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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:22-cv-22343-KMM Moore/Louis

JORGE MONTEAGUDO ALBURQUERQUE, 

 Plaintiff,

v.

THE DE MOYA GROUP, INC.,

a Florida Profit Corporation,

 Defendant.

________________________________________/

BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION FOR FINAL

SUMMARY JUDGMENT

Plaintiff, MONTEAGUDO, by and through his undersigned counsel, pursuant to 

Fed. R. Civ. P. 56, the Local Rules of the United States District Court for the Southern District of 

Florida, this and this Court’s Pre-Trial and Trial Orders [ECF Nos. 4, 11] hereby files his Response 

to Defendant’s Motion for Summary Judgment (ECF No. 45, and hereinafter “Motion”), pursuant 

to Local Rule 56.1. The undisputed facts and applicable case law demonstrate that Defendant’s 

Motion should be denied.

INTRODUCTION

I. BACKGROUND

This is an action brought under Title VII and the Florida Commission of Human Rights. The 

only claims which remain before this Court are Plaintiff’s claims for retaliation under Title VII of 

the Civil Rights Act, 42 U.S.C. § 2000e et seq. (Count I) and the Florida Civil Rights Act 

(“FCRA”), §§ 760.01-760.11 (Count II). See ECF No. 13. Defendant moves this Court to grant 

summary judgement on both claims. ECF No. 45. For the reasons stated herein, Plaintiff 

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respectfully asks this Court to deny Defendant’s Motion on all counts as it fails to demonstrate that 

there exist no disputed facts; and, as a matter of law, Defendant is not entitled to judgment. 

As a threshold matter, Plaintiff notes that Defendant’s Motion for Summary Judgment and its 

corresponding Statement of Material Facts [ECF No. 44] fail to conform to the basic and explicit 

requirements of the Fed. R. Civ. Pr., S.D. Fla. L.R. 56.1, this Court’s Pretrial Order [ECF No. 4], 

and this Court’s Trial Order [ECF No. 11] in two basic respects. First, Defendant has failed to

comply with the basic filing requirements explicitly set forth in this Court’s Trial Order [ECF No. 

11] and S.D. Fla. L.R. 56.1 which the Court requires strict compliance with. See ECF No. 11. After 

all, Local Rule 56.1(a) serves “to make review of summary judgment motions less burdensome to 

the Court.” S.D. Fla. L.R. 56.1 cmts. (2008); see also Carolina Acquisition, LLC v. Double Billed, 

LLC, No. 07-61738-CIV, 2009 WL 1298362, at *1 (S.D. Fla. May 8, 2009). The Local Rule is 

also consistent with determining the appropriateness of summary judgment. See Phillips v. City of 

Dawsonville, 499 F.3d 1239, 1241 (11th Cir. 2007) (“[s]ummary judgment is appropriate when no 

genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of 

law.”) Id. (emphasis added). With regards to this Court’s Trial Order requirements, parties are 

instructed to comply with the three formatting requirements: a) “evidence not previously filed on 

the docket, evidentiary support for a Party's statement of material facts shall be filed as separate 

exhibits within the Court's electronic case filing system” ECF No. 11(emphasis added); b) the 

Court instructs the parties for “the first citation to any evidence in support of a motion for summary 

judgment or statement of material facts shall provide the docket entry for that evidence using the 

form "ECF No." Id.; and c) the Court requires that “citations to any composite exhibit shall provide 

both the page number assigned by the Court's electronic case filing system (i.e., the page number 

of the PDF) and the page number of the document.” Id. Notwithstanding this Court’s specific 

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instructions, Defendant: a) attached the evidence as exhibits to its Statement of Facts; b) failed to 

specifically title the exhibits within the CM/ECF system (e.g., Smith Affidavit dated April 12, 

2017); and c) failed to provide the docket entry as well as the page number assigned by the Court 

in its citations on both of its pleadings. By failing to comply with these basic requirements, 

Defendant has made it arduous for Plaintiff to confirm the sufficiency of its pleading and evaluate

whether they correlate with Defendant’s contention that there are no factual disputes. See Joseph 

v. Napolitano, 839 F. Supp.2d 1324, 1329 (S.D. Fla. 2012)(“the rule’s clear procedural directive 

is intended to reduce confusion and prevent the Court from having to scour the record and perform 

time-intensive fact searching.”).

Second, Defendant heavily relies on evidence that is inadmissible in its moving papers

while omitting vital information that this Court requires in its consideration of whether the 

evidence should be considered at all at this stage of the proceedings. See Rowell v. BellSouth Corp., 

433 F.3d 794, 800 (11th Cir. 2005)( holding that “[o]n motions for summary judgment, we may 

consider only that evidence which can be reduced to an admissible form.”). Accordingly, before 

turning to the merits of Defendant’s Motion, Plaintiff respectfully requests that the Court addresses 

an evidentiary question that may impact the assessment of the claims at issue. Specifically, 

Plaintiff objects to the introduction of Plaintiff’s Deposition Testimony dated October 7, 2022, 

which was cited by Defendant in support of its Motion, because this proceeding was conducted by 

Defendant’s counsel in violation of the Fed. Rules of Civ. Pro. and the Local Rules.

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On October 19, 2022, Plaintiff and his counsel, Jocelyn R. Rocha, Esq.,

1

, attended 

Plaintiff’s deposition from Plaintiff’s counsel’s office which was conducted via zoom by 

Defendant’s Counsel, Mr. Reginald Clyne, Esq. From early on in the proceedings, Mr. Clyne’s 

lack of professionalism and civility began to become apparent. The deposition was laden with a 

continuous stream of snarky, accusatory questions and innuendos from Mr. Clyne including 

charges of impropriety against Plaintiff and his counsel after the first break was taken. See,

e.g., Ex. 1. at 33:16-24, ECF No. 50-1 at p. 33:16-24. (“Q. Did you talk at all about your testimony 

or about what you will say?”; “Just for the record, Mr. Alburqerque is a witness under examination 

and is not permitted to speak to his attorney, so I'm allowed to ask him what he spoke about and 

know what he spoke about.”); and threats of charges of perjury and sanctions towards Plaintiff and 

his counsel. See id. at 41:17-42-12.(Q. (By Mr. Clyne)“Do you realize you're under oath?”; Q. Do 

you realize that it is an act of perjury if you lie under oath?”; Q. “So I want you to really think 

carefully before you answer these questions”) See also id. at 43:4-8 (By. Mr. Clyne) “I’m just 

telling you, you'll get sanctioned. I don't want to sanction you because you're a young attorney, but 

when a witness is under oath and they're on the stand, they cannot talk to their attorney.”) This 

conduct served no other purpose but to intimidate Plaintiff and Ms. Rocha and was in direct

violation of the Federal and local rules as it impeded and frustrated the fair examination of Plaintiff. 

Pursuant to the Federal Rules, a witness has the same rights and privileges during a 

deposition as would a witness testifying in court at trial. See. Fed. R. Civ. P. 30(c)(2). Under that 

premise, courts have ordered depositions to be retaken where parties or their counsel violate ethical 

1Ms. Rocha is a new attorney, admitted as a member of the Florida Bar on September 22, 2022,

and admitted in this District Court as of October 6, 2022.

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and professional norms during the proceeding. See Soule v. RSC Equip. Rental, Inc., No. 11-

2022, 2012 WL 5060059 at *3 (E.D. La. Oct. 18, 2012)(where the Court ordered a deposition to 

be terminated and enjoined conduct such as: yelling or raising voices; using a confrontational or 

argumentative tone or language; accusing witnesses of lying, providing false testimony, or 

providing testimony that is not true; and disrupting or cutting off witness responses.”).

Wary of Mr. Clyne’s behavior, Ms. Rocha searched Mr. Clyne on the Florida Bar website.

In doing so, Ms. Rocha discovered that Mr. Clyne was delinquent with the Florida Bar and not 

eligible to practice law. ECF No. 50-12. Upon discovering his delinquent status, Ms. Rocha

immediately requested a break to confer with counsel off the record, but Mr. Clyne refused to do 

so and threaten to move for sanctions against Ms. Rocha once again unless she allowed him to 

finish. ECF No. 50-2 at ¶. Upon completing his direct examination of Plaintiff, Mr. Clyne agreed 

to take a break to confer with Ms. Rocha. Id. At that time, the parties went off the record and Ms. 

Rocha informed Mr. Clyne of his ineligibility to conduct the deposition due to his delinquent status

off the record. Upon concluding their call, the parties went on the record and Ms. Rocha stated the 

parties’ agreement to adjourn the deposition and continue at another time due to Mr. Clyne’s 

ineligibility. ECF No. 50-49. Based upon this agreement, at approximately 11:48 AM, Plaintiff 

was dismissed from his counsel’s office with the understanding his deposition would be 

discontinued and rescheduled for a later date.

A few days after the encounter, after receiving Mr. Clyne’s certificate of good standing, in

satisfying the duty-to-confer requirement, Ms. Rocha emailed Mr. Clyne and sought his agreement 

to bar use of the October 19, 2022, deposition in this case. ECF No. 50-26. Mr. Clyne initially 

resisted, ignoring the fatal deficiency of the proceeding and insinuating Plaintiff’s request was 

motivated by his interest in revising his testimony. Id. Yet, upon further conferral, Mr. Clyne 

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agreed to strike Plaintiff’s deposition dated October 19, 2022, and retake Plaintiff’s deposition on 

a mutually convenient date and time. Id. Notwithstanding this agreement, Defendant now attempts 

to introduce limited portions of this inadmissible testimony in support of its Motion. See ECF No. 

44-3. Defendant’s contention that the issue with Mr. Clyne’s admission was resolved the same 

day is irrelevant. While Mr. Clyne was able to promptly correct the issue regarding his eligibility, 

at the time the deposition was conducted Mr. Clyne, was not a member of The Florida Bar in good 

standing and therefore was prohibited from engaging in the practice of law. ECF No. 50-12. See

R. Regul. Fla. Bar 1-3.6. Plaintiff avidly denies and takes issue with Defendant’s unfounded 

accusation that Plaintiff changed his testimony during his second deposition. See ECF No. 44 at 

¶¶13-14. This allegation is nothing more that Defendant’s flawed attempt to use the impeded and 

frustrated testimony of Plaintiff. To overlook Counsel’s ineligibility (no matter how fleeting) 

would be in direct violation of the S.D. Fla. L.R. 3 (“[t]o remain an attorney in good standing of 

the bar of this Court, each member must remain an active attorney in good standing of The Florida 

Bar, specifically including compliance with all requirements of the Rules Regulating The Florida 

Bar, as promulgated by the Supreme Court of Florida. Attorneys who are not in good standing of 

the bar of this Court may not practice before the Court”)(emphasis added); the S.D. Fla. L.R. 4(a), 

(“[e]xcept when an appearance pro hac vice is permitted by the Court, only members of the bar 

of this Court may appear as attorneys before this Court. Attorneys residing within this District 

and practicing before this Court are expected to be members of the bar of this Court”) (emphasis 

added); and S.D. Fla. L.R.11.1 ((a)The Bar of this Court shall consist of those persons heretofore 

admitted ... in accordance with the Rules Governing the Admission, Practice, Peer Review, and 

Discipline of Attorneys.) (emphasis added). Accordingly, Pursuant to Rule Fed. R. Civ. P. 56(c)(2) 

Plaintiff requests that in making the determination of whether there is a genuine factual issue for 

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trial in this case, the Court disregards or ignores Plaintiff’s deposition dated October 7, 2022, relied 

on by the Defendant as it is otherwise inadmissible and could not be “reducible to admissible form” 

at trial. Id. At this stage, this Court is required to examine “[o]nly disputes over facts that might 

affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 

(1986). This Court may not consider non-material facts, nor should it weigh material evidence to 

determine the truth of the matter. Id. at 249. Plaintiff contends that without taking the inadmissible 

testimony into consideration, it is apparent that Defendant has failed to meet its burden. But even 

if the Court was to consider the inadmissible evidence, Plaintiff demonstrates below that 

Defendant has failed to show that it is entitled to judgment as well as highlights the necessity for 

a jury to evaluate and weigh the factual issues which exist.

II. LEGAL STANDARD

Summary judgment is appropriate only where it is shown that there is no genuine dispute 

as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If there is a conflict in the evidence, 

the nonmoving party’s evidence is to be believed and all reasonable inferences must be taken in 

favor of the nonmoving party. Anderson, 477 U.S. at 255; Shotz v. City of Plantation, Fla., 344 

F.3d 1161, 1164 (11th Cir. 2003).

In the context of discrimination or retaliation cases, summary judgment is not a preferred 

result because intent and motive, is generally a question of fact that only a jury can make. See 

Batey v. Stone, 24 F.3d 1330, 1336 (11th Cir. 1994)(where the Court stated granting summary

judgment which necessarily involves examining motive and intent is especially questionable); 

Hairston v. Gainesville Sun Pub. Co., 9 F.3d. 913 at 918 (11th Cir. 1993)(stating that “[t]he Court 

must avoid weighing conflicting evidence or making credibility determinations” when deciding a 

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motion for summary judgment). The Supreme Court warned against “denigrat[ing] the role of the 

jury.” Anderson, 477 U.S. at 255 and has unequivocally held that courts “should give credence to 

the 'evidence favoring the nonmovant as well as that evidence supporting the moving party that is 

un-contradicted and un-impeached, at least to the extent that that evidence comes from 

disinterested witnesses.’ ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, (2000). See 

also Patterson v. Georgia Pac., LLC, 38 F.4th 1336, 1350–51 (11th Cir. 2022)(holding that “‘when 

conflicts arise between the facts evidenced by the parties, we must credit [the nonmovant's] version.’ And that is true even if, as is often the case, the plaintiff's evidence consists 

primarily or solely of her own self-serving sworn statements or testimony.”(citations omitted)).

III.ANALYSIS

A. Plaintiff has Produced Evidence that he Complained of Discrimination and 

Retaliation he suffered Adverse Employment Actions

As Defendant has noted, the similar statutory language in the FCRA and Title VII require 

identical interpretation. See Ceus v. City of Tampa, 803 Fed. Appx. 235, 244 (11th Cir. 2020).

Accordingly, both of Plaintiff’s claims should be evaluated equally. In order to establish a prima 

facie case for retaliation under Title VII, Plaintiff must demonstrate that: “(1)[]he engaged in 

statutorily protected expression; (2) that she suffered an adverse employment action; and (3) that 

there is some causal relation between the two events.” Meeks v. Computer Assocs. Int'l, 15 F.3d

1013,(11th Cir. 1994). Moving for summary judgment, Defendant ignores binding authority and 

undisputed evidence to argue that Plaintiff cannot meet the first and third element to establish a 

prima facia case. Plaintiff disagrees. 

1. There are genuine issues of material fact as it pertains to whether Mr. 

Monteagudo engaged in statutorily protected activity.

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To meet the first element and survive summary judgment, “plaintiff must not only show that 

he subjectively (that is, in good faith) believed that his employer was engaged in unlawful 

employment practices, but also that his belief was objectively reasonable in light of the facts and 

record presented.” Little v .United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 

1997). However, Plaintiff need not prove that the “underlying discriminatory conduct was actually 

unlawful” in order to overcome summary judgment on a retaliation claim. Id. In Little, the plaintiff 

failed to report a racist remark to the proper personnel until eight months after the remark was said. 

Id. Thus, the 11th Circuit found it “implausible” to presume that Little reasonably believed that this 

remark constituted a violation of law. Id. Standing on the opposite side of the spectrum is Plaintiff, 

who, each time, complained immediately about the disparate treatment he experienced and the 

mistreatment he was subjected to in consequence of his complaints. To be clear, Plaintiff alleged 

that he was retaliated against for his complaints of discrimination and disparate treatment. ECF 

No. 13 at ¶¶ 19-27, 34-37, 46-49 (emphasis added). The evidence reflects that Plaintiff’s 

perception of his work environment, was of unfair treatment based on his complaints of retaliatory 

conduct he experienced. Plaintiff made several complaints to Defendant starting on September 14, 

2020, and extending until the day of his termination on October 7, 2020.

There is a factual dispute over whether Plaintiff's complaints specifically indicated he was 

complaining of discrimination rather than general workplace animosity between co-workers.

While Defendant attempts to categorize Plaintiff’s complaint on September 14, 2020 as merely a 

work dispute about “disrespect” it has failed to present undisputed evidence that supports its

position that is entitled to summary judgment.

Plaintiff began working with Defendant on August 14, 2019, under the supervision of Noel 

Leon (hereinafter “Leon”). ECF No. 51 at ¶¶ 8-9. Early on Leon inquired about what part of Cuba 

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Plaintiff was from and how long had he been in the United States. ECF No. 51 at ¶ 9. After that 

interaction, Leon would tell other employees referring to Plaintiff that “these Cubans are lazy” [Id.

at ¶ 9.]; Leon spoke to Plaintiff in a demeaning and disrespectful manner as if Plaintiff was inferior 

to him because of where he came from or since he did not speak English. Id. Leon would closely 

follow Plaintiff at the worksite and was quick to admonish Plaintiff if he was taking a break even 

though breaks throughout the day were mandated as part of the company’s safety rules. Id. Leon

also threatened with and issued Plaintiff unfounded discipline in more than one occasion, [id.] and 

often assigned Plaintiff unfavorable tasks over other employees. Id. at ¶ 5, 26. 

On or about September 14, 2020, Leon assigned Plaintiff to work with a different operator to 

perform tasks at another location. Id. Plaintiff asked Leon to reconsider the assignment as he had 

an issue with his method of transportation and in response Leon threaten to fire him. Id. Feeling 

like he was at the end of his rope, Plaintiff decided to go to the main office to complain about 

Leon’s discriminatory behavior and seek intervention from the owner, Chris De Moya (“De 

Moya”). Id. at ¶ 10. That same day, Plaintiff went to the office and asked to speak to De Moya. Id. 

at ¶ __. When Plaintiff arrived, De Moya asked administrative assistant, Susana Giraldo, 

(“Giraldo”) to assist De Moya in communicating with Plaintiff as he concededly did not 

understand or speak Spanish fluently. Id. at ¶ 11. During that meeting, Plaintiff, who was 

admittedly distraught during their conversation, told De Moya about the discrimination he was 

subjected to because he was Cuban and did not speak, write, or read English. [Id. at ¶¶ 13, 44].

During the meeting, Plaintiff described the several instances of disrespectful and belittling 

comments Leon made towards him and the treatment he subjected him to as if Plaintiff was inferior 

to Leon -including the most recent unwarranted threats of termination. Id. at ¶ 14. Plaintiff asked 

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De Moya to transfer him away from Leon. ECF No. 51 at ¶ 17. De Moya told Plaintiff he would 

speak to Leon, and that same day, made arrangements to transfer Plaintiff. Id.

In its Motion, Defendant does not dispute that Plaintiff complained about Leon disrespecting 

him and requested a transfer. ECF No. 44 at ¶¶10-11. Defendant, however, contends Plaintiff’s 

complaint was not of discrimination using nothing more than De Moya’s and Giraldo’s denials to 

dispute Plaintiff’s testimony. ECF No. 45 at 12-13. Defendant appears to claim that the testimony 

of these two witnesses somehow supersede Plaintiff’s. Based solely on these convenient denials,

Defendant asks this Court to make credibility determinations in its favor. But that is not the 

standard. Reeves, 530 U.S. at 151 (2000)(holding that “although the court should review the record 

as a whole, it must disregard all evidence favorable to the moving party that the jury is not required 

to believe”); see also, Hinson v. Clinch County, Georgia Bd. of Educ., 231 F.3d 821, 827 (11th 

Cir. 2000)(quoting Reeves for proposition that courts do not give credence to uncontradicted 

testimony of interested witnesses2 at summary judgment). In doing so, Defendant fails to 

acknowledge—let alone rebut—the evidence that calls into question De Moya’s and Giraldo’s 

recollection of their conversation with Plaintiff. For example, the record shows that: 1) De Moya 

conceded that due to the language barrier he did not understand everything Plaintiff said and that 

he relied on Giraldo’s translation; 2) that Giraldo does not have any particular training in 

translation; and 3) that neither Giraldo nor De Moya kept record of the meeting. ECF No. 51 at ¶ 

11. Notwithstanding this undisputed evidence, both De Moya and Giraldo testified repeatedly that 

they clearly remember Plaintiff “never mentioned discrimination” but were not able to recall any 

2 Giraldo is an interested witness. See ECF No. 50-11 at 58:3-8 at which highlights evidence of 

her bias.

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other specific of what was said during that meeting. Id. at ¶ 16. Under the applicable standard, 

Plaintiff’s testimony about what was said in this meeting, is presumed to be true and all reasonable 

inferences must be drawn in his favor, “[e]ven though the ‘facts,’ as accepted at the summary 

judgment stage of the proceedings, may not be the ‘actual’ facts of the case.” Davis v. Williams,

451 F.3d 759, 763 (11th Cir.2006) (internal quotation marks and citations omitted). “And that is 

true even if, as is often the case, the plaintiff's evidence consists primarily or solely of his own 

self-serving sworn statements or testimony.” Reese v. Herbert, 527 F.3d 1253, 1271 (11th Cir. 

2008); see also Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir. 2005) (“Courts routinely and 

properly deny summary judgment on the basis of a party's sworn testimony even though it is selfserving.”). Thus, at best, Defendant has established a conflict between the parties’ allegations 

exists.

Defendant further contends that even if the Plaintiff had a good faith belief that he was being 

discriminated against the same was not objectively reasonable because he did not provide any 

evidence of the derogatory comments or that his complaints were more than a work disagreement. 

In support of its contention, Defendant ignores binding precedent or otherwise cites to cases that 

are distinguishable or that stand for a different proposition all together. Importantly, Defendant 

appears to ignore the legal precedent that “[t]here is no magic word requirement.” Olson v. Lowe's 

Home Ctr. Inc., 130 Fed.Appx. 380, 391, n.22 (11th Cir. 2005). Further, a plaintiff need not prove 

the underlying discriminatory conduct that he opposed was actually unlawful in order to establish 

a prima facie case and overcome a motion for summary judgment; such a requirement “[w]ould 

not only chill the legitimate assertion of employee rights under Title VII but would tend to force 

employees to file formal charges rather than seek conciliation of informal adjustment of 

grievances.” Patterson v. Georgia Pac., LLC, 38 F.4th 1336, 1352 (11th Cir. 2022). In other words, 

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Plaintiff just has to show that the conduct of which he complained of were “close enough” to 

unlawful discrimination as to satisfy the objective component. Clover v. Total Sys. Servs., Inc., 

176 F.3d 1346, 1351 (11th Cir. 1999). Plaintiff meets this standard; and, at minimum, the disputes 

between the parties, creates an issue of fact to be determined by the jury.

Plaintiff has presented evidence that he believed the discrimination he was subjected to by 

Leon stemmed from the fact he was Cuban who migrated to the United States and does not speak, 

read, or write any English. ECF No. 51 at ¶. The content of Plaintiff’s complaint, therefore, alleged 

unlawful employment practice. See 42 U.S.C. §2000e-2(a)(1); Castaneda v. Partida, 430 U.S. 

482, 499 (1977). Plaintiff further presented evidence that during their meeting, he told De Moya 

that Plaintiff was discriminated and that he described several instances of how Leon was 

disrespectful, describing the facts which supported his belief that the basis of that treatment was

related to where he was from. Id. at ¶ 13. Notwithstanding well settled law, Defendant in its Motion 

as well as throughout this litigation has made a great deal of the fact that Leon was also Cuban. 

See ECF No. 44 at ¶ 15. To the extent Defendant contents this fact has any weight in evaluating 

Plaintiff’s subjective belief, such argument wholesale lacks merit and the Supreme Court has

warned against such biased assumptions. See Castaneda, 430 U.S. at 499 (“[b]ecause of the many 

facets of human motivation, it would be unwise to presume as a matter of law that human beings 

of one definable group will not discriminate against other members of their group.”). This may be 

an argument for the jury but does not support a grant of summary judgment in Defendant’s favor.

Furthermore, the undisputed fact that De Moya immediately transferred Plaintiff to another 

job site - lends credence to Mr. Monteagudo’s claim that his conversation with De Moya was about 

more than a grievance of a minor nuisance or a complaint about an isolated workplace 

disagreement under the perception theory which has been recognized by other courts. See

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Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002), Wesolowski v. Napolitano, 2 

F.Supp.3d 1318 (S.D. Ga. 2014). Especially, when as conceded by the Defendant, transferring 

employees among projects to resolve “personality conflicts” was not a common practice. ECF No. 

51 at ¶ 17.

It is well settled law that while some circumstances on their own may be insufficient to 

sustain an independent cause of action, when raised together, the events may reasonably lead a 

Plaintiff to believe that he was opposing an unlawful employment practice. Howell v. Correctional 

Med. Serv., 612 Fed. Appx. 590, 691 (11th Cir. 2015). Therefore, when the evidence is considered 

as a whole, Plaintiff has certainly presented enough evidence to raise the inference that his

complaint meets the standard; and, at minimum, the evidence presented create an issue of fact to 

be determined by the jury.

2. Plaintiff survives summary judgment on his retaliation claim because he has 

demonstrated that he was subjected to mistreatment and a hostile work environment

in retaliation to his complaints after he was transferred.

In its Motion Defendant only argues that Plaintiff’s termination was an adverse action. 

Plaintiff agrees. However, Plaintiff contends that the threats levied against Plaintiff by Comes, 

Alejandro Leon, and Nasso, also constitute adverse actions under the anti-retaliation provision. 

Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998)(holding that “[t]itle VII's 

protection against retaliatory discrimination extends to adverse actions which fall short of ultimate 

employment decisions.”) Plaintiff claims that he faced adverse employment actions after his 

transfer when, he was confronted by Comes and told that Comes will be watching him, when he 

was physically attacked and threaten by Alejandro Leon, and when he was issued discipline, and 

when he was terminated by Nasso. 

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Defendant’s Motion highlights the well settled law discriminatory treatment is actionable 

only if it reaches a sufficient level of substantiality. However, in overlooking the events that 

occurred between Plaintiff’s transfer and his termination, Defendant ignores the binding authority 

that recognizes that “mistreatment based on retaliation for a protected conduct is actionable 

whether or not the mistreatment rises to the level of a tangible employment action but only if the 

mistreatment ‘might have dissuaded a reasonable worker from making or supporting a charge of 

discrimination.’ ” Monaghan v. Worldpay US, Inc., 955 F.3d 855, 861(11th Cir. 2020).

In Monaghan the 11th Circuit found that statements from a supervisor to the Plaintiff such 

as Plaintiff “better watch it” and “how dare you make complaints about me” “well might have 

dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Id. at 863; 

see also Burlington Northern and Sata Fe Ry. Co. v. White, 548 U.S. 53 at 70-72 (2006)(holding 

that a jury could reasonably find that reassignment to a less prestigious and more arduous position 

and a 37-day suspension without pay were—despite the receipt of backpay—materially adverse 

retaliatory actions). Like in Monaghan, here Plaintiff was confronted by Comes and told that 

Comes had been warned Plaintiff was “problematic” and was going to be watching him. ECF No. 

51 at ¶ 26; Plaintiff was assigned tasks that he was overqualified for, [id.] physically attacked and 

threaten by Alejandro Leon and subjected to unfair discipline. Id. at ¶ 46. Therefore, a reasonable 

jury could find that Comes, Alejandro Leon, and Nasso, motivated by their retaliatory intent,

subjected Plaintiff to a hostile work environment. The Court should therefore deny Defendant’s 

Motion and permit a jury to hear the evidence. 

3. There is a casual link between Plaintiff’s Complaints and the Further Mistreatment 

Which Ultimately Led to his Termination.

Under the third prong, “a plaintiff need only show that the protected activity and the 

adverse action were not wholly unrelated.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 

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799 (11th Cir. 2000). “At minimum, a plaintiff must generally establish that the employer was 

actually aware of the protected expression at the time it took the adverse employment action.” 

Clover, 176 F.3d at 1354. A plaintiff may also demonstrate a relationship through proximity to the 

complaint and the adverse employment action. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 

2004). As such, a court deciding whether a retaliation claim survives summary judgment need not 

only rely on the McDonnel Douglas framework. Hamilton v. Southland Christian Sch., Inc., 680 

F.3d 1316, 1320 (11th Cir. 2012) (holding that a plaintiff in a retaliation claim survives summary 

judgment if she otherwise presents “enough circumstantial evidence to raise a reasonable 

inference” that the termination was linked to the protected activity). Defendant argues that: i) 

Plaintiff cannot show that any decisionmaker had knowledge of his complaints; and ii) Plaintiff 

has no evidence that his termination is related to such complaints. ECF No. 45 at p. 14. Plaintiff 

disagrees. Mr. Monteagudo has certainly presented enough evidence to raise the inference that the 

adverse employment actions were due to his complaints of discrimination and further 

mistreatment. 

iii) Those who rendered the decision to terminate Plaintiff knew of his verbal complaints 

and subjected Plaintiff to disparate treatment and ultimately termination because of 

his complaints.

Notwithstanding Defendant’s denials, Plaintiff has provided ample evidence that 

demonstrates that the same individuals that were involved in the further mistreatment that he was 

subjected to which led to Plaintiff’s termination -namely Comes, Nasso, and Alejandro Leon--

were all aware of his complaints. First, it is undisputed that De Moya spoke to Leon and informed

him of Plaintiff’s transfer to a different project after Plaintiff’s complaints. Id. at ¶ 24. Furthermore, 

it’s also undisputed that Leon knew which project Plaintiff was being transferred to. Id. In fact, 

the evidence reflects Leon spoke to Victor Suarez (“Suarez”) the Supervisor of the project about 

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Monteagudo as early as two days after the transfer was made. Id. Further, Manuel Cardona 

(“Cardona”), the foreman at the new jobsite, testified that Suarez advised him and the other three 

supervisors of Mr. Monteagudo’s transfer. Id. Notwithstanding this testimony, Comes and Nasso 

both testified that that they did not recall speaking to Suarez about Plaintiff, but both admitted they 

“heard” the reasons Plaintiff was transferred away from Leon’s supervision. Id. Reviewing the 

evidence in the light most favorable to Plaintiff, it is reasonable to infer that Suarez, as the project 

supervisor, then informed his direct reports of Monteagudo being transferred and the events that 

led to that decision. See Goldsmith v. City of Atmore, 996 F.2d 1155 at 1163 (11th Cir. 1993).

While Nasso denied knowing who Leon was initially, Nasso conceded during his testimony that

he knew an incident had happened at the other project with Plaintiff and Leon, former supervisor.

Id. He also admitted that he knew that was the reason Plaintiff got transferred to the new project

and that he knew there was an issue with Plaintiff and a quality control (“QC”) guy but he did not 

recall any other specifics. Id. Based upon this information, an inference can be drawn by a jury 

that both Nasso and Cardona – the two individuals that were involved in Plaintiff’s termination -

knew of Plaintiff’s protected activity. Plaintiff has produced the evidence; it is up to a jury to 

decide whether this inference is credible. 

Regarding Comes, Plaintiff has presented evidence that from the outset, Comes made it 

clear to Plaintiff he knew of Plaintiff’s complaint against Leon. Id. at ¶ 26. Comes wasted no time 

and within a few days of Plaintiff’s transfer confronted Plaintiff about his protected activity while 

insinuating he will be “keeping an eye on [plaintiff]” and cautioned him not to start any problems. 

Id. These were not hollow threats, as Comes as his direct supervisor had the authority to terminate 

Plaintiff and Plaintiff had heard from various co-workers that he needed to be careful. Id. Comes’ 

denials of this knowledge cannot prevail at summary judgment. Plaintiff’s sworn testimony, 

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standing alone, constitutes sufficient evidence upon which to dispute Defendant’s version of events 

and require denial of summary judgment. See Strickland v. Norfolk Southern Railway Co., 692 

F.3d 1151, 1160 (11th Cir. 2012) (“even in the absence of collaborative evidence, a plaintiff’s own 

testimony may be sufficient to withstand summary judgment”); see also Rollins v. TechSouth, Inc., 

833 F.2d 1525, 1530-31 (11th Cir. 1987)(reversing summary judgment because plaintiff’s affidavit 

created questions of fact for jury determination).

Furthermore, Plaintiff presented direct evidence of retaliation. It is undisputed that on 

October 2, 2020, Plaintiff was confronted by Leon’s son—Alejandro Leon (“Alejandro”)—

regarding Plaintiff’s complaints about Leon, his father. Id. at ¶ 46. The record evidence supports 

that Plaintiff immediately reported the incident as retaliation to Comes. Id. at ¶ 47. Plaintiff 

described to Comes what had transpired including Alejandro’s threat to “keep his dad’s name out 

of Plaintiff’s mouth.” Despite the seriousness of the events, Comes deterred Plaintiff from 

reporting the incident to the main office assuring Plaintiff that he would “handle it”. Id. While 

Comes denied Plaintiff’s complaint regarding the incident, Comes’ phone records reveal that on 

the day of the incident, Plaintiff called Comes and shortly thereafter, Comes and Alejandro spoke 

on the phone three times after the altercation between Plaintiff and Alejandro. Id. Therefore, it is 

reasonable to infer that shortly after Plaintiff’s complaint, Plaintiff’s complaint was directly 

relayed back to Alejandro by Comes. See Clover, 176 F.3d at 1354 (“[t]he defendant’s awareness 

of the protected statement, however, may be established by circumstantial evidence.”); see also 

Jacomb v. BBVA Compass Bank, 791 F. App’x 120, 124 (11th Cir. 2019) (finding that even without 

direct evidence, it was “plausible that a relatively high-level manager would know about an EEOC 

charge filed by one of the employees he supervises”). Accordingly, there can be no dispute by 

Defendant that those involved in the decisions which subjected Plaintiff to adverse actions, 

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including Plaintiff’s termination, knew of his protected activities, and harassed and terminated 

him because of them. 

vi. Casual Connection Exists between Plaintiff’s complaints and the Adverse employment 

Actions he was subjected to up to and including his termination

A plaintiff can show a causal connection by showing a close temporal proximity between 

her employer’s discovery of the protected activity and the adverse action, but the temporal 

proximity must be “very close.” Thomas v. Dejoy, No. 5:19-cv-549-TKW-MJF, 2021 WL 

4992892, at *10 (N.D. Fla. July 19, 2021) (looking to temporal proximity test post-Babb and citing 

Debe). For example, a district court found causation where “numerous adverse events . . . occurred 

within weeks after each of [the plaintiff’s] protected acts.” Norman v. McDonough, No. 2:20-cv01765-KOB, 2022 WL 3007595, at *9 (N.D. Ala. July 28, 2022).

Under this new framework, the Court concluded that, viewed collectively, the acts 

complained of by the plaintiff—being improperly listed as a no-show for work, receiving 

reprimands and a suspension, and having a supervisor solicit co-workers for negative comments 

about the plaintiff, threaten to shoot the plaintiff in the head if she called headquarters to complain, 

and a delay in authorizing medical treatment for the plaintiff's allergic reaction—were “sufficient 

to constitute prohibited discrimination.” Id.

B. Plaintiff Survives Summary Judgment Because There Is a Genuine Issue of Fact as to 

The Legitimate Non-Retaliatory Reason For His Termination and Plaintiff Has Elicited 

Evidence Which Refutes Defendant’s Reason For Termination. 

Though Mr. Monteagudo contends that there are issues of fact as to Defendant’s “reasons” 

for termination, even if this was not disputed, Plaintiff survives summary judgment because those 

reasons are not supported by the evidence in this case. In order to show pretext, a plaintiff must 

show that, based on a preponderance of the evidence, the proffered reason(s) are weak, 

implausible, inconsistent, or contradictory so that a “reasonable factfinder could find them 

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unworthy of credence.” Combs v. Plantation Patterns, 106 F. 3d 1519, 1538 (11th Cir. 1997). A 

plaintiff can also show pretext where a defendant has proffered “shifting and inconsistent 

explanations” for termination. See Cleveland v. Home Shopping Network, Inc., 369 F. 3d 1189, 

1193 (11th Cir. 2004). Defendant’s proffered reason for Plaintiff’s termination, evaluated 

individually, contains a number of inconsistencies so that there is significant question as to the 

credibility of any of them. Thus, such a question should be left to a jury.

2.. Defendant did not follow its own disciplinary policy

Again, Defendant’s proffered reason for termination is that Plaintiff violated safety rules 

when he was caught sleeping on a roller. ECF No. 44 at ¶¶ 35-43. Under the third prong, “a plaintiff 

need only show that the protected activity and the adverse action were not wholly unrelated.” 

Brungart, 231 F.3d at 799. “At minimum, a plaintiff must generally establish that the employer 

was actually aware of the protected expression at the time it took the adverse employment action.” 

Clover, 176 F.3d at 1354. A plaintiff may also demonstrate a relationship through proximity to the 

complaint and the adverse employment action. Higdon, 393 F.3d at 1220. Using these standards, 

Plaintiff has certainly presented enough evidence to raise the inference that his termination was 

due to his complaints of discrimination and harassment. The individuals who participated and/or 

made the decision to terminate Plaintiff all knew of his discrimination complaints. See Section A. 

3. iii supra. The time frame in this case also leans towards a finding of causation. Plaintiff made 

his first complaint and was transferred on September 14, 2020. See ECF No. 51 at ¶. He was then 

terminated on October 7. 2020. Id. at ¶ 38. The proximity to the complaint and transfer and his

termination is indicia of Defendant’s illegal actions. 

Simply put, as it pertains to a claim for retaliation, it does not matter whether Plaintiff 

believed the decision makers had bias against him based on his national origin or race; rather, the 

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question is did they have a bias against him because of his protected activity. Plaintiff contends 

they did, as evidenced by their knowledge and the proximity. There has also been evidence 

presented by Plaintiff to call into question whether the proffered reason for his termination was, in 

fact, valid. See Section B.i., supra. Because there is significant issue of fact as it pertains to the 

evidence in this case, a jury should decide whether Plaintiff’s alleged safety violation was, indeed, 

the reason for his termination. 

CONCLUSION

In sum, Plaintiff has identified a bevy of facts, and provided record evidence, of which 

there remain genuine issues. Furthermore, Plaintiff has also demonstrated that, even if there were 

no disputed facts, Defendant has failed to meet its burden of proof under the law to warrant the 

granting of its Motion. Plaintiff respectfully requests that this Court DENY Defendant’s Motion 

and permit the facts to be presented to a jury.

Dated: April 3, 2023 Respectfully submitted,

/s/ Nathaly Saavedra 

Nathaly Saavedra, Esq. 

Fla. Bar No. 118315

Email: nathaly@peregonza.com

P. Brooks, LaRou, Esq. 

Fla. Bar No. 1039018

Email: brooks@peregonza.com

Juan J. Perez, Esq. 

Fla. Bar No. 115784

Email: juan@peregonza.com

PEREGONZA THE ATTORNEYS, PLLC 

5201 Blue Lagoon Drive, Suite 290

Miami, FL 33126

Tel. (786) 650-0202

Fax. (786) 650-0200 

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 3, 2023 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 or pro se parties identified on 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.

/s/ Nathaly Saavedra

Nathaly Saavedra, Esq. 

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SERVICE LIST

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:22-cv-22343-KMM Moore/Louis

Nathaly Saavedra, Esq. 

Fla. Bar No. 118315

Email: nathaly@peregonza.com

Juan J. Perez, Esq. 

Fla. Bar No. 115784

Email: juan@peregonza.com

P. Brooks, LaRou, Esq. 

Fla. Bar No. 1039018

Email: brooks@peregonza.com

PEREGONZA THE ATTORNEYS, PLLC

5201 Blue Lagoon Drive,

Suite 290, 

Miami, FL 33126

Tel. (786) 650-0202

Fax. (786) 650-0200

Attorneys for Plaintiff

Reginald J. Clyne, Esq.

Florida Bar No. 654302

reginald.clyne@qpwblaw.com

Chanelle Artiles, Esq. 

Florida Bar No. 10006402

chanelle.artiles@qpwblaw.com

Quintairos, Prieto, Wood & Boyer, P.A.

9300 South Dadeland Blvd., 4th Floor

Miami, Florida 33156

Telephone: 305-670-1101

Attorneys for Defendant

Method of Service: CM/ECF notice

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