Barnea v. Wilkie

Filing 52

ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION. Signed by Judge Rodolfo A. Ruiz, II on 1/7/2022. See attached document for full details. (ob)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 20-CIV-82459-RAR
NERI BARNEA,
Plaintiff,
v.
ROBERT WILKIE,
Secretary, Department of Veterans Affairs,
Defendant.
_______________________________/
ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court upon United States Magistrate Judge Bruce E.
Reinhart’s Report and Recommendation [ECF No. 50] (“Report”), entered on December 7, 2021.
The Report recommends that the Court grant in part and deny in part Defendant’s Motion to
Dismiss [ECF No. 28].

Report at 1. Defendant filed objections to the Report on December

21, 2021 [ECF No. 51] (“Objections”).
When a magistrate judge’s “disposition” has been properly objected to, district courts must
review the disposition de novo.

FED. R. CIV. P. 72(b)(3).

Because Plaintiff timely filed

objections to the Report, the Court has conducted a de novo review of Magistrate Judge Bruce E.
Reinhart’s legal and factual findings.
Defendant makes two primary objections to the Report. First, Defendant seeks to clarify
that the only materially adverse employment action that Defendant does not dispute is Plaintiff’s
termination. Objections at 3. And second, that Plaintiff has failed to allege close temporal
proximity regarding Dr. Zaya’s awareness of Plaintiff’s protected activity and an adverse
employment action. Id. at 6.

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As a threshold matter, the Court takes note of Defendant’s first objection for purposes of
clarifying the record. Objections at 3. However, to the extent Defendant asserts that the downgraded performance review cannot be considered an adverse employment action for purposes of
Plaintiff’s retaliation claim, this Court disagrees. Id. at 5. Defendant appears to argue that
Plaintiff’s down-graded performance review occurred prior to Plaintiff’s first protected EEO
activity in January 2018. Id. In making this argument, Defendant fails to acknowledge that
Plaintiff’s first protected EEO activity took place on or around November 27, 2017—when
Plaintiff first contacted a federal EEO counselor—a fact Plaintiff alleges that Defendant was aware
of.

Am. Comp. ¶¶ 18, 29.

Though not explicitly stated, upon viewing Plaintiff’s factual

allegations in the light most favorable to the non-moving party, Dusek v. JPMorgan Chase & Co.,
832 F.3d 1243, 1246 (11th Cir. 2016), it appears that Plaintiff’s down-graded performance review
occurred between November 27, 2017 and January of 2018. Id. ¶¶ 18-27.
Second, contrary to Defendant’s assertions, close temporal proximity exists between
Plaintiff’s protected activity and at least one adverse employment action. While Defendant would
have this Court believe that there was an 11-month gap between Plaintiff’s protected EEO activity
in November 2017 and his removal, Defendant seems to have forgotten all of the protected EEO
activity occurring between November 2017 and October 2018—notably, Plaintiff’s escalation of
his formal complaint and request for hearing on July 14, 2018. Objections at 7. Just two months,
or approximately 8 weeks later, on September 12, 2018, Dr. Zayas proposed Plaintiff’s
termination. See Farley v. Nationwide Insurance Mut. Ins. Co., 197 F. 3d 1322, 1337 (11th Cir.
1999) (finding that seven weeks between a protected EEO activity and an adverse employment
action was close temporal proximity).
In sum, having carefully reviewed the Amended Complaint [ECF No. 25], Defendant’s
Motion to Dismiss [ECF No. 28], Plaintiff’s Opposition to Defendant’s Motion to Dismiss [ECF
Page 2 of 3

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No. 35], Defendant’s Reply to Plaintiff’s Opposition [ECF No. 42], the Report, the Objections, the
factual record, the applicable law, and being otherwise fully advised, it is hereby
ORDERED AND ADJUDGED as follows:
1. The Report [ECF No. 50] is AFFIRMED AND ADOPTED.
2. Defendant’s Motion to Dismiss [ECF No. 28] is GRANTED IN PART and DENIED
IN PART as follows:
a. As to Count I of Plaintiff’s Amended Complaint, Defendant’s Motion to
Dismiss is GRANTED, and Count I is DISMISSED without prejudice with
leave to amend to allow Plaintiff to allege specific facts to sufficiently allege
that the memorandum changing his job duties, the down-graded performance
review, and/or his termination were tainted by his gender instead of just his age.
b. As to Counts II and III in Plaintiff’s Amended Complaint, Defendant’s Motion
to Dismiss is DENIED.
3. Plaintiff shall file a Second Amended Complaint in conformance with this Order on or
before January 20, 2022.

DONE AND ORDERED in Ft. Lauderdale, Florida, this 7th day of January, 2022.

_________________________________
RODOLFO A. RUIZ II
UNITED STATES DISTRICT JUDGE

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