United States District Court, M.D. Florida, Orlando Division
DALTON JR. JUDGE
the Court is: (1) U.S. Magistrate Judge Leslie R.
Hoffman's Report and Recommendation (Doc. 20
(“R&R”)); and (2) pro
se Plaintiff's Motion Objecting to the Report and
Recommendation. (Doc. 21
(“Objection”)). On review, the
Objection is overruled and the R&R adopted.
10, 2019, Plaintiff, proceeding pro se, filed a
third amended complaint alleging violations of Title VII of
the Civil Rights Act of 1964 (“Title
VII”) against Defendant, his former employer.
(Doc. 18 (“TAC”).) Plaintiff
also filed a motion to proceed in forma pauperis
(Doc. 19 (“IFP Motion”)). On
referral, Magistrate Judge Hoffman recommends dismissing the
TAC with prejudice and terminating the IFP Motion. (Doc. 20
Magistrate Judge Hoffman finds that, despite two
opportunities to amend his complaint, the TAC fails to
adequately plead that he is a member of a protected class and
does not allege that he engaged in activity specifically
protected under Title VII. (Id. at 5-7.)
Plaintiff filed an objection to the R&R asserting that
his initial filing correctly asserted that he was retaliated
against and fired because of his sexual orientation and that
this case should be stayed pending the U.S. Supreme
Court's decision on whether discrimination against an
employee based on sexual orientation constitutes prohibited
discrimination within the meaning of Title VII. (Doc. 21.)
party objects to a magistrate judge's findings, the
district court must “make a de novo determination of
those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” Id. If the matter is nondispositive,
the district court “must consider timely objections and
modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Fed.R.Civ.P. 72(a);
28 U.S.C. § 636(b)(1)(A); see, e.g., In re
Application of Hornbeam Corp., No.
14-24887-MC-SEITZ/TURNOFF, 2016 WL 3866561, at *1 (S.D. Fla.
July 13, 2016) (“Rule 72(a) instructs the district
court to review nondispositive matters for clear error or
contrariness to the law.”) A finding is clearly
erroneous “when although there is evidence [in the
record] to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948). A finding is
considered contrary to law if it does not apply or misapplies
the relevant statutes, case law, or rules of procedure.
Tompkins v. R .J. Reynolds Tobacco Co., 92 F.Supp.2d
70, 74 (N.D.N.Y. 2000).
objects to the R&R on the basis that his initial
complaint sufficiently alleged that he was discriminated
against based on his sexual orientation and asks the Court to
stay this case pending the U.S. Supreme Court's decision
in Bostock v. Clayton County, Georgia. (Doc. 21.) On
de novo review, the Court finds the Objection is due
to be overruled and the R&R adopted.
VII makes it unlawful for an employer “to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1).
conclusory allegation that he “is a member of a
protected class” is insufficient. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”). And
further, to the extent Plaintiff intended to assert that he
is a member of a protected class based on his sexual
orientation, an allegation of discrimination based on sexual
orientation does not state a cause of action under Title VII
in this Court. See Evans v. Georgia Reg'l Hosp.,
850 F.3d 1248, 1255 (11th Cir.), cert. denied, 138
S.Ct. 557 (2017); see also Bostock v. Clayton Cty. Bd. of
Comm'r, 723 Fed.Appx. 964 (11th Cir. 2018),
cert. granted, Bostock v. Clayton Cty.,
Ga., 139 S.Ct. 1599 (2019) (“[T]he district court
did not err in dismissing [the] complaint for sexual
orientation discrimination under Title VII because our
holding in Evans forecloses [the] claim.”)
While the Court appreciates Plaintiff's argument
regarding certiorari in Bostock, the law of the U.S.
Court of Appeals for the Eleventh Circuit remains intact
until the U.S. Supreme Court determines otherwise, and the
Court will not stay this action indefinitely. Thus,
Plaintiff's Objection is overruled. As Plaintiff already
had three attempts at pleading his claims, the case is
dismissed with prejudice and the R&R adopted.
it is ORDERED AND ADJUDGED as follows:
1. Plaintiff's Motion Objection to the Report and
Recommendation (Doc. 21) is OVERRULED.
2. U.S. Magistrate Judge Leslie R. Hoffman's Report and
Recommendation (Doc. 20) is ADOPTED,