Moore v. University of Miami Hospital

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-22878-CIV-ALTONAGA/Reid

TONYA MOORE,

Plaintiff,

v.

UNIVERSITY OF MIAMI,

Defendant.

__________________________/

ORDER

THIS CAUSE came before the Court on Defendant, University of Miami’s Motion to

Dismiss Plaintiff’s Second Amended Complaint (“SAC”) [ECF No. 17]. Pro se Plaintiff, Tonya

Moore filed a Response [ECF No. 24], to which Defendant filed a Reply [ECF No. 25]. The Court

has carefully considered the parties’ written submissions, the record, and applicable law. For the

following reasons, the Motion is granted in part and denied in part.

I. BACKGROUND

This action arises from Defendant’s termination of Plaintiff’s 16-year employment as a

registered nurse and respiratory therapist. (See SAC [ECF No. 12] ¶¶ 29, 52, 91, 93).1 In 2024,

Defendant fired Plaintiff — an African American woman — and two other African American

nurses for failing to identify a dime-sized injury on a patient during a routine skin check. (See id.

¶¶ 28, 31–36, 90, 94–98). Plaintiff states that Defendant’s reasoning for terminating her

employment was pretextual, and nurses outside of protected classes failed to identify injuries on

other patients without facing discipline. (See id. ¶¶ 37–39, 43, 45, 99–101, 105, 107). Instead,

1 The Second Amended Complaint improperly numbers 12 paragraphs in Counts III and VII. (See SAC 6–

7, 11–12). When referencing and citing these individual paragraphs, labeled out of numerical order, the

Court does so by using both the page and incorrect paragraph number. (See, e.g., id. ¶ 6:59).

she asserts that Defendant fired her because of her race, national origin, and in retaliation for

reports she made to management and human resources. (See id. ¶¶ 43–45, 52–56, 88, 105–06,

116–18, 146).

For example, Plaintiff faced ridicule from her coworkers and termination after she filed

complaints that the Hospital failed to properly treat a patient with high potassium, leading to the

patient’s death. (See id. ¶¶ 47–48, 52–54, 6:59, 65–73, 109–10, 11:59, 127–30). She faced similar

ire after she complained to management and human resources that the Hospital would frequently

see patients without proper medical documentation. (See id. ¶¶ 49–50, 64, 110–13, 126–35).

Additionally, upper management would purposefully exclude her by conducting meetings in

Spanish, knowing she did not speak the language. (See id. ¶¶ 78–81).

These incidents led Plaintiff to dual-file two Charges of Discrimination against Defendant

with the Equal Employment Opportunity Commission (“EEOC”) and the Florida Commission on

Human Relations (“FCHR”). (See id. ¶¶ 40, 87, 102, 145; see also Mot. 5–6; Mot., Ex. 2, Charge

of Discrimination 1 [ECF No.17-1] 78–80; Mot., Ex. 4, Charge of Discrimination 2 [ECF No. 17-

1] 87–88).2 Then, on July 29, 2024, Plaintiff filed an initial Complaint [ECF No. 1] against

Defendant, which the Court dismissed as a shotgun pleading with leave to amend. (See July 31,

2024 Order [ECF No. 5]). Plaintiff filed a First Amended Complaint [ECF No. 7], and three weeks

later filed the present Second Amended Complaint without seeking leave of court to do so.

Plaintiff brings eight claims against Defendant under the Florida Civil Rights Act of 1992,

Section 760.01 et seq., Florida Statutes (“FCRA”) and Title VII of the Civil Rights Act of 1964,

2 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers

of all court filings.

42 U.S.C. section 2000e et seq. (“Title VII”). 3 (See generally SAC). She states that Defendant

wrongfully discriminated against her based on her race and national origin, as loosely referenced

in her First Charge. (See id. ¶¶ 28–45, 77–107, 139–47 (Counts I, IV, V, and VIII); Charge of

Discrimination 1, 78–80). Plaintiff also asserts she was subjected to retaliation and a hostile work

environment following her reports regarding the Hospital’s mismanagement and failure to provide

proper care, as loosely referenced in her Second Charge. (See SAC ¶¶ 46–76, 108–38 (Counts II,

III, VI, and VII); Charge of Discrimination 2, 87–88).

Defendant moves to dismiss all of Plaintiff’s claims. (See generally Mot.). Defendant

requests that the Court dismiss the Second Amended Complaint, arguing that, like the original

Complaint, it constitutes a shotgun pleading and should be dismissed under Federal Rule of Civil

Procedure 41(b) because Plaintiff violated the July 31, 2024 Order. (See id. 12–14, 20; see also

July 31, 2024 Order). Defendant asserts Plaintiff did not exhaust her administrative remedies or

follow her collective bargaining agreement’s (“CBA[’s]”) grievance procedures,4 requiring

dismissal under Federal Rule of Civil Procedure 12(b)(1). (See Mot. 7–12). Finally, Defendant

contends that Plaintiff fails to state any plausible claim for relief, relying on Federal Rule of Civil

Procedure 12(b)(6). (See Mot. 14–20).

3 Plaintiff duplicates her retaliation and hostile work environment claims. (See SAC ¶¶ 46–76, 108–38).

Counts II and VI (retaliation) are identical to each other, as are Counts III and VII (hostile work

environment), and all are brought under Title VII. (See id. ¶¶ 46–76. 108–38). The Court, like Defendant,

construes Counts VI and VII as brought under the FCRA. (See Mot. 2).

4 In support of its argument that Plaintiff failed to exhaust her union remedies, Defendant submits a

Collective Bargaining Agreement (“CBA”) that it contends governed Plaintiff’s employment, along with a

declaration from one of its employees explaining Plaintiff’s purported failure to follow the prescribed

grievance process. (See Mot., Ex. 1, CBA [ECF No. 1-1] 7–76; Mot., Ex. A, Pacheco Decl. [ECF No. 1-1]

1–5).

II. LEGAL STANDARDS

Rule 41(b). A district court is authorized, on a defendant’s motion, to dismiss an action

for failure to obey a court order. See Fed. R. Civ. P. 41(b). The court’s power to dismiss is an

inherent aspect of its authority to enforce its orders and ensure the prompt disposition of lawsuits.

See Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (citations omitted); Jones v. Graham,

709 F.2d 1457, 1458 (11th Cir. 1983) (citations omitted). Dismissal under Rule 41(b) is only

appropriate where a party engages in a clear pattern of delay or willful contempt and the court

finds that lesser sanctions will not suffice. See Collins v. Lake Helen, L.P., 249 F. App’x 116, 120

(11th Cir. 2007) (citations omitted).

Rule 12(b)(1). “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It is presumed that a federal court lacks jurisdiction

in a case until the party asserting a claim demonstrates the court has jurisdiction over the subject

matter. See id. (citations omitted). “If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

Attacks on subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) may

be either facial or factual. See Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990)

(citations omitted). Where a party raises a factual attack, as Defendant does here (see Mot. 3 n.2,

3–5, 7–9), it “challenges the existence of subject matter jurisdiction in fact, irrespective of the

pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.”

Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980) (citation omitted). The

party asserting a claim bears the burden of proving that jurisdiction exists. See id.

Rule 12(b)(6). “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration added; quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard “does not require ‘detailed

factual allegations,’ . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Id. (alteration added; quoting Twombly, 550 U.S. at 555). Pleadings must contain

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Twombly, 550 U.S. at 555 (citation omitted). “[O]nly a complaint that states a

plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (alteration added;

citing Twombly, 550 U.S. at 556).

To meet this “plausibility standard,” a plaintiff must “plead[] factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. at 678 (alteration added; citing Twombly, 550 U.S. at 556). When considering a motion to

dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take

the factual allegations as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364,

1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc., 835 F.2d 270, 272 (11th Cir. 1988)).

III. DISCUSSION

A. Shotgun Pleading

Defendant argues the Court should dismiss the Second Amended Complaint because

Plaintiff violated the Court’s instructions and once more filed a shotgun pleading. (See Mot. 20).

As previously explained (see July 31, 2024 Order), “[c]omplaints that violate either Rule 8(a)(2)

or Rule 10(b), or both, are often disparagingly referred to as ‘shotgun pleadings.’” Weiland v.

Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015) (alteration added). A

complaint should put a defendant on notice as to the claims against it and how each claim is

connected to the complaint’s factual allegations. See Embree v. Wyndham Worldwide Corp., 779

F. App’x 658, 663–64 (11th Cir. 2019).

The Court disagrees that the Second Amended Complaint suffers from the same deficiency

as Plaintiff’s Complaint; unlike the earlier pleading, the Second Amended Complaint incorporates

specific factual allegations to support its claims. (See Mot. 12–13, 20; see generally SAC). In this

instance, Plaintiff reasserts multiple facts within the Counts themselves to support each claim.

(Compare SAC with Compl.). Although the pleading is not a model of clarity, the Second

Amended Complaint does not fit into any of the four types of shotgun pleadings the Eleventh

Circuit has identified, contrary to Defendant’s position. See Weiland, 792 F.3d at 1321–23; (see

also Resp. 7). And while Plaintiff does not “incorporate by reference” paragraphs from her factual

allegations into the Counts, as is customary, she reiterates and rephrases many of those allegations

within each of the Counts. (See, e.g., SAC ¶¶ 18, 32–36 (providing more factual detail regarding

patient who Plaintiff conducted a skin exam for)).

As such, the Second Amended Complaint does not make it “virtually impossible to know

which allegations of fact are intended to support which claim(s) for relief[,]” and Defendant

demonstrates its understanding of the relevant facts connected to each claim throughout its Motion.

Anderson v. Dist. Bd. of Trs., 77 F.3d 364, 366 (11th Cir. 1996) (citation omitted; alteration added);

see also Charles v. GEO Grp. Inc., No. 22-13891, 2024 WL 1619911, at *3 (11th Cir. Apr. 15,

2024) (finding the district court erred in dismissing a complaint that, despite pleading deficiencies,

still provided adequate notice of claims against defendants); Pouyeh v. Pub. Health Tr. of Jackson

Health Sys., 832 F. App’x 616, 622–23 (11th Cir. 2020) (refusing to label a complaint a “shotgun

pleading” for similar reasons); (see generally Mot.). As Plaintiff has not violated a prior Order

(see July 31, 2024 Order; SAC), the Court will not dismiss the Second Amended Complaint on

this basis.

B. Exhaustion of Remedies

CBA Exhaustion. Defendant further argues that Plaintiff’s claims should be dismissed for

lack of subject matter jurisdiction because she failed to properly exhaust her union grievances by

filing a formal, written complaint with Defendant or demanding arbitration. (See Mot. 3 n.2, 3–5,

7–9). Exhaustion of administrative remedies such as union grievances is generally considered a

condition precedent to filing claims — not a jurisdictional bar — and a plaintiff’s failure to fulfill

a condition precedent is an affirmative defense.5 See Liu v. Univ. of Miami, 138 F. Supp. 3d 1360,

1369 (S.D. Fla. 2015) (“As a condition precedent to filing suit, a plaintiff must first exhaust her

administrative remedies[.]” (alteration added; citation omitted)); see also Whatley v. Smith, 898

F.3d 1072, 1082 (11th Cir. 2018) (“Failure to exhaust administrative remedies is an affirmative

defense.”). Indeed, “[t]he failure to exhaust the union grievance procedure is an affirmative

defense, not a jurisdictional bar.” Alyse v. Sprosty, No. 06-21075-Civ, 2007 WL 4557163, at *2

(S.D. Fla. Dec. 20, 2007) (alteration added; citation omitted); see also Sanchez-Knutson v. Ford

Motor Co., 52 F. Supp. 3d 1223, 1235–36 (S.D. Fla. 2014) (collecting cases).

Treating the issue as brought under Rule 12(b)(6), a motion to dismiss may be granted on

an affirmative defense, but this is only appropriate when the defense is “clearly indicated and []

appear[s] on the face of the pleading[.]” Wells v. Brown, 58 F.4th 1347, 1356 (11th Cir. 2023)

5 Notably, the case Defendant cites to support its argument that the case should be dismissed for lack of

subject matter jurisdiction does not reference union grievances. See Mot. 3 n.2 (citing Swauger v. Dep’t of

Def. - Def. Intel. Agency, 852 F. App’x 393, 396 (11th Cir. 2021) (citing Crawford v. Babbitt, 186 F.3d

1322, 1326 (11th Cir. 1999); additional citation omitted)). Defendant’s characterization of the case law

also ignores relevant Eleventh Circuit precedent. See Hogan v. Sec’y, U.S. Dep’t of Veterans Affs., 121

F.4th 172, 174 (11th Cir. 2024) (“[T]o the extent that Crawford indicates that a failure to timely exhaust

administrative remedies is jurisdictional, it is inconsistent with [recent Supreme Court precedent.]”

(alterations added; citation omitted)).

(alterations added; quotation marks and citation omitted). While Plaintiff acknowledges her status

as a union member (see SAC ¶ 61), she makes no reference to the grievance procedures Defendant

describes (see generally id.; Mot., Ex. 1, CBA). The defense is neither “clearly indicated” nor

does it “appear on the face of the pleading,” and as such, the Court will not dismiss the Second

Amended Complaint on the basis that Plaintiff failed to exhaust her union remedies. Wells, 58

F.4th at 1356 (alterations added; quotation marks and citation omitted).

Finally, Defendant asks the Court to trust its declaration, ignoring the parties’ debate

regarding whether Plaintiff attempted to exhaust her union remedies. (See Mot. 3–5, 7–9; Mot.,

Ex. A, Pacheco Decl.; see also Resp. 2–6). For her part, Plaintiff attaches a three-page long log

of the instances where she attempted to contact Defendant’s agents or her own union, claiming

“she tried to follow the rules by filing a grievance with the union but [] was ignored by all parties

involved.” (Resp. 3 (alteration added); see also id. 3–4 (“Plaintiff attempted to go through the

collective bargaining agreement on numerous occasions but was totally ignored.”); id. 4–6)).

While litigants are required to exhaust their administrative remedies prior to bringing suit, the

Court will not attempt to weed through the facts to discern the truth regarding this contested issue

on this record.

EEOC and FCHR Exhaustion. Defendant next argues that Plaintiff failed to exhaust her

administrative remedies regarding the Second Charge she filed with the EEOC and FCHR.6 (See

6 Defendant briefly argues that Plaintiff failed to mention in her First Charge to the EEOC and FCHR that

she was fired, potentially suggesting that this omission indicates she did not exhaust her remedies as to her

First Charge, as well. (See Mot. 11–12). Yet, “[a] plaintiff’s judicial complaint is limited by the scope of

the EEOC investigation which can reasonably be expected to grow out of that charge of discrimination.”

Gregory v. Ga. Dep’t. of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (alteration added; quotation

marks and citations omitted). A reasonable investigation into the incident Plaintiff alleges in her First

Charge would have led Defendant to realize that the conduct she details is the exact conduct for which she

was terminated. (See Mot. 4 (citation omitted)); see also Burgos-Stefanelli v. Napolitano, No. 9-60118-

Civ, 2010 WL 785802, at *8–9 (S.D. Fla. Mar. 5, 2010) (finding similarly). As such, to the extent

Defendant makes this argument, it fails to persuade.

Mot. 9–12). The Second Charge involves claims that the Court will be dismissing under Rule

12(b)(6), as described below — the retaliation and hostile work environment claims in Counts II,

III, VI, and VII. Consequently, the Court does not give this argument additional consideration.

C. Failure to State Claims

Defendant requests dismissal of all Counts for failure to state claims under Rule 12(b)(6).

The Court addresses each grouping of claims, pairing each Title VII and FCRA claim brought

under the same topic.7 Upon review, the Court finds dismissal of Plaintiff’s retaliation (Counts II

and VI) and hostile work environment claims (Counts III and VII) warranted, as they fail to state

claims upon which relief can be granted.

Race Discrimination (Counts I and V). In Counts I and V, Plaintiff alleges Defendant

terminated her employment because of her race, in violation of Title VII and the FCRA,

respectively. (See SAC ¶¶ 28–45, 90–107). Defendant argues Plaintiff fails to state a race

discrimination claim because she does not allege the existence of a similarly situated comparator

employee outside her protected class. (See Mot. 15–17 (collecting cases relying on McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973) (requiring identification of a similarly

situated comparator outside the class as an element of its burden-shifting framework))).

Defendant well knows that plaintiffs are not required to plead a prima facie case under the

McDonnell Douglas framework to state a claim for relief. See Davis v. Miami-Dade Cnty., No.

23-12480, 2024 WL 4051215, at *3 (11th Cir. Sept. 5, 2024) (“We’ve often emphasized that the

analysis established in McDonnell Douglas is ‘an evidentiary tool,’ not an independent standard

of liability, and certainly not a pleading standard.” (citations omitted)). Certainly, a “plaintiff’s

7 Discrimination claims under the FCRA are governed by the same standards as Title VII claims and,

therefore, do not require separate analysis. See Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1271 (11th

Cir. 2010) (citations omitted).

failure to produce a comparator does not necessarily doom the plaintiff’s case, even at later stages

of the litigation.” Horace v. ARIA, No. 23-12414, 2024 WL 1174398, at *6 (11th Cir. Mar. 19,

2024) (quotation marks omitted, quoting Tynes v. Fla. Dep’t of Juv. Justice, 88 F.4th 939, 946–47

(11th Cir. 2023)).

“To state a race-discrimination claim under Title VII, a complaint need only provide

enough factual matter (taken as true) to suggest intentional race discrimination.” Surtain v. Hamlin

Terrace Found., 789 F.3d 1239, 1246 (11th Cir. 2015) (quotation marks and citation omitted).

Plaintiff alleges Defendant fired her and two other African American employees because of their

race under the pretext that they failed to identify a dime-sized injury on a patient. (See SAC ¶¶

28–45, 54, 90–107). Meanwhile, multiple nurses outside their protected class failed to identify

injuries on patients but did not receive any disciplinary action. (See id. ¶¶ 38–39, 100–01). Such

allegations are sufficient to support a race discrimination claim.

National Origin (Counts IV and VIII). In Counts IV (Title VII) and VIII (FCRA),

Plaintiff alleges she experienced discrimination based on her national origin. (See id. ¶¶ 77–89,

139–47). Defendant first argues that Plaintiff’s national origin discrimination claims should be

dismissed because she does not identify a similarly situated comparator employee outside her

protected class. (See Mot. 15–16). This argument fails for reasons already stated. Additionally,

Defendant argues that Plaintiff’s national origin discrimination claims should be dismissed

because she fails to state what her national origin is. (See id. 17).

“National origin” refers to the country where a person was born or from which their

ancestors came. See Jiann Min Chang v. Ala. Agric. & Mech. Univ., 355 F. App’x 250, 251–52

(11th Cir. 2009) (citation omitted). Construing the Second Amended Complaint in the light most

favorable to Plaintiff, she states she is “of African American [descent]” (SAC ¶¶ 77, 139 (alteration

added)), while most of the employees “were not of African American descent” (id. ¶ 79). Other

courts in this Circuit have found similar language sufficient on a motion to dismiss. See, e.g.,

Henry v. Univ. of S. Fla. Bd. of Trs., No. 09-cv-11, 2009 WL 4855518, at *4–5 (M.D. Fla. Dec.

10, 2009) (quoting Bullard v. OMI Ga., Inc., 640 F.2d 632, 634 (5th Cir. 1982) (“‘The line between

national origin discrimination and racial discrimination is an extremely difficult one to trace.’”)).

Additionally, in her First Charge to the EEOC and FCHR, Plaintiff states “I was subjected to

discriminatory practices because of my race and national origin (Black/African American).”

(Charge of Discrimination 1, 78). As such, the Court will not dismiss Plaintiff’s national origin

claims on this ground.

Retaliation (Counts II and VI). In Counts II (Title VII) and VI (FCRA), Plaintiff alleges

she experienced retaliation when Defendant terminated her employment after she reported that an

African American patient died due to inadequate medical care and the emergency room staff sent

patients to her floor without proper medical documentation. (See SAC ¶¶ 47–53, 109–15).

According to Defendant, Plaintiff fails to state a plausible retaliation claim, as her reports do not

constitute protected activity under Title VII. (See Mot. 17–19). Defendant is correct.

To state a claim for retaliation under Title VII, a plaintiff must allege that (1) she engaged

in statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is

some causal relation between the two events. See McMillian v. Postmaster Gen., U.S. Postal Serv.,

634 F. App’x 274, 277 (11th Cir. 2015) (citation omitted). A “[p]rotected activity includes

opposition to ‘any practice made an unlawful employment practice’ under Title VII[,]” which

prohibits employers from discriminating against their employees. Edwards v. Ambient Healthcare

of Ga., Inc., 674 F. App’x 926, 930 (11th Cir. 2017) (alterations added; quoting 42 U.S.C. § 2000e–

3(a)). Reporting alleged discrimination or wrongful treatment toward customers — or in this case,

patients — does not qualify as protected activity under Title VII. See id. (noting plaintiff’s report

that defendant’s employee discriminated against non-employee third parties was not protected

activity (citations omitted)); see also Stimson v. Stryker Sales Corp., 835 F. App’x 993, 996 (11th

Cir. 2020) (citations omitted); cf. Chandler v. Volunteers of Am., N. Ala., Inc., No. 10-cv-2961,

2013 WL 832133, at *13 (N.D. Ala. Feb. 28, 2013) (“[The] [p]laintiff’s report of [an employee]

for abusing a client has nothing to do with Title VII.”) (alterations added)).

Plaintiff asserts she was fired for making reports regarding the treatment of an African

American patient and the lack of proper medical documentation by emergency room staff. (See

SAC ¶¶ 47–53, 108–15). Neither of these actions is an employment activity involving employees

protected by Title VII and, as a result, Plaintiff fails to state retaliation claims in Counts II and VI.

See, e.g., Edwards, 674 F. App’x at 930.

Hostile Work Environment (Counts III and VII). Plaintiff also brings two hostile work

environment claims, in violation of Title VII in Count III, and the FCRA in Count VII. (See SAC

¶¶ 60–76, 122–38). Plaintiff claims she faced harassment from upper management because she

filed grievances regarding hospital misconduct. (See id. ¶¶ 62–73, 124–135). Defendant contends

that Plaintiff’s hostile work environment claims should be dismissed because her conclusory facts

do not sufficiently match the severity required for such claims. (See Mot. 19).

To state a claim for workplace harassment under Title VII, a plaintiff must include facts

showing that the harassment was severe and pervasive enough to alter the conditions of her

employment and create an abusive working environment. See Nurse v. City of Alpharetta, 775 F.

App’x 603, 607 (11th Cir. 2019) (citations omitted). In determining severity of the harassment,

courts may consider “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether

the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether

the conduct unreasonably interferes with the employee’s job performance.” Loza v. Kimpton Hotel

& Rest. Grp., LLC, No. 20-cv-21114, 2020 WL 13389302, at *5 (S.D. Fla. June 17, 2020)

(quotation marks and citation omitted).

Plaintiff characterizes the alleged harassment she endured as “unwelcomed” and further

states she experienced “scorn and ridicule[;]” she also felt “humiliated and embarrassed” when

upper management claimed she made her floor look bad by filing complaints, putting her in fear

of losing her license. (SAC ¶¶ 6:59, 64, 66–67 (alteration added), 11:59, 126, 128–129). Plaintiff,

in conclusory fashion, outlines the factors a court may consider in assessing severity but fails to

provide adequate factual support. (See, e.g., id. ¶ 134 (“The hostile work environment, and

harassment was so severe and so pervasive that it altered the terms or conditions[] of the

employee’s employment.” (alteration added))).

These vague facts and restatements of the elements fail to demonstrate that the work

environment was sufficiently hostile. Courts have dismissed similar hostile work environment

claims that merely recount scoldings from employers and restate elements of the claim. See, e.g.,

Loza, 2020 WL 13389302, at *6 (citations omitted). As such, Plaintiff’s hostile work environment

claims are dismissed.8

8 Although Defendant does not raise this argument, Plaintiff’s hostile work environment claim is deficient

for the additional reason that she fails to allege the harassment was based on her race or national origin.

(See SAC ¶¶ 66, 128 (alleging Plaintiff was “ridiculed . . . [for filing] grievances against Managers and the

Director for improper conduct” (alterations added))); see also City of Alpharetta, 775 F. App’x at 607

(stating that a hostile work environment claim requires a plaintiff allege that “the harassment was based on

his membership in the protected group” (quotation marks and citation omitted)).

CASE NO. 24-22878-CIV-ALTONAGA/Reid

IV. CONCLUSION

For the foregoing reasons, it is

ORDERED AND ADJUDGED that Defendant, University of Miami’s Motion to Dismiss

Plaintiff's Second Amended Complaint [ECF No. 17] is GRANTED in part and DENIED in

part. Counts II, WI, VI, and VII of the Second Amended Complaint [ECF No. 12] are

DISMISSED. The January 23, 2025 Order [ECF No. 27] staying discovery is SET ASIDE. The

Court will issue a scheduling order separately.

DONE AND ORDERED in Miami, Florida, this 21st day of March, 2025.

lo ules UW. LG

CECILIA M. ALTONAGA

CHIEF UNITED STATES DISTRICT JUDGE

ce: counsel of record

Plaintiff, pro se

14