In Kennedy v. Lloyd J. Austin III, in his official capacity as Secretary of the Department of Defense, 2023 WL 3931961 (S.D.Ga. June 9, 2023), the court dismissed plaintiff’s employment discrimination complaint for failure to state a claim.
This decision is instructive regarding best practices when pleading different theories of recovery (here, disparate treatment and hostile work environment) in an employment discrimination case.
From the decision:
Count I of the Second Amended Complaint commits the sin of not separating into a different count each cause of action or claim for relief because it contains a disparate treatment claim and a hostile work environment claim. As set forth in detail above, disparate treatment and hostile work environment are distinct theories of discrimination and, thus, are analyzed separately, even though they both arise under Section 2000e-2(a)(1). Accordingly, as numerous courts in this Circuit and elsewhere have found, complaints which fail to separate them and combine them into the same count are shotgun pleadings. See, e.g., Desrouleaux v. Quest Diagnostics, Inc., No. 09-61672-CIV, 2010 WL 1571188, at *2 (S.D. Fla. Apr. 20, 2010) (finding that a complaint which referenced both a disparate treatment and hostile work environment claim in one count violated Rule 10(b)’s “one-claim-per-count[ ]rule”); Garvey v. Sec’y, United States Dep’t of Lab., No. 8:22-CV-2309-WFJ-AEP, 2023 WL 3057474, at *3 (M.D. Fla. Apr. 24, 2023) (“[I]f [a] 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.”); Griffin v. Ellingson, No. 2:13-CV-189-WCO-JCF, 2013 WL 12177999, at *2 (N.D. Ga. Dec. 31, 2013) (granting motion for more definite statement where the plaintiff alleged, among other claims, disparate treatment and hostile work environment claims based on his race, because these “are separate and distinct claims with different defenses and burdens of proof, and therefore, should not be alleged in a single count”); Bone v. All. Inv. Co., LLC, No. 5:18-CV-01706-LCB, 2020 WL 5984017, at *9 (N.D. Ala. Oct. 8, 2020) (noting that alleging “both a hostile work environment claim and a disparate treatment claim” in the same count “would constitute impermissible shotgun pleading because two causes of action would be contained in a single count, and hostile work environment and disparate treatment claims have different elements”).
[Cleaned up.]
The Court thus ordered plaintiff to file an amended complaint “which separates her causes of action into different counts and more clearly identifies the legal authority and factual allegations supporting each count.”