The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-cv-20048-BLOOM/Elfenbein
NATACHA JEAN-FRANCOIS,
Plaintiff,
v.
THE CITY OF NORTH MIAMI,
Defendant.
_________________________/
ORDER ON MOTION TO DISMISS SECOND AMENDED COMPLAINT
THIS CAUSE is before the Court upon Defendant the City of North Miami’s Motion to
Dismiss Plaintiff’s Second Amended Complaint (“Motion”), ECF No. [67]. Plaintiff Natacha Jean-
Francois filed a Response, ECF No. [68], to which Defendant filed a Reply. ECF No. [69]. The
Court has reviewed the Motion, the Response, the Reply, the record, the applicable law, and is
otherwise fully advised. For the reasons that follow, the Motion is denied.
I. BACKGROUND
Plaintiff filed a Second Amended Complaint (“SAC”)1 against Defendant alleging
employment discrimination, retaliation, and hostile work environment in violation of Title VII of
the Civil Rights Act of 1964. ECF No. [63] ¶ 1. Plaintiff alleges that she is a Haitian-American
female employed by the City of North Miami’s Police Department as a Crisis Intervention
Specialist/Victim Advocate. Id. ¶ 4. She was employed from January 24, 2011, to February 6,
1 Plaintiff filed the instant action against Defendant on January 6, 2025. ECF No. [1]. On May 13, 2025,
the Court dismissed the Complaint without prejudice and with leave to file an Amended Complaint. ECF
No. [28]. Plaintiff filed an Amended Complaint, ECF No. [38], which the Court dismissed with prejudice.
ECF No. [54]. The Court thereafter granted Plaintiff’s Motion for Reconsideration and permitted Plaintiff
to file a Second Amended Complaint to assert only her Title VII claims. ECF No. [59]. Plaintiff thereafter
filed a Second Amended Complaint. ECF No. [63].
2023. Id. From January 2011 to February 2021, she received no unsatisfactory performance
reviews, no discipline, and received multiple written commendations for her work. Id. ¶ 15. On
February 12, 2021, Plaintiff was physically attacked and harassed at work by two on-duty North
Miami Police Officers, Detective Kamesha Moffatt and Detective Kimberly Bonny. Id. ¶ 16.
Plaintiff filed complaints regarding the incident with the City, the Florida Commission on Human
Relations (“FCHR”), and the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 17.
After she complained about the February 12, 2021, incident, Defendant commenced “a pattern and
practice of discrimination and retaliation against her.” Id. ¶ 18.
Plaintiff filed two EEOC Charges, EEOC Charge No. 510-2021-02724, filed on November
2, 2021 (“November 2021 Charge”), and EEOC Charge No. 510-2022-07920, filed on November
14, 2022 (“November 2022 Charge”), alleging discrimination based on race, sex, national origin,
age, and retaliation. Id. ¶¶ 6-7. On July 8, 2024, the EEOC issued Letters of Determination for
both EEOC Charges finding reasonable cause to believe violations of Title VII occurred. Id. ¶ 8.
On October 10, 2024, the U.S. Department of Justice, Civil Rights Division, issued a Notice of
Right to Sue regarding the November 2021 Charge and the November 2022 Charge. Id. ¶ 12.
Plaintiff filed the Complaint on October 10, 2024, eighty-eight (88) days after receiving the Notice
of Right to Sue. Id. ¶ 13.
Regarding the November 2021 Charge, Plaintiff alleges the Charge covers harassment and
a hostile work environment created by colleagues and supervisors including physical attacks and
threatening behavior from November 1, 2020, to October 19, 2021. Id. ¶¶ 19-20. Detective
Kimberly Bonny, an officer involved in the February 12, 2021, incident, made a discriminatory
comment that Plaintiff was “sticking with [her] own kind, meaning Haitians.” Id. ¶ 21. After
Plaintiff complained about the incident and ongoing harassment, Defendant began subjecting her
to disparate disciplinary treatment, including disciplinary write-ups with suspensions starting in
2021. Id. 22. Plaintiff states she had no prior disciplinary history for over ten years of employment,
and the write-ups were based on pretextual grounds. Id. ¶ 23. Plaintiff alleges Defendant subjected
her to different terms and conditions of employment based on her Haitian national origin, including
subjecting her to stricter scrutiny and harsher discipline than similarly situated employees outside
her protected class. Id. ¶ 24.
Regarding the November 2022 Charge, Plaintiff alleges that Defendant created and
maintained a hostile work environment where Plaintiff was subjected to threatening behavior,
derogatory comments about her Haitian heritage, false accusations of policy violations, and
escalating disciplinary actions from February 1, 2021, to November 8, 2022. Id. ¶¶ 25, 27. Plaintiff
received multiple disciplinary write-ups consisting of reprimands and suspensions without pay,
including suspension of 32 hours, 30 hours, 80 hours, and others. Id. ¶ 28. The write-ups were pre-
textual and based on false allegations of insubordination and policy violations. Id. ¶ 29. Plaintiff
was subjected to more severe discipline than similarly situated employees outside her protected
class who committed similar or more serious policy violations. Id. ¶ 30. Defendant’s notice of
intent to discipline, suspend, and terminate her employment were issued in retaliation for Plaintiff
filing discrimination charges with FCHR and EEOC. Id. ¶ 31. Defendant’s officials and attorneys
threatened adverse employment actions to coerce Plaintiff into accepting the terms of a “Last
Chance Agreement,” withdrawing her discrimination complaints, and waiving her legal rights in
order to keep her job. Id. ¶ 32. In July and August 2022, Police Chief Larry Juriga denied Plaintiff’s
training request to renew her Victim Services Practitioner Certificate, which is required for her
position. Id. ¶ 33. On August 4, 2022, Chief Juriga hosted a ceremony to recognize departments
and employees and deliberately excluded Plaintiff from recognition. Id. ¶ 34. On April 8, 2022,
Defendant issued a Notice of Intent to Terminate Plaintiff’s employment. Id. ¶ 35. Plaintiff was
terminated on February 6, 2023. Id. ¶ 36. Plaintiff alleges the disciplinary actions, suspensions,
and termination were motivated by Plaintiff’s national origin and in retaliation for filing charges
with FCHR and EEOC.
Plaintiff asserts three violations of Title VII of the Civil Rights Act: National Origin
Discrimination (Count I), Retaliation (Count II), and Hostile Work Environment (Count III). ECF
No. [63]. Defendant’s Motion argues the SAC fails to state a claim and several of Plaintiff’s claims
are time barred. ECF No. [67]. Plaintiff responds that she has properly pled each claim and the
Court has already ruled that her claims are timely. ECF No. [68].2
II. LEGAL STANDARD
A. Motion to Dismiss
“On a Rule 12(b)(6) motion to dismiss, ‘[t]he moving party bears the burden to show that
the complaint should be dismissed.’” Sprint Sols., Inc. v. Fils-Amie, 44 F. Supp. 3d 1224, 1228
(S.D. Fla. 2014) (quoting Mendez-Arriola v. White Wilson Med. Ctr. PA, No. 09-cv-495, 2010 WL
3385356, at *3 (N.D. Fla. Aug. 25, 2010)). A pleading must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). While a
complaint “does not need detailed factual allegations,” it must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation”). A complaint may not rest on “‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
557).
2 Plaintiff’s Response includes arguments regarding Section 1983 claims and pending charges. ECF No.
[68] at 11-18. The Court does not consider those arguments because neither the Motion to Dismiss nor the
Second Amended Complaint discusses Section 1983 or pending charges.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550
U.S. at 557). “Factual allegations must be enough to raise a right to relief above the speculative
level[.]” Twombly, 550 U.S. at 555. As a general rule, when reviewing a motion to dismiss, a court
must accept the plaintiff’s allegations as true and evaluate all plausible inferences derived from
those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012). Although the Court is required to accept all of the factual allegations as true, this tenet
is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678. In considering a Rule 12(b) motion to
dismiss, the Court is limited to the facts contained in the complaint and attached exhibits. See
Thaeter v. Palm Beach Cnty. Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006).
It is well-settled that:
where the plaintiff refers to certain documents in the complaint and those
documents are central to the plaintiff’s claim, then the Court may consider the
documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the
defendant’s attaching such documents to the motion to dismiss will not require
conversion of the motion into a motion for summary judgment.
Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). “[I]f the
allegations of the complaint about a particular exhibit conflict with the contents of the exhibit
itself, the exhibit controls.” Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016).
III. DISCUSSION
A. Claims Regarding February 12, 2021 Attack
Defendant argues that Plaintiff is barred from bringing claims regarding Detective Bonny’s
alleged attack on February 12, 2021, because Plaintiff failed to timely file suit after the EEOC
dismissed her previous charge. ECF No. [67] at 13. Defendant points out that Plaintiff filed a
Charge of Discrimination, Charge No. 15D-2021-00451, with FCHR and EEOC on April 5, 2021
(“April 2021 Charge”), asserting she was “almost attacked by Moffat and Bonny when they
aggressively approached [her], like an ambush to intimidate [her].” Id. at 13-14. The EEOC
adopted the FCHR’s determination that there was no reasonable cause, dismissed the April 2021
Charge, and issued a Notice of Right to Sue on April 28, 2022. Id. at 14. The EEOC dismissal and
Notice of Right to Sue were never revoked, and the Department of Justice did not take any action
with respect to the April 2021 Charge. Id. at 14-15. Defendant argues that because Plaintiff failed
to bring a lawsuit based on her April 5, 2021 Charge within 90 days of the Notice of Right to Sue,
Plaintiff is prohibited from relying on those claims in this suit, which was filed over two years
later. Id.
Plaintiff responds that Defendant is asking the Court to reverse its previous ruling in this
case. ECF No. [68] at 3-4. Plaintiff argues the Court already ruled that Plaintiff’s Title VII claims
are timely filed in its December 30, 2025 Order. Id. (referring to ECF No. [59]). The EEOC issued
a Notice of Right to Sue on October 10, 2024, and Plaintiff filed suit 88 days later. Id. Plaintiff
asserts that order is binding on this case and that there are no extraordinary circumstances for the
Court to revisit its prior ruling. Id. at 4.
Defendant replies that the Court’s prior ruling concerned the October 10, 2024 Notice of
Right to Sue, which was tied to the charges where the EEOC issued reasonable cause
determinations. ECF No. [69] at 1. Defendant is not challenging those charges. Id. at 2. Rather,
Defendant argues that Plaintiff did not timely file suit within 90 days of the EEOC’s Right to Sue
Notice based on the April 2021 Charge and FCHR’s no-reasonable-cause determination. Id. at 3.
In order to bring a claim under Title VII, a plaintiff must first file a complaint with the
EEOC and receive statutory notice from the EEOC of her right to sue the respondent named in the
charge. Burnett v. City of Jacksonville, FL, 376 F. App’x 905, 906 (11th Cir. 2010) (quoting
Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996)). Plaintiff
must then file suit within ninety days of receipt of the right to sue letter. See 42 U.S.C. § 2000e-
5(f)(1); see also Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir. 2000).
The failure to file suit within ninety days is not a jurisdictional prerequisite. See Jackson v.
Seaboard Coast Line R. Co., 678 F.2d 992, 1007 (11th Cir. 1982) (citing Mohasco Corp. v. Silver,
447 U.S. 807 (1980)). Rather, failing to comply with the filing period is a requirement that is
subject to waiver and equitable tolling that a defendant may assert as a defense. See Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 398 (1982); see also Mohasco, 447 U.S. at 811 n.9 (“Petitioner
did not assert respondent’s failure to file the action within 90 days as a defense.”).
The U.S. Supreme Court has equated Title VII filing requirements to a statute of
limitations. See Zipes, 455 U.S. at 393 (“We hold that filing a timely charge of discrimination with
the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a
statute of limitations, is subject to waiver, estoppel, and equitable tolling.”). Under Fed. R. Civ. P.
8(c), statute of limitations is an affirmative defense. Fed. R. Civ. P. 8(c). A statute of limitations
defense may be raised at the motion to dismiss stage when “the complaint shows on its face that
the limitations period has run.” AVCO Corp. v. Precision Air Parts, Inc., 676 F.2d 494, 495 (11th
Cir. 1982); see also Lindley v. City of Birmingham, Ala., 515 F. App’x 813, 815 (11th Cir. 2013)
(“A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is apparent
from the face of the complaint that the claim is time-barred because a statute of limitations bar is
an affirmative defense, and plaintiffs are not required to negate an affirmative defense in their
complaint.”) (internal quotations omitted; alterations adopted). Therefore, at the pleading stage,
“it suffices to allege generally that all conditions precedent have occurred or been performed.”
Myers v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1224 (11th Cir. 2010).3
3 This Court’s previous order identified the burden to establish whether conditions precedent to suit have
been fulfilled: plaintiff must allege generally that conditions precedent have occurred, defendant must deny
The Court agrees with Defendant that the Court’s December 30, 2025 Order does not
preclude Defendant’s untimeliness argument. The Court’s December 30, 2025 Order clarified that
Plaintiff’s First Amended Complaint was dismissed because Plaintiff did not allege sufficient facts
to determine whether her Title VII claims were timely. See ECF No. [59] at 8. However, the Court
does not address Defendant’s argument regarding timeliness at this stage of the proceedings
because those arguments are an affirmative defense.4 See Zipes, 455 U.S. at 393.
Thus, dismissal at this stage is warranted only if it is clear from the face of the SAC that
Plaintiff did not timely file suit. See AVCO Corp., 676 F.2d at 495. Defendant does not challenge
the timing of Plaintiff’s suit based on the November 2021 Charge and the November 2022 Charge.
See ECF No. [67]. The SAC does not allege facts regarding an earlier charge. See ECF No. [63].
Therefore, on the face of the SAC, Plaintiff has alleged that she timely filed suit based on the
November 2021 and November 2022 Charges and is not required to negate Defendant’s arguments
regarding the timeliness of claims brought in a charge not identified in the SAC. See Lindley, 515
F. App’x at 815. Therefore, Defendant’s Motion to Dismiss Plaintiff’s claims on the basis of
untimely filing is denied at this point.
B. Failure to State a Claim
1. Count I—Discrimination Based on National Origin
Defendant argues Plaintiff fails to state a claim of discrimination based on national origin
because Plaintiff does not establish direct or circumstantial evidence sufficient to meet the legal
a condition precedent with particularity, and plaintiff must then prove the conditions precedent have been
satisfied. See ECF No. [54] at 8-9. This burden shifting framework applies when assessing the complaint
on the merits, not on a motion to dismiss. See, e.g., Myers v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1224
(11th Cir. 2010) (applying the burden-shifting framework in a post-judgment appeal).
4 Defendant relies on Callahan v. Emory Healthcare, Inc., No. 1:21-CV-1367-WMR-JSA, 2023 WL
2334987, at *3 (N.D. Ga. Feb. 16, 2023), aff’d, No. 23-10604, 2024 WL 3027684 (11th Cir. June 17, 2024),
to support dismissal of Plaintiff’s claims. However, Callahan does not support dismissal at this stage
because the case was decided at summary judgment.
standard of discrimination. ECF No. [67] at 3. Defendant argues the only direct evidence of
discrimination is that one detective stated Plaintiff was “sticking with [her] own kind, the
Haitians.” Id. at 4. Plaintiff also does not identify a proper comparator under the McDonnell
Douglas framework. Id. at 4-5. Moreover, Plaintiff does not allege a convincing mosaic theory of
discrimination because the SAC does not connect the only comment made related to Plaintiff’s
national origin to her termination two years later. Id. at 7.
Plaintiff responds that Defendant misunderstands the applicable pleading standard and is
arguing dismissal based on an evidentiary standard, not a pleading requirement. ECF No. [68] at
1. At the motion to dismiss stage, Plaintiff must allege sufficient factual matter to plausibly suggest
intentional discrimination. Id. at 2. Plaintiff argues the SAC is sufficient because it identifies her
as a Haitian-American, she was subjected to a derogatory comment about “sticking with [her] own
kind, meaning Haitians,” she received disparate disciplinary treatment after complaining about
discrimination, and the EEOC found that “other employees who more flagrantly disregarded the
[City’s] policies received a relatively lighter penalty.” Id. at 5. Defendant replies that merely
pleading that the EEOC found reasonable cause is not sufficient to state a plausible claim. ECF
No. [69] at 4.
A plaintiff may establish discrimination through direct evidence, the burden-shifting
framework established in McDonnell Douglas or demonstrate a “convincing mosaic” of
circumstantial evidence. Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1220, 1220 n.6
(11th Cir. 2019). To prove a prima facie case of discrimination under McDonnell Douglas, “a
plaintiff must prove that he or she was: (1) a member of the protected class; (2) qualified for the
position; (3) subjected to adverse employment action; and (4) replaced by a person outside the
protected class or suffered from disparate treatment because of membership in the protected class.”
Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002); Roxbury-Smellie v. Fla. Dep’t of
Corr., 324 Fed. App’x 783, 785 (11th Cir. 2009) (same, in the context of discrimination on the
basis of national origin); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, (1973)
(finding that if plaintiff is able to establish a prima facie case of discrimination, then the burden
shifts to defendant to show a legitimate, non-discriminatory reason for its employment action).
“However, as explained in Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511 (2002), a
plaintiff need not satisfy the McDonnell Douglas framework at the pleading stage in order to state
a discrimination or retaliation claim.” Zachary v. Comprehensive Health Mgmt., Inc., 2012 WL
3264899, at *2 (M.D. Fla. Aug. 9, 2012). Nevertheless, “the ordinary rules for assessing the
sufficiency of the complaint [still] apply.” Swierkiewicz, 534 U.S. at 511; see also Davis v. Coca-
Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008) (“Although a Title VII complaint
need not allege facts sufficient to make out a classic McDonnell Douglas prima facie case, it must
provide enough factual matter (taken as true) to suggest intentional race discrimination.”)
“McDonnell Douglas’s burden-shifting framework is an evidentiary standard, not a pleading
requirement.” Surtain v. Hamlin Terrance Found, 789 F.3d 1239, 1246 (11th Cir. 2015). This is
because “[b]efore discovery has unearthed relevant facts and evidence, it may be difficult to define
the precise formulation of the required prima facie case. . . Given that the prima facie case
operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading
standard for discrimination cases.” Swierkiewicz, 534 U.S. at 511.
Taking the allegations in the SAC as true, Plaintiff has alleged sufficient facts to suggest
discrimination based on national origin. Plaintiff is not required to plead direct evidence of
discrimination nor satisfy the McDonnell Douglas elements. However, the McDonnell Douglas
framework remains a “helpful guide to the determination of the issue.” Powell v. Harsco Metal,
No. 2:12-cv-4080, 2013 WL 3242759, at *5 (N.D. Ala. June 20, 2013) (relying on the McDonnell
Douglas framework to assess motion to dismiss Title VII claim). Defendant argues that Plaintiff
fails to allege facts sufficient to establish that her employer treated similarly situated employees
outside her class more favorably. ECF No. [67] at 4.
To establish that an employer treated similarly situated employees outside a plaintiff’s class
more favorably requires the plaintiff to identify a comparator—another employee who is “similarly
situated in all material respects.” See Lewis, 918 F.3d at 1229. Material similarities with plaintiff
include engaging in the same conduct or misconduct; being subject to the same employment
policy, guideline, or rule; having the same supervisor; or sharing the same employment or
disciplinary history. Id. at 1228-29. A comparator is a case-by-case determination: similarities
need not be identical or based on purely formal characteristics, and minor differences may not be
disqualifying. Id. at 1226-27. A complaint will not be dismissed solely because plaintiff failed to
identify a comparator. See McManus v. Amerijet Int’l, Inc., No. 23-13554, 2024 WL 4003391, at
*3 (11th Cir. Aug. 30, 2024) (“But even at summary judgment, ‘the plaintiff’s failure to produce
a comparator does not necessarily doom the plaintiff’s case.’ . . . So that failure alone cannot
support dismissal of the complaint.”) (citing Tynes v. Fla. Dep’t of Juvenile Justice, 88 F.4th 939,
946 (11th Cir. 2023)).5 Thus, to survive a motion to dismiss, a plaintiff need not identify an exact
comparator but must allege facts that plaintiff’s membership in a protected class was the reason
for the alleged adverse action.6 See Hargett v. Fla. Atlantic Univ. Board of Trustees, No. 15-cv-
80349, 2015 WL 13639189, at *2 n.1 (S.D. Fla. Dec. 15, 2015).
5 Defendant cites cases where courts have dismissed a claim for failing to identify a comparator. See, e.g.,
Flemings v. U.S. Security Assocs., Inc., No. 18-24861-CIV, 2020 WL 1503638, at *7 (S.D. Fla. Mar. 4,
2020), report and recommendation adopted, 2020 WL 1493468 (S.D. Fla. Mar 27, 2020). The Eleventh
Circuit has not clarified whether a plaintiff must plead a comparator to survive dismissal. See Saintil v. Fla.
Dep’t Corr., No. 24-CV-23570, 2025 WL 1330282, at *3 n.3 (S.D. Fla. May 7, 2025) (comparing two
unpublished Eleventh Circuit cases with conflicting holdings regarding identifying comparators at the
pleading stage). Because the Eleventh Circuit is clear that a plaintiff does not need to establish a prima facie
case at the pleading stage, the Court adopts the reasoning in McManus.
Plaintiff alleges that “[t]he City subjected Plaintiff to more severe discipline than similarly
situated employees outside [Plaintiff’s] protected class who committed similar or more serious
policy violations.” ECF No. ECF No. [63] at 5. By itself, this allegation is conclusory and does
not allege facts such that the Court can infer discrimination based on national origin. See Davila
v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003) (“[C]onclusory allegations,
unwarranted factual deductions or legal conclusions masquerading as facts will not prevent
dismissal.”). However, Plaintiff’s November 2021 Charge identifies two potential comparators:
Detective Moffatt and Detective Bonny, stating “Detective Moffatt and Detective Bonny, both
black, non-Haitian, and gay or members of the LGBTQ community, were treated more favorably.
They were not promptly removed from work or suspended for their misconduct on
02/12/21. . . . Detective Moffatt, who has prior discipline, was only issued a written warning[.]”
ECF No. [63] at 16. Plaintiff identifies two employees who do not share the same national origin
as Plaintiff and alleges they engaged in severe misconduct during the February 12, 2021 attack
and received less severe disciplinary action. Whether those Detectives are proper comparators—
i.e. are similarly situated in all material respects—is not an inquiry for this stage of proceedings.
See Borgella v. Robins & Morton Corp., No. 21-cv -22789, 2022 WL 2104215, at *3 (S.D. Fla.
June 10, 2022) (“Arguments regarding whether coworkers were actually similarly situated is again,
best left until after discovery.”). As such, Plaintiff has pled facts to identify a comparator under
McDonnell Douglas. Therefore, the SAC plausibly suggests discrimination based on national
origin. Defendant’s Motion is denied as to Count I.
2. Count II—Retaliation
Defendant argues that Plaintiff has not properly pled retaliation because Plaintiff fails to
allege a causal connection between her alleged protected activity and an adverse employment
action. ECF No. [67] at 11. Plaintiff does not provide any specifics about the disciplinary actions,
does not provide the dates of those actions other than they occurred after she filed the November
2, 2021 Charge, and does not identify the decision-makers of those actions. Id. at 12. Defendant
argues that Plaintiff filed a Charge of Discrimination on November 2, 2021 and was not terminated
until over a year later, on February 6, 2023. ECF No. [67] at 12. The time between the November
2021 Charge and Chief Juriga’s denial of her training request and the failure to recognize her at a
ceremony was almost eight months. Id. Defendant argues the lack of temporal proximity negates
any causal connection. Id. Defendant cites cases finding that three to four months between the
protected activity and the adverse action is insufficient. Id. Plaintiff also cannot claim a causal
connection between the November 1, 2022 Charge and her termination because the denial of
Plaintiff’s training request, failure to recognize Plaintiff at a ceremony, and issuing a notice of
intent to terminate occurred before Plaintiff filed that Charge. Id. at 12-13.
Plaintiff responds that the SAC alleges protected activity by filing complaints with the City,
FCHR, and EEOC and that following that activity, Plaintiff was subjected to increased scrutiny,
false disciplinary writes-ups, suspensions, and ultimately termination. ECF No. [68] at 5. Plaintiff
argues the temporal proximity between the protected activity and adverse actions support a causal
connection between the protected activity and the adverse actions. Id. at 5-6. Additionally, Plaintiff
argues that temporal proximity is not the only way to establish causation and that Defendant
engaged in a pattern of escalating retaliatory conduct following her protected activity, which
supports a causal connection. Id. Plaintiff argues that identifying decision-makers and their
knowledge of the protected activity is not required at the pleading stage. Id. at 7.
“In order to establish a prima facie case of retaliation under Title VII, a plaintiff must prove
the following elements: (1) she participated in an activity protected by Title VII; (2) she suffered
an adverse employment action; and (3) there is a causal connection between the participation in
the protected activity and the adverse employment decision.” Gupta v. Fla. Bd. of Regents, 212
F.3d 571, 587 (11th Cir. 2000). “An adverse employment action is an ultimate employment
decision, such as discharge or failure to hire, or other conduct that alters the employee’s
compensation, terms, conditions, or privileges of employment, deprives him or her of employment
opportunities, or adversely affects his or her status as an employee.” Id. at 587 (internal quotations
omitted). “[A] plaintiff need not satisfy the McDonnell Douglas framework at the pleading stage
in order to state a discrimination or retaliation claim.” Zachary, 2012 WL 3264899, at *2.
Nevertheless, “the ordinary rules for assessing the sufficiency of the complaint [still] apply.”
Swierkiewicz, 534 U.S. at 511.
Here, it is undisputed that Plaintiff filed charges with FCHR and the EEOC. See generally
ECF Nos. [67], [68]. The timing of Plaintiff’s alleged adverse employment actions is important to
state a retaliation claim. The Charges attached to the SAC indicate that the first charge was filed
on November 2, 2021, and the second charge on November 14, 2022. ECF Nos. [63] at 15-20.
Plaintiff alleges that after she complained about the February 12, 2021 incident, Defendant
began subjecting her to disparate disciplinary treatment and issuing her disciplinary write-ups with
suspensions “starting in 2021.” ECF No. [63] ¶¶ 22-23. The SAC also alleges that after Plaintiff
filed the November 2021 Charge, Defendant escalated its retaliatory conduct and issued her
multiple disciplinary write-ups “between 2021 and 2022” including reprimands and suspensions
without pay. Id. ¶¶ 26, 28. In July and August 2022, Police Chief Larry Juriga denied Plaintiff’s
request for required training for her position. Id. ¶ 33. On August 4, 2022, Police Chief Juriga did
not recognize Plaintiff at the ceremony. Id. ¶ 34. On April 8, 2022, Defendant issued a Notice of
Intent to Terminate Plaintiff’s Employment. Id. ¶ 35. On February 6, 2023, Defendant terminated
Plaintiff’s employment. Id. ¶ 36.
The Court agrees with Defendant that Plaintiff cannot establish a causal connection
between her November 12, 2022 Charge and adverse employment actions. The denial of her
training request, failure to recognize her at a ceremony, and issuing a Notice of Intent to Terminate
occurred before she filed the November 2022 Charge. Although Plaintiff was terminated after
filing that Charge, the Notice of Intent to Terminate was issued before the Charge, which does not
support causation. See Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (“We hold that, in a
retaliation case, when an employer contemplates an adverse employment action before an
employee engages in protected activity, temporal proximity between the protected activity and the
subsequent adverse employment action does not suffice to show causation.”).
However, Plaintiff alleges multiple adverse actions—write-ups, denial of training, failure
of recognition, and termination—that occurred after the November 2021 Charge. Defendant argues
Plaintiff cannot claim causation because the actions occurred eight months after Plaintiff’s
protected activity. ECF No. [67] at 12. The Eleventh Circuit has held that when a plaintiff seeks
to establish causation in her prima facie case solely through temporal proximity, the time between
the protected activity and the adverse employment action must be “very close.” See Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). As a matter of law, a period of three
to four months does not establish causation. Id. (“A three-to-four-month disparity between the
statutorily protected expression and the adverse employment action is not enough. . . . Thus, in the
absence of other evidence tending to show causation, if there is a substantial delay between the
protected expression and the adverse action, the complaint of retaliation fails as a matter of law.”).
The denial of training did not occur until eight months after the November 2021 Charge.
However, Plaintiff alleges Defendant engaged in escalating adverse actions and that write-ups and
suspensions began in 2021. Although the SAC does not allege precise dates of the write-ups,7
7 The November 2021 Charge indicates Plaintiff was suspended for 32 hours on September 9, 2021, and
for 80 hours on October 13, 2021. ECF No. [63] at 16. Those adverse actions do not support causation
because the suspensions occurred before filing the November 2021 charge. However, the SAC alleges a
suspension of 30 hours “and others.” Id. ¶ 28. Further details regarding the date, nature, and decision-
makers of the disciplinary actions will be necessary to evaluate Plaintiff’s claims on the merits.
Plaintiff does not need to establish a prima facie case at the pleading stage. Therefore, alleging the
type (reprimands and suspensions), consequence (suspension without pay of 32 hours, 30 hours,
80 hours, and others), and general timing (between 2021 and 2022) of disciplinary actions paired
with the training, recognition, and termination allegations is sufficient to allege a causal connection
between Plaintiff’s protected activity and adverse employment actions. Therefore, Defendant’s
Motion is denied as to Count II.
3. Count III—Hostile Work Environment
Defendant argues Plaintiff fails to allege facts to establish that she was subject to
harassment based on her protected class. ECF No. [67] at 8. Plaintiff’s Charges of Discrimination
state that the harassment was due to her refusal to participate in an Internal Affairs (“IA”)
investigation, not because of Plaintiff’s nationality. Id. The SAC also does not allege facts to show
a connection between Plaintiff’s protected class and her exclusion from recognition ceremonies
and disciplinary actions. Id. at 9. Plaintiff identifies one comment related to national origin that,
Defendant argues, is not disparaging of any protected class. Id. at 9. Defendant argues Plaintiff did
not allege facts to demonstrate the harassment was sufficiently severe or pervasive to alter the
terms of her employment. Id.
Plaintiff responds that her hostile work environment claim is adequately pled because she
alleges she was subjected to threatening behavior, physical attacks, and derogatory comments
about her Haitian heritage. ECF No. [68] at 7. Plaintiff argues the SAC alleges severe and
pervasive behavior because the behavior included a physical attack by two police officers and
ongoing threatening behavior from February 2021 to November 2022. Id. at 7-8. Plaintiff argues
that stating in an EEOC charge that harassment occurred because she did not participate as a
witness in an IA investigation does not mean that Plaintiff admitted that the harassment was not
based on national origin. Id. at 8. Plaintiff argues EEOC charges are not formal pleadings or
binding admissions, and a Title VII lawsuit is not constrained to the precise language in the charge
itself. Id. Plaintiff argues the fact that the EEOC concluded that Plaintiff was subjected to a hostile
work environment based on her national origin “supersedes any ambiguity in the charge’s
language.” Id. Moreover, Plaintiff argues discrimination based on refusal to participate in an IA
investigation and discrimination based on national origin are not incompatible motivations because
the IA investigation targeted Haitian employees for not providing testimony favorable to the
complainants and was part of the discriminatory pattern. Id. at 9.
“[A] plaintiff wishing to establish a hostile work environment claim [must] show: (1) that
he belongs to a protected group; (2) that he has been subject to unwelcome harassment; (3) that
the harassment must have been based on a protected characteristic of the employee, such as
national origin; (4) that the harassment was sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily abusive working environment; and (5) that
the employer is responsible for such environment under either a theory of vicarious or of direct
liability.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). “[T]o be
actionable, this behavior must result in both an environment that a reasonable person would find
hostile or abusive and an environment that the victim subjectively perceives to be abusive.” Id.
1276 (internal quotation omitted; alterations adopted). Defendant argues Plaintiff has not
established the third and fourth elements.
The SAC alleges multiple acts that constitute harassment: the February 12, 2021 incident,
threatening and intimidating behavior by supervisors and colleagues, derogatory comments about
her association with Haitians, discriminatory exclusion from department recognition ceremonies,
and a systematic pattern of pretextual disciplinary actions. ECF No. [23] ¶¶ 57-58. However, other
than the statement made by Detective Bonny regarding the February 12, 2021 incident, Plaintiff
does not allege any facts to establish a connection between the harassment and her national origin.
See generally ECF No. [63]. The SAC alleges the harassment “was based on Plaintiff’s national
origin,” which is conclusory and does not provide any factual allegations to support that
conclusion. Id. ¶ 59. See Davila, 326 F.3d at 1185 (“[C]onclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will not prevent dismissal.”). The
November 2021 Charge indicates the harassment occurred because Plaintiff did not want to
participate in an IA investigation. ECF No. [63] at 15. Plaintiff’s Response argues that the IA
investigation was part of the discriminatory pattern as the investigation targeted Haitian
employees. ECF No. [68] at 9. However, those details regarding the IA investigation are not
alleged in the SAC, and Plaintiff cannot amend her pleading in response to Defendant’s Motion.
See Williams v. Allen, No. 17-cv-00242, 2017 WL 1653744, at *5 n.7 (M.D. Fla. May 2, 2017)
(“A plaintiff, however, cannot amend a pleading through statements contained in a response
brief.”). Therefore, Plaintiff has not established a connection between those actions and her
national origin.
The SAC only alleges facts regarding a connection between Plaintiff’s national origin and
harassment based on the February 12, 2021 incident and Detective Bonny’s statement. As such,
Plaintiff has stated a claim if the February 12, 2021 incident is sufficiently severe. Miller, 277 F.3d
at 1275. Plaintiff indicates she “feared for [her] safety and [her] life,” establishing the subjective
component. ECF No. [63] at 16. The Eleventh Circuit instructs courts to consider the following
factors for objective severity: “(1) the frequency of the conduct; (2) the severity of the conduct;
(3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance;
and (4) whether the conduct unreasonably interferes with the employee’s job performance.”
Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999).
The November 2021 Charge describes actions by Detective Moffat and Detective Bonny
on February 12, 2021 where Detective Moffatt balled her fist and hit her hand several times
Case No. 25-cv-20048-BLOOM/Elfenbein
aggressively and then lunged at [Plaintiff] in an attempt to strike [Plaintiff].”” ECF No. [63] at 15.
Plaintiff later learned Detective Bonny made a biased comment referencing Plaintiffs national
origin. /d. at 16. Plaintiff alleges both detectives carry guns and are physically bigger than Plaintiff.
Id. The description of an interaction involving acts by armed detectives that are physically
threatening and made Plaintiff fear for her life are sufficient to allege physically intimidating
conduct that is sufficiently severe to sustain a claim. Therefore, Defendant’s Motion is denied as
to Count III.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion to Dismiss, ECF No. [67], is DENIED
2. Defendant shall file an Answer to the Second Amended Complaint by June 26, 2026.
DONE AND ORDERED in Chambers at Miami, Florida, on June 16, 2026.
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
19