LTC 345-2022 Federal Court Victory in Andres Gil v. City of Miami BeachMIAMI BEACH
OFFICE OF THE CITY ATTORNEY
LTC No. ______ _
LETTER TO COMMISSION
TO: Mayor Dan Gelber and Members of the City Commission
FROM:
DATE:
Rafael A Paz, City Attorney �
August 23, 2022
SUBJECT: Federal Court Victory in Andres Gil v. City of Miami Beach
The purpose of this L TC is to advise you of the City's recent victory in the Southern District
of Florida. I am pleased to inform you that Senior United States District Judge James
Lawrence King granted the City's Motion to Dismiss the complaint in the case of Andres
Gil v. City of Miami Beach.
The lawsuit was an employment law matter brought by a former City lifeguard. The
Complaint set forth a claim under Title VII, alleging unlawful employment discrimination
based upon the former employee's national origin.
The City argued the Complaint should be dismissed as a matter of law for failure to state
a claim. After considering the parties' pleadings and motions, Judge King found for the
City and granted its motion to dismiss.
The City's case was litigated entirely in-house by Chief Deputy City Attorney Robert
Rosenwald, First Assistant City Attorney Henry Hunnefeld, and Assistant City Attorney
Benjamin Braun.
A copy of the court's Order in Andres Gil v. City of Miami Beach, Case No. 2022-cv
21516-JLK is attached.
Please feel free to contact me or Chief Deputy City Attorney Robert Rosenwald for further
information about this or any City litigation matter.
RAP/RFR/bb
345-2022
Case 1:22-cv-21516 -JLK Document 12 Entered on FLSD Docket 08/23/2022 Page 1 of 4
ANDRES GIL,
Plaintiff,
V.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISJON
CASE NO. 22-cv-21516-JLK
CITY OF MIAMI BEACH,
Defendant. _____________ /
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
THIS CAUSE is before the Court on Defendant City of Miami Beach's M9tion to Dismiss
(DE 8) (the "Motion"), filed July 11, 2:022. The Court has carefully considered t~e Motion,
Plaintiffs Amended Response (DE 10), Defendants' Reply (DE 11), and is otherwise fully advis_ed
in the premises .
I. BACKGROUND
On May 16, 2022, Plaintiff Andres Gil filed his Complaint asserting national origin
discrimination against Defendant under Title VII. See Comp!., DE I. According to the Comp laint,
Plaintiff was employed as a lifeguard by the Defendant, though he does not allege when he was
hired or for how long he worked until he had to leave the position due to the birth of his second
child. Id. ,i1 12, I 4. Plai ntiff alleges that around October 2019 a lifeguard position opened up at
the City of Miami Beach, and that he spoke with Chief Vincent Canosa about his interes t in the
position, who told Plaintiff, "You are a great lifeguard, but I need a break from you. I am not hiring
you back." Id. ,i~ 15, 19. Plaintiff alleges that when he asked why he wou ld not be hired back,
Chief Canosa responded that it was due to his prior departure from his lifeguard positions in
case 1:22-cv-21_516-J LK Docu ment 12 Entered on FLSD Docket 08/23/2022 Page 2 of 4
Hollywood beach and Mi~i Beach. Id. 1 17. Ultimately, Plaintiff claims the true reason he was
not rehired and was denied the chance to interyiew was because of his Cuban origin. Id. 1 26. In
support of t_hat claim, Plaintiff alleges that while previously employed with Defendant, he was
"overlooked for promotions, while his American co-workers got promotions and praise from Chief
Vincent Canosa." Id. 1 19. Additionally, Plaintiff alleges that all the American applicants for ·the
lifeguard opening, which had inferior results on the swimming test than Plaintiff, received .
interviews. Id. ,i 22. Plaintiff's Complaint does not allege o~ identify any particular American co.-
worker or applicant. See Id. ,i,i 19, 22.
The Complaint brings a single claim for.national origin discrimiµation in violation of Title ·
VII of the Civil Rights Act of 1964 ("Title VII"). Defendant moves to dismiss the Complail\t for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
II. LEGALSTANDARD
"To survive a motion to dismiss, a complaint must contain suf~cient factual matter,
accepted as true, to 'state a claim_ to relief that is plausibl~ on its face.'" Ashcroft v. Iqbal , 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp . v. Twombly, 550 U.S. 544, 570 (2007)). To meet
this "plausibility" stanQ.ard, a plaintiff must plead "factual content thijt allows the court to dra.w the
reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at
678. A complaint must contain "more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
III. DISCUSSION
Defendant has moved to dismiss the single count on Plaintiff's Complaint because Plaintiff
has failed to allege sufficient facts to state a claim for relief. See Mot. Defendant argues that
Plaintiff's Complaint is purely conclusory, Plaintiff has failed to exhaust his administrative
2
Case 1 :22-cv-21516-JLK Document 12 Entered on FLSD Docket 08/23/2022 Page 3 of 4
remedies, and that Plaintiff has not specifically alleged a similarly situated employee as is required
to support a claim for national origin discriminat ion. In response, Plaintiff argues he "has
successfully p leaded and met the required scrutiny in the pleading stage of an employment . . .
discrimination case[,]" and he has advanced a plausible claim for discrimination if the Court draws
all reasonable inferences in his favor. Mot., at 11-12.
Under Title VII, it is unlawful for an employer to "refuse to hire or D discharge . , . or .
otherwise to discriminate against any individual ... because of such individual's ... natio na l
origin." 42 U.S .C . § 2000e-2(a). To make out a prima facie claim of national origin discrimination,
a plaintiff must show: (1) he is a member of a protected class; (2) he was qualified to do the job;
(3) he was subjected to an adverse employment _action; and (4) ·his employer treated similady
situated employees outside of her protected class more favorably. See Lewis v. City of Union City,
918 F.3d 1213, 1223 (11th Cir. 20 1-9). Put another way, Plaintiff's Title VII complaint must allege
sufficient facts, taken as true, to suggest Plaintiff was the subject of intentional national origin
discrimination. Henderson v. Dade Cnty. Police Benev. Ass'n, Inc., No. 14-2032 1-CIV-MORENO,
2014 WL 3591600, at *6 (S.D. F la . July 18, 2014) (citing ,Pavis v. Coca-Co/a Bottling Co., 516
F.3d 955,974 (11th Cir. 2008).
The Court finds that P laintiff has not presented sufficient factual allegations to create a
reasonable inference that Chief Canosa had a discriminatory animus towards Cubans. As pled,
none of the alleged actions taken by Defe?dant implicate Plaintiff's protected status as an
individual of Cuban descent. See H,mderson, 2014 WL 3591600, at *8 (Moreno, J.) (dismissing
national origin discrimination claims where plaintiff asserts that Hispanic males were promoted to
the exclusion of African Americans of Haitian descent because the allegations were conclusory,
and defendant's statements did not implicate plaintiff's protected status). In fact, a plain reading
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Case 1 :22-cv-.21516-J LK Document 12 Entered on FLSD Docket 08/23/2022 Page 4 of 4
of the Complaint suggests that Chief Canosa' s unwillingness to rehire Plaintiff ste~ed from his
professional history with Defendant, not because of a discriminatory animus towards Cubans. See
Compl., 11 17, 19. P laintiff's Complaint merely recites conclusory allegations that he was not hired
for the job opening because of his Cuban origin and, generally, Americans were given
opportunities at the exclusion of Cubans. Defendant does allege with any specificity what
opportunities Cubans were excluded from.
Overall, Plaintiffs Complaint does not contain facts to suggest that he was subjected to
intentional discrimination b_ecause he is Cuban. For these reasons, Plaintiff's claim for .
discrimination based ori national origin is dismissed !IJld additional arguments raised by Defendant
are not considered at this time,
IV. CONCLUSION ·.
The Court has carefully considered the ·entire record and finds that Plaintiffs action $hould
be dismissed. Accordingly, it is ORDERED, ADJUDGED, and DECREED that D~fendant's
Motion to Dismiss (DE 8) be, and the same is, hereby GRANTED. Plaintiff's Complaint (DE 1)
is hereby DISMISSED without prejudice.
DONE AND ORDERED in Chambers at the James Lawrence King Federal Justice
Building and United States Courthouse, Miami, Florida this 22nd day of August, 2022.
cc: All counsel of record
4
ES LAWRENCE KING
!TED STATES DISTRICT