Balaban

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

PATRICIA BALABAN,

Plaintiff,

v. Case No: 2:23-cv-379-JES-NPM

BILL PRUMMELL, as Sheriff of

Charlotte County, Florida,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of Defendant’s

Motion for Summary Judgment (Doc. #53) filed on August 1, 2025.

Plaintiff Patricia Balaban filed a Response in Opposition to the

Motion for Summary Judgment (Doc. #65) on September 5, 2025.

Defendant filed a Reply on September 15, 2025 (Doc. #66). For the

reasons set forth below, Defendant’s motion is granted.

I.

Summary judgment is appropriate only when a movant shows that

“there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A genuine issue of material fact exists when the evidence

is such that a reasonable trier of fact could return a verdict for

the non-moving party. McCreight v. AuburnBank, 117 F.4th 1322,

1329 (11th Cir. 2024) (citation omitted). A fact is “material” if

it may affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In ruling on a motion for summary judgment, a court views all

evidence and draws all reasonable inferences in favor of the non-

moving party. Scott v. Harris, 550 U.S. 372, 378 (2007); Tana v.

Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). While it has not

always been so, “the summary judgment rule applies in job

discrimination cases just as in other cases.” Chapman v. AI

Transp., 229 F.3d 1012, 1026 (11th Cir. 2000) (en banc). An

employee may prove discrimination or retaliation with direct or

circumstantial evidence. Desert Palace, Inc. v. Costa, 539 U.S.

90, 99 (2003); Jefferson v. Sewon Am., Inc., 891 F.3d 911, 921

(11th Cir. 2018). An employee opposing summary judgment with

circumstantial evidence must present enough to create a triable

issue of material fact. Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011). A triable issue exists where the

evidence, viewed in the light most favorable to the employee, would

allow a reasonable jury to infer that the employer has engaged in

intentional discrimination or retaliation. Lewis v. City of Union

City, 934 F.3d 1169, 1185 (11th Cir. 2019).

II.

Unless otherwise stated, the following material facts are

derived from the uncontested portions of Plaintiff’s Third Amended

Complaint (the operative pleading) (Doc. #35), Defendant’s Motion

for Summary Judgment (Doc. #53), and Plaintiff’s Response (Doc.

#65).

Plaintiff Patricia Balaban (Plaintiff or Balaban) was

employed by Defendant Bill Prummell (Defendant or the Sheriff) as

a Deputy Sheriff for the Charlotte County Sheriff’s Office (“CCSO”)

from July 1, 2019, until her employment was terminated on February

15, 2022. (Doc. #35, ¶ 3, Doc. #53, ¶ 2.)

In May 2020, Plaintiff began a consensual sexual relationship

with Brandon Winters (“Winters”), a law enforcement officer

employed by the City of Fort Myers Police Department (“FMPD”).

(Doc. #53, ¶ 4.) Plaintiff asserts she had sexual encounters with

Winters at her residence on three occasions: May 16, May 29, and

1

June 23, 2020. (Id., ¶ 5.) Text messages between Plaintiff and

Winters preceded or followed each encounter. (Id.) Even though

Plaintiff herself was off duty during all the encounters, having

sex with another law enforcement officer while that officer is on

1

As the Sheriff notes, a text message by Plaintiff suggests there

was an additional sexual encounter before May 16, 2020. (Doc.

#53, p. 3 n.2.) The number of sexual encounters is not material

to any issue in this case.

duty is considered “conduct unbecoming” an officer under CCSO’s

internal policies. (Doc. #53, ¶¶ 10-12.)

In September 2020, Plaintiff ended her relationship with

Winters. (Doc. #35, ¶ 6; Doc. #53, ¶ 6.) Thereafter Winters “began

to stalk and harass [Plaintiff]” (Doc. #35, ¶¶ 7-9) and refused

Plaintiff’s requests to stop. (Id., ¶ 10.) In May 2021 Plaintiff

reported Winters’ harassment to the FMPD, which investigated her

complaint. (Id., ¶¶ 7, 10-11.) The FMPD placed Winters on

administrative leave and concluded its investigation in December

2021. (Id. ¶ 11.) On or about December 21, 2021, Winters’

employment with the FMPD was terminated because of his activities

involving Plaintiff. (Doc #35, ¶ 11.)

On December 13, 2021, FMPD’s Internal Affairs Bureau informed

CCSO’s Internal Affairs Bureau that it had completed its

investigation, and that Plaintiff had admitted to having sex with

Winters knowing Winters was then on duty. (Doc. #53, ¶¶ 9-10.)

CCSO Sgt. [now-Lieutenant] Nikki Wagner (“Sgt. Wagner”) obtained

a copy of the FMPD investigative file, which included text messages

between Plaintiff and Winters. (Id., ¶¶ 14, 15.) On December 13,

2021, Plaintiff was notified in writing that a complaint had been

filed against her which was being investigated by the CCSO Internal

Affairs Unit. (Id., ¶ 15.) The complaint alleged that Plaintiff’s

“actions with an on-duty Fort Myers Police Department officer

brought [the CCSO] into disrepute, reflected discredit upon or

impaired the operation and efficiency of [the CCSO].” (Id.)

The FMPD investigative file included the following text

messages:

• On May 14, 2020, Plaintiff texted Winters stating “Damn,

we only had sex once. Jeeze.” (Doc. #53, p. 3, n.2.)

• On May 16, 2020, Winters advised Plaintiff by text

message that his shift ended at 11:00 p.m. Winters

arrived at Plaintiff’s residence around 8:00 p.m. in a

patrol car, entered the residence, and performed oral

sex on Plaintiff. (Id., ¶ 16.)

• On May 28, 2020, Plaintiff sent texts to Winters stating,

among other things, “You don’t come over unless you’re

working and I’m home[].” (Id., ¶ 18) (emphasis in

original).

• On May 29, 2020, Winters informed Plaintiff that he was

on “off duty detail” from 7:00 p.m. to 11:00 p.m. (Id.,

¶ 19.) Plaintiff understood that an “off duty detail”

was still considered “on duty” for an officer. (Id.)

Winters arrived at Plaintiff’s home at 10:41 p.m., they

engaged in a sexual encounter, and Winters left at 10:56

p.m. (Doc. #65, ¶ 19.)

Plaintiff and Winters’ final sexual encounter at Plaintiff’s

residence was on June 23, 2020. Winters accidentally left police

equipment (“keepers”) in Plaintiff’s residence. Keepers are

equipment issued to officers to help keep their gun belt/equipment

in place and are worn only while on duty. (Doc. #53, ¶ 20.)

On each occasion of a sexual encounter Winters had arrived at

Plaintiff’s residence in uniform and with his police radio active.

(Id., ¶ 21.) On one occasion Winters put himself in an “area

check” during the encounter, which is only applicable when an

officer is on active duty. (Id., ¶ 22.)

On December 30, 2021, Sgt. Wagner interviewed Plaintiff

regarding the misconduct allegation. (Id., ¶ 26.) During the

interview, Plaintiff confirmed that she understood the reason for

the investigation was that she had sex with Winters while he was

on duty. (Id., ¶ 28.) Sgt. Wagner asked whether Plaintiff knew

that Winters was on duty when they had sexual intercourse, and

Plaintiff gave the following answer:

DEPUTY BALABAN: I do not know. He came in

with his body camera off. He said prior to us

-- prior to us having any sort of physical

relationship, okay, he said, I'm gonna put

myself on a area check, blah, blah, blah,

nobody's gonna be the wiser and I -- and I

told him, I'm like you're dumb, that's --

you're gonna get in trouble and you're gonna

get fired for that. That's dumb. You know,

don't do it. There was a -- first time that

he came over to my apartment he did have his

body camera on. At that point I didn't know

what their body camera rules are or what not

and I got freaked out and I'm like, what the

hell dude, you know. The second two times that

we actually did have intercourse at, you know,

my house, he didn't have his body camera on,

so I'm thinking, well I don't know, maybe, you

know, they have the same rules as other

agencies that I know of that you have to dock,

you know, the -- the camera every single

shift. I didn't know. There was another time

he came over, and he got a call for service,

and I was like what the hell are you doing?

You know, we didn't have sex that day and I'm

like, what're you doing? Like, get the hell

outta my house. Like, this is ridiculous. Like

are you serious right now?

(Doc. #56-4, p. 9.) Sgt. Wagner pressed the issue for a clearer

answer, resulting in the following exchange:

INTERVIEWER: So, you’re trying to tell me that

you – the times that you had intercourse or

oral with him, you did not know –

DEPUTY BALABAN: The first time –

INTERVIEWER: That he was on duty.

DEPUTY BALABAN: The first time –

INTERVIEWER: Remember I have your statements.

DEPUTY BALABAN: Mm Hm. The first time, he – he

might’ve been on duty.

INTERVIEWER: And your text messages too.

DEPUTY BALABAN: Mm Hm.

INTERVIEWER: So I’m gonna ask you one more

time –

DEPUTY BALABAN: Mm Hm

INTERVIEWER: Did you know that he was on duty

when he had sex? When you had sex with him or

oral.

DEPUTY BALABAN: The oral, I wanna say yes.

INTERVIEWER: You did know.

DEPUTY BALABAN: Mm Hm.

INTERVIEWER: Is that a yes?

DEPUTY BALABAN: Yes.

INTERVIEWER: And the other two times that you

had sex with him –

DEPUTY BALABAN: Did I know for 100% fact –

INTERVIEWER: And I also – yes, did you?

DEPUTY BALABAN: 100% fact, no, I didn’t. I

can’t say that – that I did. I mean, he

could’ve –

INTERVIEWER: Deputy Balaban –

DEPUTY BALABAN: Yes.

INTERVIEWER: I also have your text messages

with him.

DEPUTY BALABAN: Mm Hm.

INTERVIEWER: So again, I’m gonna ask you one

more time on that. Did you know he was on

duty when you had sexual intercourse with him?

DEPUTY BALABAN: Yes.

(Doc. #56-4, pp. 9-11.) Before Sgt. Wagner concluded the interview

she asked Plaintiff: “So do you have anything before I conclude

your statement that you want to say? Or anything that you want to

delete, correct anything?” Plaintiff responded: “Not from what

I’ve told you.” (Doc. #56-4, p. 21.)

Following her investigation, Sgt. Wagner recommended that the

CCSO issue Plaintiff a “Conduct Unbecoming” violation for sexual

encounters with Winters while he was on duty. As a matter of

practice Sgt. Wagner did not add any policy violations beyond what

she had been charged to investigate. Nonetheless, Sgt. Wagner

believed Plaintiff had lied to her during the interview, documented

Plaintiff’s untruthfulness in her report, deferred to her chain of

command, and expected Plaintiff to be dismissed from her employment

with CCSO as a result. (Doc. #53 at ¶ 33.)

When an internal investigation results in a sustained policy

violation, the investigative file is routed through the officer’s

chain of command for disciplinary recommendations before it

reaches the Sheriff for a final decision. (Doc. #53 at ¶ 34.)

Each of the three officers in the chain of command review process

recommended either suspension or dismissal on the conduct

unbecoming charge. All reviewing officers deferred to the Sheriff

the decision of whether to add an untruthfulness charge. (Id., ¶¶

36-37.)

After the Sheriff reviewed the file, including the audio-

recording of Plaintiff’s interview with Sgt. Wagner, he determined

that Plaintiff had been untruthful based on her attempts to deny

knowledge that Winters was on duty during their sexual encounters.

(Id., ¶38.) The Sheriff therefore added a sustained untruthfulness

violation to the report and made the initial decision to withdraw

Plaintiff’s appointment with CCSO. (Id.)

On February 7, 2022, Plaintiff was notified of the sustained

violation for conduct unbecoming and untruthfulness, and was

placed on administrative leave with pay. (Doc. #35, ¶ 17; Doc.

#53, ¶ 40.)

Plaintiff attended a pre-disciplinary hearing on February 14,

2022. (Doc. #53, ¶ 41.) The Sheriff explained to Plaintiff that

her conduct unbecoming offense, while wrong, “was very survivable”

but expressed concern with “the fact that [she] tried to lie to

Sergeant Wagner.” (Doc. #57-3 at pp. 2-9.) Plaintiff stated that

she was only “trying to explain herself” during that portion of

the interview and that Sgt. Wagner had “cut [her] off” before she

had a chance to explain herself. (Id.).

After the pre-disciplinary hearing the Sheriff re-listened to

the investigatory interview and determined that Plaintiff’s claim

that she was not given an opportunity to explain herself lacked

merit. (Doc. #53, ¶ 45.) Accordingly, the Sheriff decided to

proceed with the withdrawal of Plaintiff’s appointment. (Id.)

On February 15, 2022, the Sheriff informed Plaintiff in

writing (Doc. #35, ¶ 18) and by telephone that her employment was

withdrawn effective immediately. (Doc. #53, ¶ 46.) During the

phone conversation, the Sheriff told Plaintiff that “he and the

command staff had lost trust in her ability to remain a CCSO

deputy.” (Doc. #53, ¶¶ 45-46.)

III.

Plaintiff’s Third Amended Complaint (TAC) (Doc. #35) alleges

two claims against the Sheriff in his official capacity based on

the termination of Plaintiff’s employment with CCSO. Count I

alleges a claim pursuant to 42 U.S.C. § 1983 for violation of the

Fourteenth Amendment Equal Protection Clause. (Id., ¶¶ 27-29.)

Count I asserts that Plaintiff “was treated differently as to the

discipline imposed upon her than similarly situated males.” (Id.,

¶ 28.) Count I incorporates assertions that Plaintiff “was

terminated . . . because of her sex” and “would have been treated

substantially and materially different had she been a male” (Id.,

¶ 22), and that “Plaintiff’s termination was inconsistent with and

significantly departed from the punishments previously imposed for

conduct of similar magnitude against males.” (Id., ¶ 24.)

Count II alleges a claim pursuant to § 1983 for violation of

Plaintiff’s free speech rights under the First Amendment. (Id., ¶¶

30-32.) Count II alleges that “in investigating and ultimately

terminating Plaintiff, PRUMMELL was retaliating against Plaintiff

for exercising her right to report the misconduct of the Fort Myers

Police Department and the reporting of a crime against her, . .

..” (Id., ¶ 31.) Count II incorporates language which alleges

that the investigation was to punish “Plaintiff for exercising her

First Amendment right to report the misconduct of the Fort Myers

2

Police Department” (Id., ¶ 23).

The Sheriff seeks summary judgment on three grounds: (1)

Plaintiff cannot establish a prima facie case of gender

discrimination because there is a lack of comparator evidence (Doc.

#53, pp. 13-15); (2) Plaintiff’s First Amendment retaliation claim

fails for lack of causation (Id., pp. 16-17); and (3) both claims

fail because Plaintiff’s employment was terminated for a

legitimate, non-pretextual reason. (Id., pp. 18-22.) The Court

will consider each of the TAC’s claims in turn.

A. Count I: Equal Protection Claim

(1) General Principles

The Equal Protection Clause of the Fourteenth Amendment

provides that “[n]o state shall . . . deny to any person within

its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1, cl. 4. This is “essentially a direction that all

persons similarly situated should be treated alike,” and “simply

keeps governmental decisionmakers from treating differently

persons who are in all relevant respects alike.” Adams by & through

2

Plaintiff previously sued Winters and the City of Fort Myers in

federal court. Three complaints were dismissed without prejudice,

and Plaintiff declined the opportunity to file a fourth complaint

against those defendants. Balaban v. Winters and City of Fort

Myers, Case No. 2:23-cv-12.

Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 800–01 (11th

Cir. 2022) (citations omitted.) In short, “[t]he Equal Protection

Clause requires that the government treat similarly situated

persons in a similar manner.” Gary v. City of Warner Robins, Ga.,

311 F.3d 1334, 1337 (11th Cir. 2002).

In a traditional employment claim brought under the Equal

Protection Clause, an employee claims that he or she was

discriminated against on account of membership in an identifiable

or constitutionally protected class, like race, religion, sex, or

national origin. In such a claim a comparator is generally needed

since the very nature of equal protection requires comparison of

plaintiff to someone else or to some class. For example, United

States v. Armstrong, 517 U.S. 456, 465 (1996) held that a plaintiff

alleging a claim of selective prosecution in violation of the Equal

Protection Clause must plead and establish the existence of

similarly situated individuals who were not prosecuted.

It is well-settled that the Equal Protection Clause prohibits

sex discrimination in public employment, Hornsby-Culpepper v.

Ware, 906 F.3d 1302, 1312 (11th Cir. 2018), and that gender is a

suspect class entitled to heightened judicial scrutiny. Corbitt

v. Sec'y of the Alabama Law Enf't Agency, 115 F.4th 1335, 1345

(11th Cir. 2024); Doe v. Moore, 410 F.3d 1337, 1346 (11th Cir.

2005). To prevail on her equal protection claim, Plaintiff must

show (1) she was similarly situated to other deputies who received

more favorable treatment; and (2) the Sheriff engaged in invidious

discrimination against her based on her gender. Sumrall v. Georgia

Dep't of Corr., 154 F.4th 1304, 1312 (11th Cir. 2025). To

establish a “similarly situated” individual, Plaintiff must show

that she and her comparators are “similarly situated in all

material respects.” Lewis v. City of Union City, Georgia, 918

F.3d 1213, 1224 (11th Cir. 2019)(en banc). In the context of

government employment, a plaintiff must show discrimination based

on a suspect classification because the “class-of-one theory of

equal protection has no application in the public employment

context.” Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 607

(2008).

An employee may establish her case using direct or

circumstantial evidence, or a combination of both. Jefferson v.

Sewon Am. Inc., 891 F.3d 911, 921 (11th Cir. 2018). Employment

discrimination claims brought under the Equal Protection Clause

are “subject to the same standards of proof and use the same

analytical framework” as statutory employment discrimination

claims. Hornsby-Culpepper, 906 F.3d at 1312 n.6; Bryant v. Jones,

575 F.3d 1281, 1296 n.20 (11th Cir. 2009). When utilizing

circumstantial evidence, a plaintiff may rely on the burden-

shifting framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), or establish 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, 1327–28 (11th Cir. 2011)

(internal quotation marks omitted) (footnote omitted). See also

Lewis, 918 F.3d at 1220 n.5; Lewis v. City of Union City, 934 F.3d

1169, 1185 (11th.Cir. 2019); Berry v. Crestwood Healthcare LP, 84

F.4th 1300, 1311 (11th Cir. 2023); Ismael v. Roundtree, 161 F.4th

752, 759 (11th Cir. 2025).

(2) Application of Equal Protection Principles

The Sheriff argues that the three-step burden-shifting

framework of McDonnell_Douglas applies to Plaintiff’s equal

protection claim, requiring Plaintiff to establish a prima facie

case of discrimination by showing 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 class more favorably. See Lewis, 918 F.3d at 1220–21. The

Sheriff argues that Plaintiff has not established a prima facie

case because there are no legally viable comparators who are

“similarly situated in all material respects,” the standard

required by Lewis, 918 F.3d at 1226 (“we hold that a plaintiff

proceeding under McDonnell_Douglas must show that she and her

comparators are ‘similarly situated in all material respects.’”)

For this reason, the Sheriff argues, he is entitled to summary

judgment as to Count I. (Doc. #53, pp. 13-15.)

McDonnell_Douglas does apply to this case, and part of its

prima facie case requirement is the showing of a similarly situated

comparator. A comparator requirement makes sense given the nature

of a selective-enforcement claim such as this. The issue is

whether the plaintiff was unfairly targeted for enhanced

discipline because of her gender, not whether the reasons offered

for the official action were valid or genuine. See Schwarz v. City

of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008).

Establishing a discriminatory effect necessarily requires a more

direct comparison to others, because “[w]ith selective-enforcement

claims like this, evenhanded application of the law is the end of

the matter.” Id. at 1217.

Plaintiff has clearly stated an equal protection claim which

requires her to establish similarly situated male comparators.

The TAC (Doc. #35) asserts that Plaintiff “was treated differently

as to the discipline imposed upon her than similarly situated

males.” (Id., ¶ 28.) Count I incorporates assertions that

Plaintiff “was terminated . . . because of her sex” and “would

have been treated substantially and materially different had she

been a male” (Id., ¶ 22), and that “Plaintiff’s termination was

inconsistent with and significantly departed from the punishments

previously imposed for conduct of similar magnitude against

males.” (Id., ¶ 24.)

Plaintiff identifies four comparators (David Motz, Kevin

Ostrowsky, David Imbruno, and Timothy Degrasse). Each had

sustained “conduct unbecoming” violations with the CCSO but were

not terminated from employment. None of the four comparators

proffered by Plaintiff engaged in the same type of misconduct as

Plaintiff, and none had violated a CCSO policy regarding

untruthfulness. As Defendant points out, the record establishes

that every person who has been found to have violated CCSO’s

untruthfulness policy has had their employment withdrawn or

resigned in lieu of termination. Thus, Plaintiff has not shown

any valid comparators.

Plaintiff argues she was not disciplined for a lack of

truthfulness, so there is no need for an untruthfulness

characteristic to be present in any of the comparators. Plaintiff

asserts that “[n]o reasonable reading of [Plaintiff’s

investigatory interview] would lead to the finding that she

violated the ‘untruthfulness’ general order that [Defendant] has

outlined.” (Doc. #65, p. 11-12.)

But the record is clear that Plaintiff’s employment was

terminated because the Sheriff concluded she had been untruthful

in her interview. While Plaintiff disagrees with the merits of

this finding, there is no evidence showing that the stated reason

was both false and that discrimination [or retaliation] was the

real reason for the adverse action. If "the proffered reason is

one that might motivate a reasonable employer, [a] [plaintiff]

must meet that reason head on and rebut it, and the [plaintiff]

cannot succeed by simply quarreling with the wisdom of that

reason." Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir.

2000).

Untruthfulness was specifically raised during Plaintiff’s

pre-termination hearing when the Sheriff explained that, although

Plaintiff’s “conduct unbecoming” charge, on its own, “was very

survivable[,]” “the fact that [Plaintiff] tried to lie to Sgt.

Wagner” during her investigatory interview was the issue

warranting dismissal. Plaintiff was given an opportunity to

disagree with Defendant concerning her dishonesty violation during

that interview, and Defendant agreed to re-listen to the

investigatory interview based on Plaintiff’s representations.

After the hearing, Defendant re-listened to the investigatory

interview and determined that Plaintiff’s claim that she had not

had an opportunity to explain herself lacked merit. Accordingly,

he moved forward with his decision to withdraw Plaintiff’s

appointment. Plaintiff’s disagreement with the wisdom behind

Defendant’s decision to terminate her employment because of her

dishonesty during the investigatory interview is insufficient to

either show the comparators were similarly situated or that the

reason for termination of employment was pretextual. Allegations

which fail to provide details that would allow the Court to assess

whether others were similarly situated are simply conclusory

allegations which are not enough to create a genuine dispute of

material fact. Sumrall v. Georgia Dep't of Corr., 154 F.4th 1304,

1313 (11th Cir. 2025); Evers v. Gen. Motors Corp., 770 F.2d 984,

986 (11th Cir. 1985).

Plaintiff responds by arguing that “[f]ederal courts have

recognized that comparator evidence is not an essential element

for establishing a gender discrimination claim.” (Doc. #65, p.

7.) E.g., Ballou v. McElvain, 29 F.4th 413, 426 (9th Cir. 2022)

(“comparator evidence in disparate treatment claims can, but need

not, be used to support a finding of a discriminatory motive. It

is not a gatekeeping mechanism essential to plaintiffs' ability to

prove that they have been denied equal protection of the laws by

being adversely treated on the basis of membership in a protected

class.”)

It is certainly true that the McDonnell Douglas framework “is

not, and never was intended to be, the sine qua non for a plaintiff

to survive a summary judgment motion in an employment

discrimination case.” Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011). Even without similarly situated

comparators "the plaintiff will always survive summary judgment if

[s]he presents circumstantial evidence that creates a triable

issue concerning the employer's discriminatory intent." Lewis,

934 F.3d at 1185 (quoting Lockheed-Martin Corp., 644 F.3d at 1328.)

Accordingly, a plaintiff may defeat a summary judgment motion by

presenting a “convincing mosaic of circumstantial evidence that

would allow a jury to infer intentional discrimination by the

decisionmaker.” Id. (quotation and citation omitted). Plaintiff

has not done so in this case.

Plaintiff cites various facts which she claims establish a

basis to reasonably infer disparate treatment and pretext in

violation of the Equal Protection Clause of the Fourteenth

Amendment. These include (1) Defendant’s decision to add the

additional untruthfulness violation “to obfuscate the fact that

[Plaintiff] was fired for conduct that similarly situated male

officers were lightly punished for[,]” (2) the fact that Defendant

imposed “the harshest possible punishment based on lawful,

consensual conduct,” in comparison to “male officers who had

committed duty-related and much more egregious offenses” (e.g.

having sexual relations with a domestic violence victim in a case

against the perpetrator husband and accessing pornography during

work duty as a school resource officer), and (3) the fact that the

disciplinary action was taken only after “salacious news reports”

about Plaintiff and Winters surfaced. (Doc. #66, pp. 11-15.)

The Court’s function at this stage of the proceedings does

not include weighing whether the evidence is sufficient to prove

plaintiff’s case. Instead, the Court must ask whether Plaintiff

has presented the requisite “convincing mosaic” of evidence to

allow a reasonable jury to infer that bias against Plaintiff’s

protected characteristic (here, sex) was either the true reason or

a motivating factor for her discharge. See Quigg v. Thomas Cnty.

Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016).

The Court finds that Plaintiff has not presented sufficient

evidence to allow a reasonable jury to infer that Defendant’s bias

against Plaintiff’s sex was either the true reason or a motivating

factor for her discharge. The evidence shows that Plaintiff was

dismissed from duties as a Sheriff’s Deputy with CCSO as a result

of untruthfulness about her sexual relationship with Winters, not,

as Plaintiff suggests, her protected characteristics under the

Equal Protection Clause of the Fourteenth Amendment. Accordingly,

Plaintiff has not presented sufficient evidence to survive summary

judgment as to her Equal Protection claim against Defendant and

judgment is entered in favor of Defendant on Count I.

Even if Plaintiff had met her burden as to similarly situated

males, she has not presented evidence that the Sheriff acted with

a discriminatory purpose. To “make out an equal protection claim,

a plaintiff must prove purposeful, intentional discrimination.”

Morrissey v. United States, 871 F.3d 1260, 1271 (11th Cir. 2017).

Sumrall, 154 F.4th at 1313. Other than her disagreement with the

merits of the Sheriff’s untruthfulness finding, Plaintiff has

presented no evidence which would allow a reasonable jury to make

such a finding.

B. First Amendment Retaliation

Count II of the operative pleading alleges that Plaintiff

engaged in constitutionally protected activity when she reported

Winters to FMPD for harassing and stalking her. Plaintiff asserts

that the subsequent disciplinary investigation against her and her

ultimate discharge from employment was in retaliation for that

protected activity, in violation of the First Amendment. (Doc.

#35, ¶¶ 31, 32.)

The Eleventh Circuit has set out three requirements to state

a claim for retaliation under the First Amendment:

(1) [the plaintiff] engaged in

constitutionally protected speech, . . . ; (2)

the defendant's retaliatory conduct adversely

affected that protected speech . . . ; and (3)

a causal connection exists between the

defendant's retaliatory conduct and the

adverse effect on the plaintiff's speech . .

..

DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1289 (11th Cir.

2019). Defendant does not challenge that Plaintiff’s report to

FMPD regarding Winters constituted protected First Amendment

Speech. Nor does he challenge whether the retaliatory conduct

(here, Plaintiff’s termination from employment) “would likely

deter a person of ordinary firmness from the exercise of First

Amendment rights.” Bailey v. Wheeler, 843 F.3d 473, 481 (11th

Cir. 2016) (citation omitted). Instead, Defendant argues that

Plaintiff has failed to establish that her report to FMPD was the

“but-for” cause of the adverse employment action.

Defendant is correct that to satisfy the causation element,

Plaintiff must show that her speech was a but-for cause of

Defendant’s adverse action against her. Nieves v. Bartlett, 587

U.S. 391, 399 (2019). More specifically, “[i]n order to establish

a causal connection, the plaintiff must show that the defendant

was subjectively motivated to take the adverse action because of

the protected speech.” Castle v. Appalachian Tech. College, 631

F.3d 1194, 1197 (11th Cir. 2011) (citing Smith v. Moseley, 532

F.3d 1270, 1278 (11th Cir. 2008)). But “[b]ecause producing direct

evidence of an official's inner motivations is often not possible,

[courts may rely] on circumstantial evidence to establish the

causal link.” Huggins v. Sch. Dist. of Manatee Cnty., 151 F.4th

1268, 1282 (11th Cir. 2025).

Plaintiff has not presented sufficient circumstantial

evidence to support causation. Plaintiff reported Winters to FMPD

on May 27, 2021. CCSO did not begin its investigation of Plaintiff

until December 2021, (Doc. #35, ¶ 26), when FMPD’s Internal Affairs

Bureau informed CCSO’s Internal Affairs Bureau that it had

completed its investigation, and that Plaintiff had admitted to

having sex with Winters knowing Winters was then on duty. (Doc.

#53, ¶¶ 9-10.) A gap of seven months between the protected speech

and adverse employment action, by itself, is far too long to allow

a reasonable inference of causation. See Clark Cty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001) (“temporal proximity must be

‘very close’” to provide sufficient evidence of causality

(citation omitted)); Gilliam v. U.S. Dep't of Veterans Affairs,

822 Fed. Appx. 985, 987 (11th Cir. 2020) (three-month gap is not

close enough); Thibodeaux v. City of Atlanta, Georgia, No. 24-

12921, 2025 WL 2505600, at *4 (11th Cir. Sept. 2, 2025) (no

temporal evidence of causation where termination occurred “18

months after [plaintiff’s] written complaint alleging sexual

harassment, 6 months after her second demand letter to the city,

and 4 months after her EEOC filing.”).

Plaintiff nevertheless maintains that a reasonable jury could

infer that she was terminated in retaliation for reporting Winters

to FMPD because various “embarrassing” news reports made public

the details of her sexual relationship with Winters, including an

article published in December 2021, when CCSO began its

investigation of Plaintiff. (Doc. #35, ¶ 26.) According to

Plaintiff, a reasonable inference can be made that she was

terminated due to these embarrassing news articles. (Doc. #65, p.

14.) But Plaintiff presents no evidence to permit such an

inference, particularly in light of the Sheriff’s uncontradicted

deposition testimony that he was unaware of the public news reports

surrounding Plaintiff and Winters’ relationship at the time that

Plaintiff was terminated (Doc. #63-1, p. 17).

“To survive summary judgment, the employee must present a

story, supported by evidence, that would allow a reasonable jury

to find that the employer engaged in unlawful retaliation against

the employee.” Berry v. Crestwood Healthcare LP, 84 F.4th 1300,

1311 (11th Cir. 2023) (citing Lewis, 934 F.3d at 1185). Without

any other evidence showing that Sheriff Prummell was embarrassed

because of the conduct of another police department’s law

enforcement officer in a different county, Plaintiff has failed to

create a triable issue of fact as to the causation element for her

retaliation claim. The motion is therefore granted as to Count

Il.

Accordingly, it is now

ORDERED:

Defendant’s Motion for Summary Judgment (Doc. #53) is GRANTED

as to Count I and Count II of the Complaint. Judgment will be

entered in favor of Defendant Bill Prummell, as Sheriff of

Charlotte County, Florida, and against Plaintiff Patricia Balaban,

who shall take nothing as to these counts.

DONE AND ORDERED at Fort Myers, Florida, this 5th day of

January 2026.

Wy ee DH

JGHH E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

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