UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

CASE NO. 22-81149-CIV-CANNON/McCabe

YOLANDA HERNANDEZ, 

Plaintiff,

v. 

CAREERSOURCE PALM BEACH 

COUNTY, INC. and 

PALM BEACH WORKFORCE 

DEVELOPMENT CONSORTIUM,

Defendants.

____________________________________/ 

ORDER ACCEPTING MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION [ECF No. 24] 

THIS CAUSE comes before the Court upon the Magistrate Judge’s Report and 

Recommendation on Defendants’ Motion to Dismiss the Amended Complaint (the “Report”) 

[ECF No. 24], issued on May 4, 2023. On March 17, 2023, Defendants filed a Motion to Dismiss 

the Amended Complaint (the “Motion”) [ECF No. 17]. On May 4, 2023, following referral, Judge 

McCabe issued a Report recommending that the Motion be granted [ECF No. 24 pp. 1, 7]. Plaintiff 

filed Objections to the Report [ECF No. 25], and Defendants filed a Response to Plaintiff’s 

Objections [ECF No. 26]. The Court has reviewed the Report [ECF No. 24], Plaintiff’s Objections 

[ECF No. 25], Defendants’ Response to Plaintiff’s Objections [ECF No. 26], the full record, and 

is otherwise fully advised. For the reasons set forth herein, the Report [ECF No. 24] is 

ACCEPTED; Defendants’ Motion to Dismiss [ECF No. 17] is GRANTED.

RELEVANT BACKGROUND

The Court assumes familiarity with the factual and procedural background of this case as 

set forth in the Report [ECF No. 24 pp. 1–2] but provides the following summary for context. On 

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July 29, 2022, Plaintiff filed an initial Complaint against Defendants for sex discrimination in 

violation of Title VII of the Civil Rights Act of 1964 [ECF No. 1]. Defendants then filed an initial 

Motion to Dismiss the Complaint [ECF No. 4]. The Court referred the motion to Magistrate Judge 

Ryon M. McCabe for a Report and Recommendation, which the Court subsequently accepted 

because the Complaint failed to allege an essential element of a prima facie case of gender 

discrimination and impermissibly combined legal theories, among other reasons [ECF Nos. 6, 10, 

13]. The Court granted Plaintiff “one final opportunity to cure the pleading deficiencies set forth 

in the Report” and file an amended complaint [ECF No. 13 p. 2]. 

Plaintiff filed an Amended Complaint on February 6, 2023 [ECF No. 14]. Plaintiff’s 

single-count Amended Complaint for sex discrimination alleges that the ex-wife of the former 

CEO of Defendants became convinced that Plaintiff was in a relationship with the former CEO

and terminated Plaintiff from her position at the company due to this rumor of the extramarital 

affair [ECF No. 14 ¶¶ 17, 20, 21]. Specifically, Plaintiff alleges that she “was subjected to 

discrimination because of her gender in that she was treated differently than male executives 

thought to be having affairs” [ECF No. 14 ¶ 23]. To support this point, Plaintiff provides two 

comparators that she alleges were treated more favorably than her: (1) a male Vice President who 

was discovered having sex with a subordinate and was not terminated; and (2) a Chief Operating 

Officer who was rumored to be having an affair with a subordinate and was not terminated 

[ECF No. 14 ¶¶ 18–19]. Further, Plaintiff alleges that Defendants’ claim that her position at the 

company was eliminated is merely a pretext for sex discrimination [ECF No. 14 ¶¶ 21, 25, 27]. 

Defendants thereafter filed a Motion to Dismiss the Amended Complaint [ECF No. 17], 

which the Court referred to Judge McCabe for a Report and Recommendation [ECF No. 18]. The 

Report, issued on May 4, 2023, recommends dismissal with prejudice of Plaintiff’s Amended 

Complaint and is ripe for adjudication [ECF Nos. 14, 24–26].

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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. 

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

The Court has conducted a de novo review of the Report [ECF No. 24], Plaintiff’s 

Objections [ECF No. 25], Defendants’ Response [ECF No. 26], and the full record in this case. 

Upon review of the foregoing materials, including Plaintiff’s Objections, the Court finds Judge 

McCabe’s Report to be well-reasoned and correct for the reasons set forth below. 

The Report recommends that the Court grant Defendants’ Motion to Dismiss for two

reasons, both of which Plaintiff challenges [ECF No. 24 pp. 3–6]. First, the Report determines 

that the Amended Complaint is a shotgun pleading because Plaintiff refers to multiple theories of 

discrimination in a single count, merging her claims for violations of Title VII and the Florida 

Civil Rights Act (“FCRA”) into a single count [ECF No. 24 pp. 3–4]. Plaintiff disagrees, arguing 

that merging a claim pursuant to Title VII and the FCRA into one count does not run afoul of the 

rules against shotgun pleadings because both claims allege discrimination on the basis of gender 

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[ECF No. 25 pp. 4–5]. Second, the Report concludes that Plaintiff does not identify a similarly 

situated comparator treated more favorably than Plaintiff, as required by McDonnell Douglas to 

set forth a prima facie case for sex discrimination using circumstantial evidence [ECF No. 24 

pp. 5–6 (quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004), abrogated 

on other grounds, Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th Cir. 2019))]. In response 

to that determination, Plaintiff contends that she identified managerial employees like her and thus 

identified sufficiently similar comparators as required by law [ECF No. 25 pp. 2–4]. 

The Court is unpersuaded by Plaintiff’s arguments.

First, the Court agrees with the Report that Plaintiff’s Amended Complaint is a shotgun 

pleading. Plaintiff’s contention that she can permissively combine a sex discrimination claim 

under Title VII and a sex discrimination claim under the FCRA into a single count [ECF No. 25 

pp. 4–5] is incorrect. As noted in the Report, a claim for sex discrimination pursuant to Title VII 

and pursuant to the FCRA, are rooted in different statutes, 42 U.S.C. § 2000(e) and the Florida 

Civil Rights Act of 1992, Fla. Stat. § 760.10, and therefore despite their similarities, the statutes 

are not identical [ECF No. 24 p. 3]. “Therefore, it would be possible for a jury to find the 

Defendant[s] liable under one statute but not under the other. Hence, allegations arising from

separate statutory authority should be contained in separate counts.” Patsalides v. City of Fort 

Pierce, No. 15-14431 CIV, 2016 WL 11503007, at *2 (S.D. Fla. Aug. 12, 2016); see also Bialek 

v. Delvista Towers Condo. Ass’n, Inc., 994 F. Supp. 2d 1277, 1281 (S.D. Fla. 2014) (dismissing 

complaint for combining Title VII and FCRA claims into single count). Further, the Report also 

correctly explains that the Amended Complaint improperly refers to “multiple theories of 

discrimination combined in a single count, including disparate treatment, hostile work 

environment, and age discrimination” [ECF No. 24 p. 4]—a determination as to which Plaintiff 

did not specifically object. The Court agrees with the Report that “[s]separate legal theories of 

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discrimination must be separate[d] into different counts” [ECF No. 24 p. 4]. Because the Amended 

Complaint violates that rule, and because the Court already gave Plaintiff a final opportunity to 

submit a compliant pleading in accordance with the shotgun pleading requirements, the Court sees 

no basis to grant Plaintiff a further opportunity to replead—and this alone is reason sufficient to 

dismiss with prejudice Plaintiff’s Amended Complaint.

Second, as an alternative and additional reason, the Court agrees with the Report that the 

two comparators identified in the Amended Complaint materially differ from Plaintiff and thus are 

insufficient to establish a prima facie case for sex discrimination. To prevail on a Title VII claim

using circumstantial evidence, Plaintiff must, among other things, identify a comparator that is 

“similarly situated in all relevant respects” to Plaintiff and that was treated more favorably than

Plaintiff. Wilson, 376 F.3d at 1091 (quotations omitted). “Although a comparator need not have 

the same job title as the plaintiff to be a sufficient comparator, material differences in ranks and 

responsibilities may render any comparison impossible.” Horn v. United Parcel Servs., Inc., 433 

F. App’x 788, 793 (11th Cir. 2011). The Report concludes that the comparators identified by 

Plaintiff differ from Plaintiff in at least two material ways [ECF No. 24 p. 6]. First, Plaintiff and 

the two male comparators hold different levels of management positions [ECF No. 24 p. 6 (“[T]he 

comparators held executive titles of Vice President and Chief Operating Officer, whereas Plaintiff 

held a middle management title of Program Manager.”)]. Second, the factual circumstances of the 

alleged affairs differ as “the comparators engaged in affairs with subordinates, whereas Plaintiff 

allegedly engaged in an affair with the former leader of the organization” [ECF No. 24 p. 6]. 

Further, the Report explains that “[t]he new leadership [of the company] may well have had 

legitimate business reasons—unrelated to sex discrimination—to terminate an employee who was 

rumored to have had an affair with the former leadership. This factor distinguishes the two 

comparators” [ECF No. 24 p. 6]. Upon review, the Court agrees that there are material differences 

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between Plaintiff and the two identified comparators. Thus, for this additional alternative reason, 

the Amended Complaint warrants dismissal because Plaintiff’s allegations do not set forth a prima 

facie case for sex discrimination given Plaintiff’s failure to identify similarly situated comparators 

in all material respects. 

At bottom, the Court finds that the Report’s conclusions regarding the Amended Complaint 

are well-reasoned and correct, and supported by both the record and established caselaw. 

Accordingly, it is hereby

ORDERED AND ADJUDGED as follows:

1. The Report and Recommendation [ECF No. 24] is ACCEPTED.

2. Defendants’ Motion to Dismiss [ECF No. 17] is GRANTED.

3. Plaintiff’s Amended Complaint [ECF No. 14] is DISMISSED WITH PREJUDICE.

4. The Clerk is direct to CLOSE this case. 

DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 15th day of June 2023.

 _________________________________

 AILEEN M. CANNON

 UNITED STATES DISTRICT JUDGE

cc: counsel of record

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