UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 20-21843-CIV-MGC

GINETTE LUXAMA,

Plaintiff,

vs.

CITY OF MIAMI BEACH,

Defendant.

___________________________________/

DEFENDANT CITY OF MIAMI BEACH’S 

REPLY IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S 

COMPLAINT AND ACCOMPANYING MEMORANDUM OF LAW

Defendant City of Miami Beach (“the City”) replies in support of its Motion to 

Dismiss Plaintiff Ginette Luxama’s (“Plaintiff” or “Luxama”) Complaint (ECF No. 

1)(“C.”) for failure to state a cause of action (ECF No. 11)(“M.”) for sex discrimination 

under either Title VII of the Civil Rights Act of 1964 (“Title VII”)(Count I) or the Florida 

Civil Rights Act (“FCRA”)(Count II). 

MEMORANDUM OF LAW

I. Plaintiff has not adequately alleged termination due to sex discrimination.

Contrary to Plaintiff argument in her Response to the City’s Motion to Dismiss 

(ECF No. 13)(“R.”), she has not sufficiently alleged any facts that would support a claim 

for sex discrimination arising out of her termination. The City cited caselaw in its Motion 

standing for the well-known proposition that, in order to state a prima facie case of 

discrimination arising from termination, Plaintiff must allege that she was replaced by 

someone from outside her protected class. See M. n.3, citing Williams v. AT&T Mobility 

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Servs. LLC, 847 F.3d 384, 395 (6th Cir. 2017); Nix v. WLCY Radio/Rahall Commc’ns, 738 

F.2d 1181, 1185 (11th Cir. 1984).

In response, Plaintiff points to less typical ways to show discriminatory 

termination, such as that the position remained open after she was terminated or that 

similarly situated men were treated more favorably than her in that men were not 

terminated for the same conduct. R. pp. 8-10. These are accurate statements of the law, but 

the problem for Plaintiff is that she has not alleged either of these alternative theories in 

her Complaint. Plaintiff does not allege, even in conclusory fashion, that her position 

remained open after her termination. She certainly does not allege any facts that would 

support this theory. Similarly, though Plaintiff does allege in a wholly conclusory fashion 

that similarly situated men were treated more favorably than Plaintiff (C. ¶ 24), she does 

not allege a single fact that would support this theory. 

Plaintiff cites caselaw stating that “the purpose of Rule 8(a)(2)’s pleading 

requirements is to ensure [only] that defendants receive fair notice of what the claim is and 

on what grounds it is made.” See Palm Beach Golf Center–Boca, Inc. v. John G. Sarris, 

D.D.S., P.A., 781 F.3d 1245, 1260 (11th Cir. 2015). However, Plaintiff has not even met 

this minimal pleading requirement. Although Plaintiff stakes her claim on the bare 

allegation that similarly situated men were treated more favorably than her, she offers 

neither any clue as to which similarly situated men were treated better nor how these 

putatively favored men were treated better. Were men allowed to keep their jobs when they 

failed to perform their job duties and Plaintiff was not? Plaintiff does not even allege why 

she was (according to the City) terminated, let alone allege any facts regarding any men 

treated better under similar facts. Or, as we argued in our Motion, was the different 

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treatment she may have meant that men were allowed to wear clothing to work that needed 

to be adjusted to cover the breasts and buttocks and to bend over at work, exacerbating the 

problem, where the Plaintiff was not? That possible explanation cannot save Plaintiff here 

because she does not allege that she was terminated for wearing clothing to work that may 

have been inappropriate for the workplace. The City and the Court are simply left to guess 

and to fill in this blank from the void of Plaintiff’s Complaint, which is precisely the type 

of pleading that the U.S. Supreme Court firmly rejected in Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 

662, 678-79, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009):

To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to state a claim to relief that is plausible on its face. 

A claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.

In sum, Plaintiff has not alleged any facts to support a claim that she was replaced 

by a man following her termination, that her position remained open and unfilled following 

her termination, that men were not terminated for similar incompetence for which Plaintiff 

was terminated, or, indeed, any fact that would support any theory that she was terminated 

based upon her gender.

II. Plaintiff has not alleged unlawful harassment based upon her sex.

As set forth in the City’s Motion, Plaintiff can allege actionable same-sex sexual 

harassment based on one of three theories: (1) the alleged perpetrator’s behavior is 

motivated by actual homosexual desire for the plaintiff (such as where a homosexual 

supervisor is attracted to a same-sex subordinate and makes unwanted sexual propositions 

and comments); (2) “the harassment is framed in such sex-specific and derogatory terms . 

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. . as to make it clear that the harasser is motivated by general hostility toward members of 

the same [sex] in the workplace” (such as where a female supervisor communicates that 

women should not be employed in certain positions within the company because they are 

women); or (3) where the plaintiff offers “direct comparative evidence about how the 

alleged harasser treated members of both sexes in a mixed-sex workplace” (such as where 

evidence exists that a male supervisor consistently treated men worse than women).

Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove 

that the conduct at issue was not merely tinged with offensive sexual connotations but 

actually constituted “discrimination . . . . because of . .. sex.” Oncale v. Sundowner 

Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998).

Plaintiff confirmed in her Response that she is proceeding on the third theory: that 

Allison Williams treated men in the workplace more favorably than women. R. p. 6. Just 

as importantly, Plaintiff does not allege that Allison Williams is a homosexual or was 

propositioning Plaintiff for sex, or that William’s alleged comments were “motivated by a 

general hostility toward members of the same [sex] in the workplace.” Id. Her strategy has 

a few separate and important consequences. 

First, Plaintiff’s argument that the recent U.S. Supreme Court decision in Bostock 

v. Clayton County, Ga., 17-1618, --- U.S. ---, --- S.Ct. ---, 2020 WL 3146686 (U.S. June

15, 2020), holding that Title VII protects gay and transgender employees from 

discrimination and harassment in the workplace, somehow changes this analysis, is wrong. 

Plaintiff does not allege that she is gay or transgender, so that decision has no applicability 

to a case like this where two heterosexual women are alleged to be the harasser and the 

victim.

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Second, though the Plaintiff takes umbrage at the City’s harassment argument, 

going so far as to call it “slut shaming,” the Plaintiff’s outrage makes no sense. The City 

merely cut and pasted the allegations of Plaintiff’s Complaint and framed them in a fashion 

that is the only one the Complaint allows: Plaintiff wore clothing that did not cover her 

breasts and buttocks, she bent over in the workplace in a sexually suggestive way, and 

Allison Williams made comments about it and adjusted Plaintiff’s clothes so that they 

covered her breast and buttocks. C. 17. In the absence of any facts to suggest that men were 

treated differently, this is not sexual harassment – it is prevention of sexual harassment by 

the Plaintiff and the execution of a supervisor’s duty to do so. 29 C.F.R. § 1604.11(d).

Moreover, none of the partial text messages that were attached to Plaintiff’s 

Complaint can support a claim for actionable harassment because, when the full version is 

reviewed, it is clear that none of the messages treat men more favorably than women, none 

of them were objectively or subjectively hostile, and none of them were unwelcome to 

Plaintiff.1

Plaintiff argues that because some of the messages were complimentary that this 

somehow calls into question Ms. Williams motives in allegedly verbally commenting on 

Plaintiff’s inappropriate dress or allegedly “[a]djusting Plaintiff’s dresses and outfits, 

including adjusting areas of clothing covering Plaintiff’s breasts and buttocks.” C. 17(b). 

However, in the absence of any allegation that Ms. Williams was a lesbian or 

1 Plaintiff demonstrates a remarkable level of chutzpah when she faults the City for attaching the complete 

individual text message chain between Plaintiff and Ms. Williams. R. 12-14. Plaintiff shamelessly attached 

incomplete and out-of-context text conversations that gave a completely inaccurate picture of the texts’ 

content and meaning. There is no reason at all that the Court should not consider the full content of the 

messages, as argued in the City’s Motion, when the Plaintiff attached an inaccurate and incomplete version

to her Complaint. If the Court agrees with Plaintiff that it should not consider the full nonremarkable nine 

year text history between Plaintiff and Williams, it may at least consider the full version of the texts 

reproduced in Plaintiff’s Complaint. That is all that is necessary to support the City’s argument.

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propositioning Plaintiff for homosexual sex, and in the absence of any factual allegation 

demonstrating hostility to women in the workplace or facts demonstrating more permissive 

treatment of men in the workplace, Ms. Williams’ friendly texts to Plaintiff are nothing 

more than what they appear to be: one friend complimenting another.

The remaining comments allegedly made by Ms. Williams that Plaintiff points to 

as “damning conduct” in an attempt to conjure up an actionable claim fail to do so. For 

instance, Plaintiff alleges a few isolated comments and jokes that might be relevant in an 

opposite-sex harassment case or a case involving lesbian sexual propositions, but that are 

entirely irrelevant in the posture of Plaintiff’s claim that Williams treated men better than 

women. Not all workplace conduct of a harassing nature is actionable under Title VII. 

Oncale, 523 U.S. at 75 (Title VII is not intended to be a “general civility code”). The 

sparsity of the number of comments also defeats a claim based upon them. For instance, 

Plaintiff alleged that her Williams stated, “[i]f I looked like you, I would not work. I would 

just let a man fuck me and suck his dick.” C. 17(e)(v). If true, that comment may be rude 

and obnoxious, but one (or a few) isolated off-color joke(s) is not actionable under Title 

VII or the Florida Civil Rights Act. This is especially true when the joke is between two

heterosexual women. Simple teasing, offhand comments and isolated incidents do not rise 

to the level of actionable discrimination. Faragher v. City of Boca Raton, 524 U.S. 775, 

786 (1998).

Finally, Plaintiff’s allegation that Williams informed Plaintiff that she would lose 

any lawsuit she brought because Williams had been keeping records (presumably of 

Plaintiff’s shortcomings) is not gender discriminatory at all. The alleged comment is simply 

a statement of fact, apparently made in response to Plaintiff’s threat to bring this baseless 

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lawsuit. 

CONCLUSION

Plaintiff is trying to fit a square peg into a round hole in her attempt to construct a 

viable cause of action under Title VII or the FCRA, where none exists. The motion to 

dismiss should be granted.

RAUL J. AGUILA, CITY ATTORNEY

CITY OF MIAMI BEACH

1700 CONVENTION CENTER DRIVE

4TH FLOOR-LEGAL DEPARTMENT

MIAMI BEACH, FLORIDA 33139

TEL: (305) 673-7470

FAX: (305) 673-7002

Robertrosenwald@miamibeachfl.gov

BY: /s/ Robert F. Rosenwald, Jr.

ROBERT F. ROSENWALD, JR.

First Assistant City Attorney

 FL BAR NO. 0190039

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