United States District Court 

for the 

Southern District of Florida 

Thomas Davis, Plaintiff,

v. 

Miami-Dade County, Defendant. 

)

) 

) 

) 

) 

Civil Action No. 22-23715-Civ-Scola 

Order Granting Motion to Dismiss 

Plaintiff Thomas Davis, the former Director of Policy and Legislation 

within Miami-Dade County’s Office of the Commission Auditor, complains that 

the County discriminated against him, as a then 59-year-old, white male, when 

it terminated his employment and replaced him with his 32-year-old, Black 

male subordinate. (Am. Compl., ECF No. 18.) In his complaint, Davis sets forth 

four counts: race-based claims under Title VII of the Civil Rights Act of 1964 

and the Florida Civil Rights Act (counts one and three); and age-based claims 

under the Age Discrimination in Employment Act and the FCRA (counts two 

and four). (Id.) In responding to Davis’s complaint, the County urges dismissal, 

arguing Davis fails to plead sufficient facts to plausibly suggest the County’s 

intentional discrimination under Title VII, the ADEA, or the FCRA. (Def.’s Mot., 

ECF No. 20.) Davis opposes the motion, insisting he has indeed set forth 

sufficient facts establishing a plausible claim of the County’s age and race 

discrimination. (Pl.’s Resp., ECF No. 26.) The County has timely replied. (Def.’s 

Reply, ECF No. 29.) After review, the Court agrees with the County and grants

its motion (ECF No. 20), thus dismissing Davis’s case. 

1. Background1

At the time he was terminated, in February 2020, Davis was a 59-yearold, white male employed by the County as the Director of Policy and 

Legislation within the Office of the Commission Auditor. (Compl. ¶¶ 1, 4.) Davis 

had been hired a few years earlier, in June 2017, and says he was qualified for 

the position based on his prior career as an Air Force officer. (Id. ¶ 10.) While in 

that position, Davis “performed his job duties as he understood them.” (Id. ¶ 

13.) Although Davis’s performance was never formally evaluated, despite his 

requests for an annual evaluation, he was also never disciplined or counseled 

for any misconduct or performance issues. (Id.) 

1 The Court accepts the complaint’s factual allegations, as set forth below, as true for the 

purposes of evaluating Davis’s motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 

116 F.3d 1364, 1369 (11th Cir. 1997).

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In terminating Davis, his supervisor, who is Black, told Davis that he 

was not meeting the supervisor’s “vision.” (Id. ¶¶ 1, 15.) The County replaced 

Davis with another County employee: Davis’s 32-year-old, Black subordinate, 

who had been hired at the same time as Davis, in 2017. (Id. ¶¶ 1, 16.) Davis 

notes that he was the only white male in a leadership position in the Office of 

the Commission Auditor when he was let go. (Id. ¶ 12.)

According to Davis, because he was fired “without cause” and replaced 

by someone who is substantially younger and Black, his termination must 

have been discriminatory. (Id. ¶¶ 18, 24, 30, 36.) Davis filed a charge of 

discrimination, on May 5, 2020, with the Equal Employment Opportunity 

Commission, deemed dual filed with the Florida Commission on Human 

Relations. (Id. ¶ 6.) The EEOC issued its dismissal and notice of rights in 

August 2022 and a few months later Davis initiated this case.

2. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), the Court must accept all the complaint’s allegations as 

true, construing them in the light most favorable to the plaintiff. Pielage v. 

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading must only contain 

“a short and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) 

challenges the legal sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6). In 

assessing the legal sufficiency of a complaint’s allegations, the Court is bound 

to apply the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, 

the complaint “must . . . contain sufficient factual matter, accepted as true, to 

state a claim to relief that is plausible on its face.” Am. Dental Ass’n v. Cigna 

Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Twombly, 550 U.S. at 

570). “Dismissal is therefore permitted when on the basis of a dispositive issue 

of law, no construction of the factual allegations will support the cause of 

action.” Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) 

(internal quotations omitted) (citing Marshall Cnty. Bd. of Educ. v. Marshall 

Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a 

‘probability requirement,’ but it asks for more than a sheer possibility that a 

defendant has acted unlawfully.” Id.

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3. Discussion 

Davis fails to allege any facts that would allow the Court to draw the 

reasonable inference that the County intentionally discriminated against him 

as required to satisfy the elements of his claims under Title VII, the ADEA, or 

the FCRA.2 “[C]omplaints alleging discrimination . . . must meet the 

‘plausibility standard’ of Twombly and Iqbal.” Henderson v. JP Morgan Chase 

Bank, N.A., 436 F. App’x 935, 937 (11th Cir. 2011). Thus, Davis’s complaint 

must contain “sufficient factual matter” to support a reasonable inference that 

the County engaged in intentional discrimination against him in terminating 

his employment. Henderson, 436 F. App’x at 937. There are any number of 

ways Davis can do this, using “either direct evidence or circumstantial evidence 

to show . . . discrimination.” Jenkins v. Nell, 26 F.4th 1243, 1249 (11th Cir. 

2022). 

Since Davis does not set forth any allegations of direct evidence of 

discrimination, one way Davis could state his discrimination claims, through 

circumstantial evidence, is by pleading facts that could establish the County’s 

discrimination through the McDonnell Douglas framework. See Jaffe v. 

Birmingham Gastroenterology Associates, P.C., 2:20-CV-01821-KOB, 2021 WL 

4220356, at *2 (N.D. Ala. Sept. 16, 2021) (“[T]he traditional methods of proving 

Title VII claims remain relevant, as helpful guides to the determination of the 

issue.”) (cleaned up). Under the McDonnell Douglas framework, a plaintiff bears 

the burden of establishing a prima facie case of discrimination by 

demonstrating (1) membership in a protected group; (2) an adverse 

employment action; (3) qualification for the job in question; and (4) either 

replacement by or less favorable treatment than a similarly situated individual 

outside the plaintiff's protected class. Jenkins, 26 F.4th at 1249. Davis has 

utterly failed to plead facts that would allow the Court to reasonably infer that 

he satisfies the fourth prong. 

As to this fourth prong, Davis “must identify a comparator outside of his 

protected class who was similarly situated in all material respects, yet was 

treated more favorably under the same circumstances.” Hester v. Univ. of 

Alabama Birmingham Hosp., 798 F. App’x 453, 457 (11th Cir. 2020) (emphasis 

2 Davis’s allegations of age and race discrimination under the ADEA, Title VII, and the FCRA 

will all be analyzed together. See Florida State Univ. v. Sondel, 685 So. 2d 923, 925 (Fla. 1st 

DCA 1996) (“The [FCRA], as amended, was patterned after Title VII of the Civil Rights Acts . . . 

as well as the Age Discrimination in Employment Act . . . . Federal case law interpreting Title 

VII and the ADEA is applicable to cases arising under the Florida Act.”); Harper v. Blockbuster 

Entm’t Corp., 139 F.3d 1385, 1389 (11th Cir. 1998) (“[D]ecisions construing Title VII guide the 

analysis of claims under the Florida Civil Rights Act.”); O’Connor v. Consol. Coin Caterers Corp., 

517 U.S. 308, 309 (1996) (applying title VII analysis to ADEA claim).

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in original) (otherwise cleaned up). In opposition to the County’s motion, Davis 

highlights the following facts from his complaint: he was fired; before being 

terminated, Davis had never been disciplined or counseled; his replacement 

was his subordinate; the subordinate is Black and nearly thirty years his 

junior; the supervisor who fired Davis is also Black; Davis was the only white 

male in a leadership position within his office; and the only reason given for his 

termination was that Davis was not meeting his supervisor’s “vision.” (Pl.’s 

Resp. at 2–3, 6–7.) None of these facts allows the Court to infer that Davis’s 

replacement—though outside of Davis’s protected class—was similarly situated 

in all (or even any) material respects. Simply identifying his replacement’s age, 

race, and date of hiring tells the Court nothing about the replacement’s actual 

qualifications or skills. See Henderson v. Dade Cnty. Police Benev. Ass’n, Inc., 

14-20321-CIV-MORENO, 2014 WL 3591600, at *8 (S.D. Fla. July 18, 2014)

(Moreno, J.) (dismissing discrimination claims where the plaintiff’s conclusory 

assertions that Hispanic males were promoted to the exclusion of Black women 

were “without factual support as to how each was similarly-situated in all 

relevant aspects to the Plaintiff” and, were, therefore, “insufficient”). Unlike one 

of the cases he relies on, Davis provides no information about his skills, 

experience, credentials, or education as compared to that of his replacement. 

See Parish-Carter v. Avossa, 9:16-CV-81623, 2017 WL 2720966, at *3 (S.D. 

Fla. June 23, 2017) (Rosenberg, J.) (finding allegations that the relevant 

similarly situated employees had “fewer credentials, less experience, and fewer 

service years than Plaintiff” sufficient to survive dismissal).

Davis does not plead a single fact showing that his putative comparator 

was similarly situated. Instead, he simply says that his replacement had been 

his subordinate and had worked at the office for the same amount of time as 

Davis. This tells the Court nothing about the comparator’s actual qualifications 

compared to Davis’s. At bottom, Davis’s allegations, at most, are nothing more 

than “[t]hreadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements,” and therefore “do not suffice.” Watts v. Ford 

Motor Co., 519 F. App’x 584, 586 (11th Cir. 2013) (quoting Iqbal, 556 U.S. at

678). While a plaintiff complaining of workplace discrimination need not set 

forth every detail of his employment or every single instance of the 

discriminatory conduct he endured, he must nonetheless provide at least some

“nonconclusory descriptions of specific, discrete facts of the who, what, when, 

and where variety” that plausibly show he is actually entitled to relief. Watts, 

519 F. App’x at 587 (quoting Feliciano v. City of Miami Beach, 707 F.3d 1244, 

1253 (11th Cir. 2013)); see Veale v. Florida Dept. of Health, 2:13-CV-77-FTM38UAM, 2013 WL 5703577, at *5 (M.D. Fla. July 29, 2013) (requiring 

“allegations of specific facts to explain how the disparate treatment occurred” 

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in order to properly plead discrimination).

Nor do any of Davis’s other allegations, taken together, otherwise 

“present[] a convincing mosaic of circumstantial evidence that would allow a 

jury to infer intentional discrimination by the decisionmaker.” Smith v. 

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (cleaned up). A 

plaintiff may meet this standard by showing, “among other things, (1) 

suspicious timing, ambiguous statements, and other bits and pieces from 

which an inference of discriminatory intent might be drawn, (2) systematically 

better treatment of similarly situated employees, and (3) that the employer's 

justification is pretextual.” Lewis v. City of Union City, Ga., 934 F.3d 1169, 

1185 (11th Cir. 2019) (cleaned up). “The ‘convincing mosaic’ method of proof 

can be a fallback for plaintiffs,” like Davis, “who fail to allege a similarly 

situated comparator under McDonnell Douglas.” Jaffe, 2021 WL 4220356, at 

*4.

Again, Davis’s allegations come up glaringly short. In summarily 

concluding the County acted discriminatorily against him, Davis recounts only 

that his two supervisors were Black; that the Black supervisor who terminated 

him told Davis that he didn’t meet the supervisor’s “vision”; that his 

replacement was Black and nearly half his age; and that he was the only white 

male in a leadership position in his office at the time he was terminated.

Without more, the Court cannot possibly infer discriminatory intent based on 

this short list of unremarkable facts. Davis’s allegations fall far short of 

painting a “convincing mosaic” that his termination was motivated by any kind 

of discrimination against him: it hardly amounts to a mosaic at all, never mind 

a convincing one. See Taylor v. Farm Credit of N. Florida, ACA, 4:20-CV-59-AWMJF, 2021 WL 5148022, at *5 (N.D. Fla. Oct. 6, 2021) (describing a mosaic, in 

the context of a discrimination claim, as “compris[ing] many parts which 

combine to form an overall picture”).

Furthermore, Davis’s allegation that his supervisor let him go because 

Davis was not meeting his “vision,” actually undercuts his claims of 

discrimination. To the contrary, it indicates that Davis was terminated for a 

legitimate and non-discriminatory reason: simply not meeting his supervisor’s

vision for the office. Again, without more, the Court is unable to discern any 

discriminatory animus from a boss’s terminating a subordinate for not fitting 

in with his “vision.”

To summarize, Davis has failed to plead facts establishing discrimination

against him under either the ADEA, Title VII, or the FCRA. Davis himself 

appears to concede as much by failing to adduce any real opposition to the 

County’s basic argument. See Lisa, S.A. v. Gutierrez Mayorga, 240 F. App’x

822, 824 (11th Cir. 2007) (“Failure to raise an issue, objection or theory of 

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relief in the first instance to the trial court generally is fatal.”) (cleaned up); see 

also Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 (10th Cir. 2001) (“A 

litigant who fails to press a point by supporting it with pertinent authority, or 

by showing why it is sound despite a lack of supporting authority or in the face 

of contrary authority, forfeits the point. The court will not do his research for 

him.”) (cleaned up). And, upon review, the Court readily finds that Davis’s 

allegations amount to, at best, nothing more than legal conclusions and 

formulaic recitations of the elements of discrimination claims. While “these 

allegations might have survived a motion to dismiss prior to Twombly and 

Iqbal[,] now they do not.” Ansley v. Florida, Dept. of Revenue, 409CV161-

RH/WCS, 2009 WL 1973548, at *2 (N.D. Fla. July 8, 2009) (requiring a 

“plaintiff in an employment-discrimination case [to] allege facts that are either 

(1) sufficient to support a plausible inference of discrimination, or (2) sufficient 

to show, or at least support an inference, that he can make out a prima facie 

case under the familiar burden-shifting framework set forth in McDonnell”).

4. Conclusion

For the foregoing reasons, the Court grants the County’s motion (ECF 

No. 20), thus dismissing Davis’s case, with prejudice. 

Additionally, the Court dismisses Davis’s amended complaint without 

leave to amend, denying his cursory request for leave to amend, inserted as 

an afterthought, in the last sentence of his eight-page response to the County’s 

motion. (Pl.’s Resp. at 8.) The request is both procedurally defective and lacking 

in any substantive support. First, the request is untimely and Davis fails to 

supply good cause, or even any cause, that would warrant an extension of the 

deadline to amend the pleadings. And second, the request is improperly 

presented, introduced perfunctorily and thoroughly devoid of any legal support. 

See Newton v. Duke Energy Florida, LLC, 895 F.3d 1270, 1277 (11th Cir. 2018) 

(“[W]here a request for leave to file an amended complaint simply is imbedded 

within an opposition memorandum, the issue has not been raised properly.”); 

Avena v. Imperial Salon & Spa, Inc., 740 F. App’x 679, 683 (11th Cir. 2018) 

(“[W]e’ve rejected the idea that a party can await a ruling on a motion to 

dismiss before filing a motion for leave to amend.”) (noting also that “a motion 

for leave to amend should either set forth the substance of the proposed 

amendment or attach a copy of the proposed amendment”) (cleaned up).

Finally, Davis has already amended his complaint once, in response to the 

County’s first motion dismiss, failing to address his pleading’s shortcomings. 

The Clerk is directed to close this case. Any pending motions are 

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denied as moot.

Done and ordered, at Miami, Florida, on July 24, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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