UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Clerk of Court 

September 13, 2024

For rules and forms visit

www.ca11.uscourts.gov

Clerk - Southern District of Florida

U.S. District Court 

400 N MIAMI AVE

MIAMI, FL 33128-1810

Appeal Number: 23-13157-HH

Case Style: Jorge Alburquerque v. The De Moya Group, Inc.

District Court Docket No: 1:22-cv-22343-KMM

A copy of this letter, and the judgment form if noted above, but not a copy of the court's 

decision, is also being forwarded to counsel and pro se parties. A copy of the court's decision 

was previously forwarded to counsel and pro se parties on the date it was issued.

The enclosed copy of the judgment is hereby issued as mandate of the court. The court's opinion 

was previously provided on the date of issuance.

Clerk's Office Phone Numbers

General Information: 404-335-6100 Attorney Admissions: 404-335-6122

Case Administration: 404-335-6135 Capital Cases: 404-335-6200

CM/ECF Help Desk: 404-335-6125 Cases Set for Oral Argument: 404-335-6141

Enclosure(s) 

MDT-1 Letter Issuing Mandate

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In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13157

____________________

JORGE MONTEAGUDO ALBURQUERQUE, 

Plaintiff-Appellant,

versus

THE DE MOYA GROUP, INC., 

A Florida Profit Corporation,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:22-cv-22343-KMM

____________________

JUDGMENT

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2 23-13157

It is hereby ordered, adjudged, and decreed that the opinion issued on this date in this appeal is entered as the judgment of this 

Court.

Entered: July 8, 2024

For the Court: DAVID J. SMITH, Clerk of Court

ISSUED AS MANDATE: September 13, 2024

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 [DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13157

Non-Argument Calendar

____________________

JORGE MONTEAGUDO ALBURQUERQUE, 

Plaintiff-Appellant,

versus

THE DE MOYA GROUP, INC., 

A Florida Profit Corporation,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:22-cv-22343-KMM

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2 Opinion of the Court 23-13157

____________________

Before JORDAN, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Jorge Monteagudo Alburquerque reported harassment by a 

supervisor and was transferred to a new position. Two of his new 

supervisors, one being the son of his previous supervisor, threatened Monteagudo’s job, physically attacked him, threatened to 

make him “disappear,” and told him not to report those incidents.

1

A third supervisor fired Monteagudo after finding him asleep on 

the job. Monteagudo sued under Title VII of the Civil Rights Act 

of 1964 and the Florida Civil Rights Act, alleging that his three new 

supervisors were retaliating against him for reporting the harassment by his initial supervisor. The district court granted summary 

judgment to the employer. We agree with the district court that 

summary judgment is appropriate with respect to the retaliatory 

termination theory of liability. But summary judgment was inappropriate as to the retaliatory harassment theory. Accordingly, we 

affirm in part, reverse in part, and remand for further proceedings 

consistent with this opinion.

I.

Monteagudo was a construction worker for De Moya 

Group, Inc. His supervisor, Noel Leon consistently harassed 

1 Plaintiff refers to himself by his first surname throughout his briefs, so we 

follow that convention. 

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23-13157 Opinion of the Court 3

Monteagudo based on Monteagudo’s Cuban descent and inability 

to speak English. Eventually, Monteagudo reported the harassment to the Vice President of Field Operations, Chris De Moya, 

and requested reassignment to a new job site. Chris De Moya 

promptly transferred Monteagudo. 

But Monteagudo’s problems only got worse from there. 

Upon arriving at the new job site, Manuel Comes—one of Monteagudo’s new supervisors—approached Monteagudo and said

that he would be keeping a close eye on Monteagudo. Apparently, 

“Comes had been warned [Monteagudo] was ‘problematic’” on his 

previous site. Not long after that interaction with Comes, Monteagudo was berated and struck by Alejandro Leon—another supervisor on Monteagudo’s new job site and the son of Noel Leon.

Alejandro Leon concluded the attack by threatening to make Monteagudo “disappear” “if anything happened to” Noel Leon. Monteagudo reported the attack to Comes, who responded by telling

Monteagudo to refrain from reporting it to anyone else. A few days 

later, Jerome Nasso (another supervisor on the new job site) fired 

Monteagudo after he found Monteagudo asleep on a machine. 

Monteagudo claims that he was subjected to harassment (by 

Comes and Alejandro Leon) and terminated (by Nasso) in retaliation for complaining about Noel Leon. The district court granted 

summary judgment to the De Moya Group. As to the retaliatory 

harassment theory, the district court said that Comes’s and 

Alejandro Leon’s actions toward Monteagudo were not sufficiently 

adverse. The retaliatory termination claim failed because the 

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record was insufficient to create a genuine dispute of fact that 

Nasso’s stated reason for the termination—Monteagudo sleeping 

on the job—was a lie to cover up retaliation. Monteagudo timely 

appealed. 

II.

We review the district court’s decision to grant summary 

judgment de novo. Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 

2008). We view the facts in the light most favorable to Monteagudo 

and draw all reasonable inferences in his favor. Id.

III.

Federal and Florida law both prohibit employers from retaliating against an employee in response to that employee’s decision 

to “oppose” unlawful discrimination. 42 U.S.C. § 2000e-3(a); see Fla. 

Stat. § 760.10(7). The substantive standards for the federal and state 

law claims are the same. Harris v. Pub. Health & Tr. of Miami-Dade 

Cnty., 82 F.4th 1296, 1300 n.2 (11th Cir. 2023). So our analysis here 

applies to Monteagudo’s claims under both statutes. 

Monteagudo does not rely on direct evidence of retaliation. 

He therefore must navigate the McDonell Douglas burden-shifting 

framework. Johnson v. Miami-Dade County, 948 F.3d 1318, 1325 

(11th Cir. 2020); see also McDonnell Douglas Corp. v. Green, 411 U.S. 

792 (1973). Monteagudo must first make out a prima facie case. To 

do so, he needs to present evidence from which a reasonable jury 

could find that (1) he engaged in statutorily protected activity, (2) 

he suffered an adverse action, and (3) the adverse action was

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causally connected to the protected activity. Johnson, 948 F.3d at 

1325. If a prima facie case of retaliation is established, then the De 

Moya Group must articulate a legitimate, non-retaliatory reason 

for the relevant adverse action. Id. If the De Moya Group cannot 

do so, then summary judgment is inappropriate. See Lewis v. City of 

Union City, 918 F.3d 1213, 1222 (11th Cir. 2019) (en banc) (citing 

Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1981)). But if 

the De Moya Group does provide a legitimate explanation for the 

relevant adverse action, the burden shifts back to Monteagudo, 

who must establish a genuine dispute as to whether the De Moya 

Group’s explanation is pretext for retaliation. Johnson, 948 F.3d at 

1325. 

Monteagudo has established the protected-activity component of the prima facie case. He testified that he went to Chris De 

Moya and reported Noel Leon for discriminating against him based 

on his Cuban nationality. The De Moya Group contests that any 

such complaint was ever made, but on summary judgment, we 

must read the record in Monteagudo’s favor. In this instance, that 

means adopting his version of the story. See Copeland v. Ga. Dep’t of 

Corr., 97 F.4th 766, 779 (11th Cir. 2024). And complaining to an employer about a supervisor’s national origin-based harassment is protected activity under Title VII. See Pipkins v. City of Temple Terrace, 

267 F.3d 1197, 1201 (11th Cir. 1997). 

Monteagudo has posited two different adverse actions: (A) 

retaliatory harassment by Comes and Alejandro Leon; and (B) retaliatory termination by Nasso. These two theories of liability rely 

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on different facts and implicate unique legal principles, so we separately assess the remaining steps of McDonnell Douglas with respect 

to each.

A.

The district court concluded that Comes’s and Alejandro 

Leon’s behavior toward Monteagudo could not form the basis of a 

Title VII retaliation claim because such behavior did not rise to the 

level of an “adverse action” for purposes of Title VII. In reaching 

that conclusion, the district court relied on our adverse action 

standard for discrimination claims and required proof that the conditions of Monteagudo’s employment (e.g., salary or job position) 

were affected. But the “adverse action” standard is “decidedly more 

relaxed” in a Title VII retaliation claim. Crawford, 529 F.3d at 973. 

When a plaintiff alleges that he was subjected to workplace 

harassment as a form of retaliation, the question is simply whether 

that harassment “well might have dissuaded a reasonable worker 

from making or supporting a charge of discrimination.” Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks and citation omitted). That question is almost always 

one for a jury. See Monaghan v. Worldpay US, Inc., 955 F.3d 855, 862–

63 (11th Cir. 2020). Only the most “petty and trivial actions against 

an employee” will be insufficient to generate a genuine dispute of 

fact. Crawford, 529 F.3d at 973 n.13. 

Here, taking the facts in the light most favorable to Monteagudo, a reasonable jury could find that two of his supervisors 

were openly hostile to him and their hostility was related to 

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Monteagudo’s reporting Noel Leon to Chris De Moya. Comes told 

Monteagudo that he was keeping an eye on Monteagudo specifically because he heard bad things about Monteagudo from the previous job site, at which Noel Leon was Monteagudo’s supervisor. 

Alejandro Leon physically assaulted and threatened to make Monteagudo “disappear” “if anything happened to” Noel Leon. And 

when Monteagudo reported that incident to Comes, Comes dissuaded Monteagudo from reporting it to anyone else. We 

acknowledge that the De Moya Group strenuously disputes that

any of those things happened. But, again, at this stage of the litigation, we must assume all those events occurred. Because a reasonable jury could find that such events would “dissuade[] a reasonable worker from making or supporting a charge of discrimination,” 

Monteagudo established an adverse action for purposes of summary judgment. Burlington, 548 U.S. at 68.

The district court also concluded that summary judgment 

would be appropriate on the causal-connection component of the 

prima facie case because it was not clear that Comes and Alejandro 

Leon acted with retaliatory animus. In the district court’s view, it 

could be that Comes and Alejandro Leon desired merely to “protect” Noel Leon. The obvious question, however, is from what did 

they want to protect Noel Leon? On this record, a reasonable jury 

could find that they acted to protect Noel Leon from Monteagudo’s discrimination complaint. Put another way, a reasonable 

jury could find that they acted with the intent to dissuade Monteagudo from pursuing his discrimination complaint against Noel 

Leon any further. That is textbook Title VII retaliation. 

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The De Moya Group contends that Monteagudo did not sufficiently present the retaliatory harassment theory in his opening 

brief on appeal and that he has therefore forfeited the argument. 

We disagree. For starters, Monteagudo described his allegations as 

“receiv[ing] a hostile work environment subsequent to his transfer 

and, ultimately, termination of his employment.” Appellant’s Br. at 

20 (emphasis added). That description illustrates that Monteagudo

considers each theory as an independent Title VII violation. More 

importantly, Monteagudo dedicated four pages of his opening brief 

to arguing that the district court misstated the elements of a prima 

facie case of Title VII retaliation. Id. at 15–18. Although not explicit, 

that portion of brief challenges the district court’s ruling on the retaliatory harassment theory of liability. Monteagudo’s argument in 

that section of the brief would be irrelevant if Monteagudo had appealed only the district court’s retaliatory termination ruling because the district court assumed that Monteagudo’s retaliatory termination theory stated a prima facie case. 

The De Moya Group never articulated a legitimate business 

explanation for Comes’s and Alejandro Leon’s conduct, which it

asserts never occurred. Accordingly, Monteagudo’s success in establishing a prima facie case is sufficient to overcome summary

judgment for the retaliatory harassment theory of liability. See 

Lewis, 918 F.3d at 1222 (citing Burdine, 450 U.S. at 254).

B.

As for the retaliatory termination theory of liability, the district court correctly granted summary judgment to the De Moya 

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Group. As noted, the district court assumed that Monteagudo 

made out a prima facie case and resolved the claim on pretext, but 

we are not bound by that assumption. See LeCroy v. United States, 

739 F.3d 1297, 1312 (11th Cir. 2014) (“We may affirm on any 

ground supported by the record.”). Although there is no doubt that 

termination is a sufficiently adverse action, Monteagudo has presented no non-conclusory, non-speculative evidence that Nasso’s 

decision to fire him was at all related to Monteagudo’s complaint 

against Noel Leon. There is no competent evidence that Nasso 

even knew about Monteagudo’s complaint about Noel Leon. And 

even if he did know, there isn’t evidence that allows for the conclusion that Nasso would be inclined to retaliate against Monteagudo—unlike Comes and Alejandro Leon, who voiced their displeasure with Monteagudo’s decision to report Noel Leon. Accordingly, we conclude that Monteagudo failed to establish a genuine 

dispute of fact as to the causal-connection component of the prima 

facie case. 

For the same reasons, Monteagudo also failed to establish 

pretext. The De Moya Group articulated a legitimate, non-retaliatory reason for Nasso’s decision to fire Monteagudo: Nasso discovered Monteagudo sleeping on the job while he was supposed to be 

operating machinery. Because no evidence suggests retaliatory animus on the part of Nasso, there is likewise no evidence that 

Nasso’s stated reason was pretext for unlawful retaliation. 

We note that Monteagudo contested the admissibility of 

one of the two depositions for which he sat. He contends that the 

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district court erroneously relied on that deposition in granting summary judgment to the De Moya Group. The outcome of that evidentiary dispute would not affect our disposition of this appeal—

the retaliatory harassment claim would still proceed, and the retaliatory termination claim would still fail—so we need not resolve it.

IV.

Monteagudo has not established a sufficient case of retaliatory discharge, but his retaliatory harassment theory survives summary judgment. We AFFIRM in part, REVERSE in part, and 

REMAND for proceedings consistent with this opinion. 

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UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Clerk of Court 

July 08, 2024

For rules and forms visit

www.ca11.uscourts.gov

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 23-13157-HH

Case Style: Jorge Alburquerque v. The De Moya Group, Inc.

District Court Docket No: 1:22-cv-22343-KMM

Opinion Issued

Enclosed is a copy of the Court's decision issued today in this case. Judgment has been entered 

today pursuant to FRAP 36. The Court's mandate will issue at a later date pursuant to FRAP 

41(b). 

Petitions for Rehearing

The time for filing a petition for panel rehearing is governed by 11th Cir. R. 40-3, and the time 

for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise 

provided by FRAP 25(a) for inmate filings, a petition for rehearing is timely only if received in 

the clerk's office within the time specified in the rules. A petition for rehearing must include 

a Certificate of Interested Persons and a copy of the opinion sought to be reheard. See 11th 

Cir. R. 35-5(k) and 40-1. 

Costs

Each party to bear its own costs.

Bill of Costs

If costs are taxed, please use the most recent version of the Bill of Costs form available on the 

Court's website at www.ca11.uscourts.gov. For more information regarding costs, see FRAP 39 

and 11th Cir. R. 39-1. 

Attorney's Fees

The time to file and required documentation for an application for attorney's fees and any 

objection to the application are governed by 11th Cir. R. 39-2 and 39-3. 

Appointed Counsel

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming 

compensation via the eVoucher system no later than 45 days after issuance of the mandate or 

the filing of a petition for writ of certiorari. Please contact the CJA Team at (404) 335-6167 or 

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cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher 

system. 

Clerk's Office Phone Numbers

General Information: 404-335-6100 Attorney Admissions: 404-335-6122

Case Administration: 404-335-6135 Capital Cases: 404-335-6200

CM/ECF Help Desk: 404-335-6125 Cases Set for Oral Argument: 404-335-6141

OPIN-1 Ntc of Issuance of Opinion

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