UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 9:22-cv-81546-DMM

JONATHAN PONCE,

Plaintiff,

vs.

FLORIDA ATLANTIC UNIVERSITY

BOARD OF TRUSTEES,

Defendant.

___________________________________/

DEFENDANT’S STATEMENT OF UNDISPUTED MATERIAL FACTS1

Defendant, FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES (“FAU”), 

by and through undersigned counsel and pursuant to Federal Rule of Civil Procedure 56 and 

Southern District of Florida Local Rule 56.1 hereby files this Statement of Undisputed Material 

Facts and states:

Background

1. Florida Atlantic University has multiple campuses, but has one University Police Department

pursuant to Florida Statute § 1012.97 (2022). It is governed by FAU Regulation 7.008 where 

discrimination based on “sex”, “sexual orientation”, and “gender identity” is prohibited. See 

Brammer dec. at ¶12. The FAU Police Department has its headquarters at the Boca Raton 

campus. See Brammer Depo. at p. 4:24-25). Sean Brammer is the Chief of Police and head of the 

Police Department for FAU Id. at p. 5:1-3; p. 5:23-25.

2. Chief Brammer was hired by FAU in 2006, after nine and half (9 1⁄2) years working as a 

Trooper at the Florida Highway Patrol. Id. at p. 5:9-10. Thereafter, he rose through the ranks of 

 1 D.E. # 52, Notice of Filing in Support of Motion for Summary Judgment, contains all record 

citations herein.

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captain, major, Deputy Chief, Interim Chief of Police in 2016 and then, Chief of Police in 2017. 

Id. at p. 5: 11-17.

3. Plaintiff, Jonathan Ponce2

, began working as a Police Communications Operator (dispatcher) 

at FAU in January 2014, which is a civilian position at the police department; Ponce Depo. at p. 

15:12-13. After expressing interest in a position as a law enforcement officer, in December 2, 

2014, FAU offered to sponsor and employ Plaintiff full-time through training otherwise known 

as the Police Academy. See FAU_000506; Ponce Depo. at p. 14:13-25.

4. Plaintiff did not pass Broward College’s Police Academy as a result of failing a physical test 

and was not able to walk at graduation, but was certified through FDLE standards. See Ponce 

Depo. at p. 21:18-25; 22:1-15. Nonetheless, FAU offered Plaintiff continued employment as a 

certified law enforcement officer. See Ponce Depo. at p. 22:10-16.

5. His first assignment as a law enforcement officer, after the field training officer program 

(FTO), was road patrol in June 2015, working in both the night shift and later, the day shift. See 

Ponce Depo. at p. 23:15-13-15; 24:10-12.

6. Sometime in 2015, Plaintiff met Amy Brown, who was also employed3 by the FAU 

Police Department and they became a couple. See Ponce Depo. at p. 33: 22-25; p. 34: 2-4. The 

girlfriends eventually moved in together and later married in 2016. Ponce was “openly gay” at 

 2 Previously known as Jennifer Ponce at the FAU Police Department until transitioning to a 

male. See D.E. #41 at ¶ 8-9; see Brammer depo. at p. 9:3-8. 

3 Plaintiff’s wife resigned after being placed on administrative leave at FAU when she was

arrested for fraud in July 28, 2020. See Amy Ponce depo. at p. 13:8-15; p. 20:16-21.

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the time and they “didn’t have anything to hide”. Id. at p. 34:8-11; p. 34:15-16. In fact, members 

of the FAU Police Department attended their wedding in 2016. Id. at p. 36:2-4.4

7. At the FAU Police Department’s Awards Ceremony in February of 2017, Chief Brammer 

awarded Amy Brown, now Amy Ponce, the Chief’s Award for her “hard work”. See Amy Ponce 

depo. at p. 52:15-20.

Plaintiff’s Transition

8. According to Plaintiff, by April of 2017, he wanted to start the process of transitioning to 

male. See Ponce depo. at p. 37: 15-18. The transition included not only changing his first name, 

but undergoing two surgeries which included a hysterectomy and having his chest done along 

with beginning hormone therapy. See Ponce depo. at p. 38:8-14. FAU approved FMLA leave for 

both surgeries for approximately two months each with his second surgery in September of 2017. 

See Ponce depo. at p. 46:16-25; p. 50: 6-14.5

9. Before Plaintiff began his transition, he and Amy Ponce requested a meeting with Chief 

Brammer to advise him of the upcoming physical changes and name change. See Ponce at p. 

77:9-18; p.78:15-22. It is unclear when two other members of the command staff entered the 

meeting, but Plaintiff did not object at the time. See Ponce Depo. at p. 75:21-24.

10. According to Plaintiff and in response to his explanation of the transition, the Chief and 

two other command staff members “just were like okay, we support you. That was pretty much 

 4 Plaintiff acknowledges that Chief Brammer knew Plaintiff and Amy were together and were 

married prior to his transition. See Ponce Depo. at p. 72:1-3.

5 In August of 2017, Plaintiff had been asked by his sergeant if he was interested at the time to 

serve as the LGBTQ liaison for the department and he expressed this was something he would 

“love to do”. See Exhibit 3 attached to Plaintiff’s depo. However, because he advised that he 

would be out for several weeks, another officer served as a back-up liaison. Id.

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it.” See Ponce depo. at p. 79:13-19. Plaintiff testified that a gender neutral restroom6 was 

“mentioned”, but he has always used the men’s restroom since that day. See Ponce depo. at 

p.79:19-23 ; p. 70:5-9. Plaintiff has never been directed to use any gender-neutral bathroom. See

Ponce depo. at p. 70:10-12.

11. At or about December 2018, Ponce was informally assigned as a detective in the 

investigations bureau of the FAU Police Department and was formally assigned by January 

2019. See Ponce Depo. at p. 25:1-2. The Detective position comes with a six (6) or seven (7) % 

increase in pay from being on patrol and a $2 on-call7 rate that was not offered to patrol 

assignments. See Ponce depo. at p. 122:8-16. Detectives do not have to wear uniforms, but 

receive a uniform allowance. Id. at p. 123:16-21.8

12. In February of 2019, Plaintiff believes he should have received the Chief’s Award for 

arresting a student who was threatening a professor online because he “cracked the case”. See

Ponce depo. at p. 68:19-25; p. 69:1-4. Instead, the FAU Police Department’s cyber analyst, Larry 

Espana, was the recipient that year. See Ponce depo. at p.83:14-20. Before Plaintiff had been 

assigned to follow-up on the leads discovered, Espana had provided various identifiers from his 

cyber investigation like the student’s graduation date, national origin, his membership in a 

student organization, along with the student’s handle on twitter, Instagram and snapchat. See Ex. 

2 attached to Plaintiff’s depo. Additionally, Chief Brammer recalls the long hours worked by 

Espana to track the FAU Police Department’s monitoring system for online threats that would 

 6 FAU has designated gender neutral restrooms throughout campus. See Ponce depo. at p. 80:6-9.

7 As a detective being on-call, the detective can be sitting at home and still be paid. See Ponce 

depo. at 122:25; p. 123:1-2.

8 According to Plaintiff, another “really good position to give someone” that is “prestigious” is 

escorting and covering the FAU President to football games. See Ponce depo. at p. 127:17-23. 

Plaintiff has been the only law enforcement officer assigned to this position for the past two (2) 

football seasons. See Ponce depo. at p. 126:24-25; p.127:1-4.

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alert beyond the normal business hours and thought he “handed” the case to Detective Ponce to 

solve and make the arrest since Espana was non-sworn personnel. See Brammer depo. at p. 

14:14-25; p.15:1-15.

13. Since 2019 when Plaintiff became a detective, at most there have been three (3) 

detectives in the bureau for less than a year’s time with instances where he has been the only 

detective and mostly two detectives in the unit. See Ponce depo. 124:4-11.

Sergeant’s Exam and Promotions

14. Plaintiff, as a detective, was subject to the Collective Bargaining Agreement between 

FAU and the Police Benevolence Association. See Ponce depo. at p. 131:10-13. Article 10 

addresses Promotions including the requirement of a promotional exam, the eligibility period or 

promotional lists, filling vacancies, and increases. See Exhibit 5, attached to Plaintiff’s depo. 

Specifically, employees must submit a request to take the promotional exam; a promotional list 

is established by written exam scores, at its discretion, oral interviews, performance evaluations, 

and/or other criteria; and the promotional list “shall remain in effect for a period of one (1) year.”

Id.

15. Plaintiff was aware that promotional passing scores were only eligible for one (1) year. See

Ponce depo. at p.132:8-11. Plaintiff testified there has never been a detective sergeant position at 

the FAU Police Department. See Ponce depo. at p. 123:23-25. 

16. On February 3, 2021, Plaintiff submits a memorandum through the chain of command 

expressing interest in a “detective sergeant” position “which is a position that has not existed in 

this agency since my time here.” See Exhibit 6, attached to Plaintiff’s depo. 

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17. Chief Brammer on May 17, 2021 issued a memorandum advising of the next Departmental 

Promotional Exam taking place on August 6, 2021. See Exhibit 4 to Plaintiff’s depo. Plaintiff 

took the exam on August 6, 2021 and received a passing score. See Ponce depo. at p. 130:1-8.

18. After the August 2021 exam, a promotional list was issued, Plaintiff was placed on the 

list for sergeant and Ricky Robinson had also been placed on the promotional list for corporal. 

See Brammer dec. at ¶5. 9 There were no other eligible candidates for either promotional position

in 2021. Id. No position for sergeant was available. Id. at ¶3. The role of a corporal is to serve as 

a supervisor in the absence of a sergeant and the corporal is the officer in charge for the shift. 

Id.at ¶ 5; see Ponce depo. at p. 4-7. 

19. There were budgetary constraints during the Covid-19 pandemic which included 2021 

and through June 31, 202210, as several employment positions were “frozen”. See Brammer 

depo. at p. 24:25; p.25:1-12. Prior to this time, there was a grievance related complaint about 

sergeants working with limited time off as they were supervising five (5) to six (6) days and 

working twelve (12) hour shifts. See Brammer dec. at ¶ 5. In an effort to provide relief to the ongoing issue regarding sergeants, Ricky Robinson was promoted to the position of Corporal in 

September 2021. Id.

20. Next, Plaintiff sent almost an identical memorandum dated March 3, 2022 to Chief 

Brammer expressing interest in a detective sergeant position which had never existed in the 

department before. See Exhibit 7, attached to Ponce’s deposition. 

 9 For the promotional lists, the FAU Police Department hires an external company to complete 

the testing and assessment which includes oral interviews. See Brammer depo. at p. 23:6-11.

10 The FAU Police Department’s new fiscal year would begin its new budget cycle on July 1. See

Brammer Depo. at p. 21:11-13.

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21. Chief Brammer on June 15, 2022 sent a departmental email to sworn personnel titled 

“Departmental Opportunities” which “highlighted upcoming opportunities” including a Special 

Operations Sergeant position and Training Sergeant position which were both designated as 

“TBD.” See Exhibit 9 attached to Plaintiff’s deposition. 

22. The next day, Plaintiff sent a memorandum to Brammer expressing his interest in the 

Special Operations Sergeant position. See Exhibit 10 attached to Plaintiff’s deposition. The 

Plaintiff did not receive a response to the three memoranda written by him11 regarding his 

interest in the never-created detective sergeant position and the upcoming special operations 

sergeant position. See Ponce depo. at p. 136:20-24; p.138:4-8. There was no sergeant position 

available at that time. See Brammer depo. at p. 27:5-14.

23. Once the new fiscal budget opened for the Police Department, the positions that were 

previously forecasted had to be opened by Chief Brammer, but there were mitigating factors in 

the delay of those position creations, like accreditation initiatives, his work-related travel to Las 

Vegas to receive an award, his leave time in July, and the time it takes to create a position in 

FAU’s employee database, Work Day. See Brammer depo. at p. 21:11-25; p. 22:1-3; p. 27:12-

17.

24. In early 2022, the Police Department was made aware of the promotional exam for 2022 

and Plaintiff requested to take the exam. See Ponce depo. at p. 138:21-25; p.139:1-2. Plaintiff did 

not sit for exam on August 5, 2022 because he contracted Covid-19 and called in sick. See

Exhibit 8 attached to Plaintiff’s Deposition; see Ponce depo. at p. 139:3-11. 

 11 On another occasion where Plaintiff wrote a memorandum seeking permission to take his 

vehicle home and for personal use; he did not receive a response, but was granted the authority 

verbally through the chain of command in 2021. See Ponce depo. at p. 136:25; p.137:1-5. This 

was a time when Plaintiff shared with Chief Brammer that he was having marital issues with his 

wife and he needed the vehicle to help take his kids to school. See Ponce depo. at p. 110:4-24.

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25. As a result, Plaintiff’s promotional scores that he obtained one year prior, expired. See

Ponce depo. at p. 145:19-25; p.146:1.

26. Melissa Malara and Rickey Robinson passed the August 2022 sergeant’s exam. See 

Brammer’s dec. at ¶ 9. Plaintiff claims that Assistant Chief John Crane-Baker advised Detective 

Malara that she was going to be promoted to a detective sergeant position. See Ponce depo. p. 

154:10-25; p.156; 18-23.

27. On August 23, 2022, Assistant Chief John Crane-Baker sent a department-wide memo 

outlining several promotions that would become effective September 3, 2022: Rickey Robinson 

would be promoted to Sergeant in an Alpha Nights assignment; Melissa Malara would be 

promoted to Special Operations Sergeant; two officers would be promoted to Corporal; and one 

employee would be promoted to Records Manager. See Exhibit 13 to Plaintiff’s depo.

28. The position of “Detective Sergeant” was never discussed by Chief Brammer with staff 

or included in Chief Brammer’s memorandum of upcoming “Department Opportunities”. See

Brammer depo. at p. 30:16-25; p. 31:14-17. In fact, Chief Brammer explains the reason why the 

position has never existed is because it does not make sense for the organization given there are 

at most, three (3) detectives at a time, so promoting a detective to “detective sergeant” would 

mean that the sergeant is supervising only two employees. See Brammer depo. at p. 31:1-13. The 

span of control and supervisory control in that scenario does not make sense when there is a 

lieutenant to supervise the area. Id. at p. 31:3-10. Former FAU lieutenant, supervisor, and friend 

of Plaintiff, Donald Oswald, also testified that having a sergeant oversee two detectives is a 

minimal span of control, where it should be six (6) officers to supervise. See Oswald depo. at p. 

37:1-14.

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29. Shortly after Assistant Chief Crane Baker advised the Department of the promotional list, 

Chief Brammer had a discussion with the lieutenant for road patrol who reminded Chief 

Brammer that Ricky Robinson was better suited for the Special Operations Sergeant position. 

See Brammer depo. at p. 31:24-25; 32:1-6. Based on Robinson’s current experience as a K-9 

handler, it would allow him to oversee his current unit and keep his K-9, plus his experience with 

School Resource Officers through working in the Traffic Unit, it was a better fit. See Brammer 

depo. at p. 32:7-19. Robinson even had one year’s experience of supervisory authority as a 

corporal. See Ponce’s depo. at p. 151:23-25.12

30. Detective Melissa Malara, female, was offered the prior position presented to Ricky 

Robinson, male,13 as the sergeant over the night shift in patrol, but declined the position. See

Ponce depo. at p. 156:15-20. 

31. The creation of the Special Operations Sergeant position was not in effect and Ricky 

Robinson was not re-assigned until October 11, 2022. See FAU_02499. The Work Day details 

show that the process began in September, but was not successfully completed until October 18, 

2022. See FAU_02450-51. Additionally, the Training Sergeant position filled by Harvey 

Atkinson was not successfully completed on Work Day until January 20, 2023. See FAU_02502-

05.

32. Plaintiff filed a grievance with FAU on August 26, 2022 claiming that he was not 

promoted to Sergeant because of discrimination based on his transgender status. See Exhibit 11, 

 12 Since Plaintiff has served as a detective, he was never a part of the Traffic Unit, had never 

been assigned to a K-9, was also not part of the School Resource Officer Unit. See Ponce depo. 

at p. 144; 9-25. All of these units would fall under the umbrella of Special Operations. Id. at p. 

152: 10-12

13 Plaintiff does not know if there is any other transgender individual working at the Police 

Department. See Ponce depo. at p. 92:15-19. According to Plaintiff, Both Malara and Robinson 

are cisgender. See D.E. # 51 at p. 2.

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attached to Plaintiff’s depo. This was the first time in all of the years working for the FAU Police 

Department and the same Chief of Police that he made a complaint of discrimination. See Ponce 

depo. at p.159:13-17.

33. He also filed a charge of discrimination with the EEOC on November 8, 2022 alleging 

sex discrimination. See Exhibit 12 attached to Plaintiff’s deposition. 

I HEREBY CERTIFY that on this 3rd day of August, 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.

WYDLER LAW

Attorneys for Defendant

2600 Douglas Road, PH-4

Coral Gables, FL 33134

(305) 446-5528

(305) 446-0995 (fax)

BY _/s/ Lourdes Espino Wydler______ 

LOURDES ESPINO WYDLER

F.B.N.: 719811

lew@wydlerlaw.com

Secondary E-mails:

dinah@wydlerlaw.com

guertty@wydlerlaw.com

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SERVICE LIST

G. Ware Cornell, Jr., Esq.

Florida Bar Number 203920

Cornell & Associates, PA

2645 Executive Park Drive

Weston, FL 33331

(954) 641-3441

(954) 383-5161

ware@warecornell.com

brittne@warecornell.com

Counsel for Plaintiff

. 

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