Amaya v. Vilsack

Filing 61

ORDER Granting 49 Motion for Summary Judgment. Pursuant to Federal Rule of Civil Procedure 58, the Court will enter final judgment separately. This case shall remain CLOSED. Signed by Judge Roy K. Altman on 10/24/2024. See attached document for full details. (cds) Modified Document Type on 10/24/2024 (cds).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-cv-22838-ALTMAN/Reid
MARIA AMAYA,
Plaintiff,
v.
THOMAS J. VILSACK, Secretary,
United States Department of Agriculture,
Defendant.
______________________________/
ORDER
The Defendant has filed a Motion for Summary Judgment (“Def.’s MSJ”) [ECF No. 49]. After
careful review of the briefing, the record, and the governing law, we hereby ORDER and ADJUDGE
that the Defendant’s Motion for Summary Judgment is GRANTED.
THE FACTS 1
Maria Amaya, our Plaintiff, worked for the United States Department of Agriculture
(“USDA”) “for over twenty years,” Plaintiff’s Response Statement of Facts (“Pl.’s Resp. SOF”) [ECF
On a motion for summary judgment, we describe the facts “in the light most favorable to [the nonmoving party].” Plott v. NCL Am., LLC, 786 F. App’x 199, 201 n.2 (11th Cir. 2019); see also Lee v.
Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (“[F]or summary judgment purposes, our analysis must
begin with a description of the facts in the light most favorable to the [non-movant].”). We accept
these facts for summary-judgment purposes only and recognize that “[t]hey may not be the actual
facts that could be established through live testimony at trial.” Snac Lite, LLC v. Nuts ‘N More, LLC,
2016 WL 6778268, at *1 n.1 (N.D. Ala. Nov. 16, 2016); see also Cox v. Adm’r U.S. Steel & Carnegie
Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994) (“[W]hat we state as ‘facts’ in this opinion for
purposes of reviewing the rulings on the summary judgment motion may not be the actual facts. They
are, however, the facts for present purposes[.]” (cleaned up)). In considering Vilsack’s motion, then,
we describe the facts in the light most favorable to the Plaintiff and rely on Vilsacks’s Statement of
Facts [ECF No. 50] only where the Plaintiff has failed to genuinely dispute a proposition Vilsack has
asserted there, see S.D. FLA. L.R. 56.1(b) (“All material facts set forth in the movant’s statement filed
and supported as required above will be deemed admitted unless controverted by the opposing party’s
statement provided that the Court finds that the movant’s statement is supported by evidence in the
record.”); see also Atl. Cas. Ins. Co. v. Ca’D’Oro, LLC, 362 F. Supp. 3d 1268, 1272 (S.D. Fla. 2018)
1

1

No. 55] ¶ 27 (first citing Second Amended Complaint (“SAC”) [ECF No. 37] ¶¶ 12, 14, 16–17; and
then citing Deposition of Louis Volpe Day 2 (“2d Volpe Dep.”) [ECF No. 55-2] at 41:22–42:2)—
most recently as a Supervisory Plant Protection and Quarantine Officer at USDA’s “inspection station
in Miami,” Defendant’s Statement of Facts (“Def.’s SOF”) [ECF No. 50] ¶ 1 (citing Deposition of
Maria Amaya (“Amaya Dep.”) [ECF No. 50-1] at 11:11–22). Beginning in 2017, Amaya’s “first-line
supervisor” at USDA “was South Florida Area Director Louis Volpe,” to whom she “reported
directly[.]” Def.’s SOF ¶ 2 (citing Amaya Dep. at 10:8–14); see also Pl.’s Resp. SOF ¶ 3 (“Undisputed.”);
2d Volpe Dep. at 44:10–12 (“Q. And when did you become the direct supervisor of Ms. Amaya and
Ms. Harper? A. I don’t know the exact date but July ‘17 maybe.”).
The workplace relationship between Amaya and Volpe was tumultuous from the start. On
August 31, 2017, Amaya met with Volpe to raise some concerns she had about the workplace
environment. See 2d Volpe Dep. at 45:2–10 (“Q. . . . [S]he’s thanking you for meeting with her on
Thursday, August 31st, 2017, regarding two rather complex issues that she wanted to discuss? A.
Yes.”). Specifically, Amaya complained to Volpe about how she was “taken aback by” his request that
she should “go around and tell people that Tony Knapick”—another USDA employee who reported
to Volpe—“was the highest ranking in the past selection process.” Id. at 46:3–47:16.
The record contains little information about the goings-on at USDA over the next several
years. But, on April 8, 2021, Amaya once again complained of being subjected to discrimination and
harassment by Volpe—this time to Volpe’s supervisor, Richard Miranda. See 2d Volpe Dep. at 54:18–
55:2 (“Q. . . . Mr. Miranda testified that Ms. Amaya sent him two emails, sent him emails, I’m sorry,
on two separate occasions, April 8, 2021, and February [2], 2022, complaining about harassment and

(Altonaga, J.) (“At summary judgment . . . [c]ourts must consider the entire record and not just the
evidence singled out by the parties.” (citing Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1570 (11th
Cir. 1987))).
2

discrimination by you. It says by Director Lou Volpe, her direct supervisor, correct? A. Correct.”).
She complained to Miranda again on February 2, 2022. See ibid.
On April 12, 2022, Volpe issued Amaya a Notice of Proposed Suspension based on multiple
alleged instances of Amaya’s “failure to follow instruction” and “conduct unbecoming [of] a federal
employee[.]” Notice of Proposed Suspension [ECF No. 50-2] at 1. The Notice alleged that Amaya
had missed several meetings Volpe required her to attend, that she “recorded [a] conversation between
[the two] without [Volpe’s] knowledge or consent,” and that she “became aggressive and began a
tirade” in the workplace. See id. at 2–3. Volpe also referenced complaints about Amaya’s conduct by
his assistant, Rose Lopez. See 2d Volpe Dep. at 19:11–14 (“Q. And so the complaint to you for
Specification 1 under charge one originated from Ms. Lopez to you, correct? A. Yes.”). Amaya
“dispute[s] that the alleged acts occurred.” Pl.’s Resp. SOF ¶ 6. She also expressed that she wanted
“the door open during those meetings [and that] she didn’t want to come to [Volpe’s] office” to have
the meetings in person. 2d Volpe Dep. at 35:19–23. Volpe, however, maintained that requiring Amaya
to attend in-person meetings with him “to discuss work related activity” was “well within [his] rights
as a supervisor.” Id. at 36:3–6.
For these alleged violations, Volpe proposed that Amaya be suspended “without pay” for
“fourteen [ ] days.” See Notice of Proposed Suspension at 1. That recommendation would ultimately
need to be reviewed and adopted by Miranda before taking effect. See id. at 5 (“This is only a
proposal. . . . Your written reply should be addressed to the Deciding Official, Acting Associate
Executive Director Richard Miranda[.]”). Miranda issued his final decision on June 21, 2022, finding
that Volpe had proven by “a preponderance of the evidence” that Amaya “refus[ed] to report to a
meeting as instructed” and “display[ed] discourteous conduct or disrespect to a coworker[.]” Def.’s
SOF ¶¶ 5–6 (citing Decision on Proposed Suspension [ECF No. 50-3] at 1–3); see also Pl.’s Resp. SOF
¶ 6 (“Undisputed that Miranda made that decision.”). Even so, Miranda “did not sustain” Amaya’s
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proposed suspension and instead “determined that [her] misconduct merited a letter of reprimand.”
Def.’s SOF ¶ 7 (citing Decision on Proposed Suspension at 1); see also Pl.’s Resp. SOF ¶ 7 (“Undisputed
that Miranda reduced the discipline of suspension to a reprimand.”). A letter of reprimand “is not
made part of [a] USDA employee’s permanent record but is instead filed in their electronic official
personnel folder [ ] for a period of up to two years.” Def.’s SOF ¶ 8 (citing Decision on Proposed
Suspension at 1); see also Pl.’s Resp. SOF ¶ 8 (“Undisputed.”).
On July 5, 2022, Amaya contacted the Animal and Plant Health Inspection Service’s
(“APHIS”) “office of civil rights, diversity and exclusion [sic]” to (once again) complain about Volpe’s
discriminatory behavior. 2d Volpe Dep. at 62:20–64:13. Amaya asked APHIS to allow the “[r]emoval
of Louis Volpe and Rose Lopez from supervisory and managerial authority over [her.]” Id. at 67:16–
20. But Volpe wasn’t removed as Amaya’s supervisor. See Deposition of Louis Volpe Day 1 (“1st
Volpe Dep.”) [ECF No. 55-2] at 42:20–21 (“Q. And were you immediately removed as her supervisor?
A. No.”). Instead, APHIS responded to Amaya by reporting that “Volpe had removed all [of Amaya’s]
supervisor duties and responsibilities [over Edgar] Ramos,” id. at 52:17–19—“a plant health
safeguarding specialist” under Amaya’s direct supervision who “fil[ed] a formal grievance against [ ]
Amaya for discrimination,” id. at 48:14–49:11—and informed Amaya that, “going forward[,] [she
would] need to submit [her] complaints concerning Mr. Ramos’ behavior to Mr. Volpe for him to
address,” id. at 65:11–17.
Volpe conducted Amaya’s annual performance review on October 17, 2022, rating her as
“‘fully successful’ on every critical element” of the assessment. Def.’s SOF ¶¶ 10–11; see also Pl.’s Resp.
SOF ¶¶ 10–11 (“Undisputed.”). “‘Fully Successful’ is the highest rating an employee could receive in
a performance appraisal.” Def.’s SOF ¶ 12 (citing Amaya Dep. at 35:4–10); see also Pl.’s Resp. SOF ¶
12 (“Undisputed.”). Because of Amaya’s successful performance review, her next step increase on the
federal government’s General Schedule pay system “occurred timely and in conformity with the
4

standard progression for federal employees[.]” Def.’s Resp. SOF ¶ 16 (citing Amaya Dep. at 37:10–
38:2); see also Pl.’s Resp. SOF ¶ 16 (“Undisputed.”). Volpe left USDA’s Miami office in April 2023. See
1st Volpe Dep. at 20:23–21:2 (“Q. Okay. So . . . are you saying April of 2023 is when you no longer
were employed at the Miami office? A. Yes, ma’am.”).
On July 28, 2023, Amaya sued Thomas J. Vilsack—the Secretary of the Department of
Agriculture—alleging that her treatment at USDA violated Title VII of the Civil Rights Act of 1964
and the Florida Civil Rights Act of 1992. See generally Complaint [ECF No. 1]. Amaya then filed an
Amended Complaint, which “voluntarily dismiss[ed] all [the] state claims” she’d initially pled.
Amended Complaint [ECF No. 8] at 1 n.1. We dismissed Amaya’s Amended Complaint as a shotgun
pleading and gave her leave to file another complaint. See Amaya v. Vilsack, 2024 WL 1285162, at *4
(S.D. Fla. Mar. 26, 2024) (Altman, J.) (observing that the Amended Complaint “impermissibly
incorporate[d] multiple claims into each count”).
In her Second Amended Complaint, Amaya asserted three counts under Title VII:
“discrimination based on sex,” SAC ¶¶ 40–69 (Count I); “retaliation for reporting discrimination based
on sex,” id. ¶¶ 70–99 (Count II); and “hostile work environment based on sex,” id. ¶¶ 100–13 (Count
III). On July 23, 2024, we dismissed Amaya’s hostile-work-environment claim, concluding that
“Volpe’s conduct,” as alleged, “simply [wa]sn’t ‘extreme’ enough to plausibly and objectively create a
hostile work environment[.]” Amaya v. Vilsack, 2024 WL 3509583, at *9 (S.D. Fla. July 23, 2024)
(Altman, J.) (quoting Booth v. Pasco County, 829 F. Supp. 2d 1180, 1189 n.5 (M.D. Fla. 2011) (Moody,
J.)). Vilsack has since moved for summary judgment on Amaya’s remaining claims. See generally Def.’s
MSJ. We’ll consider that motion here.
THE LAW
Summary judgment is appropriate when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “By its very terms,
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this standard provides that the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
An issue of fact is “material” if it might affect the outcome of the case under the governing law. Id. at
248. A dispute about a material fact is “genuine” if the evidence could lead a reasonable jury to find
for the non-moving party. See ibid.
At summary judgment, the moving party bears the initial burden of “showing the absence of
a genuine issue as to any material fact.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“[A] party seeking summary judgment always
bears the initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine issue of material
fact.”). Once the moving party satisfies its initial burden, the burden then shifts to the non-moving
party to “come forward with specific facts showing there is a genuine issue for trial.” See Bailey v. Allgas,
Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The Court, in ruling on a motion for summary judgment, “need consider only the cited
materials, but it may consider other materials in the record.” FED. R. CIV. P. 56(c)(3); see also Green v.
Northport, 599 F. App’x 894, 895 (11th Cir. 2015) (“The district court could consider the record as a
whole to determine the undisputed facts on summary judgment.”); HRCC, Ltd. v. Hard Rock Cafe Int’l
(USA), Inc., 703 F. App’x 814, 817 (11th Cir. 2017) (noting that a “court may decide a motion for
summary judgment without undertaking an independent search of the record” (quoting FED. R. CIV.
P. 56 advisory committee’s note to 2010 amendment)). In any event, on summary judgment, the Court
must “review the facts and all reasonable inferences in the light most favorable to the non-moving
party.” Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001).
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In sum, if there are any genuine issues of material fact, the Court must deny summary judgment
and proceed to trial. Whelan v. Royal Caribbean Cruises Ltd., 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14,
2013) (Ungaro, J.). On the other hand, the Court must grant summary judgment if a party “has failed
to make a sufficient showing on an essential element of her case.” Celotex, 477 U.S. at 323; see also Lima
v. Fla. Dep’t of Children & Families, 627 F. App’x 782, 785–86 (11th Cir. 2015) (“If no reasonable jury
could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and
summary judgment will be granted.” (quoting Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th
Cir. 1994))).
ANALYSIS
Vilsack seeks summary judgment on both of Amaya’s remaining Title VII claims, arguing that
“Amaya has not, and cannot, meet her burden of establishing her claims of disparate treatment or
retaliation.” Def.’s MSJ at 9. We’ll consider his Motion separately as to each count.
I.

Count I: Sex Discrimination

According to Vilsack, Amaya’s disparate-treatment claim fails as a matter of law because “(1)
she has not shown that the USDA took any actual personnel action within the meaning of 5 U.S.C. §
2302(2)(A), and (2) even if she had, she has no evidence (beyond her own baseless speculation) that
any purported differential treatment was tainted by discrimination based on her sex.” Def.’s MSJ at 3.
Because we agree with the first point, we need not reach the second.
In its provision governing federal employment, Title VII requires that “[a]ll personnel actions
affecting employees . . . be made free from any discrimination based on . . . sex[.]” 42 U.S.C. § 2000e16(a). The Supreme Court has explained that a “‘personnel action’ [ ] include[s] most employmentrelated decisions, such as appointment, promotion, work assignment, compensation, and performance
reviews.” Babb v. Wilkie, 589 U.S. 399, 405 (2020) (Babb I) (citing 5 U.S.C. § 2302(a)(2)(A)). To prevail
on a disparate-treatment claim, then, a plaintiff must establish that the “personnel action[ ] [was] made
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in ‘a way that [was] tainted by differential treatment based on’ a protected characteristic.” Babb v. Sec’y,
Dep’t of Veterans Affs., 992 F.3d 1193, 1199 (11th Cir. 2021) (Babb II) (quoting Babb I, 589 U.S. at 406);
see also Buckley v. Sec’y of Army, 97 F.4th 784, 793 (11th Cir. 2024) (“The upshot . . . is that the law ‘does
not require proof that an employment decision would have turned out differently if [sex] had not been
taken into account—i.e., does not require that [sex] discrimination be the but-for cause of an adverse
personnel decision.’” (cleaned up) (quoting Babb II, 992 F.2d at 1199)).
A plaintiff “may survive a motion for summary judgment on her Title VII discrimination claim
by presenting circumstantial evidence raising a reasonable inference of intentional discrimination by
her employer.” Troupe v. DeJoy, 861 F. App’x 291, 294 (11th Cir. 2021) (citing Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). Under the McDonnell Douglas framework, a plaintiff may
meet her burden by “showing (1) that she belongs to a protected class, (2) that she was subjected to
an adverse employment action, (3) that she was qualified to perform the job in question, and (4) that
her employer treated ‘similarly situated’ employees outside her class more favorably.” Lewis v. City of
Union City, 918 F.3d 1213, 1220–21 (11th Cir. 2019) (cleaned up); see also McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973) (outlining the prima facie elements of discrimination). But failing to
satisfy McDonnell Douglas—and specifically its requirement that the plaintiff “produce a comparator”—
“does not necessarily doom the plaintiff’s case.” Smith, 644 F.3d at 1328. Rather, “the plaintiff will
always survive summary judgment if [s]he presents circumstantial evidence that creates a triable issue
concerning the employer’s discriminatory intent.” Ibid. (cleaned up).
Still, while the Eleventh Circuit no longer subjects federal-sector employees to McDonnell
Douglas, see Buckley, 97 F.4th at 794–95 (“[T]he burden under McDonnell Douglas is heavier than Title
VII imposes on a plaintiff in a federal-sector case[.]”), a plaintiff still must establish that her “protected
characteristic played [some] part in her employer’s process in reaching an adverse employment decision,”
id. at 794 (emphasis added); see also Holland v. Gee, 677 F.3d 1047, 1056 (11th Cir. 2012) (“In a Title
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VII case, an adverse employment action is not only an element of the prima facie case, but also of the
claim itself.” (cleaned up)). 2 An employer’s conduct may form the basis of a Title VII discrimination
claim only if it “adversely affects the employee’s employment status or materially ‘alters the employee’s
compensation, terms, conditions, or privileges of employment.’” Thomas v. Dejoy, 2021 WL 4992892,
at *7 (N.D. Fla. July 19, 2021) (Wetherell, J.) (quoting Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587
(11th Cir. 2000)). Such “actions consist of things that affect continued employment or pay—things
like terminations, demotions, suspensions without pay, and pay raises or cuts—as well as other things
that are similarly significant standing alone.” Monaghan v. Worldpay US, Inc., 955 F.3 855, 860 (11th Cir.
2020) (first citing Davis v. Town of Lake Park, 245 F.3d 1232, 1238–39 (11th Cir. 2001); and then citing
Gillis v. Ga. Dep’t of Corr., 400 F.3d 883, 888 (11th Cir. 2005)).
Here, Vilsack maintains that “Amaya has not shown that she suffered an adverse employment
action,” foreclosing her disparate-treatment claim as a matter of law. Def.’s MSJ at 6. We agree.
According to Vilsack, Amaya’s Second Amended Complaint “allege[d] only one personnel
action . . . which could possibly establish that Amaya suffered an adverse employment action sufficient
to sustain” a discrimination claim: that she was “suspended without pay in April 2022.” Def.’s MSJ at
2 (cleaned up); see also Amaya, 2024 WL 3509583, at *3 (“[S]uspension without pay constitutes an
adverse employment action under Title VII.” (citing Davis v. Leg. Servs. Ala., Inc., 19 F.4th 1261, 1266
(11th Cir. 2021))). Over the course of discovery, however, we learned that Amaya “has never been
suspended while working at the USDA,” either with or without pay. Def.’s SOF ¶ 9 (citing Amaya
Dep. at 59:19–24, 69:2–9, 74:3–25); see Pl.’s Resp. SOF ¶ 9 (“Undisputed.”); see also Amaya Dep. at

As Vilsack rightly notes, the “Eleventh Circuit interchangeably uses the phrases ‘adverse personnel
action,’ ‘adverse personnel decision,’ ‘adverse employment action,’ and adverse employment decision.”
Reply [ECF No. 57] at 3 n.4 (first citing Buckley, 97 F.4th at 792; then citing Babb II, 992 F.3d at 1204;
then citing Terrell v. Sec’y, Dep’t of Veterans Affs., 98 F.4th 1343, 1355 (11th Cir. 2024); and then citing
Burke v. U.S. Postal Serv., 2023 WL 8841352 (11th Cir. Dec. 21, 2023)).
2

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68:21–24 (“Q. And I’m speaking as broadly as possible, either a suspension with pay, a suspension
without pay; that’s never happened to you? A. Never happened.”).
Instead, Amaya only received a “Notice of Proposed Suspension” from Volpe in April 2022.
Def.’s SOF ¶ 5 (emphasis added) (citing Notice of Proposed Suspension at 1–8); see also Pl.’s Resp.
SOF ¶ 5 (“Undisputed.”). But Miranda “did not sustain the proposed discipline against Amaya” and
reduced her punishment to “a letter of reprimand.” Def.’s SOF ¶ 7 (citing Decision on Proposed
Suspension at 1); see also Pl.’s Resp. SOF ¶ 7 (“Undisputed that Miranda reduced the discipline of
suspension to reprimand.”).
The “Eleventh Circuit has emphasized that reprimands are not sufficiently adverse unless they
result in some tangible and negative effect on employment.” Harper v. Vilsack, 2024 WL 3551910, at
*5 (S.D. Fla. July 26, 2024) (Altonaga, C.J.) (first citing Henderson v. City of Birmingham, 826 F. App’x
736, 741 (11th Cir. 2020); and then citing Barnett v. Athens Reg’l Med. Ctr. Inc., 550 F. App’x 711, 713
(11th Cir. 2013)). As Vilsack sees it, the letter had no such effect on Amaya’s employment because it
wasn’t made part of her “permanent record,” Def.’s SOF ¶ 8 (citing Decision on Proposed Suspension
at 1); see also Pl.’s Resp. SOF ¶ 8 (“Undisputed.”), and didn’t prevent Amaya from receiving either “the
highest rating an employee could receive” in her following performance appraisal, Def.’s SOF ¶¶ 11–
12 (first citing Performance Review [ECF No. 50-4] at 13; and then citing Amaya Dep. at 35:4–10);
see also Pl.’s Resp. SOF ¶¶ 11–12 (“Undisputed[.]”), or a “timely” pay raise, Def.’s SOF ¶ 16 (citing
Amaya Dep. at 37:10–38:2); see also Pl.’s Resp. SOF ¶ 16 (“Undisputed.”). Even after viewing the
evidence in the light most favorable to Amaya—and drawing all reasonable inferences in her favor 3—
we conclude that Amaya hasn’t “come forward with [any] specific facts” suggesting otherwise. Bailey,
284 F.3d at 1243.

3

As we must. See Pennington, 261 F.3d at 1265.
10

Amaya first attacks the Proposed Notice of Suspension, claiming that it “falsely alleged that
Ms. Amaya recorded [Volpe]” and that it “included Ms. Lopez’[s] allegations [against Amaya.]” Pl.’s
Resp. SOF ¶¶ 36–37 (first citing 2d Volpe Dep. at 16:3–23, 33:8–34:7; and then citing id. at 17:24–
18:14). She also takes issue with the Notice describing her conduct as “aggressive” and characterizing
her behavior as involving “tirades[.]” Id. ¶ 32 (quoting 2d Volpe Dep. at 32:1–25); see also Notice of
Proposed Suspension at 2 (“You then became aggressive and began a tirade stating that I had no idea
what goes on[.]”). But, because Volpe’s proposal didn’t result in an adverse employment action, the
contents of the Notice are irrelevant. See Henderson, 826 F. App’x at 741 (“Although [the plaintiff]
alleges he was subjected to internal discipline and investigation, he does not say how, if at all, these
actions affected the terms, conditions, or privileges of his employment. As a result, his disparatetreatment discrimination claim fails.”).
In fact, Amaya offers no evidence from which a reasonable jury could infer that either the
Notice or her letter of reprimand had any negative effect on her employment. Despite acknowledging
that she was rated “fully successful” on her review, Amaya Dep. at 35:4–7 (“Q. Were there any of the
elements, performance elements that you were graded on where Mr. Volpe marked you as, quote, does
not meet fully successful, end quote? A. There’s no markings there.”), Amaya nonetheless maintains
that Volpe “wrote several false and inconsistent notes about [her] performance and conduct on the
performance evaluation,” Pl.’s Resp. SOF ¶ 39 (citing SAC ¶¶ 79–81). Amaya, however, hasn’t
produced any evidence to substantiate that allegation, instead citing only to her pleading. And
pleadings aren’t evidence and thus aren’t sufficient to withstand summary judgment. See Resolution Tr.
Corp. v. Dunmar Corp., 43 F.3d 587, 598–99 (11th Cir. 1995) (“In opposing a motion for summary
judgment, a party may not rely on his pleadings to avoid judgment against him.” (cleaned up)).
In any event, “unfavorable performance reports and disciplinary memoranda are not
sufficiently adverse if they did not cause the plaintiff ‘any present or foreseeable future economic
11

injury.’” Henderson, 826 F. App’x at 741 (quoting Davis, 245 F.3d at 1240)); see also Johnson v. Potter, 732
F. Supp. 2d 1264, 1279 (M.D. Fla. 2010) (Bucklew, J.) (concluding that, because “[t]he disciplinary
‘write-ups’ were not permanent[,] . . . [they] did not affect [the plaintiff’s] pay or employment
conditions [and did] not constitute an adverse employment action for purposes of a Title VII
discrimination claim”). And the undisputed evidence shows that Amaya suffered no such economic
injury. See Def.’s SOF ¶ 16 (“Amaya’s within-grade increase from GS 12-7 to GS 12-8 occurred timely
and in conformity with the standard progression for federal employees whose performance is at an
acceptable level and who has completed the required waiting period for advancement to the next
step.” (citing Amaya Dep. at 37:10–38:2)); Pl.’s Resp. SOF ¶ 16 (“Undisputed.”). Amaya has thus failed
to create a genuine issue of fact as to the effect of the Notice of Proposed Suspension (or the
reprimand letter) on the conditions of her employment.
Recognizing that those acts aren’t enough, Amaya tries to save her disparate-treatment claim
by directing us to four other allegedly discriminatory acts taken by her supervisors. But nothing in the
record suggests that any of these acts materially altered “the terms, conditions, or privileges of [her]
job” in a “real and demonstrable way” either. Henderson, 826 F. App’x at 741 (quoting Davis, 245 F.3d
at 1239).
First, Amaya says that Volpe required her to “speak well of [Volpe’s] male direct supervisor
report Tony Knapick to other employees.” Pl.’s Resp. SOF ¶ 34 (citing 2d Volpe Dep. at 42:2–47:22).
In 2017, Amaya sent Volpe an email recounting how Volpe told her that, “instead of being part of the
problem, [Amaya] should go around and tell people that Tony Knapick was the highest ranking in the
past selection process, was selected by the panel and not by [Volpe], and that [Volpe has] known him
for 20 years.” 2d Volpe Dep. at 46:9–14; see also id. at 46:15–17 (“[Q.] Is that what Ms. Amaya stated
to you in this email? A. That’s what she wrote.”). Amaya never explains how Volpe’s conduct here

12

constitutes a “personnel action,” 42 U.S.C. § 2000e-16(a), much less one that materially affected the
terms and conditions of her employment. 4 So, this action cannot form the basis of her claim.
Second, Amaya alleges that Volpe “required” her “to come to his office for meetings alone, and
for meetings which he admitted he could have held via phone or [Microsoft] Teams as he did for other
male employees.” Pl.’s Resp. SOF ¶ 35 (first citing 1st Volpe Dep. at 189:23–191:17; and then citing
2d Volpe Dep. at 19:15–21:22). But having to attend meetings isn’t an adverse employment action
either. See Thomas v. Clarke Cnty. Sch. Dist., 2019 WL 3978411, at *5 (M.D. Ga. Aug. 22, 2019) (“Being
summoned to frequent meetings . . . does not amount to an adverse employment action.”). That’s
really the end of that.
Third, Amaya points to her allegation that “Volpe and [ ] Miranda refused multiple times to
remove [ ] Volpe from supervising [ ] Amaya after she complained of [Volpe’s] prohibited activity[.]”
Plaintiff’s Response to the Defendant’s Motion for Summary Judgment (“Pl.’s MSJ Resp.”) [ECF No.
56] at 5. As evidence for this claim, Amaya cites the following exchange from Volpe’s deposition:
Q.

Mr. Volpe, prior to you no longer being employed in the D.C. office, had Ms.
Amaya ever requested that you be removed as her supervisor? . . .

A.

I believe -- I believe she did.

Q.

And were you immediately removed as her supervisor?

A.

No.

Even if Amaya had shown that this action constituted an adverse personnel action, Vilsack is right
that “Amaya improperly raises this claim for the first time in her Response; it does not appear in the
SAC.” Reply at 6; see generally SAC. Because each “discrete discriminatory act . . . [constitutes a]
separate claim[ ]” under Title VII, Freeman v. City of Riverdale, 2008 WL 11333375, at *12 (N.D. Ga.
Aug. 15, 2008), Amaya’s failure to plead this new factual basis for her discrimination claim in her
complaint prevents her from raising it for the first time here, see Lightfoot v. Henry Cnty. Sch. Dist., 771
F.3d 764, 779 (11th Cir. 2014) (“[T]he district court did not err in declining to consider this new factual
basis when it was raised in [the plaintiff’s] opposition to summary judgment. ‘A plaintiff may not
amend her complaint through argument in a brief opposing summary judgment.’” (quoting Gilmour v.
Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004))).
4

13

1st Volpe Dep. at 42:12–22; see also Pl.’s Resp. SOF ¶ 41 (“Ms. Amaya repeatedly requested to both
Mr. Volpe and Mr. Miranda that Mr. Volpe be removed from supervising her for his prohibited activity
to no avail.” (citing 1st Volpe Dep. at 42:12–22)). This testimony not only falls short of demonstrating
“multiple” transfer requests, Pl.’s Resp. SOF ¶ 41, but it also makes no mention of Miranda at all.
Plus, Volpe’s speculation that he “believe[d]” Amaya submitted a transfer request, see 1st Volpe Dep.
at 42:19, is squarely refuted by Amaya’s own testimony that she never followed through with requesting
a transfer:
Q.

Okay. So did you put yourself on a transfer list at some point?

A.

Well, after I spoke with this lady[,] I can’t recall her name, but she said send
me information about the reasons why you want to transfer, who are your
supervisors, and so I just -- so to send her the information. So that’s what was
requested from me.

Q.

And did you send this person the requested information?

A.

I did not[.]

Amaya Dep. at 20:8–17.
At “summary judgment, a court is not obligated to take as true testimony that is not based
upon personal knowledge.” Citizens Concerned About Our Children v. Sch. Bd. of Broward Cnty. 193 F.3d
1285, 1295 n.11 (11th Cir. 1999) (citing FED. R. CIV. P. 56(e)). And the Eleventh Circuit has “said
repeatedly that speculation about a fact or result is insufficient to survive summary judgment[,]”
because an “inference based on speculation and conjecture is not reasonable.” Gadsby v. Am. Golf Corp.
of Cal., 557 F. App’x 837, 840 (11th Cir. 2014) (quoting Avenue CLO Fund, Ltd. v. Bank of Am., N.A.,
723 F.3d 1287, 1294 (11th Cir. 2013)). That’s especially true when “a party has given clear answers to
unambiguous questions which negate the existence of any genuine issue of material fact[.]” Van T.
Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 656 (11th Cir. 1984).
Amaya’s appeal to Volpe’s speculation about whether she applied for a transfer “creates a false
issue, the demolition of which is a primary goal of summary judgment.” Cordoba v. Dillard’s, Inc., 419
14

F.3d 1169, 1181 (11th Cir. 2005) (quoting Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931–32 (7th Cir.
1995)). At most, Amaya has offered only a “mere scintilla of evidence,” Gogel v. Kia Motors Mfg. of Ga.,
Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (cleaned up)—one she herself admits is mistaken—and
which thus cannot create a “genuine dispute as to any material fact” regarding her abandoned transfer
request, Sharman v. City of Tallahassee, 831 F. App’x 923, 925 (11th Cir. 2020) (emphasis added) (quoting
FED. R. CIV. P. 56(a)); see also Gogel, 967 F.3d at 1134 (“[T]here must be enough of a showing that the
jury could reasonably find for that party.” (cleaned up)).
But here’s the thing: Even if Amaya had presented some evidence about this transfer request,
her claim would still fail. For a disparate-treatment claim, the denial of a transfer request isn’t materially
adverse if the plaintiff suffered “no reduction in pay, prestige, or responsibility by remaining in the
same position[.]” Hawkins v. BBVA Compass Bancshares, Inc., 613 F. App’x 831, 836 (11th Cir. 2015);
see also Hinson v. Clinch Cnty. Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000) (“[T]ransfer to a different
position can be ‘adverse’ if it involves a reduction in pay, prestige[,] or responsibility.” (citing Doe v.
Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1448 (11th Cir. 1998))); Richardson v. Jackson, 545 F. Supp. 3d
1318, 1327–28 (N.D. Ga. 2008) (“The clear weight of authority holds that a lateral transfer (or denial
of a transfer request) is ordinarily not regarded as an adverse employment action under Title VII
merely because the employee subjectively finds one position preferable to the other, absent some
evidence that the plaintiff suffered a material loss of pay, prestige, or other quantifiable benefit.” (first
citing Weston-Brown v. Bank of Am. Corp., 167 Fed. App’x 76, 80 (11th Cir. 2006); then citing Wall v.
Trust Co. of Ga., 946 F.2d 805, 808 (11th Cir. 1991); then citing Williams v. Bristol–Myers Squibb Co., 85
F.3d 270, 274 (7th Cir. 1996); and then citing Tarrance v. Montgomery Cnty. Bd. of Educ., 157 F. Supp. 2d
1261, 1266 (M.D. Ala. 2001))).
Here, Amaya doesn’t identify any evidence suggesting “that [the requested] transfer . . . would
represent an increase in pay, prestige or responsibility.” Gonzalez v. Fla. Dep’t of Hwy. Safety & Motor
15

Vehicles, 237 F. Supp. 2d 1338, 1348 (S.D. Fla. 2002) (Hoeveler, J.). In fact, Amaya testified that the
transfer wouldn’t have changed her role—just her office location. See Amaya Dep. at 18:22–19:1 (“Q.
And for positions like that where it’s a transfer, you would have essentially kept your same position as
a supervisory PPQ officer, you would have just moved to a different physical location? A. Correct.”).
Nor would it have increased her salary, which followed the seniority-based “standard progression for
federal employees.” Def.’s SOF ¶ 16 (citing Amaya Dep. at 37:10–38:2); see also Pl.’s Resp. SOF ¶ 16
(“Undisputed.”); Amaya Dep. at 37:14–17 (“Q. -- there’s a formula that the government has? A. Yeah,
they have tables and they say how many years between when you get to the step, how many years
before you get to the next step.”).
Still resisting, Amaya directs us to Harper v. Vilsack (a companion case also premised on
Volpe’s allegedly discriminatory conduct), see 2024 WL 3551910 (S.D. Fla. July 26, 2024) (Altonaga,
C.J.), in which our Chief Judge “concluded that a reasonable jury could find that the denial of a change
in supervisor” was sufficiently material to form the basis of a viable Title VII disparate-impact claim,
Pl.’s MSJ Resp. at 7 (first citing Rayner v. Dep’t of Veterans Affs., 648 F. App’x 911, 915 (11th Cir. 2017);
and then citing Harper, 2024 WL 3551910). The Harper Court (it’s true) held that, “assuming a request
was made and denied, it is for a jury to decide whether the circumstances rendered the denial an
adverse action.” Harper, 2024 WL 3551910, at *5 (citing Lanier v. Bd. of Trs., 2014 WL 657541, at *7
(N.D. Ala. Feb. 20, 2014)). But Harper didn’t engage with the “clear weight of authority” demonstrating
that the denial of a lateral transfer request is not materially adverse “absent some evidence that the
plaintiff suffered a material loss of pay, prestige, or other quantifiable benefit.” Richardson, 545 F. Supp.
3d at 1327–38 (collecting cases). 5 Given Amaya’s testimony that her requested transfer was only from
Instead, Harper relied only on the Northern District of Alabama’s ruling in Lanier, which (in turn)
cited to two Title VII retaliation cases for the proposition that “[f]ailure to transfer an employee can
qualify as an adverse action. . . depend[ing] on the context and whether a reasonable person in the
employee’s situation would consider the action adverse.” Lanier, 2014 WL 657541, at *7 (first citing
Webb–Edwards v. Orange Cnty. Sheriff’s Off., 525 F.3d 1013, 1028–29 (11th Cir. 2008); and then citing
5

16

one office to another, see Amaya Dep. at 18:22–19:1 (“Q. . . . [Y]ou would have just moved to a
different physical location? A. Correct.”), no reasonable juror could find that denying that requested
transfer amounted to a “reduction in pay, prestige or responsibility,” Hinson, 231 F.3d at 829 (cleaned
up). So, even if Amaya had submitted a transfer request—and even if that request had been denied—
that denial would nonetheless be insufficient as a matter of law to support her disparate-treatment
claim.
Fourth, Amaya tries to base her disparate-treatment claim on “Volpe and [ ] Miranda
immediately removing a male employee from under [her] direct supervision when the male employee
complained about [ ] Amaya and wanted her removed as his supervisor[.]” Pl.’s MSJ Resp. at 5; see also
2d Volpe Dep. at 48:22–25 (“Q. . . . At any time while you were supervising Ms. Amaya, was Mr.
Ramos removed from under Ms. Amaya’s supervision? A. Yes.”). Because of that transfer, Amaya no
longer could “discipline male employee Ramos . . . but instead had to submit her concerns about [ ]
Ramos to [ ] Volpe[.]” Pl.’s Resp. SOF ¶ 43 (citing 2d Volpe Dep. at 65:1–66:9).
“[C]ourts in the Eleventh Circuit consistently hold that loss of supervisory responsibility does
not constitute an adverse employment action without a material change in the terms or conditions of

Taylor v. Roche, 196 F. App’x 799, 803 (11th Cir. 2006)). But we apply a different—and more lenient—
understanding of what constitutes an adverse employment action to Title VII retaliation claims than
we do for disparate-treatment claims. Compare Monaghan, 955 F.3d at 857 (“[T]he retaliation is material if
it ‘well might have dissuade[d] a reasonable worker from making or supporting a charge of
discrimination.’” (quoting Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53, 57 (2006))), with
Sharpe v. Global Sec. Int’l, 766 F. Supp. 2d 1272, 1291 (S.D. Ala. 2011) (“In the Title VII discrimination
context, . . . ‘only those employment actions that result in a serious and material change in the terms,
conditions, or privileges of employment will suffice.’” (quoting Howard v. Walgreen Co., 605 F.3d 1239,
1245 (11th Cir. 2010))); see also Crawford v. Carroll, 529 F.3d 961, 974 n.14 (11th Cir. 2008) (“It should
be noted, however, that while the new standard enunciated in Burlington applies to Title VII retaliation
claims, it has no application to substantive Title VII discrimination claims.”). So, those retaliation cases
don’t help us much in evaluating Amaya’s disparate-treatment claim under the proper standard—viz.,
whether the denial of a transfer request “entail[ed] a serious and material change in the terms,
conditions, or privileges of employment.” Gaddis v. Russell Corp., 242 F. Supp. 2d 1124, 1145 (M.D.
Ala. 2003) (citing Smith v. Ala. Dep’t of Corr., 145 F. Supp. 2d 1291, 1299 (M.D. Ala. 2001)).
17

employment.” Arora v. Miami-Dade County, 2024 WL 4286220, at *8 (S.D. Fla. Sept. 25, 2024) (Damian,
J.) (collecting cases). And Ramos’s transfer had no effect on Amaya’s pay grade, job title, or salary. See
Def.’s SOF ¶ 1 (“At all times material to her claims, [Amaya] was employed as a Supervisory Plant
Protection and Quarantine [ ] Officer[.]” (citing Amaya Dep. at 8:1–22)); Pl.’s Resp. SOF ¶ 1
(“Undisputed.”); see also Def.’s SOF ¶ 16 (“Amaya’s within-grade increase from GS 12-7 to GS 12-8
occurred timely and in conformity with the standard progression for federal employees[.]” (citing
Amaya Dep. at 37:10–38:2)); Pl.’s SOF ¶ 16 (“Undisputed.”). It is “axiomatic that ‘Title VII is not
designed to make federal courts sit as a super-personnel department that reexamines an entity’s
business decisions[.]’” Kidd v. Mando Am. Corp., 731 F.3d 1196, 1203 (11th Cir. 2013) (quoting Davis,
245 F.3d at 1245). That principle is no less salient in evaluating the delegation of assignments by
“public entities[,] . . . which must balance limited personnel resources with the wide variety of critically
important and challenging tasks expected of them by the public.” Davis, 245 F.3d at 1244.
As such, even if Amaya “arguably suffered some negative impact to the practical exercise of
[her] supervisory authority[,] [she] remained in the same position with the same pay and benefits, [so]
no reasonable jury could find that the [USDA’s] actions adversely impacted a term or condition of
[her] employment, or were so adverse as to be analogous to a discharge, suspension, or demotion.”
Byrd v. Gwinnett Cnty. Sch. Dist., 2024 WL 1377644, at *4 (N.D. Ga. Mar. 31, 2024); see also Kidd, 731
F.3d at 1204 (“[S]ome blow to a plaintiff’s professional image . . . is simply not enough to prevail.”
(cleaned up)). Ramos’s transfer—which amounted to “a loss of [Amaya’s] supervisory responsibility
[over one employee], not a loss of salary or benefits—does not rise to [the] level” of a materially
adverse employment action. Kidd, 731 F.3d at 1196.
Unable to identify a single adverse employment action to support her disparate-treatment
claim, Amaya resorts to arguing that she can overcome summary judgment “either by showing that
her . . . sex played a role in [the] Defendant’s actions or [by] presenting a convincing mosaic of
18

circumstantial evidence.” Pl.’s MSJ Resp. at 5 (first citing Lewis v. Sec’y of U.S. Air Force, 2022 WL
2377164 (11th Cir. June 30, 2022); and then citing Tynes v. Fla. Dep’t of Juvenile Just., 88 F.4th 939, 947
(11th Cir. 2023)). Not so.
Although a plaintiff can survive “summary judgment if [s]he presents circumstantial evidence
that creates a triable issue concerning the employer’s discriminatory intent,” Smith, 644 F.3d at 1328
(emphasis added), the Eleventh Circuit has “never suggested that a plaintiff can survive summary
judgment without any evidence that she experienced any adverse employment action at all,” Coles v.
Post Master Gen., 711 F. App’x 890, 896 (11th Cir. 2017); see also ibid. (“Allowing a plaintiff to go beyond
the McDonnell Douglas framework to prove her employer’s discriminatory intent does not abolish the
requirement that the plaintiff have suffered an adverse employment action.”); Lewis v. Kendall, 2022
WL 19408074, at *4 (N.D. Fla. Dec. 12, 2022) (Wetherell, J.) (“[A]lthough Babb II recognized that the
causation standard for federal-sector claims under Title VII is different from the causation standard
for other Title VII claims, it did not suggest that any of the other elements of the claims were
different.”). And Amaya has simply failed to put forth any evidence that she suffered a “serious and
material change in the terms, conditions, or privileges of [her] employment.” Davis, 245 F.3d at 1239.
We therefore GRANT the Defendant’s Motion for Summary Judgment on Count I.
II.

Count II: Retaliation

Vilsack also argues that he’s entitled to summary judgment on Amaya’s retaliation claim
because Amaya “was not the subject of an adverse employment action.” Def.’s MSJ at 7 (cleaned up).
As with her disparate-treatment claim, to survive summary judgment on her retaliation claim, Amaya
must present some evidence that would allow a reasonable jury to infer that she suffered an adverse
employment action. See Terrell, 98 F.4th at 1355 (“To make a prima facie case of retaliation, [the
plaintiff] must show that she (1) engaged in protected EEO activity and (2) suffered an adverse
employment action, and (3) she must establish a causal link between the protected activity and the
19

adverse action.” (citing Crawford, 529 F.3d at 970)). But, while “retaliation claims also require that an
employment action be ‘materially adverse,’ in the retaliation context this means that the action ‘well
might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’”
Harper, 2024 WL 3551910, at *9 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006)); see also Crawford, 529 F.3d at 974 n.14 (“The two standards are distinct and different and, as
noted, the Burlington standard applies to a wider range of employer conduct.”). Whether that’s the case
“will often depend upon the particular circumstances.” Burlington, 548 U.S. at 68.
Once again, Amaya hasn’t come up with any evidence that creates a triable issue as to any of
the purportedly adverse actions she faced. Amaya concedes that the “[Letter of] Reprimand itself alone
[sic] would fail as an independent basis for [her] retaliation claim.” Pl.’s MSJ Resp. at 7 (emphasis
omitted); see also Byrd, 2024 WL 1377644, at *36 (“[T]he Eleventh Circuit has held that written
counseling does not constitute a materially adverse employment action where plaintiff failed to allege
that it had any significant impact on his employment, even under the more lenient standard for
retaliation claims.” (cleaned up) (collecting cases)). Instead, she says that, as in Harper, “a reasonable
jury could find that the denial of a change in supervisor, as was done repeatedly in this case, would
have dissuaded a reasonable worker from reporting discrimination.” Pl.’s MSJ Resp. at 7 (first citing
Rayner, 684 F. App’x at 915; and then citing Harper, 2024 WL 3551910).
But our summary-judgment record is far scanter than the record in Harper. In that case, the
court concluded that a reasonable jury could find that the plaintiff made a transfer request based on
an “affidavit” in the summary-judgment record stating that the plaintiff’s “EEO Counselor informed
her ‘that the requests [for a transfer] were provided to management[,]’ which ‘did not honor the
request[.]’” Harper, 2024 WL 3551910, at *5 (cleaned up). Here, by contrast, not only did Amaya not
submit any similar competent evidence, but she also directly testified at her deposition that she never
provided the required information to even begin her transfer process. See Amaya Dep. at 20:15–17
20

(“Q. And did you send this person the requested information? A. I did not[.]”). Given the “context”
of the abandoned application, Burlington, 548 U.S. at 69, “it is impossible to infer . . . [Amaya] suffered
an adverse employment action” when she “never applied for any vacant position,” Jones v. Ala. Power
Co., 2007 WL 3496720, at *9 (M.D. Ala. Nov. 14, 2007); see also Varnado v. Mukasey, 2010 WL 2196263,
at *4 (S.D. Fla. June 1, 2010) (Cooke, J.) (“Plaintiff’s claim of failure to promote must fail because she
admitted at deposition that she never actually applied for a promotion.”); Moore v. Shands Jacksonville
Med. Ctr., Inc., 2013 WL 11327134, at *23 (M.D. Fla. Oct. 18, 2013) (“[The Plaintiff]’s non-promotion
to a position for which he never applied is insufficient to establish a retaliation claim.”), aff’d sub nom.
Moore v. Shands Healthcare, Inc., 617 F. App’x 924 (11th Cir. 2015). Amaya’s nonexistent transfer request
thus cannot serve as the adverse action underlying her retaliation claim.
Amaya’s alternative theory—that, “after complaining about [ ] Volpe, he increased summoning
her into countless impromptu meetings to verbally criticize her performance, threaten future
reprimands, and to threaten her continued employment at USDA,” Pl.’s MSJ Resp. at 8 (emphasis
added) (citing Pl.’s Resp. SOF)—doesn’t fare any better. As we’ve said, Amaya doesn’t substantiate
this claim with any record evidence—and instead cites only her pleading on this point. See Pl.’s Resp.
SOF ¶¶ 47–48 (citing only to the SAC). At summary judgment, that just won’t cut it. Resolution Tr.
Corp., 43 F.3d at 599 (“[A] party may not rely on his pleadings to avoid judgment against him.” (cleaned
up)). Plus, to the extent that the record does indicate that Amaya had to attend in-person meetings
with Volpe, see, e.g., 2d Volpe Dep. at 34:8–16 (“Q. [O]n March 24, 2022, you stated this is -- that you
sent Ms. Amaya an email for her to come to your office and she didn’t want to come to your office,
correct? A. Correct. Q. But you instead required that she come to your office anyway, correct? A.
Yes.”), no reasonable jury could find that this common workplace requirement “would have dissuaded
a reasonable employee from engaging in protected activity,” Aburaad v. Haines City, 2022 WL 861578,
at *5 (M.D. Fla. Mar. 23, 2022) (Barber, J.); see also Byrd, 2024 WL 1377644, at *35 (“[The] act of
21

meeting with [the plaintiff] and discussing the matter is not an adverse employment action as a matter
of law[.]” (quoting Williams v. KS Mgmt. Servs., LLC, 2020 WL 2736571, at *7 (S.D. Tex. May 26,
2020))).
After viewing all the record evidence in Amaya’s favor—and drawing all reasonable inferences
for her—we conclude that the allegedly “substantial conduct by her supervisors” in which Amaya
roots her retaliation claim, Pl.’s MSJ Resp. at 9—even “when taken together,” King v. Fulton County,
2010 WL 2978072, at *6 (N.D. Ga. June 28, 2010)—does not meet the “threshold level of
substantiality that must be met for unlawful discrimination to be cognizable under the anti-retaliation
clause,” Wideman v. Wal–Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998); see also Rainey v. Holder,
412 F. App’x 235, 238 (11th Cir. 2011) (“‘[P]etty and trivial’ actions by the defendant are not
sufficiently adverse.” (quoting Crawford, 529 F.3d at 974 n.13)). We therefore GRANT the
Defendant’s Motion for Summary Judgment on Count II as well.
***
After careful review, then, we hereby ORDER and ADJUDGE as follows:
1. The Defendant’s Motion for Summary Judgment [ECF No. 49] is GRANTED.
2. Summary Judgment is ENTERED in favor of the Defendant, Thomas J. Vilsack, and against
the Plaintiff, Maria Amaya, on Counts I and II of the Plaintiff’s Second Amended Complaint
[ECF No. 37].
3. Pursuant to Federal Rule of Civil Procedure 58, the Court will enter final judgment separately.
4. This case shall remain CLOSED. All other deadlines are TERMINATED, and any pending
motions are DENIED as moot.

22

DONE AND ORDERED in the Southern District of Florida on October 24, 2024.

_________________________________
ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

23