UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT PIERCE DIVISION

CASE NO. 22-14301-CIV-CANNON/McCabe

SARABETH DEMARTINO, 

Plaintiff,

v. 

EMPIRE HOLDINGS AND INVESTMENTS, LLC

and JUAN CARLOS MARRERO,

Defendants.

_______________________________/ 

ORDER ACCEPTING MAGISTRATE JUDGE’S 

REPORT AND RECOMMENDATION [ECF No. 99] 

THIS CAUSE comes before the Court upon Defendants’ Motion for Summary Judgment

(the “Motion”) [ECF No. 64]. The Motion was referred to Magistrate Judge Ryon M. McCabe for 

a report and recommendation [ECF No. 85]. On December 15, 2023, Judge McCabe issued a 

report recommending that the Motion be granted in part (the “Report”) [ECF No. 99]. Defendants 

filed Objections to the Report [ECF No. 100], to which Plaintiff responded [ECF No. 101].1 The 

Court has reviewed the Report [ECF No. 99], Defendants’ Objections [ECF No. 100], and the full 

record. For the reasons set forth below, the Report [ECF No. 99] is ACCEPTED, and the Motion 

[ECF No. 64] is GRANTED IN PART. 

RELEVANT BACKGROUND

This Order assumes a general understanding of the factual and procedural history of this 

case as thoroughly set forth in the Report [ECF No. 99 pp. 3–8]. In short, Plaintiff alleges that 

1

 Plaintiff did not file her own objections to the Report. 

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Defendants discriminated against her because of her pregnancy and planned maternity leave 

[ECF No. 27]. Plaintiff’s Amended Complaint brings five counts:

• Count I: Pregnancy Discrimination against Empire Holdings and Investments, LLC 

(“Empire”) pursuant to Title VII of the Civil Rights Act [ECF No. 27 ¶¶ 62–66]

• Count II: Pregnancy Discrimination against Empire pursuant to the Florida Civil Rights 

Act (“FCRA”) [ECF No. 27 ¶¶ 67–71]

• Count III: Retaliation against Empire pursuant to Title VII [ECF No. 27 ¶¶ 72–76]

• Count IV: Retaliation against Empire pursuant to FCRA [ECF No. 27 ¶¶ 77–81]

• Count V: Interference against Empire and Juan Carlos Marrero in violation of the Family 

Medical Leave Act (“FMLA”) [ECF No. 27 ¶¶ 82–91]

On October 11, 2023, Defendants filed the instant Motion for Summary Judgment, seeking 

dismissal of all counts brought in the Amended Complaint [ECF No. 64]. Plaintiff filed a 

Response in Opposition [ECF No. 75], and Defendants filed a Reply in Support [ECF No. 82]. 

Following referral, on November 29, 2023, Judge McCabe heard argument on the Motion 

[ECF No. 89]. On December 15, 2023, Judge McCabe issued the Report, recommending that 

Defendants’ Motion be granted as to Counts III and IV but denied as to Counts I, II, and V 

[ECF No. 99]. Defendants filed its Objections to the Report on December 29, 2023 [ECF No. 

100]. The Report is ripe for adjudication.

LEGAL STANDARD

To challenge the findings and recommendations of a magistrate judge, a party must file 

specific written objections identifying the portions of the proposed findings and recommendation 

to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F.2d 815, 822 

(11th Cir. 1989); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A district court 

reviews de novo those portions of the report to which objection is made and may accept, reject, or 

modify in whole or in part, the findings or recommendations made by the magistrate judge. 

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28 U.S.C. § 636(b)(1). To the extent a party fails to object to parts of the magistrate judge’s report, 

the Court may accept the recommendation so long as there is no clear error on the face of the 

record. Macort, 208 F. App’x at 784. Legal conclusions are reviewed de novo, even in the absence 

of an objection. See LeCroy v. McNeil, 397 F. App’x 554, 556 (11th Cir. 2010); Cooper-Houston 

v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). 

DISCUSSION

I. Pregnancy Discrimination under Title VII & FCRA (Counts I and II)

The Report recommends denying Defendants’ Motion on Counts I and II, because there is 

a genuine issue of material fact as to Defendants’ motivation for terminating Plaintiff 

[ECF No. 99 pp. 8–13]. The Court agrees. Applying the “convincing mosaic” standard for 

summary judgment,

2 see Lewis v. City of Union City, Georgia, 934 F.3d 1169, 1185 (11th Cir. 

2019), Judge McCabe cited circumstantial evidence from which a reasonable factfinder could infer

discrimination based on Plaintiff’s pregnancy [ECF No. 99 pp. 11–12 (setting forth twelve bullet 

points with thorough citations to the record)]. Drawing all inferences in the light most favorable 

to the nonmovant, as is required at the summary judgment stage, Sutton v. Wal-Mart Stores East, 

LP, 64 F.4th 1166, 1168 (11th Cir. 2023), the Court agrees that the record reflects “enough 

evidence for a reasonable factfinder to infer intentional discrimination in an employment action” 

2 As the Report explains, the Eleventh Circuit recognizes two methods by which a plaintiff can 

show discriminatory intent via circumstantial evidence [ECF No. 99 pp. 9–10]. First, a plaintiff 

may rely on the “burden shifting framework” of McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973). Alternatively, a plaintiff may rely on the “convincing mosaic” standard, under which a 

plaintiff presents a “convincing mosaic of circumstantial evidence that would allow a jury to infer 

intentional discrimination by the decisionmaker.” Smith v. Lockheed-Martin Corp., 644 F.3d 

1321, 1328 (11th Cir. 2011). Plaintiff proceeds by way of the “convincing mosaic” method here 

[ECF No. 75].

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such as this one. Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 946 (11th Cir. 2023) (citation

omitted).

Defendants object to this portion of the Report, arguing that it (1) fails to address two 

“necessary elements” of the “convincing mosaic” standard; and (2) relies on insufficient 

circumstantial evidence [ECF No. 100 pp. 2–11]. As explained below, the Court rejects both of 

Defendants’ arguments. 

a. The “convincing mosaic” standard does not require Plaintiff to rigidly satisfy 

three elements to avoid summary judgment. 

Defendants first argue that the Report failed to address two “essential elements” in its

convincing mosaic analysis [ECF No. 100 pp. 2–5]. This argument reflects a misunderstanding of

the “convincing mosaic” standard as articulated by the Eleventh Circuit. In Lewis v. City of Union 

City, Georgia—a key case concerning the “convincing mosaic” standard—the Eleventh Circuit

explained: 

A “convincing mosaic” may be shown by evidence that demonstrates, 

among other things, (1) “suspicious timing, ambiguous statements . . . ,

and other bits and pieces from which an inference of discriminatory intent 

might be drawn,” (2) systematically better treatment of similarly situated 

employees, and (3) that the employer's justification is pretextual.

934 F.3d at 1185 (quoting Silverman v. Bd. of Educ. of City of Chi., 637 F.3d 729, 734 (7th Cir. 

2011)). Defendants interpret Lewis and its progeny as establishing a rigid set of three elements a 

plaintiff must satisfy to survive summary judgment [ECF No. 100 pp. 2–3]. This is incorrect. The 

Eleventh Circuit has stressed that the “convincing mosaic” standard is properly understood as “a 

metaphor, not a legal test and not a framework.” Berry v. Crestwood Healthcare LP, 84 F.4th 

1300, 1311 (11th Cir. 2023). Under a “convincing mosaic” analysis—as with any summary 

judgment analysis—“[i]f the plaintiff presents enough circumstantial evidence to raise a 

reasonable inference of intentional discrimination, her claim will survive summary judgment.” 

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Tynes, 88 F.4th at 947. Accordingly, the three-item list provided in Lewis does not set forth

essential, prerequisite elements; rather, it provides guiding categories of evidence “likely to be 

probative” of discrimination. Id. at 946 n.2. Thus, it is incorrect to suggest, as Defendants do, that 

showing differential treatment of a similarly situated “comparator” is a “necessary element” under 

the convincing mosaic standard [ECF No. 11 p. 3]; see Tynes, 88 F.4th at 946 n.2 (“Given the wide 

scope of available evidence, the convincing mosaic standard can be of particular significance when 

the plaintiff cannot identify a similarly situated comparator, as the McDonnel Douglas framework 

requires.”). The Report’s analysis is consistent with this precedent [ECF No. 99 pp. 10–13], 

warranting rejection of Defendants’ first objection.3 

b. The Report’s recommendation as to Counts I and II cites sufficient 

circumstantial evidence to support an inference of discriminatory intent. 

Defendants’ second criticism of the Report—that it relies on insufficient circumstantial 

evidence in recommending Defendants’ Motion be denied as to Counts I and II—also lacks merit 

[ECF No. 100 pp. 5–11]. As mentioned above, the Report identifies twelve pieces of evidence 

(with supporting citations to the record) from which a reasonable jury could conclude that Empire

terminated Plaintiff due to her pregnancy, not her poor performance [ECF No. 99 pp. 11–12 

(identifying examples of “suspicious timing, inconsistent statements made to Plaintiff, and 

inconsistent statements offered to the EEOC”)]. In their objections, Defendants attempt to contest, 

undermine, and recontextualize some of this evidence [ECF No. 100 pp. 5–11]. But drawing all 

3

 Defendants cite to a single unpublished Eleventh Circuit case, Daneshpajouh v. Sage Dental 

Grp. of Florida, 2023 U.S. App. LEXIS 1490 (11th Cir. Jan. 20, 2023), in support of their argument 

that the convincing mosaic standard involves three “essential elements” [ECF No. 100 pp. 2–3]. 

To the extent that Daneshpajouh suggests a plaintiff “must” satisfy all three elements to show a 

convincing mosaic, 2023 U.S. App. LEXIS 1490, at *7, it is inconsistent with Lewis—which uses 

the word “may,” 934 F.3d at 1185—and other binding Eleventh Circuit precedent. See, e.g., Tynes, 

88 F.4th at 946 n.2; Berry, 84 F.4th at 1311. 

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inferences in the light most favorable to Plaintiff (the non-moving party), the record provides 

sufficient evidence of a genuine issue of material fact. See Sutton, 64 F.4th at 1168. Even if the 

Court were to assume that some of Defendants’ arguments have merit, there still would remain

sufficient evidence—among the twelve categories of evidence enumerated in the Report—from 

which a reasonable factfinder could infer discriminatory intent. Smith, 644 F.3d at 1328 (“[N]o 

matter its form, so long as the circumstantial evidence raises a reasonable inference that the 

employer discriminated against the plaintiff, summary judgment is improper.”); see also Tynes, 88 

F.4th at 955 (Newsome, J., concurring) (“And a mosaic—in its truest sense a collection—isn’t 

necessary to defeat summary judgment; a single item of evidence can at least theoretically 

suffice.”). Accordingly, the Report was correct to deny summary judgment on Counts I and II. 

The Court expresses no view on the merits of Plaintiff’s claims.

II. Retaliation under Title VII and FCRA (Counts III and IV)

Next, the Report recommends granting summary judgment as to Counts III and IV: 

Plaintiff’s retaliation claims under Title VII and the FCRA [ECF No. 99 pp. 13–16]. Because 

there are no objections to this conclusion, the Court may accept this portion of the Report so long 

as there is no clear error on the face of the record. Macort, 208 F. App’x at 784. Upon review, 

the Court finds the Report’s determinations as to Counts III and IV to be well reasoned and correct

for the reasons set forth therein: the undisputed facts show that Plaintiff cannot satisfy the prima 

facie elements of her retaliation claims—namely, the existence of a “causal relationship” between 

the alleged protected conduct (a January 24, 2022, text message to an Empire executive) and the 

adverse employment decision (the decision to terminate Plaintiff, made on December 29, 2021) 

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[ECF No. 99 pp. 13–16 (citing Johnson v. Miami-Dade County, 948 F.3d 1318, 1325 (11th Cir. 

2020))].4 Dismissal of Counts III and IV is proper. 

III. Interference under the FMLA (Count V)

Lastly, the Report recommends denying Defendants’ Motion on Count V, determining that, 

when viewed in the light most favorable to Plaintiff, the evidence creates a triable issue as to 

whether Defendants intended to discriminate against Plaintiff based on her request for future 

maternity leave [ECF No. 99 pp. 16–18]. For the reasons provided below, the Court agrees. 

As an initial matter, the Report rightly analyzed Count V as a FMLA retaliation claim 

despite it being labeled as an interference claim in the corresponding heading in Amended 

Complaint [ECF No. 99 p. 17 (explaining that the allegations “more closely match a retaliation 

claim, for which proof of discriminatory animus would be required”)]; see Smith v. BellSouth 

Telecommunications, Inc., 273 F.3d 1303, 1313 (11th Cir. 2001) (explaining that “while the FMLA 

uses the language of interference, restraint, denial, discharge, and discrimination, not retaliation, 

. . . . nomenclature counts less than substance”) (internal quotations omitted). Second, the Court 

agrees with the Report’s conclusion that a triable issue of facts exists as to whether Defendants 

“intentionally discriminated against [Plaintiff] for exercising an FMLA right.” Martin v. Brevard 

Cnty. Pub. Sch., 543 F.3d 1261, 1267 (11th Cir. 2008).

5

 Furthermore, the Court agrees that 

4 Courts analyze Title VII and FCRA retaliation claims under the same analytical framework. 

Harper v. Blockbuster Ent. Corp., 139 F.3d 1385, 1389 (11th Cir. 1998). 

5 The Report correctly states that FMLA retaliation claims are analyzed under the same framework 

as Title VII retaliation claims [ECF No. 99 p. 17]; see Benz v. Crowley Mar. Corp., 732 F. App’x 

794, 804 (11th Cir. 2018). Unlike Plaintiff’s Title VII and FCRA retaliation claims—which fail 

for lack of a “causal relationship” between an alleged protected activity and the adverse 

employment decision, see supra p. 6; [ECF No. 99 p. 15]—Plaintiff’s FMLA retaliation claim is 

supported by sufficient evidence of causation. Plaintiff disclosed her pregnancy and request for 

maternity in October 2021, and Defendants made the decision to terminate her employment 

approximately two months later [See, e.g., ECF No. 84 ¶¶ 6, 53, 66]. There is no evidence 

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Plaintiff presented a “convincing mosaic” by which a reasonable factfinder—for purposes of 

summary judgment—could infer discriminatory intent [ECF No. 99 pp. 17–18]. Defendants’ 

objection that Defendant Marrero was “not the decisionmaker concerning Plaintiff’s request for 

FMLA leave” is immaterial, because Plaintiffs’ retaliation claim stems from Defendants’ decision 

to terminate her based on her FMLA leave request, not on denial of her FMLA request. See also 

Martin, 543 F.3d at 1267 (requiring only that plaintiff’s “employer”—not a FMLA 

decisionmaker—“intentionally discriminated against [her] for exercising an FMLA right”). In 

sum, the Report’s recommendation that summary judgment be denied as to Count V is proper. 

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows: 

1. The Report and Recommendation [ECF No. 99] is ACCEPTED. 

2. Defendants’ Motion for Summary Judgment [ECF No. 64] is GRANTED IN PART 

AND DENIED IN PART in accordance with this Order, for the reasons set forth in

the underlying Report.

a. Defendants’ Motion is GRANTED as to Counts III and IV of Plaintiff’s 

Amended Complaint.

b. Defendants’ Motion is DENIED as to Counts I, II, and V.

suggesting that Defendants considered terminating Plaintiff prior to her pregnancy disclosure [See 

ECF No. 99 pp. 3–4]. In the months following her disclosure, however—leading up to her formal 

termination on March 1, 2022—Plaintiff received her first ever written Performance Notice; 

discovered Defendants had begun searching for her replacement; and received a follow-up 

Performance Notice [ECF No. 84 ¶¶ 48, 109; ECF No. 69 pp. 61–68]. Accordingly, there exists 

sufficient evidence to create a genuine issue of fact on the issue of causation. To the extent the 

Report’s analysis on Count V does not address the causation element, the Court’s explanation 

herein confirms the conclusions reached in the Report. 

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DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 21st day of February

2024.

_________________________________

AILEEN M. CANNON

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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