# Tom v. Equal Employment Opportunity Commission

> District Court, S.D. Florida · March 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10118809

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** March 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10118809. Public record. Not legal advice.