UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

CASE NO. 20-CV-80816-Middlebrooks/Brannon

NIKOL HAVRANEK,

Plaintiff,

v.

UNIVERSITY OF FLORIDA

BOARD OF TRUSTEES,

Defendant.

___________________________/

DEFENDANT UNIVERSITY OF FLORIDA UNIVERSITY BOARD OF TRUSTEES’

MOTION TO DISMISS PLAINTIFF’S COMPLAINT 

Defendant UNIVERSITY OF FLORIDA BOARD OF TRUSTEES (hereinafter 

“UF”), by and through undersigned counsel and pursuant to Fed. R. Civ. P. 12(b)(6) and 

Southern District Local Rule 7.1, hereby serves its Motion to Dismiss Plaintiff’s Complaint, 

with the incorporated Memorandum of Law, and requests this Court to dismiss Plaintiff’s 

Complaint with prejudice, and in support thereof, states as follows: 

1. This suit arises from allegations of violations of Title VII of the Civil Rights 

Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq (hereinafter “Title VII”). The suit 

additionally alleges violations of the Florida Civil Rights Act of 1992 (hereinafter “FCRA”); 

the Florida Worker’s Compensation Law (hereinafter “FWC”); and the Florida Public 

Whistleblower’s Act (hereinafter “FPWA”). The claims related to FCRA, FWC, and FPWA 

are collectively referred to as the “State law claims.”

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2. UF moves to dismiss the State law claims found in Counts I, II, IV, V, and 

VIII based on Eleventh Amendment immunity which bars such claims. 

3. UF further moves to dismiss the remaining counts of Plaintiff’s Complaint 

based on the failure to allege a prima facie case of gender discrimination (Count III), 

retaliation (Count VI), or hostile work environment (Count VII) based on gender under 

Title VII. 

MEMORANDUM OF LAW

I. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a court shall grant a motion to 

dismiss where the factual allegations of the complaint cannot support the asserted cause 

of action. Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (per curiam). 

“Factual allegations must be enough to raise a right to relief above the speculative level . 

. .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The case allegations must give 

a defendant fair notice of the plaintiff's claims and the grounds upon which they rest. Id. 

Thus, a 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 570). Where the well-pleaded facts do not permit the court 

to infer more than the mere possibility of misconduct, the complaint has alleged—but it 

has not 'shown'—'that the pleader is entitled to relief.'" Iqbal, 129 S. Ct. at 1950 (quoting 

Fed. R. Civ. P. 8(a)(2)) (other citations omitted).

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Although a complaint must be liberally construed, assuming the facts alleged 

therein as true and drawing all reasonable inferences from those facts in the plaintiff's 

favor, Id., a plaintiff must provide "more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do." Id. at 555; See also May v. Am. 

Cast Iron Pipe Co., 2014 U.S. Dist. LEXIS 34177 (N.D. Ala. Mar. 16, 2014) citing Clemons 

v. Crawford, 585 F.3d 1119 (8th Cir. Mo. 2009).

II. Plaintiff's State Law Claims Are Barred as a Matter of Law by UF’s 

Eleventh Amendment Immunity

Counts I, II, IV, V, and VIII of Plaintiff’s Complaint allege State law claims which 

must be dismissed based upon UF’s Eleventh Amendment immunity, as this Court does 

not have jurisdiction over these claims. The United States Supreme Court has 

"consistently held that an unconsenting State is immune from suits brought in federal 

courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 

415 U.S. 651, 662-63 (1974); see also, Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 

72 (1996). Absent waiver, neither a State nor agencies acting under its control may "be 

subject to suit in federal court." Welch v. Texas Dept. of Highways and Public Transp., 

483 U.S. 468, 480 (1987) (plurality opinion). 

It is undisputed that UF is an agency or instrumentality of the State of Florida for 

Eleventh Amendment immunity purposes. See Beaulieu v. Bd. of Trs. of Univ. of W Fla., 

No. 3:07cv30/RV/EMT, 2007 WL 2900332, at *1 (N.D. Fla. Oct. 2, 2007); see also, Fla. 

Stat. § 1000.21(6)(a) (2019); Fla. Stat. § 1001.72(2) (2019) (Each university board of 

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trustees shall be a public body corporate "constituted as a public instrumentality"); Fla. 

Stat. § 768.28(2) (2019) ("state agencies or subdivisions" for purposes of sovereign 

immunity includes state university boards of trustees). While the State of Florida has 

waived its sovereign immunity to certain tort actions in state court pursuant to Fla. Stat.

§ 768.28(1) (2019), that limited waiver of immunity does not apply to lawsuits in federal 

court, nor does it waive Eleventh Amendment immunity. Beaulieu, 2007 WL 2900332, at 

*1. 

In Haynes v. Department of Ins., 1997 U.S. Dist. LEXIS 22038 (S.D. Fla. Dec. 3, 

1997), the court examined whether a claim brought in federal court under the Florida Civil 

Rights Act was barred by State’s Eleventh Amendment immunity. In its opinion, the court 

agreed with other district courts which have found that there is no Eleventh Amendment 

immunity in respect to any Title VII claims as Congress intended to abrogate the Eleventh 

Amendment immunity of states for actions under Title VII. Id. citing to Brogdon v. 

Alabama Department of Economic and Community Affairs, 864 F. Supp. 1161 (M.D. Al. 

1994). However, the court further opined that “the same is not true regarding any claims 

made against the State of Florida, or one of its agencies, under the Florida Civil Rights 

Act.” Haynes at 7. Ultimately, the court found that, absent a specific waiver of sovereign 

immunity by the State of Florida to consent to be sued in Federal Courts under the Florida 

Civil Rights Act, the Eleventh Amendment immunity applied. Id.; See also Yeary v. State 

of Florida Department of Corrections, 1997 U.S. Dist. LEXIS 8839 (M.D. Fla. 1997).

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In the instant case, Plaintiff, a private citizen, asserts State law claims against UF

and alleges that the court has jurisdiction to hear the state law claims under § 760.10, the 

Florida Civil Rights Act, pursuant to the court's supplemental jurisdiction provided in 28 

U.S.C. § 1367. [D.E. 1, Page 1, ¶ 2]. 

Simply put, this court does not have jurisdiction to hear the State law claims and 

these claims must be dismissed as a matter of law. UF has not waived its Eleventh 

Amendment immunity from being sued for state law claims in Federal Court, and because 

Plaintiff’s State law claims do not arise under any Federal Law purporting to abrogate 

UF’s Eleventh Amendment immunity, this Court lacks jurisdiction to entertain those 

claims. As such, the State law claims, Counts I, II, IV, V, and VIII of Plaintiff’s Complaint 

should be dismissed. 

III. Plaintiff Fails to Allege a Prima Facie Case of Gender Discrimination

or Retaliation or Hostile Work Environment based on same

The remainder of Plaintiff’s Complaint, Counts III, VI, and VII, allege sex 

discrimination against UF in violation of Title VII of the Civil Rights Act of 1964 (Count III) 

and retaliation (Count VI) and hostile work environment (Count VII) based on same. All 

such claims fail to sufficiently allege claims for sex discrimination and/or impermissibly 

rely upon an untimely, discrete alleged adverse employment action which occurred over 

300 days prior to Plaintiff’s filing of a charge of discrimination.

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A. Plaintiff’s burden, generally

Title VII prohibits employment discrimination on the basis of gender. 42 U.S.C. § 

2000e-2(a). To establish a prima facie case of disparate treatment, a female plaintiff must 

show that her employer treated similarly situated male employees differently. Maniccia 

v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). A plaintiff pursuing a claim under Title 

VII can establish her employer’s discrimination with either direct or circumstantial 

evidence. See Green v. Sch. Bd. of Hillsborough Cnty., Fla., 25 F.3d 974, 978 (11th Cir. 

1994). Direct evidence “reflects a discriminatory or retaliatory attitude correlating to the 

discrimination or retaliation complained of by the employee.” Van Voorhis v. Hillsborough 

Cnty. Bd. of Cnty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008). “Only the most blatant 

remarks, whose intent could be nothing other than to discriminate on the [relevant 

protected] basis . . . constitute direct evidence of discrimination.” Id. (alteration and 

internal quotation marks omitted).

To establish intentional discrimination based on circumstantial evidence, as the 

Plaintiff in the case at bar is attempting to do, a court must analyze the claim under the 

McDonnell Douglas burden shifting framework, which sets forth a three-step framework 

for analyzing discrimination claims as follows: (i) the plaintiff bears the initial burden of 

establishing a prima facie case of discrimination; (ii) if the plaintiff establishes a prima 

facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory 

basis for its actions; and (iii) assuming the defendant meets its burden, the burden shifts 

back to the plaintiff to prove that the reasons proffered by the defendant were merely 

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pretextual. See Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013); 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).

Under this framework, a plaintiff must first set out a prima facie showing of 

discrimination. Kidd at 1202. First, a plaintiff must establish a prima facie case of 

discrimination by demonstrating that (i) she is a member of a protected class; (ii) she was 

qualified for the job; (iii) she suffered an adverse employment action; and (iv) a similarly 

situated individual outside her protected class was treated more favorably. Crawford v. 

Carroll, 529 F.3d 961, 970 (11th Cir. 2008). An adverse employment action is not only 

an element of the prima facie case, but an element of the claim itself. Holland v. Gee, 

677 F.3d 1047, 1056 (11th Cir. 2012). An adverse employment action is “a serious and 

material change in the terms, conditions, or privileges of employment.” Id. Generally, an 

adverse employment action requires a significant change in employment status, such as 

hiring, firing, failing to promote, reassignment with significantly different responsibilities, 

or a decision causing a significant change in benefits. Davis v. Town of Lake Park, Fla., 

245 F.3d 1232, 1239 (11th Cir. 2001). The employee’s subjective view of the significance 

and adversity of the employer’s action is not controlling. Kidd, 731 F.3d at 1204. Rather, 

the employment action must be materially adverse as viewed by a reasonable person 

under the same circumstances. Id. “[N]ot all conduct by an employer negatively affecting 

an employee constitutes adverse employment action.” Davis, 245 F.3d at 1238. Title VII 

is neither a general civility code nor a statute making actionable the ordinary tribulations 

of the workplace. Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1234 

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(11th Cir. 2006). Further, Title VII was not designed to make federal courts second-guess 

the business judgment of employers. Davis, 245 F.3d at 1244. Work assignment claims,

absent unusual circumstances, typically do not constitute adverse employment actions. 

Id. at 1244-45. 

Additionally, to properly plead a prima facie case of retaliation in a Title VII claim, 

a plaintiff must sufficient plead three elements: first, the plaintiff engaged in statutorily 

protected conduct; second, the plaintiff suffered an adverse employment action; and 

finally, the adverse action was causally related to the protected expression. Goldsmith v. 

City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993)). To establish that causal 

connection, a plaintiff must show that the decision-makers were aware of the protected 

conduct, and that the protected activity and the adverse act were at least somewhat 

related and in close temporal proximity. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 

1322, 1336. 

Moreover, to establish a hostile work environment claim under Title VII, a plaintiff

must show that (1) she belongs to a protected group; (2) she has been subjected to

unwanted harassment; (3) the harassment was based on her membership in the

protected group; (4) the harassment was severe or pervasive enough to alter the terms

and conditions of her employment; and (5) the employer may be held liable under either

a theory of vicarious or of direct liability. Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir.

2009).

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B. Timeliness of claim

Pursuant to 42 U.S.C.S § 2000e, a plaintiff must timely file a charge of 

discrimination with the EEOC within 180 days, or 300 days if also filed with a state or local 

agency. Generally, a plaintiff can attempt to make allegations beyond this time bar by 

arguing that the alleged violation of employment law continued from a point beyond the 

300-day cut-off to a point in time safely within said period. 

However, the continuing violation theory is not applicable to discrete acts of 

discrimination. McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir. 2008). Discrete acts 

are not actionable when time-barred because such discrete acts like termination, failure 

to promote, denial of transfer, or refusal to hire are easy to identify and constitute a 

separate unlawful employment practice. National Railroad Passenger Corp. v. Morgan, 

536 U.S. 101, 110-14, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002); Gowski v. Peake, 682 

F.3d 1299,1312-13 (11th Cir. 2012); Freeman v. City of Riverdale, 330 F. App'x 863, 866 

(11th Cir. 2009) (categorizing termination, assignment of janitorial tasks, and denial of 

request for training as discrete acts); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 

955, 970 (11th Cir. 2008) (recognizing that hiring decisions and work assignments 

constituted discrete acts); Meidling v. Walgreen Co., No. 8:12-CV-2268-T-30TBM, 2014 

U.S. Dist. LEXIS 80880, 2014 WL 2700742, at *4 (M.D. Fla. June 13, 2014) (concluding 

that involuntary transfer was a discrete act of discrimination and continuing 

violation theory could not rescue transfer claim). Holland v. Sebelius, 51 F. Supp. 3d 

1357, 1376, 2014 U.S. Dist. LEXIS 138847, *45. 

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C. Plaintiff’s allegations, even taken as true, do not rise to the level of 

an adverse employment action

Plaintiff’s Complaint is rife with allegations that are conclusory and/or no more than 

the “ordinary tribulations” of the workplace that are not actionable under Title VII. 

Plaintiff’s allegations made against Dr. Odero are the only ones in which Plaintiff even 

attempts to make allegations with sufficient specificity. However, these allegations are 

still impermissibly vague and/or are commonplace and represent little more than the 

“ordinary tribulations” of the workplace. 

Specifically, the impermissibly vague allegations against Dr. Odero include his a) 

allegedly becoming “visually irritated” with Plaintiff [D.E. 1, Page 11, ¶52]; b) allegedly 

removing Plaintiff’s undefined “office privileges” [D.E. 1, Page 13, ¶58h]; c) allegedly 

requiring Plaintiff to sign some sort of “falsified document” despite the fact that this 

allegation appears nowhere else in the Complaint and fails to state how Plaintiff was 

“forced” into same [D.E. 1, Page 13 ¶58d]; and d) allegedly failing to recommend Plaintiff 

for a nebulous “promotion” for which Plaintiff fails to set forth any allegation as to whether 

she was qualified to receive same or when same occurred to establish that same occurred 

within the 300 days of the filing of her charge [D.E. 1, Page 14 ¶58j]. 

Even more vague is Plaintiff’s allegation that she had “always” experienced “some 

level of gender discrimination...” while employed at UF, which is emblematic of the lack 

of necessary specificity in the Complaint [D.E. 1, Page 4, ¶18]. Additionally, she generally 

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alleges she was held to a “different standard” employment-wise than male counterparts 

and was “belittled,” but gives little to no specifics as to same [D.E. 1, Page 5, ¶22].

Plaintiff’s conclusory, non-specific allegations as to her treatment versus others, 

generally, is insufficient, as her Complaint fails to allege sufficient facts that gender was 

the reason for Plaintiff’s alleged adverse employment action. Davis, 516 F.3d at 974.

D. Plaintiff’s allegations relate to ordinary workplace tribulations

Moreover, the remaining allegations set forth by Plaintiff relate to commonplace 

“ordinary tribulations” of the workplace which cannot form the basis of an adverse 

employment action. These include Plaintiff’s alleged a) work location and access [D.E. 

1, Page 13, ¶58a and b]; b) lack of inclusion in certain meetings [D.E. 1, Page 13 ¶58c]; 

and c) work assignments and timing of same [D.E. 1, Page 13 ¶58e, f, and g]. Even if 

this Court deemed any of these allegations to be sufficiently specific to allow for a 

response from UF, any potentially surviving allegations surely do not reach the level of a 

significant change in employment status as is required by law. 

E. Plaintiff’s allegations fail to allege necessary causal connection

In addition to Plaintiff’s failure to make timely and specific allegations, just as telling 

is Plaintiff’s failure to allege any facts linking gender to the alleged discrimination. This 

pleading deficiency is particularly fatal to Count VI (Retaliation), a cause of action already 

on tenuous ground since Plaintiff cannot establish a prima facie case as to gender 

discrimination, which, in and of itself, would be fatal to the corresponding claim for 

retaliation. However, for retaliation, Plaintiff must also show that UF was aware of the 

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protected conduct of Plaintiff making gender discrimination complaints. Logic dictates 

that UF could not have “retaliated” against Plaintiff based on her alleged complaints of 

gender discrimination if Plaintiff never specifically alleged gender discrimination prior to 

the alleged retaliation. Plaintiff’s subjective view of what these prior complaints meant to 

her are irrelevant to this issue and cannot be used to satisfy the necessity for a causal 

connection. 

Plaintiff’s Complaint specifically identifies one event which Plaintiff claims led to 

the alleged retaliation -- a March 6, 2018 letter written by Plaintiff to Dr. Greg Nuessly, the 

Director of UF’s Everglades Research and Education Center, where Plaintiff worked [D.E. 

1, Page 6, ¶26]. Plaintiff fails to attach this letter to the Complaint, but even her attempted 

recitation of the facts shows absolutely no reference to gender or disparate treatment 

whatsoever, instead referencing more workplace tribulations [D.E. 1, Page 5-6, ¶25]. 

Therefore, in addition to the other shortcomings referenced herein, because 

Plaintiff has not shown a causal connection between any protected activity and an 

adverse employment action, she has not established a prima facie case of retaliation and 

her claim for same must be dismissed. 

F. Plaintiff’s Claims are Untimely

Moreover, Plaintiff did not file her Charge of Discrimination with the EEOC until 

May 14, 2019. Because she also filed a charge with a local agency, she is afforded a 

300-day period within which to make such a charge. As such, Plaintiff’s 300-day time 

period stretches back to just July 18, 2018. Despite same, Plaintiff’s entire Complaint 

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impermissibly relies on allegations which pre-date this actionable time period [D.E. 1, 

Page 4, ¶14 – Page 8, ¶35]. For any cause of action that relies on allegations which 

occurred prior to July 18, 2018, and does not allege a continuing violation, this Court 

should dismiss same.

While Plaintiff will undoubtedly attempt to argue the continuing violation theory, 

same cannot be argued as to Count VI, Retaliation, as the alleged adverse employment 

action which forms the basis of this Count is the alleged “10% decrease in her pay” [D.E. 

1, Page 25, ¶142] which undisputedly occurred “on or about March 27, 2018” [D.E. 1, 

Page 6, ¶26], or nearly 14 months prior to filing of the Charge, well in excess of 300 days. 

This employment action is a discrete act which occurred approximately 413 days prior to 

the filing of the charge in question, thus making same untimely. 

Other Courts have found similar actions such as termination, failure to promote, 

denial of transfer, or refusal to hire to be similarly easy to identify such that the continuing 

violation theory could not apply. National Railroad Passenger Corp. v. Morgan, 536 U.S. 

101, 110-14, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002); Gowski v. Peake, 682 F.3d 

1299,1312-13 (11th Cir. 2012); Freeman v. City of Riverdale, 330 F. App'x 863, 866 (11th 

Cir. 2009) (categorizing termination, assignment of janitorial tasks, and denial of request 

for training as discrete acts); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 970 

(11th Cir. 2008) (recognizing that hiring decisions and work assignments constituted 

discrete acts); Meidling v. Walgreen Co., No. 8:12-CV-2268-T-30TBM, 2014 U.S. Dist. 

LEXIS 80880, 2014 WL 2700742, at *4 (M.D. Fla. June 13, 2014) (concluding that 

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involuntary transfer was a discrete act of discrimination and continuing violation 

theory could not rescue transfer claim). Holland v. Sebelius, 51 F. Supp. 3d 1357, 1376, 

2014 U.S. Dist. LEXIS 138847, *45. 

As such, because Plaintiff’s entire claim for retaliation is based on a discrete event 

which occurred well beyond the 300-day period for making a charge of discrimination, her 

claim for retaliation is untimely and must be dismissed.

IV. Conclusion

This Court has no jurisdiction to hear Plaintiff’s State law claims based on UF’s 

Eleventh Amendment immunity, and therefore, same should be dismissed. As such, 

Defendant UNIVERSITY OF FLORIDA BOARD OF TRUSTEES respectfully requests this 

Court dismiss Counts I, II, IV, V, and VIII with prejudice, pursuant to Federal Rule of Civil 

Procedure 12(b)(6) and Southern District Local Rule 7.1.

As to the non-State law claims, the conduct complained of, even if accepted as 

true, does not amount to adverse employment actions. Plaintiff instead relies on 

allegations which are conclusory, are ordinary workplace tribulations, are untimely, and 

provide no causal link between the alleged employment complaints and the alleged 

retaliation of a reduction in pay. As Plaintiff has failed to allege an adverse employment 

action, an indispensable element of an employment discrimination claim, she has failed

to assert a facially plausible claim that would allow the reasonable inference that UF is 

liable for gender discrimination or retaliation or hostile work environment based on same. 

Iqbal, 556 U.S. at 678; Davis, 245 F.3d at 1238. As such, Defendant UNIVERSITY OF 

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FLORIDA BOARD OF TRUSTEES, respectfully requests this Court dismiss Counts III, 

VI, and VII with prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(6) and 

Southern District Local Rule 7.1, as Plaintiff has failed to, and cannot under the facts of 

this case, state a cause of action, or allege a prima facie case of gender discrimination, 

retaliation, hostile work environment, and for such other relief as the Court deems just. 

Respectfully submitted,

s/Alicia Lyons Laufer

Alicia Lyons Laufer, Esq.

Florida Bar No. 414336

alaufer@lauferlawyers.com

LAUFER & LAUFER, PA

7251 W. Palmetto Park Rd., Suite 305

Boca Raton, FL 33433

Attorneys for Defendants

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 24, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing 

document is being served this day on all counsel of record identified in the attached 

Service List in the manner specified, either via transmission of Notices of Electronic Filing 

generated by CM/ECF or in some other authorized manner for those counsel or parties 

who are not authorized to receive electronically Notices of Electronic Filing.

By: s/Alicia Lyons Laufer

 Alicia Lyons Laufer

 Florida Bar No.: 414336

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SERVICE LIST

Gregory S. Sconzo, Esq. 

THE LAW OFFICE OF GREGORY S. SCONZO, P.A. 

Counsel for Plaintiff

5080 PGA Boulevard, Suite 213 

Palm Beach Gardens, FL 33418 

Telephone: (561) 729-0940 

Email: greg@sconzolawoffice.com

Email: sarah@sconzolawoffice.com

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