[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12139

Non-Argument Calendar

____________________

ROBERT MITCHELL, 

Plaintiff-Appellant,

versus

CITY OF MIAMI BEACH, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:21-cv-22835-RNS

____________________

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2 Opinion of the Court 22-12139

Before JORDAN, BRANCH, and ABUDU, Circuit Judges.

PER CURIAM:

Robert Mitchell, represented by counsel, appeals the dismissal of his employment discrimination action against his employer, 

the City of Miami Beach (“the City”), under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(a)(1); 

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. 

§§ 2000e-2(a); and the Florida Civil Rights Act (“FCRA”), Fla. Stat. 

§ 760.10(1). After reviewing the record and parties’ arguments, we 

affirm.

I. FACTUAL BACKGROUND & PROCEDURAL 

HISTORY

Mitchell, a 65-year-old white, non-Hispanic male whose nation of origin is the United States sued his employer, the City of 

Miami Beach (“the City”), in August 2021. Thereafter, the district 

court entered a scheduling order requiring any motion to amend 

the pleadings be filed by January 25, 2022. 

Following certain events not relevant to the present appeal, 

Mitchell filed the operative amended complaint in December 2021, 

in which he set forth eight counts of discrimination against the 

City: age-based claims under the ADEA and the FCRA; race-based 

claims under Title VII and the FCRA; national-origin-based claims 

under Title VII and the FCRA; and sex-based claims under Title VII 

and the FCRA. Mitchell alleged that he had administratively exhausted these claims, explaining that he filed charges of 

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22-12139 Opinion of the Court 3

discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Florida Commission on Human Relations 

(“FCHR”) on November 27, 2019, and an amended charge on May 

8, 2020, alleging race, sex, age, and national origin discrimination. 

According to the amended complaint, the City allegedly discriminated against Mitchell between January 20, 2018, and December 20, 2019, when he applied for, and was denied, eighteen positions which were given to substantially younger, non-white applicants. Specifically, he applied to one position as a background investigator, one as an arson investigator, eight as a school resource 

officer, and eight as a hostage negotiation team member. 

On January 20, 2022, five days before the deadline for 

amending pleadings, the City moved to dismiss Mitchell’s amended 

complaint. The City first argued that Mitchell’s claims related to 

the denials of positions other than the school resource officer positions filled in 2019 were time-barred, as the denials occurred more 

than a year before Mitchell filed his first charge with the EEOC in 

November 2019. The City next contended that Mitchell failed to 

administratively exhaust his national origin and sex discrimination 

claims, and his claims of age, race, sex, and national origin discrimination related to the background investigator and school resource 

officer position denials, because he failed to adequately assert those 

claims in his EEOC charges. The City provided copies of Mitchell’s 

EEOC charges to demonstrate these alleged deficiencies. Finally, 

the City argued that Mitchell failed to allege sufficient facts to support a prima facie case for age, race, sex, or national origin 

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discrimination, including the argument that Mitchell failed to sufficiently allege that his identified comparators were similarly situated. 

Instead of seeking consent from the City or for the court’s 

leave to file a second amended complaint after receiving the City’s 

motion to dismiss, Mitchell filed a response opposing the motion 

on February 7, 2022. In his response, however, Mitchell made no

substantive arguments. Instead, he set forth legal principles for employment cases, such as how to establish a prima facie case of disparate treatment, and some case law discussing when a transfer 

could be considered adverse. Then, in a single sentence section entitled “Applying the Law to the Facts in the Case at Bar” Mitchell 

stated:

Applying Iqbal and Twombly to the well-pleaded facts 

in Mr. Mitchell’s amended complaint, the Court 

should determine that Mr. Mitchell has sufficiently alleged enough specifics to plead a prima facie case that 

he suffered age, race/national origin and sex 

discr[i]mination in being repeatedly denied the jobs 

for which he applied, and that he sufficiently exhausted his administrative remedies before filing suit.

Mitchell provided no other argument or discussion concerning the 

administrative exhaustion arguments the City raised in its motion 

to dismiss, nor did he address his alleged failure in sufficiently identifying similarly situated comparators. Mitchell also made no indications that he intended to seek leave to file a second amended 

complaint. 

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In reply, the City argued that Mitchell failed to address its 

arguments concerning the exhaustion of administrative remedies

or the arguments concerning the insufficiency of his allegations,

with the possible exception of its material adversity arguments, and 

reiterated that dismissal was proper on those grounds. The City

also argued that, to the extent Mitchell’s citation to legal cases 

could be interpreted as directly addressing the City’s arguments, 

those cases did not support Mitchell’s position and, thus, his claims

still failed. 

Ultimately, the district court granted the City’s motion to 

dismiss. First, the district court determined that Mitchell failed to 

challenge the City’s arguments related to his failure to exhaust his 

administrative remedies. The court then found that all the job application denials Mitchell challenged were time-barred,1 with the 

exception of the two school-resource officer positions from 2019. 

As to Mitchell’s claims of discrimination based on his sex and national origin related to the school resource officer positions, the district court found that Mitchell also failed to administratively exhaust those claims because his EEOC charges did not allege sufficient facts to support a charge of discrimination. Thus, the only 

substantive claims Mitchell properly exhausted were his age and 

race discrimination claims based on the two 2019 school resource

officer positions. 

1 On appeal, Mitchell does not contest the district court’s dismissal of these 

claims based on the timeliness analysis. As such, this issue is not before the 

Court.

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Notwithstanding Mitchell’s failure to exhaust his administrative remedies, the district court conducted a substantive review of 

each of Mitchell’s claims and ruled that he failed to state a claim 

upon which relief could be granted. Specifically, the court reasoned that Mitchell failed to allege facts sufficient to satisfy the 

McDonnel Douglas2 or “convincing mosaic” frameworks. The court 

noted that Mitchell “himself appear[ed] to concede” his amended 

complaint insufficiently alleged his discrimination claims by “failing to adduce any real opposition to the vast majority of the City’s 

arguments.” 

As such, the district court dismissed Mitchell’s case without 

prejudice as to those claims for which he failed to exhaust his administrative remedies, and with prejudice as to the remaining 

claims. The district court dismissed the entire case without leave 

to amend, noting that he had not requested leave to amend, nor 

had he indicated an inclination to do so. Now, Mitchell appeals.

II. ANALYSIS

A. Mitchell Has Abandoned Each of the Arguments He 

Now Raises on Appeal.

On appeal, Mitchell now, for the first time, argues that he 

exhausted his administrative remedies with respect to his national 

origin discrimination claims. Also, for the first time, he contends 

that he sufficiently alleged his claims of age, race, and national 

2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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origin discrimination, specifically challenging the district court’s 

similarly situated comparator finding. 

We normally review the dismissal of a complaint for failure 

to state a claim de novo, accepting the factual allegations in the complaint as true and construing them in the light most favorable to 

the plaintiffs. Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d 

1280, 1299 (11th Cir. 2021). However, an issue that was not raised 

in the district court but is raised for the first time on appeal is considered forfeited, and we will not address it absent extraordinary 

circumstances. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 

1331-32 (11th Cir. 2004). Cursory, conclusory statements do not 

adequately preserve a more developed argument that could have 

been presented to the district court but was not. See Ruckh v. Salus 

Rehab., LLC, 963 F.3d 1089, 1111 (11th Cir. 2020) (holding that an 

unadorned statement in a new-trial motion asserting that a damages award was “excessive and against the weight of the evidence 

in light of all the deficiencies in Relator’s proof discussed above” 

amounted to mere “superficial assertions” which “were insufficient 

to permit reasoned consideration by the district court”). Similarly, 

issues not plainly and prominently raised in a party’s initial brief are 

deemed abandoned and will not be addressed absent extraordinary 

circumstances. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 

680-83 (11th Cir. 2014). 

Here, Mitchell failed to preserve his challenges to the district 

court’s dismissal of his claims because he failed to raise them before 

the district court in the first instance. In his response to the City’s 

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motion to dismiss, Mitchell provided a single conclusory sentence 

of analysis in which he asserted that he had alleged sufficient facts 

to plead a prima facie case of discrimination and that he had sufficiently exhausted his administrative remedies. This single, superficial and conclusory assertion, without further analysis or support, 

was insufficient to preserve either of his arguments on appeal. 

Ruckh, LLC, 963 F.3d at 1111. Similarly, neither the inclusion of 

facts relevant to his current arguments within the fact section of his 

response, nor the inclusion of generally applicable employment 

law within his “Governing Legal Principles” section clearly presented his current arguments to the district court. Id. Accordingly, 

because he failed to preserve his arguments before the district 

court, and as he fails to argue on appeal that extraordinary circumstances warrant our review, he has abandoned the arguments, and 

we affirm the district court’s dismissal of his amended complaint.

B. The District Court Did Not Abuse Its Discretion in Dismissing Mitchell’s Amended Complaint Without Leave 

to Amend.

On appeal, Mitchell makes another argument for the first 

time—that the district court should have granted him leave to 

amend his already amended complaint before dismissing with prejudice. 

When appropriate, we will review the denial of leave to 

amend a complaint for abuse of discretion. Covenant Christian Ministries, Inc. v. City of Marietta, 654 F.3d 1231, 1239 (11th Cir. 2011). 

District courts have the discretion to choose between a range of 

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22-12139 Opinion of the Court 9

choices, and we will not disturb the court’s decision so long as it

falls within that range of choices and is not influenced by a mistake 

of law. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006).

Federal Rule of Civil Procedure 15(a) states that “[a] party 

may amend its pleading once as a matter of course within . . . 21 

days after service of a” motion to dismiss under Rule 12(b). Fed. R.

Civ. P. 15(a)(1)(B). Thereafter, unless otherwise specified, a party 

may amend its pleading “only with the opposing party’s written 

consent or the court’s leave,” but “[t]he court should freely give 

leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). While 

district courts should sua sponte provide a pro se plaintiff at least one 

chance to amend his complaint before the district court dismisses 

his action with prejudice, absent futility, Woldeab v. Dekalb Cnty. Bd. 

of Educ., 885 F.3d 1289, 1292 (11th Cir. 2018), such rule does not 

apply where, as here, a litigant is counseled and counsel does not 

file a motion to amend or otherwise request leave to amend, Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 

2002) (en banc).

Here, Mitchell’s argument fails for multiple reasons. First, 

because he never raised it below, he generally cannot do so for the 

first time on appeal. Access Now, 385 F.3d at 1331-32. Second, even 

considering his argument, the district court did not abuse its discretion in declining to sua sponte grant Mitchell, who was counseled, 

leave to file a second amended complaint. First, Mitchell had already amended his complaint, and the district court gave Mitchell 

an opportunity to make further amendments by January 25, 2022, 

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in its scheduling order. Second, after being served with the City’s 

motion to dismiss, Mitchell had the opportunity to obtain the 

City’s consent or the court’s leave to file another amended complaint. Fed. R. Civ. P. 15(a)(2). However, he made no efforts to do 

so. Finally, he made no indication to the court or otherwise that 

he wanted to further amend the complaint, and the district court 

had no obligation to sua sponte grant him another opportunity to 

amend. Wagner, 314 F.3d at 542. Accordingly, the district court did

not abuse its discretion in dismissing Mitchell’s case without leave 

to amend.

III. CONCLUSION

For the reasons set forth herein, we AFFIRM the district 

court’s dismissal of Mitchell’s amended complaint.

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