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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 20-cv-23161-GAYLES/OTAZO-REYES

ROBIN VELEZ,

Plaintiff,

v.

NEOCIS, INC.,

Defendant.

/

ORDER

THIS CAUSE comes before the Court on Defendant’s Motion to Dismiss Plaintiff’s 

Amended Complaint (the “Motion”) [ECF No. 9]. The Court has reviewed the Motion and the 

record and is otherwise fully advised. For the reasons that follow, the Motion is granted in part and 

denied in part.

BACKGROUND1

In June 2017, Defendant Neocis, Inc. (“Defendant”) hired Plaintiff Robin Velez 

(“Plaintiff”) as a purchasing agent. Plaintiff was Defendant’s only female purchasing agent. In 

February 2019, Jon Anderson (“Anderson”) became Plaintiff’s direct supervisor. Anderson treated 

Plaintiff different than her male colleagues including excluding her from communications, 

ridiculing and ignoring her during meetings, and denying her any help or support. 

On February 22, 2019, Plaintiff complained to Defendant’s human resources director about 

Anderson’s actions. In response, Anderson retaliated against Plaintiff by refusing to give her an 

1 The Court accepts Plaintiff’s allegations, set forth below, as true for purposes of this motion to 

dismiss. Brooks v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). 

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explanation of the expectations for her job and asking her to move desks. In addition, Anderson 

did not allow Plaintiff to work flexible hours or remotely even though she and other employees 

were permitted to work remotely when she first began working for Defendant. 

Plaintiff alleges that she developed anxiety because of her disparate treatment at work. On 

June 18, 2019, Plaintiff provided Defendant with documentation of her anxiety and requested time 

off as an accommodation. Defendant denied Plaintiff her requested accommodation.

On July 7, 2019, Plaintiff emailed Alon Mozes (“Mozes”) in Defendant’s human resources 

department regarding her claims of disparate treatment and harassment. On July 9, 2019, Mozes 

advised Plaintiff that she needed to return to work by July 12, 2019. On July 10, 2019, Plaintiff

resigned.

On August 2, 2019, Plaintiff filed a charge of discrimination (“Charge”) with the Equal 

Employment Opportunity Commission (“EEOC”). [ECF No. 9-1]. In her Charge, Plaintiff 

specifically alleged that she was “mistreated and harassed because [she was] female.” Id. Plaintiff 

checked only the boxes for sex and retaliation as the causes of her discrimination and did not 

reference any disabilities. Id.

In her Amended Complaint, Plaintiff alleges claims for (1) discrimination based on sex, in 

violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Florida Civil Rights Act 

(“FCRA”) (Counts I and VI); (2) retaliation, in violation of Title VII and the FCRA (Counts II and 

VII); failure to accommodate her disability of anxiety, in violation of the Americans with 

Disabilities Act (“ADA”) and the Americans with Disabilities Act as Amended (“ADAAA”)

(Count III); retaliation, in violation of the ADA and ADAAA (Count IV); and handicap/disability 

discrimination under the FRCA (Count V). Defendant now moves to dismiss, arguing the 

Amended Complaint is a shotgun pleading because each count incorporates the same factual 

allegations. In addition, Defendant argues that Plaintiff is barred from asserting claims based on 

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disability (Counts III, IV, and V) (the “Disability Claims”) because she failed to exhaust her 

administrative remedies for those claims prior to filing this action. 

LEGAL STANDARD

To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6),

a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face,’” meaning that it must contain “factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While 

a court must accept well-pleaded factual allegations as true, “conclusory allegations . . . are not 

entitled to an assumption of truth—legal conclusions must be supported by factual allegations.” 

Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “[T]he pleadings are construed broadly,”

Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the 

allegations in the complaint are viewed in the light most favorable to the plaintiff, Bishop v. Ross 

Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). 

DISCUSSION

I. The Amended Complaint Is Not a Shotgun Pleading.

The Eleventh Circuit generally considers a complaint to be a shotgun pleading if it: (1) 

“contain[s] 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,” Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313, 1321

(11th Cir. 2015); (2) is “replete with conclusory, vague, and immaterial facts not obviously 

connected to any particular cause of action,” id. at 1322; (3) fails to “separate[ ] into a different 

count each cause of action or claim for relief,” id. at 1322–23; or (4) “assert[s] multiple claims 

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against multiple defendants without specifying which of the defendants are responsible for which 

acts or omissions, or which of the defendants the claim is brought against,” id. at 1323.

The Court finds that the Amended Complaint is not a shotgun pleading. Under each count, 

the Amended Complaint incorporates by reference paragraphs 1–40, which detail the facts 

supporting Plaintiff’s claims against the Defendants. These paragraphs are key to each count of

discrimination and retaliation, and any allegations that are relevant only to the specific count are 

subsequently detailed in each individual count. This is not a situation where the complaint is 

difficult to understand because each count adopts the allegations of all preceding counts or where 

a plaintiff fails to separate different counts into separate claims for relief. Therefore, to the extent 

it argues that the Amended Complaint is a shotgun pleading, the Motion shall be denied.

II. Plaintiff Failed to Exhaust Administrative Remedies on the Disability Claims.

Prior to filing a civil action under the ADA, a plaintiff first must exhaust her administrative 

remedies by filing a charge of discrimination with the EEOC. Batson v. Salvation Army, 897 F.3d 

1320, 1327 (11th Cir. 2018). A plaintiff’s post-charge employment discrimination complaint “is 

limited by the scope of the EEOC investigation which can reasonably be expected to grow out of 

the charge of discrimination.” Gregory v. Ga. Dep't. of Human Res., 355 F.3d 1277, 1279 (11th 

Cir. 2004) (internal quotation and citation omitted). The scope of a charge of discrimination 

“should not be strictly interpreted” and claims that “amplify, clarify, or more clearly focus” the 

allegations in a charge of discrimination are considered exhausted even if not explicitly stated. Id.

at 1279-80. However, allegations of “new acts of discrimination are inappropriate” for a postcharge judicial complaint. Id.

Defendant moves to dismiss the Disability Claims because Plaintiff failed to include any 

allegations concerning a disability in her Charge. The Court agrees. While the Amended Complaint 

alleges that Defendant failed to accommodate her and retaliated against her due to her anxiety, 

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these allegations are not contained in her Charge. Plaintiff did not check the box for disability on 

the Charge and she does not state that she has been diagnosed with anxiety. Indeed, Plaintiff’s only 

reference to her health is that her purported disparate treatment based on her sex affected her health 

and that she began missing work to see her doctor. These allegations, without more, do not allege 

discrimination based on a disability. Moreover, the Disability Claims cannot be said to amplify or

more clearly focus the allegations in her Charge as her Charge is wholly silent as to any

discrimination based on a disability. See Ramon v. AT & T Broadband, 195 F. App’x 860, 866 

(11th Cir. 2006) (holding that plaintiff failed to exhaust administrative remedies on her hostile 

work environment claim where her EEOC charge did not mention a hostile work environment 

claim and contained no allegations of severe and pervasive harassment); Booth v. City of Roswell, 

754 F. App’x 834, 837 (11th Cir. 2018) (holding that plaintiff failed to exhaust administrative 

remedies on his failure-to-accommodate claims where his charge of discrimination “did not relay 

what his disability was [or] mention an accommodation request.”). Therefore, Counts III, IV, and 

V shall be dismissed without prejudice for failure to exhaust administrative remedies.

CONCLUSION

Based on the foregoing, it is ORDERED AND ADJUDGED that:

1. Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint [ECF No. 9] is 

GRANTED IN PART and DENIED IN PART;

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2. Counts III, IV, and V are DISMISSED WITHOUT PREJUDICE; and

3. Defendant shall answer the remaining counts in the Complaint within fourteen (14) 

days of the entry of this Order.

DONE AND ORDERED in Chambers at Miami, Florida, this 18th day of May, 2021.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

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