Levittown, PA asked in Appeals / Appellate Law and Employment Discrimination for Florida

Q: Need an attorney familiar with the appeal process in Miami Florida


I am looking to appeal my case that was just closed yesterday 8/15/2023. I filed pro se against my former employer for disability discrimination. My claim was dismissed for failure to state a claim with prejudice. I feel that I have all the evidence needed to prove discrimination but because of my lack of experience, the judge refused to look at any of it, more specifically the words from the company. I did contact the EEOC and they gave me the right to sue. I am waiting for the EEOC to give me the paperwork back to see if they even investigated my claim. 

I worked for the company for 3 years and left during covid due to using all of my FMLA. I contacted the company to see if it was a possibility that I could come back, but work only 30 hours a week. They said it was possible if I could pass an interview. I interviewed on August 9th, 2021, and December 1st, 2021. They denied my applications stating that they found better candidates that met their needs.

1 Lawyer Answer
Charles M.  Baron
Charles M. Baron
  • Appeals & Appellate Lawyer
  • Hollywood, FL
  • Licensed in Florida

A: To search for an attorney who handles appeals in Miami, FL, you can try the Find a Lawyer tab at the top of this Justia page and input "appeal" in the subject field and "Miami, FL" in the location field, or you can contact the Florida Bar Lawyer Referral Service - see https://www.floridabar.org/public/lrs .

Your inquiry, though, reveals a misunderstanding of the motion to dismiss stage at which your case seems to have been booted out. When the defendant files a motion to dismiss for failure to state a claim (or failure to state a cause of action), the judge, in most instances, IS NOT ALLOWED to review any evidence. Usually, the only thing that the judge may review at that stage is (A) the content of the plaintiff's filed complaint to determine if the legally correct language was used to state all of the elements of the cause of action attempted to be asserted under statute and/or case law, and if the facts pled are legally sufficient to support those elements, and (B) the legal arguments and citations of authority supporting and opposing the motion.

However, even though the judge usually cannot and does not review actual evidence at that stage, when it grants a motion to dismiss for the first time, it usually must provide the plaintiff with an opportunity to amend his/her complaint, rather than dismiss it with prejudice. There are some exceptions to that general rule. If your judge never gave you the opportunity to amend the complaint, you might have an appellate issue on that score (alone).

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