UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-22721-FAM

MARIO HERNANDEZ, 

 

Plaintiff, 

 

v. 

 

CHARLOTTE BURROWS, CHAIR 

OF THE EQUAL EMPLOYMENT 

OPPORTUNITY COMMISSION, 

 

Defendant. 

 / 

DEFENDANT’S REPLY STATEMENT OF MATERIAL FACTS

Defendant, Charlotte Burrows, in her official capacity as Chair of the Equal Employment 

Opportunity Commission (“EEOC”) and pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1(b)(3), 

hereby submits her reply statement of material facts to Plaintiff’s Amended Response to 

Defendant’s Statement of Material Facts in Support for Summary Judgment (ECF No. 125): 

Plaintiff’s Amended Response to Defendant’s Statement of 

Material Facts in Support for Summary Judgment (ECF No. 56) 

Procedural Facts

12. Disputed. Plaintiff refers to ECF No. 56-5, which is the EEOC’s Anti-Harassment policy 

as available on InSite. This does not contradict ECF Nos. 56-6 through 56-11. 

13. Disputed. In the referenced deposition testimony, Ms. White-Dunston states that “while in 

Miami, [she] also provided EEO training to the entire staff...” (ECF No. 125-6, pg. 25, ln 

4-5). This does not contradict Defendant’s undisputed material evidence that on February 

18, 2016, and March 30, 2016, the EEOC provided training on the EOOC’s anti-harassment 

policy. (ECF Nos. 56-15 and 56-16). 

15. Disputed. Plaintiff’s asserted fact is misleading. In deposition, Plaintiff did not dispute 

the authenticity of the subject February 16, 2017, email providing him with a copy of the 

EEOC’s EEO Policy Memorandum. Rather, Plaintiff testified only that he did not recall

receiving the email. (ECF No. 52-2, pg. 303, ln. 11-2). 

Plaintiff’s Employment

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 1 of 11
2 

21. Disputed. This asserted fact is misleading. Plaintiff’s testimony is only that he did not 

recall receiving monetary awards. (“The [awards] that I remember receiving was for time 

off, and I remember receiving certificates that she would make, just kudos. Nothing 

monetary.”) (ECF No. 56-2, pg. 183, ln. 14-17). 

23. Disputed. Plaintiff’s Employee Statement shows that on September 13, 2017, he took a 

full, eight-hour day of administrative leave. (ECF No. 56-44). 

25. Disputed. Plaintiff testified that under Ms. Peters, Plaintiff never received a poor

evaluation, was never denied a raise, and even received “kudos.” (ECF No. 56-2 at 47, pg. 

183, ln. 1-17). 

26. Disputed. Defendant objects to Plaintiff’s asserted fact concerning his career advancement 

because that fact is not supported by admissible evidence. Specifically, Plaintiff cites to 

the Final Agency Decision (“FAD”) (ECF No. 125-4), which the Court has ruled to be 

inadmissible at trial. (ECF No. 117, ¶ 2). Plaintiff’s remaining two asserted facts

concerning Ms. Gonzalez’s access to his computer and his inability to receive promotions 

are unsupported conjecture.1

 Plaintiff testified he had no proof that anyone destroyed the 

notes that he saved on his computer (ECF No 56-2, pg. 169, ln. 11-14). Also, Plaintiff 

conceded his performance drastically declined after reassignment. (ECF No. 125, ¶ 100). 

Plaintiff’s Interactions with Katherine Gonzalez

30. Disputed. Plaintiff’s assertion that he and Ms. Gonzalez carpooled because “she wanted 

to carpool” does not actually rebut or dispute that the two carpooled because they lived in 

the same area. Plaintiff testified that “I didn’t have a problem with the carpooling. I didn’t 

have a problem with all that.” (ECF No. 56-2, pg. 139, ln. 21-25). 

31. Disputed. Plaintiff actively sought to socialize with Ms. Gonzalez outside of work hours. 

(ECF No. 56-14, pg. 42, message dated 9/4/2013 at 9:45:22 AM “When is the next happy 

hour”; pg. 125, message dated 3/5/2014 at 10:49:33 AM “I prefer happy hour ;) ”; pg. 170: 

HERNANDEZ (7/24/2014 12:01:31 PM): I was hoping to get some cases written 

up (3) and maybe doing a hh 

GONZALEZ (7/24/2014 12:02:10 PM): with me? 

HERNANDEZ (7/24/2014 12:02:35 PM): no with some random chick I carpool 

with

Plaintiff complained that retaliation by Ms. Gonzalez was that “she would raise the level 

of scrutiny that I was under or subject me to some sort of negative action as a result of my 

1 Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (conclusory allegations 

and conjecture cannot be the basis for denying summary judgment). 

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 2 of 11
3 

opposition.” ECF No. 56-2, pg. 179, ln. 24 – pg. 180, ln. 2). Plaintiff’s vague and 

conclusory allegations are legally inadequate to constitute a materially adverse action.2

32. Disputed in part. Plaintiff testified that during the time Ms. Gonzalez was his supervisor, 

their sexual relationship was consensual. (ECF No. 56-2, pg. 104, ln 20-24). The second 

asserted fact, that Plaintiff went to Key West in September 2013, is undisputed. 

35. Disputed. Plaintiff’s response to the photograph depicted in ECF No. 56-37 is misleading. 

Plaintiff testified that he specifically remembered this particular night. (ECF No. 56-2, pg. 

177, ln. 23-25). Plaintiff testified that he went to this happy hour event even though he 

knew that Ms. Gonzalez was going to attend. (Id., pg. 178, ln. 15-21). 

36. Disputed. Plaintiff testified that he did not remember after he started having sexual contact 

with Ms. Gonzalez how long that lasted before she was no longer his supervisor. (ECF. 

No. 56-2, pg. 103, ln. 6-10). Defendant further objects to Plaintiff’s second asserted fact 

concerning Ms. Gonzalez’s in-office interactions with Plaintiff in 2014. This fact is not 

supported by admissible evidence. Plaintiff cites to the Final Agency Decision (“FAD”) 

(ECF No. 125-4), which the Court has ruled to be inadmissible at trial. (ECF No. 117, ¶ 

2). Furthermore, this statement is hearsay to which there is no applicable exception.3

Agency Proceedings

37. Disputed. Plaintiff’s facts are misleading. Plaintiff testified that he does not know if he 

had any sexual contact with Ms. Gonzalez within 45 days prior to October 16, 2017. (ECF 

No. 56-2, pg. 250, ln. 13-17). The Amended Complaint alleges that Plaintiff was sexually 

harassed by Ms. Gonzalez on August 22, 2017, fifty-one days prior to October 16, 2017. 

(ECF No. 18, ¶ 86). Although the Amended Complaint alleges that Plaintiff was sexually 

harassed again on September 13, 2017 (ECF No. 18, ¶ 7), his Employee Statement shows 

that he took that day off. (ECF No. 56-44).

2 See, e.g., Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1241 (11th Cir. 2001) (“criticisms of 

an employee’s job performance — written or oral — that do not lead to tangible job consequences 

will rarely form a permissible predicate”); Harbuck v. Teets, 152 Fed.Appx. 846, 848 (11th Cir. 

Oct. 12, 2005) (concluding that “[t]he actions about which Harbuck complains do not constitute 

an adverse employment action” where plaintiff complained that “she has been subject to 

heightened scrutiny since her deposition in her previous EEOC complaint”). 

3 See e.g. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991) (nonmoving party on summary 

judgment must come forward with sufficient evidence in the form of relevant and admissible 

evidence) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Fed.R.Civ.P. 56(e)); Macuba v. 

Deboer, 193 F.3d 1316, 1322–23 (11th Cir.1999) (“The general rule is that inadmissible hearsay 

‘cannot be considered on a motion for summary judgment.’”). 

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 3 of 11
4 

41. Undisputed. 

42. Disputed. Even if true that Plaintiff first contact an EEO Counselor on October 16, 2017 

(ECF No. 18, ¶ 7; ECF No. 56-2, pg. 299, ln. 25 – pg. 300, ln 9.), Plaintiff testified that he 

does not know if he had any sexual contact with Ms. Gonzalez within 45 days of October 

16, 2017. (ECF No. 56-2, pg. 250, ln. 13-17). 

44. Disputed. Defendant objects to Plaintiff’s second and third asserted facts concerning 

statements of Ms. Caddle, as these facts are not supported by admissible evidence. 

Specifically, Plaintiff cites to the FAD (ECF No. 125-4), which the Court has ruled to be 

inadmissible at trial. (ECF No. 117, ¶ 2). Furthermore, these statements are inadmissible 

hearsay to which there is no applicable exception. 

45. Disputed. Plaintiff’s cited fact does not contradict Defendant’s assertion that he failed to 

sign his affidavit in the administrative proceeding. 

Plaintiff’s Statement of Material Facts (DE125) 

I. ADDITIONAL FACTS – Issues of Material Fact Related to Sexual Harassment 

Claim.

A. THE SECOND ELEMENT: Sexual Harassment Was Not Welcomed/Consensual.

46. Disputed. This asserted fact is vague, as Plaintiff cannot recall when his relationship with 

Ms. Gonzalez allegedly became non-consensual. (ECF No. 56-2, pg. 91, ln. 1-4).

47. Disputed. First, it is unclear who or what Plaintiff refers to that “confirmed” his allegations 

of sexual harassment. Also, Plaintiff’s uncorroborated claim of harassment during the 

September 2013 Key West trip is belied by his contemporaneous private messages to Ms. 

Gonzalez. For example, on September 19, 2013, Plaintiff texted Ms. Gonzalez that you 

“can’t harass the willing....copy that one into your defense book.” (ECF No. 56-14, page 

50). Later that same day, Plaintiff texted her “then who’s your daddy.” (Id., page 50). 

48. Disputed. The citation to ECF No. 125-2, pages 91-92 does not exist. The second exhibit 

(ECF No. 125-1) references Plaintiff’s deposition testimony. The asserted fact is 

misleading, as Plaintiff’s referenced testimony discusses “flirting,” not “sexual contact.” 

Plaintiff’s assertion that he daily communicated to Ms. Gonzalez his opposition to her 

sexual contact is categorically refuted by their Novell messages. Rather, Plaintiff 

repeatedly sent his own sexually charged messages to Ms. Gonzalez (ECF No. 56-14):

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 4 of 11
5

a. Page 48: HERNANDEZ (9/18/2013 2:14:53 PM): I swear that [song] goes through 

my head whenever I first see you. If you had theme music that would be it4

GONZALEZ (9/18/2013 2:15:09 PM): lmao, what station do you hear that song?

HERNANDEZ (9/18/2013 2:15:19 PM): It’s an old army song

HERNANDEZ (9/18/2013 2:15:29 PM): I heard it while getting a blowjob from a 

stripper

b. Page 49: GONZALEZ (9/18/2013 2:15:47 PM): so thats how u really see me!

HERNANDEZ (9/18/2013 2:15:56 PM): indeed

HERNANDEZ (9/18/2013 2:16:01 PM): and you love it

GONZALEZ (9/18/2013 2:16:02 PM): :/

HERNANDEZ (9/18/2013 2:16:14 PM): wipe that smirk off your face

GONZALEZ (9/18/2013 2:16:18 PM): no, i dont think i love being seen as a stripper

HERNANDEZ (9/18/2013 2:16:21 PM): wipe it

GONZALEZ (9/18/2013 2:16:24 PM): lol

HERNANDEZ (9/18/2013 2:16:34 PM): I’m in love with a stripper

GONZALEZ (9/18/2013 2:16:45 PM): i.w.u

HERNANDEZ (9/18/2013 2:16:57 PM): I want yogurt

HERNANDEZ (9/18/2013 2:17:10 PM): there’s a u in yogurt

GONZALEZ (9/18/2013 2:17:16 PM): if thats all it takes to satisfy you, go ahead

HERNANDEZ (9/18/2013 2:17:17 PM): is that what yo umeant

HERNANDEZ (9/18/2013 2:17:25 PM): lol

GONZALEZ (9/18/2013 2:17:34 PM): u like making me beg for it

HERNANDEZ (9/18/2013 2:17:44 PM): I love hearing yo ubeg

c. Page 55: HERNANDEZ (9/27/2013 8:27:03 AM): Hey You’re crazy bitch But you 

fuck so good, I’m on top of it When I dream, I’m doing you all night Scratches all 

down my back to keep me right on

d. Page 56: HERNANDEZ (9/27/2013 10:06:58 AM): I still love ya.

e. Page 70: HERNANDEZ (10/31/2013 3:26:42 PM): jelly baby when a man ejaculates 

in a woman's anal canal and a blob of semen secretes out during a bowel movement. 

My wife came home from work today to tell me that last night’s anal sex left her with 

a jelly baby.

f. Page 70: HERNANDEZ (10/31/2013 3:27:10 PM): Jelly Babies The congealed mix 

of sperm and nether fluids which remains if male ejaculate isn’t cleaned up within 

minutes of such a deposit. I smoked my cigarette and laughed, after some hot sex, as 

my girlfriend tried frantically to wipe the jelly babies off her back, but those little 

buggers just roll around and run away.

g. Page 87: GONZALEZ (12/9/2013 10:13:48 AM): ur cologne drove me crazy today 

HERNANDEZ (12/9/2013 10:14:40 AM): I'm glad it has that effect, I was doubting 

it’s potency lol

4 The song Plaintiff is referencing is “Crazy Bitch” by Buckcherry. Plaintiff sent Ms. Gonzalez a 

YouTube link to the “Crazy Bitch” music video earlier that day at 1:58:32 p.m. and again at 

1:58:46 p.m. Plaintiff later instructs Ms. Gonzalez to “listen to the last two verses of that song.” 

(Id. at page 55, message sent 9/27/2013 at 8:28:18 AM). The lyrics referenced by Plaintiff go: 

“Baby girl / You want it all / To be a star / You’ll have to go down / Take it off / No need to talk / 

You’re crazy / But I like the way you fuck me.”

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 5 of 11
6

h. Page 92: HERNANDEZ (12/23/2013 10:24:42 AM): you don’t realize we make out 

more with each other than our spouses. You’ve had your tongue in my mouth more 

than my wife has in over ten years.

i. Page 96: GONZALEZ (1/7/2014 3:00:58 PM): who came earlier, a cp?

HERNANDEZ (1/7/2014 3:01:04 PM): I did

GONZALEZ (1/7/2014 3:01:13 PM): :/

GONZALEZ (1/7/2014 3:01:31 PM): i walked into that one lol

HERNANDEZ (1/7/2014 3:01:36 PM): you fell into that one

HERNANDEZ (1/7/2014 3:01:42 PM): indeed lol

GONZALEZ (1/7/2014 3:03:51 PM): i was not expecting that to happen

HERNANDEZ (1/7/2014 3:04:09 PM): wtf did you expect???

GONZALEZ (1/7/2014 3:04:15 PM): on i mean any of it lol

GONZALEZ (1/7/2014 3:04:24 PM): no*

HERNANDEZ (1/7/2014 3:04:30 PM): lol

HERNANDEZ (1/7/2014 3:04:33 PM): you started it

GONZALEZ (1/7/2014 3:04:57 PM): well, its unlike me to do that

HERNANDEZ (1/7/2014 3:05:08 PM): really

HERNANDEZ (1/7/2014 3:05:30 PM): then i am the benifactor of your rare mood

GONZALEZ (1/7/2014 3:05:35 PM): u know since before anything happened!

GONZALEZ (1/7/2014 3:05:37 PM): lol

HERNANDEZ (1/7/2014 3:05:50 PM): im confused again lol

GONZALEZ (1/7/2014 3:06:23 PM): since before anything happened between us, u 

know i dont like doing that

HERNANDEZ (1/7/2014 3:06:48 PM): not sure why your a pro

GONZALEZ (1/7/2014 3:07:03 PM): just cuz i dont like it dont mean i don’t know 

how ;)

GONZALEZ (1/7/2014 3:07:10 PM): or it doesnt mean i dont do it

HERNANDEZ (1/7/2014 3:07:25 PM): no complaints here

GONZALEZ (1/7/2014 3:08:59 PM): whats funny is that i was just planning to tease 

u, wasn’t planning on finishing lol. thats why i stopped (Sorry), the way i look at it is 

that i’m married, i dont have to swallow ;)

HERNANDEZ (1/7/2014 3:09:26 PM): lol not to me

HERNANDEZ (1/7/2014 3:09:38 PM): besides what else are you going to do with it

HERNANDEZ (1/7/2014 3:09:50 PM): cup it in your hand??

GONZALEZ (1/7/2014 3:09:58 PM): lol i hadnt thought about it at the time til it was 

too late 

HERNANDEZ (1/7/2014 3:10:05 PM): lol

HERNANDEZ (1/7/2014 3:10:14 PM): i was thinking about it the whole time

GONZALEZ (1/7/2014 3:10:15 PM): if we were somewhere else there are other 

things to do

HERNANDEZ (1/7/2014 3:10:18 PM): best day ever

49. Disputed. Plaintiff’s Novell messages contradict his alleged opposition to Gonzalez. 

Moreover, whether or not Plaintiff was sexually harassed is a legal conclusion, not a fact.

50. Disputed. Whether or not Plaintiff was sexually harassed is a legal conclusion, not a fact. 

Additionally, the referenced portion of Plaintiff’s deposition testimony consists of the 

attorneys discussing taking a break with the videographer.

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 6 of 11
7

51. Disputed. The referenced report is inadmissible hearsay.

52. Disputed. The referenced report is inadmissible hearsay.

53. Disputed. The referenced report is inadmissible hearsay.

54. Disputed. The referenced report is inadmissible hearsay.

55. Disputed. The referenced report is inadmissible hearsay.

56. Disputed. The information cited to support this fact comes from the FAD (ECF No. 125-

4) which this Court ruled is inadmissible at trial. (ECF No. 117, ¶ 2). Additionally, 

Plaintiff testified that when their affair began in 2013, and while Ms. Gonzalez was his 

supervisor, their affair was consensual. (ECF No. 56-2, pg. 86, ln 24 – pg. 89, ln. 15).

57. Disputed. First, the information cited to support this fact comes from the FAD (ECF No.

125-4) which this Court ruled is inadmissible at trial. (ECF No. 117, ¶ 2). Additionally, 

this fact is misleading. Plaintiff welcomed these sexual communications from Ms. 

Gonzalez, and indeed repeatedly responded in kind with his own sexually charged 

messagesto Ms. Gonzalez (See referenced portions to ECF No. 56-14, ¶¶ 31, 47-48, supra).

58. Disputed. This fact is solely supported by citations to the FAD (ECF No. 125-4) and the 

ROI (ECF No. 125-7), both of which are inadmissible at trial. (ECF No. 117, ¶ 2).

59. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial.

B. THE FOURTH ELEMENT: Hostile/Abusive Work Environment

60. Disputed. The citation – ECF No. 125-2, page 91-92 – does not exist. Furthermore, the 

referenced report is inadmissible hearsay. 

61. Disputed. The referenced alleged conduct did not occur inside the workplace. It occurred 

outside the workplace at Scully’s, “a tavern on Sunset in Southwest, about 92nd Avenue.” 

(ECF No. 125-1, pg. 92, ln. 23-25 – pg. 93, ln. 1-3.). It is therefore irrelevant. 

62. Disputed. Plaintiff regularly initiated flirtatious exchanges with Ms. Gonzalez long after 

she ceased to be his supervisor. For example, on June 17, 2014, Plaintiff, in a flirtatious 

exchange with Ms. Gonzalez, indicated that he was “flattered” that she wanted to kiss him. 

(DE 56-14 at 150 at 9:57:57 AM to 10:00:01 AM). When Ms. Gonzalez asked Plaintiff 

what he would do if she did kiss him, “to show u why we really cant [sic] be friends,” 

Plaintiff replied, “I’d file a multi-million dollar sexual harassment lawsuit against the 

agency, and split it with you with the terms we discussed on the way to the keys lol.” Id.

63. Disputed. It is unclear what “The only time Plaintiff could his job...” means.

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 7 of 11
8

64. Disputed. There is no evidence to show when this statement was allegedly made by Ms. 

Gonzalez to Plaintiff, or whether it was made during work hours.

65. Disputed. The referenced report is inadmissible hearsay.

66. Disputed. The referenced portion of Plaintiff’s deposition (ECF No. 125-1, page 4) 

consists entirely of counsel stating their appearances.

67. Disputed. The referenced report is inadmissible hearsay. It further constitutes an opinion 

/ legal conclusion, not a material fact. Regardless, it is irrelevant to the instant case.

68. Disputed. The referenced report is inadmissible hearsay. Regardless, Plaintiff’s 

interpretation of the referenced portion of the report is misleading, as it does not 

specifically state that Ms. Gonzalez exhibited discriminatory animus.

69. Disputed. The referenced report is inadmissible hearsay. Also, the referenced report is 

vague as to which specific MIDO employees were allegedly favored by management.

70. Disputed. The referenced report is inadmissible hearsay.

71. Disputed. First, this is a legal conclusion, not a fact. Second, this alleged fact is solely 

supported by citation to the FAD (ECF No. 125-4), which this Court ruled is inadmissible 

at trial. (ECF No. 117, ¶ 2).

C. THE FIFTH ELEMENT: Issues Exist Related to Agency’s Liability

72. Disputed. The referenced deposition testimony is a statement of the Plaintiff’s personal 

opinion / legal conclusion, not an issue of material fact. 

73. Disputed. Plaintiff Mario Hernandez received a copy of the EEOC’s EEO policy 

Memorandum in an email dated February 16, 2017 (ECF No. 56-13). Additionally, 

Plaintiff, an investigator with the EEOC, professed his familiarity with Title VII. (ECF 

No. 56-2, pg. 126, ln. 14-24 and p. 127 at lines 5-15) (“I am a subject matter expert, yes.”).

74. Disputed. This asserted fact regarding other employees’ awareness of the OEO process is 

irrelevant. Plaintiff was provided information on the OEO process, as he received a copy 

of the EEOC’s EEO policy memorandum in an email dated February 16, 2017 (ECF No. 

56-13). The policies and procedures regarding how to file a retaliation complaint, including 

one though OEO, were widely distributed in multiple emails and would have gone to 

Plaintiff’s email inbox; the anti-harassment policy was available in employee handbooks; 

the policy was on InSite, the agency’s intranet site accessible to all employees; and multiple 

training opportunities were offered. (ECF Nos. 56-5, 56-6-11, 56-15-16, 56-17, 56-39). 

Additionally, Plaintiff’s job as an EEOC investigator requires him to be familiar with these 

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 8 of 11
9

procedures or at least where to look. Indeed, Plaintiff touted his own skills and familiarity 

with EEOC materials. (ECF. No. 56-2 at 127, line 7-19) (noting that Plaintiff works with 

a compliance manual for proof of a prima facie case and it is “very complicated.”).

75. Disputed. The referenced deposition testimony is a statement of the deponent’s personal 

opinion / legal conclusion, not an issue of material fact. 

76. Disputed. The referenced report is inadmissible hearsay. Regardless, Plaintiff actively 

concealed his relationship with Ms. Gonzalez from EEOC management. “Complainant 

admits to initially denying the contact.” (ECF No. 125-5 at page 16 / 03090). In 2016, 

MIDO District Director Michael Farrell repeatedly questioned Plaintiff regarding his 

claimed harassment, and Plaintiff denied there was any issue. (Id. at page 71 / 03145).

77. Disputed. The referenced report is inadmissible hearsay. Regardless, Plaintiff actively 

concealed his relationship with Ms. Gonzalez from EEOC management. “Complainant 

admits to initially denying the contact.” (ECF No. 125-5 at page 16 / 03090). In 2016, 

MIDO District Director Michael Farrell repeatedly questioned Plaintiff regarding his 

claimed harassment, and Plaintiff denied there was any issue. (Id. at page 71 / 03145).

78. Disputed. The referenced report is inadmissible hearsay. Regardless, any complaint 

unrelated to the Plaintiff is irrelevant.

79. Disputed. The referenced report is inadmissible hearsay. Regardless, any complaint 

unrelated to the Plaintiff is irrelevant.

80. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial.

81. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial.

82. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial.

83. Disputed. First, this is a legal conclusion, not a fact. Second, this fact solely cites to the 

FAD (ECF No. 125-4), which is inadmissible at trial.

II. Retaliation Claim

A. THE FIRST ELEMENT: Plaintiff Engaged in an Activity Protected Under 

Title VII:

84. Disputed. Plaintiff repeatedly sent flirtatious and sexually charged private messages to Ms. 

Gonzalez initiating sexual contact. (ECF No. 56-14, referenced supra at ¶¶ 31, 47-48).

85. Disputed. Plaintiff repeatedly sent flirtatious and sexually charged private messages to Ms. 

Gonzalez initiating sexual contact. (ECF No. 56-14, referenced supra at ¶¶ 31, 47-48).

86. Disputed. The referenced report is inadmissible hearsay.

87. Disputed. The referenced report is inadmissible hearsay.

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 9 of 11
10

88. Disputed. The referenced report is inadmissible hearsay.

89. Disputed. The referenced report is inadmissible hearsay.

90. Disputed. The referenced report is inadmissible hearsay.

91. Disputed. The referenced report is inadmissible hearsay.

92. Disputed. The referenced report is inadmissible hearsay.

93. Disputed. The referenced report is inadmissible hearsay.

94. Disputed. The referenced report is inadmissible hearsay.

B. THE SECOND ELEMENT: Suffered an Adverse Employment Action

95. Disputed. This asserted “fact” that Gonzalez retaliated against Plaintiff is the Plaintiff’s 

personal opinion / legal conclusion and is unsupported by any admissible evidence.

96. Disputed. Plaintiff’s testimony that he was denied leave is contradicted by his timesheets. 

(ECF No. 56-44). Plaintiff could not recall a single specific instance where he experienced 

a repercussion for allegedly rebuffing Ms. Gonzalez. (ECF No. 56-2 at pg. 48, ln. 15 – pg. 

49, ln. 4). Finally, “scrutiny” does not legally equate to an adverse employment action.

97. Disputed. Plaintiff testified in his deposition that he specifically requested to no longer be 

supervised by Ms. Gonzalez and, as a result, he was transferred to Ms. Peters’ unit. (ECF 

No. 56-2 at p. 204, ln 9-11; p. 205, ln 7-11). Plaintiff agreed in deposition that he 

“welcomed being moved.” (ECF No. 56-2 at p. 205, ln 10-11). 

98. Disputed. This is quadruple-hearsay: the non-party deponent is reading a statement

contained within a letter written by a third-party, Ms. Caddle. The referenced exhibit has 

not been filed with the Court. Also, what Plaintiff complained about is not specified.

99. Disputed. The referenced report is inadmissible hearsay.

100. Undisputed.

101. Undisputed.

102. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial.

103. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial.

104. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial.

105. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial.

106. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial.

107. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial.

108. Disputed. This fact solely cites to the FAD (ECF No. 125-4), which is inadmissible at trial. 

Also, this statement is inadmissible hearsay to which there is no applicable exception.

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 10 of 11
11 

 Respectfully submitted,

JUAN ANTONIO GONZALEZ

UNITED STATES ATTORNEY

 By: John S. Leinicke 

 JOHN S. LEINICKE

ASSISTANT UNITED STATES ATTORNEY

 Fla. Bar. 64927 

99 N.E. 4th Street, 3rd Floor 

Miami, Florida 33132 

Tel: (305) 961-9212 

E-mail: john.leinicke@usdoj.gov

Counsel for Defendant 

Case 1:20-cv-22721-FAM Document 128 Entered on FLSD Docket 04/01/2022 Page 11 of 11