Lanier v. CITY OF MIAMI

United States District Court

for the

Southern District of Florida

Brandon Lanier, Plaintiff, )

)

Civil Action No. 23-22510-Civ-Scola

v. )

)

City of Miami, Defendant. )

Order Granting Motion to Dismiss

This matter is before the Court on the Defendant the City of Miami’s (the

“City”) motion to dismiss the Plaintiff Brandon Lanier’s (“Lanier”) amended

complaint. (Mot., ECF No. 7.) Lanier has responded opposing the City’s motion

(Resp., ECF No. 11), and the City has replied (Reply., ECF No. 14). Having

reviewed the record, the parties’ briefs, and the relevant legal authorities, the

Court grants the City’s motion to dismiss. (Mot., ECF No. 7.)

1. Background1

Lanier brings this action against the City for damages resulting from the

latter’s alleged violations of the Florida Whistle-blower’s Act, Fla. Stat.

§ 112.3187, et seq. (“FWA”), and Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-2, et seq. (“Title VII”). Lanier is a black male currently working

as an employee of the City. (Id. ¶ 4.) Lanier started working for the City as a

police officer in 2008. (Id. ¶ 10.) Since then, he also served the City as a police

sergeant, police lieutenant, and, eventually, as a police commander. (Id. ¶ 9.) At

all times material to this action, Lanier was working as a commander in the

City’s Internal Affairs Section. (Id. ¶ 8.)

At some point during Lanier’s tenure as a commander in the Internal

Affairs Section, he and another individual referred to as Detective Wanda Jean-

Baptiste were assigned to an official misconduct investigation relating to two

staff members, Ronald Papier and Nerly Papier. (Id. ¶ 14.) These individuals

had been discovered to have been involved in improper conduct and were

eventually terminated by the Chief of Police with the approval of the City

Manager. (Id. ¶¶ 15–18.) Several months after their termination, the Papiers

1 This background is based on the allegations in Lanier’s amended complaint. For purposes of

evaluating the City’s motion, the Court accepts Lanier’s factual allegations as true and

construes the allegations in the light most favorable to him per Federal Rule of Civil Procedure

12(b)(6). The Court notes, however, that the amended complaint struggles to set forth a

cohesive recitation of facts. Much of the factual narrative therein fails to follow a clear

chronology and omits important context. Accordingly, the Court does its best to reconstruct the

relevant background here.

filed a complaint with the City’s Civilian Investigative Panel (“CIP”), which

forwarded the complaint to the Internal Affairs Section, where it reached

Lanier. (Id. ¶¶ 14, 18–20.) Lanier investigated the complaint and “made

findings regarding malfeasance and misfeasance by current Chief of Police

Morales resulting in a formal reprimand[,] which Morales agreed to.” (Id. ¶ 19.)

In addition, “[d]uring the course of these proceedings, Lanier filed written

complaints concerning the malfeasance, misfeasance and improper conduct of

both [the] Papiers and Morales and participated in investigations of same,

reporting the conduct to the City Manager and others.” (Id. ¶ 20.)

Sometime after the foregoing investigation took place, and apparently as

a result of Lanier’s involvement therein, allegations began to circulate regarding

Lanier and Detective Jean-Baptiste. (Id. ¶ 22.) These allegations, which Lanier

describes as “frivolous,” pertained to Lanier and Jean-Baptiste “violating the

departmental policy and Florida’s Officer Bill of Rights.” (Id.) In response,

Lanier and Jean-Baptiste requested compliance hearings to force the City to

interview all witnesses knowledgeable of the allegations made against them. (Id.

¶¶ 23–24.) Specifically, Lanier and Jean-Baptiste both wanted to provide their

own statements. (Id. ¶¶ 24–26.) However, finding that they were not relevant

witnesses, the City denied them the opportunity to do so, thus preventing

Lanier and Jean-Baptiste from providing evidence and defending themselves

from the allegations against them. (Id. ¶¶ 26–27, 29.) Moreover, in addition to

restraining Lanier’s right to specific witnesses, the City also denied him the

right to use his paid attorney, Griska Mena, from the Southern Florida Police

Benevolent Association. (Id. ¶¶ 31–32.) Even though attorney Mena had been

listed as a witness to the compliance hearing, she was escorted out of the

building and denied attendance. (Id. ¶ 32.) In contrast, the City allowed Nerly

Papier, the complainant of Lanier and Jean-Baptiste’s investigation, to attend

the hearing as a way to intimidate them. (Id. ¶ 33.)

Lanier also claims that he was involved in at least two other

investigations, which, though not at all clear, seem to have taken place before

the foregoing compliance hearings.2 First, Lanier alleges that, around

November 2021, he was instructed by Chief Morales to investigate Captain of

Police Javier Ortiz “with direction to make a finding of guilt and recommend

termination.” (Id. ¶¶ 55–56; see also Ex. A to Am. Compl., ECF No. 1-1.) Even

though Lanier refused Chief Morales’s direction, and declined to recommend

that Ortiz be terminated, Morales ultimately terminated Ortiz anyway. (Id. ¶¶

2 Later in his amended complaint, Lanier also mentions two investigations that were lodged

against him and Jean-Baptiste in early 2022, which the Court understands, based on

similarities in the allegations, to relate to the same circumstances giving rise to the compliance

hearings mentioned above. (Id. ¶¶ 67–85.)

57–58.) Ortiz was eventually reinstated to his position and provided a

significant settlement. (Id. ¶ 59.) Second, Lanier alleges that, on Mary 19, 2021,

he recommended then Assistant-Chief Morales for written reprimand as a

result of his improper failure to inquire about the details of an automotive

accident involving Nerly Papier, his subordinate. (Id. ¶ 60; see also Ex. B to

Am. Compl., ECF No. 1-1.) Although Morales “admitted” at that time that he

engaged in misconduct by failing to inquire into the details of the accident,

“[i]mmediately upon becoming Chief of Police, Morales retailed against [Lanier]

by demoting [him] and restricting [his] due process right.” (Id. ¶¶ 60–62.)

Lanier claims that, due to his “involvement in overseeing the

investigation of Ronald and Nerly Papier, overseeing the investigation of,”

otherwise undiscussed, “[Sergeant]-at-Arms Luis Camacho, and coming

forward with information about corruption and wrongdoing involving Chief

Manuel Morales and others from within the department, he has been retaliated

against” in violation of the FWA. (Id. ¶¶ 34, 86–97.) Lanier further explains that

“[t]his retaliation for him reporting corruption and cooperating in investigations

has included reprimands, demotions, insisting that he not be reinstated, denial

of benefits, and even using City resources to contact Federal Law enforcement

agencies to black[-]list him from employment solely because he is a

whistleblower.” (Id. ¶ 36.) In addition, Lanier claims that he has been illegality

discriminated and retaliated against in violation of Title VII. (Id. ¶¶ 98–107.)

2. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil

Procedure 12(b)(6), must accept all of the complaint’s allegations as true,

construing them in the light most favorable to the plaintiff. Pielage v.

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need

only contain a short and plain statement of the claim showing that the pleader

is entitled to relief, a plaintiff must nevertheless articulate “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “But where 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 shown—that the pleader is entitled to relief.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal

punctuation omitted). A court must dismiss a plaintiff’s claims if she fails to

nudge her “claims across the line from conceivable to plausible.” Twombly, 550

U.S. at 570.

3. Analysis

Lanier’s amended complaint is comprised of three counts: retaliation in

violation of the FWA (Count One); discrimination based on race in violation of

Title VII (Count Two); and retaliation in violation of Title VII (Count Three). For

the reasons set forth below, the Court finds Lanier fails to a state a claim upon

which relief can be granted on any of these bases.

A. Lanier fails to plead a prima facie case of retaliation in violation of

the FWA.

The City argues that Lanier fails to state a prima facie case for relation

under the FWA because he does not adequately allege that he engaged in any

protected activity nor that he suffered an adverse employment action as a

result of said protected activity. In his response opposing dismissal, Lanier is

adamant that he has properly pled a cause of action under the FWA. Rather

than engage with the facts as pled to explain why they establish a prima facie

case under the FWA, however, Lanier’s response only copies and pastes

allegations from the amended complaint to argue, in a conclusory manner, that

“[i]t is not possible to plead a more clear-cut case of retaliation” under the FWA.

(See Resp. 12, ECF No. 11.) The Court strongly disagrees with Lanier.

“The FWA prohibits a public employer from taking an adverse personnel

action against an employee ‘who reports to an appropriate agency violations of

law on the part of a public employer . . . that create a substantial and specific

danger to the public’s health, safety, or welfare.’” McAlpin v. Town of Sneads,

61 F.4th 916, 928 (11th Cir. 2023) (quoting Fla. Stat. § 112.3187(2)). Thus, “a

plaintiff claiming retaliation under the FWA must establish a prima facie case

by demonstrating: (1) she engaged in a statutorily protected activity; (2) she

suffered an adverse employment action; and (3) the two are causally related.”

Berber v. Wells Fargo, NA, 798 F. App’x 476, 478-79 (11th Cir. 2020) (citing

Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)).

As to the first prong, “[u]nder the FWA, for the disclosure of information

to be a ‘statutorily protected activity,’ the burden is on the plaintiff to show that

he disclosed (1) protected information (2) to an individual or entity identified in

the statute (3) in a protected manner.” McAlpin, 61 F.4th at 928 (citing Fla.

Stat. § 112.3187(5)-(7); Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125,

1132-33 (Fla. 4th DCA 2003)). “Both the text and structure of the FWA make

clear that protected information is narrow in scope.” Id. Specifically, “[t]he

information disclosed . . . must include” one of the following to qualify as

protected:

(a) Any violation or suspected violation of any federal, state, or local

law, rule, or regulation committed by an employee or agent of an

agency or independent contractor which creates and presents a

substantial and specific danger to the public’s health, safety, or

welfare.

(b) Any act or suspected act of gross mismanagement, malfeasance,

misfeasance, gross waste of public funds, suspected or actual

Medicaid fraud or abuse, or gross neglect of duty committed by an

employee or agent of an agency or independent contractor.

Florida Statute § 112.3187(5). Here, Lanier has failed to plead facts to establish

that any of his alleged instances of whistleblower activity were protected under

the FWA.

To begin, the vast majority of Lanier’s allegations as to his whistleblower

activity are vague and conclusory in nature. By way of example, the amended

complaint is rife with statements to the effect that “Lanier filed written

complaints concerning the malfeasance, misfeasance and improper conduct of

both Papiers and Morales[,]” Lanier “reported malfeasance, misconduct, and

illegality in written and signed complaints[,]” and Lanier “reported corruption in

terms of improper efforts by Chief Morales and others to influence the

impartiality of [the City’s] Internal Affairs Investigations.” (See Am. Compl. ¶¶

20, 46, 49, ECF No. 1-1.) These allegations, however, provide little to no factual

information as to the nature of the wrongful conduct at issue, the content of

what Lanier actually reported, or who he made the reports to and when.

The closest Lanier comes to pleading actual facts in support of his

purported whistleblower conduct comes in the form of the exhibits he attaches

to his amended complaint, as these show snippets of interactions Lanier seems

to have had with supervisors at the City. However, these materials, too, fail to

show that Lanier engaged in statutorily protected activity as defined in the

FWA. For example, Lanier attaches to his complaint a, mysteriously undated

and otherwise unmarked, memorandum he alleges “explicitly inform[ed] the

City of acts of corruption for which [he] was later demoted.” (See Am. Compl. ¶

66, ECF No. 1-1 (referencing Ex. D thereto).) A close review of this

memorandum fails to reveal the type of information contemplated by Florida

Statute § 112.3187(5). Although, the memorandum fails to follow a clear chain

of events, as best the Court can discern, the writing reveals, at most,

professional differences between Lanier and Chief Morales, not anything

amounting to either a “violation or suspected violation of any federal, state, or

local law, rule, or regulation . . . which creates and presents a substantial and

specific danger to the public’s health, safety or welfare,” or “[a]ny act or

suspected act of gross mismanagement, malfeasance, misfeasance, gross waste

of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect

of duty[.]” See Florida Statute § 112.3187(5)(a), (b) (emphasis added).

Furthermore, even if Lanier had established his participation in

statutorily protected expression, he fails to allege any facts demonstrating a

causal link between such expression and any purported adverse employment

action. To satisfy the causal link prong of an FWA claim, a “[p]laintiff must

show that the decision-maker responsible for the adverse employment action

was actually aware of the protected activity at the time he took the adverse

action.” Verna v. Pub. Health Tr. of Miami Cnty, 539 F. Supp. 2d 1340, 1357

(S.D. Fla. 2008) (citing Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791,

799 (11th Cir. 2000)). “A fact that is unknown to an actor cannot motivate his

action. Simple as that.” Olbek v. City of Wildwood, 850 F. App’x 714, 721 (11th

Cir. 2021). Here, though Lanier alleges that he suffered myriad adverse

employment consequences as a result of his whistleblower activity, the only

time he identifies a decisionmaker as to any of these consequences is when he

alleges that Chief Morales demoted Lanier after he participated in the

investigation against Morales. (See Am. Compl. ¶¶ 40–45, 62, ECF No. 1-1.)

However, Lanier fails to plead any facts demonstrating that Chief Morales knew

of his participation in that investigation or of the statements he made against

Chief Morales. (See generally id.) Indeed, Lanier does not even plead a clear

timeline of events, from which it may be discerned whether Chief Morales’s

alleged involvement in Lanier’s demotion could reasonably have been motivated

by Lanier’s purported statements against him.

Accordingly, because Lanier has failed to plead facts to establish either

the statutorily protected activity or causation prongs of an FWA claim, Count

One of his amended complaint must fail.

B. Lanier fails to state a claim for race-based discrimination in

violation of Title VII.

The City next argues that Lanier fails to state a claim for race-based

discrimination in violation of Title VII because he has not pled facts to establish

that similarly situated employees outside of his protected class were treated

differently or that he suffered an adverse employment action. Unsurprisingly,

Lanier counters that he has adequately supported his race-based

discrimination claim, though, in his response, Lanier once again does little

more than copy and paste, verbatim, the allegations already included in his

amended complaint. The Court agrees with the City that Lanier’s amended

complaint fails to supply facts that would satisfy the elements of Lanier’s claim

of discrimination under Title VII.

“[C]omplaints alleging discrimination . . . must meet the ‘plausibility

standard’ of Twombly and Iqbal.” Henderson v. JP Morgan Chase Bank, N.A.,

436 F. App’x 935, 937 (11th Cir. 2011). Thus, Lanier’s amended complaint

must contain “sufficient factual matter” to support a reasonable inference that

the City engaged in intentional discrimination against him when, as he alleges,

it refused him the same “preferential treatment” given to non-black officers

during the course of investigations lodged against him. Henderson, 436 F.

App’x at 937.3 There are a number of ways Lanier can do this, using “either

direct evidence or circumstantial evidence to show . . . discrimination.” Jenkins

v. Nell, 26 F.4th 1243, 1249 (11th Cir. 2022).

Since Lanier does not set forth any allegations of direct evidence of

discrimination, one way Lanier could state his discrimination claims, through

circumstantial evidence, is by pleading facts that could establish the City’s

discrimination through the McDonnell Douglas framework. See Jaffe v.

Birmingham Gastroenterology Associates, P.C., 2:20-CV-01821-KOB, 2021 U.S.

Dist. LEXIS 176427, 2021 WL 4220356, at *2 (N.D. Ala. Sept. 16, 2021) (“[T]he

traditional methods of proving Title VII claims remain relevant, as helpful

guides to the determination of the issue.”) (cleaned up). Under the McDonnell

Douglas framework, a plaintiff bears the burden of establishing a prima facie

case of discrimination by demonstrating (1) membership in a protected group;

(2) an adverse employment action; (3) qualification for the job in question; and

(4) either replacement by or less favorable treatment than a similarly situated

individual outside the plaintiff’s protected class. Jenkins, 26 F.4th at 1249.

Lanier has failed to plead facts that would allow the Court to reasonably infer

that he satisfies the fourth prong.

As to this fourth prong, Lanier “must identify a comparator outside of his

protected class who was similarly situated in all material respects, yet was

treated more favorably under the same circumstances.” Hester v. Univ. of

Alabama Birmingham Hosp., 798 F. App’x 453, 457 (11th Cir. 2020) (emphasis

in original) (otherwise cleaned up). In opposition to the City’s motion, Lanier

restates his allegations that, during the investigations, “the white officers were

allowed to provide statements whereas the black officers, including Lanier,

were not allowed to provide a statement[,]” “[t]he white officers were ultimately

not disciplined after being given full due process, while the black officer Lanier

3 As specifically alleged by Lanier, the City “restricted his right to counsel and restricted his

right to specific witnesses[,] . . . denied [Lanier] the right to utilize his paid attorney from the

South Florida Police Benevolent Association, an attorney who was allowed by the City multiple

times to defend Anglo/Hispanic non-black officers in the exact same type of proceeding.” (Am.

Compl. ¶ 31, ECF No. 1-1.) In addition, Lanier alleges that “the white officers were allowed to

provide statements whereas the black officers, including Lanier, were not allowed to provide a

statement[,]” “[t]he white officers were ultimately not disciplined after being given full due

process, while the black officer Lanier was targeted and received adverse action[,]” and the

white officers “received different recommendations of discipline and imposition of discipline

based on race.” (Id. ¶¶ 72, 79, 83.)

was targeted and received adverse action[,]” and the white officers “received

different recommendations of discipline and imposition of discipline based on

race.” (Id. ¶¶ 72, 79, 83.) However, these allegations do not permit the Court to

infer that Lanier’s co-workers who were outside of his protected class and

purportedly given preferential treatment during the course of the investigations

were similarly situated to Lanier in all (or even any) material respects.

The closest Lanier comes to identifying a comparator outside of his

protected class is when he alleges that “in regard to both investigations [he]

and Sergeant Perez[,]” who was Hispanic and non-black, “held the same

roles[,]” and that “[b]oth investigations concluded with the investigators

violating the same policies and procedures, yet they received different

recommendations of discipline and imposition of discipline based on race.” (Id.

¶¶ 82–83.) However, these two statements, which leave much to be desired, fall

far short of providing sufficient information from which the Court can infer that

Perez, or any of the other non-black “investigators,” were similarly situated in

all relevant aspects to Lanier. See Henderson v. Dade Cnty. Police Benev. Ass’n,

Inc., 14-20321-CIV-MORENO, 2014 U.S. Dist. LEXIS 98159, 2014 WL

3591600, at *8 (S.D. Fla. July 18, 2014) (Moreno, J.) (dismissing discrimination

claims where the plaintiff’s conclusory assertions that Hispanic males were

promoted to the exclusion of Black women were “without factual support as to

how each was similarly-situated in all relevant aspects to the Plaintiff” and,

were, therefore, “insufficient”). Moreover, all of Lanier’s other allegations on this

point are conclusory in nature, failing to provide any supporting factual

information, such as whether the nature of the investigations against the non-

black employees who received preferential treatment were similar to those

lodged against Lanier, or whether Lanier and those other employees had

comparable qualifications and skills.

At bottom, Lanier’s allegations, at most, are nothing more than

“[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements,” and therefore “do not suffice.” Watts v. Ford Motor Co.,

519 F. App’x 584, 586 (11th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). While a

plaintiff complaining of workplace discrimination need not set forth every detail

of his employment or every single instance of the discriminatory conduct he

endured, he must nonetheless provide at least some “nonconclusory

descriptions of specific, discrete facts of the who, what, when, and where

variety” that plausibly show he is actually entitled to relief. Watts, 519 F. App’x

at 587 (quoting Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th

Cir. 2013)); see Veale v. Fla. Dep’t of Health, 2:13-CV-77-FTM-38UAM, 2013

U.S. Dist. LEXIS 105665, 2013 WL 5703577, at *5 (M.D. Fla. July 29, 2013)

(requiring “allegations of specific facts to explain how the disparate treatment

occurred” in order to properly plead discrimination).

Nor do any of Lanier’s other allegations, taken together, otherwise

“present[] a convincing mosaic of circumstantial evidence that would allow a

jury to infer intentional discrimination by the decisionmaker.” Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (cleaned up). A

plaintiff may meet this standard by showing, “among other things, (1)

suspicious timing, ambiguous statements, and other bits and pieces from

which an inference of discriminatory intent might be drawn, (2) systematically

better treatment of similarly situated employees, and (3) that the employer’s

justification is pretextual.” Lewis v. City of Union City, Ga., 934 F.3d 1169,

1185 (11th Cir. 2019) (cleaned up). “The ‘convincing mosaic’ method of proof

can be a fallback for plaintiffs,” like Lanier, “who fail to allege a similarly

situated comparator under McDonnell Douglas.” Jaffe v. Birmingham

Gastroenterology Associates, P.C., 2:20-CV-01821-KOB, 2021 U.S. Dist. LEXIS

176427, 2021 WL 4220356, at *4 (N.D. Ala. Sept. 16, 2021). Again, Lanier’s

allegations come up short. There is simply no factual content in the amended

complaint from which the Court can infer that Lanier was the victim of racially

motivated discrimination.

Thus, to summarize, Lanier has failed to plead facts establishing

discrimination against him under Title VII. Lanier’s complaint does not plead

sufficient facts to allow for a plausible a link between the employment

differences he cites and his race. Correlation and causation are not the same;

possibility and plausibility are distinct. While Lanier’s “allegations might have

survived a motion to dismiss prior to Twombly and Iqbal[,] now they do not.”

Ansley v. Fla. Dept. of Revenue, 409CV161-RH/WCS, 2009 U.S. Dist. LEXIS

57916, 2009 WL 1973548, at *2 (N.D. Fla. July 8, 2009) (requiring a “plaintiff

in an employment-discrimination case [to] allege facts that are either (1)

sufficient to support a plausible inference of discrimination, or (2) sufficient to

show, or at least support an inference, that he can make out a prima facie case

under the familiar burden-shifting framework set forth in McDonnell”).

C. Lanier fails to state a claim for retaliation in violation of Title VII.

Last, the City argues that Lanier’s claim for retaliation must fail because

he has not adequately pled that he engaged in any protected conduct that

motivated the occurrence of an adverse employment action. Lanier responds by

copying some of the allegations in his amended complaint and asserting that

he “clearly pled that he made a complaint in writing that the City was engaging

in practices that violated Title VII and that he was retaliated against because of

this.” (See Resp. 16, ECF No. 11.) On this claim also, the Court agrees with the

City.

To establish a prima facie case of retaliation, the Plaintiff must establish

that: (1) the Plaintiff engaged in statutorily protected expression, (2) the

Plaintiff suffered an adverse employment action, and (3) there was a causal

connection between the protected expression and the adverse employment

action. See Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th

Cir. 2008); Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998).

The Eleventh Circuit has explained that a plaintiff satisfies the causal

connection “element if he provides sufficient evidence that the decision-maker

became aware of the protected conduct, and that there was close temporal

proximity between this awareness and the adverse employment action.” Farley

v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999); see also

Sumbak v. Eaton Corp., No. 21-11106, 2022 U.S. App. LEXIS 15510, at *13,

2022 WL 1928777 (11th Cir. June 6, 2022) (“Under our precedent, the plaintiff

must generally show that the decision maker was aware of the protected

conduct at the time of the adverse employment action.” (cleaned up)). Here,

even assuming that Lanier engaged in statutorily protected expression—

something which is seriously in doubt—there is nothing in his allegations that

would allow the Court to infer that any adverse employment actions resulted

from that expression.

The amended complaint includes various general allegations as to

Lanier’s purportedly protected expression, such as the statement that Lanier

“specifically informed the City of his belief that the City was engaging in the

exact type of racial bias that is prohibited by Title VII.” (See Am. Compl. ¶ 74,

ECF No. 1-1.) These allegations, which are devoid of all critical details, such as

when they were made, to whom, and what exactly was said, render it

impossible for the Court to conclude that Lanier was retaliated against for

engaging in protected activity. Indeed, Lanier does not allege that the person or

persons responsible for any of his adverse employment actions were aware of

his conduct.

Lanier’s only non-ambiguous, non-conclusory allegations on this issue

are that “[o]n May 26, 2022, [he] complained of th[e] disparate and

racial/national origin discrimination . . . to the City Mayor and other

agencies[,]” that “[a]fter his complaint, he was retaliated against by Chief

Morales[,]” and that “[o]n July 6, 2022, Wanda Jean-Baptiste and [he] were

issued reprimands recommending ‘[d]emotion] and ‘[s]uspension of hours and

transfer out of internal affairs.” (See id. ¶¶ 77–80.) But, again, Lanier renders it

impossible for the Court to plausibly infer causation, as he does not allege that

Chief Morales was aware of the complaint he made on May 26, 2022, or that

the persons responsible for the reprimand he suffered on July 6, 2022, were

aware of that complaint either. And, while Lanier seems to put much weight on

the contents of an email attached as an exhibit to his amended complaint,

asserting it shows him “explicitly informing the City of the illegal

discrimination|,]” that email is dated September 29, 2022, which is

significantly after the date when Lanier states he was reprimanded. (See id.

84; see also Ex. F to Am. Compl., ECF No. 1-1.)

In short, the amended complaint contains no factual allegations that

would support a claim of retaliation under Title VII.

4. Conclusion

For the reasons stated above, the Court grants the City’s motion to

dismiss. (Mot., ECF No. 7.) The Court dismisses Lanier’s amended complaint

with prejudice because he has failed to state his claims under Rule 12(b)(6).

Additionally, the Court dismisses Lanier’s amended complaint without

leave to amend. Lanier requests leave to amend as an afterthought, as an

alternative to dismissal in his response to the City’s motion, making the

request both procedurally defective and lacking in substantive support under

Eleventh Circuit Precedent. See Newton v. Florida, 895 F.3d 1270, 1277-78

(11th Cir. 2018) (reaffirming the rule that a request for leave to amend is not

properly raised if embedded in a memorandum in opposition to a motion to

dismiss); see also Avena v. Imperial Salon & Spa, Inc., 740 F. App’x 679, 683

(11th Cir. 2018) (“[W]e’ve rejected the idea that a party can await a ruling ona

motion to dismiss before filing a motion for leave to amend.”). The Court will

not now afford Lanier another bite at the apple where he declined “to follow the

well-trodden procedural path toward amendment.” Fiber Radiology, Inc. v.

Toshiba Am. Med. Sys., Inc., 673 Fed. App’x 925, 930 (11th Cir. 2016).

Finally, the Clerk is directed to close this case.

Done and ordered at Miami, Florida on (SNES L—

Robert N. Scola, Jr.

United States District Judge