Tom v. Equal Employment Opportunity Commission

United States District Court

for the

Southern District of Florida

Robert Tom, Plaintiff, )

)

v. )

) Civil Action No. 20-22726-Civ-Scola

Equal Employment Opportunity )

Commission and Janet Dhillon, in )

her official capacity, Defendants. )

Order on Motion to Dismiss

This matter is before the Court upon the Defendants’ motion to dismiss

the Plaintiff’s complaint. For the reasons stated below, the Court grants the

Defendants’ motion. (ECF No. 12.)

1. Background

This matter arises from alleged sexual harassment the Plaintiff suffered

while an employee of the Equal Employment Opportunity Commission

(“EEOC”), at the hands of his supervisor, Katherine Gonzalez. As a result of

this conduct, the Plaintiff brings four causes of action against the Defendants

Janet Dhillon, in her official capacity as Chair of the EEOC, and the EEOC

itself. Counts I and II of the Plaintiff’s complaint seek relief under Title VII of

the Civil Rights Act of 1964, and Counts III and IV seek relief under the Florida

Civil Rights Act of 1992.

2. Legal Standard

A. Motion to Dismiss

A court considering a motion to dismiss, filed under Federal Rule of Civil

Procedure 12(b)(6), must accept all of the complaint’s allegations as true,

construing them in the light most favorable to the plaintiff. Pielage v.

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need

only contain a short and plain statement of the claim showing that the pleader

is entitled to relief, a plaintiff must nevertheless articulate “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “But where the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has

alleged—but it has not shown—that the pleader is entitled to relief.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal

punctuation omitted). A court must dismiss a plaintiff’s claims if she fails to

nudge her “claims across the line from conceivable to plausible.” Twombly, 550

U.S. at 570.

B. Shotgun Pleading

“Courts in the Eleventh Circuit have little tolerance for shotgun

pleadings.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294–95 (11th Cir.

2018). They violate Federal Rules of Civil Procedure 8(a)(2) and 10(b), “waste

scarce judicial resources, inexorably broaden the scope of discovery, wreak

havoc on appellate court dockets, and undermine the public’s respect for the

courts.” Id. (quotations and alterations omitted). When presented with a

shotgun pleading, a district court “should strike the pleading and instruct

counsel to replead the case—if counsel could in good faith make the

representations required by Fed. R. Civ. P. 11(b).” Jackson v. Bank of Am., N.A.,

898 F.3d 1348, 1357–58 (11th Cir. 2018) (“This is so even when the other party

does not move to strike the pleading.”). The Eleventh Circuit has identified four

rough types of shotgun pleadings: 1) “the most common type—by a long shot—

is a complaint containing multiple counts where each count adopts the

allegations of all preceding counts, causing each successive count to carry all

that came before and the last count to be a combination of the entire

complaint”; 2) a complaint that commits the “venial sin” of being replete with

conclusory, vague, and immaterial facts; 3) a pleading that fails to separate

into a different count each cause of action; and 4) where a plaintiff asserts

multiple claims against multiple defendants but fails to specify which

defendants the respective claims are brought against. Weiland v. Palm Beach

County Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015).

3. Analysis

A. EEOC and Florida Civil Rights Act Claims

At the outset, the Court agrees with several unrebutted arguments raised

by the Defendants in their motion. First, the Defendants note in their briefing

that under Title VII of the Civil Rights Act of 1964 a plaintiff may only sue the

“head of the department, agency, or unit” that allegedly discriminated against

the plaintiff. Laurent v. Potter, 405 F. App’x 453, 455 (11th Cir. 2010) (“[t]he

district did not commit plain error in dismissing [the other defendant’s] from

[the plaintiff’s] Title VII complaint because Potter, the head of the agency, was

the only proper defendant.”); see also Canino v. U.S. E.E.O.C., 707 F.2d 468,

472 (11th Cir. 1983) (same). The Defendant failed to rebut this argument in his

briefing. In light of the Eleventh Circuit’s clear precedent, the Court finds the

EEOC is not a proper party to this action.

Second, the Defendants argue in their briefing that the Plaintiff’s Florida

Civil Rights Act claims are improper as Title VII is the exclusive remedy for a

federal employee to bring discrimination claims against its federal employer.

Indeed, in Brown v. General Services Administration, the Supreme Court stated

the Civil Rights Act of 1964 “provides the exclusive judicial remedy for claims of

discrimination in federal employment.” 425 U.S. 820, 835 (1976). The Eleventh

Circuit has reaffirmed this principle. See Canino, 707 F.2d at 472. While the

Plaintiff argues that the Court can exercise its power of supplemental

jurisdiction over the Plaintiff’s state law claims, the Plaintiff’s arguments miss

that Title VII is the exclusive remedy pursuant to which a federal employee can

sue its federal employer for employment discrimination.

In light of the above, the Court dismisses with prejudice all claims

against the Defendant the EEOC. The Court also dismisses with prejudice

Counts III and IV of the complaint. A Court may dismiss a cause of action with

prejudice “where further amendments would be futile.” Stewart v. Spirit

Airlines, Inc., No. 11-60284-Civ, 2012 WL 12888567, at 1* n.2 (S.D. Fla. Jan.

27, 2012) (discussing Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.

1999), report and recommendation adopted, 2012 WL 12888568 (S.D. Fla. Feb.

24, 2012). As any attempts by the Plaintiff to amend its complaint with respect

to its state law claims or with respect to claims raised against the EEOC would

be futile, dismissal with prejudice is appropriate.

B. Shotgun Pleading

Next, the Defendants argue that the Plaintiff’s complaint is an

impermissible shotgun pleading that must be dismissed because it sets forth a

number of irrelevant and immaterial facts and reincorporates all preceding

paragraphs into each successive count of the complaint. (ECF No. 12, at 2.)

The Plaintiff responds that his complaint “does not incorporate one count into

the next . . . what it does is use some of the same and general allegations in all

the [c]ounts, as they are all relevant to each [c]ount.” (ECF No. 19, at 4.)

Upon review, the Court agrees with the Defendant that the complaint is

the “most common type” of shotgun pleading, as discussed by the Eleventh

Circuit in Weiland. See 792 F.3d at 1321-23. The Plaintiff’s complaint, in the

remaining Counts I and II, states that the “Plaintiff . . . incorporates by

reference the allegations in all preceding paragraphs.” (ECF No. 1, at ¶¶ 60,

70.) While the Plaintiff does try to give the Court and Defendants some

direction by pointing the Court and the Defendants to “paragraphs 3 to 59” and

“paragraphs 16 through 27” as further support for Count I, and by pointing to

“paragraphs 3 to 59” and “paragraphs 28 to 59” as further support for Count

II, these statements are insufficient to cure the complaint’s deficiencies. (See

ECF No. 1, at 44 60-74.) Paragraphs 1 and 2 of the complaint discuss the

Court’s jurisdiction and venue, so pointing the Court and the Defendants to

paragraphs 3 through 59 of the complaint, when Count I begins at paragraph

60, essentially points the Court and the Defendants to the entirety of the

complaint’s general allegations. While the Plaintiff does also point the Court to

a smaller universe of allegations in each of Count I and Count II, as plead, the

Court is left guessing whether any particular allegations from paragraphs 3

through 15 or 28 through 59 support Count I (as the Plaintiff states in two

places), or if the Plaintiff instead intended to limit the facts supporting Count I

to the allegations set forth in paragraphs 16 to 27 (as the Plaintiff states in five

places). Count II suffers from the same deficiency.

The Court therefore dismisses without prejudice and with leave to

amend Counts I and II of the complaint. The Plaintiff would be well advised in

his amended complaint to clearly and chronologically lay out the dates of any

alleged incidents of sexual harassment. Clear organization in a forthcoming

amended complaint will help to reduce the number of repetitive and vague

allegations and allow the Court and the remaining Defendant to more easily

review the Plaintiff's claims. The Court also notes that the Plaintiff's initial

complaint is filed on behalf of himself “and similarly situated male employees,”

and therefore appears to be a class action complaint. If the Plaintiff intends to

file a class action lawsuit, the Plaintiff must make that clear in his complaint,

provided the Plaintiff can satisfy Federal Rules 11 and 23. If the Plaintiff does

not intend to file a class action lawsuit, the Plaintiff should make clear that he

is asserting his claims on behalf of himself only.

4. Conclusion

In sum, the Court grants the Defendants’ motion to dismiss. (ECF No.

12.) The Plaintiff is directed to file his amended complaint by March 15, 2021.

Done and ordered, at Miami, Florida, on March 1, 2021.

dobert N. Scola, Jr.

United States District Judge