Taylor v. Secretary, U.S. Department of Homeland Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-cv-21881-ALTMAN/Hunt

MARCIA TAYLOR,

Plaintiff,

v.

ALEJANDRO N. MAYORKAS,

SECRETARY, U.S. DEPARTMENT OF

HOMELAND SECURITY,

Defendant.

_____________________________________/

ORDER GRANTING MOTION TO DISMISS AMENDED COMPLAINT

Our Plaintiff, Marcia Taylor, sued our Defendant, Department of Homeland Security

(“DHS”) Secretary Alejandro N. Mayorkas, alleging (among other things) that she was discriminated

against during her employment at DHS. See generally Amended Complaint [ECF No. 9]. The Defendant

has since moved to dismiss the Amended Complaint under Rule 12(b)(6). See Motion to Dismiss

Plaintiff’s Amended Complaint (the “MTD”) [ECF No. 22]. For the reasons we lay out below, we

GRANT the MTD and DISMISS Counts I–III of the Amended Complaint without prejudice and

Counts IV–V with prejudice.

THE FACTS1

I. The Plaintiff’s experience at DHS

The Plaintiff worked at DHS’s Miami District Field Office “from around 2015 to 2018,”

during which her DHS supervisors “continued to assign her job duties at the GS-12/13/14 level,

without offering her a promotion or adjusting her rate, from GS-9.” Amended Complaint ¶ 1. On

March 20, 2018, Taylor applied for a different position at the Miami Field Office, which matched the

“GS-12/13/14 work tasks assigned by her management,” id. ¶ 2, but DHS officials “stopped her

application” and told her that “[y]ou cannot apply for this job . . . you have a PhD, good luck,” id. ¶¶

3–5. DHS officials then “placed a less qualified white, Hispanic, male candidate into the position[.]”

Id. ¶¶ 6–9.

The Plaintiff remained at DHS in her original position, and her supervisors “continued to

assign her GS-12/13/14 work tasks,” “instructed [her] to train the less qualified [individual],” and

“order[ed] her to provide further training to the entire Miami District employees and management.”

Id. ¶¶ 10–12. Burdened by these assignments—and frustrated by the perceived mistreatment—the

Plaintiff ultimately resigned on December 8, 2018. See id. ¶ 16 (noting that she informed her employers

by letter “that she was forced to resign from her job because of intentional harassment and retaliation

from DHS management . . . which caused Plaintiff’s constructive termination”).

On April 19, 2019, after the Plaintiff resigned, DHS “management . . . conducted an internal

local criminal investigation against her” and falsely accused her of (1) having “made unauthorized

ATM cash withdrawals using her approved Government travel credit card while on authorized official

1 We accept the allegations of the Amended Complaint as true for purposes of this Order. See Dusek

v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016) (“In deciding a Rule 12(b)(6) motion

to dismiss, the court must accept all factual allegations in a complaint as true and take them in the light

most favorable to plaintiff, but ‘legal conclusions without adequate factual support are entitled to no

assumption of truth.’” (quoting Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (cleaned up))).

travel,” and (2) writing “a bad check that bounced to the Federal Government.” Id. ¶¶ 17, 18, 21.

Despite all this, the Plaintiff applied (and was interviewed) for a different job within the DHS Miami

Field Office. Id. ¶ 22. Although the Plaintiff says that she was “qualified” for that job, she was not

selected. Id. ¶ 23. Instead, DHS hired several candidates who were both “far[ ] less qualified than the

Plaintiff” and “related to one or more members at the DHS Miami Field Office management.” Id. ¶¶

23–25.

II. The Plaintiff files two civil-rights complaints and two federal lawsuits

On June 20, 2018, shortly before she resigned from DHS, the Plaintiff filed a complaint with

the DHS Office for Civil Rights and Civil Liberties. See DHS Office for Civil Rights and Civil Liberties

Final Agency Decision (the “First Internal DHS Complaint Order”) [ECF No. 22-1] at 1 (noting that

the Plaintiff “initiated contact with an Equal Employment Opportunity (EEO) counselor” on June

20, 2018).2 In that complaint, she alleged that (1) she “was denied the opportunity to submit her

resume for a promotion” to position No. OPM-ERO-10141561-DHA-ABF (the “1561 Position); (2)

she “felt forced to resign from her position”; and (3) the “Agency sent an email [to her] alleging she

violated her travel card.” Id. at 2.3 The DHS Office for Civil Rights ultimately concluded that the

Plaintiff “failed to prove that ICE discriminated against her.” Id. at 10. On June 2, 2022, it informed

the Plaintiff of its decision, see id. at 29, and told her that she had “the right to file a civil action in an

2 “In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1)

central to the plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holding, Ltd. v. Banc of

Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). The First Internal DHS Complaint (like the

Second Internal DHS Complaint [ECF No. 22-2]) is plainly central to the Plaintiff’s Amended

Complaint because—as we’re about to see—it establishes the timeframe within which the Plaintiff

could file her civil action. And the Plaintiff doesn’t dispute its authenticity. See generally MTD Response.

3 This First Internal DHS Complaint Order refers exclusively to the 1561 Position, see First Internal

DHS Complaint at 2–3 (“Findings of Fact”), which is the job the Plaintiff applied for in 2018, see

Amended Complaint ¶ 2.

appropriate United States District Court within 90 days after [receiving] this final decision if you do

not appeal to EEOC,” id. at 12.

While that First Internal DHS Complaint was pending, the Plaintiff submitted a second

complaint to the DHS Office for Civil Rights on December 7, 2021. See DHS Office for Civil Rights

and Civil Liberties Procedural Dismissal (the “Second Internal DHS Complaint Order”) [ECF No.

22-2] at 1 (noting that the Plaintiff “initiated contact with an Equal Employment Opportunity (EEO)

counselor” on December 7, 2021). This time, the DHS Office for Civil Rights had to determine

whether “ICE discriminated against Complainant based on race (Black/Dark Skin), color (Black), age

(YOB: 1967), and retaliation (prior EEO activity)” in its decision not to select the Plaintiff for the

following four positions: LAG-FMI-10615195-DH-SD; LAG-ERO-10258487-DHA-SR; FMI-

10663632-DHA-MA; and DAL-ICD-10840608-DH-HR. Id. at 2.4 On January 10, 2023, the DHS

Office for Civil Rights “dismiss[ed] th[e] complaint pursuant to [29 C.F.R. § 1614.107(a)(2)] for

untimely EEO Counselor contact.” Ibid. On January 12, 2023, the DHS Office for Civil Rights

informed the Plaintiff that she had “the right to file a civil action in an appropriate United States

District Court within 90 days after [receiving] this final decision if you do not appeal to EEOC[.]” Id.

at 6, 21.

On September 1, 2022—within the First Internal Complaint Order’s 90-day appeal period and

before the adjudication of the Second Internal Complaint—the Plaintiff, proceeding pro se before

Judge Bloom of our Court, filed her first federal lawsuit against the Defendant. See Complaint, Taylor

v. U.S. Dep’t of Homeland Sec., 22-cv-22805-BB (S.D. Fla. Aug. 1., 2022) (Bloom, J.), ECF No. 1. In that

complaint, the Plaintiff asserted claims that were similar to the ones she’s advanced before us: Title

4 We don’t know anything else about these vacancies other than that LAG-FMI-10615195-DH-SD is

the position for which the Plaintiff applied in 2019 (after her resignation). Compare Second Internal

DHS Complaint Order at 2 (“Claims at Issue”), with Amended Complaint ¶ 22.

VII Hostile Work Environment Based on Race, Color, Sex, Age (Count I); Title VII Retaliation (Count

II); 5 U.S.C. § 2302 Prohibited Personnel Practices (Count III); 18 U.S.C. § 1001 False Statement,

Concealment (Count IV); and Constructive Dismissal (Count V). See generally ibid. And those claims

arose from the very same factual allegations she’s presented in her Amended Complaint here. Compare

id. ¶¶ 8–31, with Amended Complaint ¶¶ 1–28. Rather than pay the $405 filing fee, though, the Plaintiff

submitted an Application for Leave to Proceed in Forma Pauperis, Taylor, 22-cv-22805-BB, ECF No. 3,

which Judge Bloom denied, see Order Denying Leave to Proceed in Forma Pauperis, Taylor, 22-cv-22805,

ECF No. 6 (noting that, while the Plaintiff claimed she had no income, she admitted that she worked

for the city of Cape Coral). The Plaintiff then paid the fee, and the Clerk of Court issued a summons

for DHS. See Summons in a Civil Action, Taylor, 22-cv-22805-BB, ECF No. 10. But the Plaintiff never

served the Defendant, see generally Docket, Taylor, 22-cv-22805-BB, despite having been warned that

her failure to do so would “result in dismissal without prejudice and without further notice,” Order

to File Proof of Service, 22-cv-22805-BB, ECF No. 11. So, on December 7, 2022—after the 90-day

service window outlined in FED. R. CIV. P. 4(m) had closed—Judge Bloom dismissed the Plaintiff’s

complaint without prejudice “for failure to timely serve” and closed the case. Order of Dismissal

without Prejudice, Taylor, 22-cv-22805, ECF No. 12.

On May 3, 2023—after the 90-day appeal periods for each of the First and Second Internal

DHS Complaint Orders had expired—the Plaintiff filed a second federal lawsuit against the Defendant,

this time before Judge Scola. See Complaint, Taylor v. Sec’y, U.S. Dep’t of Homeland Sec., 23-cv-21674-

RNS (S.D. Fla. May 3, 2023) (Scola, J.), ECF No. 1. The Plaintiff’s claims before Judge Scola were

very similar to the ones she’d asserted before Judge Bloom (and which she’s now brought to us):

Discrimination Leading to Constructive Dismissal (Claim I); False or Fraudulent Claim of

Unauthorized ATM Withdrawal and Writing a Bad Check (Claim II); and Engagement in Nepotism

and EEOC Failure to Investigate Claim (Claim III). See generally ibid. And, again, these claims were tied

to the same factual allegations she’d advanced in the First Internal DHS Complaint and the Judge

Bloom Complaint, see generally ibid.—which, in turn, are the same factual allegations she’s asserted here.

On May 4, 2023, Judge Scola gave the Plaintiff one week either to pay the $405 filing fee or to file an

application to proceed in forma pauperis. See May 4, 2023, Paperless Order, Taylor, 23-cv-21674-RNS,

ECF No. 6. The Plaintiff did neither. See generally Docket, 23-cv-21674-RNS. So, on May 17, 2023,

Judge Scola dismissed the Plaintiff’s second complaint without prejudice, finding that the Plaintiff had

“abandoned her prosecution of th[e] case and . . . ha[d] not paid [her] filing fee or applied to proceed

without payment.” Order of Dismissal for Failure to Pay Fees, Taylor, 23-cv-21674-RNS, ECF No. 8.

III. The Plaintiff files this lawsuit

On May 19, 2023—two days after Judge Scola dismissed her case—the Plaintiff filed her

complaint in our case, see Initial Complaint [ECF No. 1], which we struck as a shotgun pleading, see

May 23, 2023, Order [ECF No. 7]. The Plaintiff then filed the operative Amended Complaint on June

2, 2023, in which she asserts that she’s been “irreparably damaged by the actions of the DHS Miami

District Field Office management” and “blacklisted from being rehired by the DHS Miami District

Field Office because of the derogatory document held against her.” Amended Complaint ¶¶ 26–27.

She also alleges that the “acts of the DHS Miami District Field Office have caused her continued

[e]xtreme: emotional distress, embarrassment, and financial hardship from loss of her career with

DHS, to this day.” Id. ¶ 28. The Plaintiff therefore brings the following five causes of action against

the Defendant: (I) Discrimination; (II) Retaliation; (III) Constructive Termination; (IV) Violation of

the False Claims Act; and (V) Nepotism. See id. ¶¶ 1, 10, 13, 17, 22. Based on these claims, she asks

that we:

1) Award Plaintiff Reinstatement of Plaintiff’s job at the GS-13/14 step 10 level, in

a Remote position . . . ;

2) Remove all derogatory documents held in the local Miami District office and HR

office, that state[ ] that the Plaintiff made illegal, or otherwise, made unauthorized

ATM withdrawal via Plaintiff’s Travel Card . . . ;

3) Remove all derogatory documents held in the local Miami District office and HR

office, that states that Plaintiff wrote a bad check that bounced to the Federal

Government;

4) Instruct all hiring officials to not block or prevent Plaintiff’s application(s) from

being processed and considered for re-employment;

5) Award Plaintiff all back pay, including benefits . . . for full gap of employment

from December 8, 2018, to [now];

6) Award compensatory damages to Plaintiff in the amount $650,000.00 and all other

monetary damages deemed appropriate by this court;

7) Award punitive damages of 9 times compensatory damages or $4,950,000;

8) Award pain and suffering in the amount of $400,000;

9) Order DHS to pay all taxes, costs and legal fees separate from any settlement

amount; and

10) Award such additional relief as justice may require, together with Plaintiff’s costs

and disbursements in this action.

Id. ¶¶ 29–39 (errors in original).

On October 6, 2023, the Defendant filed its MTD under Rule 12(b)(6), arguing that the

Plaintiff’s claims “should be dismissed with prejudice.” MTD at 1. First, the Defendant says that

Counts I–III (Discrimination, Retaliation, and Constructive Termination) should be dismissed

because they’re “time-barred by Title VII’s statute of limitations.” Ibid. According to the Defendant,

the Plaintiff “commenced this case long after her receipt of the relevant underlying Final Agency

Decision[5] containing a right to sue notice advising that she had 90 days to file suit in district court.”

Ibid. Second, the Defendant contends that Count IV should be dismissed because the False Claims Act

“simply has no application to the facts alleged” since it “deals with fraudulent claims for payment

made against the government, not allegedly ‘false claims’ made against [the Plaintiff] relating to

unauthorized charges on her government-issued credit card.” Id. at 2. Finally, the Defendant asks that

we dismiss Count V—which asserts a “Nepotism” claim—because (1) the Plaintiff “commenced suit

long after her receipt of the relevant administrative Procedural Dismissal,” and (2) the governing

5 According to the Defendant, that “relevant . . . Final Agency Decision” is the First Internal DHS

Complaint. See MTD at 1, 5.

statute for nepotism claims—5 U.S.C. § 3110—“has no application to the facts alleged and, in any

event, does not provide a private right of action.” Ibid.

In her MTD Response [ECF No. 26], the Plaintiff counters that her claims aren’t time-barred

(she doesn’t address any of the Defendant’s other arguments6) because “she filed her first Case No.

22-cv-22805 [before Judge Bloom] on September 1, 2022, and said case and all subsequent cases were

dismissed Without Prejudice pursuant to Florida Rules of Civil Procedure, this Case No. 23-cv-21881

and the Amended Complaint are now timely filed therefore, Title VII and all issues stated under

Defendant’s Motion to Dismiss under item IV, does not apply as claimed by the Defendant.” MTD

Response at 2. In his MTD Reply, the Defendant maintains that “the timely commencement of a case

that is later dismissed without prejudice does not toll the applicable statute of limitations.” MTD Reply

at 2. This Order follows.

THE LAW

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this

“plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ibid. (citing Twombly, 550

U.S. at 556). The standard “does not require ‘detailed factual allegations,’ but it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ibid. (quoting Twombly, 550 U.S. at

555). “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will

6 By failing to respond to these arguments, the Plaintiff has forfeited any response she might have had.

See Gent Row, LLC v. Truist Fin. Corp., 2022 WL 3682172, at *2 (S.D. Fla. June 27, 2022) (Dimitrouleas,

J.) (“Plaintiff has abandoned this claim by failing to defend it in opposition to the Motion to

Dismiss.”). But, since the Plaintiff is pro se—and in the interest of completeness—we’ll conduct a full

analysis of the Plaintiff’s claims before disposing of them.

reveal evidence’ of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309–10

(11th Cir. 2008) (quoting Twombly, 550 U.S. at 545). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678. On a motion to dismiss, “the court must accept all factual

allegations in a complaint as true and take them in the light most favorable to plaintiff.” Dusek, 832

F.3d at 1246.

But “pro se [filings], however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.” Erikson v. Pardus, 551 U.S. 89, 94 (2007); see also Saunders v. Duke,

766 F.3d 1262, 1266 (11th Cir. 2014) (“We also construe the complaint liberally because it was filed

pro se.”); cf. FED. R. CIV. P. 8(f) (“All pleadings shall be so construed as to do substantial justice.”). Still,

while we treat pro se litigants with some leniency, “this leniency does not give a court license to serve

as de facto counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an action.”

Schwarz v. Ga. Composite Med. Bd., 2021 WL 4519893, at *2 (11th. Cir 2021) (cleaned up). Notably, the

requirement that “a complaint must contain sufficient facts, accepted as true, to state a claim for relief

that is plausible on its face . . . also applies to pro se complaints.” Wells v. Miller, 652 F. App’x 874, 875

(11th Cir. 2016); see also Saunders, 766 F.3d at 1266 (recognizing that Twombly and Iqbal apply to pro se

complaints).

ANALYSIS

I. Counts I–III: Title VII Claims (Discrimination, Retaliation, and Constructive

Termination)

a. These claims are time-barred

“Before a potential plaintiff may sue for discrimination under Title VII, she must first exhaust

her administrative remedies.” Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). The

Plaintiff has complied with this requirement, as evidenced by the “Right to Sue” letters that were

attached to the First and Second Internal DHS Complaint Orders. See First Internal DHS Complaint

Order at 19–20; Second Internal DHS Complaint Order at 6.

Whether her lawsuit is timely, though, is a harder question. According to the Defendant,

“Counts I–III are time-barred by Title VII’s statute of limitations; Plaintiff commenced this case long

after her receipt of the relevant underlying Final Agency Decision [the First Internal DHS Complaint

Order] containing a right to sue notice advising that she had 90 days to file suit in district court. Absent

a time machine, this deficiency cannot be cured, amendment would be futile, and dismissal with

prejudice is therefore proper.” MTD at 1. The Plaintiff disagrees and asks us to find that this case

relates back to her complaint before Judge Bloom, which “was initially filed in a timely manner.” MTD

Reply at 1.

Under 29 C.F.R. § 1614.407, “a complainant who has filed an individual complaint is

authorized under title VII to file a civil action in an appropriate United States District Court within 90

days of receipt of the agency final action[.]” 29 C.F.R. § 1614.407(a) (cleaned up); see also 42 U.S.C. §

2000e-5(f)(1) (providing that “within ninety days after the giving of . . . notice [of dismissal of the

charge] a civil action may be brought against the respondent named in the charge . . . by the person

claiming to be aggrieved”); Page v. Postmaster Gen. Chief Exec. of U.S. Postal Serv., 493 F. App’x 994, 996

(11th Cir. 2012) (per curiam) (“Section 2000e-5, in turn, allows an employee to file an action in the

district court within 90 days of receiving a final agency decision or right-to-sue letter.”). The Plaintiff

bears the burden of establishing that her claims are timely. See Jackson v. Seaboard C. L. R. Co., 678 F.2d

992, 1010 (11th Cir. 1982) (“[A] plaintiff must generally allege in his complaint that all conditions

precedent to the institution of the lawsuit have been fulfilled.” (cleaned up)); see also Green v. Union

Foundry Co., 281 F.3d 1229, 1233 (11th Cir. 2002) (“Once the defendant contests th[e] issue, the

plaintiff has the burden of establishing that he met the ninety day filing requirement[.]”).

There’s no question that the lawsuit before us—if considered in isolation—is untimely. This

is true even if we give the Plaintiff the benefit of the doubt and assume that she had ninety days from

the date on which she was served with the Second Internal DHS Complaint Order to file this federal

action.7 Because she was served with that Second Internal DHS Complaint Order on January 12,

2023, see Second Internal DHS Complaint at 21 (showing date of service), her ninety-day window

would have closed on April 12, 2023. But she didn’t file this lawsuit until May 19, 2023, see Initial

Complaint—more than a month late.

But that’s not the end of our analysis. Under Rule 15, “[a]n amendment to a pleading relates

back to the date of the original pleading when the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original

pleading[.]” FED. R. CIV. P. 15(c)(1)(B). And that may be what happened here.8 See Caron v. NCL

(Bahamas), Ltd., 910 F.3d 1359, 1368 (11th Cir. 2018) (“Relation back is a legal fiction employed to

salvage claims that would otherwise be unjustly barred by a limitations provision.”); Dean v. United

States, 278 F.3d 1218, 1222 (11th Cir. 2022) (“The key consideration [for relation back] is that the

amended claim arises from the same conduct and occurrences upon which the original claim was

based.”).

We recently applied the “relation-back” doctrine in Deffendall v. Stinson, 2023 WL 8170937 (S.D.

Fla. Nov. 24, 2023) (Altman, J.). The pro se inmate in that case brought a § 1983 claim against several

jailers who (the plaintiff alleged) had “failed to protect him from [another] violent inmate.” Id. at *5.

7 We say “benefit of the doubt” because it’s not clear from the Amended Complaint (or from the

record generally) which lawsuit corresponds to which Internal DHS Complaint Order.

8 The Plaintiff hasn’t explicitly invoked Rule 15. See generally Amended Complaint; MTD Response. Still,

she has said that “this case commenced, timely, on September 1, 2022 [before Judge Bloom] and was

dismissed Without Prejudice, the case was timely filed a second time [before Judge Scola], and the

second case was dismissed Without Prejudice. Therefore, this Case [pending before Judge Altman] is

now timely filed.” MTD Response at 2. Considering that Taylor is proceeding pro se, we think she’s

done just enough to invoke Rule 15(c)(1)(B) here. See Erickson, 551 U.S. at 94 (“A document filed pro

se is ‘to be liberally construed[.]’” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))).

In their summary-judgment motion, the defendants argued that the statute of limitations on the

plaintiff’s § 1983 claim had expired a few days before the plaintiff filed his lawsuit. See ibid. The

plaintiff countered that, under Rule 15(c)(1)(B), his complaint “relate[d] back” to an earlier, timely

complaint he’d filed in a separate case before us. Id. at *6. We had dismissed that earlier, timely

complaint without prejudice (and closed the case) because the inmate’s sister—not a lawyer—had

filed it on his behalf under the mistaken assumption that she could so with a power of attorney. See

ibid. In our order dismissing that timely complaint without prejudice, we informed the inmate that

“he may file a motion to re-open this case (with an accompanying amended complaint) by May 7,

2021”—a date that fell outside the statute-of-limitations period. Ibid. (quoting Dismissal Order). “For

whatever reason, [the inmate] didn’t file a motion to re-open” the closed case but instead “filed a new

complaint and initiated a new case”—after the statute of limitations had expired but (critically) before

our May 7, 2021 deadline. Ibid. The defendants argued that “by filing a new complaint—rather than a

motion to reopen his original case—[the inmate] waived his right to have this case relate back . . .

because when a timely complaint is dismissed without prejudice, a later action that is filed outside the

period of limitations is untimely, as it would be if the previous action had never existed.” Id. at *7

(cleaned up). And the Eleventh Circuit had recently said as much. See Wright v. Waste Pro USA, Inc.,

69 F.4th 1332, 1337 (11th Cir. 2023) (“We have recognized on many occasions that when a timely

complaint is dismissed without prejudice, a later action that is filed outside the period of limitations

is untimely, as it would be if the previous action had never existed.”).

We disagreed with the Deffendall defendants, though, and found that the inmate’s new

complaint did relate back. In saying so, we distinguished Wright on the ground that the plaintiff there

had failed to establish the court’s personal jurisdiction, whereas the inmate in Deffendall had

committed only a very minor technical (almost administrative) error—filing a new case rather than

re-opening the original. As we explained:

Of course, Deffendall didn’t file his complaint in [the original action]. He, instead,

opened a new case by filing a new complaint that didn’t list his previous case number.

That was undoubtedly a mistake—one we mainly attribute to his lack of expertise in

the nuances of the case-filing system. So, the question really is: How much should this

relatively innocuous (and frankly understandable) technical error cost Deffendall? If

we adopt the Defendants’ position, we’d be stripping him of the right to bring one of

his two claims. That, to our mind, would be an overly harsh and disproportionate

punishment for a pro se inmate’s harmless procedural mistake. Cf. Justice v. United States,

6 F.3d 1474, 1482 n.15 (11th Cir. 1993) (“[B]ecause such an order has the effect of

precluding plaintiff from refiling his claim due to the running of the statute of

limitations[,] the dismissal is tantamount to a dismissal with prejudice. Dismissal with

prejudice is a drastic remedy to be used only in those situations where a lesser sanction

would not better serve the interests of justice. It is a sanction of last resort, proper only

where there is a clear record of delay or willful contempt.”); Shuler v. Garrison, 718 F.

App’x 825, 827–28 (11th Cir. 2017) (“We may thus show some leniency when an

appellant’s exhibited intent is contrary to a technical mistake that would otherwise

impede his appeal. This is especially so for pro se litigants.” (citing Pitney Bowes, Inc. v.

Mestre, 701 F.2d 1365, 1374–75 (11th Cir. 1983))). Pro se litigants are, of course,

expected to obey “the relevant law and rules of court,” Moon v. Newsome, 863 F.2d 835,

837 (11th Cir. 1989), but we shouldn’t use those rules “to set traps and pitfalls by way

of technicalities for unwary litigants” when it’s clear that a pro se party was trying to

comply, Finch v. City of Vernon, 845 F.2d 256, 259 (11th Cir. 1988) (quoting Des Isles v.

Evans, 225 F.2d 235, 236 (5th Cir. 1955)).

Because (since April 6, 2021) Deffendall has continuously asserted the same failure-

to-protect claim in federal court against Defendants Stinson, Brown, Hamilton, and

Bryant, we find that the Complaint and Amended Complaint in our case relate back

to his April 6, 2021, Complaint—which means that his failure-to-protect claim was

filed within the applicable four-year statute of limitations.

Deffendall, 2023 WL 8170937, at *7–8.

That’s nothing like what happened here. The plaintiff in Deffendall was trying to comply with

our order. It was only because of his unfamiliarity with our docketing system that he inadvertently

filed a new case (instead of moving to reopen the old one). Here, by contrast, the Plaintiff all but

abandoned her claims in two separate cases—ignoring the unambiguous instructions of two federal

judges along the way. In the case before Judge Bloom, the Clerk of Court issued a summons, but the

Plaintiff failed to serve the Defendant within the 90 days set out in Rule 4(m)—despite having been

warned by Judge Bloom that her failure to do so would result in dismissal. And, in the case before

Judge Scola, the Plaintiff neither paid the filing fee nor submitted an application for leave to proceed

in forma pauperis within the time limits Judge Scola had set. What we’re dealing with here, then, is not a

pro se plaintiff who’s trying to prosecute her case while making minor (if not wholly unexpected)

technical errors. We’re dealing, instead, with a plaintiff who appears to prosecute her case only when

it’s convenient for her.

Our case is more like the Eleventh Circuit’s decision in Foudy v. Indian River County Sheriff’s

Office, 845 F.3d 1117 (11th Cir. 2017). The plaintiffs there sued several entities and agencies under 42

U.S.C. § 1983, alleging violations of Florida’s Driver’s Privacy Protection Act. Id. at 1120. Judge

Martinez (of our Court), “concerned the complaint constituted a mere ‘shotgun pleading,’ entered an

order severing the [plaintiffs’] claims against the separate defendants.” Ibid. “The order dismissed all

defendants except the first named defendant and granted the [plaintiffs] two weeks to refile separate

actions against the dismissed parties.” Ibid. Judge Martinez’s order also “specifically provided [that]

the newly-severed actions, when refiled, would be considered continuations of the prior action for

statute of limitations purposes. The [plaintiffs] refiled thirteen separate actions within the allotted

time.” Ibid. So far, so good.

But Judge Rosenberg, “presiding over the refiled cases, entered three identical paperless orders

dismissing the [plaintiffs’] complaints in each case” because the plaintiffs “did not clearly demonstrate

[that] their claims against the various defendants arose out [of] the same transaction[.]” Id. at 1121.

Judge Rosenberg “dismissed each case without prejudice, but did not provide for the tolling of the

statute of limitations as Judge Martinez’s order had done. [The plaintiffs] were given fifteen days to

re-file separate actions against appropriate defendants and expressly state in any complaint naming

multiple defendants how such parties’ conduct constituted the same transaction for the purposes of

joinder.” Ibid. When the plaintiffs failed to comply with this directive, Judge Rosenberg “clos[ed] each

case, stating [that] the [plaintiffs] could reopen the cases only by filing a motion explaining their failure

to comply with court orders and an amended complaint meeting the requirements of the [prior] order

[on the issue of joinder].” Ibid. “Later that same day, [the plaintiffs] filed motions to reopen in each

case[.]” Ibid. But the plaintiffs “provided no explanation as to how the claims against the defendants

arose out of the same transaction.” Ibid. Judge Rosenberg thus “denied each of the motions [to

reopen]” and gave the plaintiffs the “opportunity to refile,” which the plaintiffs finally did in a way

that satisfied Judge Rosenberg. Ibid.

Sometime later, though, the defendants “moved to dismiss, asserting [that the plaintiffs’]

claims were barred by the statute of limitations.” Ibid. After concluding that the “occurrence rule

applied,” Judge Rosenberg “entered judgment in favor of the defendants and closed the cases.” Ibid.

In their appeal to the Eleventh Circuit, the plaintiffs argued—among other things—that Judge

Rosenberg “erred when [she] dismissed their actions for misjoinder” by “misread[ing] Judge

Martinez’s severance order as requiring an explanation of any joinder of multiple defendants[.]” Id. at

1125. In the plaintiffs’ view, therefore, “their complaints should relate back to [the] date of their first

complaint” under Rule 15(c). Ibid. The Eleventh Circuit disagreed, reasoning that “whether or not the

district court’s dismissals were appropriate in the first instance, the [plaintiffs’] subsequent failure to obey

court orders warranted closure of each case.” Ibid. (emphasis added). Judge Rosenberg’s “January 16 paperless

order,” the court noted, “clearly instructed the [plaintiffs] to explain their grounds for joinder in any

complaint naming multiple defendants. The [plaintiffs] failed to abide by this requirement when they

refiled substantially similar complaints on February 2, 2015, unaccompanied by any such explanation.”

Id. at 1126. As a result, the court said, “both the district court’s February 3 refusal to accept the

[plaintiff’s] amended complaints and its decision to deny their motions to reopen the cases were

entirely appropriate and operated as a second dismissal without prejudice.” Ibid. As the Eleventh

Circuit explained, “[d]ismissal of a complaint, without prejudice, does not allow a later complaint to

be filed outside the statute of limitations,” ibid. (quoting Bost v. Fed. Express Corp., 372 F.3d 1233, 1242

(11th Cir. 2004)), because the “statute of limitations is not automatically tolled in such a situation,

absent some additional reason,” ibid. (citing Justice v. United States, 6 F.3d 1474, 1479–80 (11th Cir.

1993)). Since the plaintiffs had not provided any such reason, the Eleventh Circuit held that their

“complaints cannot relate back” to the initial complaint. Ibid.

Like the plaintiffs in Foudy, our Plaintiff’s earlier complaints were dismissed by Judges Bloom

and Scola for failure to follow court orders.9 And our Plaintiff’s lack of compliance was far more

egregious than the conduct at issue in Foudy. In that case, after all, the plaintiffs at least tried to comply

with court orders by filing documents the court ultimately found unsatisfactory, whereas our Plaintiff

did nothing, ignored the unambiguous instructions of two federal judges, and then and just walked away

from two federal cases she had initiated. We therefore see little reason to stray from Foudy’s default

rule that the “[d]ismissal of a complaint, without prejudice, does not allow a later complaint to be filed

outside the statute of limitations.” Id. at 1126 (quoting Bost, 372 F.3d at 1242).

Having determined that Counts I–III of the Amended Complaint are untimely, we can only

adjudicate those claims on the merits if we apply the doctrine of equitable tolling. Like the Foudy

plaintiffs, however, our Plaintiff hasn’t invoked the doctrine of equitable tolling at all—though she

could have. See Gant v. Jefferson Energy Co-op, 348 F. App’x 433, 434 (11th Cir. 2009) (“Because it is non-

jurisdictional, the time limit [to file a Title VII suit] is subject to equitable tolling, permitting a court

to disregard the late filing under certain circumstances.”); Campbell v. Air Jamaica, Ltd., 760 F.3d 1165,

1175 (11th Cir. 2014) (“Equitable tolling is the doctrine under which plaintiffs may sue after the

statutory period has expired if they have been prevented from doing so due to inequitable circumstances.”

(cleaned up & emphasis added)). In any event, equitable tolling probably wouldn’t have saved her claims

9 Specifically, as we’ve highlighted, the Plaintiff failed to serve the Defendant in compliance with Judge

Bloom’s order and failed either to pay the filing fee or to apply to proceed in forma pauperis in Judge

Scola’s case.

because she hasn’t identified any circumstances, let alone any “extraordinary circumstances,” that might

“justify her untimely filing.” Jackson v. Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007) (emphasis added).

Our Plaintiff, in sum, has failed to meet her burden of showing that our case relates back to

the lawsuits she filed before Judges Bloom and Scola. Cf. Bray v. Bank of Am., N.A., 763 F. App’x 808,

811 (11th Cir. 2019) (finding that a pro se plaintiff’s complaint didn’t “relate back” to a prior complaint

that had been dismissed without prejudice, even though “both civil actions ar[o]se from the same set

of operative facts”); Morency v. Barnes, 2017 WL 3268890, at *2 (M.D. Fla. Aug. 1, 2017) (Corrigan, J.)

(dismissing 42 U.S.C. § 1983 claims as untimely, even though the pro se plaintiff had timely filed a prior

complaint—based on the same operative facts and against the same defendant—which had been

dismissed without prejudice); Mathis v. Inch, 2021 WL 648163, at *2 (S.D. Fla. Jan. 8, 2021) (Cooke, J.)

(noting that, because “dismissal of a complaint, without prejudice, usually does not allow a later

complaint to be filed outside the statute of limitations,” a court “may equitably toll a limitations

period” only if “the plaintiff [has] established that equitable tolling is warranted” (cleaned up)). Because

Counts I–III are untimely, we DISMISS them without prejudice.

b. Count I (Discrimination) fails on the merits because the Plaintiff hasn’t

alleged discriminatory intent

The Defendant argues that, “[i]f it were not also time-barred (which it is), Plaintiff’s Title VII

discrimination claim would still need to be dismissed for failure to state a claim because it lacks

sufficient (or any) allegations of the required elements to state that claim.” MTD at 10. According to

the Defendant, “to state a claim of discrimination” under Title VII, a plaintiff “must” establish a

prima facie case under the burden-shifting framework the Supreme Court laid out in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and “allege that such action was based on the employer’s

discriminatory animus.” MTD at 8–10.10 As we’ve explained in other (similar) contexts, though, the

Defendant is just wrong to rely on McDonnell Douglas at the pleading phase of this case.

In McDonnell Douglas, the Supreme Court “established a three-step process for analyzing [Title

VII] discrimination claims[.]” Ehrhardt v. Haddad Rest. Grp., Inc., 443 F. App’x 452, 455 (11th Cir.

2011).

Step one is for the plaintiff, who establishes what McDonnell Douglas calls a ‘prima facie’

case of discrimination’ when she shows that (1) ‘she belongs to a protected class,’ (2)

‘she was subjected to an adverse employment action,’ (3) ‘she was qualified to perform

the job in question,’ and (4) ‘her employer treated similarly situated employees outside

her classification more favorably.’ . . . The prima facie showing entitles the Plaintiff to a

rebuttable presumption of intentional discrimination. The defendant then rebuts that

presumption (if it can) by offering evidence of a valid, non-discriminatory justification

for the adverse employment action. Once that justification is offered, the presumption

of discrimination falls away and the plaintiff tries to show not only that the employer’s

justification was pretextual, but that the real reason for the employment action was

discrimination. This final question merges with the plaintiff’s ultimate burden of

persuading the factfinder that she has been the victim of intentional discrimination.

Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 944 (11th Cir. 2023) (quoting McDonnell Douglas, 411 U.S.

at 802 (cleaned up)).

But McDonnell Douglas’s burden-shifting framework doesn’t apply at the pleading phase of a

case. After all, “[t]he prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a

pleading requirement.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). In other words:

This Court has never indicated that the requirements for establishing a prima facie case

under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy

in order to survive a motion to dismiss. For instance, we have rejected the argument

that a Title VII complaint requires greater “particularity,” because this would “too

narrowly constrict[t] the role of the pleadings.” McDonald v. Santa Fe Trail Transp. Co.,

[427 U.S. 273, 283 n.11 (1976)] . . . .

In addition, under a notice pleading system, it is not appropriate to require a plaintiff

to plead facts establishing a prima facie case because the McDonnell Douglas framework

does not apply in every employment discrimination case. For instance, if a plaintiff is

10 While the Defendant doesn’t cite directly to McDonnell Douglas, the case he relies on, Steinberg v.

Donahoe, 2014 WL 1356711, at *10 (S.D. Fla. Apr. 7, 2014) (Rosenbaum, J.), employs the same four-

part test the Supreme Court first outlined in McDonnell Douglas.

able to produce direct evidence of discrimination, he may prevail without proving all

the elements of a prima facie case . . . . It thus seems incongruous to require a plaintiff,

in order to survive a motion to dismiss, to plead more facts than he may ultimately

need to prove to succeed on the merits if direct evidence of discrimination is

discovered.

Id. at 511–12.11 Contra the Defendant’s position, then, we do not ask, at this stage of the case, whether

our Plaintiff has established a prima facie claim of discrimination under McDonnell Douglas.

All that said, the Plaintiff’s claim still fails because she never alleges that the Defendant acted

with discriminatory intent or animus. See Faulk v. City of Orlando, 731 F.2d 787, 790 (11th Cir. 1984)

(“Nowhere in his pleadings did appellant allege any action by the individual defendants based on

appellant’s race which could be characterized as purposeful discrimination violative of Title VII . . . Indeed,

the factual allegations against the individual defendants . . . merely recount ill treatment at their hands

without reference to discriminatory intent.” (emphases added)); see also McCray v. Potter, 263 F. App’x 771,

773 (11th Cir. 2008) (“The Plaintiff in an employment discrimination lawsuit must show that an

adverse employment action was related to an employer’s discriminatory animus towards the employee

based on a protected characteristic.” (emphasis added)).

While the Plaintiff does say that her DHS supervisors treated her worse than one or more

Hispanic white males, see, e.g., Amended Complaint ¶ 9 (“Plaintiff claims that management . . . afforded

privileges to the less qualified, white, Hispanic, male candidate that was hired for [the job] that [were]

not afforded to the Plaintiff.”), she hasn’t alleged that they did this because of her race or sex. Indeed,

11 The Supreme Court confirmed the continued viability of Swierkiewicz in Twombly, where it held that

“Swierkiewicz did not change the law of pleading, but simply re-emphasized that the Second Circuit’s

use of a heightened pleading standard for Title VII cases was contrary to the Federal Rules’ structure

of liberal pleading requirements.” Twombly, 550 U.S. at 570 (cleaned up); see also Brown v. Daikin Am.

Inc., 756 F.3d 219, 229 (2d Cir. 2014) (“[T]he Supreme Court held in Swierkiewicz . . . that a plaintiff

need not plead facts establishing a prima facie case under McDonnell Douglas to survive a motion to

dismiss . . . and went out of its way in Twombly to reaffirm that holding[.]”); McCone v. Pitney Bowes, Inc.,

582 F. App’x 798, 801 n.4 (11th Cir. 2014) (noting that Twombly “had no impact on Swierkiewicz’s

statement that a plaintiff is not required to plead a prima facie case of discrimination in order to survive

dismissal”).

the only detail the Plaintiff does provide on the issue of intent has to do with her academic credentials—

not her race or sex. See id. ¶ 5 (“Plaintiff claims that DHS management at the Miami District Field

Office, replied to Plaintiff via e-mail in response to her Direct Hire application and stated, ‘You cannot

apply for this job . . . you have a PhD, good luck.’”). As the Eleventh Circuit has explained, “employers

are free to not promote an employee for a good reason, a bad reason, a reason based on erroneous

facts, or for no reason at all as long as the promotion is not based on discriminatory reasoning.” Moss

v. St. Vincent Health Sys., 2024 WL 729953, at *4 (11th Cir. Feb. 2, 2024) (per curiam). Since the Plaintiff

hasn’t alleged that the Defendant failed to promote her because of any such “discriminatory reasoning,”

Count I also fails on the merits.

c. Count II (Retaliation) fails on the merits because the Plaintiff hasn’t alleged

that she was engaged in a statutorily protected activity

“Title VII’s anti-retaliation provision makes it ‘an unlawful employment practice for an

employer to discriminate against any of [its] employees . . . because he has opposed any practice made

an unlawful employment practice by this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under this

subchapter.’” Patterson v. Ga. Pac., LLC, 38 F.4th 1336, 1344 (11th Cir. 2022) (quoting 42 U.S.C. §

2000e-3(a)). “To state a claim for retaliation under Title VII, the ‘plaintiff must show that (1) she

engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3)

the adverse action was causally related to the protected expression.’” Cotton v. Cracker Barrell Old Country

Store, Inc., 434 F.3d 1227, 1233 (11th Cir. 2006) (quoting Wideman v. Wal-Mart Stores, Inc., 141 F.3d

1453, 1454 (11th Cir. 1998)).

Statutorily protected activity “includes opposition to ‘any practice made an unlawful

employment practice’ under Title VII.” Edwards v. Ambient Healthcare of Ga., Inc., 674 F. App’x 926, 930

(11th Cir. 2017) (quoting 42 U.S.C. § 2000e-3(a)); Adams v. City of Montgomery, 569 F. App’x 769, 772

(11th Cir. 2014) (“Protected activity under Title VII includes making a charge under [42 U.S.C. §

2000e–3(a)].”). “A plaintiff engages in statutorily protected activity when he or she protests an

employer’s conduct which is actually lawful, so long as he or she demonstrates a good faith, reasonable

belief that the employer was engaged in unlawful employment practices.” Williams v. Crown Liquors of

Broward, Inc., 878 F. Supp. 2d 1307, 1311–12 (S.D. Fla. July 19, 2012) (Altonaga J.) (quoting Harper v.

Blockbuster Entm’t Corp., 139 F.3d 1385, 1388 (11th Cir. 1998)); Rollins v. State of Fla. Dept. of Law Enf’t,

868 F.2d 397, 400 (11th Cir. 1989) (“[T]he protection afforded by the statute is not limited to

individuals who have filed formal complaints, but extends as well to those, like [plaintiff], who

informally voice complaints to their superiors or who use their employers’ internal grievance

procedures.”).

The Plaintiff has failed to plead a viable retaliation claim because she hasn’t alleged that she

participated in any statutorily protected activity. Instead, the Plaintiff says only that she performed her

work admirably, sought a promotion, resigned, and then applied for a new position. See generally

Amended Complaint. None of that is protected conduct because none of it involves the filing of

complaints—by the plaintiff to her employer—about possible Title VII violations. See Benavides v. Ga.

Pub. Def. Council, 2021 WL 2448360, at *8 (N.D. Ga. Jan. 14, 2021) (‘Statutorily protected activity’ for

purposes of Title VII includes making internal complaints to superiors about discrimination or

retaliation made unlawful by Title VII.”); Kessler v. Zimmerman Advert., LLC, 2017 WL 5178351, at *2

(S.D. Fla. Nov. 8, 2017) (Gayles, J.) (“To establish that she engaged in a statutorily protected activity,

Plaintiff must allege that she voiced opposition to an unlawful employment practice or participated in

any manner in an investigation, proceeding, or hearing concerning an unlawful employment

practice.”). The only actions the Plaintiff undertook that might have qualified for Title VII protection

were the Plaintiff’s submission of various complaints to the DHS Office for Civil Rights (assuming

the Plaintiff’s superiors were even aware of these filings), but she doesn’t mention any of these

documents or proceedings in her Amended Complaint. See generally Amended Complaint. Without

alleging that she engaged in any statutorily protected activity, the Plaintiff’s retaliation claim (assuming

it had been timely filed) fails on the merits. See, e.g., Arafat v. Sch. Bd. of Broward Cnty., 549 F. App’x 872,

875 (11th Cir. 2013) (affirming the district court’s decision to grant a motion to dismiss when the

plaintiff had not “alleged facts to suggest that she engaged in a protected activity—the first element

to a Title VII retaliation claim”); Jones v. Unity Behavioral Health, LLC, 2021 WL 5495578, at *2 (11th

Cir. Nov. 23, 2021) (affirming the district court’s finding that Title VII plaintiffs failed to state a

retaliation claim because they hadn’t alleged that they participated in any “protected activity under

Title VII”).

d. If it had been timely, Count III (Constructive Termination) would have

survived

“The constructive-discharge doctrine contemplates a situation in which an employer

discriminates against an employee to the point such that his ‘working conditions become so intolerable

that a reasonable person in the employee’s position would have felt compelled to resign.’” Green v.

Brennan, 578 U.S. 547, 555 (2016) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)); see also

Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1450 (11th Cir. 1998) (“[T]he general rule is that if the

employer deliberately makes an employee’s working conditions so intolerable that the employee is

forced into an involuntary resignation, then the employer . . . is as liable for any illegal conduct involved

therein as if it had formally discharged the aggrieved employee.” (quoting Young v. Sw. Sav. and Loan

Assoc., 509 F.2d 140, 144 (5th Cir. 1975)));12 Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1231 (11th

Cir. 2001) (noting that this reasonable-person standard “for proving constructive discharge is higher

than the standard for proving a hostile work environment”). “When the employee resigns in the face

12 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit

adopted as binding precedent all decisions of the former Fifth Circuit handed down before October

1, 1981.

of such circumstances, Title VII treats that resignation as tantamount to an actual discharge.” Green,

578 U.S. at 555.

To assert a constructive-discharge (or constructive-termination) claim under Title VII, the

Plaintiff must do two things: One, she must plausibly assert that “[she] was discriminated against by

[her] employer to the point where a reasonable person in [her] position would have felt compelled to

resign.” Ibid. Two, she must show that she “actually resigned.” Ibid. The Plaintiff has plainly met that

second element. See Amended Complaint ¶ 16 (“Plaintiff submitted a letter of resignation to

management at the Miami District Field Office, stating that she was forced to resign from her job

because of intentional harassment and retaliation from DHS management at the Miami Field Office.”).

Whether she’s met the first prong is a bit less clear. Still, recognizing that “an artificially high threshold

for what constitutes an adverse employment action would undermine the purposes of the statute by

permitting discriminatory actions to escape scrutiny,” Dekalb Cnty. School Dist., 145 F.3d at 1453 n.21,

we think the Plaintiff has done just enough to state a claim for constructive discharge. Had the

Amended Complaint been timely, in short, we would have allowed the Plaintiff to proceed with her

claim that being “blocked . . . from applying” for a better position, having to “continue completing

GS-12/13/14 work tasks” despite her status as a GS-9 employee, having to “train management,” and

having to “train the entire Miami District Field Office,” Amended Complaint ¶ 14, would have made

a “reasonable person [feel] compelled to resign,’” Green, 578 U.S. at 555 (quoting Pa. State Police, 542

U.S. at 141); see also Dekalb Cnty. School Dist., 145 F.3d at 1453 n.21 (“We believe that the purposes of

the statute are appropriately served by requiring the fact finder to determine whether a reasonable

person would consider the action adverse under all the facts and circumstances.”).

II. Count IV: False Claims Act

In Count IV, the Plaintiff alleges that the Defendant violated the False Claims Act (the

“FCA”), 31 U.S.C. § 3729, et seq., by falsely accusing her of “theft of cash money via ATM withdrawals”

and “writing a bad check that bounced to the Federal Government.” Amended Complaint at 9–10.

But there’s one big problem with this claim: The FCA imposes civil liability on people who commit

specific fraudulent acts against the government; it doesn’t impose civil liability on the government for having

made false claims to individuals. See 31 U.S.C. § 3729 (“Any person who [commits conduct prohibited

by the statute] is liable to the United States Government.” (emphasis added)); see also Hickman v. Spirit

of Athens, Ala., Inc., 985 F.3d 1284, 1286 (11th Cir. 2021) (noting that “the False Claims Act . . .

‘prohibits any person from making false or fraudulent claims for payment to the United States”

(quoting Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 411

(2005) (emphasis added)). And Count IV never alleges—or even suggests—that the Defendant in any

way perpetrated a fraudulent act against the government. Since Count IV is therefore not a “plausible”

claim to relief, Iqbal, 556 U.S. at 678—and because any “amendment would be futile,” Bryant v. Dupree,

252 F.3d 1161, 1163 (11th Cir. 2001)—we DISMISS it with prejudice.

III. Count V: Nepotism

Finally, in Count V, the Plaintiff alleges that the Defendant violated the provisions of 5 U.S.C.

§ 3110 when her DHS supervisors hired someone “related to one or more members at the DHS Miami

District Field Office” for the position she didn’t get back in 2019.13 Amended Complaint ¶¶ 22–25.

That statute provides that “[a] public official may not appoint, employ, promote, advance, or advocate

for appointment, employment, promotion, or advancement, in or to a civilian position in the agency

in which he is serving or over which he exercises jurisdiction or control any individual who is a relative

of the public official.” 5 U.S.C. § 3110(b). But § 3110 doesn’t create a private cause of action. See

Limongelli v. Postamaster Gen. of U.S., 707 F.2d 368, 372 (9th Cir. 1983) (“We hold there is no private

13 As a refresher, the Plaintiff applied for a promotion in 2018, but her application was “stopped” by

DHS higher-ups. Amended Compliant ¶¶ 2–4. Fed up with the “intentional harassment and

retaliation,” the Plaintiff resigned from DHS later that year. See id. at 9. But then, in 2019, the Plaintiff

applied for this other DHS position, which is now the subject of her nepotism claim. Id. ¶¶ 22, 25.

cause of action under [5 U.S.C. §] 3110.”); see also Nguyen v. McHugh, 65 F. Supp. 3d 873, 906 (N.D.

Cal. 2014) (same). We therefore DISMISS Count V with prejudice. See Carran v. Morgan, 2007 WL

3520480, at *5 (S.D. Fla. Nov. 14, 2007) (Marra, J.) (“Of course, there is no private right action . . . .

Accordingly, since Plaintiff’s amendment would be futile, Plaintiff’s request to amend the complaint

to add a claim for negligence is denied.”).

* * *

We dismiss the first three counts of the Amended Complaint without prejudice because, though

these claims appear to be time-barred, we think it prudent to give the Plaintiff one final chance to show

that the doctrine of equitable tolling might save her here. See Silberman v. Miami Dade Transit, 927 F.3d

1123, 1132 (11th Cir. 2019) (“Our cases make clear that a pro se plaintiff must be given at least one

chance to amend the complaint before the district court dismisses the action with prejudice—at least,

that is, where a more carefully drafted complaint might state a claim.” (cleaned up)); Jemison v. Mitchell,

380 F. App’x 904, 907 (11th Cir. 2010) (“When it appears that a pro se plaintiff’s complaint, if more

carefully drafted, might state a claim, the district court should give the pro se plaintiff an opportunity

to amend his complaint instead of dismissing it with prejudice. Dismissal with prejudice is proper,

however, . . . if a more carefully drafted complaint could not state a valid claim.” (cleaned up)). But

we dismiss the Plaintiff’s fourth and fifth counts with prejudice because the former arises under a statute

that doesn’t apply and the latter purports to advance a claim under a law that doesn’t create a private

cause of action. Any amendment of those two counts would thus be futile. See Cockrell v. Sparks, 510

F.3d 1307, 1310 (11th Cir. 2007) (“Leave to amend a complaint is futile when the complaint as

amended would still be properly dismissed or be immediately subject to summary judgment for the

defendant.”). And “[a] district court need not allow even a pro se plaintiff leave to amend where

amendment would be futile.” Ibid.

After careful review, therefore, we hereby ORDER and ADJUDGE as follows:

1. The Motion to Dismiss [ECF No. 22] is GRANTED.

2. Counts I-III of the Amended Complaint [ECF No. 9] are DISMISSED without

prejudice. The Plaintiff may file a second amended complaint by May 16, 2024. In that

second amended complaint, the Plaintiff must (1) cure the pleading deficiencies we’ve

identified in this Order and (2) show that e7fher Rule 15 or the doctrine of equitable tolling

saves her claims.

3. Counts IV—V are DISMISSED with prejudice.

DONE AND ORDERED in the Southern District of Florida on May 2, 2024.

“a

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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