ¶ 30. She then filed the complaint with the MDPD Professional Compliance Bureau (“PCB”).
Id. In the 26-page complaint, she alleged discrimination and retaliation based on race and gender.
Id. at ¶ 31. She also claimed “exclusion from privileges, heavier workload, denial of support, and
threats of removal if she continued to complain.” Id. She requested reinstatement as FTC, back
pay, discipline for those she accused, and protection from further retaliation. Id. The PCB closed
the investigation of Plaintiff’s complaint, finding no violation of law or policy and electing to take
no further action. Id. at ¶ 33.9
f. 	Plaintiff’s EEOC Charge
In July 2024, Plaintiff failed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”). Id. at ¶ 40.
8 The Court is unable to locate the precise statement, “because I was a woman” in the email. However,
Plaintiff does ask, “Is the fact that I am a female supervisor the reason that you feel subordinates do not
need to be respectful towards me . . . ?””ECF No. [37-11] at 3.
9 Plaintiff admits that PCB closed the investigation but argues that this represented a “cursory dismissal”
constituting retaliation. ECF No. [42] at ¶ 33.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 7 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
8
g. 	Overall Timeline
The Court provides an abbreviated timeline of the events relevant to this case. For each
event, it is undisputed that the actions occurred, but the parties dispute the implications of each
occurrence. The relevant events are as follows:
• 	December 26, 2022: Plaintiff begins serving as FTC, id. at ¶ 9;
• 	February 2023: Plaintiff receives an annual performance evaluation of “above
satisfactory” for the period January 2022 to January 2023, id. at ¶ 10;
• 	March 10, 2023: Plaintiff sends her initial complaint via email to Captain Howett,
id. at ¶ 21;
• 	April 14, 2023: Captain Howett and Captain Meyer present Plaintiff with a Record
of Counseling, id. at ¶ 11;
• 	August 2023: Plaintiff receives an annual performance evaluation of “above
satisfactory” for the period July 2022 to July 2023, id. at ¶ 13;
• 	August 21, 2023: Plaintiff circulates a petition calling for Sergeant Bustamante’s
removal, ECF No. [37-10];
• 	August 30, 2023: Major Solis informs Plaintiff that she is being removed from her
FTC position, ECF No. [37] at ¶ 23;
• 	August 30, 2023: Plaintiff brings her complaints to Chief Beato-Dominguez, ECF
No. [42] at ¶¶ 41–42;
• 	September 7, 2023: Captain Meyer initiates a DAR, resulting in a 5-day suspension
for Plaintiff, ECF No. [37] at ¶ 26;
• 	September 11–13, 2023: Plaintiff files her HRFEP/PCB complaint, id. at ¶ 30;
• 	April 24, 2024: Plaintiff brings her complaints to Chief Garcia, ECF No. [42] at ¶¶
14–20;
• 	April 24, 2024: A second Record of Counseling is issued, id. at ¶¶ 41–42;
• 	May 1, 2024: Plaintiff calls Captain Diaz de Villegas “sweetie” during a meeting,
id. at 14–20;
• 	May 3, 2024: Captain Diaz de Villegas initiates a DAR, resulting in another 5-day
suspension for Plaintiff, ECF No. [37] at ¶ 35;
• 	July 18, 2024: Plaintiff files a Charge of Discrimination with the EEOC, id. at ¶ 40;
• 	July 23, 2024: Plaintiff receives an annual performance evaluation of “satisfactory”
for the period July 2023 to July 2024, id. at ¶ 14; ECF No. [42] at ¶ 44.
B. Disputed Facts
Plaintiff provides a list of additional “material facts in dispute.” ECF No. [42] at 10. Some
of these “facts” are not factual matters, but attempts to shoehorn legal conclusions into a statement
of fact. For instance, Plaintiff attempts to provide “evidence of pretext” and a “pattern and practice
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 8 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
9
of discrimination,” id. at 12, both of which implicate legal inquiry rather than purely factual
inquiry. Thus, the Court only addresses those matters that can be described as factual in nature.
First, Plaintiff states that she was assigned to a disparate workload. Id. at 10. Specifically,
she alleges that she “was the only FTC in the entire MDPD who was required to serve
simultaneously as platoon commander for three field training squads” while “handling payroll,
uses of force, traces, crashes, and yearly/monthly evaluations for all three squads.” Id. Indeed, she
alleges that neither her male predecessor nor her male successor were assigned such “dual
responsibilities.” Id. In addition, Plaintiff alleges that she “was assigned to additional labor-
intensive special projects . . . not assigned to other FTCs.” Id. According to Plaintiff, she
complained to Captain Howett and Major Solis about the excessive workload; in response, Major
Solis “threatened to remove her if she sent another email.” Id. at 11.
Second, Plaintiff points to other individuals whom she claims were treated better than she
was treated. Id. Plaintiff points first to Christian Campo, a Hispanic male who was appointed FTC
despite having questionable or insufficient qualifications. Id. Plaintiff alleges that Campo was
permitted to remove Segreant Bustamante from her position for the same complaints Plaintiff had
made, despite Plaintiff not being allowed to do so. Id. Plaintiff then references Segreant
Bustamante’s sworn statement in which the sergeant admitted “that she refused to follow
Plaintiff’s orders to sign orientation checklists.” Id. In response to this insubordination, Segreant
Bustamante received only informal counseling, whereas Plaintiff received a 5-day suspension for
alleged insubordination. Id. Finally, Plaintiff references Desiree Serrano, a Hispanic female, who
“was disciplined for insubordination with only a Record of Counseling,” while, again, Plaintiff
received two 5-day suspensions. Id.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 9 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
10
Third, Plaintiff turns to her relative performance. She notes that Lieutenant Grubbs, her
predecessor FTC, left the program eight months behind. Id. at 12. Then, during her time as FTC,
Plaintiff brought the program from eight months behind to current. Id. From there, Lieutenant
Campo, Plaintiff’s replacement, allowed the program to fall over ten months behind “despite
having fewer responsibilities” than Plaintiff. Id. Still, only Plaintiff was “removed and publicly
demoted back to uniform patrol with a 20% pay cut.” Id. According to Plaintiff, even Sergeant
Bustamante, upon removal, was allowed to transfer to a “specialized unit . . . rather than being
publicly demoted like Plaintiff.” Id. Furthermore, Plaintiff points out that she “had no history of
turning in late work or being counseled for such issues in 24 years of service until Captain Diaz
de Villegas arrived.” Id. at 13.
Plaintiff raises a few additional factual allegations that warrant mentioning. Plaintiff
references her own testimony, in which she described that White, non-Hispanic females make up
only 3% of the MDPD. Id. at 12. In her testimony, she also alleged that she told Captain Diaz de
Villegas and Major Solis about her EEOC complaint before the second DAR was initiated. Id. at
13. Plaintiff further alleges that Captain Diaz de Villegas forward her “discrimination complaints
emails to Major Solis or cc’d him.” Id.
II. 	LEGAL STANDARD
A. Rule 56(a) Summary Judgment Standard
A court may grant a motion for summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. C IV. P. 56(a). The parties may support their positions by citations to materials in the record,
including depositions, documents, affidavits, or declarations. See F ED. R. C IV. P. 56(c). “A factual
dispute is ‘material’ if it would affect the outcome of the suit under the governing law, and
‘genuine’ if a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 10 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
11
Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Liberty
Lobby, Inc., 477 U.S. at 24–48).
A court views the facts in the light most favorable to the non-moving party, draws “all
reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility
determinations[.]’” Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11th Cir. 2019); see
also Crocker v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018) (“[W]e accept [the non-moving
party’s] version of the facts as true and draw all reasonable inferences in the light most favorable
to him as the non-movant.” (citation omitted)). “The mere existence of a scintilla of evidence in
support of the [non-moving party’s] position will be insufficient; there must be evidence on which
a jury could reasonably find for the [non-moving party].” Liberty Lobby, Inc., 477 U.S. at 252.
The moving party shoulders the initial burden of showing the absence of a genuine issue
of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once this burden is
satisfied, “the nonmoving party ‘must do more than simply show that there is some metaphysical
doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x 819, 825 (11th
Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential element
of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)). Accordingly, the non-moving party must produce evidence, going beyond the
pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions
on file, designate specific facts to suggest that a reasonable jury could find in the non-moving
party’s favor. Shiver, 549 F.3d at 1343. Even “where the parties agree on the basic facts but
disagree about the factual inferences that should be drawn from those facts,” summary judgment
may be inappropriate. Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294,
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 11 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
12
1296 (11th Cir. 1983). “If more than one inference could be construed from the facts by a
reasonable fact finder, and that inference introduces a genuine issue of material fact, then the
district court should not grant summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901
F.2d 989, 996 (11th Cir. 1990).
III. 	DISCUSSION
Defendants argue they are entitled to summary judgment on all claims because:
(1) the majority of Plaintiff’s allegations before September 22, 2023, including her
removal from the Field Training Coordinator position on September 18, 2023, are
time-barred due to Plaintiff’s failure to exhaust administrative remedies; (2) Major
Solis is entitled to qualified immunity on Count VII because Plaintiff has failed to
allege any legal basis for a § 1983 retaliation claim against him individually; (3)
Plaintiff has failed to establish a prima facie case of gender or race discrimination,
or retaliation; and (4) Plaintiff fails to show that the County’s legitimate,
nondiscriminatory, non-retaliatory, reasons for its employment actions were a
pretext for discrimination or retaliation.
ECF No. [38] at 2. Plaintiff responds, contending that her evidence, “viewed collectively and in
the light most favorable to her, create[s] a triable issue whether Defendants discriminated and
retaliated against her.” ECF No. [43] at 21. According to Plaintiff, she has “presented
overwhelming temporal proximity, direct evidence of retaliatory animus, powerful comparator
evidence, pattern evidence, statistical evidence, and pretext evidence.” Id.
As an initial matter, the Court notes that claims under Title VII and the FCRA are analyzed
under the same burden-shifting framework. Gamboa v. Am. Airlines, 170 F. App’x 610, 612 (11th
Cir. 2006) (citing Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir.
1998). “Because the same prima facie case and burden-shifting mechanisms apply to Title VII and
FCRA discrimination claims, decisions construing Title VII are applicable to [Plaintiff’s] claims.”
Id. (citing Harper, 139 F.3d at 1387).
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 12 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
13
A. Administrative Exhaustion
As a prerequisite to filing both a Title VII and a FCRA action, a plaintiff must
exhaust all administrative remedies by filing a timely charge with the appropriate
agency. The scope of a plaintiff’s judicial complaint under Title VII and the FCRA
is limited by the scope of any administrative investigation that may reasonably arise
from the plaintiff’s initial charge of discrimination.
Bridges v. Standard Pacific of Tampa GP, Inc., 2007 WL 177688, at *1 (M.D. Fla. Jan. 19, 2007)
(citing Gregory v. Georgia Dept. of Human Resources, 355 F.3d 1277, 1279–80 (11th Cir. 2004);
Harper, 139 F.3d at 1387 (11th Cir. 1998)). In Florida, a plaintiff must file an administrative
charge of discrimination within 300 days of the last discriminatory act. See § 2000e-5(e)(1); Bost
v. Fed. Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004) (“For a charge to be timely in Florida,
a deferral state, it must be filed not more than 300 days after the alleged unlawful employment
practice occurred.”); E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002)
(same).
Where the claim involves discrete acts of discrimination—as opposed to, say, a hostile
work environment claim—such acts “are not actionable if time barred, even when they are related
to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing
charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Discrete acts are “easy to identify” and include “termination, failure to promote, denial of transfer,
or refusal to hire.” Id. at 114. “The existence of past acts and the employee’s prior knowledge of
their occurrence, however, does not bar employees from filing charges about related discrete acts
so long as the acts are independently discriminatory and charges addressing those acts are
themselves timely filed.” Id. at 113. In effect, a Plaintiff alleging discrete discriminatory acts is
limited to “those acts that occurred 300 says before . . . the day that [the plaintiff] filed his charge.”
Id. at 114.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 13 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
14
Defendants argue that because Plaintiff filed her EEOC Charge on July 18, 2024, Plaintiff
is time-barred from bringing any claims regarding conduct that occurred prior to September 22,
2023—300 days before she filed her EEOC charge. ECF No. [38] at 3. Notwithstanding this,
Plaintiff brings claims stretching as far back as December 26, 2022, including
(1) being required to work harder than other FTCs and being denied the ability to
discipline a subordinate employee from December 26, 2022 through May of 2023;
(2) being issued a record of counseling on March 30, 2023; (3) receiving a 5-days
suspension that was prepared on September 7, 2023; and (4) being removed from
her FTC position on September 18, 2023.
Id. In effect, Defendants argue they are entitled to summary judgment on all acts before September
23, 2023 and after July 15, 2024—the date that Plaintiff confirmed represented the latest act of
discrimination—because those claims are “outside the scope of [Plaintiff’s] EEOC Charge, time-
barred, and not properly exhausted.” Id.
Plaintiff raises four reasons why her claims are not time-barred. First, she states that she
“initiated her EEOC inquiry on January 29, 2024.” ECF No. [43] at 4. However, the EEOC’s
requirement that those seeking to file a charge fill out online paperwork and complete an interview
delayed the process. Id. The earliest interview appointment was July 9, 2024, delaying Plaintiff’s
ability to file her Charge. Id. Plaintiff notes that the EEOC determined that Plaintiff’s Charge was
timely and issued a right to sue without time-barring any claims. Id. Plaintiff claims this
determination is entitled to deference. Id. at 5.
Second, Plaintiff argues the continuing violation doctrine applies, as the time-barred acts
are “part of an ongoing pattern” of retaliation. Id. (citing Morgan, 536 U.S. at 115–17). Plaintiff
argues that her evidence shows “serial violation[s].” Id. (citing Morgan, 536 U.S. at 115). Indeed,
Plaintiff argues the discrimination is ongoing, citing to testimony regarding a third DAR issued
November 13, 2025. Id. at 6.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 14 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
15
Third, Plaintiff argues time-barred acts are admissible as background evidence. Id. She
argues that pre-September 2023 events show Plaintiff’s disproportionate workload, heightened
scrutiny as an FTC, Major Solis’ threat to remove Plaintiff for complaining, and disparate
treatment of Lieutenants Campo and Grubbs. Id.
Fourth, Plaintiff argues that the September 18, 2023 removal, rather than being a “discrete
act,” is part of an ongoing course of retaliation insofar as its effects remain. Id. She points to
Plaintiff’s pay remaining 20% lower than pre-removal, Plaintiff’s continuing loss of specialized
assignment, and subsequent evaluations criticizing Plaintiff’s work.
Plaintiff also argues equitable tolling applies, because Plaintiff reasonably relied on EEOC
guidance, and “[c]ourts hold that reasonable reliance on administrative agency guidance warrants
equitable tolling.” Id. at 7 (citing EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 124
(1988)). The EEOC indicated to Plaintiff that she had until October 15, 2024 to file a charge, and
Plaintiff understood that to mean there would be no prejudice to her rights if she filed by that time.
Id.
Finally, as to her FCRA claims, Plaintiff points out that her “co-filed FCRA charge was
timely under Florida’s one-year statute.” Id. The County had full notice of the allegations, and
“[w]here state law provides a longer limitations period and the plaintiff timely exhausts, federal
courts permit proceeding on timely state-law claims.” Id.
In their Reply, Defendants reiterate their argument that “Plaintiff is barred from suing on
any allegations of conduct that occurred before September 22, 2023, because they took place more
than 300 days before Plaintiff filed her EEOC Charge on July 18, 2024.” ECF No. [51] at 3. They
also respond directly to Plaintiff’s arguments.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 15 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
16
First, they argue that initiating an EEOC inquiry and completing online forms are not
equivalent to actually filing an EEOC charge. Id. (citing Francois v. Miami-Dade County, 432
Fed. Appx. 819, 821–22 (11th Cir. 2011); Pijnenburg v. West Georgia Health Sys., Inc., 255 F.3d
1304, 1305–06 (11th Cir. 2001)). Indeed, Defendants point out that prior case law supports that an
intake questionnaire does not satisfy Title VII’s timely filing requirement. Id. at 4 (collecting
cases). Here, Plaintiff merely opened an online inquiry on January 29, 2024, and the website
indicated that submitting an inquiry is different from filing a charge of discrimination. Id. at 4–5.
The intake questionnaire was not verified or signed under penalty of perjury, and Plaintiff later
submitted a formal EEOC Charge, indicating that she could not have believed her inquiry was
functioning as a charge. Id. at 5. Furthermore, the EEOC did not send notice of the Charge or begin
its investigation until after Plaintiff filed her formal Charge. Id. at 5–6.
Replying to Plaintiff’s second, third, and fourth arguments, Defendants refute Plaintiff’s
understanding of Morgan, 536 U.S. 101. Id. at 6. Defendants argue that Morgan does not save her
claims under the “continuing violation doctrine,” does not permit her time-barred acts as
“background evidence,” and does not allow consideration of her removal from the FTC position
as part of a “continuing course of retaliation.” Id. Those concepts do not apply to discrete
discriminatory or retaliatory acts, but instead apply to hostile work environment claims, which
Plaintiff does not allege. Id.
Replying to Plaintiff’s fifth argument, Defendants argue Plaintiff’s reliance on EEOC
guidance regarding the October 15, 2024 deadline to file her charge is unreasonable, as she fails
to support her position. Id. at 7.
Replying to Plaintiff’s sixth argument that her FCRA claims can survive under Florida’s
one-year statute of limitations, Defendants point out that Plaintiff offers no “legal authority or
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 16 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
17
support.” Id. And even if the FCRA claims were not time-barred, summary judgment would still
be warranted for failure to create a triable issue of unlawful discrimination or retaliation. Id.
As an initial matter, beginning an online inquiry and completing intake forms are not
tantamount to actually filing an EEOC charge. “[A]s a general matter an intake questionnaire is
not intended to function as a charge.” Pijnenburg v. West Georgia Health Sys., Inc., 255 F.3d 1304,
1305 (11th Cir. 2001). An intake questionnaire can be “considered charge for the purpose of
satisfying the statute of limitations where: the questionnaire was verified; the questionnaire
contained the basic information required by a charge; and the form’s language could have been
interpreted to represent a charge.” Francois v. Miami Dade Cnty., Port of Miami, 432 F. App’x
819, 822 (11th Cir. 2011) (citing Wilkerson v. Grinnell Corporation, 270 F.3d 1314, 1320–21
(11th Cir. 2001). But the majority of cases have found that an intake questionnaire does not count
as a charge for purposes of assessing timeliness. See, e.g., Pijnenburg, 255 F.3d at 1306 (holding
that the plaintiff’s unverified intake questionnaire did not satisfy Title VII's timely filing
requirement, as it did not notify her employer of her claim or initiate the EEOC investigation);
Bost v. Fed. Express Corp., 372 F.3d 1233, 1241 (11th Cir. 2004) (holding that a questionnaire did
not satisfy the timely filing requirement because the plaintiff “clearly understood the intake
questionnaire was not a charge because he later filed a timely charge” and “the questionnaire form
itself did not suggest it was a charge”); Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 402 (holding
that “if a filing is to be deemed a charge it must be reasonably construed as a request for the agency
to take remedial action to protect the employee's rights or otherwise settle a dispute between the
employer and the employee.”)10; E.E.O.C. v. Summer Classics, Inc., 471 F. App’x 868, 872 (11th
10 Though the Eleventh Circuit, in reaching its decision in Holowecki, referenced deference under Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843–45 (1984), which has since been
overruled, the Eleventh Circuit made clear that its position would hold under Skidmore deference as well.
552 U.S. at 399 (citing Bragdon v. Abbott, 524 U.S. 624, 642 (1998)). Skidmore remains good law. Loper
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 17 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
18
Cir. 2012) (holding that an intake questionnaire was not a charge where “[t]he only reasonable
reading of [the] questionnaire is as a request for information and answers about [the plaintiff’s]
rights, rather than a demand for agency enforcement.” (citing Holowecki, 552 U.S. at 400–01)).
Guided by the reasoning in these Eleventh Circuit and Supreme Court cases, the Court
assesses whether Plaintiff’s initial EEOC inquiry or intake forms constitute a Charge by
considering whether (i) Plaintiff’s statements request agency action, (ii) the forms suggest they are
a charge, (iii) the forms notified the employer of the allegations, (iv) the forms initiated an EEOC
investigation, and (v) the forms were verified, and (vi) Plaintiff later filed a formal charge,
indicating that she did not believe these forms constituted a charge. All of those factors counsel in
favor of one conclusion: the initial forms Plaintiff filled out do not constitute a charge, and as a
result, all allegations before September 22, 2023 are technically time-barred.
First, Plaintiff does not argue—and the Court does not find on its own review of the
record—any evidence that Plaintiff asked the agency to take action on her initial forms. See
generally ECF No. [44-1]. In addition, as Defendants indicate, the second page of the EEOC
inquiry form clearly states, “SUBMITTING AN INQUIRY IS DIFFERENT FROM FILING
A CHARGE OF DISCRIMINATION.” U.S. EQUAL EMPLOYMENT OPPORTUNITY C OMMISSION,
Open an Inquiry/Case, available at https://publicportal.eeoc.gov/Portal/Forms/NewEditForm.asp
x?templateId=160&userKe (last accessed March 21, 2026).11 The inquiry form states that a
“charge of discrimination is a signed statement asserting that an organization engaged in
employment discrimination.” Id. Far from suggesting that they are a charge, the inquiry forms
Bright Enters. v. Raimondo, 603 U.S. 369, 374 (2024). Thus, the Court cites to this decision.
11 The Court may take judicial notice of government websites. See Fed. R. Evid. 201(b)(2); Coastal
Wellness Centers, inc. v. Progressive American Insurance Co., 309 F. Supp. 3d 1216 n. 4 (S.D. Fla. 2018);
Setai Hotel Acquisition, LLC v. Miami Beach Luxury Rentals, Inc., 2017 WL 3503371, at *7 (S.D. Fla.
Aug. 15, 2017) (citing Gent v. CUNA Mutual Ins. Society, 611 F.3d 79, 84 n.5 (1st Cir. 2010).
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 18 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
19
expressly state that they are not. Furthermore, there is no indication in the record that the forms
notified the Defendant of the allegations or initiated an EEOC investigation. The initial forms were
unsigned and unverified. ECF No. [44-1] at 43–46. And Plaintiff later filed a formal EEOC Charge,
indicating that she did not believe the initial forms constituted a charge. Id. at 6. Indeed, Plaintiff’s
Declaration indicates that the EEOC made her “wait almost six months” to “‘file’ [her] charge,”
ECF No. [43-1] at 52, indicating that she knew the forms prior to that did not constitute a charge.
Many of Plaintiff’s remaining arguments are unavailing. Plaintiff argues that the
“continuing violation doctrine” applies pursuant to Morgan, because the pattern she presents
represents a “serial violation.” ECF No. [43] at 5. But Plaintiff misunderstands Morgan. The
Supreme Court in Morgan explicitly rejected the “serial violation” formulation of the “continuing
violation doctrine,” stating:
The Court of Appeals applied the continuing violations doctrine to what it termed
“serial violations,” holding that so long as one act falls within the charge filing
period, discriminatory and retaliatory acts that are plausibly or sufficiently related
to that act may also be considered for the purposes of liability. With respect to this
holding, therefore, we reverse.
Morgan, 536 U.S. at 114 (internal citation omitted). The Court was clear that, in cases involving
“[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire,” each
adverse employment decision “constitutes a separate actionable ‘unlawful employment practice.’”
Id. The plaintiff could therefore “only file a charge to cover discrete acts that ‘occurred’ within the
appropriate time period,” and “only those acts that occurred 300 days before . . . the day that [the
plaintiff] filed his charge[] are actionable.” Id. The same is true here. Even the acts Plaintiff cites
as part of a “pattern” of discriminatory and retaliatory treatment are discrete acts. She cites the
ROCs, the DARs, and her removal from her FTC position. ECF No. [43] at 5. Those are all plainly
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 19 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
20
discrete acts, and Plaintiff is technically only able to file claims relating to those after September
22, 2023.
Plaintiff also argues that her September 18, 2023 removal is part of a continuing course of
retaliation. Id. at 6. This appears to be a restatement of Plaintiff’s “continuing violation doctrine”
argument, which the Court already addressed. Plaintiff points out that she suffered an ongoing
20% pay reduction after her demotion, continuing loss of her FTC assignment, and subsequent
critical evaluations criticizing her for the removal. Id. However, none of those examples changes
the Court’s analysis above. The Supreme Court in Morgan was clear that “[d]iscrete acts such as
termination, failure to promote, denial of transfer, or refusal to hire” do not fall under the ambit of
the “continuing violations doctrine.” 536 U.S. at 114 (2002). Plaintiff’s demotion is precisely such
an act. That she continues to feel the effects of the act does not change that the act itself was
discrete and definitively “occurred” on September 18, 2023.
However, this is where the Court’s analysis takes a different turn. Plaintiff argues that
equitable tolling applies because Diaz relied on EEOC guidance that she “had nothing to worry
about.” ECF No. [43] at 7. Though she does not provide a citation, Plaintiff appears to be referring
to her Declaration. ECF No. [43-1] at 52. The Eleventh Circuit has recognized “three distinct
situations in which the Title VII limitation period may be equitably tolled,” including, as relevant
here, “when the EEOC misleads a complainant about the nature of his rights under Title VII.”
Jones v. Wynne, 266 F. App’x 903, 906 (11th Cir. 2008). The Eleventh Circuit Court of Appeals
has also noted that “equitable tolling may be appropriate when a plaintiff has been ‘lulled into
inaction by . . . state or federal agencies’ or ‘if a plaintiff is actively misled.’” Miller v. Marsh, 766
F.2d 490, 493 (11th Cir.1985) (quoting Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984)).
Nonetheless, equitable tolling “is an extraordinary remedy which should be extended only
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 20 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
21
sparingly.” Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993) (citation omitted). And the
burden falls on the plaintiff to show that equitable tolling is warranted. Ross v. Buckeye Cellulose
Corp., 980 F.2d 648, 661 (11th Cir. 1993).
The Court begins by reproducing the portion of Plaintiff’s Declaration in which she
describes her interaction with the EEOC.
I expressed my concerns to the EEOC that I did not want to miss any deadlines and
that this case was very important to me. I was advised by the EEOC supervisor and
investigator that I had nothing to worry about, especially because the illegal
discrimination and retaliation was on-going.
ECF No. [43-1] at 52. Based on this statement and taking the facts in the light most favorable to
Plaintiff, the Court shares Plaintiff’s view that she was misled. It is true that, in cases involving
“ongoing harassment,” so long as a charge relating to the last discriminatory act is timely filed, the
EEOC will consider all claims, including those outside of the 300-day window. U.S. EQUAL
EMPLOYMENT OPPORTUNITY C OMMISSION , Time Limits for Filing a Charge, available at
https://www.eeoc.gov/time-limits-filing-charge (last accessed March 21, 2026). But Plaintiff’s
case is not one of ongoing harassment; instead, it is a case involving discrete allegedly
discriminatory events. In such cases, the 300-day deadline “usually applies to each event,”
meaning each discriminatory event must be timely to be considered. Id. So, it appears to the Court
that Plaintiff was misled. Defendants do not meaningfully rebut Plaintiff’s argument about being
misled. See ECF No. [51] at 7. Thus, equitable tolling applies to Plaintiff’s claims, allowing the
Court to consider them. Because the Court finds that Plaintiff’s claims are not time-barred, the
Court does not reach Plaintiff’s assertion that her FCRA claims survive under Florida’s statute of
limitations. ECF No. [43] at 7–8.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 21 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
22
B. Qualified Immunity as to Major Solis with Respect to Plaintiff’s § 1983
Claim
Plaintiff brings a claim for retaliation under 42 U.S.C. § 1983. ECF No. [15] at ¶ 60. Section
1983 states that “[e]very person who . . . subjects . . . any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured . . . .”
In their Motion, Defendants argue Major Solis is entitled to qualified immunity on
Plaintiff’s § 1983 claim “because Plaintiff fails to identify any constitutional or statutory right
other than those covered by Title VII.” ECF No. [38] at 4. According to Defendants, in order to
proceed on her § 1983 claim, “Plaintiff must identify the substantive federal right she is trying to
enforce other than those covered by Title VII.” Id. (citing Harris v. Sch. Bd. of Broward Cty., No.
11-62604-CIV, 2012 WL 882610, at *4–5 (S.D. Fla. Mar. 15, 2012)).
Plaintiff responds that her § 1983 claim is predicated on First Amendment retaliation. ECF
No. [43] at 9. She argues that Solis’ explicit threat to remove her from her FTC position for writing
another complaint email was “an objectively unreasonable constitutional violation” and not
protected by qualified immunity. Id. at 9–10.
Defendants reply that Plaintiff’s claim should be dismissed “because First Amendment
retaliation was never pled as a theory of liability in the Amended Complaint and Defendants have
not received notice nor an opportunity to develop a defense.” ECF No. [51] at 8. They argue that
in the Eleventh Circuit, parties may not raise new claims or theories of liability through summary
judgment briefing. Id. (citing Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.
2004); Iraola & CIA, S.A. v. Kimberly–Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003)).
Moreover, Defendants contend that any First Amendment retaliation claim is subject to dismissal
on the ground that the speech at issue did not raise an issue of public concern, but instead, primarily
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 22 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
23
furthered Plaintiff’s own interests. Id. at 9–10. Indeed, Defendants argue Plaintiff’s speech
involved nothing more than “private employee grievances.” Id. at 10 (quoting Watkins v. Bowden,
105 F.3d 1344, 1353 (11th Cir. 1997)).
The Court agrees with Defendant that Plaintiff’s Amended Complaint never implicated the
First Amendment, and Plaintiff should not be allowed—at this late stage—to refashion her
pleading through summary judgment briefing. See, e.g., Gilmour v. Gates, McDonald & Co., 382
F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend her complaint through argument in
a brief opposing summary judgment. (citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th
Cir. 1996))); Austin v. City of Montgomery, 196 F. App’x 747, 753 (11th Cir. 2006) (claim raised
for first time in plaintiff’s response to defendant's motion for summary judgment is not properly
before the district court). Plaintiff clearly implied that her § 1983 retaliation claim was based on a
violation of rights established by Title VII or the FCRA. See ECF No. [15] at ¶ 4 (“This is an
action for damages for unlawful discrimination of Plaintiff . . . on the basis of her race and
retaliation in violation of 42 U.S.C. § 1983 [] against the individual defendant Solis.”). And what
is unmistakably clear is that the First Amendment represents an entirely “new theory of liability,”
which cannot be raised for the first time in summary judgment briefing. Cacciamani v. Target
Corp., 622 F. App’x 800, 804–05 (11th Cir. 2015). The Court turns to the core qualified immunity
analysis at issue. “Qualified immunity offers complete protection for government officials sued in
their individual capacities if their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Wood v. Kesler, 323 F.3d
872, 877 (11th Cir.2003). The process for analyzing a defense of qualified immunity is well
established:
To be eligible for qualified immunity, the official must first establish that he was
performing a “discretionary function” at the time the alleged violation of federal
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 23 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
24
law occurred. Once the official has established that he was engaged in a
discretionary function, the plaintiff bears the burden of demonstrating that the
official is not entitled to qualified immunity. In order to demonstrate that the official
is not entitled to qualified immunity, the plaintiff must show two things: (1) that
the defendant has committed a [statutory] violation and (2) that the [statutory] right
the defendant violated was “clearly established” at the time he did it.
Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004).
First, the Court must determine whether Major Solis was performing a “discretionary
function” at the time the alleged violation of federal law occurred. “To determine whether an
official was engaged in a discretionary function, we consider whether the acts the official
undertook ‘are of a type that fell within the employee's job responsibilities.’” Id. (quoting
Holloman v. Harland, 370 F.3d 1252, 1263 (11th Cir.2004)). Major Solis was undisputedly in
charge of Plaintiff’s promotion and demotion. ECF No. [42] at ¶¶ 8, 23. Therefore, Major Solis
was engaged in a discretionary function for purposes of qualified immunity.
The Court temporarily bypasses the question of whether a constitutional violation occurred
and turns instead to the question of whether the statutory right implicated by this case was “clearly
established.” Specifically, Major Solis is only entitled to qualified immunity if his conduct did not
violate “clearly established statutory rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A right is clearly established if, in light of preexisting law, the unlawfulness of the
official’s conduct is “apparent” . . . . This standard does not require that the specific
conduct in question was previously found to be unlawful; the state of the law need
only give an offic[ial] “fair warning” that his conduct is unlawful.
Cooper v. Dillon, 403 F.3d 1208, 1220 (11th Cir. 2005) (citations omitted).
Here, the rights allegedly violated by Major Solis were “clearly established” at the time of
Major Solis’ actions and, therefore, he is not entitled to qualified immunity. It is “patently obvious”
that intentional, race-based discrimination in public employment is prohibited. See, e.g., Smith v.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 24 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
25
Lomax, 45 F.3d 402, 407 (11th Cir.1995). As the Eleventh Circuit has held, “the right to be free
from racial discrimination in the public workplace [is] a clearly established constitutional right of
which a reasonable official would have known.” McMillan v. DeKalb County, 211 F. App’x 821,
823–24 (11th Cir. 2006). The same is true for gender-based discrimination. Stuart v. Jefferson
Cnty. Dep't of Hum. Res., 152 F. App’x 798, 803 n.6 (11th Cir. 2005) (“[G]ender discrimination
was a clearly established violation of the law at the time of the alleged violations.” (citing Williams
v. Consolidated City of Jacksonville, 341 F.3d 1261, 1270–71 (11th Cir. 2003))). And the same is
true for retaliation based on a Title VII complaint—that is, it was clearly established that retaliation
for a protected complaint was proscribed by law. Wu v. Thomas, 996 F.2d 271, 273 (11th Cir.
1993) (“Our cases also clearly established that no employer could fire, demote, refuse to hire, or
otherwise tangibly injure an employee for pursuing a Title VII action.” (collecting cases)).
Thus, Major Solis is not entitled to qualified immunity in this case. Nonetheless, the § 1983
claim will rise or fall on Plaintiff’s ability to prove Title VII or FCRA discrimination or
harassment. The Court turns to those matters in the next section.
C. Gender and Race Discrimination Claims
Plaintiff alleges gender and race discrimination claims in Counts I, II, III, and IV (as well
as, by extension, in her Count VII § 1983 claim). ECF No. [15]. Where, as here, a plaintiff claims
discrimination based on circumstantial evidence, the plaintiff can establish her claims by relying
on either the “McDonnell Douglas burden shifting paradigm or through a convincing mosaic of
evidence sufficient for a jury to infer discrimination.” Session v. Deloach, No. 3:23-CV-170-TJC-
PDB, 2025 WL 3763898, at *5 (M.D. Fla. Dec. 30, 2025) (citing Ismael v. Roundtree, 161 F.4th
752, 760 (11th Cir. 2025)). This is true for claims brought under Title VII and the FCRA. Nash v.
Palm Beach Cnty. Sch. Dist., 469 F. App’x 712, 713 (11th Cir. 2012) (“Employment claims
brought under . . . the FCRA involve the same analysis as Title VII disparate treatment claims.”
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 25 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
26
(citations omitted)). Plaintiff argues that her disparate treatment claims survive summary judgment
under both approaches. See ECF No. [43] at 3.
The Court begins by describing the McDonnell Douglas burden-shifting paradigm.
Under the McDonnell Douglas framework, the plaintiff bears the initial burden of
establishing a prima facie case. If the plaintiff satisfies this burden, the burden of
production then shifts to her employer to articulate a legitimate, nondiscriminatory
reason for its actions. If the employer proffers even one such reason, the burden
then shifts back to the plaintiff, who must show that the reason given by the
employer was a mere pretext for discrimination.
Owens v. Governor’s Off. of Student Achievement, 52 F.4th 1327, 1338 (11th Cir. 2022)
(internal citations omitted).
A plaintiff’s burden to establish a prima facie case “is not onerous,” and Plaintiff must
simply establish discriminatory treatment by a preponderance of the evidence. Texas Dep’t of
Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Plaintiff does so by establishing that: (1) she is
a member of a protected class; (2) she was subjected to adverse employment action; (3) her
employer treated similarly situated employees outside her class more favorably; and (4) she was
qualified to do the job. Howard v. Wilkie, 421 F. Supp. 3d 1279, 1284 (N.D. Ala. 2019) (citing
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).
From there, “[t]he employer’s initial showing, just as the plaintiff’s, is a low bar to hurdle.”
Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015). At this next step,
“[t]he burden placed on the employer is only an evidentiary one: a burden of production that ‘can
involve no credibility assessment.’” Id. at 1336 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 509 (1993)).
To establish pretext—at the final step—the plaintiff “must present ‘significant probative
evidence[.]’” Owens, 52 F.4th at 1338 (quoting Mayfield v. Patterson Pump Co., 101 F.3d 1371,
1376 (11th Cir. 1996)). At that stage, “the inquiry ‘proceeds to a new level of specificity,’ in which
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 26 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
27
the plaintiff must show that the proffered reason really is a pretext for unlawful discrimination.”
EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002) (citing Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 255–65 (1981)). More specifically, “[i]f a jury
reasonably could infer from the evidence presented that the employer’s legitimate justification is
pretextual, the question becomes whether the evidence, considered in the light most favorable to
the 	plaintiff, 	yields 	the 	reasonable 	inference 	that 	the 	employer 	engaged 	in 	the 	alleged
discrimination.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011). To
establish pretext, a plaintiff can reveal “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Jackson v. Ala. State Tenure
Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Combs v. Plantation Patterns, 106 F.3d
1519, 1538 (11th Cir. 1997)).
But “[s]atisfying the McDonnell-Douglas framework is not essential for a plaintiff to
survive summary judgment,” and therefore, summary judgment should not be granted simply
because the plaintiff is unable to show pretext for the defendant’s purportedly non-discriminatory
conduct. Gaskin v. Healthtrust Workforce Sols., No. 0:24-CV-60431, 2026 WL 32786, at *7 (S.D.
Fla. Jan. 6, 2026) (citing Reeves v. Columbus Consol. Gov’t, No. 23-11463, 2024 WL 33903, at
*2 (11th Cir. Jan. 3, 2024)). Instead, a plaintiff may also survive summary judgment by
“present[ing] a convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.” Gaskin, 2026 WL 32786, at *7; see also Ismael,
161 F.4th at 761 (“Our precedent, then, makes clear that a plaintiff who cannot establish the
McDonnell Douglas prima facie case is entitled to a full review under the convincing mosaic
standard.”). The convincing mosaic inquiry allows a court to look beyond the prima facie case
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 27 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
28
where a plaintiff points to evidence of, “among other things, (1) suspicious timing or ambiguous
statements, (2) systematically better treatment of similarly situated employees, and (3) pretext.”
Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329, 1342 (11th Cir. 2023); see also Hillman v.
Remain at Home Senior Care, No. CV 124-096, 2026 WL 497842, at *6 (S.D. Ga. Feb. 23, 2026).
Although the convincing mosaic standard allows the Court to consider less traditional
circumstantial evidence, the ultimate inquiry is the same under either the McDonnell Douglas or
convincing mosaic framework—looking at the evidence in the light most favorable to the plaintiff,
is 	there 	sufficient 	circumstantial 	evidence 	that 	would 	allow 	a 	jury 	to 	infer 	intentional
discrimination by the decisionmaker[?]” Hillman, 2026 WL 497842, at *6 (citing Ossmann v.
Meredith Corp., 82 F.4th 1007, 1020 (11th Cir. 2023); Jenkins v. Nell, 26 F.4th 1243, 1250 (11th
Cir. 2022)).
Focusing first on the McDonnell Douglas standard, Defendants argue they are entitled to
summary judgment on Plaintiff’s gender and race discrimination claim. ECF No. [38] at 5. They
do not dispute that Plaintiff is a member of two protected classes (i.e., White and female) and that
she was minimally qualified to be a police lieutenant—in that regard, they admit that she satisfies
the first two McDonnell Douglas prongs. Id. However, they argue that, as to the third prong,
Plaintiff’s claims fail because the alleged conduct—namely, “working harder than other Field
Training Coordinators, being prohibited from disciplining a subordinate, receiving records of
counseling, and negative statements in a performance evaluation”—do not constitute “adverse
employment actions.” Id. And as to the fourth prong, they claim Plaintiff has failed to point to a
similarly situated comparator who was treated more favorably. Id.
Focusing on the third prong, Defendants assert that, within the permitted time period, the
alleged conduct includes “(1) the preparation of a record of counseling on April 24, 2024 []; and
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 28 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
29
(2) her second 5-days suspension initiated on May 3, 2024 [].” Id. at 6. Defendants argue that only
the 5-day suspension resulted in a loss of pay or benefits, so only that alleged conduct may be
considered. Id.
From there, turning to the fourth prong, Defendants argue Plaintiff has failed to point to “a
single lieutenant outside her race and gender within MDPD who worked for the same supervisors
as Plaintiff, during the same time frame, and who had the same type of performance issues and
ongoing disruptive behaviors as Plaintiff [], and who was not disciplined appropriately.” Id. at 7.
They cite concerns regarding Plaintiff’s managerial skills and issues with subordinates, ECF No.
[37] at ¶¶ 10, 13; a use of force incident involving a taser, id. at ¶ 11; concerns regarding Plaintiff’s
“judgment” stemming from the petition incident, id. at ¶ 14; Plaintiff improperly submitting for
excessive Compensatory Time, id. at ¶ 18; Plaintiff being “disrespectful, argumentative, and
insubordinate” toward Captain Diaz de Villegas and “inappropriately” calling the director, id. at ¶
19; and Plaintiff’s failure to properly interpret or apply the “proper Departmental policy,
procedure, or rule,” id. at ¶ 20. Defendants point out that Plaintiff admitted that Jenna Parmentor—
a White, female sergeant—“received special privileges and favorable treatment.” ECF No. [38] at
7. This, Defendants argue, demonstrates that Defendants held no discriminatory animus towards
White females. Id. Because Plaintiff has not shown a sufficient comparator, she cannot make out
the fourth prong of her prima facie case for race discrimination. Id. at 8.
Turning to the convincing mosaic approach, Defendants argue that “the record reveals no
other evidence ‘that would allow a jury to infer intentional discrimination by the decisionmaker.’”
Id. (citing Herron-Williams v. Alabama State Univ., No. 18-10875, 2020 WL 599301, at *6–7
(11th Cir. Feb. 7, 2020)). Defendants point to several pieces of evidence: Major Solis’ assurance
that all the actions he took regarding Plaintiff were based on her conduct, not her race, gender, or
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 29 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
30
protected activity; and that Plaintiff was selected for and removed from the FTC program by the
same individual. Id. at 9. The second factor—being hired and fired by the same person within a
short period of time—has been held by courts in this circuit to give rise to a permissible inference
that no discriminatory animus was present. Id. (citing Aldabblan v. Festive Pizza, Ltd., 380 F.
Supp. 2d 1345, 1352 (S.D. Fla. 2005); Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1443 (11th
Cir. 1998)).
Plaintiff responds that she has shown exceptional temporal proximity between protected
activities and adverse actions, direct evidence of retaliatory animus, and powerful comparator
evidence. ECF No. [43] at 1–2. She refutes that she is required to demonstrate pretext under
McDonnell Douglas and instead points to Ismael v. Roundree, which she claims establishes her
true burden here—the convincing mosaic standard. Id. at 3 (citing Ismael, 161 F.4th 752).
Specifically, Plaintiff argues that she need not establish a prima facie case or pretext at all.
Id. at 10. Instead, the relevant question is the one raised by the convincing mosaic framework:
“whether the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic
of circumstantial evidence that would allow a jury to infer intentional discrimination [or
retaliation] by the decisionmaker.” Id. (citing Ismael, 161 F.4th at 755).
Plaintiff argues that she has “presented a convincing mosaic of circumstantial evidence
creating genuine disputes of material fact.” Id. at 11. Relevant to the discrimination analysis (as
opposed to the retaliation analysis, though Plaintiff does not separate her discussion of the two),
Plaintiff points to her comparator evidence. Id. at 12–13. Lieutenant Christian Campo, a Hispanic
male, held the FTC position after Plaintiff. Id. She claims that he was less qualified and had worse
performance but received better treatment, insofar as his reviews were better and he was permitted
to remove Sergeant Bustamante. Id. at 13. She also points to Lieutenant Darryl Grubbs, a White
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 30 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
31
male, who held the FTC position before Plaintiff. Despite his worse performance, he received
better treatment, was not removed, and was later promoted to Captain. Id. Plaintiff finally points
to Sergeant Maria Bustamante, a Hispanic female, who admitted that she refused to follow
Plaintiff’s lawful orders, had a record of 15 policy violations, and only received informal
counseling. Id. When she was finally removed, she was transferred to another specialized unit, not
demoted like Plaintiff was. Id.
Plaintiff also points to weaknesses and contradictions in Defendant’s explanations. Id. at
16. She notes that the “petition” to remove Sergeant Bustamante was Captain Meyer’s own
suggestion. Id. She states that the “effectiveness/efficiency” rationale for removing Plaintiff falls
flat in light of the fact that Plaintiff brought the program from behind to current. Id. And she
contends that the “insubordination” argument based on Plaintiff calling her superior “sweetie”
does not hold water when Plaintiff immediately apologized. Id.
Plaintiff also points to statistical evidence. Id. Specifically, White females represent only
2.8–3% of MDPD. Id. Moreover, she was the only White female Lieutenant under Major Solis’
command. Id.
Plaintiff continues by alleging a disparate workload. Id. She contends she was the only
FTC required to supervise all three squads “as if it was its own platoon.” Id. Indeed, neither her
predecessor nor her successor had those dual responsibilities. Id. at 17. She notes that she was
assigned additional special projects that no other FTC received. Id.
She contends that Defendants committed policy violations in administering discipline. Id.
They gave her a negative performance evaluation without giving her 90 days’ notice to improve
as required. Id. Lieutenant Campo was selected for the FTC position despite being probationary.
Id. And Sergeant Bustamante was selected as Field Training Sergeant while probationary. Id.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 31 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
32
Plaintiff stresses that the Court should give no credence to Defendants’ argument that because
Solis selected and demoted Plaintiff, any inference of discriminatory animus is belied. Id. at 20
(citing Wascura v. City of S. Miami, 257 F.3d 1238, 1243 (11th Cir. 2001)).
In their Reply, Defendants first argue that Plaintiff appears 	to 	admit her inability to
establish a prima facie case for discrimination or pretext under the McDonnell Douglas
framework. ECF No. [51] at 10. As a result, she instead focuses on the convincing mosaic standard.
Id. at 11. But Plaintiff’s comparator evidence does not establish a convincing mosaic. Id. at 12.
Defendants contend that nothing in the record supports Plaintiff’s allegations of more favorable
treatment; nothing indicates that any more favorable treatment had to do with race, gender, or
protected activity; and none of her purported comparators were shown to have “the same type of
performance issues and ongoing disruptive behaviors as Plaintiff.” Id. at 13. Defendants reiterate
their argument regarding the treatment of Jenna Parmentor, a White female. Id. at 13–14. They
point out 	Plaintiff’s admission that Parmentor was treated favorably and contend that her
speculative explanations for why Parmentor might have been treated more favorably are owed no
deference. Id. at 14. Finally, Defendants argue that there is no evidence that Major Solis had any
discriminatory intent, especially since he was the same person who hired Plaintiff. Id. at 15.
The Court begins by clarifying the relationship between the McDonnell Douglas
framework and the convincing mosaic standard considering Ismael, in particular focusing on
Plaintiff’s burden. Ismael did not replace the McDonnell Douglas standard with the convincing
mosaic standard. It made clear that “a plaintiff who cannot establish the McDonnell Douglas prima
facie case is entitled to a full review under the convincing mosaic standard.” Ismael, 161 F.4th at
761. And while a plaintiff can make their case by demonstrating that their employer’s proffered
legitimate reason for an adverse employment action was pretextual, a plaintiff need not
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 32 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
33
demonstrate pretext; instead, the plaintiff can still satisfy their burden by merely showing a
sufficient evidentiary basis for finding discrimination. Id. at 761–62. Ultimately, it is the plaintiff’s
affirmative claim that matters, not defendant’s justification. Id. at 761.
Here, Plaintiff has opted to forgo the McDonnell Douglas approach in favor of the
convincing mosaic standard. ECF No. [43] at 10. Rather than attempt to show a prima facie case
and then rebut purportedly pretextual justifications for adverse employment actions, Plaintiff
focuses more squarely on whether her evidence “presents a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination [or retaliation] by the
decisionmaker.” Id. (citing Ismael, 161 F.4th at 755).
Based on the record viewed in the light most favorable to Plaintiff, the Court finds that no
reasonable jury could infer that intentional discrimination drove the adverse employment actions
that Plaintiff experienced. Since the equitably tolling does not bar 	Plaintiff from 	bringing her
claims, the Court considers all of Plaintiff’s allegations before July 15, 2024 (the last date of
discrimination cited in Plaintiff’s EEOC Charge). ECF No. [37] at ¶ 43.
The Court begins by addressing which claims qualify for consideration as discriminatory.
In any discrimination case, Plaintiff is required to point to an adverse employment action.
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). An adverse employment action in a
discrimination case involves “a serious and material change in the terms, conditions, or privileges
of employment.” Crawford, 529 F.3d at 970–71 (citation and emphasis omitted). More obvious
examples of adverse employment actions include “termination, demotion, suspension, a reduction
in pay, or a change in job duties.” Barnett v. Athens Reg’l Med. Ctr. Inc., 550 F. App’x 711, 713
(11th Cir. 2013). But the term “adverse employment action” also encompasses less obvious
changes 	in 	employment, 	including 	“loss 	of 	benefits, 	denial 	of 	promotions, 	workplace
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 33 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
34
reassignment, transfer, or change in permanent job title.” Davis v. Town of Lake Park, Fla., 245
F.3d 1232, 1236 (11th Cir. 2001).
Here, Plaintiff has admitted that an ROC is not a disciplinary action and does not result in
a loss of pay or benefits. ECF No. [42] at ¶ 12. As such, the Court does not consider any instances
of ROCs adverse employment actions. Dixon v. Palm Beach Cnty. Parks & Recreation Dep’t, 343
F. App’x 500, 502 (11th Cir. 2009) (finding that an ROC is not an adverse employment action).
Moreover, negative performance reviews are not adverse employment actions. Barnett, 550 F.
App’x at 713 (holding that negative performance reviews did not constitute adverse employment
actions as they “had no effect” on plaintiff’s employment).
However, the DARs and Plaintiff’s removal from her FTC position are a different story.
Each of those represents an adverse employment action. The two DARs, initiated on September 7,
2023 and May 3, 2024, ECF No. [37] at ¶ 26, 35, resulted in 5-day suspensions for Plaintiff, and
Defendants admit that those constituted adverse employment actions. ECF No. [38] at 6l; see also
Singleton v. Pub. Health Tr. of Miami-Dade Cnty., 725 F. App’x 736, 739 (11th Cir. 2018) (treating
a DAR as an adverse employment action). And demotion is a canonical case of an adverse
employment action. Crawford, 529 F.3d at 970. Thus, the Court considers the evidence regarding
those three adverse employment actions.
With respect to the first DAR, initiated by Captain Meyer, the stated reason for its initiation
was Plaintiff’s “petition to remove Bustamante—specifically, that she failed to secure chain-of-
command approval, publicly undermined a subordinate’s authority, and interfered with unit
operations.” ECF No. [37] at ¶ 26. Plaintiff alleges that Captain Meyer was the person who
suggested the use of a petition to remove Sergeant Bustamante. ECF No. [42] at ¶ 13. But nothing
in Plaintiff’s allegations disputes that she did commit a policy violation, see ECF No. [37-15] at
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 34 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
35
3, and that discipline would have been warranted on that basis. The record clearly reflects that
distributing the petition was contrary to policy and that the MDPD was operating according to
policy in disciplining her. That Captain Meyer was the one who floated the idea of a petition
certainly calls into question whether the decision was “prudent or fair,” but it does not raise an
implication of discriminatory animus. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1361 (11th Cir. 1999). Plaintiff points to no “suspicious timing,” insofar as her petition was
distributed on or around August 21, 2023, and the DAR was initiated September 7, 2023, ECF No.
[37-15]. See Yelling, 82 F.4th at 1342. She fail to point to any “ambiguous statements” from
Captain Meyer that could be interpreted as discriminatory animus. Id. She fails to point to a
similarly situated employee who was treated better—that is, one who circulated a petition but was
not removed. Id. And the record reflects that Defendants’ stated reason for the DAR was amply
supported by policy. Id.
Of course, it is possible that a defendant could follow its own policy in effectuating
discipline and still have its true reason for discipline be discriminatory, but Plaintiff fails to point
to any record evidence implying any other motive for Captain Meyer’s actions. Indeed, the only
other insight into Captain Meyer’s treatment of other people in Plaintiff’s protected classes is his
preferential treatment of Jenna Parmentor, a White woman. ECF No. [37-2] at 100–01. That
“another employee in the same protected class as the plaintiff receives favorable treatment” can
be used “as evidence to show that the employer’s articulated reason for the employment decision
is not a pretext for unlawful discrimination.” McGee v. Stone & Webster Constr., Inc., 2008 WL
11422673, 	*13 	n.96 	(N.D. 	Ala. 	Feb. 	29, 	2008); 	see 	also 	Nix 	v. 	WLCY 	Radio/Rahall
Communications, 738 F.2d 1186 n.1 (11th Cir. 1994) (noting that while “Title VII does not ‘give
an employer license to discriminate against some employees on the basis of race or sex merely
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 35 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
36
because he favorably treats other members of the employees’ group,’” it is nonetheless “not
irrelevant” when another employee in the same protected class as the plaintiff receives favorable
treatment (internal citation omitted)); Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515,
524 (3d Cir. 2003) (“While not conclusive, an employer’s favorable treatment of other members
of a protected class can create an inference that the employer lacks discriminatory intent.”); Elion
v. Jackson, 544 F. Supp. 2d 1, 8 (D.D.C. 2008) (noting that “‘[m]e too’ evidence of an employer’s
past non-discriminatory and non-retaliatory behavior may be relevant” in Title VII action). In light
of these considerations, Plaintiff has not carried her burden of showing that a jury could reasonably
find discriminatory intent in her first DAR.
As for the second DAR, initiated on May 3, 2024, the purported reason for its initiation
was Plaintiff’s insubordination and violation of the chain of command during a counseling meeting
on April 24, 2024. ECF No. [37] at ¶ 35. During the meeting, Plaintiff referred to Captain Diaz de
Villegas as “sweetie” and interrupted the meeting to make a “direct call to the MDPD Director
despite being told not to do so.” Id. Plaintiff admits that the interaction occurred but argues that
she “immediately apologized” for her choice of nomenclature and that calling the Director was
“pursuant to a written request properly submitted via chain of command on April 15, 2024.” ECF
No. [42] at 13. The record evidence shows that Defendant simply followed its policy of punishing
insubordination and violation of the chain of command. ECF No. [37-18] at 4. Plaintiff has not
pointed to any record evidence suggesting that discriminatory animus motivated the DAR—no
comparators, no evidence that the stated reason for the DAR was pretextual, no suspicious timing,
and no ambiguous statements. In short, there is a lack of evidence sufficient to find discriminatory
intent underlying the second DAR.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 36 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
37
The Court now turns to Defendants’ decision to demote Plaintiff from her FTC position.
Plaintiff has adduced what she calls “powerful” comparator evidence, ECF No. [43] at 12. Plaintiff
points to her White male predecessor, Lieutenant Derryl Grubbs. As FTC, he allowed management
of the program’s files to fall eight months behind. ECF No. [43] at 13. Nonetheless, he was not
removed from the position and was later promoted to Captain. Id. Plaintiff thus inherited a program
with an eight-month backlog, and she alleges that she brought the program to current. Id. Plaintiff’s
successor, Christian Campo, a Hispanic male, was elevated to the FTC position despite being on
“probationary” status. Id. He has since allowed the program files to fall two years behind; still, he
was not removed from his position, received “Outstanding” evaluations, and was allowed to
remove Sergeant Bustamante. Id. Both her predecessor and successor reported to Major Solis. Id.
Still, the stated reason for removing Plaintiff from her FTC position was “Effectiveness and/or
Efficiency of Unit” and “Operational Necessity.” ECF No. [37] at 5.
As noted above, circumstantial evidence of illegal discrimination can include evidence of
“systematically 	better 	treatment 	of 	similarly 	situated 	employees” 	and 	evidence 	“that 	the
employer’s justification is pretextual.” Lewis v. City of Union City, Georgia, 934 F.3d 1169, 1185
(11th Cir. 2019) (quoting Silverman v. Bd. of Educ., 637 F.3d 729, 733–34 (7th Cir. 2011))
(internal quotation marks omitted). But here, there is an important distinction between Plaintiff
and her purported comparators. As Defendants point out, there is no evidence that those two other
individuals had the “same type of performance issues and ongoing disruptive behaviors as
Plaintiff.” ECF No. [38] at 7. Most significantly, Plaintiff does not dispute that she circulated her
petition for removal of Sergeant Bustamante on August 21, 2023. ECF No. [37-10]. The notice
demoting her from her FTC position was transmitted on August 30, 2023. ECF No. [37-14]. Even
assuming Captain Meyer suggested the petition, it was Major Solis who made the decision to
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 37 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
38
demote Plaintiff, ECF No. [37] at ¶ 23, and there is no evidence in the record that he conspired
with Captain Meyer to encourage Plaintiff to distribute the petition. Instead, Major Solis was
confronted with an employee who had created a substantial disruption to the Field Training and
Evaluation Program.12 Plaintiff does not claim that either Grubbs or Campo took similar actions.
See generally ECF No. [43]. Thus, her purported comparators are too different from her to prove
helpful in demonstrating a plausible inference of discrimination. Maniccia v. Brown, 171 F.3d
1364, 1368 (11th Cir. 1999) (“In determining whether employees are similarly situated for
purposes of establishing a prima facie case, it is necessary to consider whether the employees are
involved in or accused of the same or similar conduct and are disciplined in different ways.”
(quotations omitted)).13 Plaintiff could have created an issue of fact by “‘specifically refuting facts
that allegedly support the employer’s claim of performance deficiencies,’” Chapman v. AI Transp.,
229 F.3d 1012, 1061 n.76 (11th Cir. 2000) (quoting Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446,
12 This is in addition to Plaintiff’s other disruptive behaviors, which include the following: issues with
managerial skills and issues with subordinates, ECF No. [37] at ¶¶ 10, 13; a use of force incident involving
a taser, id. at ¶ 11; concerns regarding Plaintiff’s “judgment” stemming from the petition incident, id. at ¶
14; Plaintiff improperly submitting for excessive Compensatory Time, id. at ¶ 18; Plaintiff being
“disrespectful, argumentative, and insubordinate” towards Captain Diaz de Villegas and “inappropriately”
calling the director, id. at ¶ 19; and Plaintiff’s failure to properly interpret or apply the “proper Departmental
policy, procedure, or rule,” id. at ¶ 20. For most of those instances, Plaintiff does not dispute that they
occurred but instead claims that context makes the deviations from acceptable behavior less problematic.
See generally ECF No. [42].
13 In certain cases, the Eleventh Circuit has indicated that, for someone to serve as a valid comparator, their
conduct must be “nearly identical” to the Plaintiff’s conduct. Nix v. WLCY Radio/Rahall Commc’ns, 738
F.2d 1181, 1185 (11th Cir. 1984). In other cases, the Eleventh Circuit has indicated that a comparator is
“similarly situated” if he or she was accused of “the same or similar conduct.” Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997), abrogated on other grounds by Lewis, 918 F.3d 1213; Anderson v. WBMG-
42, 253 F.3d 561, 564 (11th Cir. 2001).
Any conflict between those standards is immaterial as Plaintiff fails to establish a comparator under either
standard. Plaintiff’s demotion came on the heels of and was purportedly the result of Plaintiff circulating a
petition to remove Sergeant Bustamante, as well as other disruptive behaviors cited in footnote 12 above.
Plaintiff does not dispute that she took most of those actions. And Plaintiff does not indicate whether any
of these purported grounds—including the ones to which she admits—similarly applied to Grubbs or
Campo, making them unsuitable comparators.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 38 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
39
1460 (7th Cir. 1994)), but she did not do so. That is, Plaintiff fails to refute that she took
substantially more disruptive actions than Grubbs or Campo.
While Ismael makes clear that comparator evidence is still relevant even if there are
“material differences” between a plaintiff and her comparators, 161 F.4th at 764 (quoting Tynes v.
Fla. Dep’t of Juv. Just., 88 F.4th 939, 945 (11th Cir. 2023)), “the same evidence placed in a looser
frame does not transform it into something new.” Melton v. I-10 Truck Ctr. Inc, 166 F.4th 905,
915 (11th Cir. 2026) (citation omitted). That is, whether under McDonnell Douglas or the
convincing mosaic standard, Plaintiff and her would-be comparators are simply too different to
support a finding of racial discrimination.
Plaintiff’s remaining arguments are unavailing. She points to the statistic that White
females represent only 2.8–3% of the MDPD and that she was the only White female Lieutenant
under Major Solis’ command. ECF No. [43] at 16. But those figures are irrelevant on their own.
As the Supreme Court has made clear, the proper statistical evidence is a comparison “between
the racial composition of the qualified persons in the labor market and the persons holding at-issue
jobs.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650 (1989). Merely stating, without more,
that White females make up a small proportion of the MDPD is insufficient to show disparate
impact.
Plaintiff also points to her disparate workload, contending that she was the only FTC
required to supervise all three squads “as if it was its own platoon.” ECF No. [43] at 16. Even so,
additional workload is not an adverse employment action and 	cannot support a finding of
discrimination. See, e.g., Grimsley v. Marshalls of MA, Inc., 284 F. App’x 604, 609 (11th Cir.
2008); White v. Hall, 389 F. App’x 956, 960 (11th Cir. 2010) (assignment of more difficult work
tasks was not adverse employment action).
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 39 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
40
Plaintiff also points out that Defendants committed policy violations in administering
discipline. ECF No. [43] at 17. They gave her a negative performance evaluation without giving
her 90 days’ notice to improve as required. Id. Lieutenant Campo was selected for the FTC position
despite being probationary, and Sergeant Bustamante was selected as Field Training Sergeant
while probationary. Id. True enough, violation of policy can be probative of discrimination. See
Connelly v. WellStar Health Sys., Inc., 758 F. App’x 825, 829 (11th Cir. 2019). But “mere failure
to follow operating procedures, without more, does not necessarily suggest that an employer was
motivated by illegal discriminatory intent.” Id. (citing Mitchell v. USBI Co., 186 F.3d 1352, 1355–
56 (11th Cir. 1999)). Moreover, Plaintiff does not allege any violation of policy in the adverse
employment actions taken against her. That is, she alleges violations of policy that are not relevant
to the decision to demote or suspend Plaintiff.
Plaintiff stresses that the Court should give no credence to Defendants’ argument that
because Solis selected and demoted Plaintiff, any inference of discriminatory animus is belied. Id.
at 20 (citing Wascura v. City of S. Miami, 257 F.3d 1238, 1243 (11th Cir. 2001)). The Court agrees
with Plaintiff, but it does not rest its decision on Defendants’ contention , so this point ultimately
does not move the needle. While it is true that the Eleventh Circuit “declin[d]e to accord to this
‘same actor’ factual circumstance a presumption that discrimination necessarily was absent from
the decision to terminate [the plaintiff],” Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1443 (11th
Cir. 1998), the Court views the absence of a convincing mosaic as dispositive, not the presence of
this same decision-maker.
Overall, the Court returns to the convincing mosaic framework. A convincing mosaic may
be shown by “(1) ‘suspicious timing, ambiguous statements . . . , and other bits and pieces from
which an inference of discriminatory intent might be drawn,’ (2) systematically better treatment
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 40 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
41
of similarly situated employees, and (3) that the employer’s justification is pretextual.” Lewis, 934
F.3d at 1185 (quoting Silverman v. Bd. of Educ. of City of Chi., 637 F.3d 729, 733–34 (7th Cir.
2011), overruled by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016)). Plaintiff has
simply failed to adduce competent evidence demonstrating discrimination. Plaintiff points to
would-be comparators, statistical evidence, disparate workload, and claimed policy violations by
Defendants. But taken alone or together, those factors are not sufficient to sustain a finding of
racial or gender discrimination. There is no evidence of whether her “comparators” had similarly
disruptive behaviors, making it impossible to gauge whether they would have been demoted for
taking the same actions as Plaintiff. Plaintiff’s statistical evidence provides no reference to the
general population or the applicant pool, providing no basis to conclude discrimination was afoot.
Disparate workload is not an adverse employment action, and policy violations that occurred
sporadically in other parts of the organization, unrelated to the adverse employment actions taken
against Plaintiff, do not carry any implications regarding Plaintiff’s treatment. The decisions may
not have been “prudent or fair,” but that does not mean that discriminatory animus can be found.
Damon, 196 F.3d at 1361. Thus, Plaintiff’s Title VII claims and FCRA claims based on racial and
gender discrimination are dismissed, as is her § 1983 claim to the extent it depends on an
underlying violation of Title VII.
D. Retaliation Claims
In Counts V and VI, Plaintiff brings retaliation claims against the County under Title VII
and the FCRA, respectively. ECF No. [15]. She also brings a retaliation claim under § 1983 in
Count VII. Id. at ¶ 60.
To prevail on a retaliation claim under the McDonnell Douglas framework, a plaintiff must
present evidence that (1) she engaged in a statutorily protected activity, (2) she suffered a
materially adverse action, and (3) there was a causal connection between the two events. See
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 41 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
42
Fulford v. Miami-Dade County, 219 F. Supp. 3d 1248, 1255 (S.D. Fla. 2016); Goldsmith v. Bagby
Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008). This is true whether the claim is brought
under § 1981 or the FCRA. See Johnson v. Miami-Dade Cnty., 948 F.3d 1318, 1325 (11th Cir.
2020); Flores v. Devry Univ., Inc., 573 F. App’x 833, 835 (11th Cir. 2014). Similar to
discrimination claims, a plaintiff’s retaliation claims may survive summary judgment based on a
convincing mosaic of circumstantial evidence. See Decoste v. City of Boynton Beach, No. 24-
81529-CIV, 2026 WL 265266, at *17 (S.D. Fla. Jan. 29, 2026). Whatever form the evidence takes,
“so long as [it] raises a reasonable inference” that the employer retaliated against the employee,
‘summary judgment is improper.”’ Id.
There is no genuine dispute that the type of complaints Plaintiff made to her supervisors
and the HRFEP/PCB are typically considered protected activities, given that “[t]he making of
informal complaints or the use of an internal grievance system is protected conduct under the
opposition clause.” Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1144 (11th Cir. 2020);
see also Furcron v. Mail Cntrs. Plus, LLC, 843 F.3d 1295, 1311 (11th Cir. 2016) (noting the non-
discrimination “protections are not limited to individuals who file formal complaints, but extend
to those who voice informal complaints as well”); DeLeon v. ST Mobile Aerospace Engineering,
Inc., 684 F. Supp. 2d 1301, 1324 (S.D. Ala. 2010) (“Statutorily protected expression includes
complaining to superiors about harassment in the work place, lodging complaints with the EEOC
and participating in discrimination-based lawsuits.”).
However, to establish protected activity under the opposition clause, a plaintiff must show
that she had a good faith and objectively reasonable belief that her employer was engaged in
unlawful employment practices. Anduze v. Fla. Atl. Univ., 151 F. App’x 875, 878 (11th Cir. 2005).
“A plaintiff must not only show that he subjectively (that is, in good faith) believed that his
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 42 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
43
employer was engaged in unlawful employment practices, but also that his belief was objectively
reasonable in light of the facts and record presented.” Little v. United Techs., Carrier Transicold
Div., 103 F.3d 956, 960 (11th Cir. 1997) (emphasis in original). That does not require the plaintiff
prove that the employment practice was unlawful, but “the allegations and record must also
indicate that the belief, though perhaps mistaken, was objectively reasonable.” Id.; see also
Johnson v. Fam. Prac. & Inj. Ctr., Inc., 437 F. Supp. 3d 1108, 1123 (M.D. Fla. 2020) (“The
plaintiff is not required to prove that the alleged discriminatory conduct was actually unlawful, as
such opposed conduct need only be ‘close enough’ to support the objectively reasonable belief.”
(quoting Furcron, 843 F.3d at 1311)).
Defendants argue that summary judgment is proper as to Plaintiff’s retaliation claims
because Plaintiff “fails to meet the first and third prongs of the prima facie test.” ECF No. [38] at
10. As to the first prong, Defendants point out that Plaintiff alleges a variety of complaints that
purportedly constitute protected activity, including: “(1) a complaint to Captain Ryan Howett and
Maj. Solis dated March 10, 2023 []; (2) a complaint to Chief Gina Beato-Dominguez on August
30, 2023 []; and (3) a complaint submitted to the Miami-Dade Office of Human Rights and Fair
Employment Practices and to the Professional Compliance Bureau on September 11 and 13, 2023,
respectively.” Id. But apart from her HRFEP and PCB complaints, Defendants contend that none
of Plaintiff’s complaints constitute protected activity because they do not mention a belief that
Plaintiff was being discriminated against on the basis of gender or race. Id.
As to the second prong, Defendants contend that none of the allegedly retaliatory acts cited
by Plaintiff constitutes material adverse employment action apart from her 5-day suspension. Id.
at 11.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 43 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
44
As to the third prong, Defendants contend that Plaintiff cannot show a causal connection
between protected activity and adverse action. Plaintiff’s HRFEP/PCB complaint was submitted
on September 11, 2023, and her second 5-day suspension was initiated nearly eight months later.
Id. Moreover, Defendants contend there is no evidence that Captain Diaz de Villega knew of the
HRFEP/PCB complaint at the time he initiated Plaintiff’s second 5-day suspension. Id.
Plaintiff responds that she has pointed to close temporal proximity, which is probative of
causation. ECF No. [43] at 11. She notes that her March 10, 2023 email “questioning gender-based
treatment” was followed on March 29, 2023 by Major Solis threatening to remove her if she
complained again and then, on March 30, 2023, by the first ROC being issued. Id. She then points
to the period of August 2023 to September 2023, during which: (1) Plaintiff texted her chief about
discrimination (August 30, 2023), (2) Plaintiff met with the chief and Major Solis (September 5,
2023), (3) the first DAR was initiated (September 7, 2023), (4) Plaintiff filed her PCB complaint
(September 18, 2023), and (5) Plaintiff was removed from her FTC position (September 18, 2023).
Id. at 11–12. Finally, Plaintiff points to April 2024, in which: (1) Plaintiff sent a written request to
meet with the director (April 15, 2024), (2) Plaintiff met with Chief Garcia about her
discrimination concerns (April 24, 2024), (3) the second ROC was issued (April 24, 2024), and
(4) the second DAR was issued (May 3, 2024). Id. at 12.
Plaintiff also argues there is direct evidence of retaliatory animus. Id. at 14. Specifically,
she points out that after Plaintiff “complained of gender discrimination on March 10, 2023,” Major
Solis told her to “never write another email like that again or he would kick [Plaintiff] out of the
Field Training Program.” Id. Ultimately, Major Solis did remove Plaintiff from her FTC position.
Id. at 15.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 44 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
45
Plaintiff further points to the absence of a disciplinary record prior to her complaints. Id.
at 17. In her 24-year career, she had no disciplinary history. Id. She also only had “above
satisfactory” evaluations until becoming FTC. Id. Following her March 2023 complaint, a
“[s]udden cascade of ROCs, DARs, and suspensions” began. Id.
Plaintiff next argues that Captain Diaz de Villegas was aware of the complaints at the time
he initiated the second DAR. Id. at 18. Plaintiff points out that Captain Diaz de Villegas admitted
that he became aware of Plaintiff’s complaints around two months after starting, and he arrived
March 4, 2024; the second DAR was initiated May 3, 2024. Id. Major Solis also gave Captain Diaz
de Villegas “a packet” with Plaintiff’s complaints, and Plaintiff told Captain Diaz de Villegas
about her complaints—indeed, Plaintiff testified that she met with Captain Diaz de Villegas in
March 2024 and told him about her discrimination allegations and PCB complaint. Id.
Finally, Plaintiff argues that the March 10, 2023 email constitutes protected activity
because in it, Plaintiff expressly asked if she was being treated the way she was “because I am a
female supervisor.” Id. at 19. She asked Captain Howett if her treatment was because she was a
woman. Id. And Plaintiff contends that Major Solis’ response to her email—namely, his threat to
remove her—proves that he understood it as a discrimination complaint. Id.
Defendants reply that, whether under McDonnell Douglas or the convincing mosaic
framework, Defendants are entitled to summary judgment. ECF No. [51] at 10–11. First, they
reiterate that Plaintiff’s email “questioning” her treatment did not constitute protected activity
because a “mere inquiry or question about whether conduct is based on race or gender, without a
clear assertion that conduct is discriminatory or objectionable, is not protected activity.” Id. at 11.
They rely on Herron-Williams v. Alabama State University, in which an employee sent an email
“complain[ing]” about her treatment; even though the email mentioned race and gender
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 45 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
46
discrimination (albeit one time in a 15-paragraph email). Id. (citing 805 F. App’x 622, 632 (11th
Cir. 2020)). There, the Eleventh Circuit found that the email was not protected activity because
the conduct alleged was not close enough to unlawful discrimination to support an objectively
reasonable belief of discrimination. Id. (citing 805 F. App’x at 632). Similarly, Plaintiff’s only
mention of gender was a single question asking if her treatment was the result of her gender. Id.
Pursuant to Herron-Williams, Defendants contend this is insufficient. Id.
Defendants contend that Even if Plaintiff’s email constituted protected activity, there is no
temporal proximity between the email and adverse employment actions. Id. at 12. All of the
adverse employment actions occurred six months or more after Plaintiff’s 	email. Id. There is
similarly no causal connection between Plaintiff’s September 2023 HRFEP/PCB complaint and
her removal from the FTC position because Plaintiff was removed August 30, 2023. Id.
Finally, Defendants argue that nothing in the record gives rise to a convincing mosaic of
evidence to support a finding of intentional retaliation. Id. at 15. Major Solis confirmed that all of
his actions were based on Plaintiff’s conduct, not her protected characteristics or conduct, and
indeed, he was the same person who hired and fired her. Id.
Based on the evidence taken in the light most favorable to Plaintiff, the Court finds that no
reasonable jury could infer unlawful retaliation. As the Court discussed earlier, there are three
adverse employment actions at issue: Plaintiff’s first DAR (September 7, 2023), her removal from
the FTC position (August 30, 2023), and her second DAR (May 3, 2024). Plaintiff alleges a few
purported complaints: her email to Captain Howett (March 10, 2023), her complaints to Chief
Beato-Dominguez (August 30, 2023), her meeting with Chief Beato-Dominguez and Major Solis
(September 5, 2023), her FRFEP/PCB complaints (September 11–13, 2023), and her complaints
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 46 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
47
to Chief Garcia (April 24, 2024). ECF No. [43] at 5. The Court begins with Plaintiff’s email to
Captain Howett on March 10, 2023.
In that email, spanning five pages, Plaintiff asks, “Is the fact that I am a female supervisor
the reason that you feel subordinates do not need to be respectful towards me . . . ?” ECF No. [37-
11] at 3. Plaintiff makes no other mention or race, gender, sex, being White, or being a woman.
See generally id. The email does not reference any adverse employment actions and instead raises
what can only be characterized as “ordinary tribulations of the workplace.” Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted). Plaintiff takes issue with the handling of
leave for her subordinates, staffing matters, feeling unsupported and unable to discipline
subordinates, feeling that her authority has been undermined, and similar subjects. See generally
ECF No. [37-11]. Indeed, Plaintiff’s question regarding her sex was raised in the context of her
concern that subordinates were not required to respect her and that supervisors could ignore her
and appoint subordinates to do her job.
Nothing raised in this email constitutes unlawful discrimination. Thus, the Court is guided
by the reasoning in Herron-Williams. There, the plaintiff wrote a three-page email detailing what
she described as “highly unprofessional and unethical” treatment of her. 805 F. App’x at 625. She
concluded, “In my case, the intolerable actions of . . . administrators can only be based on gender,
age, or educational background if not race and ethnicity. A hostile work environment has been
created.” Id. Five weeks later, she was demoted. Id.
The Eleventh Circuit concluded that the conduct alleged in the email was “simply not close
enough to race or gender discrimination to support an objectively reasonable belief that [her
employer] was unlawfully discriminating against her.” Id. at 632. Inexplicability does not give rise
to an inference of unlawful discrimination. Id. This is especially so where the plaintiff’s only
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 47 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
48
explanation for her accusation of discrimination is “a single, conclusory sentence” in a “fifteen-
paragraph email.” Id.
The instant case is strikingly similar to the facts presented in Herron-Williams. Indeed,
Plaintiff’s email was longer, her allegation of discrimination more equivocal and conclusory
(insofar as it was a question rather than an accusation), and her examples of poor treatment equally
far from adverse employment actions. Fundamentally, the objective reasonableness of a belief “is
measured by reference to controlling substantive law.” Furcron v. Mail Cntrs. Plus, LLC, 843 F.3d
1295, 1311 (11th Cir. 2016) (citing Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1214 (11th Cir.
2008)). But far from showing discrimination in her email, Plaintiff did not show even a “close
case.” Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999). As such, Plaintiff’s
beliefs about discrimination could not have been objectively reasonable, and her email was not
protected activity.
Even if Plaintiff’s email constituted protected activity, Plaintiff’s allegations of close
temporal proximity fall flat. Plaintiff sent her email to Captain Howett on March 10, 2023. ECF
No. [37] at ¶ 21. Her removal from the FTC position occurred on August 30, 2023, and her first
DAR was initiated September 7, 2023, over six months later. The Eleventh Circuit has indicated
that a three to four-month disparity between statutorily protected expression and adverse
employment action is not enough on its own to establish causation. Thomas v. Cooper Lighting,
Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (citing Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001); Hughes v. Derwinski, 967 F.2d 1168, 1174–75 (7th Cir. 1992)); see also Grant
v. Miami-Dade Cnty. Water & Sewer Dep’t, 636 F. App’x 462, 469 (11th Cir. 2015) (finding that
a three to four-month period between the protected activity and adverse action is “too attenuated”
to show causation (citing Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004))). Moreover,
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 48 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
49
while close temporal proximity can go a long way toward establishing a causal connection, “an
intervening act of misconduct” can “diminish[] any inference of causation.” Henderson v. FedEx
Express, 442 F. App’x 502, 507 (11th Cir. 2011) (citation omitted). Plaintiff’s petition activity
occurred August 21, 2023, and represents a significant intervening act of misconduct. And none
of this takes into account that Plaintiff’s explanation—that Major Solis was acting on his threat—
does not logically make sense; Major Solis allegedly threatened to remove Plaintiff if she sent
another accusatory email; Plaintiff did not send a new email or new complaint at the time she was
removed from the FTC position. ECF No. [43-1] at 42 (acknowledging that Plaintiff sent her
complaint to Captain Beato-Dominguez after being removed from the FTC position). In light of
those considerations, the Court finds that Plaintiff cannot show retaliation with respect to her
March 10, 2023 email.
As to Plaintiff’s HRFEP and PCB complaints, filed September 11, 2023 and September
13, 2023, the Court similarly finds that no inference of retaliation can be drawn. Plaintiff was
removed from the FTC position by Major Solis August 30, 2023, ECF No. [37] at ¶ 23, and the
first DAR was initiated by Captain Meyer September 7, 2023, id. at ¶ 26, both before the
complaints were filed. The second DAR was initiated by Captain Diaz de Villegas on May 3, 2024,
Id. at ¶ 35, eight months after the complaints were filed.
To show a causal link, Plaintiff must “at a minimum, generally establish that the defendant
was actually aware of the protected expression at the time the defendant took the adverse
employment action.” Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997)
(citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)). Plaintiff alleges that
her “supervisors” were aware that she was planning to file a PCB complaint following her
September 5, 2023 meeting with Chief Beato-Dominguez and Major Solis. ECF No. [43-1] at 38.
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 49 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
50
But Plaintiff has offered no evidence that anyone was aware of her plan to submit a PCB complaint
on August 30, 2023. Indeed, this would not have been possible, as Plaintiff was first “referred []
to file [her] complaint with the” PCB at the September 5, 2023 meeting. ECF No. [43-1] at 53.
Plaintiff alleges that her “supervisors were well aware of the fact that [she] was preparing
my PCB complaint when [she] left that meeting.” Id. This makes sense in the cases of Chief Beato-
Dominguez and Major Solis, as they were at the meeting. But Plaintiff provides no evidence
beyond her “conclusory say-so” that Captain Meyer was aware of her intention to file a PCB
complaint on September 7, 2023, when he initiated the first DAR. Flowers v. Troup Cnty., Ga.,
Sch. Dist., 803 F.3d 1327, 1337 (11th Cir. 2015). The Eleventh Circuit’s logic in Raney v. Vinson
Guard Services, Inc. guides the Court’s reasoning:
[Plaintiff] submitted no direct evidence indicating that she told [Captain Meyer] of
her threatened legal action. And while we have held that awareness of protected
expression may be established based on circumstantial evidence, our cases have
required plaintiffs to show a defendant’s awareness with more evidence than mere
curious timing coupled with speculative theories.
Raney, 120 F.3d at 1197 (citing Goldsmith, 996 F.2d at 1163). Plaintiff does not claim that Major
Solis or Chief Beato-Dominguez told Captain Meyer about Plaintiff’s plan to submit a PCB
complaint. There is simply nothing from which a reasonable juror could conclude that Captain
Meyer was aware of Plaintiff’s intended complaint at the time he initiated the first DAR. And the
second DAR, initiated May 3, 2024 by Captain Diaz de Villegas, is far too temporally attenuated
to support a causal connection. Indeed, the second DAR came approximately eight months after
Plaintiff’s HRFEP/PCB complaints, well beyond the three-to-four-month disparity that the
Eleventh Circuit has found too long to support a finding of causal connection on its own. See
Thomas, 506 F.3d at 1364; Grant, 636 F. App’x at 468–69 (citing Higdon, 393 F.3d at 1220).
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 50 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
51
Even if there was evidence that Captain Diaz de Villegas knew about Plaintiff’s
HRFEP/PCB complaints at the time he initiated the second DAR, it does not change the Court’s
analysis. For one, the time gap is simply too great, as described above. Moreover, Plaintiff engaged
in an “intervening act of misconduct” which, in this case, serves to break the causal chain.
Henderson, 442 F. App’x at 507 (citation omitted). Specifically, she called Captain Diaz de
Villegas “sweetie” during a meeting and directly ignored his orders by calling the director during
the middle of the meeting. ECF No. [37] at ¶ 35. And as a more general matter, an employee that
engages in protected activity is not forever thereafter shielded from otherwise appropriate
discipline. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1270 (11th Cir. 2010). So even
if Captain Diaz de Villegas knew of Plaintiff’s complaints, it does not change that Plaintiff engaged
in behavior that warranted, justified, and explained her discipline.
The final matter to address is whether a reasonable jury could infer a causal connection
between Plaintiff’s April 24, 2024 complaints to Chief Garcia and Captain Diaz de Villegas’
initiation of a DAR on May 3, 2024. Plaintiff alleges that Captain Diaz de Villegas “knew what
[she] was discussing with Chief Garcia,” given the manner in which her memo to Chief Garcia
was submitted. ECF No. [43-1] at 31. Even taking it as true that Captain Diaz de Villegas knew
about the content of Plaintiff’s meeting with Chief Garcia, yet again, an intervening event disrupts
the causal chain. That is, the meeting during which Plaintiff called Captain Diaz de Villegas
“sweetie” and directly ignored his orders occurred on May 1, 2024, ECF No. [42] at ¶¶ 14–20.
This undermines any inference of a causal connection between the meeting with Chief Garcia and
the second DAR.
Fundamentally, Plaintiff fails to offer evidence that can support a causal connection
between any protected activity and adverse employment actions. The complaints she references
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 51 of 52

Case No. 25-cv-20795-BLOOM/Elfenbein
52
are either not objectively reasonable, too temporally distant from the adverse employment actions,
or followed by an intervening act of misconduct that breaks the causal chain. Summary judgment
is appropriate on Plaintiff’s retaliation claims and her § 1983 claim to the extent it relies on
underlying retaliation.
IV. 	CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. 	Defendant’s Motion for Summary Judgment, ECF No. [38], is GRANTED.
2. 	Summary Judgment is granted in favor of Defendant and against Plaintiff as to
COUNTS I–VII.
3. 	The Clerk of Court shall CLOSE this case.
4. 	To 	the 	extent 	not 	otherwise 	disposed 	of, 	any 	scheduled 	hearings 	are
CANCELED, all pending motions are DENIED AS MOOT, and all deadlines
are TERMINATED.
DONE AND ORDERED in Chambers at Miami, Florida, on March 25, 2026.
_________ _______________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
Case 1:25-cv-20795-BB Document 56 Entered on FLSD Docket 03/25/2026 Page 52 of 52