Gomez v. Conviva Physician Group, LLC

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-14359-CIV-LEIBOWITZ/MAYNARD
JAIME R. GOMEZ, M.D.,
Plaintiff,
v.
CONVIVA PHYSICIAN GROUP, LLC,
A Florida Limited Liability Company,
Defendant.
__________________________________/
REPORT AND RECOMMENDATION
Plaintiff Jaime R. Gomez, M.D. (“Dr. Gomez”) brings this four-count lawsuit against
Conviva Physician Group, LLC (“Conviva”) for alleged violations of the Age Discrimination and
Employment Act of 1967 (“ADEA”), the American with Disabilities Act (“ADA”), and the Florida
Civil Rights Act of 1992 (“FCRA”). DE 9.
Conviva filed a Motion to Strike Immaterial and Impertinent Allegations and to Dismiss
Amended Complaint (“Motion”), DE 13. 	Dr. Gomez has responded in opposition, DE 21, and
Conviva has replied, DE 26. Presiding U.S. District Judge David S. Leibowitz has referred the
Motion to me for a report and recommendation. 	DE 28. 	For the reasons stated below, I
recommend that the Motion be GRANTED IN PART AND DENIED IN PART and that the
amended complaint be dismissed in its entirety but with leave to file a second amended complaint.
BACKGROUND
At this motion-to-dismiss stage, as I must, I accept the below factual allegations from the
amended complaint as true and construe them in the light most favorable to Dr. Gomez.
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Dr. Gomez is a 65-year-old man who has historically suffered from chronic migraine
headaches, chronic low blood pressure, and low vision caused by progressive corneal disease. DE
9 at ¶ 10. Dr. Gomez has had corneal disease since he was a teenager. Id. at ¶ 28. The condition
significantly impairs his vision and makes it difficult for him to navigate technological devices
and programs without certain accommodations. 	Id. 	For example, when Dr. Gomez took his
medical certification exams, the Board of Internal Medicine granted his request for reasonable
accommodations by allowing him to use a screen magnifier and providing him with large-print
exam documents. Id. at ¶¶ 28, 30.
Prior to March 2019, Dr. Gomez was employed by MCCI Group Holdings, LLC
(“MCCI”) for nearly a decade. Id. at ¶ 18. In March 2019, Conviva acquired MCCI. Id. On or
around March 5, 2019, Conviva terminated Dr. Gomez’s employment without cause. 	¶20. 	Dr.
Gomez was 60 years old at the time. Id. From 2019 to 2022, Conviva continued to terminate the
oldest employees at the company without cause. Id. at ¶ 25. The amended complaint lists seven
employees (including four doctors) ranging in age from 57 to 65 whose employment Conviva
terminated during those four years. Id.
In June 2019, Dr Gomez began working for Primary Care Associates (“PCA”) located in
Stuart, Florida. Id. at ¶ 23. In January 2022, Conviva acquired PCA and required Dr. Gomez to
sign a new employment contract containing a more restrictive non-compete clause. 	Id. at ¶ 26.
Dr. Gomez entered that new employment agreement with Conviva on January 20, 2022. Id. at ¶
27.
In July 2022, Dr. Gomez had surgery on both of his eyes due to his progressive corneal
disease. Id. at ¶ 28. During his employment, he often brought to Conviva’s attention that he had
a disease which caused him to have issues with accessing their devices and navigating their
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programs. Id. at ¶ 31. Conviva replied by redirecting him to its offsite IT department for further
assistance, which meant Dr. Gomez had to wait until the IT department was able to assist him,
causing delays and frustration with patient management and the proper documentation of patient
care. 	Id. at ¶¶ 32-33. 	Due to these delays, Dr. Gomez requested large monitors as an
accommodation because he could not access Conviva’s technology with the monitors available to
him. Id. at ¶ 34.
In January 2024, Dr. Gomez fractured his left ring finger. He was in a splint for six weeks
and had to attend medical appointments and obtain x-rays. 	Id. at ¶ 35. 	During that six-week
period, his ability to perform manual tasks requiring him to use his hand was temporarily impaired.
Id. at ¶ 36.
On March 18, 2024, Conviva sent Dr. Gomez a letter indicating that he was being
terminated without cause effective on June 14, 2024. Id. at ¶ 38. When Dr. Gomez called in sick
for a migraine, Conviva’s Medical Director told Dr. Gomez that he believed Dr. Gomez “was
endangering the patients” because he needed time off for his disability. Id. at ¶ 39. Dr. Gomez
was terminated despite being recognized as one of the top performers in the office, and despite
having nearly four decades of experience working as a physician with a record free from
disciplinary actions, accusations, and writeups for the entire time he practiced medicine. Id. at ¶¶
37-40. When Dr. Gomez was terminated the was the oldest physician employed in the office. Id.
at ¶ 38. Conviva retained two younger doctors and replaced Dr. Gomez with a younger physician’s
assistant. Id. at ¶ 41.
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DISCUSSION
Conviva raises four arguments. First, Conviva moves to dismiss all counts in the amended
complaint for failing to allege facts plausibly stating a claim for discrimination based on age or
disability. 	Second, Conviva moves to dismiss any claims based on Dr. Gomez’s March 2019
termination as time barred. Third, Conviva moves to strike allegations relating to (1) Dr. Gomez’s
March 2019 termination, (2) the terms of the noncompete clause in his 2022 employment
agreement, and (3) claims for punitive damages. Lastly, Conviva moves to dismiss the amended
complaint as a shotgun pleading. Upon review, I find that every count in the amended complaint
should be dismissed for failure to state a claim and that the claim for punitive damages under the
ADEA should be stricken, but the remainder of Conviva’s motion should be denied. I will address
each issue in turn below.
I. 	Motion to Dismiss for Failure to State a Claim
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint
for failure to state a claim upon which relief can be granted. When considering such a motion, a
court must accept the factual allegations set forth in the complaint as true and must construe the
complaint in the light most favorable to the plaintiff. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555–56 (2007); Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face” so as to “nudge [his] claims across the line from conceivable to
plausible.” 	Twombly, 550 U.S. at 570. 	A claim is facially plausible “when the plaintiff pleads
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). The Federal Rules do
not require “detailed factual allegations,” but demand more than “an unadorned, the-defendant-
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unlawfully-harmed-me accusation.” 	Id. 	(quotation marks omitted). 	The allegations must be
enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555-56; Randall
v. Scott, 610 F.3d 701, 705 (11th Cir. 2010).
At the motion to dismiss stage, a complaint raising a discrimination claim need not allege
facts sufficient to make out a classic McDonnell Douglas prima facie case.”1 Id. (quotation marks
omitted). This is because McDonnell Douglas provides “an evidentiary standard, not a pleading
requirement,” and “the prima facie case relates to the employee’s burden of presenting evidence
that raises an inference of discrimination,” not to the threshold for surviving a motion to dismiss.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002). 	Thus, the Eleventh Circuit has
repeatedly and “squarely held that McDonnell Douglas is the ‘wrong legal standard’ to apply at
the pleading stage.” 	Davis v. Miami-Dade Cnty., 2024 WL 4051215, at *3 (11th Cir. Sept. 5,
2024) (quoting Surtain, 789 F.3d at 1246); see also Hernandez v. CareerSource Palm Beach
County, Inc., 2025 WL 1541367, at *4 (11th Cir. May 30, 2025). Instead, “the correct pleading
standard in a discrimination case is the same as in any other case: ‘a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Davis, 2024 WL 4051215, at *4 (citing Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, a plaintiff
can establish a rebuttable presumption of intentional discrimination if he can make out a prima facie discrimination
case by showing: (1) he belongs to a protected class; (2) he suffered an adverse employment action; (3) he was
qualified for the job; and (4) the employer treated employees “similarly situated in all material respects” outside of
his protected class more favorably. Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220-21, 1224 (11th Cir. 2019)
(en banc); Tynes v. Fla. Dep’t of Juvenile Just., 88 F.4th 939, 944 (11th Cir. 2023) (quotations omitted) (quoting
McDonnell Douglas, 411 U.S. at 802).
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570)).2 Importantly, to meet this plausibility standard, a discrimination complaint must “provide
enough factual matter (taken as true) to suggest intentional … discrimination.” Surtain v. Hamlin
Terrace Found., 789 F.3d 1239, 1246 (11th Cir. 2015) (quotation marks omitted).
A. 	Motion to Dismiss Counts One and Three – Age Discrimination
Conviva moves to dismiss Plaintiff’s age discrimination counts under the ADEA and
FCRA 	for 	failing to provide sufficient 	factual 	allegations to state cognizable age-based
discrimination claims. I agree.
“The ADEA prohibits employers from discriminating against an employee who is at least
40 years of age because of that employee’s age.” Buchanan v. Delta Air Lines, Inc., 727 F. App’x
639, 641 (11th Cir. 2018); 29 U.S.C. §§ 623(a)(1), 631(a). To maintain an action under the ADEA,
an employee must establish that his age was the “but for” cause of the adverse employment action.
Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015). “Age discrimination claims
brought under the FCRA are analyzed under the same framework as the ADEA.” Testa v. GSA
Access Grp., LLC, 2025 WL 1266716, at *2 (M.D. Fla. April 30, 2025) (citing Rainey v. United
Parcel Serv., Inc., 816 F. App’x 397, 400 (11th Cir. 2020)). As such, the discussion herein applies
to both the ADEA and FCRA claims.
The amended complaint relies on factual allegations of a circumstantial nature, as opposed
to direct or statistical evidence. See Alvarez v. Royal Atl. Dev. Inc., 610 F.3d 1253, 1264 (11th
Cir. 2010) (noting that intentional discrimination may be established “through direct evidence,
2 Although the McDonnell Douglas framework does not govern at this pleading stage, its elements still provide a
useful set of general guideposts to assess if factual allegations, taken as true, plausibly give rise to an inference of
intentional discrimination. See Davis, 2024 WL 4051215, at *3 (“It may be true that a plaintiff who alleges sufficient
facts to establish a prima facie case under McDonnell Douglas will a fortiori survive a motion to dismiss, because
McDonnell Douglas requires all the elements of a fully stated claim, and more.”). The inquiry remains firmly rooted
in plausibility, not proof, and the framework is consulted only in a general, non-technical way to inform that analysis
and not to impose an evidentiary or prima facie burden on the plaintiff.
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circumstantial evidence, or statistical proof”) (citation omitted). As stated above, a complaint for
age-based employment discrimination does not need specific facts establishing a prima facie case,
but 	it 	“must 	nonetheless 	provide 	enough 	factual 	matter 	to 	plausibly 	suggest 	intentional
discrimination.” Buchanan v. Delta Air Lines, Inc., 727 F. App’x 639, 641 (11th Cir. 2018) (citing
Surtain, 789 F.3d at 1246). 	“Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to
relief.” Id. (citing Iqbal, 556 U.S. at 678 (quotations omitted).
The amended complaint alleges the following salient facts. Conviva fired 60-year-old Dr.
Gomez in 2019 shortly after acquiring Dr. Gomez’s employer at the time. 	Between 2019 and
2022, Conviva fired at least seven other employees, all of whom were older than 50. 	In 2022,
Conviva acquired Dr. Gomez’s subsequent employer. Conviva fired Dr. Gomez again in 2024.
When Plaintiff was fired in 2024, he was the oldest physician working in that office, was
recognized as a top performer, and had four decades of experience with no disciplinary actions,
accusations, or writeups for the entire time he practiced medicine. 	Conviva retained two other
doctors, who were younger than Dr. Gomez, and replaced Dr. Gomez with a “younger physician
assistant.” DE 9 at ¶ 41.
These allegations, taken as true, do not plausibly state a claim of intentional age-based
discrimination. 	Essentially, Dr. Gomez alleges that Conviva fired him when he was the oldest
physician in the office, he had no disciplinary history, and he was replaced by a younger individual.
As the Eleventh Circuit has observed “it simply cannot be the case” that because an older person
is dismissed and his position filled by a younger person, it automatically states a plausible case of
discrimination satisfying the Twombly/Iqbal standard. 	Davis, 2024 WL 4051215, at *4. 	The
amended complaint further alleges, in conclusory fashion, that Conviva “engaged in a pattern of
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terminating its eldest employees, physicians, and physician assistants.” 	DE 9 ¶ 19. 	However,
other than giving the names and ages of other dismissed employees during the four-year time frame
preceding Conviva’s 2022 acquisition of Dr. Gomez’s second employer, the amended complaint
fails to describe the circumstances of these firings or whether substantially similar younger
workers were retained. 	Moreover, there is no similar information provided for the time frame
following Conviva’s 2022 acquisition of Dr. Gomez’s second employer through the date of his
actionable termination in 2024. Without more, simply alleging that older people were fired is not
enough to plausibly suggest age-based discrimination.
A review of age-based discrimination complaints that courts have found sufficient to
satisfy the Twombly/ Iqbal pleading standard illustrates the point. In Davis v. Miami Dade County,
for example, the complaint satisfied 12(b)(6) scrutiny by alleging that the 59-year-old white male
plaintiff was fired and replaced by a considerably younger black male who was originally hired as
Plaintiff’s subordinate; Plaintiff was the only white male in a leadership position at the company;
and Plaintiff was told by his manager that he did not meet the manager’s “vision” for the company
despite the fact that he had never been given any negative performance evaluations, or even a
single annual evaluation, for his entire 32-month stint at the office, notwithstanding having
repeatedly asked his employer to provide him with an evaluation and notwithstanding that it was
the employer’s policy to provide one. Davis, 2024 WL 4051215 (11th Cir. 2024). In Buchanan
v. Delta Airlines, the complaint satisfied scrutiny by alleging that defendant’s CEO publicly
announced the company’s push to hire younger workers so half the workforce would be comprised
of millennials, newer hires consisted mainly of millennials, plaintiff had an excellent work record,
and the company fired older workers over minor infractions while not disciplining younger
workers for those same actions. Buchanan, 727 F. App’x 639, 641-42. In Booth v. GTE Federal
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Credit Union, the complaint plausibly alleged discrimination by including an example of a
similarly situated younger employee—Yuri, an approximately 38-year-old—who had taken
money from an account for his own use and not been fired, which was worse than the conduct
cited as a reason for firing the plaintiff. Booth, 2021 WL 5416690, *3 (M.D. Fla. Nov. 20, 2021).
Thus, the Booth court held that, “[t]aking these allegations as true and drawing every reasonable
inference in [the plaintiff’s] favor, [the plaintiff] plausibly alleges that [the defendant] treated
similar employees differently based on age and replaced [the plaintiff] with a substantially younger
employee.” Id.
Conversely, in Ramirez v. Walmart, the Eleventh Circuit affirmed the dismissal of a
complaint when the plaintiff alleged only that she was terminated based on age or gender
discrimination and failed to plead facts sufficient to indicate her employer’s treatment was
motivated by discriminatory animus. Ramirez v. Walmart, Inc., 2024 WL 4880378 (11th Cir. Nov.
25, 2024). Similarly, in Hennessey v. Climate First Bank, the district court dismissed a complaint
stating in conclusory fashion that the plaintiff was terminated because the defendant “made
conscious decisions to present a younger image to stakeholders and potential investors.” 2023 WL
7166662, *3 (M.D. Fla. Oct. 31, 2023) (noting that an employer’s decision to hire younger
employees, without more, does not mean that if a substantially older employee is fired, then that
older employee was fired because of his or her age). Lastly, in Eldredge v. EDCare Mgmt., Inc.,
2014 WL 590336 (S.D. Fla. Feb. 14, 2014), the plaintiff alleged she was “replaced by a
substantially younger female” and that “a significantly younger female executive assistant was
permitted to transfer to a job in a related company.” Id. at *2. The court dismissed the complaint
because it failed to allege the comparator’s age, whether the plaintiff was qualified for the job in
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the related company, or facts plausibly giving rise to entitlement to relief for age discrimination.
Id. at *2-*3.
Here, the amended complaint alleges some facts raising the possibility of intentional
discrimination (i.e., plaintiff’s age and qualifications, and his replacement by a younger employee),
but not enough facts to nudge Dr. Gomez’s claim across “the line between possibility and
plausibility of entitlement to relief.” See Iqbal, 556 U.S. at 678; see Buchanan, 727 F. Appx. at
641. The amended complaint is devoid of the kinds of alleged facts courts have found probative
of intentional discrimination, such as those that demonstrate “among other things, (1) suspicious
timing, ambiguous statements, or other information from which discriminatory intent may be
inferred, (2) systematically better treatment of similarly situated employees, and (3) pretext.”
Tynes v. Fla. Dep’t of Juvenile Just., 88 F.4th 939, 946 n. 2 (11th Cir. 2023) (quotations omitted).3
For instance, Dr. Gomez summarily asserts that he was replaced by a younger physician’s
assistant but he alleges no other facts regarding his replacement. 	See, e.g., Nunez v. City of
Pompano Beach, 2021 WL 9957861, at *3 (S.D. Fla. Apr. 20, 2021) (concluding that the plaintiff’s
vague allegation that the defendant, after firing the plaintiff, “then retain[ed] and/or hir[ed] less
qualified individuals who were under the age of 40,” fell “woefully short of alleging that a
substantially younger person filled the position from which [the plaintiff] was discharged”).
Moreover, he references—in conclusory fashion—being transferred from one account to another
and being replaced by a younger employee. 	See, e.g., DE 9 ¶¶ 46-47, 76-77. 	However, the
amended complaint offers no further explanation about this alleged transfer of accounts or how, if
at all, it relates to Dr. Gomez’s claims of age-based discrimination. 	The allegation that “Dr.
3 Dr. Gomez’s allegation that a medical director told him over the phone that he “was endangering the patients”
because he needed time off for his disability, DE 9 ¶ 39, does not change the calculus because this alleged comment
is not age-based.
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Gomez’s younger colleagues were not subject to the same discriminatory treatment, including
being transferred from one account to another without justification, and also being terminated
without cause, despite replicating the same or similar conduct”—id. ¶ 47—also fails to adequately
allege these “younger colleagues” were similarly situated. 	The broad assertion that younger
colleagues were treated differently is insufficient. Absent additional factual allegations connecting
age to the adverse employment action, the amended complaint’s age-related allegations amount to
little more than unfounded speculation. This is insufficient to survive a motion to dismiss.
However, because I find it conceivable that Dr. Gomez may be able to fill in the missing
gaps, I recommend that he be given an opportunity to amend.
B. 	Motion to Dismiss Counts Two and Four – Disability Discrimination
Conviva also moves to dismiss counts two and four for failing to set forth sufficient factual
allegations to state cognizable disability-based discrimination claims under the ADA and FCRA.
I agree.
The ADA prohibits employer discrimination “based upon the known physical or mental
impairments of a qualified individual with a disability.” 	Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). 	This prohibition includes discharging an
employee based on his disability. 42 U.S.C. § 12112(a); Connelly v. WellStar Health Sys., Inc.,
758 F. App’x 825, 828 (11th Cir. 2019). Similarly, Florida’s FCRA prohibits an employer from
discriminating against an employee because of his disability. 	See Fla. Stat. § 760.10; Holly v.
Clairson Industries, LLC, 492 F.3d 1247, 1255 (11th Cir. 2007).
To state a claim for disability discrimination under the ADA and the FCRA, an employee
must allege facts showing that he (1) has a disability; (2) was a qualified individual for the position
in question; and (3) the employer discriminated against him because of his disability. See Akridge
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v. Alfa Ins. Cos., 93 F.4th 1181, 1191 (11th Cir. 2024) (citing Beasley v. O’Reilly Auto Parts, 69
F.4th 744, 754 (11th Cir. 2023)); see also Holly, 492 F.3d at 1255 (11th Cir. 2007) (noting that
courts evaluate FCRA claims under the same framework as ADA claims).
Here, as a threshold matter, the amended complaint is not clear about which theory of
disability 	discrimination 	is 	being 	pursued. 	There 	are 	distinct 	categories 	of 	disability
discrimination, including disparate treatment, failure to accommodate, and retaliation. 	These
distinct categories require different showings. 	See, e.g., Su v. Broward County, Fla., 2024 WL
1236243, at *5 (S.D. Fla. Mar. 1, 2024) (dismissing disability discrimination claims under the
FCRA and the ADA for several reasons, including that the amended complaint did not make clear
if plaintiff was asserting a failure to accommodate claim), aff’d 2025 WL 326307 (11th Cir. Jan.
29, 2025), cert. denied 146 S. Ct. 188 (2025); Wolowitz v. Seacrest Servs., Inc., 2024 WL 3511545
(S.D. Fla. July 9, 2024) (evaluating disability discrimination complaint containing separate counts
for disability discrimination, retaliation, and failure to accommodate under the ADA and FCRA
and 	setting 	forth 	legal 	standards 	governing 	each 	type 	of 	distinct 	claim), 	report 	and
recommendation adopted as modified, 2024 WL 3509604 (S.D. Fla. July 23, 2024); Toliver v. City
of Jacksonville, 2017 WL 1196637, at *5-6 (M.D. Fla. Mar. 31, 2017) (discussing difference
between the showing required for disparate treatment and failure to accommodate claims under
the ADA and confining summary judgment review to disparate treatment claims because plaintiff
“failed to plead a separate claim for disability discrimination based on a failure to accommodate
theory” as required by rules of pleading).
The amended complaint alleges two counts of disability discrimination under the ADA and
FCRA but includes within each count allegations of Dr. Gomez notifying Conviva of “requests for
accommodations” and subsequent “retaliation” by Conviva in the form of account transfers and,
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ultimately, his termination. 	DE 9 ¶¶ 59-61. 	It is further alleged that Dr. Gomez was treated
differently than his non-disabled colleagues. Id. ¶ 61. It would promote clarity for both the Court
and Conviva for Dr. Gomez to plead counts that make clear which type of claim is being pursued
and to include sufficient allegations to support each distinct theory of relief.
In addition, the amended complaint fails to allege sufficient facts to show that Dr. Gomez
was a “qualified individual” within the meaning of the ADA and the FCRA. The ADA defines a
“qualified individual” as “an individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such individual holds or desires.”
42 U.S.C. § 12111(8). The ADA regulations define “essential functions” as “the fundamental job
duties of the employment position.” 29 C.F.R. § 1630.2(n)(1). 	Whether a plaintiff can perform
the essential functions of a position with or without reasonable accommodation requires a “fact-
intensive inquiry.” Hardin v. Oakley Transp., Inc., 2025 WL 948313, at *7 (M.D. Fla. Mar. 28,
2025).
Here, the amended complaint alleges that Dr. Gomez is a “qualified individual” who could
“perform all the functions of his position as a physician” but “required certain accommodations”
to access Conviva’s technological devices and programs. DE 9 ¶¶ 57-58, 85. However, other than
identify Dr. Gomez as a top performing “exemplary” physician, the amended complaint reveals
next to nothing about the essential functions of his job. 	Without further factual allegations
describing his actual job duties, I cannot determine if Dr. Gomez states a plausible claim for relief
as a “qualified individual” who could perform the “essential functions” of his job with or without
the technological accommodations he requested.
The amended complaint also fails to allege sufficient, plausible facts to show that Conviva
discriminated against him “because of” his disability. 	The amended complaint identifies Dr.
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Gomez’s physical disabilities and related accommodation requests, including requests for specific
technology. These allegations arguably establish the existence of disabilities for which Plaintiff
sought accommodation, but they do not include factual content from which I am able to plausibly
infer that Conviva took adverse action that was motivated by Plaintiff’s disability. While a plaintiff
need not plead a prima facie case, the complaint must allege facts allowing a reasonable inference
of intentional discrimination. See Surtain, 789 F.3d at 1246 (11th Cir. 2015); Iqbal, 556 U.S. 662,
678 (2009). As with the age discrimination counts, the amended complaint summarily asserts that
non-disabled employees were treated differently because they were not transferred between
accounts without justification and were not subject to “unwarranted account transitions.” DE 9 ¶¶
61, 90-91. However, these allegations are unexplained leaving one to speculate as to what is meant
by account transfers and, more importantly, how these purported transfers are tied to Dr. Gomez’s
disability. Conclusory assertions of differential treatment are insufficient to state a plausible claim.
Moreover, the allegation that a medical director informed Dr. Gomez “over the phone after calling
in sick for a migraine that he believed Dr. Gomez ‘was endangering the patients’ because he
needed time off for his disability[,]” DE 9 ¶ 39, is not enough to nudge his disability across the
line from conceivable to plausible. There is no indication of when this alleged comment was made
and how it fits into Dr. Gomez’s overall theory of disability-based discrimination. As with the age
discrimination claims, more is required. 	Therefore, I recommend that the ADA and FCRA
disability discrimination claims be dismissed without prejudice and with leave to amend.
II. 	Motion to Dismiss Claims Based on 2019 Termination as Time Barred
Next, Conviva argues that any claim based on Dr. Gomez’s March 2019 termination is
time-barred and should be dismissed. Upon review,
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A plaintiff must file a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) within 300 days of the alleged unlawful employment practice. 	See
Penaloza v. Target Corp., 549 F. App’x 844, 848 (11th Cir. 2013) (in Florida, ADA claim must
be filed within 300 days of the discriminatory act for the claim to be actionable); McBrayer v. City
of Marietta, 967 F.2d 546, 547 (11th Cir. 1992) (requirement to timely file an EEOC charge of
discrimination applies to claims of age discrimination brought under the ADEA); see also 42
U.S.C. s. 2000e-5(e)(1). 	Similarly, claims under the FCRA must be filed with the Florida
Commission on Human Relations within 365 days of the alleged violation. See FL ST 760.11(1).
Only those claims filed within the 300 days prior to the filing of the EEOC charge are actionable.
See Nat’l R.R. Passenger Corp. v. Morgan¸536 U.S. 101 (2002); E.E.O.C. v. Joe’s Stone Crabs,
Inc., 296 F.3d 1265, 1271 (11th Cir. 2002). Here, because Dr. Gomez filed the EEOC charge on
October 29, 2024, discriminatory acts occurring before January 3, 2024, are outside the scope of
this action.
The amended complaint alleges that Conviva terminated Dr. Gomez twice—once in March
2019 soon after Conviva acquired Dr. Gomez’s then-employer, MCCI, and then again in 2024,
two years after Conviva acquired PCA. It is not clear from the amended complaint which of these
terminations is the basis for Plaintiff’s claims of discrimination.
In responding to Conviva’s motion, Plaintiff does not dispute that discrimination claims
based on his 2019 termination would be time barred but argues he should be allowed to include
information about that termination in his complaint as background evidence. True. An employee
is not barred from using prior acts as background evidence in support of a timely claim. Nat’l R.R.
Passenger Corp., 536 U.S. at 113. 	The problem here, however, is that the amended complaint is
unclear as to which termination underlies Dr. Gomez’s four counts of discrimination. 	Plaintiff
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should be required to clarify that his discrimination claims are based on his termination in 2024,
not his prior termination in 2019 since any claim from 2019 would in fact be time barred. Plaintiff
may include pre-limitation conduct relating to his claims as background factual evidence, but any
alleged discriminatory actions occurring outside the limitation period is not actionable.
IV. 	Motion to Strike Certain Allegations and Claim for Punitive Damages
Next, Conviva moves to strike allegations relating to Dr. Gomez’s first termination in
March 2019, the terms of the non-compete clause in his 2022 employment agreement, and the
request for punitive damages under both the ADEA and FCRA.
Federal Rule of Civil Procedure 12(f) permits the Court to “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.
P. 12(f). 	Its purpose “is to clean up the pleadings, remove irrelevant or otherwise confusing
materials, and avoid unnecessary forays into immaterial matters.” Blake v. Batmasian, 318 F.R.D.
698, 700 (S.D. Fla. 2017). Motions to strike are generally disfavored and should be granted only
where the challenged matter has no possible relation to the controversy. JazAtlanta 519 LLC v.
Beazley Underwriting, Ltd., 2018 WL 4743634, at *1 (S.D. Fla. Oct. 2, 2018).
As discussed above, allegations about Dr. Gomez’s March 2019 termination may be
properly included as background evidence. Likewise, allegations addressing the terms of the non-
compete clause provide factual context that may bear on the parties’ relationship and the
circumstances surrounding the challenged conduct. 	At this stage, I cannot find that such
allegations have no possible relation to this controversy. Accordingly, the motion to strike these
allegations should be denied.
Turning to the punitive damages claims, while Rule 12(f) motions are generally disfavored,
courts possess authority to strike a plaintiff’s request for unrecoverable damages at the motion-to-
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dismiss stage. See Murphy v. Carnival Corp., 426 F. Supp. 3d 1288, 1290–91 (S.D. Fla. 2019).
Here, Plaintiff argues that he has pleaded punitive damages “in the alternative with respect to his
FCRA claim” such that the punitive damages allegations should be left intact at this stage in the
litigation. DE 21 at 7 (emphasis in original). I cannot agree. While Plaintiff could be entitled to
liquidated damages under the ADEA, punitive damages are simply unavailable as a matter of
law—regardless of whether such damages are plead in the alternative. See 29 U.S.C. § 626(b);
see also Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1446 (11th Cir. 1985) (“[N]either
punitive damages nor compensatory damages for pain and suffering are recoverable under the
ADEA.”). 	The claim for punitive damages under the ADEA should therefore be stricken as
unrecoverable and immaterial. Plaintiff appears to concede as much. DE 21 at 6 (“if the Court
were to conclude that Plaintiff’s request for punitive damages is improperly pleaded at this stage,
the appropriate remedy would be to strike the punitive damages request—not to dismiss Plaintiff’s
Amended Complaint in whole or in part”).
Conversely, punitive damages may be available in discrimination suits under the FCRA.
Fla. Stat. § 760.11(5) (subject to certain statutorily enumerated limitations, the FCRA also allows
courts to “award compensatory damages, including, but not limited to, damages for mental
anguish, loss of dignity, and any other intangible injuries, and punitive damages”). Therefore, Dr.
Gomez’s claim for punitive damages under the FCRA is not subject to being stricken.
Accordingly, I recommend that Conviva’s motion to strike be granted only with respect to
the legally impermissible claim for punitive damages under the ADEA.
V. 	Motion to Dismiss on Shotgun Pleading Grounds
Lastly, Conviva argues the amended complaint is an impermissible shotgun pleading
because the FCRA age and disability claims each incorporate all the general allegations and the
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general allegations “include broad factual narratives … that are not tied to the claims at issue and
not separated into distinct counts.” DE 13 at 11. I disagree.
“Shotgun pleadings” are complaints “that violate either Rule 8(a)(2) or Rule 10(b), or
both,” by “fail[ing] 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 Office, 792 F.3d 1313, 1320-23 (11th Cir. 2015). 	The Weiland
framework is meant to be an illuminating and clarifying guide rather than a rigid test. Id. at 1321
(“Though the groupings cannot be too finely drawn, we have identified four rough types or
categories of shotgun pleadings.”). Indeed, “Rule 10(b) sets forth a flexible standard that turns on
whether pleading multiple claims in one count advances or hinders the interests of clarity.” Doe v.
Carnival Corp., 470 F. Supp. 3d 1317, 1323 (S.D. Fla. 2020) (“Notice is the touchstone of the
Eleventh Circuit's shotgun pleading framework.”). This means that even if a pleading could have
been drafted in a clearer way and is “not a model of efficiency or specificity,” it should not be
dismissed as a shotgun pleading if it adequately puts a defendant “on notice of the specific claims
against them and the factual allegations that support those claims.” Weiland, 792 F.3d at 1325;
see also Graux v. Universal Music Grp., Inc., 2025 WL 1634736, at *3 (S.D. Fla. June 9, 2025)
(“The key inquiry is whether the [pleading deficiency] materially increases the burden of
understanding the factual allegations underlying each count.” (citation omitted)).
The amended complaint here is hardly a “textbook example of shotgun pleading” as argued
by Conviva. DE 13 at 11. Rather, it is straightforward and intelligible. It pleads discrete causes
of action, supported by organized factual allegations, that are plainly attributable to a single
defendant. 	Nothing about the pleading obscures the nature of the claims or leaves Conviva
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completely guessing as to the conduct at issue. It provides Conviva adequate notice of the claims
brought against it. Therefore, dismissal on shotgun-pleading grounds is unwarranted.
CONCLUSION
Dr. Gomez has not adequately pled his case. The alleged factual content is insufficient to
nudge the claims across the line from conceivable to plausible, particularly because the amended
complaint does not plausibly suggest discriminatory intent based on age or disability. In addition,
the request for punitive damages under the ADEA should be stricken as legally impermissible and,
as Dr. Gomez concedes, any substantive discrimination claims based on his 2019 termination are
time barred. 	On the other hand, the amended complaint is not a shotgun pleading. 	Moreover,
apart from the impermissible claim for punitive damages under the ADEA, the other challenged
allegations—including factual allegations surrounding the 2019 termination—may properly be
included as background evidence.
Accordingly, I respectfully RECOMMEND that the amended complaint be dismissed in
its entirety without prejudice and with leave to file a second amended pleading consistent with the
guidance and findings in this report.
NOTICE OF RIGHT TO OBJECT
The parties shall have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation within which to file written objections, if any, with U.S. District
Judge David S. Leibowitz. Failure to file objections timely shall bar the parties from a de novo
determination by the District Judge of an issue covered in the Report and Recommendation and
shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained
in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140,
149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016).
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Conversely, if a party does not intend to object to this Report and Recommendation, then
that party shall file a Notice of such within five (5) days of the date of this Report and
Recommendation.
DONE AND RECOMMENDED in Chambers at Fort Pierce, Florida, this 30th day of
January, 2026.
_______________________________
SHANIEK MILLS MAYNARD
U.S. MAGISTRATE JUDGE
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