# Cifuentes

> District Court, M.D. Florida · July 13, 2026

URL: https://www.frixlaw.com/law-library/cases/11411136

## Case

- **Full name:** Alexander R. Cifuentes v. SID Tool Co., Inc.
- **Court:** District Court, M.D. Florida
- **Decided:** July 13, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

ALEXANDER R. CIFUENTES,

Plaintiff,

v. Case No: 6:25-cv-1651-JSS-LHP

SID TOOL CO., INC.,

Defendant.
_______________________________________/

ORDER
In this employment discrimination case, Defendant moves for partial dismissal
of the second amended complaint (Dkt. 43) pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Dkt. 51.) Specifically, Defendant moves to dismiss seven counts
from the thirteen-count pleading and requests dismissal without leave to amend. (Id.)
Plaintiff, proceeding pro se, opposes the motion. (Dkt. 59.) Upon consideration, for
the reasons outlined below, the court grants the motion in part and denies it in part.
The court dismisses the challenged counts without prejudice and permits Plaintiff to
file a third amended complaint.
FACTS1
This case arises out of Defendant’s allegedly “discriminatory and retaliatory
discipline and termination” of Plaintiff. (Dkt. 43 at 1.) Plaintiff claims that Defendant

1 The court derives the facts from the second amended complaint (Dkt. 43). See Resnick v. AvMed, Inc.,
693 F.3d 1317, 1321–22 (11th Cir. 2012).
discriminated against him because of his “Hispanic and Middle Eastern ancestry” and
his “lifelong neurodevelopmental and anxiety-related disabilities, including [attention-
deficit / hyperactivity disorder (ADHD)] and [a]utism / Asperger’s spectrum traits.”

(Id. at 20.) According to Plaintiff, Defendant also retaliated against him for reporting
and opposing such discrimination and for requesting disability accommodations in the
form of “written instructions, written process documentation, and structured
communication” and “written participation and scheduling modifications tailored to
[his] processing limitations.” (Id. at 20–21, 23.) In support of these claims, the second

amended complaint contains numerous allegations relating to Plaintiff’s employment
with Defendant. (See id. passim.) The court does not relate all the allegations but
summarizes the pertinent facts herein. That said, in ruling on the instant motion, the
court has considered the entire second amended complaint.

In October 2022, Defendant—a national distributor in the metalworking and
maintenance, repair, and operations markets—interviewed and ultimately hired
Plaintiff for the position of outside sales account executive in Orlando, Florida. (Id. at
3–4.) The position entailed “developing and managing customer accounts through
on-site visits, product consultation, quotation support, order coordination, and

customer service” and, after ten weeks of paid onboarding and training, “was primarily
commission-based.” (Id. at 4.) During the job interview, weeks before Plaintiff’s
employment began, Defendant required him to execute confidentiality and non-
competition agreements. (Id.) Plaintiff reports that he “did not receive a fully executed
copy of the . . . agreements and was not provided a version signed by a current
authorized human resources [(HR)] representative.” (Id.) Plaintiff also states: “The
onboarding documents contained inconsistent subsidiary names, outdated form
versions, and HR signatures predating Plaintiff’s interview or employment.” (Id.) On

Plaintiff’s start date, Defendant assigned him “approximately fifty accounts across
multiple counties in Central Florida.” (Id. at 6.) However, “[w]ithin approximately
seven months,” Defendant more than tripled the number of accounts assigned to
Plaintiff. (Id.) Plaintiff claims that despite his expanded territory, Defendant failed to

“upgrade [his] data servicing” and thereby “compromised [his] communication.” (Id.)
Nevertheless, “[b]etween December 2022 and April 2023, Plaintiff received multiple
written performance commendations . . . documenting successful customer
interactions, follow-through, and problem resolution.” (Id. at 8.)
In November 2022, Plaintiff purportedly discovered “that Defendant did not

maintain any written process documentation for core sales and operational functions
and that procedures were considered proprietary and learned through hands-on
training.” (Id. at 5 (quotation omitted).) In response, Plaintiff asked training personnel
for “written notes or . . . instructions . . . due to [his] processing limitations,” but this
request was denied. (Id.) Plaintiff also asked his direct supervisor, Jay Gillespie, for

“written instructions and . . . process aids.” (Id.) Gillespie reportedly declined the
request, stated that he was “an important person,” and remarked: “[P]lease do not
waste my time.” (Id.) Plaintiff claims that after he made these requests for disability
accommodation, he “experienced increased scrutiny including performance criticisms
and disciplinary pressure.” (Id.) Beginning the same month, Plaintiff states, he was
“assigned to perform approximately twenty hours per week of [v]endor-[m]anaged
[i]nventory (VMI) labor, which is typically compensated as a separate hourly

position.” (Id. at 6 (quotation omitted).) This labor was additional to Plaintiff’s sales
duties and “included unloading products, stocking bins, conducting counts and audits,
cleaning, organizing inventory, and performing physical replenishment.” (Id.)
Plaintiff claims that “VMI labor was not listed in [his] job description, [was] not

discussed during interviewing, and was not compensated separately,” as through
bonuses or hourly payments. (Id.) Plaintiff reports that he “worked more than sixty
hours per week due to combined sales, administrative, travel, and VMI obligations.”
(Id.)
GFL Environmental was one of the customers assigned to Plaintiff. (Id. at 4.)

Prior to his start date, Plaintiff was purportedly told that GFL was “a difficult account”
that “disputed orders” and “required careful handling,” as it often did not know what
it wanted or needed. (Id.) Beginning November 2022, Defendant required Plaintiff to
collaborate with Daniel Pierce, a maintenance supervisor for GFL in the Orange City
territory. (Id. at 6.) The goal of this collaboration was to “inventory and categorize

hundreds of fittings in GFL’s possession that had not originally been sold by
Defendant.” (Id.) Allegedly, Pierce “repeatedly asked Plaintiff[,] ‘[W]here are you
from?’, mispronounced Plaintiff’s surname, and substituted alternate names despite
Plaintiff requesting to be called Alex,” whereas “Pierce addressed non-Hispanic
personnel by their first names.” (Id. at 7.) According to Plaintiff, Pierce also
“repeatedly spoke negatively about” Plaintiff’s African-American predecessor, calling
him “incompetent” and asserting that he had “provided poor customer service” even
though he had worked for Defendant “for more than eight years” and, in Plaintiff’s

estimation, was “extremely professional.” (Id.) Additionally, Pierce called his own
manager a nickname to “mock[] his short stature.” (Id. at 8.) Plaintiff also heard from
a coworker that overall, personnel on site “routinely made derogatory remarks about
women in sexual and other demeaning terms.” (Id. at 7.) Plaintiff generally asserts

that the “conduct occurred weekly or biweekly for several months” on site and during
telephone calls with Pierce. (Id.)
In early 2023, Plaintiff emailed Gillespie to report that the Orange City territory
“had become unmanageable due to excessive travel, lack of hotel reimbursement, late
appointment windows, and unpaid VMI obligations.” (Id.) Despite the email,

Plaintiff’s situation did not change. (Id. at 8.) Plaintiff notes that the Orange City site
where he worked lacked ventilation such that “[d]uring multiple visits, the temperature
caused Plaintiff to sweat through his clothing and [to experience] headaches and
physical exhaustion, requiring [him] to wait before driving home due to fatigue.” (Id.)
According to Plaintiff, Defendant continued assigning him to the site despite these

conditions. (Id.)
As to his job performance, Plaintiff represents that in February 2023, his
“account activity generated approximately $60,000 on average per month in revenue
and was tracking toward approximately $800,000 in annual sales for 2023.” (Id.)
Plaintiff relatedly reports having “received over [twenty] written commendations from
coworkers, supervisors, national account managers, customer service
[representatives], and part specialists” regarding his “performance and customer
service.” (Id.) In addition, Plaintiff describes a February 2023 incident involving a

high-volume customer that threatened to stop buying from Defendant in light of
fulfillment failures. (Id. at 8–9.) With assistance, Plaintiff was able to retain the
customer’s business for Defendant. (Id.)
On March 14, 2023, Pierce reportedly “contacted Plaintiff after hours and

requested a small rush order valued at approximately $69.” (Id. at 10.) Plaintiff
“attempted to input the order” but was delayed due to a documented computer glitch.
(Id.) On March 16, 2023, Plaintiff learned that Pierce was escalating complaints about
the delayed order and blaming Plaintiff. (Id.) Pierce allegedly asked that Plaintiff be
terminated in connection with the order. (Id.) Despite the glitch, Defendant faulted

Plaintiff for the incident, and when Plaintiff sent emails attaching an alert about the
glitch, Gillespie threatened Plaintiff’s termination because, according to Gillespie, the
alert contained Defendant’s proprietary information. (Id. at 10–11.) Plaintiff states
that on March 18, 2023, Pierce “called Plaintiff at his home after hours and spoke in
a hostile and aggressive manner, huffing in anger and raising his voice while

demanding that Plaintiff accept blame.” (Id. at 11.) Plaintiff informed Gillespie about
Pierce’s conduct, including the call, suspected racial profiling, past name-calling, and
other problems that caused Plaintiff to feel unsafe working with Pierce. (Id.) Gillespie
responded by visiting Pierce at work to evaluate him. (Id.) Afterwards, Plaintiff
claims, Gillespie described himself as “a good judge of character” to Plaintiff and
advised that he had fixed the problem and that Pierce was not racist. (Id.)
In April 2023, Gillespie informed Plaintiff during a telephone call that moving

forward, Plaintiff “would be the sole contact” on site with Pierce because a coworker
had been reassigned. (Id. at 12.) Plaintiff responded that he did not feel safe returning
to the site, and Gillespie replied: “Alex, you are going up there!” (Id.) After Plaintiff
spoke with Defendant’s HR department, Defendant temporarily removed Plaintiff

from servicing the GFL facility where Pierce worked, but Defendant still required
Plaintiff to “do business at other sites with the same upper facilities’ management.”
(Id.) Plaintiff states: “Defendant did not reduce [his] exposure to GFL after [he] raised
concerns regarding racial profiling, harassment, and safety at GFL facilities.” (Id.)
Reportedly, throughout April 2023, Pierce’s supervisor “screamed at Plaintiff” not to

“mess up . . . orders” and refused to cooperate with Plaintiff. (Id. at 12–13.) Further,
between February and April 2023, a different GFL maintenance supervisor caused
multiple problems for Plaintiff. (Id. at 13.) For example, he told Plaintiff to proceed
with expensive fittings but later became upset with the price and described Plaintiff as
incompetent to a senior VMI specialist. (Id.) He also refused to provide Plaintiff with

a purchase order concerning “two large orders for screws and fittings.” (Id.)
On April 17, 2023, “during a [Microsoft] Teams meeting after working hours,”
a representative from Defendant’s HR department “contacted Plaintiff regarding the
GFL escalation.” (Id.) Plaintiff reports that “[a]t the time, [he] was working in excess
of sixty hours per week and was assisting his disabled mother with hospice care for his
grandmother.” (Id.) The HR representative “ask[ed] the same questions multiple
times, in different ways, to test consistency,” even though she knew that Plaintiff “had
difficulty processing and responding due to exhaustion and processing limitations.”

(Id.) Plaintiff had furnished a written timeline of events, but the HR representative
had not reviewed it. (Id.) After she “instructed Plaintiff to provide brief one-line
responses for her notes” because “she needed to conclude the session,” Plaintiff told
her that “he was experiencing exhaustion and needed to continue hospice duties.”

(Id.) She purportedly responded that “continuing the HR discussion was more
important than ‘dealing with a dying family member.’” (Id.) According to Plaintiff,
his mother “overheard the entire call.” (Id.) Although Plaintiff was eligible for FMLA
leave, he indicated that he did not want to take FMLA leave because doing so would
“result[] in lost commissions and customer relationships” and “would financially

disadvantage him and harm his performance metrics.” (Id. at 13–14.) Plaintiff alleges
that overall, the HR representative “conducted a structured adversarial HR
interrogation designed to provoke, fatigue, and discredit Plaintiff, while discouraging
FMLA leave, suppressing timeline documentation, and manufacturing a disciplinary
narrative of ‘aggression’ and ‘insubordination’ to support [his] termination.” (Id. at

14.)
During an April 28, 2023 Microsoft Teams meeting attended by Plaintiff,
Gillespie, and Gillespie’s supervisor, whom Plaintiff identifies only as Martz,
Defendant issued Plaintiff a corrective action notice (CAN) and a performance
improvement plan (PIP). (Id.) Plaintiff was expecting a six-month performance
review and accordingly was not expecting to receive such formal discipline at the
meeting. (Id.) The CAN focused on Plaintiff’s inquiries into Defendant’s unwritten
procedures, the February 2023 incident involving the high-volume customer, and an

unspecified statement that unidentified administrative staff had made to Gillespie
about Plaintiff’s workplace interactions. (Id. at 15.) Allegedly, although Plaintiff was
achieving his sales goals, Defendant claimed to be more focused on perceived
interpersonal deficiencies. (Id.) Plaintiff states that the CAN required him to “perform

five daily customer visits, five daily processed orders, [and] five daily Salesforce
entries” and to increase sales prospecting, and it did not “allow[] time for order entry,
unpaid VMI assignments, fixing [computer] problems with every order[,] and
addressing problems related to a broken sales process.” (Id.) The CAN also required
Plaintiff to “participate in mentoring and emotional intelligence training” and to

“complete ‘remote Salesforce training,’ which Plaintiff later learned did not exist.”
(Id.) Plaintiff indicated that he could not satisfy the CAN requirements given his VMI
obligations and the large size of his territory, but Defendant did not alter the
requirements. (Id. at 16.) At the end of the meeting, Martz told Plaintiff that “Plaintiff
reminded him of himself when he was younger” and that “he had been a ‘young, dumb

jerk’” who “needed to be fired . . . to learn how to treat people.” (Id.) According to
the second amended complaint, “[b]ased on Martz’s statements, Plaintiff reasonably
believed that termination was being framed as a disciplinary lesson rather than a
corrective process.” (Id.) The day after the meeting, Plaintiff purportedly “issued a
written rebuttal explaining that discipline following reports of racial profiling and
hostile treatment constituted retaliation.” (Id.)
Defendant set a probationary period of May to June 2023 for Plaintiff. (Id.) On
May 2, 2023, Plaintiff contracted a contagious gastrointestinal virus and was

consequently isolated in his home. (Id.) He “obtained medical documentation”
concerning his illness and “continued contacting customers and processing orders” in
isolation. (Id.) He reportedly “did not request sick leave other than for customer
visits.” (Id.) According to Plaintiff, although he had advised management of his illness

and isolation, Martz “questioned why [he] had not begun working on [the]
requirements” discussed during the April 28, 2023 meeting. (Id. at 17.) Between May
5 and 23, 2023, Plaintiff “attended required mentoring sessions with Martz.” (Id.) On
May 10, 2023, Martz allegedly “compared Plaintiff to his wife learning to drive a
manual transmission” and commented that “she was initially ‘unconsciously

incompetent’ before becoming ‘consciously competent.’” (Id.) Martz qualified this
comment: “I’m not saying you’re incompetent[. T]hat’s just the story.” (Id.) Plaintiff
states that the “additional mentoring sessions required [him] to work weekends.” (Id.)
Plaintiff further states: “During mentoring sessions, Martz reviewed Plaintiff’s emails
and questioned email length and formatting despite Plaintiff explaining that detailed

written emails were required for accommodation purposes to ensure accuracy and
protect against escalation.” (Id.) Purportedly, Martz faulted Plaintiff for formatting
mistakes that appeared in Plaintiff’s emails, even though unresolved errors in
Defendant’s computer system were in fact to blame. (Id.) In mid-May 2023, Martz
criticized Plaintiff for providing a customer with a choice of dates for a visit because
this practice focused on Plaintiff’s, rather than the customer’s, needs. (Id. at 17–18.)
However, the customer “expressed satisfaction with Plaintiff’s service” and “placed an

approximately $2,000 order with Plaintiff.” (Id.)
On May 16, 2023, Plaintiff visited a GFL facility in Tavares, Florida, to talk to
the team there and to evaluate inventory needs. (Id. at 18.) Allegedly, although
Plaintiff “confirmed an appointment three times,” no GFL employees “were present

to receive him,” and indeed, “the site supervisor that was supposed to meet [him] left
exactly when Plaintiff arrived at the facility.” (Id.) Plaintiff describes the poor
conditions at the facility:
Upon entering the facility, Plaintiff observed severe vermin infestation
and waste contamination on bins and surrounding surfaces in the area
proposed for [Defendant’s] inventory equipment, including thick
accumulations of rodent droppings, spider webs, dead flies, and live
spiders. The contaminated conditions extended to the physical parts
inventory. Plaintiff was required to handle and process inventory orders
while hazardous waste, dead insects, and vermin droppings were present
on or around the parts. Plaintiff was not provided with personal
protective equipment and was expected to complete order processing
despite the contamination. During the visit, Plaintiff worked in
unventilated warehouse spaces and experienced heat-related symptoms
including profuse sweating, headaches, and physical fatigue.

(Id. (reformatted from numbered paragraphs).) Plaintiff complained about these
conditions, and eventually, Pierce’s supervisor contacted Defendant’s management
about Plaintiff. (Id. at 18–19.) Plaintiff alleges that a representative from Defendant’s
HR department told Plaintiff that Plaintiff should have personal protective equipment
for cleaning; however, Plaintiff was not “provided such equipment, a process, or
assigned cleaning tasks for any customer.” (Id. at 18.) Plaintiff also alleges: “During
a mentoring session that same day, Martz stated that Plaintiff was ‘missing an
opportunity to sell them soap.’” (Id.) Ultimately, GFL refused to clean the facility.

(Id. at 19.) On May 23, 2023, Defendant informed Plaintiff that it had protected him
from GFL. (Id.)
On May 25, 2023, Defendant terminated Plaintiff’s employment, basing the
termination on behavior by Plaintiff that Defendant described as aggressive. (Id.)

Plaintiff notes that he serviced more than one hundred customers, none of which
described him as aggressive except for GFL. (Id.) Defendant later advised the United
States Equal Employment Opportunity Commission (EEOC) that Plaintiff was
terminated because he focused inordinately on himself and demonstrated hostility and
because Pierce’s supervisor complained about Plaintiff’s servicing of GFL’s Tavares

and Orlando facilities. (Id.) Defendant did not mention the Orange City site. (Id.)
According to Plaintiff, “Defendant did not offer reassignment, modified duties, FMLA
leave, or accommodation prior to termination,” and “Plaintiff lost his bonus for May
2023 due to [his] termination date.” (Id.) Further, Defendant asserted the
enforceability of Plaintiff’s non-competition agreement, and as a result, Plaintiff

“reasonably believed that the . . . agreement restricted [his] employment opportunities
in the industrial supply sector.” (Id. at 19–20.) Plaintiff states that in July 2023, he
“reported discrimination, retaliation, hostile work environment, disability-related
concerns, and termination circumstances” to the EEOC. (Id. at 20.) After nearly two
years, the EEOC issued Plaintiff a right-to-sue letter. (Id.; see Dkt. 43-1.)
Twice in the second amended complaint, Plaintiff compares himself to David
Lynch, an account executive for Defendant. (Dkt. 43 at 16–17.) First, when

Defendant issued the CAN and PIP to Plaintiff, Plaintiff reportedly “advised
management that no other [a]ccount [e]xecutive in the district was required to perform
the same metrics and that . . . Lynch did not use Salesforce for those metrics.” (Id. at
16.) Plaintiff alleges: “Martz responded, ‘Well[,] he will be doing it now,’ and
Gillespie told Plaintiff, ‘Don’t compare yourself to Lynch when he’s doing better than

you.’” (Id.) Plaintiff further alleges: “Previously, Lynch advised Plaintiff that he ‘turns
off his phone [at 5 P.M.] or he will go crazy.’” (Id.) Second, when Plaintiff was ill
and Martz asked him about the requirements discussed during the April 28, 2023
meeting, Plaintiff referenced Lynch’s history with the coronavirus. (Id. at 17.)

According to Plaintiff, “Lynch reported contracting [the coronavirus] multiple times
during his employment, in a period less than [two] years.” (Id.) Moreover, “on one
occasion[,] Lynch canceled a scheduled meeting with Plaintiff and Gillespie” citing
the virus “but was seen working in the field the following day.” (Id.) Nevertheless,
Gillespie did not reprimand Lynch. (Id.) The second amended complaint does not

appear to contain any information about Lynch’s disabilities, if any, or his ancestry,
race, or national origin. (See id. passim.)
PROCEDURAL HISTORY
Given the alleged misconduct described above, Plaintiff initiated this case
against MSC Industrial Supply Co. on August 27, 2025. (See Dkt. 1.) The initial
complaint asserted six counts: race and national origin discrimination under Title VII
of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17 (count one), disability

discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101–
12213 (count two), related violations of the Florida Civil Rights Act (FCRA), Fla. Stat.
§§ 760.01–760.11, 509.092 (count three), interference and retaliation under the Family
and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601–2654 (count four), wage
violations under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201–219 (count

five), and race and national origin discrimination and retaliation under 42 U.S.C.
§ 1981 (count six). (Dkt. 1 ¶¶ 59–89.) Plaintiff subsequently filed a notice regarding
Defendant’s name (Dkt. 13), which the court liberally construed as a motion to amend
the complaint by interlineation to name Defendant instead of MSC Industrial as a
party to this action. (See Dkt. 14.) The granting of the construed motion effectively

created an amended complaint. (See id.) Defendant moved to dismiss the amended
complaint under Rule 12(b)(6) on various grounds including shotgun pleading. (Dkt.
26.) The court granted the motion in part and denied it without prejudice in part.
(Dkt. 32.) The court dismissed the amended complaint without prejudice as a shotgun

pleading, identified three major pleading deficiencies, and allowed Plaintiff to file a
second amended complaint correcting the deficiencies by January 29, 2026. (Id.)
Plaintiff timely filed the second amended complaint against Defendant. (Dkt. 43.)
The second amended complaint contains thirteen counts. (Id. at 22–29.)
Counts one and eleven allege race and national origin discrimination under Title VII
and the FCRA. (Id. at 22, 27.) Counts two and twelve allege a hostile work
environment based on race and national origin under Title VII and the FCRA. (Id. at
22–23, 28.) Count three alleges retaliation under Title VII. (Id. at 23.) Count four

alleges disability discrimination and failure to accommodate under the ADA. (Id. at
23–24.) Count five alleges retaliation under the ADA. (Id. at 24.) Count six alleges
interference with FMLA rights. (Id. at 24–25.) Count seven alleges retaliation under
the FMLA. (Id. at 25.) Count eight alleges race discrimination under section 1981.

(Id.) Counts nine and ten seek declaratory judgments as to the enforceability of
Plaintiff’s non-competition agreement with Defendant and as to Defendant’s
purportedly discriminatory bases for disciplining and terminating Plaintiff. (Id. at 26–
27.) Count thirteen alleges retaliation under the FCRA. (Id. at 28–29.) In terms of
the relief requested, counts one, three, five, eleven, and thirteen seek “back pay, front

pay or reinstatement, compensatory and punitive damages,” and legal expenses. (Id.
at 22–24, 27, 29.) Count four seeks the same relief except for punitive damages. (Id.
at 24.) Counts two, eight, and twelve seek compensatory and punitive damages and
legal expenses. (Id. at 23, 25, 28.) Counts six and seven seek back pay, liquidated
damages, and legal expenses. (Id. at 25.) In addition to declaratory relief, counts nine

and ten seek “attorney[] fees where authorized,” and count nine seeks injunctive relief.
(Id. at 26–27.)
The deadline to amend the pleadings in this case expired on February 13, 2026.
(Dkt. 54 at 1.) The case management and scheduling order advises the parties that
motions to amend a pleading filed after March 5, 2026, are disfavored. (Id. at 2.)
APPLICABLE STANDARDS

In deciding a motion to dismiss for failure to state a claim, a court “accept[s]
the allegations in the complaint as true and construe[s] them in the light most favorable
to the plaintiff.” Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir. 2019). To survive a
motion to dismiss, the “factual allegations must be enough to raise a right to relief
above the speculative level.”  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). The

complaint must contain “sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 544). A claim is facially plausible if a plaintiff pleads facts that
allow a court to draw a reasonable inference that a defendant is liable for the alleged
misconduct. Id. While “detailed factual allegations” are not generally required, “[a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of actions will not do.’” Id. (quoting Twombly, 550 U.S. at 555). Generally,
when analyzing a motion to dismiss for failure to state a claim, a court considers only
the four corners of the complaint and any attachments thereto. See Turner v. Williams,
65 F.4th 564, 583 n.27 (11th Cir. 2023). Accordingly, “a plaintiff cannot amend [a]

complaint through a response to a motion to dismiss.” Gause v. Med. Bus. Consultants,
Inc., 424 F. Supp. 3d 1175, 1201 (M.D. Fla. 2019).
Although courts “give liberal construction” to pro se filings, Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir. 2007), pro se parties are still “required . . . to conform to
procedural rules,” Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002). See Cummings
v. Dep’t of Corr., 757 F.3d 1228, 1234 n.10 (11th Cir. 2014) (“The right of self-
representation does not exempt a party from compliance with relevant rules of

procedural and substantive law.” (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
1981))). The leniency with which courts treat pro se parties does not permit courts to
“serve as de facto counsel” or “rewrite an otherwise deficient pleading.” GJR Invs.,
Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998).

ANALYSIS
Defendant seeks dismissal of counts two and twelve, count five, counts six and
seven, count nine, and count ten. (Dkt. 51 at 7–18.) The court analyzes these counts
in turn. As Defendant “has chosen not to move to dismiss” the remaining counts in
the second amended complaint, the court does not address those counts. (Id. at 2 n.1.)

A. Counts Two and Twelve
Counts two and twelve allege that Defendant created a hostile work
environment for Plaintiff based on his race and national origin. (Dkt. 43 at 22–23, 28.)
Although count two proceeds under Title VII and count twelve proceeds under the
FCRA, the court examines the counts together because “[c]laims under Title VII and

the FCRA are analyzed under the same framework.” Harris v. Pub. Health Tr. of Mia.-
Dade Cnty., 82 F.4th 1296, 1300 n.2 (11th Cir. 2023); see Wilbur v. Corr. Servs. Corp., 393
F.3d 1192, 1195 & n.1 (11th Cir. 2004) (examining Title VII and FCRA hostile work
environment claims together). Plaintiffs asserting such hostile work environment
claims “must establish that [they] suffered unwelcome harassment, that it was based
on a protected characteristic, and that it was sufficiently severe or pervasive to alter the
terms and conditions of [the plaintiffs’] employment and create an abusive working

environment.” Harris, 82 F.4th at 1302 (quotation omitted). Defendant contends that
the counts fail to state hostile work environment claims because they do not adequately
allege any of these elements. (Dkt. 51 at 7–10.)
Liberally construed in Plaintiff’s favor, see Henley, 945 F.3d at 1326; Albra, 490
F.3d at 829, counts two and twelve center on Pierce’s alleged mistreatment of Plaintiff,

which seemingly affected Plaintiff’s dealings with other GFL employees, and on
Defendant’s response to the alleged mistreatment, which purportedly resulted in
discipline and termination for Plaintiff. (See Dkt. 43.) The counts plead:
During Plaintiff’s employment, Plaintiff was subjected to unwelcome
conduct based on race [and] national origin, including repeated ancestry-
based questioning, persistent mispronunciation and mocking of
Plaintiff’s name, refusal to use Plaintiff’s preferred name, and racially
charged remarks concerning the competence and service quality of a prior
African[-]American [a]ccount [e]xecutive. This conduct was directed at
Plaintiff by customer personnel and occurred repeatedly over a period of
months at multiple customer sites to which Plaintiff was assigned. The
conduct was frequent, ongoing, and objectively offensive, and it altered
the terms and conditions of Plaintiff’s employment by undermining
Plaintiff’s authority with customers, increasing hostility during required
customer interactions, and interfering with Plaintiff's ability to perform
assigned job duties in a safe and professional environment.

(Id. at 22–23, 28; see id. at 7 (asserting that Pierce “repeatedly asked Plaintiff[,]
‘[W]here are you from?’, mispronounced Plaintiff’s surname, and substituted alternate
names despite Plaintiff requesting to be called Alex,” that Pierce “addressed non-
Hispanic personnel by their first names,” and that alleged misconduct “occurred
weekly or biweekly for several months” on site and during telephone calls with
Pierce).) At the heart of the alleged harassment lie Pierce’s repeated insults about
Plaintiff and Plaintiff’s African-American predecessor. Such insults do not establish a

hostile work environment.
As to Plaintiff, “simple teasing” and “offhand comments,” Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998) (quotation omitted), do not “rise to the level of a
hostile work environment,” Zarza v. Tallahassee Hous. Auth., 686 F. App’x 747, 752

(11th Cir. 2017). As to Plaintiff’s predecessor, hearing offensive comments about
another individual “is less severe or humiliating than being the intended target of direct
harassment.” Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329, 1336 (11th Cir. 2023).
In general, “Title VII is not a civility code,” and neither is the FCRA. Reeves v. C.H.
Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en banc). “Not every

offensive comment at work qualifies as a hostile work environment.” Hall v. Haskell
Co., No. 3:21-cv-01184-HES-LLL, 2023 WL 12167865, at *2, 2023 U.S. Dist. LEXIS
249610, at *4 (M.D. Fla. May 17, 2023); see Hausberg v. Wilkie, No. 8:20-cv-2300-TPB-
JSS, 2021 WL 4133739, at *3, 2021 U.S. Dist. LEXIS 171918, at *7–8 (M.D. Fla.
Sept. 10, 2021) (“Petty office squabbles, communication issues, and ordinary

workplace tribulations are insufficient to create a hostile work environment.”
(quotation omitted) (citing Mahone v. CSX Transp., Inc., 652 F. App’x 820, 823 (11th
Cir. 2016), and Baroudi v. Sec’y, Dep’t of Veterans Affs., 616 F. App’x 899, 905 (11th Cir.
2015))). Consequently, the court dismisses counts two and twelve for failure to state
a claim for relief.
Defendant asks the court to dismiss the counts without leave to amend because
the counts do not plausibly plead the elements for a hostile work environment claim

and seemingly also because the counts violate Federal Rule of Civil Procedure 8(a)(2)’s
requirement of “a short and plain statement.” (See Dkt. 51 at 10.) These reasons do
not support denying leave to amend. See Reese v. Herbert, 527 F.3d 1253, 1263 (11th
Cir. 2008) (listing “undue delay,” “bad faith,” “dilatory motive,” “repeated failure to
cure deficiencies by amendments previously allowed,” “undue prejudice” resulting

from amendment, and “futility of amendment” as the six common bases for denying
leave to amend). As the court does not discern a basis for denying leave to amend, it
permits Plaintiff to replead counts two and twelve, if he can do so in good faith. See
Miles v. Carnival Corp., 767 F. Supp. 3d 1368, 1376 (S.D. Fla. 2025) (observing that

district courts generally enjoy “discretion to grant leave to amend sua sponte”). If
Plaintiff repleads, he shall keep in mind that the alleged unwelcome harassment based
on race or national origin to which he was subjected must have been “sufficiently
severe or pervasive to alter the terms and conditions of [his] employment and create a
discriminatorily abusive working environment” for him. See Mukhina v. Walmart, Inc.,

162 F.4th 1128, 1133 (11th Cir. 2025) (quotation omitted).
B. Count Five
Count five alleges that Defendant retaliated against Plaintiff for activity
protected under the ADA. (Dkt. 43 at 24.) An ADA retaliation claim has three
elements: “(1) statutorily protected expression[,] (2) adverse employment action[,] and
(3) a causal link between the protected expression and the adverse action.” Stewart v.
Happy Herman’s Cheshire Bridge, 117 F.3d 1278, 1287 (11th Cir. 1997). Defendant
maintains that count five insufficiently alleges the second and third elements. (Dkt.

51 at 10–13.)
Count five states that “Plaintiff engaged in protected activity by requesting
accommodations and opposing disability-related practices,” that Defendant
“increased performance scrutiny and imposed disciplinary action” after Plaintiff
requested disability accommodations, and that Defendant “terminated Plaintiff on

May 25, 2023, shortly after Plaintiff engaged in protected activity.” (Dkt. 43 at 24.)
By themselves, these statements are conclusory, and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678; Edwards v. Prime Inc., 602 F.3d 1276, 1301 (11th Cir.

2010). Although the count also incorporates over sixty paragraphs of factual
allegations, it does not connect these facts to the elements in any way. (See Dkt. 43 at
24.) Given that “district courts are flatly forbidden from scouring . . . complaints to
craft a potentially viable claim for a plaintiff,” Barmapov v. Amuial, 986 F.3d 1321, 1328
(11th Cir. 2021) (Tjoflat, J., concurring), the lack of connection between count five

and the facts that the count incorporates raises a serious pleading concern, see Wagner
v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279–80 (11th Cir. 2006) (“The central
problem is that the factual particularity of the first 175 paragraphs is not connected to
the otherwise generally [pleaded] claim in any meaningful way. . . . The lack of
connection between the substantive count and the factual predicates is the central
problem with each of the enumerated counts in the complaint, because courts cannot
perform their . . . function . . . . It is not that we know that the plaintiffs cannot state
a claim but rather that we do not know whether they have. This is because the

plaintiffs have not connected their facts to their claims in a manner sufficient to satisfy
[the Federal Rules of Civil Procedure].” (footnote omitted)). This pleading deficiency
warrants dismissal with leave to amend. See id. at 1280.
Defendant seeks dismissal without leave to amend due to futility. (Dkt. 51 at
12–13.) However, “[l]eave to amend would be futile if an amended [count] would still

fail at the motion-to-dismiss or summary-judgment stage,” L.S. ex rel. Hernandez v.
Peterson, 982 F.3d 1323, 1332 (11th Cir. 2020), and Defendant does not explain why
an amended count five would still fail, (see Dkt. 51 at 12–13). Defendant is correct
that a gap of five or six months between a requested accommodation and an alleged

adverse action is insufficient to establish a causal link relying on temporal proximity
alone. (See id. at 12.) See Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (deeming
a three-month gap insufficient). Nonetheless, if Plaintiff repleads, he is not required
by law to rely on temporal proximity alone, and in any event, the court cannot accept
Defendant’s invitation, (see Dkt. 51 at 10–12), to conclude that all protected activity

occurred as early as October or November 2022. (See Dkt. 43 at 13 (discussing
Plaintiff’s disability-related processing limitations in connection with his April 17,
2023 meeting with Defendant’s HR representative).) Accordingly, if Plaintiff can do
so in good faith, he may replead count five to allege with greater clarity the elements
of his ADA retaliation claim and to connect the facts incorporated into the count to
the elements.
C. Counts Six and Seven

Counts six and seven concern the FMLA. Count six alleges that Defendant
interfered with the exercise of Plaintiff’s FMLA rights by “discourag[ing] the use of
leave,” by “fail[ing] to provide required FMLA rights notices,” and by “increas[ing]
performance scrutiny and impos[ing] disciplinary action” as to Plaintiff after he
“provided notice of circumstances qualifying [him] for FMLA medical leave.” (Dkt.

43 at 24–25.) Count seven alleges that Defendant retaliated against Plaintiff for
activity protected under the FMLA when Defendant terminated him “shortly after”
he “provid[ed] notice of circumstances qualifying for leave.” (Id. at 25.) Each FMLA
count incorporates an allegation that “Plaintiff advised [Defendant’s HR department]
that he did not wish to take FMLA” leave because, as he understood matters, “taking

leave would financially disadvantage him and harm his performance metrics.” (Id. at
13, 24–25.) A plaintiff advancing an FMLA interference claim must satisfy two
elements: (1) the plaintiff was entitled to an FMLA benefit and (2) the defendant
denied the plaintiff the benefit. Ramji v. Hosp. Housekeeping Sys., LLC, 992 F.3d 1233,
1241 (11th Cir. 2021). Satisfying the first element requires “demonstrat[ing] that [the

plaintiff] sought leave for a qualifying reason and that [the plaintiff] provided notice
meeting certain criteria.” Id. at 1242. An FMLA retaliation claim, like an ADA
retaliation claim, has three elements: (1) the plaintiff “engaged in statutorily protected
conduct,” (2) the plaintiff “suffered an adverse employment action,” and (3) “a causal
connection exists between the two.” Batson v. Salvation Army, 897 F.3d 1320, 1328–29
(11th Cir. 2018). Defendant argues that Plaintiff’s FMLA counts fail because they
admit that Plaintiff informed Defendant that he did not want to take FMLA leave.
(Dkt. 51 at 13–14.) In Defendant’s view, this admission means that Plaintiff cannot

establish entitlement to an FMLA benefit for count six or conduct protected under the
FMLA for count seven. (Id.)
To prevail on either an interference claim or a retaliation claim under the
FMLA, “employees must show [that] they gave ‘appropriate notice’” to their
employer. Avena v. Imperial Salon & Spa, Inc., 740 F. App’x 679, 681 (11th Cir. 2018)

(quoting Hurley v. Kent of Naples, Inc., 746 F.3d 1161, 1167 (11th Cir. 2014)). “[The]
employee’s notice of [the] need for FMLA leave must satisfy two criteria—timing and
content—both of which differ depending on whether the need for leave is foreseeable
or unforeseeable.” White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1195 (11th

Cir. 2015). “As a general rule, [the] employee need not explicitly mention the FMLA
when giving notice to [the] employer.” Id. at 1196. However, “the FMLA and its
regulations do require that the notice convey certain information,” and “[a]gain, the
content requirement differs depending on whether [the] employee’s need for leave is
foreseeable or unforeseeable.” Id. Plaintiff does not adequately allege that he gave

Defendant proper notice. (See Dkt. 43 at 24–25.) He does not identify whether his
need for leave was foreseeable or unforeseeable and does not establish that his notice
to Defendant met the timing and content requirements imposed by the FMLA and its
implementing regulations. (See id.) Therefore, the FMLA counts fail to state claims
for relief. See Hernandez v. Vecellio Mgmt. Servs. Inc., No. 25-81097-CV-
MIDDLEBROOKS, 2025 U.S. Dist. LEXIS 216163, at *8 (S.D. Fla. Oct. 31, 2025)
(“Without alleging sufficient notice, [the p]laintiff cannot sustain a valid claim for
FMLA interference or retaliation.”); Diaz v. Robert L. Lipton, Inc., No. 0:24-cv-61577,

2024 WL 6963304, at *5, 2024 U.S. Dist. LEXIS 251657, at *15 (S.D. Fla. Dec. 20,
2024) (“Without sufficient notice, [the d]efendant had no duty to ascertain whether
[the p]laintiff, in fact, qualified for FMLA leave.” (citing Strickland v. Water Works &
Sewer Bd., 239 F.3d 1199, 1209 (11th Cir. 2001))); Libreros v. Sarasota-Manatee Jewish

Hous. Council, Inc., No. 8:23-cv-1968-CEH-LSG, 2024 WL 4933040, at *5, 2024 U.S.
Dist. LEXIS 217059, at *16 (M.D. Fla. Dec. 2, 2024) (“[T]o the extent [that the
p]laintiff alleges FMLA interference with his August 1 leave request, he fails to state a
claim because of a lack of proper notice.”); Hill v. Mia.-Dade Cnty. Sch. Bd., No. 21-
21980-CIV, 2021 WL 3173460, at *3, 2021 U.S. Dist. LEXIS 138380, at *10 (S.D. Fla.

July 26, 2021) (concluding that “FMLA interference and retaliation claims require[d]
dismissal” because “allegations [we]re insufficient to satisfy the FMLA’s notice
requirement[s]”).
Although Defendant requests the denial of leave to amend counts six and seven,
Defendant does not assert any basis for the request, let alone one of the six bases that

courts commonly recognize for denying leave to amend. See Reese, 527 F.3d at 1263.
(See Dkt. 51 at 14.) Defendant’s position on this issue is accordingly unpersuasive. See
United States v. Holley, 166 F.4th 139, 151 (11th Cir. 2026) (requiring arguments “to be
raised and developed”); United States v. Markovich, 95 F.4th 1367, 1379 (11th Cir. 2024)
(explaining that a party forfeits a position when the party “cites no legal authority to
support” the position). In light of the allegation that Plaintiff informed Defendant that
he did not want to take FMLA leave, amendment may well be futile as to the FMLA
counts. See L.S., 982 F.3d at 1332. However, given the liberal federal policy in favor

of amending pleadings, and considering Plaintiff’s pro se status, the court affords
Plaintiff an opportunity to replead the counts, if he can do so in good faith. See Woldeab
v. Dekalb Cnty. Bd. of Educ., 885 F.3d 1289, 1291 (11th Cir. 2018) (“A district court’s
discretion to deny leave to amend a complaint is severely restricted by [Federal Rule

of Civil Procedure] 15, which stresses that courts should freely give leave to amend
when justice so requires.” (quotations omitted)); Brown v. Gen. Pers. Consultants, Inc.,
No. 99-2686-CIV-T-17C, 2000 WL 782084, at *1, 2000 U.S. Dist. LEXIS 8496, at *3
(M.D. Fla. Apr. 6, 2000) (“The standard for allowing leave to amend the complaint
must be applied liberally, especially in this case. [The p]laintiff is proceeding pro se

with his claim; thus, he is held to a less demanding pleading standard than a lawyer.”).
Any amended FMLA count shall explain how Plaintiff provided Defendant with
notice in compliance with the FMLA and its regulations, particularly the timing and
content requirements for the notice. See White, 789 F.3d at 1195–96.
D. Count Nine

Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, count nine seeks
a declaratory judgment that the non-competition agreement between the parties is
unenforceable under section 542.335 of the Florida Statutes, governing restrictive
covenants. (Dkt. 43 at 26.) Count nine states that an “actual and justifiable
controversy exists” as to the agreement’s enforceability because “Defendant has
asserted and maintained that the agreement is valid and enforceable and restricts
Plaintiff’s ability to seek employment in the industrial distribution sector following
[his] termination.” (Id.) The count also states that the “controversy is ripe because

Defendant reaffirmed the enforceability of the agreement at termination, and Plaintiff
has since experienced a present and continuing chilling effect on job search efforts,
employment negotiations, and acceptance of comparable positions due to the asserted
restriction.” (Id.)
The non-competition agreement is not attached to the second amended

complaint. (See id. passim; see also Dkt. 43-1.) However, Defendant has attached the
agreement to the motion to dismiss, (see Dkt. 51-1), and asks the court to consider it as
incorporated by reference into the pleading, (see Dkt. 51 at 16–17). Regardless of
whether “a document outside the four corners of [a] complaint” is “mentioned in” or

“attached to” the complaint, the court may consider the document without converting
a motion to dismiss to a motion for summary judgment if the document is “central to
the plaintiff’s claims” and “undisputed in terms of authenticity.” Maxcess, Inc. v. Lucent
Techs., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005); see Johnson v. City of Atlanta, 107
F.4th 1292, 1300 (11th Cir. 2024) (“[W]hen resolving a motion to dismiss . . . , a court

may properly consider a document not referred to or attached to a complaint under
the incorporation-by-reference doctrine if the document is (1) central to the plaintiff’s
claims; and (2) undisputed, meaning that its authenticity is not challenged.”). Here,
the agreement is properly considered because it is central to count nine, see Batchelor v.
Wright Nat’l Flood Ins. Co., No. 4:19-cv-10079-KMM, 2019 WL 8060184, at *1 n.3,
2019 U.S. Dist. LEXIS 141079, at *2 n.3 (S.D. Fla. Aug. 19, 2019) (deeming a contract
central to a claim seeking declaratory relief as to the contract), and because Plaintiff
does not dispute the agreement’s authenticity, (see Dkt. 59 at 15). Indeed, Plaintiff

represents that he “does not dispute that the agreement . . . may be considered as a
document referenced in the complaint.” (Id.) The court thus considers the agreement.
The non-competition agreement restricts Plaintiff from competing with
Defendant “during the term of [his] employment” with Defendant and “for a period
of one . . . year following cessation of [his] employment.” (Dkt. 51-1 at 2.) Based on

this restriction, Defendant asks the court to dismiss count nine without leave to amend,
arguing that “there is no possibility of Plaintiff suffering an injury in the future” as a
result of the agreement because “the non-competition restriction has already expired.”
(Dkt. 51 at 17; see Dkt. 43 at 19 (indicating that Plaintiff’s employment with Defendant

ended on May 25, 2023, more than two years before the initiation of this case).) The
Declaratory Judgment Act requires “a case of actual controversy.” 28 U.S.C.
§ 2201(a). “In all cases arising under the Declaratory Judgment Act, the threshold
question is whether a justiciable controversy exists.” Atlanta Gas Light Co. v. Aetna Cas.
& Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995) (citation and footnote omitted). “[T]o

demonstrate . . . a case or controversy that satisfies Article III’s standing requirement
when a plaintiff is seeking declaratory relief—as opposed to . . . damages for past
harm—the plaintiff must allege facts” showing “a substantial likelihood that [the
plaintiff] will suffer injury in the future.” A&M Gerber Chiropractic LLC v. Geico Gen.
Ins. Co., 925 F.3d 1205, 1210–11 (11th Cir. 2019) (quotation omitted). Absent “a
reasonable expectation that the [complained-of] injury . . . will continue or . . . be
repeated in the future,” a plaintiff “lack[s] standing to bring an action for declaratory
relief.” Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1347–48 (11th Cir.

1999); accord A&M, 925 F.3d at 1211 (requiring a plaintiff seeking a declaratory
judgment to “assert a reasonable expectation of future injury”).
In this case, whether a controversy exists such that Plaintiff has standing to seek
declaratory relief through count nine depends on Plaintiff’s reinstatement. Counts
one, three, four, five, eleven, and thirteen of the second amended complaint list

Plaintiff’s reinstatement among the relief requested for alleged Title VII, ADA, and
FCRA violations. (Dkt. 43 at 22–24, 27–29.) See 42 U.S.C. § 2000e-5(g)(1)
(authorizing a court to rectify a Title VII violation through the injunctive remedy of
reinstatement); 42 U.S.C. § 12117(a) (incorporating Title VII’s remedies for ADA

violations in the employment context); see also Brasington v. EMC Corp., 855 So. 2d
1212, 1217 (Fla. Dist. Ct. App. 2003) (finding injunctive relief available under the
FCRA in light of the statute’s similarities to Title VII); but see Scott v. Walmart, Inc., 528
F. Supp. 3d 1267, 1276 (M.D. Fla. 2021) (observing that reinstatement is not
“provided for in the [FCRA]’s text” (citing Fla. Stat. § 760.11(5))). Of these counts,

Defendant challenges only count five. (See Dkt. 51.) Accordingly, multiple potential
avenues for Plaintiff’s reinstatement remain in the second amended complaint.
Neither Defendant’s motion nor Plaintiff’s response, however, mentions reinstatement
with respect to count nine. (See Dkts. 51, 59.) Absent reinstatement, Plaintiff lacks
standing to bring the count. See Lane v. Dep’t of Def. Missile Def. Agency, No. 5:14-cv-
02304-MHH, 2020 WL 978824, at *2–3, 2020 U.S. Dist. LEXIS 34381, at *3–4, *6
(N.D. Ala. Feb. 28, 2020) (dismissing a claim for declaratory relief based on lack of
subject matter jurisdiction when the plaintiff abandoned her request for reinstatement

during discovery, and reasoning: “Absent reinstatement, the [defendant] will not be in
a position to violate [the plaintiff]’s rights . . . in the future. As a result, [the plaintiff]
lacks standing to pursue . . . declaratory relief . . . .”); Wood v. Dixon, No. 13-00278-
KD-N, 2013 WL 6183143, at *4 n.8, 2013 U.S. Dist. LEXIS 167611, at *17 n.8 (S.D.
Ala. Nov. 5, 2013) (“Because [the plaintiff] is no longer employed by the [defendant

and] is not seeking reinstatement, . . . [the court] . . . lacks jurisdiction over her
request[] for a declaratory judgment . . . .”), report and recommendation adopted by 2013
WL 6183143, at *1, 2013 U.S. Dist. LEXIS 167612, at *1 (S.D. Ala. Nov. 26, 2013);
Abrams v. Tisch, No. 1:87-cv-2313-CAM, 1989 WL 125368, at *2, 1989 U.S. Dist.

LEXIS 15370, at *5 (N.D. Ga. Jan. 10, 1989) (“By its terms, [section] 2201 requires
that there be an actual controversy before a court can enter a declaratory judgment. In
its present posture, this suit does not constitute a case or controversy. . . . [T]he
plaintiff . . . left his employment with the [defendant]. The plaintiff does not seek
reinstatement. Consequently, . . . a declaratory judgment could [not] possibly affect

the plaintiff’s rights.”).
Although Plaintiff requests reinstatement in other counts, count nine does not
allege “a reasonable expectation of future injury” based on reinstated employment
with Defendant. See A&M, 925 F.3d at 1211. Rather, the count contemplates
Plaintiff’s future employment with another company. (See Dkt. 43 at 26 (discussing
“Plaintiff’s ability to seek employment in the industrial distribution section following
termination,” as well as “job search efforts, employment negotiations, and acceptance
of comparable positions”).) Count nine, as pleaded, thus fails because Plaintiff lacks

standing to pursue declaratory relief regarding his expired non-competition agreement
with Defendant. That said, the agreement restricts competition during Plaintiff’s
employment with Defendant and for one year thereafter, (Dkt. 51-1 at 2), and if
Plaintiff is reinstated, the agreement’s enforceability may present a justiciable
controversy. See Wood v. Dixon, No. 13-00278-KD-N, 2014 WL 1356234, at *1–4,

2014 U.S. Dist. LEXIS 47441, at *3, *5–6, *9, *12–13 (S.D. Ala. Mar. 17, 2014)
(finding subject matter jurisdiction after the plaintiff amended her complaint to seek
declaratory relief relating to her reinstatement), report and recommendation adopted by
2014 WL 1356234, at *1, 2014 U.S. Dist. LEXIS 47445, at *1 (S.D. Ala. Apr. 7, 2014).

The court therefore declines Defendant’s request to dismiss count nine without leave
to amend based on the futility of amendment, (Dkt. 51 at 17), and instead agrees with
Plaintiff that “if the [c]ourt concludes that [the count] requires more definite
allegations of present controversy or continuing injury, the proper remedy is
dismissal . . . with leave to amend,” (Dkt. 59 at 17). This outcome is appropriate due

to the federal policy favoring liberal amendment and due to Plaintiff’s pro se status.
See Woldeab, 885 F.3d at 1291; Brown, 2000 WL 782084, at *1, 2000 U.S. Dist. LEXIS
8496, at *3.
Accordingly, with regard to count nine, the court grants the motion to dismiss
in part and denies it in part. The court dismisses count nine on jurisdictional grounds
but allows Plaintiff to amend the count to correct the jurisdictional deficiency
described above provided that he can do so in good faith.
E. Count Ten

Like count nine, count ten seeks relief under the Declaratory Judgment Act, 28
U.S.C. § 2201. (Dkt. 43 at 26–27.) Specifically, count ten seeks a declaratory
judgment that Defendant violated Title VII and section 1981 when Defendant relied
on third-party discrimination to discipline and terminate Plaintiff. (Id. at 27.) In

Plaintiff’s words, the third-party discrimination took the form of “complaints and
demands from customer personnel whom Plaintiff had previously reported for race-
and ancestry-based harassment, hostile conduct, and unsafe working conditions.” (Id.)
Count ten states that an “actual and justiciable controversy exists between the parties
regarding Defendant’s reliance on customer hostility and discriminatory preference as

a basis for discipline and termination.” (Id.) The count further states: “Defendant’s
actions created uncertainty regarding Plaintiff’s legal rights and Defendant’s
obligations under federal anti-discrimination statutes, and that uncertainty continues
to affect Plaintiff’s employment prospects and contractual relationships.” (Id.) In
Defendant’s view, count ten fails for the same reason that count nine does: because

Plaintiff “no longer works for Defendant . . . , there is no possibility of Plaintiff
suffering an injury in the future.” (Dkt. 51 at 17–18.) See A&M, 925 F.3d at 1211;
Malowney, 193 F.3d at 1347–48.
The same analysis and outcome that apply to count nine apply to count ten. See
Lane, 2020 WL 978824, at *2–3, 2020 U.S. Dist. LEXIS 34381, at *3–4, *6; Wood,
2013 WL 6183143, at *4 n.8, 2013 U.S. Dist. LEXIS 167611, at *17 n.8; Abrams, 1989
WL 125368, at *2, 1989 U.S. Dist. LEXIS 15370, at *5; see also Wood, 2014 WL

1356234, at *1–4, 2014 U.S. Dist. LEXIS 47441, at *3, *5–6, *9, *12–13. Although
Plaintiff does not presently work for Defendant, he seeks reinstatement, (see Dkt. 43 at
22–24, 27–29), and although count ten, as pleaded, does not contemplate Plaintiff’s
reinstated employment with Defendant, the court does not deny Plaintiff leave to

amend based on futility, see Woldeab, 885 F.3d at 1291; Brown, 2000 WL 782084, at
*1, 2000 U.S. Dist. LEXIS 8496, at *3. Consequently, the court dismisses count ten
on jurisdictional grounds but permits Plaintiff to replead to correct the jurisdictional
deficiency provided that he can do so in good faith.
CONCLUSION

Accordingly:
1. Defendant’s motion to dismiss (Dkt. 51) is GRANTED in part and DENIED
in part as explained in this order.
2. The challenged counts, i.e., counts two, five, six, seven, nine, ten, and twelve
in the second amended complaint, (see Dkt. 43), are DISMISSED without

prejudice.
3. If Plaintiff can do so in good faith, he may file a third amended complaint aimed
at remedying the deficiencies identified in this order. Plaintiff’s deadline for
filing a third amended complaint is July 29, 2026. The court shall deem
abandoned any of the challenged counts that do not appear in a third amended
complaint filed by this deadline. Defendant’s deadline for responding to the
unchallenged counts in the second amended complaint is July 30, 2026.

4. The court advises the parties that an amended pleading entirely supersedes a
previous pleading. See TVPX ARS, Inc. v. Genworth Life & Annuity Ins. Co., 959
F.3d 1318, 1327 (11th Cir. 2020).
5. If Plaintiff files a third amended complaint, he shall comply with all of the
following directives:

a. Plaintiff may choose not to bring any or all of the challenged counts in
the third amended complaint, or he may choose to bring them all, if he
can do so in good faith after he corrects the deficiencies identified in this
order. The third amended complaint should also contain all
unchallenged counts asserted in the second amended complaint that

Plaintiff still wishes to pursue in this case. See id. However, because the
deadline for amending the pleadings in this case expired months ago, (see
Dkt. 54 at 1), Plaintiff shall not assert new claims in the third amended
complaint, unless he first satisfies Federal Rule of Civil Procedure

16(b)(4) by demonstrating “good cause” and obtaining “the [court]’s
consent,” Fed. R. Civ. P. 16(b)(4), through a motion that complies with
all applicable rules of federal procedure, including the Middle District of
Florida Local Rules.
b. The third amended complaint shall fully adhere to the typography
requirements set out in Local Rule 1.08(a). The Local Rules are available
at the court’s https://www.flmd.uscourts.gov/sites/flmd/files/flmd-
amended-local-rules-effective-november-01-2025.pdf webpage. Plaintiff
shall comply with all applicable Local Rules in this case.
c. For each challenged count, Plaintiff shall ensure that the count alleges
not only the elements but also factual allegations supporting the elements
and that the count clearly connects the elements and the facts.
d. If the third amended complaint brings a claim without correcting all
deficiencies identified in this order related to that claim or if the third
amended complaint fails to comply with any of these directives, the court
may dismiss the third amended complaint without notice to Plaintiff.
ORDERED in Orlando, Florida, on July 13, 2026.

Ae io
ye S. SNEED =
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of Record
Unrepresented Parties

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11411136. Public record. Not legal advice.