# Vazquez v. Lee County Board of County Commissioners

> District Court, M.D. Florida · September 9, 2025

URL: https://www.frixlaw.com/law-library/cases/11135365

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 9, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

VICTOR M. VAZQUEZ,

Plaintiff,

v. Case No.: 2:25-cv-141-SPC-KCD

LEE BOARD OF COUNTY
COMMISSIONERS,

Defendant.
/

OPINION AND ORDER
Before the Court is Defendant Lee Board of County Commissioners’
Motion to Dismiss the Amended Complaint. (Doc. 29). Plaintiff Victor
Vazquez filed a response in opposition.1 (Doc. 32). Defendant replied. (Doc.
35). The motion is ripe for review. For the reasons below, the Court grants
the motion and dismisses the Amended Complaint without prejudice.
Background
This case is about workplace discrimination.2 Plaintiff alleges that he is
a Hispanic male of Puerto Rican descent. (Doc. 20 ¶ 11). From 2009 to

1 Plaintiff’s response exceeded the twenty-page limit. See M.D. Fla. R. 3.01(b). Any future
filings must comply with the Middle District of Florida’s Local Rules.

2 The Court “accept[s] the allegations in the complaint as true and constru[es] them in the
light most favorable to” Plaintiff. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir.
2009).
February 12, 2024, Plaintiff was employed by Lee County in the Solid Waste
Department. (Id. ¶ 13). Plaintiff alleges that he experienced numerous

instances of discrimination based on his race and national origin. (Id. ¶ 17).
While Plaintiff makes a series of allegations dating back over a decade, the
Court recounts those that are most relevant to this action. In February 2023
Plaintiff reported what he described as a “racially harassing comment” made

by his supervisor in December 2022. (Id. ¶ 33). After making that report,
Plaintiff applied for two supervisory positions and was not promoted to them.
According to Plaintiff, the individuals who were promoted to these positions
were less qualified than him, were “White and non-Hispanic,” and were

“friends of the supervisor.” (Id. ¶¶ 36–43).
Amid these events, Plaintiff claims to have developed health issues that
require medical treatment. (Doc. 20 ¶¶ 45–46). Plaintiff sought and was
granted medical leave by Defendant. (Id. ¶ 47). Yet Defendant forced him to

return to work or face termination, which Plaintiff did. (Id. ¶¶ 48–49).
Plaintiff subsequently resigned based on a confluence of issues related to his
employment. Plaintiff filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) alleging discrimination based on race and national

origin. (Id. ¶ 3). After receiving a Notice of Right to Sue by the EEOC, Plaintiff
brought suit in this Court. (Id. ¶ 4). Plaintiff brings seven causes of action:
Racial and National Origin Discrimination under Title VII of the Civil Rights
Act of 1963 (“Title VII”), 42 U.S.C. §§ 2000e et seq. (Count I); Retaliation under
Title VII (Count II); Racial and National Origin Discrimination in Violation of

Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.10 (Count III); Retaliation
under FCRA (Count IV); Equal Protection Deprivation under the United States
Constitution, brought pursuant to 42 U.S.C. § 1983 (Count V); Equal
Protection Deprivation under the Florida Constitution (Count VI); and

Retaliation under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et
seq. (Count VII).
Legal Standard
A district court should dismiss a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) when a party does not plead facts that make the claim
facially plausible. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is facially plausible when a court can draw a reasonable inference, based
on facts pled, that the opposing party is liable for the alleged misconduct. See

Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009). This plausibility standard requires
“more than a sheer possibility that a defendant has acted unlawfully.” Id.
(citing Twombly, 550 U.S. at 557 (internal quotation marks omitted)). And a
plaintiff must allege more than labels and conclusions amounting to a

formulaic recitation of the elements of a cause of action. See Twombly, 550
U.S. at 555. Allegations supported only by “mere conclusory statements do not
suffice.” Iqbal, 556 U.S. at 678.
Analysis
Defendant first argues that Plaintiff’s Amended Complaint should be

dismissed because it was filed without leave or Defendant’s consent. (Doc. 29
at 5). Defendant initially moved to dismiss on April 7, 2025. (Doc. 15).
Plaintiff requested an extension of time to respond which was granted. (Docs.
18, 19). Rather than file a response to the motion to dismiss, Plaintiff filed his

Amended Complaint three days after the extension was granted.3 The Court
denied the first motion to dismiss as moot because Plaintiff had amended his
Complaint. (Doc. 21). Defendant then filed the present motion to dismiss,
which Plaintiff responded to after seeking another extension. (Docs. 29–32).

Defendant argues the Amended Complaint does not comply with Fed. R.
Civ. P. 15(a)(1)(B) because it was filed more than 21 days after the original
motion to dismiss. (Doc. 29 at 5). Plaintiff counters that the extension of time
to respond to the original motion to dismiss made his amendment timely under

Rule 15(a)(1)(B). (Doc. 32 at 3). Plaintiff’s is incorrect as the extension of time
pertained only to the response to the motion to dismiss; his argument that the

3 Plaintiff made no representation in his motion for extension that he planned to file an
Amended Complaint. In fact, Plaintiff’s counsel stated that “a portion of” the response to the
first motion to dismiss was prepared, and more time was needed to complete it. (Doc. 18).
response extension also extended the 21-day deadline under Rule 15(a)(1)(B)
is unsupported and meritless.4

Despite this, the Court will consider the Amended Complaint timely.
This is solely based on Rule 15(a)(1)(2)’s directive “that leave shall be freely
given when justice so requires.” Watkins v. Fort Lauderdale Police Officer, No.
24-11030, 2025 WL 902117, at *2 (11th Cir. Mar. 25, 2025) (quoting Gramegna

v. Johnson, 846 F.2d 675, 678 (11th Cir. 1988)). The Court finds granting leave
to amend is justified here.
Next, Defendant argues that Plaintiff’s Amended Complaint is a shotgun
pleading. Federal Rule of Civil Procedure 8 requires “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Shotgun pleadings violate this rule “by fail[ing] . . . to give the
defendant adequate notice of the claims against them and the grounds upon
which each claim rests.” Weiland v. Palm City Beach Cnty. Sherriff’s Office,

792 F.3d 1316, 1321–23 (11th Cir. 2015). Resolving claims asserted in shotgun
pleadings is “an undue tax on the Court’s resources.” Jackson v. Bank of Am.,

4 Plaintiff notes in passing that Defendant did not object to the extension of time to respond
to the original motion to dismiss. (Doc. 32 at 3). The Court takes this as an argument, albeit
a passing one, that Defendant consented to Plaintiff filing his Amended Complaint. Such an
argument is flatly wrong. Plaintiff did not indicate in his motion for extension that an
Amended Complaint was forthcoming. (Doc. 18). Therefore, Plaintiff cannot show Defendant
implicitly consented to an amended complaint being filed under Rule 15(a)(2).
N.A., 898 F.3d 1348, 1357 (11th Cir. 2018). “Tolerating such behavior
constitutes toleration of obstruction of justice.” Id.

The Eleventh Circuit has identified four types of shotgun pleadings. See
id. at 1321. Defendant argues the Amended Complaint embodies the second
and third types of shotgun pleading. (Doc. 29 at 6). The second type is one
that “is guilty of the venial sin of being replete with conclusory, vague, and

immaterial facts not obviously connected to any particular cause of action.”
Weiland, 792 F.3d at 1321. The third type is “one that commits the sin of not
separating into a different count each cause of action or claim for relief.” Id.
Plaintiff acknowledges that parts of the Amended Complaint are

duplicative. (Doc. 32 at 5). Even so, Plaintiff argues that the Amended
Complaint “incorporates paragraphs which establish the relevant
jurisdictional elements [sic] the claims and relevant facts, [and] each count
subsequently lists specific allegations relevant to the individual cause of

action.” (Id.). While Plaintiff contends pleadings of the sort he filed are
common, he provides no supporting authority.
The Amended Complaint fits the bill for both types of shotgun pleadings.
First, many allegations in the Amended Complaint are irrelevant, vague, or

contain legal conclusions. (Doc. 20 ¶¶ 19, 36, 39, 45, 51). The Counts in the
Amended Complaint allege few specific facts, use generic language mirroring
the elements of the causes of action, and summarily reallege various
combinations of allegations from the Amended Complaint. See, e.g., id. ¶¶ 57–
67. Courts have recognized these reasons as valid bases to find a complaint is

a shotgun pleading. See, e.g., Barmapov v. Amuial, 986 F.3d 1321, 1325 (11th
Cir. 2021) (dismissing second amended complaint as a shotgun pleading where
it was replete with vague, immaterial, and conclusory allegations); Harris v.
Pub. Health Tr. of Miami-Dade County, Case No. 1:19-cv-25298- KMM, 2020

WL 1933169, at **2, 4 (S.D. Fla. Apr. 14, 2020).
Second, Plaintiff alleges multiple theories of discrimination (failure to
promote, hostile work environment, and constructive discharge) under
singular causes of action. This too is not permitted. See Long v. City of

Orlando, No. 6:20-CV-254-WWB-EJK, 2021 WL 2226606, at *2 (M.D. Fla. June
2, 2021) (“As numerous courts in this Circuit have held, despite possibly
sharing some factual overlap, claims for hostile work environment and for
discrimination based on disparate treatment are distinct claims and must be

pleaded separately.” (collecting cases)); Blalock v. Dale Cty. Bd. of Educ., 84 F.
Supp. 2d 1291, 1302 (M.D. Ala. 1999) (same). The Court finds Plaintiff’s
Amended Complaint is a shotgun pleading and dismisses all claims without
prejudice.5 To ensure Plaintiff is aware of each count’s specific deficiencies, the

Court will discuss them in turn.

5 The Court does not find Defendant’s argument that the complaint should be dismissed with
prejudice as a shotgun pleading persuasive. Defendant cites Vibe Micro, Inc. v. Shabanets,
A. Count I – Title VII Discrimination
To bring a claim under Title VII, an employee must file a charge of

discrimination within 300 days of the alleged unlawful employment practice or
action. See 42 U.S.C. § 2000e-5(e)(1); Mesones v. Estevez, Case No. 19-14119,
2021 WL 3721324, at *2 (11th Cir. 2021) (“In Florida, a plaintiff seeking to file
a Title VII action must first file a charge of discrimination with the EEOC

within 300 days of the alleged unlawful employment practice.” (citing EEOC v.
Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002) (per curiam)).6 “A
plaintiff's judicial complaint is limited by the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge of discrimination.”

Alexander v. Fulton County, 207 F.3d 1303, 1332 (11th Cir. 2000). A failure to
promote claim is a discrete cause of action, and a charge must be filed within
300 days of each such event. See Joe’s Stone Crabs, 296 F.3d at 1271–72.
While judicial claims may “amplify, clarify, or more clearly focus” the

allegations in an EEOC charge, using a judicial complaint to make entirely

878 F.3d 1291 (11th Cir. 2018) in support of the argument that because Plaintiff has filed
two complaints it deems to be shotgun pleadings, the Court may dismiss the Amended
Complaint with prejudice. (Doc. 29 at 10). The circumstances here do not warrant such
relief, because the Court did not direct Plaintiff to fix errors from its first complaint or
otherwise rule it was a shotgun pleading. Shabanets contemplates a “repleading order”
issued by the Court as the precursor to dismissal of a shotgun pleading. Id. at 1296. But the
Court has not yet issued such an order, so this argument fails.

6 Defendant argued that many of Plaintiff’s allegations and claims are barred on res judicata
grounds based on a prior case before this Court. (Doc. 29 at 12 n.4). Plaintiff did not respond
to this argument. The Court declines to rule on this issue now, but should it reemerge the
Court will consider the Parties’ arguments.
new claims of discrimination is inappropriate. Gregory v. Georgia Dep’t of
Hum. Res., 355 F.3d 1277, 1279–80 (11th Cir. 2004) (citation omitted); see also

Streeter v. City of Pensacola, No. 3:05CV286/MCR, 2007 WL 4468705, at *3
(N.D. Fla. Dec. 8, 2007) (“When an EEOC charge alleges a particular theory of
discrimination, allegations of a different type of discrimination in a subsequent
complaint are not reasonably related to them unless the allegations in the

complaint can be reasonably inferred from the facts alleged in the charge.”).
Defendant argues that many of Plaintiff’s allegations were not raised in
his charge and should be dismissed for failure to exhaust administrative
remedies. (Doc. 29 at 14). Plaintiff’s charge was filed on March 22, 2024. (Doc.

29-1).7 Plaintiff alleged he complained internally regarding an “alleged
harassing comment” three months after it took place. (Id.). Plaintiff also
alleged he was not promoted to two positions.8 (Id.).

7 The Court may consider the EEOC charge under Rule 12(b)(6) because it is not disputable
and is central to the Complaint. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002);
see also Booth v. City of Roswell, 754 F. App’x 834, 837 (11th Cir. 2018) (holding that district
court did not err in considering EEOC charge attached to motion to dismiss, as Plaintiff
“referred to the EEOC charge in his complaint . . .; it was central to whether his claims were
viable; and no one disputed its authenticity.”). Plaintiff did not contest the charge Defendant
attached. In fact, he cited the charge in his response. (Doc. 32 at 6–7).

8 Curiously, the charge and the Amended Complaint contain differing accounts of which
positions Plaintiff applied for. The EEOC charge states Plaintiff applied two times for the
position of Dispatch Supervisor, but the Amended Complaint alleges Plaintiff applied for a
position as a “Crew Supervisor” two times as well. (Docs. 20 ¶¶ 40, 42; 29-1 at 1). The Court
addresses the allegations properly preserved through the EEOC charge, the allegations
related to the Dispatch Supervisor positions.
Plaintiff alleges several discriminatory actions in his Amended
Complaint not mentioned in the charge yet claims they should be included in

the claims based on a theory Defendant is engaged in a “continuing violation”
of Title VII. In support of this argument, Plaintiff attached a document he
claims are the “Investigation Notes” that the EEOC investigator took at the
time of the charge, which mention his reporting these instances. (Doc. 32-1).

Plaintiff’s argument regarding administrative exhaustion is
unconvincing. First, the notes themselves show the investigator explained
that Plaintiff’s claims were likely untimely. (Id.). Second, the fact untimely
incidents are discussed during an EEOC interview does not render them as

“reasonably . . . grow[ing] out of the charge.” Green v. Elixir Indus., Inc., 152
F. App’x 838, 840 (11th Cir. 2005). Finally, this does not validate a “continuing
violation” theory of discrimination, given that the charge is limited to denials
of promotion which are isolated events under Title VII. See Joe’s Stone Crabs,

Inc., 296 F.3d at 1271–72; Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
105 (2002). Therefore, Plaintiff’s Title VII claims are limited to the allegations
identified in his charge.
The Court turns to those claims Plaintiff has potentially preserved for

adjudication through the charge. Plaintiff alleges that he applied for two
supervisory positions, was best qualified for them, and that White non-
Hispanic individuals who were friends of the supervisor received them. (Doc.
20 ¶¶ 39–45). These are failure to promote claims, rather than the hostile work
environment and retaliatory claims which are barred on administrative

exhaustion grounds.
A prima facie case under Title VII for failure to promote generally
consists of the following elements: “(1) he is a member of a protected class; (2)
he was qualified and applied for the promotion, (3) he was rejected despite his

qualifications, and (4) other equally or less qualified employees who were not
members of the protected class were promoted.” Price v. M & H Valve Co., 177
F. App’x 1, 12 (11th Cir. 2006).
Plaintiff fails to plead a claim for discrimination under Title VII.

Plaintiff alleges that he applied for two positions, was best qualified for them,
and that White non-Hispanic individuals who were friends of the supervisor
received them. (Doc. 20 ¶¶ 39–45). He does not allege which individual(s) made
the hiring decisions, nor does he provide facts showing the qualifications of the

individuals who received the positions were inadequate. Insufficient facts are
provided that Plaintiff met the hiring qualifications of either position. Plaintiff
claims this information is not necessary at the pleading stage but cites no
authority in support. Therefore, Count I is dismissed without prejudice.

B. Count II – Title VII Retaliation Claim
Defendant also moves to dismiss Plaintiff’s Title VII retaliation claim.
“Retaliation under Title VII occurs when an employee engages in protected
activity and suffers an adverse action that is causally related to that activity.”
Uppal v. Hosp. Corp. of Am., 482 F. App’x. 394, 397 (11th Cir. 2012) (citation

omitted). To establish a prima facie case of retaliation, “a 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.” Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1454

(11th Cir. 1998); see also Hernandez v. Mondelez Glob., LLC, No. 2:24-cv-12-
SPC-NPM, 2024 U.S. Dist. LEXIS 69699, at **5–6 (M.D. Fla. April 17, 2024).
Defendant first argues that, like the discrimination claim, Plaintiff failed
to raise retaliatory actions in the EEOC charge. (Doc. 29 at 15–16). Plaintiff

responds that the investigative notes demonstrate facts supporting the
retaliation claim. (Doc. 32 at 11–12). For the reasons discussed above, this
argument lacks merit. Plaintiff alleges a retaliatory action not listed in the
charge: that he was transferred to a facility where Defendant was “aware

[Plaintiff] could not travel to.” (Doc. 20 ¶ 74b). The Amended Complaint does
not contain basic facts related to this transfer, such as when it occurred, who
participated in the decision, and how Defendant was “aware” that Plaintiff
could not travel there. Even if those facts were alleged, because the transfer

was not described in the charge, Plaintiff may not bring a claim for retaliation
based on it.
As to the actions included in the charge, the refusal to promote Plaintiff,
Count II fails because Plaintiff does not plead facts to support a causal

relationship between the protected action of complaining internally and the
adverse employment actions of not being promoted. Plaintiff claims that a
sufficient causal nexus exists because of “the timing of the plaintiff’s internal
complaint in February 2023 and the subsequent denial of promotion in

September 2023.” (Doc. 32 at 14–15). While “close” temporal proximity can be
a basis to find causation, it must be “very close” to meet that burden. See, e.g.,
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
The gap between Plaintiff’s alleged protected action and the retaliatory

action by Defendant is roughly seven months. That is not sufficient on its own,
as this circuit has held even a three-month gap between protected activity and
an adverse employment action does not establish retaliation. See Thomas, 506
F.3d at 1364 (“A three to four month disparity between the statutorily

protected expression and the adverse employment action is not enough.”).
Plaintiff did not allege sufficient facts to demonstrate a causal relationship.
Therefore, Count II is dismissed without prejudice.
C. FCRA Claims

Plaintiff also brought claims for discrimination and retaliation based on
the Florida Civil Rights Act (“FCRA”). For the reasons stated above regarding
Plaintiff’s Title VII claims, Plaintiff’s FCRA claims (Counts III & IV) do not
comply with Rule 8. Because “[t]he FCRA is modeled after Title VII, and
claims brought under it are analyzed under the same framework,” the “FCRA

claims do not need separate discussion and their outcome is the same as the
federal claims.” Fuller, 598 F. App’x at 653. Plaintiff offers no allegations or
argument that justify a different analysis here. So, the FCRA claims (Counts
III & IV) are dismissed without prejudice.

D. Section 1983 Municipal Liability Claim
Plaintiff’s claim for municipal liability pursuant to 42 U.S.C. § 1983 is
invalid under Monell v. Dep’t of Social Services of City of New York, 436 U.S.
658 (1978). In Monell, the Supreme Court “held that Congress intended to

include local governments among the ‘persons’ subject to liability under
Section 1983—but only under limited factual circumstances.” Freeman v.
Jupiter Inlet Colony, 778 F. Supp. 3d 1326, 1340 (S.D. Fla. 2025) (citing Monell,
436 U.S. at 690).

“[T]he bar to establish municipal liability is very high.” Simmons v.
Bradshaw, 879 F.3d 1157, 1169 (11th Cir. 2018) (citation omitted). Under
Monell, the doctrine of respondeat superior (holding a principal liable for the
wrongful acts of a subordinate agent) is not enough to hold a municipality

liable under Section 1983. See Monell, 436 U.S. at 692, 694. “A plaintiff can
establish municipal liability under Monell in three ways: (1) identifying an
official policy;9 (2) identifying an unofficial custom or widespread practice that
is so permanent and well settled as to constitute a custom and usage with the

force of law; or (3) identifying a municipal official with final policymaking
authority whose decision violated the plaintiff’s constitutional rights.” Chabad
Chayil, Inc. v. Sch. Bd. of Miami-Dade Cnty., Fla., 48 F.4th 1222, 1229 (11th
Cir. 2022) (citation omitted).

Plaintiff does not plausibly allege an official or unofficial policy of
discrimination to support his claim under § 1983. The Amended Complaint
summarily states that the County had an unofficial policy of not following its
own policies with regard to promotion, discipline, and addressing complaints

of employees. (Doc. 20 ¶¶ 95–104). Plaintiff also cites an Investigative Report
which identifies several actions that violated County policies and recommends
termination of one employee and a follow-up investigation. (Doc. 20-1 at 4).
Plaintiff does not come close to clearing the “very high” bar for

establishing Monell liability. Simmons, 879 F.3d at 1169. Plaintiff does not
plead facts to show the alleged actions constitute “practices so persistent and
widespread as to practically have the force of law.” Connick v. Thompson, 563
U.S. 51, 61 (2011); see also Weiland, 792 F.3d at 1329 (concluding “naked

assertions” of a policy or custom are insufficient to establish municipal liability

9 An official municipal policy is a “statute, ordinance, regulation or decision officially adopted
and promulgated by [a local governing] body’s officers.” Monell, 436 U.S. at 690.
under § 1983). The report itself only recommends an investigation of the
handling of employee complaints, which does not show a “persistent and

widespread” practice of mishandling such complaints. Connick, 563 U.S. at
61.10 Because Plaintiff fails to show municipal liability under Monell, his §
1983 claim fails. Count V is dismissed without prejudice.
E. Florida Constitution

In Count VI of the Amended Complaint, Plaintiff brings a claim of Equal
Protection Deprivation under the Florida Constitution. (Doc. 20 ¶ 105).
Because Plaintiff lacks standing to bring this claim, it will be dismissed as well.
“In order to demonstrate that there is a case or controversy that satisfies

Article III’s standing requirement when a plaintiff is seeking declaratory
relief—as opposed to seeking damages for past harm—the plaintiff must allege
facts from which it appears that there is a substantial likelihood that he will
suffer injury in the future.” A&M Gerber Chiropractic LLC v. GEICO Gen. Ins.,

925 F.3d 1205, 1210–11 (11th Cir. 2019) (citation omitted); see also Strickland
v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014). “The controversy between the
parties cannot be conjectural, hypothetical, or contingent; it must be real and

10Plaintiff does not appear to argue for the final category of Monell liability, i.e., that the
alleged discriminatory actions were taken by an official with final policymaking authority or
were ratified by an official with final policymaking authority. See Hoefling v. City of Miami,
811 F.3d 1271, 1279 (11th Cir. 2016). To the extent that Plaintiff did attempt such an
argument, no facts were put forth that plausibly establish it, and so the Court rejects it.
immediate, and create a definite, rather than speculative threat of future
injury.” A&M Gerber Chiropractic LLC, 925 F.3d at 1210 (quotation omitted).

Plaintiff does not demonstrate standing to bring a claim for declaratory
relief under the Florida Constitution. Plaintiff seeks only declaratory relief in
Count VI for past conduct by Defendant, not monetary damages. While
Plaintiff argues in his response that the Defendant’s conduct is ongoing, the

caselaw is clear that he must allege facts showing a substantial likelihood of
harm to himself in the future, not others. See id. at 1210–11. Count VI of the
Amended Complaint is therefore dismissed without prejudice.
F. FMLA Retaliation

In Count VII of the Amended Complaint, Plaintiff alleges Retaliation in
Violation of the FMLA. To succeed on a retaliation claim, a plaintiff “must
show that his employer intentionally discriminated against him for exercising
an FMLA right.” Martin v. Brevard Cty. Pub. Sch., 543 F.3d 1261, 1267 (11th

Cir. 2008) (emphasis omitted). “[A]n employee claiming FMLA retaliation
must show that (1) he engaged in a statutorily protected activity, (2) he
suffered an adverse employment decision, and (3) the decision was causally
related to the protected activity.” Id. “To prove the decision was causally

related to the protected activity at the prima facie stage, the plaintiff may rely
on a close temporal proximity between the two events.” Vira v. Crowley Liner
Servs., Inc., 723 F. App’x 888, 893 (11th Cir. 2018).
Count VII alleges the following retaliatory acts by Defendant: the failure
to promote Plaintiff, an alleged decision in December 2022 to force him to come

back to work after asking for leave, and constructive discharge after that. (Doc.
20 ¶¶ 112–116). Plaintiff thus has not pled with specificity which retaliatory
action forms the basis for the FMLA claim. See Vira, 723 F. App’x at 893.
Plaintiff offers only a conclusory statement for Count VII that a causal

relationship exists. (Doc. 20 ¶ 115). Plaintiff asserts that the same month
after requesting and being granted medical leave, “Plaintiff’s supervisor
required Plaintiff to attend work or face termination despite being aware of
Plaintiff’s medical leave.” (Doc. 20 ¶ 48). Even assuming the alleged protected

action and the adverse employment decision occurred the same month,
temporal proximity is not absolute in finding causation. See Fleming v. Boeing
Co., 120 F.3d 242, 248 (11th Cir. 1997). And Plaintiff offered no additional
facts in the Amended Complaint or his response that the two events were

connected in anyway. Therefore, Plaintiff fails to plead this count properly as
well. The Court dismisses Count VII without prejudice.
Accordingly, it is ORDERED:
1. Defendant Lee County Board of Commissioners’ Motion to Dismiss

(Doc. 29) is GRANTED.
2. Plaintiff’s Amended Complaint (Doc. 20) is DISMISSED without
prejudice.
3. On or before September 30, 2025, Plaintiff must file his Second
Amended Complaint that corrects the deficiencies outlined above.
Failure to comply may result in the Court dismissing and
closing this case without further notice.
DONE and ORDERED in Fort Myers, Florida on September 9, 2025.

, □□ platrtha,
UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11135365. Public record. Not legal advice.