Amaya v. Vilsack

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-cv-22838-ALTMAN/Reid

MARIA AMAYA,

Plaintiff,

v.

THOMAS J. VILSACK, Secretary,

United States Department of Agriculture,

Defendant.

____________________________/

ORDER

Our Plaintiff, Maria Amaya, has sued Thomas J. Vilsack, Secretary of the U.S. Department of

Agriculture (“USDA”), “to recover damages for discrimination and retaliation pursuant to Title VII

of the Civil Rights Act of 1964.” Amended Complaint (“Amnd. Compl.”) [ECF No. 8] ¶ 1. Amaya,

who works at the USDA’s Miami office as a Supervisor Plant Protection and Quarantine Officer, id.

¶¶ 12–13, alleges that she was the target of “an escalating and ongoing hostile pattern of

discrimination, harassment, and retaliation . . . and ultimate retaliatory pre-textual discipline” by “Louis

Volpe[,] Ms. Amaya’s direct supervisor[.]” Id. ¶¶ 15–20. Amaya’s Amended Complaint asserts two

counts under Title VII: one for “discrimination based on sex” (Count I), id. at 15 (cleaned up); and

one for “retaliation for reporting discrimination based on sex” (Count II), id. at 19 (cleaned up).

Vilsack, our Defendant, has since filed a Motion to Dismiss (“MTD”) [ECF No. 16], asking

us to dismiss the Amended Complaint both “on the grounds that [it] is a shotgun pleading” and because

it fails to state a claim. MTD at 1. Given our “duty” to dispose of impermissible shotgun pleadings

“at the earliest stages of litigation,” Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001), abrogated on

other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008), we’ll consider Vilsack’s shotgun-

pleading argument before proceeding to the merits.

THE LAW

To comply with federal pleading standards, a complaint “must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The

Federal Rules also require plaintiffs to “state [their] claims . . . in numbered paragraphs, each limited

as far as practicable to a single set of circumstances.” FED. R. CIV. P. 10(b). As the Eleventh Circuit

has explained, a complaint is a shotgun pleading if it:

(1) contains multiple counts where each count adopts the allegations of all preceding

counts; (2) is replete with conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action; (3) fails to separate into a different count

each cause of action; or (4) asserts multiple claims against multiple defendants without

specifying which defendant is responsible for which act.

Embree v. Wyndham Worldwide Corp., 779 F. App’x 658, 662 (11th Cir. 2019). All shotgun pleadings share

two characteristics. See Dorman v. Palm Beach Cnty., 2020 WL 2078527, at *1 (S.D. Fla. Apr. 30, 2020)

(Altman, J.). First, they “fail to one degree or another, and in one way or another, to give the defendants

adequate notice of the claims against them and the grounds upon which each claim rests.” Weiland v.

Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015). Second, they “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.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295

(11th Cir. 2018) (cleaned up). Generally, when a district court is faced with a shotgun pleading, “the

court should require the plaintiff to replead his claims.” Gilbert v. Daniels, 642 F. App’x 716, 718 (11th

Cir. 2015) (first citing Byrne, 261 F.3d at 1128–33; then citing FED. R. CIV. P. 12(e)); see also Vibe Mirco,

878 F.3d at 1296 (“When a litigant files a shotgun pleading, is represented by counsel, and fails to

request leave to amend, a district court must sua sponte give him one chance to replead before

dismissing his case with prejudice on non-merits shotgun pleading grounds.”).

ANALYSIS

Vilsack argues that Amaya’s Amended Complaint falls within the third category of shotgun

pleading because it “fails to separate into a different count each cause of action.” Embree, 779 F. App’x

at 662. To avoid this pitfall, a complaint should state “each claim founded on a separate transaction or

occurrence . . . in a separate count,” Gabriel v. Windy Hill Foliage Inc., 2022 WL 2288687, at *2 (11th Cir.

June 24, 2022) (emphasis added) (quoting FED. R. CIV. P. 10(b)), and each count must “state with

specificity both the factual and legal basis for the claim it sets forth,” McKenzie v. E.A.P. Mgmt. Corp, 1998

WL 657524, at *1 (S.D. Fla. July 27, 1998) (Dimitrouleas, J.) (emphasis added). In the context of Title

VII, “each theory of liability” on which the discrimination claim is based constitutes “a separate cause

of action”—and therefore must be pled in a separate count.1 Elliot v. Cleanwrx, Inc., 2019 WL 6769742,

at *1–2 (S.D. Fla. Dec. 12, 2019) (Scola, J.); see also Hernandez v. EEOC, 2021 WL 1062230, at *2 (S.D.

Fla. Mar. 19, 2021) (Moreno, J.) (dismissing complaint as a shotgun pleading because it “fail[ed] to

separate . . . causes of action” for “harassment (sexual and non-sexual) and a hostile work

environment[ ] on the basis of sex, national origin, and disability . . . into different counts” (cleaned

up)).

Amaya labels Count I of her Amended Complaint a Title VII claim for “discrimination based

on sex[.]” Amnd. Compl. at 15 (cleaned up). But, as Vilsack’s Motion to Dismiss correctly points out,

this count sets forth factual allegations supporting multiple theories of liability (and, therefore, multiple

claims), including “hostile work environment and disparate treatment.” MTD at 4. For example, Count

I alleges that the “Defendant’s disparate treatment of Plaintiff was sufficiently severe and pervasive to adversely

1 A plaintiff can proceed with a Title VII claim for employment discrimination under several different

theories, including “(1) pattern and practice; (2) hostile work environment; (3) constructive discharge;

(4) mixed motive; (5) disparate treatment; (6) failure to promote; and (7) retaliation.” Elliot v. Cleanwrx,

Inc., 2019 WL 6769742, at *1–2 (S.D. Fla. Dec. 12, 2019) (Scola, J.) (citing Moody v. InTown Suites, 2006

WL 8431638, at *1 n.2 (N.D. Ga. Feb. 1, 2006)).

alter the terms and conditions of Plaintiff’s employment with Defendant.” Amnd. Compl. ¶ 96 (emphases

added). To state a hostile-work-environment claim, a plaintiff must show that the harassment was

sufficiently “severe or pervasive . . . ‘[to] alter the conditions of the [plaintiff’s] employment.’” Johnson

v. Booker T. Washington Broadcasting Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000) (cleaned up) (quoting

Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81 (1998)). But harassment is irrelevant to a disparate-

treatment claim. Cf. Vellels v. Atlanta Ind. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005) (“In order to

establish a prima facie case [for a disparate-treatment claim] . . . the plaintiff must demonstrate only

that: (i) he or she belonged to a protected class; (ii) he or she was qualified for and applied for a

position that the employer was seeking to fill; (iii) despite qualifications, he or she was rejected; and

(iv) the position was filled with an individual outside the protected class.” (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802, (1973))).

Conversely, Amaya’s allegation that her supervisor was “randomly and unjustifiably issuing

unfair discipline to Ms. Amaya in a disparate fashion, such as issuing a 14-day suspension without pay to

Plaintiff, without good cause,” Amnd. Compl. ¶ 90 (emphasis added), is relevant to her disparate-

treatment claim—but not her hostile-work-environment claim, cf. Williams v. Perry Slingsby Sys. Inc.

Technip Grp., 2008 WL 11333634, at *2 n.1 (S.D. Fla. Oct. 15, 2008) (Hurley, J.) (“[I]n order to establish

a prima facie hostile work environment claim under either Title VII, the aggrieved plaintiff must show

(1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the

harassment complained of was based on his status as a protected class member; and (4) the harassment

affected a term or condition or privilege of his employment.” (first citing Foley v Univ. of Houston Sys.,

355 F.3d 333, 340 n.8 (5th Cir. 2003); and then citing Frank v. Xerox Corp., 347 F.3d 130 (5th Cir.

2003))).

Throughout Count I, in fact, Amaya shifts between different theories of liability—sometimes

even in the same sentence. See, e.g., Amnd. Compl. ¶ 90 (“Plaintiff engaged in protected activity when

she repeatedly complained of Mr. Volpe’s disparate treatment, i.e., engaging in a hostile pattern of

discrimination, harassment, and retaliation against Ms. Amaya[.]”). She cannot do that. See Williams,

2008 WL 11333634, at *2 (“[I]f plaintiff is alleging hostile work environment, disparate treatment,

wrongful termination, or unlawful retaliatory discharge, each of those distinct legal claims or legal

theories requires a separate count[.]”). And, by incorporating the previous eighty-six paragraphs,

Amnd. Compl. ¶ 87 (“Plaintiff incorporates and re-alleges paragraphs 1-86 herein.”)—which similarly

allege different theories of liability, see, e.g., id. ¶ 82 (“Defendant’s unlawful conduct toward Plaintiff

created a discriminatory, hostile and offensive work environment because of Plaintiff’s sex.” (emphasis added));

id. ¶ 26 (“Defendant did not commit this conduct with the male employees as it repeatedly did to female

employee Ms. Amaya.” (emphases added))—Amaya further muddles her pleading. The Defendant is

thus “left to guess” which claim Amaya is actually advancing in Count I, McDonough v. City of Homestead,

2023 WL 3035215, at *2 (11th Cir. Apr. 21, 2023); see also MTD at 6 (“As best as Defendant can

interpret the Amended Complaint, Plaintiff attempts to bring causes of action for substantive hostile

work environment[.]”)—the hallmark of a shotgun pleading, see Weiland, 792 F.3d at 1323 (“The

unifying characteristic of all types of shotgun pleadings is that they fail to one degree or another, and

in one way or another, to give the defendants adequate notice of the claims against them and the

grounds upon which each claim rests.”).

Amaya tries to save her faulty pleading by arguing that Rule 8 only prevents a plaintiff from

including in a single count multiple “claims”—not multiple “theories.” Resp. [ECF No. 22] at 4

(“Defendant’s argument is misleading in that the case law references ‘claims’, while here, Defendant

references ‘theories[.]’”). But, as our cases have made clear, “[e]ach distinct theory . . . is a separate

cause of action that must be asserted independently and with corresponding supporting factual

allegations.” Ortiz v. Carnival Corp., 2020 WL 6945958, at *1 (S.D. Fla. Nov. 25, 2020) (Scola, J.)

(collecting cases). So, Amaya’s semantic distinction makes no legal difference.

Count II—ostensibly for “retaliation for reporting discrimination based on sex,” see Amnd.

Compl. at 19 (cleaned up); see also Resp. at 5 (“[Count II] pleads retaliation concerning the reporting

of sex-based discrimination.”)—fares no better. That’s because Count II advances two distinct claims:

a discrete retaliation claim and a claim based on a “retaliatory hostile work environment.” See Du v.

McDonough, 2023 WL 4456873, at *2 (M.D. Fla. July 11, 2023) (Honeywell, J.) (“A cause of action

based on a retaliatory hostile work environment has been recognized by the Eleventh Circuit.” (citing

Babb v. Sec’y, U.S. Dep’t of Veterans Affs., 992 F.3d 1193, 1206 (11th Cir. 2021))); Perkins v. Lynch, 169 F.

Supp. 3d 1246, 1254 (N.D. Ala. 2016) (“A retaliatory hostile work environment claim is not based on

a single discrete act of retaliation, but instead is composed of a series of separate acts that collectively

constitute one ‘unlawful employment practice.’” (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 117 (2002))).

A plaintiff can advance a discrete retaliation claim when an employer takes any adverse action

against her for engaging in protected conduct. See Morgan, 536 U.S. at 114 (noting that “termination,

failure to promote, denial of transfer, or refusal to hire” are the kinds of adverse actions a plaintiff

may rely on to assert a discrete retaliation claim); see also Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d

1121, 1134 (11th Cir. 2020) (holding that, to establish a prima facie claim of discrete retaliation, the

plaintiff must show “(1) that she engaged in statutorily protected activity, (2) that she suffered an

adverse action, and (3) that the adverse action was causally related to the protected activity.” (cleaned

up)). By contrast, a claim of retaliatory hostile work environment requires the plaintiff to prove that

her employer retaliated against her for engaging in protected conduct by creating a hostile work environment.

See White v. U.S. Pipe, 2022 WL 17364253, at *6 (N.D. Ala. Dec. 1, 2022) (“Retaliatory hostile work

environment claims thus have three elements: (1) the plaintiff engaged in protected activity; (2) a causal

connection existed between the protected activity and complained of conduct; and (3) the conduct

complained of ‘might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.’” (first citing Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008); and then quoting

Tonkyro v. Sec’y, U.S. Dep’t of Veterans Affs., 995 F.3d 828, 836 (11th Cir. 2021))). Because these are

separate claims, in short, they must be pled in separate counts. See Riley v. CSX Transp. Inc., 2023 WL

5302973, at *1 (M.D. Fla. Aug. 17, 2023) (Howard, J.) (“[I]f [a] Plaintiff intends to assert substantive

or retaliatory hostile work environment claims, she must set forth those claims in separate counts and

identify the specific factual allegations on which each claim is based.” (citing Palmer v. Albertson’s LLC,

418 F. App’x 885, 889–90 (11th Cir. 2011))).

Needless to say, Amaya didn’t do that. Instead, Count II alleges both that Amaya’s supervisor

took discrete retaliatory actions against her (a discrete retaliation claim), see e.g., Amnd. Compl. ¶ 109

(“Defendant intentionally, repeatedly, and pervasively engaged in and ratified this unlawful

employment practices which in turn allowed the continued harassment of Plaintiff and prevented her

from transfer to or being hired by any other federal agency interested in hiring Ms. Amaya[.]”), and

that he created a retaliatory hostile work environment, see, e.g., id. ¶ 109 (“Defendant intentionally

created an environment where every did Plaintiff did and everything alleged would be bolstered into

false grounds to discipline her in retaliation.”). Because Count II “contains allegations related to . . . at

least [two] different claims for relief,” Elliot, 2019 WL 676942, at *1, the Amended Complaint is a

shotgun pleading.

In her Response, Amaya tries to clarify that “Count II is distinctly focused on Retaliation . . .

specifically stemming from reporting discrimination based on Sex.” Resp. at 5. Two problems with

this. One, a plaintiff cannot amend her faulty complaint through her response to a motion to dismiss.

See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (“A court’s review on a motion

to dismiss is limited to the four corners of the complaint.”); Clark v. Ocwen Loan Servicing, 2018 WL

1804349, at *3 n.6 (N.D. Ga. Jan. 18, 2018) (“A party cannot amend a complaint by attaching

documents to a response to a motion to dismiss, or by asserting new facts or theories in the

response.”). To, and in any event, this statement only tells us the “protected conduct” on which

Count IT is based. But that “protected conduct” is a necessary element of both claims. See Gogel, 967

F.3d at 1134 (listing elements for discrete retaliation); White, 2022 WL 17364253, at *6 (isting elements

for retaliatory hostile work environment). Despite Amaya’s post hoc explanation, in short, we’re not any

closer to understanding what Count IT 1s actually pleading.

“Experience teaches that, unless cases are pled clearly and precisely, issues are not joined,

discovery is not controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and

society loses confidence in the court’s ability to administer justice.” Anderson v. Dist. Bd. of Tr. of Cent.

Fla. Cmty. Coll, 77 F.3d 364, 366-67 (11th Cir.1996). To avoid those outcomes, we'll give Amaya one

more chance to replead her claims—this time without impermissibly incorporating multiple claims

into each count. But Amaya will be given no more chances. If we dismiss her second amended

complaint, we »7// dismiss it with prejudice.

ok

After careful review, we hereby ORDER and ADJUDGE as follows:

1. The Defendant’s Motion to Dismiss [ECF No. 16] is GRANTED. The Amended Complaint

[ECF No. 8] is DISMISSED without prejudice.

2. Ifthe Plaintiff wants to file a second amended complaint, she must do so by April 9, 2024.

DONE AND ORDERED in the Southern “Ke 26, 2024.

ROYK.ALTMAN ———™

UNITED STATES DISTRICT JUDGE

cc: counsel of record