Makere v. Allstate Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ELIAS MAKERE, FSA, MAA,

Plaintiff,

v. Case No. 3:20-cv-905-MMH-JRK

ALLSTATE INSURANCE

COMPANY,

Defendant.

ELIAS MAKERE, FSA,

Plaintiff,

v. Case No. 3:20-cv-921-MMH-JRK

ALLSTATE INSURANCE

COMPANY,

Defendant.

ELIAS MAKERE,

Plaintiff,

v. Case No. 3:20-cv-922-MMH-JRK

ALLSTATE INSURANCE

COMPANY,

Defendant.

ORDER1

THIS CAUSE is before the Court on Defendant’s Dispositive Motion to

Dismiss Plaintiff’s Complaint With Prejudice, and Memorandum of Law in

Support Thereof (Doc. 4; Motion) filed in each of the above captioned cases on

August 21, 2020. In the Motion, Defendant Allstate Insurance Company

moves to dismiss the Complaint for Employment Discrimination (Doc. 1;

Complaint) in its entirety pursuant to Rules 12(b)(6) and 12(b)(1), Federal Rules

of Civil Procedure (Rule(s)). See Motion at 1. On October 2, 2020, Plaintiff

Elias Makere, who is proceeding pro se, filed a response in opposition to the

Motion. See Plaintiff’s Response in Opposition to Defendant’s Motion to

Dismiss (Doc. 12; Response). Accordingly, this matter is ripe for review.

I. Extrinsic Evidence

As an initial matter, the Court observes that both parties attached

numerous exhibits to their briefs. See Motion, Exs. A-E, G,H, J, K; Defendant’s

Notice of Filing Redacted Exhibits F and I in Support of Defendant’s Dispositive

Motion to Dismiss (ECF 4) (Doc. 6), Exs. F, I; Response, Exs. A-O; Plaintiff’s

Affidavit in Support of Plaintiff’s Response in Opposition to Defendant’s Motion

to Dismiss (Doc. 13; Makere Aff.). With the exception of the Makere Affidavit,

1 On August 31, 2020, the Court entered an Order consolidating the above-captioned

cases, directing the Clerk of the Court to terminate any pending motions in the later-filed

cases, 3:20-cv-921 and 3:20-cv-922, and instructing the parties to make all future filings in the

lead case only, 3:20-cv-905. See Order (Doc. 7) at 2-3. Accordingly, all citations to the docket

in this Order refer to the lead case, 3:20-cv-905, unless otherwise stated.

these exhibits consist of filings, decisions and other records from prior

administrative and state court proceedings between Makere and Allstate.

Neither party appears to object to the Court’s consideration of the opposing

party’s exhibits, nor do either Makere or Allstate dispute the authenticity of

these documents.

In general, a district court “must convert a motion to dismiss into a motion

for summary judgment if it considers materials outside the complaint.” See

Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005) (citing Rule 12(b),

Federal Rules of Civil Procedure (Rule(s))). However, the Eleventh Circuit

recognizes certain exceptions to this rule. See Horne v. Potter, 392 F. App’x

800, 802 (11th Cir. 2010). As relevant here, courts may consider properly

judicially noticed documents in resolving a motion to dismiss. See id. (holding

that the district court “properly took judicial notice” of documents which were

“public records that were ‘not subject to reasonable dispute’ because they were

‘capable of accurate and ready determination by resort to sources whose

accuracy could not reasonably be questioned’” (quoting Fed. R. Evid. 201(b));

Fed. R. Evid. 201(d) (“The court may take judicial notice at any stage of the

proceeding.”). Other than the Makere Affidavit, the exhibits attached to the

Motion and Response are part of the administrative and state court record and

not subject to reasonable dispute. As such, the Court will take judicial notice

of these documents. See Fed. R. Evid. 201(b)(2); Horne, 392 F. App’x at 802;

Miller v .Fla. Hosp. Waterman, No. 5:13-cv-249-Oc-10PRL, 2013 WL 5566063,

at *3 n.2 (M.D. Fla. Oct. 8, 2013) (taking judicial notice of FCHR and EEOC

records); Hawthorne v. Baptist Hosp., Inc., No. 3:08cv154/MCR/MD, 2008 WL

5076991, at *3-4 (N.D. Fla. Nov. 24, 2008).

As to the Makere Affidavit, Makere appears to have prepared this

Affidavit solely for the purpose of filing it in this case and not as a part of the

administrative proceedings. Thus, the Court may not take judicial notice of

this document, see Fed. R. Evid. 201(b), nor can the Court discern any other

basis which would allow consideration of the Makere Affidavit at this stage in

the proceedings. See Day, 400 F.3d 1272, 1276 (11th Cir. 2005) (explaining

that courts may consider extrinsic evidence at the motion to dismiss stage when

a document is “(1) central to the plaintiff’s claim and (2) undisputed”).

Regardless, the Affidavit merely presents Makere’s view that the effective date

of his termination is August 12, 2016, not September 12, 2016, as stated in the

Motion. See Makere Aff. ¶ 6; Motion at 2. However, whether Makere’s

termination effectively occurred on August 12th, when Makere ceased working

for Allstate, or on September 12th, when Allstate stopped paying Makere, is not

relevant to the issues to be decided in this Order. See Makere Aff. ¶¶ 7, 8.

Thus, even if the Court were to consider the Affidavit, it would have no impact

on the resolution of the Motion.

II. Background

According to the allegations of his Complaint, Makere worked for Allstate

from November 18, 2013, until he was terminated on August 12, 2016. See

Complaint for Employment Discrimination (Doc. 1; Complaint) ¶¶ 8, 36.

Makere asserts that throughout his employment with Allstate, he endured race

and sex-based discrimination and harassment from numerous co-workers and

supervisors. See Complaint ¶¶ 12-32. He contends that he filed internal

complaints of discrimination with Allstate and suffered retaliation as a result.

Id. ¶¶ 27-32. Ultimately, after Makere failed to pass his ninth actuarial exam,

a condition of his continued employment in Allstate’s Actuarial Career Program

(ACP), Allstate terminated him. Id. ¶¶ 33-36. Makere alleges that his

termination was discriminatory as other non-black employees also failed to

satisfy the requirements of the ACP and were not terminated. Id. ¶¶ 37-39.

On June 30, 2017, Makere filed a charge of discrimination with the

Florida Commission on Human Rights (FCHR). Id. ¶ 43. In April of 2018,

while the administrative charge was pending, Makere was hit by a car while

riding his bicycle. Id. ¶ 46. Makere connects this event to Allstate because in

November of 2015, an Allstate employee saw Makere on his bicycle after dark

in the parking lot and allegedly cautioned him, “in an ominous tone,” to “‘be

careful on [his] bike.’” Id. ¶¶ 46, 25. Makere interpreted this statement as a

threat, which he contends “came to fruition” when he was hit by a car nearly

two and a half years later. Id. ¶¶ 25, 46. In addition, according to Makere, a

person by the name of Kirk Higgins, purportedly at Allstate’s direction, filed

“unauthorized documents” attacking Makere in the administrative proceedings.

Id. ¶¶ 45, 48. Makere also alleges that in July of 2018, Allstate somehow

induced his former employer, Genworth Financial, to substantially reduce

Makere’s retirement benefits. Id. ¶ 49. Based on the discrimination and

retaliation he allegedly endured during and after his employment with Allstate,

Makere filed the Complaint in which he asserts claims for race discrimination

(Count I), sex discrimination (Count II), and retaliation (Count III) pursuant to

the Florida Civil Rights Act (FCRA), sections 760.01 – 760.11 of the Florida

Statutes, as well as a claim for race discrimination (Count IV) pursuant to 42

U.S.C. § 1981.2

In the instant Motion, Allstate moves to dismiss Makere’s claims in their

entirety. Allstate asserts that Makere’s FCRA claims are procedurally barred

pursuant to Florida Statutes section 760.11(7), because the administrative

review process concluded with a “no reasonable cause” finding. See Motion at

8-11. Allstate further contends that Makere’s state law claims are barred

under the doctrines of res judicata and collateral estoppel. Id. at 11-17.

2 As discussed further below, Makere also filed two lawsuits in state court which, upon

removal, were consolidated with this lead case. The Amended Complaints in the removed

cases are identical to the Complaint in the lead case in all material respects. See Amended

Complaint (Case No. 3:20-cv-921, Doc. 3); Amended Complaint (Case No. 3:20-cv-922, Doc. 3).

Likewise, Allstate maintains that Makere’s § 1981 race discrimination claim is

collaterally estopped as well. Id. at 17-18. In addition, to the extent Makere

asserts a claim based on the events allegedly taking place in 2018, Allstate

argues that Makere cannot state a valid claim for relief based on these actions

as they occurred subsequent to his termination and are therefore not “tangible

employment actions” actionable under the FCRA or § 1981. Id. at 19. Allstate

also contends that Makere fails to allege facts plausibly connecting Allstate to

the 2018 events. Id. at 19-20.

In the Response, Makere asserts that he has adequately alleged a claim

for relief and points to the allegation in the Complaint that “Defendant only

fired the black man who failed an actuarial exam.” See Response at 11

(quoting Complaint ¶ 51). He does not respond to Allstate’s contention that

his allegations regarding the events of 2018 do not form the basis of a valid

claim. As to Allstate’s res judicata arguments, Makere contends that this

doctrine does not apply because his sex discrimination claims, and the events

of 2018 were not considered during the administrative review process. Id. at

16-17. Likewise, Makere contends that collateral estoppel does not apply

because the instant case involves “many different issues” than those which were

addressed in the administrative proceedings, most notably his sex

discrimination claims, certain aspects of his race discrimination claims, and the

events of 2018. Id. at 20-21.

III. Administrative History

A. First Administrative Charge

As stated above, Makere filed his first charge with the FCHR on June 30,

2017. See Motion, Ex. A (Doc. 4-1; 2017 FCHR Charge). On December 15,

2017, the FCHR issued a “No Reasonable Cause” determination, id., Ex. B, in

response to which Makere promptly filed a 232-page petition for relief with the

Division of Administrative Hearings (DOAH), id., Ex. C (Doc. 4-3; 2018

Petition). After substantial motion practice and an evidentiary hearing

spanning four days, the Administrative Law Judge (ALJ) issued a

Recommended Order on April 18, 2019. See Motion, Ex. D (Doc. 4-4;

Recommended Order). In the 111-page Recommended Order, the ALJ made

numerous findings of fact and conclusions of law regarding Makere’s claims.

The ALJ determined that many of Makere’s claims were time-barred, id. ¶¶

266-67, but ultimately concluded that regardless, Makere had failed to meet his

burden of establishing race discrimination, sex discrimination, sexual

harassment, hostile work environment, or retaliation. See id. ¶¶ 275, 279, 296,

301, 302, 315.

In his Response, Makere cites to evidence that during the administrative

proceedings, the ALJ entered an Order on Respondent’s Motion to Strike,

instructing that evidence as to certain of Makere’s allegations would be

excluded because the incidents were not properly raised in his underlying

FCHR Charge, or were otherwise time-barred. See Response, Ex. G.

Nevertheless, at the evidentiary hearing, the ALJ permitted Makere to present

evidence on any matters identified in the investigative memorandum. See

Recommended Order ¶¶ 46-47. The ALJ also noted in the Recommended

Order that Makere spent “considerable time” at the evidentiary hearing

addressing matters “that he claimed were provided to FCHR, but which were

not included in the [2017 FCHR Charge], or discussed in the [investigative

memorandum.]” Id. ¶ 177. Notably, the ALJ stated in the Recommended

Order that “to ensure as complete a record as possible for consideration by the

FCHR, findings as to as many allegations as are identifiable will be made

herein.” See Recommended Order ¶ 47 (emphasis added). Indeed, the ALJ

set forth at length the testimony presented at the evidentiary hearing regarding

the various alleged incidents of race or sex discrimination or harassment, and

ultimately found that Makere had failed to present sufficient evidence to

sustain his charges.

Significantly, the ALJ made ultimate factual findings that:

the decision to remove [Makere] from the ACP was one required by the

ACP Guidelines and applied equally to each employee that failed to meet

the one-in-three rule [concerning the passage of actuarial exams]. The

decision to not offer continued employment in a different position . . .

was based on his inability to become [a Fellow of the Society of

Actuaries], thus, being able to succeed [his supervisor] upon her

retirement, his unwillingness to work in a collaborative manner with

Allstate’s employees, managers, and business partners, and his inability

to complete tasks assigned.

See Recommended Order ¶ 246. As to Makere’s myriad other allegations of

discriminatory and harassing treatment, the ALJ concluded:

[Makere’s] statements alone do not provide the support to sustain his

charge of discrimination. A review of the entire record of this

proceeding reveals no corroborative evidence that many of the alleged

statements and comments even occurred, much less that they were the

result of racial or sexual discrimination, harassment, animus or bias, or

that they were retaliation for opposing or participating in a proceeding

regarding such discrimination.

See id. ¶ 247. Likewise, the ALJ determined that “[d]uring the period of his

employment, [Makere] never reported to anyone at Allstate that he believed he

was being subjected to racial or sexual discrimination or harassment.” Id. ¶

209.

As for his conclusions of law, the ALJ found that discrete discriminatory

acts occurring prior to June 30, 2016, were time-barred, id. ¶¶ 266-67, but that

whether time-barred or not, Makere had failed to present any evidence of

discriminatory intent, id. ¶ 294. The ALJ also evaluated the totality of the

evidence, including acts which occurred outside the statutory limitations

period, in order to resolve Makere’s hostile work environment claims, see id. ¶¶

268-70, and found that Makere had failed to establish that he was subjected to

a hostile work environment based on race or sex, id. ¶¶ 295-96, 302. In

addition, the ALJ determined that Makere had failed to prove that he was

subjected to sex discrimination, id. ¶¶ 301, and that Makere “did not meet his

burden to establish a prima facie case of discrimination by retaliation,” id. ¶

315.

On June 27, 2019, the FCHR entered a Final Order Dismissing Petition

for Relief from an Unlawful Employment Practice in which it adopted the ALJ’s

factual and legal findings and dismissed Makere’s 2017 FCHR Charge and 2018

Petition with prejudice. See Motion, Ex. E (Doc. 4-5; Final Order). As

permitted under Florida law, see Fla. Stat. § 120.68, Makere appealed the

FCHR’s Final Order to Florida’s First District Court of Appeal. The First

District Court of Appeal found no basis to set aside the Final Order and issued

a decision affirming it on July 13, 2020. See Motion, Ex. K.

B. Second Administrative Charge

While the 2017 FCHR Charge was still working its way through the

administrative process, Makere filed a second charge of discrimination with the

FCHR, which was received on April 26, 2019. See Motion, Ex. F (Doc. 6-1; 2019

FCHR Charge). In the 2019 FCHR Charge, Makere checked the boxes for

discrimination based on race, color, sex, and retaliation. Id. In the narrative

portion of the Charge, Makere primarily addressed his termination, although

he also noted “5 Years of racial/sexual harassment,” to include “Racist Dolls,

Racist Characterizations,” “Date Requests (Dinner-&-a-Movie),” and “Targeted

discrimination.” Id. In addition, he stated that Allstate retaliated against

him for complaining, and that “[t]he most recent act of retaliation occurred in

July 2018.” Id. He did not identify or describe the alleged July 2018 act of

retaliation in the Charge. On October 18, 2019, the FCHR issued a “No

Reasonable Cause” determination, finding that the “facts and claims are

identical” to the 2017 FCHR Charge, and further that the claims are untimely

as they are “based on events that took place in 2016.” See Motion, Ex. G. On

June 1, 2020, the FCHR issued an amended notice. Id., Ex. H (Doc. 4-8;

Amended Notice). In the Amended Notice, the FCHR explained that the

previous notice was mailed to Makere’s “legal representative in a former

matter,” and as a result, the FCHR issued the amended determination

“addressed directly to [Makere] at his mailing address on record.” Id. The

FCHR further stated that “[n]o other changes were made” to its October 18,

2019 determination. Id. The Amended Notice informed Makere that he had

thirty-five days from the date the amended notice was signed, June 1, 2020, to

file a petition seeking an administrative hearing. Id.

Makere filed his petition with the DOAH on July 6, 2020. Id., Ex. I. On

July 7, 2020, the ALJ entered an Order Relinquishing Jurisdiction and Closing

File in which he found that:

There are no disputed issues of material fact for disposition that lead to

any conclusion but that, applying the doctrines of res judicata, collateral

estoppel, and administrative finality, the [2019 FCHR Charge] should

be dismissed with prejudice. It is clear from the face of the [2019 FCHR

Charge] that there are no amendments that would overcome the fact

that each of the allegations contained therein have been fully litigated,

and that any proposed amendment would be futile.

See Motion, Ex. J at 3. With respect to the unspecified acts of retaliation in

July 2018, the ALJ stated that “there can be no dispute that the last possible

discriminatory and unlawful employment practice that could have been taken

by Allstate would have been the act of terminating [Makere],” which occurred

in 2016. Id., Ex. J at 1. The ALJ reasoned that “[s]ince [Makere] was

terminated on September 12, 2016, there could be no significant change in

[Makere’s] circumstances that would be cognizable pursuant to [the FCRA].

Id., Ex J at 3. As such, the ALJ relinquished jurisdiction to the FCHR “for

entry of a final order dismissing” Makere’s petition. Neither party submits any

evidence as to whether or when that order was entered.3

C. New Lawsuits

On July 2, 2020, while his appeal of the 2017 FCHR Charge was still

pending before the First District Court of Appeal, and shortly before he filed a

petition for review of his 2019 FCHR Charge, Makere filed a lawsuit against

Allstate in Florida state court. See Notice of Removal, Ex. 1 (Case No. 3:20-cv-

921, Doc. 1-1). In that lawsuit, Makere asserted claims under the FCRA for

race and sex discrimination, as well as retaliation premised on the same

allegations described above. On July 6, 2020, the same day that he filed his

3 Pursuant to the section 760.11(7) of the Florida Statutes, the FCHR must issue a

final order by adopting, rejecting, or modifying the recommended order within ninety days.

Makere initiated the instant lawsuits and Allstate filed the Motions for dismissal prior to the

expiration of the ninety-day period.

petition for review of the 2019 FCHR Charge, Makere also initiated a second

lawsuit in Florida state court. See Notice of Removal, Ex. A (Case No. 3:20-cv-

922, Doc. 1-1). The complaint in this second lawsuit is largely, if not entirely,

identical to that filed in the first lawsuit. On July 15, 2020, Makere filed an

amended complaint in both cases adding a claim for race discrimination under

42 U.S.C. § 1981. See Amended Complaint (Case No. 3:20-cv-921, Doc. 3);

Amended Complaint (Case No. 3:20-cv-922, Doc. 3). On August 12, 2020,

Makere filed a lawsuit against Allstate in this Court, alleging claims of

discrimination and retaliation under the FCRA, as well as asserting a claim of

race discrimination under 42 U.S.C. § 1981. See Complaint for Employment

Discrimination (Doc. 1). The allegations and claims in this third lawsuit are

also identical to those of the state court lawsuits in all material respects. On

August 14, 2020, Allstate removed the two state court actions to this Court

where they were consolidated with the lead case before the undersigned as

noted above.

IV. Florida Civil Rights Act (Counts I – III)

A. Administrative Requirements

“As a prerequisite to bringing a civil action based upon an alleged

violation of the FCRA, [a] claimant is required to file a complaint with the

FCHR within 365 days of the alleged violation.” See Woodham v. Blue Cross

& Blue Shield of Fla., Inc., 829 So. 2d 891, 894 (Fla. 2002) (citing Fla. Stat. §

760.11(1)). Significantly, under the FCRA, an aggrieved party may seek

redress in court, “only after the [Florida Commission on Human Relations

(FCHR)] determines there is reasonable cause to believe that unlawful

discrimination occurred, or the charge remains unresolved for 180 days . . . .”

See Sheridan v. State of Fla., Dep’t of Health, 182 So. 3d 787, 792 (Fla. 1st Dist.

Ct. App. 2016). If, within the 180-day period, the FCHR makes a

determination that there is no reasonable cause, then “the claimant is limited

to review before an administrative law judge under Chapter 120, Florida

Statutes, and cannot file a civil action unless that review is successful.” Id.

(emphasis added) (citing Fla. Stat. § 760.11(7)). Indeed, “‘[o]nce a complainant

pursues an administrative hearing, he or she may only file suit if (1) the hearing

officer finds a violation of the FCRA; and (2) the commission adopts the hearing

officer’s recommendation.’” See Miller, 2013 WL 5566063, at *3 (quoting

Santillana v. Fla. State Court Sys., No. 6:09–cv–2095–Orl–19KRS, 2010 WL

271433, at *5 (M.D. Fla. Jan. 15, 2010)). As such, unless overturned through

the administrative process, “a ‘no cause’ determination precludes a civil suit

under the FCRA . . . .” See Woodham, 829 So. 2d at 895.

B. Discussion

In Counts I-III of the Complaint, Makere asserts claims of race and sex

discrimination, as well as retaliation, under the FCRA. As described at length

above, Makere availed himself of the administrative process required under

Florida law but was ultimately unsuccessful. Thus, Makere cannot pursue his

FCRA claims in this or any court. See Miller, 2013 WL 5566063, at *4;

Hawthorne, 2008 WL 5076991, at *5; Santillana, 2010 WL 271433, at *5-6; see

also Woodham, 829 So. 2d at 895. Makere raises two arguments in an attempt

to avoid this result. First, Makere maintains that the FCHR failed to consider

some of his claims based on a finding that Makere did not properly raise them

in his 2017 FCHR Charge, or that they were time-barred. Notably, the record

shows that contrary to Makere’s argument, the ALJ made substantive findings

on numerous allegations that were otherwise untimely or not raised in the

underlying Charge. But regardless, to the extent the FCHR rejected some of

Makere’s claims as untimely or outside the scope of his Charge, such a

determination does not entitle Makere to pursue his FCRA claims in court. As

stated above, unless the FCHR fails to issue a determination in 180 days, a

claimant must successfully complete the administrative review process before

he can pursue a claim in court. See Woodham, 829 So. 2d at 895-96;

Santillana, 2010 WL 271433, at *5-6. Makere presents no authority to suggest

that a complainant is entitled to bring a civil suit on claims that the FCHR

dismissed without reaching the merits and there is nothing in the statute that

supports such an interpretation.4 Indeed, such an outcome would contravene

4 Rather, if the agency’s decision was erroneous, Makere’s remedy was to seek judicial

review of the agency decision pursuant to Florida’s Administrative Procedures Act. See

Santillana, 2010 WL 271433, at *5-6. Indeed, Makere unsuccessfully pursued such relief in

the purposes of Florida’s administrative exhaustion requirement by allowing a

claimant to pursue claims in court that he had not properly and timely raised

before the FCHR.

Makere also contends that he can proceed with a civil suit because the

FCHR failed to render a decision on his 2019 FCHR Charge within the statutory

180-day period. This argument is also unavailing. As set forth above, the

FCHR issued a “No Cause” determination regarding the 2019 FCHR Charge on

October 18, 2019, within the 180-day period. See Motion, Exs. F-G. When the

FCHR later determined that it had sent the notice of its determination to the

wrong person, it issued the Amended Notice solely for the purpose of mailing

the decision to Makere. See Motion, Ex. H. In the Amended Notice, the

FCHR expressly stated that it made “no other changes” to the determination.

See id. The FCHR’s decision to issue the Amended Notice, without substantive

changes and merely to correct the mailing address, does not nullify its initial,

timely “No Cause” determination and does not permit Makere to proceed with

his FCRA claims in court. See Davis v. Bob Evans Farms, LLC, 649 F. App’x

869, 872-74 (11th Cir. 2016). Thus, Makere’s contention that he can pursue a

civil suit based on the Amended Notice is without merit. Id.

the First District Court of Appeal with respect to his 2017 FCHR Charge. See Motion, Ex. K.

Makere is not entitled to bring his FCRA claims anew in state or federal court simply because

he does not like the outcome of the administrative process.

In sum, the record establishes that the FCHR rendered timely “No Cause”

determinations on Makere’s Charges, and Makere did not succeed in his

attempts to overturn those determinations through the administrative process.

As such, Makere is administratively barred under section 760.11(7) of the

Florida Statutes from pursuing his FCRA claims here. The Court will grant

the Motion as to Counts I-III of the Complaint and dismiss the FCRA claims in

their entirety.

V. 42 U.S.C. § 1981 (Count IV)

In Count IV, Makere brings a claim titled “Race Discrimination” pursuant

to 42 U.S.C. § 1981. See Complaint at 15. “Section 1981 prohibits intentional

race discrimination in the making and enforcement of public and private

contracts, including employment contracts.” Ferrill v. Parker Grp., Inc., 168

F.3d 468, 472 (11th Cir. 1999).5 Notably, race discrimination and hostile work

5 Section 1981 provides:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white

citizens, and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and no other.

(b) Make and enforce contracts' defined

For purposes of this section, the term ‘make and enforce contracts' includes

the making, performance, modification, and termination of contracts, and the

environment claims under the FCRA and § 1981 are governed by the same

requirements of proof and analytical framework. See Edmond v. Univ. of

Miami, 441 F. App’x 721, 723 (11th Cir. 2011); Mosley v. MeriStar Mgmt. Co.,

LLC, 137 F. App’x 248, 251-52 & n.1 (11th Cir. 2005). However, unlike the

FCRA, § 1981 does not contain any administrative exhaustion requirements.

See Mathis v. Leggett & Platt, 263 F. App’x 9, 12 (11th Cir. 2008) (stating that

“§ 1981 actions are not subject to the administrative exhaustion requirement”).

In support of his § 1981 claim, Makere alleges that Allstate treated

Makere “less favorably and unfairly compared to his non-black coworkers,” and

that the race-based offensive conduct was “so severe and pervasive they created

a hostile work environment” for Makere. See Complaint ¶ 61. Makere also

contends that Allstate’s “decision to terminate” Makere was racially motivated.

Id. ¶ 62. Significantly, Makere’s § 1981 race discrimination and hostile work

environment claims are premised on the same factual allegations pled in

support of the FCRA claims. Id. ¶ 60. Because Makere’s claims of race

discrimination and harassment during his employment with Allstate and

enjoyment of all benefits, privileges, terms and conditions of the contractual

relationship.

(c) Protection against impairment

The rights protected by this section are protected against impairment by

nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981 (2006).

through his termination were considered and addressed in the administrative

proceedings, Allstate contends that Makere’s § 1981 claim is subject to

dismissal under the doctrine of collateral estoppel. See Motion at 17-18. In

addition, to the extent Makere brings a § 1981 claim premised on post-

termination acts of retaliation, Allstate contends that the Court should dismiss

such a claim because: 1) the alleged acts of retaliation occurred after Makere

was terminated and therefore do not constitute employment actions, and 2)

Makere fails to state a claim in that his allegations do not plausibly link Allstate

to the alleged wrongdoing. See Motion at 19-20. The Court will address each

argument in turn.

A. Collateral Estoppel

Pursuant to 28 U.S.C. § 1738, federal courts must “give the same

preclusive effect to state court judgments that those judgments would be given

in the courts of the State from which the judgments emerged.” See Kremer v.

Chem Constr. Corp., 456 U.S. 461, 466 (1982). As such, “federal courts

consistently have applied res judicata and collateral estoppel to causes of action

and issues decided by state courts.” Id. at 467 n.6. “Collateral estoppel, or

issue preclusion, requires that once a court decides an issue necessary to its

judgment, that decision precludes relitigation of the same issue on a different

cause of action between the same parties.” See Barrington v. Fla. Dep’t of

Health, 112 F. Supp. 2d 1299, 1303 (M.D. Fla. 2000). This doctrine serves a

critical purpose in the judicial system in that it “‘relieve[s] parties of the cost

and vexation of multiple lawsuits, conserve[s] judicial resources, and, by

preventing inconsistent decisions, encourage[s] reliance on adjudication.’” Id.

(quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).

Significantly, “[a] state court’s decision upholding an administrative

body’s findings has preclusive effect in a subsequent federal court proceeding if:

(1) the courts of that state would be bound by the decision; and (2) the state

proceedings that produced the decision comported with the requirements of due

process.” See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)

abrogated on other grounds by Lewis v. City of Union City, Ga., 918 F.3d 1213,

1217-18 (11th Cir. 2019); see also Carlisle v. Phenix City Bd. of Educ., 849 F.2d

1376, 1378 (11th Cir. 1988). And indeed, “Florida courts recognize the

preclusive effect of state court decisions upholding administrative

determinations.” See Maniccia, 171 F.3d at 1368.6 Under Florida law,

collateral estoppel applies where:

“1) the identical issues were presented in a prior proceeding; 2) there

was a full and fair opportunity to litigate the issues in the prior

proceeding; 3) the issues in the prior litigation were a critical and

necessary part of the prior determination; 4) the parties in the two

6 Notably, “when a state agency acts in a judicial capacity and resolves issues of fact

properly before it which the parties have had an adequate opportunity to litigate, [federal

courts] give the agency’s fact-finding the same preclusive effect to which it would be entitled

in the state courts,” even if the fact-finding was not reviewed by a state court. See Quinn v.

Monroe Cnty., 330 F.3d 1320, 1328-29 (11th Cir. 2003) (citing Univ. of Tenn. v. Elliott, 478

U.S. 788, 799 (1986)).

proceedings were identical; and 5) the issues were actually litigated in

the prior proceeding.”

Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1078–79 (11th Cir. 2013)

(quoting Porter v. Saddlebrook Resorts, Inc., 679 So. 2d 1212, 1214-15 (Fla. 2d

Dist. Ct. App. 1996)); see also Cataldo v. St. James Epsicopal Sch., 213 F. App’x

966, 968 (11th Cir. 2007) (“For collateral estoppel to apply, Florida law requires

that an identical issue be fully litigated by the same parties or their privies and

that a final decision be rendered by a court of competent jurisdiction.”).

Here, there is no question the identical parties were involved in the state

administrative proceedings which were reviewed and affirmed by Florida’s

First District Court of Appeal, a court of competent jurisdiction. In addition,

whether Makere was subjected to race-based discrimination, harassment or

retaliation during his employment with Allstate, as well as whether his

termination was discriminatory or retaliatory, were critical and necessary

issues, fully litigated and resolved in the administrative process. Moreover,

discrimination claims under the FCRA and § 1981 are governed by the same

analytical framework and requirements of proof, such that the issues resolved

in the administrative proceedings and presented in the instant lawsuit are

identical. See Beem v. Ferguson, 713 F. App’x 974, 983 (11th Cir. 2018)

(explaining that “[i]ssues are ‘sufficiently identical’ when their elements and

requirements ‘closely mirror’ each other” (citation omitted)). Stated another

way, Makere could not succeed on his § 1981 discrimination claims in this

lawsuit in a manner consistent with the decision of the FCHR, which was

affirmed by the First District Court of Appeal, that Makere was not subject to

race discrimination, harassment or retaliation while he worked at Allstate or

in connection with his termination. See Kremer, 456 U.S. at 479-80.

Moreover, the record establishes that Makere had a full and fair

opportunity to litigate these issues in the administrative process. See id. at

482-95. Following an investigation of Makere’s claims by the FCHR, Makere

filed a petition challenging the FCHR’s findings and was afforded an

evidentiary hearing before an administrative law judge. The evidentiary

hearing spanned four days, during which time Makere presented the testimony

of fifteen witnesses, submitted exhibits, and testified on his own behalf. See

Recommended Order at 5-7. The ALJ extensively considered and addressed

the issue of whether Makere was the victim of race discrimination or

harassment during his time working at Allstate, and specifically whether

Makere’s eventual termination was motivated by race discrimination. After

making extensive factual findings, the ALJ determined that Makere had failed

to meet his burden to show that he was the victim of race discrimination,

harassment or retaliation while he was employed at Allstate. Likewise, the

ALJ found that Makere was terminated for failing to meet the ACP

requirements, and not due to any improper discriminatory or retaliatory

motive. Makere submitted exceptions to the ALJ’s findings which the FCHR

reviewed and rejected, entering a Final Order adopting the ALJ’s findings of

fact as well as his conclusions of law in full and dismissing Makere’s Petition.

See Response, Ex. E. Makere then appealed this dismissal to Florida’s First

District Court of Appeal where he obtained review of the Final Order by a

Florida appellate court that ultimately affirmed the findings in the Final Order.

Id., Ex. K. As the Supreme Court stated in Kremer, the Court has “no

hesitation in concluding that this panoply of procedures, complemented by

administrative as well as judicial review, is sufficient under the Due Process

Clause.” See Kremer, 456 U.S. at 484; see also Travers v. Jones, 323 F.3d 1294,

1296-97 (11th Cir. 2003); Maniccia, 171 F.3d at 1368; McCrimmon v. Daimler

Chrysler Corp., No. 6:05-cv-10-Orl-19DAB, 2005 WL 8159946, at *5 (M.D. Fla.

Nov. 9, 2005).

In his Response, Makere asserts that he was not able to fully and fairly

litigate his claims because the ALJ preliminarily excluded “30+ issues detailed

in [his] FCHR/DOAH charge,” preventing Makere from conducting discovery on

those issues. See Response at 20-21.7 In support, Makere cites to a May 18,

7 Makere also asserts that he was precluded from addressing the “sex discrimination

issue” during the administrative proceedings. See Response at 20-21. However, the § 1981

claim set forth in the Complaint is premised solely on race discrimination. See Complaint ¶¶

60-62. Indeed, sex discrimination claims are not cognizable under § 1981. See Runyon v.

McCrary, 427 U.S. 160, 167 (1976) (explaining that § 1981 is “in no way addressed” to

categories of selectivity such as gender or religion); see also Pate v. Chilton Cnty. Bd. of Educ.,

853 F. Supp. 2d 1117, 1129 (M.D. Ala. 2012) (collecting cases).

2018 order where the ALJ found that some of Makere’s allegations concerned

untimely acts such that evidence concerning those incidents would be excluded

from the evidentiary hearing. See Response at 5, 20, Ex. G.8 Notably, despite

this finding, the ALJ actually allowed Makere to present evidence on matters

well beyond those timely set forth in the FCHR Charge, including some of those

matters which the earlier order had determined would be excluded. See

Recommended Order at 3, 22-23 (allowing evidence on any matters identified

in the investigative memorandum, including allegations beyond those described

in the Complaint of Discrimination); id. at 60-61 (stating that [Makere] “spent

considerable time discussing matters that he claimed were provided to FCHR,

but which were not included in the Complaint of Discrimination or discussed in

the [investigative memorandum]”); compare Response, Ex. G at 3 with

Recommended Order at 47, 55, 64. In addition, the ALJ made factual findings

8 The administrative order on which Makere relies to argue that he was precluded from

presenting all of his evidence does not exclude as much evidence as Makere tries to suggest.

Although the ALJ determined that many of Makere’s allegations concerned time-barred acts,

the ALJ nevertheless reasoned that Makere could present evidence concerning many of those

acts as they were relevant to prove his other, timely claims. See, e.g., Response, Ex. G at 2,

5. Notably, the time-barred acts in the administrative proceedings were those that occurred

prior to June 30, 2016. See Recommended Order ¶ 266. Here, Makere’s § 1981 claims are

subject to a four-year statute of limitations, such that it appears discrete acts of discrimination

prior to July 15, 2016, would likely be subject to a statute of limitations defense in this action

as well. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382-83 (2004); McCray v. Wal-

Mart Stores, Inc., 377 F. App'x 921, 924 (11th Cir. 2010); see also Amended Complaint (Case

Nos. 3:20-cv-921 & 3:20-cv-922) (raising a § 1981 race discrimination case in state court as of

July 15, 2020).

“as to as many allegations as are identifiable” so as “to ensure as complete a

record as possible for consideration by the FCHR . . . .” See id. at 23.

Significantly, Makere does not identify any specific issue, relevant to this

case, that he did not have an opportunity to present in the administrative

proceedings, nor does he explain what discovery he was unable to obtain in

those proceedings. Also, the state appellate court found that Makere failed to

establish any “material error in procedure” that may have impaired the

“fairness of the proceedings,” and concluded that the administrative

proceedings “comported with all due process set out” by the relevant Florida

statutes. See Motion, Ex. K at 2. These determinations by the Florida

appellate court are entitled to preclusive effect. See Barrington, 112 F. Supp.

2d at 1308. Thus, regardless of the preliminary adverse evidentiary ruling, the

record as whole establishes that after a four-day evidentiary hearing, followed

by additional administrative review, and then judicial review in the state

appellate court, Makere had a full and fair opportunity to litigate his race

discrimination claims against Allstate. See Andela v. Univ. of Miami, 692 F.

Supp. 2d 1356, 1372-74 (S.D. Fla. 2010) (“[W]here a plaintiff has received an

administrative hearing that was adversarial in nature, then receives additional

layers of administrative review, and finally, is afforded an opportunity for

judicial review, there is no basis to conclude that the state proceedings failed to

comport with due process.”); see also Sadler v. Franklin Cnty. Sch. Dist., No.

3:10-CV-26 CDL, 2011 WL 3347864, at *8 (M.D. Ga. Aug. 3, 2011); Barrington,

112 F. Supp. 2d at 1308.

Because Makere’s § 1981 race discrimination claim in this case presents

the same issues that were fully litigated between these parties, subject to a final

decision by a Florida state court of competent jurisdiction, and necessary to that

decision, the Court finds that this claim is barred by collateral estoppel. See

Maniccia, 171 F.3d at 1368; Cataldo, 213 F. App’x at 968-69.9 Accordingly, to

the extent Makere’s § 1981 claim is premised on his termination, or alleged acts

of discrimination, harassment or retaliation that occurred while he was

employed at Allstate, it is due to be dismissed.

9 As noted below, Makere does not specifically raise a § 1981 retaliation claim in his

Complaint. Regardless, to the extent Makere asserts a § 1981 retaliation claim premised on

alleged acts of retaliation prior to and including his termination from Allstate, such claims are

also collaterally estopped. The ALJ made numerous factual findings as to the issue of

whether Makere was retaliated against during his employment and found that Makere failed

to “meet his burden to establish a prima facie case of discrimination by retaliation.” See

Recommended Order ¶ 315. The FCHR adopted those findings in full, see Motion, Ex. E, and

that decision was affirmed by Florida’s First District Court of Appeal, id., Ex. K. Notably,

the ALJ determined that “[t]he evidence firmly establishes that [Makere] never made any

complaint to anyone at Allstate regarding the allegedly discriminatory and harassing conduct

that he claims pervaded the workplace.” See Recommended Order ¶ 271; see also id. ¶¶ 209-

211 (“During the period of his employment, [Makere] never reported to anyone at Allstate that

he believed he was being subjected to racial or sexual discrimination or harassment.”). In the

Complaint, Makere identifies three instances when he purportedly reported race

discrimination or harassment. See Complaint ¶¶ 27, 29, 31. The ALJ heard evidence

regarding all three of these instances and found as to each one that Makere had failed to

establish that he actually reported or complained of race discrimination, bias or harassment

on these occasions. See Recommended Order ¶¶ 53, 89, 190, 308. As to the alleged acts of

post-termination retaliation in 2018, the Court will address those claims below.

B. Failure to State a Claim

The Court next considers Makere’s allegations regarding purportedly

retaliatory events that occurred in 2018, well after Allstate terminated

Makere’s employment, but while the administrative process was pending. See

Complaint ¶¶ 43-49. Although Makere does not specifically allege a § 1981

claim premised on retaliation in the Complaint, see Complaint ¶¶ 60-62, the

Court must broadly construe the pleadings of a pro se plaintiff such as Makere

and therefore will consider whether Makere’s allegations are sufficient to state

a claim of post-termination retaliation under 42 U.S.C. § 1981. See Keeler v.

Fla. Dep’t of Health, 324 F. App’x 850, 858-59 (11th Cir. 2009).10

a. Standard of Review

In ruling on a motion to dismiss for failure to state a claim, the Court

must accept the factual allegations set forth in the complaint as true. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534

10 Although unclear, Allstate does not appear to contend that Makere’s retaliation

claims arising out of the 2018 events are collaterally estopped. See Motion at 8 n.3, 17-20.

Regardless, the administrative records before the Court reflect that the issue of whether

Allstate engaged in retaliatory conduct against Makere in 2018 was not addressed in the

administrative proceedings. Although Makere made a vague reference to these events in his

2019 FCHR Charge, the FCHR did not address the events of 2018 as part of its no reasonable

cause determination. See Amended Notice. Following Makere’s petition for review, the ALJ

did note that Makere included allegations of unspecified acts in July 2018, but appears to have

found that any claim based on those allegations was not cognizable under the FCRA because

the acts occurred after Makere’s termination. See id., Ex. J at 1-3. However, as discussed

below, post-termination acts of retaliation can give rise to a claim under § 1981. Because the

issue of whether Allstate retaliated against Makere in 2018 was not actually litigated in the

administrative proceedings, collateral estoppel does not bar Makere’s § 1981 retaliation claim

based on this conduct.

U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s World Med. Ctr., Inc.,

278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences

should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701,

705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal

pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-

63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not

necessary[,]” the complaint should “‘give the defendant fair notice of what the .

. . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S.

89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007)). Further, the plaintiff must allege “enough facts to state a

claim that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

facial plausibility when the pleaded factual content allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal

quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that

“conclusory allegations, unwarranted deductions of facts or legal conclusions

masquerading as facts will not prevent dismissal”) (internal citation and

quotations omitted). Indeed, “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” See Iqbal, 556 U.S.

at 678, 680. Thus, in ruling on a motion to dismiss, the Court must determine

whether the complaint contains “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting

Twombly, 550 U.S. at 570).

Determining whether a complaint states a plausible claim for relief is “a

context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679. Moreover, when the

well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—but it has not “show[n]”—

“that the pleader is entitled to relief.” Id. And, while “[p]ro se pleadings are

held to a less stringent standard than pleadings drafted by attorneys and will,

therefore, be liberally construed,” Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998), “‘this leniency does not give the court a license to serve

as de facto counsel for a party or to rewrite an otherwise deficient pleading in

order to sustain an action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F.

App’x 837, 839 (11th Cir. 2011)11 (quoting GJR Invs., Inc. v. Cnty. of Escambia,

11 “Although an unpublished opinion is not binding. . ., it is persuasive authority.”

United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per curiam); see generally Fed.

R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent,

but they may be cited as persuasive authority.”).

Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled

in part on other grounds as recognized in Randall, 610 F.3d at 706); see also

Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014).

b. Discussion

As with discrimination, retaliation claims under § 1981 are analyzed

under the same framework as Title VII. See Edmond, 441 F. App’x at 723. To

establish a retaliation claim under either statute, “a plaintiff must prove that

he engaged in statutorily protected activity, he suffered a materially adverse

action, and there was some causal relation between the two events.”

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008).

Significantly, “[t]he scope of ‘adverse employment actions’ is broader in the anti-

retaliation context than in the anti-discrimination context.” Saunders v.

Emory Healthcare, Inc., 360 F. App’x 110, 115 (11th Cir. 2010). In the

retaliation context, a plaintiff is not required to show “an ultimate employment

decision or substantial employment action to establish an adverse action,”

rather an adverse employment action is one that “might dissuade a reasonable

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

of significance, in Burlington Northern & Santa Fe Railroad Company v. White,

the Supreme Court recognized that “[a]n employer can effectively retaliate

against an employee by taking actions not directly related to his employment

or by causing him harm outside the workplace.” 548 U.S. 53, 64 (2006). Thus,

a law limited to only employment-related actions “would not deter the many

forms that effective retaliation can take . . . .” Id.; see also Robinson v. Shell

Oil Co., 519 U.S. 337, 345-46 (1997) (finding that Title VII’s antiretaliation

provision applies to acts of retaliation against former employees and finding

persuasive the EEOC’s argument that to hold otherwise would “undermine the

effectiveness of Title VII by allowing the threat of postemployment retaliation

to deter victims of discrimination from complaining to the EEOC”). Based on

this authority, to the extent Allstate argues that Makere’s retaliation claims

premised on the alleged 2018 events are due to be dismissed merely because

those events allegedly occurred after he was terminated, this argument is

unavailing. See Blair v. Morris Brown Coll., No. 1:04-CV-1156-WBH, 2006 WL

8431375, at *16 (N.D. Ga. July 28, 2006) (“[T]he fact that Plaintiff was no longer

employed by Defendant when the actions at issue occurred does not preclude

him from asserting a retaliation claim against Defendants. A former employee

may bring an action for post-employment retaliation.”) adopted by 2006 WL

8431446, at *1 (N.D. Ga. Sept. 25, 2006); see also Abdullahi v. Prada USA Corp.,

520 F.3d 710, 713 (7th Cir. 2008).

The Court next considers whether Makere has alleged a plausible claim

for relief based on the post-termination events. In the Complaint, Makere

alleges three different post-termination purported acts of retaliation. First,

Makere contends that Kirk Higgins, an individual he contacted during the

administrative process for purposes of discovery, “attack[ed]” Makere by filing

“documents aimed at embarrassing” Makere, and “calling local police

departments to try to dig up dirt” on Makere. See Complaint ¶ 45. Makere

alleges that “Higgins explicitly stated that his actions were motivated by (i) his

relationship with [Allstate]; and (ii) [Makere’s] demographics.” Id. According

to Makere, Allstate “encouraged Mr. Higgins to file unauthorized documents

against [Makere]” and “instruct[ed] him on what to say.” Id. ¶ 48. Next,

Makere alleges that in April of 2018, he was hit by a car while riding his bicycle.

Id. ¶ 46. He connects this incident to Allstate because two years earlier an

Allstate employee had warned Makere to “be careful” on his bicycle. Id. ¶¶ 46,

25. Last, Makere maintains that in July 2018, his former employer

substantially reduced his retirement benefits. Id. ¶ 49. Makere contends

that Allstate was behind this action because his former employer notified him

at a Florida address that he had never provided to that employer. Id.

Upon careful consideration, the Court finds that these allegations fail to

give rise to a plausible inference that Allstate engaged in post-termination

retaliation. Even accepting as true that an Allstate employee had warned

Makere to be careful riding his bicycle, this comment from November 2015,

nearly two and a half years prior to the car accident and long before Makere

had complained of discrimination, is simply insufficient to plausibly connect

Allstate to the April 2018 collision.12 Significantly, Makere does not allege who

was driving the car, much less any reason to believe that this person was acting

at the behest of Allstate. See Springs v. U.S. Dep’t of Treasury, 567 F. App’x

438, 445 (6th Cir. 2014) (finding bald allegation that plaintiff’s former employer

conspired with the FBI to harass her in retaliation for filing a civil rights claim

was insufficient to plausibly state a claim for relief). Likewise, the mere fact

that Makere’s former employer was able to ascertain Makere’s Florida address

is insufficient to raise even the possibility that Allstate was responsible for that

employer’s decision to reduce Makere’s retirement benefits, much less plausibly

allege such a connection.

While Makere goes somewhat further in attempting to connect Allstate

to the purported “attacks” from Kirk Higgins, he fails to allege facts suggesting

who Higgins is, the nature of his “relationship” with Allstate, or what Allstate’s

purported “encourage[ment]” or “instruct[ion]” entailed. See Complaint ¶¶ 45,

48. While the allegations presented may render it conceivable that Allstate

played some role in Higgins’ actions, more factual content is necessary to

“‘nudg[e]” this claim “‘across the line from conceivable to plausible.’” See Iqbal,

556 U.S. at 683 (quoting Twombly, 550 U.S. at 570). Moreover, to state a claim

for retaliation, a plaintiff must allege acts of retaliation that are “material and

12 Makere also asserts that he received death threats and “supplemental taunts,” see

Complaint ¶ 47, but does not actually allege that Allstate was behind these threats, much less

present allegations of fact plausibly connecting Allstate to the threats and taunts.

significant and not trivial.” See Burgos-Stefanelli v. Sec’y, U.S. Dep’t of

Homeland Sec., 410 F. App’x 243, 246 (11th Cir. 2011); see also Entrekin v. City

of Panama City, Fla., 376 F. App’x 987, 995-96 (11th Cir. 2010) (“[T]o sustain a

. . . retaliation claim, an employee must show that ‘a reasonable employee would

have found the challenged action materially adverse,’ such that the action

would ‘dissuade[] a reasonable worker from making or supporting a charge of

discrimination.’” (quoting Burlington, 548 U.S. at 68)). Indeed, the law

protects an individual “not from all retaliation, but from retaliation that

produces an injury or harm.” See Burlington, 548 U.S. at 67. While it is

possible that the filing of “embarrassing” or “unauthorized” documents and an

attempt to “dig up dirt” could constitute materially adverse actions, Makere’s

allegations are simply too vague to support such an inference. Accordingly, the

Court finds that even broadly construing Makere’s § 1981 claim to include a

theory of post-termination retaliation, Makere has failed to allege sufficient

facts to plausibly state a claim for relief on this basis.

The Court emphasizes, as the Supreme Court stated in Iqbal, that it does

“not reject these bald allegations on the ground that they are unrealistic or

nonsensical.” See Iqbal, 556 U.S. at 681. Rather, “[i]t is the conclusory nature

of [Makere’s] allegations, rather than their extravagantly fanciful nature, that

disentitles them to the presumption of truth.” Id. Thus, while the Court

expresses some skepticism that Makere can in good faith allege facts plausibly

connecting these events to Allstate, because Makere is proceeding pro se and

has not previously amended his Complaint, the Court will provide Makere with

the opportunity to file an amended complaint solely as to his post-termination

retaliation claims under 42 U.S.C. § 1981.13 See Bank v. Pitt, 928 F.2d 1108,

1112 (11th Cir. 1991) (“Where a more carefully drafted complaint might state a

claim, a plaintiff must be given at least one chance to amend the complaint

before the district court dismisses the action with prejudice.”) overruled in part

by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 & n.1 (11th

Cir. 2002) (overruling Bank with regard to counseled plaintiffs, but expressly

declining to address pro se parties). Accordingly, it is

ORDERED:

1. Defendant’s Dispositive Motion to Dismiss Plaintiff’s Complaint With

Prejudice, and Memorandum of Law in Support Thereof is GRANTED

in part, and DENIED in part.

13 Makere is cautioned that the requirements of Rule 11, Federal Rules of Civil

Procedure (Rule(s)) are applicable to pro se litigants as well as attorneys. See Rule 11(b);

Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988). Rule 11 authorizes the imposition of

sanctions on a litigant if he files a pleading, written motion, or other paper for "any improper

purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of

litigation." See Rule 11(b)(1), (c)(1). In addition, any factual contentions Makere presents

to the Court must, to the best of his knowledge, information, and belief, have or be likely to

have, evidentiary support. See Rule 11(b)(3). Makere should carefully consider whether his

allegations comply with the requirements of Rule 11 when preparing his amended complaint.

See Patterson, 841 F.2d at 387 ("[P]ro se filings do not serve as an 'impenetrable shield, for

one acting pro se has no license to harass others, clog the judicial machinery with meritless

litigation, and abuse already overloaded court dockets.'" (quoting Farguson v. MBank

Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986))).

A. The Motion is DENIED to the extent Makere’s claim of post-

termination retaliation pursuant to 42 U.S.C. § 1981 is dismissed

without prejudice.

B. Otherwise, the Motion is GRANTED and Makere’s claims are

DISMISSED.

2. Makere shall have up to and including February 26, 2021, to file an

amended complaint setting forth his post-termination retaliation

claim under 42 U.S.C. § 1981. Failure to comply with this Order may

result in dismissal of this case in its entirety without further notice.

3. Discovery in this case will remain STAYED until such time as Makere

presents a viable amended complaint.

DONE AND ORDERED in Jacksonville, Florida this 8th day of

February, 2021.

United States District Judge

Ie11

Copies to:

Counsel of Record

Pro Se Party