Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DANIELA GILBERT,

Plaintiff,

v. Case No: 2:24-cv-423-JES-NPM

CHICO’S FAS INC.,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of the Motion

for Summary Judgment (Doc. #31) filed on October 17, 2025 by

Defendant Chico’s FAS Inc. (“Chico’s”). Plaintiff Daniela Gilbert

(“Gilbert”) filed a Response in Opposition (Doc. #32) on November

7, 2025. Chico’s filed a Reply (Doc. #33) on November 21, 2025,

to which Gilbert Moved for Leave to file a Sur-reply (Doc. #34) on

November 24, 2025. Construing the Motion as requesting leave to

amend, Magistrate Judge Nicholas P. Mizell granted Gilbert’s

Construed Motion to Amend on December 18, 2025 (Doc. #40). Thus,

on December 29, 2025, Gilbert filed her Amended Response (Doc.

#43) and on January 20, 2026, Chico’s filed its Amended Reply (Doc.

#51).

For the reasons set forth below, Chico’s motion is GRANTED in

part in favor of Chico’s on Counts II and IV, Count III is dismissed

with prejudice, and the motion is otherwise DENIED as to Count I.

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 Gilbert’s operative pleading, the First Amended

Complaint (the “FAC” or “Complaint”) (Doc. #8), Chico’s Motion for

Summary Judgment (Doc. #31), and Gilbert’s Amended Response in

Opposition to Chico’s Motion for Summary Judgment (Doc. #43).

Plaintiff Daniela Gilbert identifies as a white Cuban

American female. (Doc. #8 at ¶ 8.) She began her employment with

Defendant Chico’s as “Manager, Raw Materials R & D” for White House

Black Market, a Chico's brand, on December 6, 2021 after “an

extremely rigorous process which involved five to six interviews.”

(Doc. #43 at p. 2.)

Throughout Gilbert’s tenure with Chico’s, her

responsibilities were threefold. First, she was responsible for

developing and procuring the fabrics used to design Chico’s

seasonal clothing campaigns. This responsibility involved

conducting market research to “stay[] abreast of aesthetic raw

material trends and technological developments[,]” in partnership

with Chico’s “design team” to obtain a “broad selection of fabrics”

meant to be “affordable but look expensive.” (Doc. #31-4 at ¶ 5.)

Second, Gilbert was responsible for the mechanics necessary

to showcase the fabrics to the design team. This portion of her

job was “very hands-on” and included receiving and unpacking boxes

of fabrics, hanging them on a rack or placing them in the

appropriate bin, lifting the fabric selections on and off the

racks, transporting bins and racks of fabric to the design

department “in a different part of the building,” unpacking fabrics

upon arrival and laying them out near trend boards, and

“repeat[ing] this process and continue[ing] to source until the

design team made its final selections.” (Id.)

Finally, Gilbert was tasked with addressing any issues that

arose following the design team’s selections. This responsibility

included, among other things, problem-solving issues regarding

“delays in production or problems with a fabric’s weight,

wrinkling, color, or other issues[.]” (Id. at ¶ 6.)

Shortly before Gilbert moved to Fort Myers, Florida to begin

working on site at Chico’s Corporate Office Campus, Gilbert

informed her direct supervisor, Lisa Corbett (“Corbett”) via text

message that she had injured her shoulder and that her ability to

lift and carry may be limited until she saw a doctor for the

injury. (Id. at ¶ 11.) Several months later, on July 22, 2022,

Gilbert had surgery to repair her rotator cuff. Chico’s approved

Gilbert’s request for medical leave beginning that day. (Doc. #31

at p. 10.)

Although the circumstances giving rise to Gilbert’s

termination are somewhat in dispute, both parties agree that even

before Gilbert’s medical leave of absence, Gilbert’s employment

with Chico’s was not without issues. Although Gilbert believed

that she had been hired to procure fabrics for the Chico’s White

House Black Market “main line” of clothing, during the first two

months of her employment Gilbert was assigned to Chico’s “outlet”

team and tasked with designing clothing created directly for Outlet

stores. Gilbert avers that Corbett gave Chrissy Hull (“Hull”), a

white non-Cuban woman, preferential treatment by not placing her

on outlet. (Doc. #43 at p. 8.)

Additionally, Gilbert avers that Corbett made two allegedly

racist comments. “[A]bout a month in” to her employment with

Chico’s, Corbett told her “to be careful” with two other Chico’s

employees “because they were Indian.” (Doc. #43-5 at ¶ 23.) In

response, Gilbert asked Corbett “What does that have to do with

anything?”, and corrected Corbett by pointing out that one of the

employees was actually from El Salvador. (Id.) When certain

Chico’s employees from the Hong Kong office had come to visit

Chico’s Fort Myers campus, Gilbert avers that Corbett advised them,

in front of Gilbert, not to stay in Cape Coral (a city proximate

to the Fort Myers campus) “because it’s mixed.” (Doc. #31-1 at p.

14.) In a signed affidavit, Corbett maintains that both of these

allegations are “patently false.” (Doc. #31-4 at ¶¶ 25-26.)

According to Chico’s, from the beginning “Gilbert struggled

to translate expensive to affordable without sacrificing look” and

“her selections were cheap looking and lacked the right aesthetic

for the brand.” (Doc. #31-4 at ¶ 7.) Moreover, “Gilbert also

struggled with managing other parts of her job, particularly at a

strategic level, because she lacked sufficient problem-solving

skills.” (Id. at ¶ 7.) Finally, Gilbert “tended to get defensive

or make excuses when she was given negative feedback and showed a

lack of accountability for her performance struggles.” (Id. at ¶

9.) According to Chico’s, “Corbett received complaints from the

design team about [Gilbert’s] work.” (Doc. #31 at ¶ 7.)

Initially, Corbett offered “informal feedback” on Gilbert’s

performance struggles, but when she did not “see sufficient

improvement,” Corbett initiated a “formal performance meeting”

with Gilbert on June 29, 2022. (Doc. #31-4 at ¶ 10.) Chico’s

Human Resources Manager, Jody Warder (“Warder”), attended the

meeting. (Id.) During the meeting, Corbett gave Gilbert “detailed

feedback about the areas where [she] felt [Gilbert] was not meeting

her job expectations[,]” and summarized the feedback in an email

sent to Gilbert that same day. (Id.) Gilbert responded to the

email two weeks later acknowledging Corbett’s feedback.

Before Gilbert left for medical leave in July 2022, she

received a pay increase of 2.75%. While Gilbert contends that

this pay increase constituted a merit raise, (Doc. #43 at ¶ 9),

Chico’s avers that the increase “was not intended to indicate Ms.

Gilbert’s performance had improved.” (Doc. #31 at ¶ 9.)

On August 30, 2022, Gilbert contacted Amy Tobey (“Tobey”),

Chico’s Leave Administrator, requesting to return to work on

September 6, 2022. Gilbert furnished Tobey with a doctor’s note

indicating the following restrictions: no overhead use, no

pushing, no pulling, and no reaching. (Id. at ¶ 11.) Because the

doctor’s note did not set a time frame for how long the

restrictions would be in place, Tobey requested Gilbert obtain

this information. (Id.) Gilbert responded that the restrictions

were in place until the end of October, that the restrictions were

the “same restrictions” she had since the beginning of her

employment at Chico’s, that she could sufficiently perform her job

with the restrictions, and that Corbett had never indicated that

the restrictions were a problem. (Id. at ¶ 12.)

When the Leaves and Benefits department contacted Corbett

regarding Gilbert’s response, Corbett indicated that she did not

recall any previous restrictions other than physical therapy

appointments. (Id.) According to Gilbert, this interaction caused

her relationship with Corbett to “sour” because she “believed Ms.

Corbett was a liar when she said she did not recall [Gilbert]

having restrictions.” (Doc. #31 at p. 6.)

Ultimately, Gilbert’s request for accommodations was denied

because “Corbett was concerned about [Gilbert’s] ability to

perform the physical part of the job with the proposed

restrictions[.]” Warder agreed that Gilbert likely could not

perform her essential job functions with those restrictions. (Doc.

#31 at ¶ 14.)

On September 7, 2022, Tobey received an updated doctor’s note

from Gilbert requesting the following accommodations: (1) no

lifting more than five to ten pounds with right arm until October

1, 2022; and (2) physical therapy for approximately one to two

weeks from 7:30-8:30 a.m. twice weekly. After discussing the

request for accommodations with Corbett and Warder, Tobey granted

Gilbert’s accommodations requests and Gilbert returned to work on

September 8, 2022. (Id. at ¶¶ 15, 16.)

After Gilbert’s return, she received mixed feedback about her

work. For example, Corbett received complaints from the design

team, including from Danielle Konotop, the Vice President of

design, regarding their growing dissatisfaction with Gilbert’s

“fabric selections, and her attitude, response to feedback, and

disengagement during meetings.” (Doc. #31 at ¶ 19.) However,

Sergio Duque, Senior Designer for Dresses at White House Black

Market, stated in an affidavit attached to Gilbert’s response that

Gilbert was “professional, responsive, and on target with product

needs, making collaboration a pleasant and efficient experience.”

(Doc. #43-6 at p. 1.) He further stated that he never heard

complaints about Gilbert from his supervisor, the director of

design, and that “[g]iven his role as a senior designer reporting

to [the Design Director], if there had been significant performance

issues with Gilbert that affected [their] day-to-day work, [he]

would have expected to be informed[,]” but no such issues were

communicated to him. (Id. at p. 2.)

During that time, Corbett “regularly provided informal

feedback verbally and via email, some of which [she] certainly

would characterize as negative . . . .” (Doc. #31-4 at ¶ 17.)

After several months of insufficient improvement, Corbett, as

Gilbert’s direct supervisor, and Warder, as the HR Manager, placed

Gilbert on a Performance Improvement Plan (“PIP”). (Doc. #31 at

pp. 19-20.)

Corbett and Warder met with Gilbert on March 13, 2023 to

discuss the PIP. During that meeting, Corbett explained to Gilbert

that she had not shown sufficient improvement and that the design

team was dissatisfied with her performance. (Id. at ¶ 20.) She

also gave examples of Gilbert’s struggles with problem solving,

lack of initiative, and lack of attention to detail. These

included (1) Gilbert’s failure to “bring back any new items or

headers from the PV Paris fashion Show,” (2) that Gilbert failed

to “participate verbally during meetings . . . there is little to

no interaction from [Gilbert] in bringing fabric

options/thoughts/ideas,” (3) that when there was “an issue with

bulk timing and matte vs. satin side” Corbett had to “jump in and

resolve the issue as [Gilbert] [was] not able to assist with a

solution and fabric delivery was now at risk,” (4) certain fabric

was on fast track for delivery and when design inquired where it

was Gilbert responded that it “slipped through the cracks,” and

(5) that Gilbert was given guidance not to present cotton from a

certain vendor but nevertheless presented fabric from that source.

(Doc. #31-2 at pp. 10-11.)

After the meeting, Gilbert provided detailed written

responses disagreeing, on all counts, with Corbett’s assessment of

her performance including (1) that “90% of the headers presented”

to the design team were from the PV Paris fashion show or a separate

fashion show in New York City, (2) that Gilbert had received

approval and accolades from members of the design team and that

she interjects during meetings with design team when her input is

needed, (3) that, as for the bulk-timing issue identified by

Corbett, Gilbert received that request the day before she was

scheduled to be out of office in November 2022, thus another

employee was tasked with communications with the mill, (4) the

fabric that had been fast tracked for delivery slipped through

cracks because Gilbert’s aunt “fell ill” that day and died three

days later, and (5) Gilbert sourced the fabric sample from that

mill with permission and approval from the design team. (Id. at

p. 11.)

Both Corbett’s critiques and Gilbert’s responses were

incorporated in writing into Gilbert’s “Initial Performance

Improvement Plan” document. (Id.) Thirty days later, Corbett and

Warder met with Gilbert for her first PIP check-in to discuss

whether Gilbert had made requisite progress per the terms of the

PIP. (Doc. #31 at p. 7.) Corbett, once again, identified several

areas with which Gilbert needed improvement, including (1)

deliverables and follow through, (2) lack of initiative on problem

solving, (3) lack of follow up, (4) attention to detail, and (5)

quality of work. Corbett also included specific instances in which

her performance fell short of expectations during March and April

of 2023. (Doc. #31-2 at p. 19.) Gilbert, for her part, provided

detailed written responses noting Corbett’s issues with her

performance, responding to and disagreeing with Corbett’s

characterization of her performance, and seeking advice and

suggestions for how to proceed. (Id.)

In May 2023, Corbett and Warder conducted a second and final

PIP check in with Gilbert. (Doc. #31 at p. 8.) In the document

summarizing that meeting, Corbett expressed that the Chico’s team

still did not feel that Gilbert was making improvements with her

performance, and once again identified areas of concern including

(1) deliverables and follow through, (2) lack of initiative on

problem solving, and (3) attention to detail. Corbett also

included specific instances throughout March and April 2023 that

she felt Gilbert fell short of her performance goals. (Doc. #31-

2 at pp. 20-22.) Gilbert did not provide written responses to

Corbett’s concerns but acknowledged the document with her

signature. (Id.) At no point during either PIP check-in did

Corbett raise concerns about the PIP being implemented due to her

race, national origin, or her actual or perceived disability. (Doc.

#31 at ¶ 23.)

After Gilbert’s second PIP check-in, Corbett made the

recommendation to terminate Gilbert’s employment with Chico’s.

(Id. at ¶ 25.) On May 22, 2023, Warder met with Andrea Morganelli,

Chico’s Director of Compliance and Associate Relations and Lisa

Hultgren, Chico’s Human Resources Director to discuss Corbett’s

recommendation to terminate Gilbert. At some point after that

meeting, the termination decision was approved, and a termination

meeting was set for June 2, 2023. (Id.)

On June 2, 2023, Gilbert sent the following email to Warder,

formally raising, for the first time, her concerns regarding

workplace discrimination:

Good morning. Hope you are well.

I believe this PIP is unfounded and it is

concerning to me.

When I left for medical leave in July of 2022,

I was given a merit raise and once I returned

in September, I received accolades on my

performance from Lisa, Danielle, and both

design directors on the team.

I believe this PIP is not related to my

performance, but is retaliation for my medical

leave and discriminatory in nature with

regards to my Cuban heritage.

Thank you.

[Gilbert]

Warder responded that morning,

Good morning [Gilbert],

Thank you for escalating your concern. I will

share your concerns with our Associate

relations team and someone will reach out to

you shortly. In the meantime, I have asked

[Corbett] to pause on the performance feedback

meeting scheduled for today.

Thanks,

[Warder]

Ultimately, the termination meeting was rescheduled to Monday

June 5, 2023, at which time Gilbert’s employment with Chico’s was

terminated. Following Gilbert’s termination, her role was filled

by Hull.

Gilbert filed a Complaint for discrimination with the Equal

Opportunity Employment Commission (“EEOC”) and received her Notice

of Right to Sue on February 7, 2024. Gilbert then filed a complaint

for declaratory relief and damages against Chico’s on June 7, 2024

asserting the following claims: racial discrimination in violation

of Title VII of the Civil Rights Act of 1964 (Count I), Retaliation

in violation of Title VII of the Civil Rights Act of 1964 (Count

II), Failure to Accommodate in Violation of the Americans with

Disabilities Act of 1990 (Count III), and Retaliation in Violation

of the Americans with Disabilities Act of 1990 (Count VI).

III.

In its Motion (Doc. #31), Chico’s moves for summary judgment

on each of Gilbert’s claims for relief for various reasons. The

Court will address each count in turn.

A. Count I (Racial Discrimination in Violation of Title VII

of the Civil Rights Act of 1964)

Title VII of the Civil Rights Act of 1964 makes it unlawful

for an employer “to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual's race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1) (emphasis

added). See also Lewis v. City of Union City, Georgia, 918 F.3d

1213, 1220 (11th Cir. 2019) (en banc). To succeed under Title

VII, an employee must prove (1) intentional racial discrimination

(2) that caused an injury. Melton v. I-10 Truck Ctr. Inc., 166

F.4th 905, 912 (11th Cir. 2026). An employee may present direct

or circumstantial evidence to prove her case. Id. (citing Ziyadat

v. Diamondrock Hosp. Co., 3 F.4th 1291, 1296 (11th Cir. 2021)).

Either way, an employee suing under Title VII must prove her

employer acted with discriminatory intent. See Jefferson v. Sewon

Am., Inc., 891 F.3d 911, 920 (11th Cir. 2018); Ismael v. Roundtree,

161 F.4th 752, 758 (11th Cir. 2025).

Chico’s contends that summary judgment is appropriate because

“the record is wholly devoid of any evidence that would establish

Chico’s intentionally treated [Gilbert] differently because of her

race or national origin.” (Doc. #31 at p. 12.) Gilbert asserts

that she has presented sufficient direct and circumstantial

evidence to show intentional discrimination. (Doc. #43 at p. 18.)

Direct Evidence: Gilbert fails to identify specific

statements which constitute direct evidence supporting her Title

VII claim. Construed in a light most favorable to Gilbert, the

record reflects – at most – that Corbett (Gilbert’s supervisor)

made two general discriminatory statements during the course of

Gilbert’s tenure at Chico’s, neither of which was about Gilbert

herself nor her protected characteristics. First, Gilbert

testified that “about a month in” to her employment with Chico’s,

Corbett told her “to be careful” with two other Chico’s employees

“because they were Indian.” (Doc. #43-5 at ¶ 23.) Second, Gilbert

avers that Corbett advised certain visiting employees from Hong

Kong not to stay in Cape Coral “because it’s mixed.” (Doc. #31-1

at p. 14.)

Setting aside that Corbett denies making either statement,

“only the most blatant remarks, whose intent could mean nothing

other than to discriminate on the basis of some impermissible

factor constitute direct evidence of discrimination.” Melton, 166

F.4th at 913 (quoting Jefferson, 891 F.3d at 922). Here, Corbett’s

purported racist remarks were neither addressed to Gilbert nor

applicable to “White Cuban females,” the protected class with which

1

Gilbert identifies. Gilbert testified during her deposition that

1

Although Gilbert’s Complaint specifies that she is a “Cuban White

Hispanic Female” (see Doc. #8 at ¶ 8), in her Response to Chico’s

she “could not recall” any examples of Chico’s discriminating

against her because of her national origin. (Doc. #31-1 at p. 172.)

Thus, the Court finds that Corbett’s remarks are not direct

evidence of discrimination pertaining to Gilbert’s termination

from employment with Chico’s. See Ross v. Rhodes Furniture, Inc.,

146 F.3d 1286, 1291 (11th Cir. 1998) (noting that racist remarks

not addressed to the complaining employee ordinarily do not

constitute direct evidence of intentional discrimination for Title

VII purposes); Melton, 166 F.4th at 913 (same).

Circumstantial Evidence: Of course, an employee may also rely

on circumstantial evidence to prove her claim. Generally, courts

apply the burden-shifting McDonnel Douglas framework to evaluate

claims for discrimination based on circumstantial evidence. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). If

a plaintiff can present sufficient circumstantial evidence to

state a prima facie case under McDonnel Douglas, she is entitled

to a rebuttable presumption of illicit intent. Ismael v. Roundtree,

161 F.4th 752, 764-65 (11th Cir. 2025). However, even if a

plaintiff cannot make her prima facie case under McDonnel Douglas,

that is not the end of the inquiry. Instead, “an employee may

Summary Judgment Motion she contends that counsel for Chico’s

“presume[ed] to define [her] race for her as ‘Hispanic’ when [she]

actually identifies as ‘Latino or Cuban.’” (Doc. #43 at ¶ 3).

always prove a claim of discrimination by presenting sufficient

evidence that would ‘permit[ ] a reasonable factfinder to find

that the employer [discriminated] against the employee,’ even if

they do not rely on this burden-shifting framework.” Melton, 166

F.4th at 913 (citing Berry v. Crestwood Healthcare LP, 84 F.4th

1300, 1310–11 (11th Cir. 2023)). Courts “have often called this

‘rearticulation of the summary judgment standard’ the ‘convincing

mosaic’ metaphor.” Id. (citing Tynes v. Fla. Dep't of Juv. Just.,

88 F.4th 939, 946 (11th Cir. 2023)). The Eleventh Circuit has

made clear that the “convincing mosaic” standard is merely a

helpful stand-in for the Rule 56 summary judgment standard in

employment discrimination claims, “not a legal test and not a

framework.” Id. (quoting Berry, 84 F.4th at 1311.)

When proceeding under McDonnell Douglas, a plaintiff bears

the initial burden of establishing a prima facie case of

discrimination by showing “(1) that she belongs to a protected

class, (2) that she was subjected to an adverse employment action,

(3) that she was qualified to perform the job in question, and (4)

that her employer treated “similarly situated” employees outside

her class more favorably.” Lewis, 918 F.3d at 1220–21 (citing

McDonnell Douglas, 411 U.S. at 802). It is not disputed that as

a Cuban white female, Gilbert belongs to a protected class. Nor

is it disputed that Chico’s institution of the PIP and ultimate

termination of Gilbert’s employment constituted adverse employment

actions. Instead, Chico’s asserts that Gilbert has failed to show

Chico’s treated similarly situated employees more favorably.

(Doc. #31 at p. 14.)

Gilbert has proffered two examples of non-Cuban employees

that she believes were treated more favorably – Candie Walker and

Chrissy Hull. Chico’s contends that neither were similarly

situated to Gilbert because they did not hold the same position.

According to Chico’s, Hull was the associate who originally

reported to Gilbert before being transferred to a manager position

with a different Chico’s brand, and Walker worked directly for the

original Chico’s brand as a manager. (Id.) Gilbert responds that,

at least as to Hull, she has met her burden to show that a similarly

situated individual outside of her protected class was treated

more favorably because Hull replaced Gilbert after Gilbert was

terminated from employment. (Doc. #43 at p. 13.)

The Court agrees with Gilbert as to Hull. A Title VII

plaintiff can prove that similarly situated employees were treated

more favorably by “showing that she was replaced by someone outside

of her protected class.” Phillips v. Legacy Cabinets, 87 F.4th

1313, 1322 n.6 (11th Cir. 2023); see also Melton, 166 F.4th at 913

(same). Here, Gilbert contends – and Chico’s does not dispute

(see Doc. #51 at p. 4) – that Hull, a white non-Cuban woman,

replaced Gilbert following her termination from Chico’s. Because

Hull is outside of Gilbert’s protected class of a white Cuban

woman, Gilbert has presented sufficient evidence to satisfy this

prong of her prima facie case under McDonnel Douglas.

Having found that Gilbert has presented sufficient evidence

to satisfy the prima facie case under McDonnel Douglas, the Court

must next consider whether Chico’s can present a legitimate, non-

discriminatory rationale for its institution of the PIP and for

Gilbert’s ultimate termination. Chico’s avers that it terminated

Gilbert’s employment because she failed to meet the requirements

of her job and her performance did not meet her supervisor’s

expectations despite (1) informal coaching, (2) a formal

performance meeting, (3) institution of the PIP, and (4) two PIP

check-in meetings. (Doc. #31 at p. 15.) These are legitimate

reasons for termination, if true and not pretextual.

To support its proffered rationale, Chico’s cites to

Gilbert’s initial PIP plan, which details several areas wherein

Gilbert had been falling short. (Doc. #31-2 at pp. 10-11.)

Chico’s also refers to the “thirty-day check in” portion of the

PIP document, wherein several more areas of struggle had been

identified. (Doc. #31-2 at p. 19.) Finally, Chico’s points to

the portion of the PIP document which documented Gilbert’s second

and final PIP check-in. Within that document, Corbett and Warder

had identified three overarching areas wherein they felt that

Gilbert continued to fall short including (1) deliverables and

follow through, (2) lack of initiative on problem solving, and (3)

attention to detail. Corbett also included specific instances

throughout March and April 2023 that she felt Gilbert fell short

of her performance goals. (Doc. #31-2 at pp. 20-22.)

Gilbert responds that she has presented sufficient

circumstantial evidence to show that these reasons were “mere

pretext,” raise a reasonable inference of intentional

discrimination, and defeat Chico’s Motion for Summary Judgment.

(Doc. #43 at pp. 11-13.) “To show pretext, a plaintiff must show

‘both that the [employer's] reason was false, and that

discrimination was the real reason’ for the adverse action.”

Ismael, 161 F.4th at 761 (quoting St. Mary's Honor Ctr. v. Hicks,

509 U.S. 502, 115 (1993)). However, showing pretext is not the

exclusive means for a plaintiff to survive summary judgment. Id.

at 762. Instead, after the defendant proffers a legitimate,

nondiscriminatory reason for the termination, the plaintiff's

“opportunity to demonstrate that the proffered reason was not the

true reason for the employment decision . . . merges with the

ultimate burden of persuading the court that she has been the

victim of intentional discrimination.” Thus, “’[s]he may succeed

. . . either directly by persuading the court that a discriminatory

reason more likely motivated the employer or indirectly by showing

that the employer's proffered explanation is unworthy of

credence.’” Id. (quoting Texas Dept. of Cmty. Affairs v. Burdine,

450 U.S. 248, 256 (1981)).

Gilbert presents several pieces of circumstantial evidence

that she believes come together to cast doubt on Chico’s proffered

rationale for her termination (Gilbert’s performance issues) and

create a triable jury issue as to her claim for national origin

discrimination, including: (1) Corbett’s discriminatory comments

about minorities (Doc. #43 at p. 13), (2) Gilbert’s “extensive

experience” in high fashion in New York City (id. at ¶ 6), (3)

that she received praise from Corbett as late as May 12, 2023,

when Corbett praised Gilbert’s “swift action and complete follow

through” on a deliverable (id. at ¶ 7), (4) the affidavit from

Sergio Duque, Director of Design for Chico’s, who described Gilbert

as professional, responsive, and on target with product needs (id.

at ¶ 8), (5) the 2.75% raise Gilbert received immediately prior to

her surgery in July 2022 (id. at ¶ 9), and (6) Corbett’s

preferential treatment of non-minorities, including Hull (id. at

¶ 31).

Viewed in a light most favorable to Gilbert, the Court finds

that the record evidence is sufficient to create a triable issue

of fact as to Gilbert’s claim for Title VII national origin

discrimination. True, Gilbert’s argument that Corbett treated

Hull more favorably based on evidence that Hull was assigned to

Chico’s “main line” of clothing while Gilbert was relegated to

“outlet,” is likely insufficient, since Gilbert herself admits

that the responsibilities for both the “outlet” Raw Materials R &

D and “mainline” Raw Materials R & D position are “similar”, and

in any event, Gilbert was switched from outlet to mainline two

months into her tenure at Chico’s. (Doc. #31-1 at pp. 45-47.)

However, Hull’s replacement of Gilbert following her termination

may allow a reasonable jury to infer that intentional

discrimination occurred. A reasonable juror could also very well

find that Corbett’s discriminatory comments suggest a bias against

minorities generally, even if the alleged comments pertained to

persons outside of Gilbert’s protected class of a white Cuban

American female. Finally, evidence – albeit from non-

decisionmakers – supporting Gilbert’s assertion that she was good

at her job may create a genuine issue of disputed material fact

and refute Chico’s proffered evidence that Corbett, Warder, and

other decisionmakers evaluated Gilbert’s job performance and found

that she did not meet the expectations of her role.

Accordingly, Chico’s has not satisfied the summary judgment

standard because Gilbert has presented sufficient evidence, even

if humble, to create a genuine material as to whether Chico’s

decisions to institute the PIP and terminate her employment were

based on her protected status as a white Cuban American female.

B. Count II (Retaliation in Violation of Title VII of the

Civil Rights Act of 1964)

In Count II, Gilbert asserts that Chico’s retaliated against

her by reprimanding her (i.e. the PIP) and terminating her

employment after she complained of disparate treatment based on

her race and national origin. (Doc. #8 at pp. 7-8.)

Title VII of the Civil Rights Act of 1964 prohibits an

employer from retaliating against an employee “because [the

employee] has opposed any practice” made unlawful by Title VII. 42

U.S.C. § 2000e-3(a). To establish a retaliation claim under Title

VII, a plaintiff must show “that she engaged in statutorily

protected conduct; she suffered an adverse employment action; and

a causal relation exists between the two events.” Berry v.

Crestwood Healthcare LP, 84 F.4th 1300, 1307 (11th Cir. 2023).

Chico’s does not contest that Gilbert engaged in statutorily

protected conduct when she complained of Title VII discrimination

based on her protected status as a white Cuban American woman.

Nor does it challenge that institution of the PIP and eventual

termination of employment constituted adverse employment actions

for purposes of her Title VII claim. Instead, Chico’s asserts

that “the undisputed record evidence shows [Gilbert’s] retaliation

fails out of the gate because she did not complain about race or

national origin discrimination until after the PIP and after

Chico’s decided to terminate her employment.” (Doc. #31 at pp.

18-19.)

To prove a causal connection, a plaintiff need only

demonstrate “that the protected activity and the adverse action

were not wholly unrelated.” Farley v. Nationwide Mut. Ins. Co.,

197 F.3d 1322, 1337 (11th Cir. 1999). This element is to be

construed broadly, and “a plaintiff satisfies this element if he

provides sufficient evidence that the decision-maker became aware

of the protected conduct, and that there was close temporal

proximity between this awareness and the adverse employment

action.” Id.

Gilbert first complained of Title VII discrimination in her

June 2, 2023 email to Warder. But the PIP was issued three months

prior in March 2023, and Corbett submitted the Associate Relations

Termination Request form to HR in May 2023, several weeks prior to

Gilbert’s June 2, 2023 email. (Id.)

Gilbert argues, however, that she has met her burden of proof

on her retaliation claim because “less than two months” elapsed

between Chico’s institution of the PIP and her June 2, 2023 email.

(Doc. #43 at p. 14.) While the timeline is correct, no retaliation

was possible because the protected activity occurred months after

the adverse action. The undisputed record evidence reflects that

the decision to institute a PIP for Gilbert occurred before Gilbert

engaged in her alleged protected activity. Thus, temporal

proximity is insufficient to show a causal connection between the

June 2, 2023, protected email and the March 2023 issuance of

Gilbert’s PIP. See Cotton v. Cracker Barrel Old Country Store,

Inc., 434 F.3d 1227, 1233 (11th Cir. 2006) (“When an employer

contemplates a given action before the harassment takes place,

temporal proximity between the action and the incident of

harassment alone will not suffice to show causation.”).

As for Chico’s decision to terminate Gilbert’s employment,

Gilbert contends that although Corbett’s Associate Relations

Termination Request Form had an initial date of May 22, 2023, its

approval by Morganelli does not contain a date. Thus, according

to Gilbert, it is not clear on this record whether Gilbert’s June

2, 2023 email came before the ultimate termination decision. (Doc.

#43 at p. 7.) But even assuming that Morganelli approved Gilbert’s

termination at some point subsequent to Gilbert’s June 2, 2023,

email, Gilbert had already been subject to the issuance of her PIP

in March 2023. “Title VII's anti-retaliation provisions do not

allow employees who are already on thin ice to insulate themselves

against termination or discipline by pre-emptively making a

discrimination complaint.” Alvarez v. Royal Atl. Devs., Inc., 610

F.3d 1253, 1270 (11th Cir. 2010). See also Swartz v.

Interventional Rehab. of S. Fla., Inc., No. 21-14137-CIV, 2022 WL

1664128, at *10 (S.D. Fla. Mar. 30, 2022) (“When an employee

engages in misconduct that triggers a process leading to his

termination, the mere fact that he subsequently engaged in a

protected activity does not establish causation.”); Buchanan v.

Delta Air Lines, Inc., 727 F. App'x 639, 642 (11th Cir. 2018)

(same).

Thus, Chico’s has established that there was no causal

connection between the adverse employment actions and any

statutorily protected activity and its Motion for Summary Judgment

as to Count II is granted.

C. Count III (Failure to Accommodate in Violation of the

Americans with Disabilities Act of 1990)

In Count III, Gilbert alleges that Chico’s violated the

Americans with Disabilities Act when it denied her first request

for reasonable work accommodations on September 6, 2022. (Doc. #8

at pp. 9-10.) In its Motion for Summary Judgment, Chico’s argues

that (1) Gilberts's failure-to-accommodate claim is time barred

because Plaintiff filed her EEOC charge more than 300 days after

she allegedly first requested accommodations, and (2) even if her

claim is not time-barred, Gilbert cannot state a prima facie claim

for failure to accommodate. (Doc. #31 at pp. 21-22.)

A claim brought pursuant to the ADA is subject to a 300-day

statute of limitation in which to file an administrative charge of

discrimination. 42 U.S.C. § 2000e-5(e)(1). The 300-day period

begins running for each discrimination claim when that claim

accrues. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 102

(2002). If a plaintiff does not present her claims to the EEOC

before the end of that period, she is barred from pursuing relief.

Id. The time at which a claim accrues depends on whether the

plaintiff has alleged a discrete violation or a continuing

violation. Id. at 111. A “discrete” retaliatory or discriminatory

act occurs “on the day that it happened.” Id. “A party, therefore,

must file a charge within . . . 300 days of the date of the act or

lose the ability to recover for it.” Id. When the nature of an

act, however, involves repeated conduct, the “unlawful employment

practice” cannot be said to have occurred on any particular day.

Thus, “the entire time period of the hostile environment may be

considered by a court for the purposes of determining liability.”

Id. at 116-117.

As Chico’s argues, it is undisputed that “the only

accommodation Chico’s denied was the request to return on September

6, 2022 with the restrictions in the August 30, 2022 doctor’s

note[,]” and Gilbert “filed her only EEOC Charge on July 26, 2023

— 329 days later.” (Doc. #31 at p. 21.) Gilbert responds that

this argument necessarily assumes that the accommodation granted

on September 8, 2022 was not discriminatory or unreasonable, and

that, in any event, Chico’s failure to grant Gilbert’s initial

accommodation request “continued up to the date of [her]

termination,” thus her failure to accommodate claim is not time-

barred. (Doc. #43 at p. 15.) In other words, Gilbert argues that

her failure to accommodate claim is a “continuing violation” that

did not accrue until the termination of her employment.

The Court agrees with Chico’s that Gilbert’s failure to

accommodate claim is time-barred. Gilbert’s claim for failure to

accommodate involves discrete acts of alleged discrimination

rather than a continuing violation. See Abram v. Fulton Cnty.

Gov't, 598 F. App'x 672, 676 (11th Cir. 2015) (holding that the

district court “correctly concluded that the continuing violations

doctrine was inapplicable” in a case where a plaintiff alleged

specific instances of the defendant's denial of her requested

accommodations); Elmenayer v. ABF Freight Sys., Inc., 318 F.3d

130, 135 (2d Cir. 2003) (same).

Gilbert’s argument that her failure to accommodate claim

includes her September 8, 2022, accommodation request does not

change the result. This request was granted by Chico’s that same

day. Gilbert does not explain how granting the September 8, 2022

accommodation request can constitute a failure to accommodate

under the ADA. Even if unreasonable, as Gilbert now suggests, it

was the accommodation she requested. The cause of action consists

of failure to make a reasonable accommodation, Beasley v. O'Reilly

Auto Parts, 69 F.4th 744, 754 (11th Cir. 2023) (explaining that

“[u]nder the ADA unlawful discrimination includes ‘not making

reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a

disability’ unless doing so ‘would impose an undue hardship’ on

the employer”), not granting a request which the employee later

believes was insufficient. In any event, the claim would also be

precluded by the 300-day time bar.

Accordingly, the Court finds that Gilbert’s failure-to-

accommodate claim is time barred and dismisses Count III from the

operative complaint (Doc. #8.)

D. Count IV (Retaliation in Violation of the Americans with

Disabilities Act of 1990)

In Count IV, Gilbert alleges that Chico’s retaliated against

her by instituting the PIP and terminating her employment after

she engaged in statutorily protected activity by requesting ADA

accommodations. (Doc. #8 at pp. 11-12.)

To establish a claim of retaliation, Gilbert must prove (1)

that she engaged in a statutorily protected activity, (2) that she

suffered a materially adverse action, and (3) that there exists a

causal relationship between the two events. Mullin v. Sec'y, U.S.

Dep't of Veterans Affairs, 162 F.4th 1296, 1315 (11th Cir. 2025)

(citing Todd v. Fayette Cnty. Sch. Dist., 998 F.3d 1203, 1219 (11th

Cir. 2021)).

As with Gilbert’s claim of retaliation under Title VII,

Chico’s does not dispute that Gilbert engaged in a statutorily

protected activity when she made her two requests for

accommodations in September 2022. Nor does Chico’s dispute that

issuance of the PIP in March 2023 and Gilbert’s termination from

employment in June 2023 constitute adverse employment actions.

(Doc. #31 at pp. 22-23.) Instead, Chico’s argues that the Court

should grant summary judgment in its favor because Gilbert has

failed to establish causation between the statutorily protected

activity and the adverse employment actions. (Id.) Gilbert

responds that the causal connection element has been met by the

“close temporal proximity” between her protected activities and

Chico’s adverse employment actions. (Doc. #43 at p. 16.)

“’The burden of causation can be met by showing close temporal

proximity between the statutorily protected activity and the

adverse employment action.’” Hitt v. CSX Transp., Inc., 116 F.4th

1309, 1317 (11th Cir. 2024) (quoting Thomas v. Cooper Lighting,

Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)). “But ‘mere temporal

proximity, without more, must be very close.’” Id. Thus, “’[a]

three-to-four-month disparity between the statutorily protected

expression and the adverse employment action is not enough’ to

establish causation from temporal proximity.” Id.

It is undisputed that more than six months passed between

Gilbert’s second request for accommodation and issuance of the

PIP, and nearly nine months passed between that same request and

Gilbert’s termination from employment. Without some other

evidence tending to show a causal connection, which is simply not

present on this record, Gilbert cannot meet her burden on the

causation element. Thus, Chico’s Motion for Summary Judgment is

granted on Count IV.

Accordingly, it is now

ORDERED:

Defendant’s Motion for Summary Judgment (Doc. #31) is GRANTED

in part and DENIED in part. Summary Judgment is granted as to

Counts II and IV in favor of Defendant Chico’s FAS Inc., and

against Daniela Gilbert, who shall take nothing as to those counts.

Count III is dismissed with prejudice. Count I remains pending.

The Clerk shall withhold entry of judgment until the conclusion of

the case.

DONE AND ORDERED at Fort Myers, Florida, this 17th day of

March 2026.

J E. STEELE

s IOR UNITED STATES DISTRICT JUDGE

Copies:

Parties of record