Andrew Horace v. ARIA

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12414

Non-Argument Calendar

____________________

ANDREW HORACE,

Plaintiff-Appellant,

versus

ARIA,

(Addiction Recovery Institute of America)

C/O Shawn Leon,

Defendant-Appellee,

EVERNIA HEALTH CENTER LLC, et al.,

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Defendants.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:22-cv-81766-AMC

____________________

Before BRASHER, ABUDU and HULL, Circuit Judges.

PER CURIAM:

Andrew Horace appeals pro se the dismissal with prejudice

of his amended complaint alleging claims of race and gender

discrimination under Title VII of the Civil Rights Act of 1964 (“Title

VII”) and the Florida Civil Rights Act (“FCRA”) against his former

employer Addiction Recovery Institute of America, LLC (“ARIA”).

The district court dismissed Horace’s gender discrimination claims

for failure to exhaust administrative remedies and his race

discrimination claims for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6).

After review, we affirm the dismissal of Horace’s gender

discrimination claims for lack of exhaustion. As to Horace’s race

discrimination claims, however, we conclude the district court

erred in dismissing those claims at the pleading stage for failure to

plead a prima facie case under the McDonnell Douglas evidentiary

framework. Here, Horace’s amended complaint states facially

plausible claims of race discrimination under Title VII and the

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FCRA, and thus we reverse the district court’s dismissal of those

claims and remand for further proceedings consistent with this

opinion.

I. BACKGROUND

A. Allegations in Amended Complaint

According to the operative pro se amended complaint, from

December 2021 until February 2022, Horace, who is black, worked

at ARIA as a behavior health technician. Horace was fully qualified

for his position and was praised by ARIA’s hiring manager and the

lead technician for his work performance.

Horace alleged that from the outset of his employment,

ARIA treated black employees differently than non-black

employees in similar situations as to “their wages” by “changing

[black employees’] pay-rate multiple times.” One black employee,

Yolanda, told Horace she “received disparate treatment in her

wages.” Horace learned from another black employee, Tomasina,

that other black employees had “voluntarily separated due to

disparate treatment in wages performed by [ARIA].” Horace

alleged that Tomasina’s statements were “proven true and correct,

as it happened to [Horace]” as well.

Specifically, the amended complaint alleged that ARIA twice

changed Horace’s pay rate without his knowledge. As a result,

Horace worked “at a final pay-rate change of 0.1875,” which was

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“significantly less than his non-black counterparts.” 1 Horace

brought the payroll issue to the attention of ARIA’s hiring manager

Jefferey Mann, its payroll director Cliff Churchill, and its owner

Shaw Leon, and all three “refused to correct the issue at hand while

[Horace] was physically employed.” ARIA’s payroll director

allegedly lied to Horace, saying the “pay-roll issue [was] correct.”

Horace had to retain an attorney “to get his wages back,” and ARIA

“remained idle” until his attorney got involved.

Meanwhile, white employees were not subjected to pay-rate

changes without their consent or having to “jump through hoops

in order to get their wages back.” As an example, Horace identified

a “non-black employee,” Betsy Galicia, who never had her pay rate

changed while working at ARIA. Horace alleged that the change

in his pay rate was not merely a payroll error, but an “intentional

act of disparate treatment towards black employees,” and that

ARIA’s claims to the contrary were “dishonest” and “a pretextual

defense.” Horace alleged that he “suffered adverse employment

actions due to his race; resulting in changing his pay-rate twice

without his knowledge.”

1 It is not entirely clear from the pro se amended complaint what Horace means

by “a pay-rate change of 0.1875,” as it does not further quantify the effect of

this change. However, the amended complaint describes this pay rate as

“disgraceful” and states that “no employee in America works at that rate!” On

appeal, ARIA suggests Horace meant “a change to $0.1875 per hour.” At a

minimum, these allegations, liberally construed, assert that Horace suffered a

more than de minimis pay cut.

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Based on these factual allegations, the amended complaint

asserted claims of race discrimination in violation of Title VII and

the FCRA (Counts 1 and 3) and gender discrimination in violation

of Title VII and the FCRA (Counts 2 and 4). Among other things,

Horace sought compensatory and punitive damages, and

reinstatement “to the position at the rate of pay and with the full

benefits [he] would have had” if ARIA had not discriminated

against him, or “in lieu of reinstatement, [an] award [of] front pay.”

B. Motion to Dismiss

ARIA filed a motion to dismiss the amended complaint for

failure to state a claim of race discrimination. ARIA also argued

that Horace’s gender discrimination claims were barred because

they fell outside the scope of his charge of discrimination and

attached a copy of that charge filed with the Palm Beach County

Office of Equal Opportunity (“PBCOEO”).

On June 16, 2023, the district court granted ARIA’s motion

and dismissed Horace’s amended complaint. For Horace’s gender

discrimination claims, the district court concluded Horace had

failed to exhaust his administrative remedies, as his discrimination

charge, filed with the PBCOEO, was devoid of allegations of

gender discrimination. The district court further found that

because the alleged sex discrimination occurred in February 2022—

the last date Horace alleged he worked at ARIA—which was “more

than a year ago,” any attempt to file a charge for sex discrimination

“would be time-barred.”

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For Horace’s race discrimination claims, the district court

concluded that Horace’s amended complaint failed to establish two

elements of the prima facie case for intentional race discrimination

under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)—that

he suffered an adverse employment action and that ARIA treated

similarly situated employees of a different race more favorably.

The district court dismissed the amended complaint with

prejudice because it had already given Horace the opportunity to

cure deficiencies in his original complaint but the amended

complaint remained deficient. The district court further noted that

a new action would be untimely.

II. DISMISSAL OF GENDER DISCRIMINATION CLAIMS

Before filing an action in federal court, a Title VII plaintiff in

a deferral state such as Florida must file an administrative charge of

discrimination within 300 days after the alleged unlawful

employment practice occurred. 42 U.S.C. § 2000e-5(e)(1); EEOC v.

Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002). Similarly,

a plaintiff seeking to file civil suit under the FCRA must file a

complaint with the Florida Commission on Human Relations,

another appropriate state entity, or the Equal Employment

Opportunity Commission (“EEOC”) within 365 days of the alleged

FCRA violation. Fla. Stat. §§ 760.02(2), 760.11(1); Woodham v. Blue

Cross & Blue Shield of Fla., Inc., 829 So. 2d 891, 894 (Fla. 2002).

“Because of that exhaustion requirement, ‘a plaintiff’s

judicial complaint is limited by the scope of the EEOC investigation

which can reasonably be expected to grow out of the charge of

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discrimination.” Patterson v. Ga. Pac., LLC, 38 F.4th 1336, 1345 (11th

Cir. 2022) (quoting Gregory v. Ga. Dep’t of Hum. Res., 355 F.3d 1277,

1280 (11th Cir. 2004)). In “determining what can reasonably be

expected to grow out of an EEOC charge,” the facts alleged in the

charge matter more than the legal theory. Id. While “judicial

claims are allowed if they amplify, clarify, or more clearly focus the

allegations in the EEOC complaint, . . . allegations of new acts of

discrimination are inappropriate.” Gregory, 355 F.3d at 1279-80

(quotation marks omitted). We review de novo the dismissal of a

claim for failure to exhaust administrative remedies. See id. at 1280.

Here, the district court did not err in dismissing Horace’s

gender discrimination claims under Title VII and the FCRA for

failing to exhaust them administratively. In his charge of

discrimination filed with the PBCOEO, Horace checked the box

indicating that he was alleging discrimination based on race. And,

in detailing the “particulars” in a separate box on the form, Horace

stated he believed he was discriminated against based on his race

because ARIA treated him and other black employees differently

than Horace’s white co-worker as to the “terms and conditions of

[ARIA’s] rules and regulation[s].” Horace’s charge made no

mention of gender at all, much less allege gender discrimination.

Further, Horace attached to his amended complaint: (1) an

email from a manager at the state agency indicating that the agency

was investigating Horace’s “allegation of discrimination based on

race,” and (2) an email from Horace advising the manager that the

“employee of a different race” referred to in his charge was a

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behavior health technician named Betsy, but that he did not know

her last name.

Because Horace’s charge was limited to factual allegations

of race discrimination, he was precluded from asserting claims of

gender discrimination for the first time in his amended complaint.

See id. at 1279-80. Additionally, these claims were properly

dismissed with prejudice, as the time for filing a charge of gender

discrimination under either Title VII or the FCRA, 300 days and

365 days respectively, had long since expired by the time of the

district court’s June 16, 2023 dismissal order.

III. DISMISSAL OF RACE DISCRIMINATION CLAIMS

Horace argues that the district court did not apply the

correct legal standard when it dismissed his race discrimination

claims for failure to state a claim under Rule 12(b)(6), and that,

under the correct standard, his amended complaint pled sufficient

facts to survive ARIA’s motion to dismiss.

We review a district court’s order granting a motion to

dismiss for failure to state a claim de novo. EEOC v. STME, LLC,

938 F.3d 1305, 1313 (11th Cir. 2019). Pro se pleadings are construed

liberally and held to “less stringent standards” than counseled

pleadings. Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th Cir. 2020)

(quotation marks omitted). “Nevertheless, we cannot act as de

facto counsel or rewrite an otherwise deficient pleading in order to

sustain an action.” Id.

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A. Rule 12(b)(6) Dismissals

Under Federal Rule of Civil Procedure 8, a complaint must

include “a short and plain statement of the claim showing that the

pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2); Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 512 (2002). The complaint must

include factual allegations sufficient “to raise a right to relief above

the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements” are insufficient to state

a claim for relief).

In ruling on a Rule 12(b)(6) motion, a district court must

“take the factual allegations in the complaint as true and construe

them in the light most favorable to the plaintiffs.” See Edwards v.

Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). To survive a

motion to dismiss under Rule 12(b)(6), a complaint must contain

“enough facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678. “A claim is

facially plausible when the plaintiff pleads sufficient facts to allow

the court to draw the reasonable inference that the defendant is

liable for the alleged misconduct.” STME, LLC, 938 F.3d at 1313

(quotation marks omitted). Plausible facts “raise a reasonable

expectation that discovery could supply additional proof of [a

defendant’s] liability.” Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012).

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B. Pleading Title VII Discrimination Claims

Title VII makes it unlawful for an employer to discharge or

otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment

because of his race or sex. 42 U.S.C. § 2000e-2(a)(1). Similarly, the

FCRA makes it unlawful for an employer to “discharge . . . any

individual, or otherwise to discriminate against any individual with

respect to compensation, terms, conditions, or privileges of

employment, because of such individual’s race . . . [or] sex.” Fla.

Stat. § 760.10(1)(a). Discrimination claims brought under Title VII

and the FCRA are analyzed under the same framework. See, e.g.,

Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 n.6 (11th Cir.

2015).

The Supreme Court has held that an employment

discrimination plaintiff need not plead specific facts establishing a

prima facie case under the burden-shifting framework established

in McDonnell Douglas. 2 Swierkiewicz, 534 U.S. at 508, 510-12.

Applying Swierkiewicz, this Court explained in Surtain that:

[t]o state a race-discrimination claim under Title VII,

a complaint need only provide enough factual matter

2 Under the McDonnell Douglas burden-shifting framework, a Title VII plaintiff

relying on circumstantial evidence to survive summary judgment must first

present evidence of a prima facie case of racial discrimination, including that:

(1) he belongs to a protected class; (2) was qualified to do the job; (3) was

subjected to adverse employment action; and (4) his employer treated

similarly situated employees outside his class more favorably. Crawford v.

Carroll, 529 F.3d 961, 970, 975-76 (11th Cir. 2008).

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(taken as true) to suggest intentional race

discrimination. The complaint need not allege facts

sufficient to make out a classic McDonnell Douglas

prima facie case. This is because McDonnell Douglas’s

burden-shifting framework is an evidentiary

standard, not a pleading requirement.

Surtain, 789 F.3d at 1246 (quotation marks and citations omitted).

Nevertheless, a Title VII plaintiff, like any other plaintiff,

must still satisfy the plausibility standard set forth in Twombly and

Iqbal. See id. To do so, an employment discrimination complaint

must provide enough factual allegations that, taken as true,

“plausibly suggest that the plaintiff suffered an adverse

employment action due to intentional racial discrimination.” Id. at

1246. 3 The complaint must satisfy the plausible-on-its-face

standard, and the allegations must be sufficient to raise a right to

relief above the speculative level. See Edwards, 602 F.3d at 1301.

C. Dismissal of Horace’s Race Discrimination Claims

Here, in the “Legal Standard” section of its dismissal order,

the district court recited the correct general standard for Rule

12(b)(6) dismissals under Twombly and Iqbal. In its analysis of

Horace’s race discrimination claims, however, the district court

recited the elements of a prima facie case of race discrimination

3 An adverse employment action is “not only an element of [McDonnell

Douglas’s] prima facie case,” but also an element “of the claim itself.” Holland

v. Gee, 677 F.3d 1047, 1056 (11th Cir. 2012). Therefore, a Title VII plaintiff

must allege facts showing he suffered an adverse employment action to state

a facially plausible disparate treatment claim of discrimination.

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under the McDonnell Douglas burden-shifting framework and

concluded that Horace’s amended complaint “fail[ed] to establish

two of these elements.” The district court further explained that

Horace had failed to allege facts from which the court could infer

that he suffered an adverse employment action or that ARIA

treated similarly situated employees more favorably than him.

The district court determined Horace’s allegations that

ARIA changed his pay rate did not establish an adverse

employment action because ARIA eventually returned his lost

wages. The district court noted Horace’s allegations that Betsy

Galicia, a non-black employee, did not experience pay-rate

changes. The district court concluded, however, that the amended

complaint “provides no information from which the Court can

infer that Ms. Galicia is similarly situated to Plaintiff in all material

respects.” The district court cited Lewis v. City of Union City, a

summary judgment case in which this Court addressed what “sorts

of similarities” are needed to satisfy the “all-material-respects”

standard of the fourth element of a prima facia case under

McDonnell Douglas. 918 F.3d 1213, 1227-1229 (11th Cir. 2019).

The district court erred by requiring Horace to plead

specifically enough to establish a prima facie case of race

discrimination under McDonnell Douglas. See Swierkiewicz, 534 U.S.

at 508, 510-12; Surtain, 789 F.3d at 1246. Instead, the district court

should have evaluated whether the factual allegations in Horace’s

pro se amended complaint, liberally construed and taken as true,

“plausibly suggest that [Horace] suffered an adverse employment

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action due to intentional race discrimination.” See Surtain, 789 F.3d

at 1246.

Horace’s amended complaint, liberally construed, alleged

that: (1) ARIA changed and lowered the rate of pay of black

employees, including Horace, without their knowledge or consent,

but did not change the rate of pay for non-black employees, such

as Betsy Galicia; (2) when Horace complained to ARIA’s managers

about the changes to his rate of pay, they refused to correct his pay

rate while he was employed there and falsely told him that his pay

rate was correct; and (3) Horace was able to obtain the full wages

he was due only after he voluntarily separated from ARIA and

retained an attorney.

These factual allegations, taken as true, are sufficient to

suggest that Horace suffered an adverse employment action due to

intentional race discrimination. To the extent the district court

concluded Horace failed to allege an adverse employment action,

both Title VII and the FCRA prohibit discrimination with respect

to compensation. See 42 U.S.C. § 2000e-2(a)(1); Fla. Stat.

§ 760.10(1)(a). This Court has said that adverse employment

actions include actions that “affect continued employment or pay”

including “pay raises or cuts.” Davis v. Legal Servs. Ala., Inc., 19 F.4th

1261, 1266 (11th Cir. 2021); Monaghan v. Worldpay US, Inc., 955 F.3d

855, 860 (11th Cir. 2020). That Horace alleged that ARIA

eventually repaid his lost wages after he resigned and hired a

lawyer does not mean he did not suffer an adverse employment

action. See Crawford v. Carroll, 529 F.3d 961, 973 (11th Cir. 2008)

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(concluding that an employee who was temporarily deprived a

merit pay increase suffered an adverse employment action and

stating that “an employer cannot undo the harm its actions have

caused, and thereby avoid liability, simply by attempting to make

the employee whole retroactively”).

Additionally, constructive discharge due to “an official act

reflected in company records” such as “a reduction in

compensation” may also constitute an adverse employment action

under certain circumstances. See Penn. State Police v. Suders, 542

U.S. 129, 134, 148 (2004) (acknowledging that “an extreme cut in

pay” may provide the basis for alleging constructive discharge).

Construed liberally, Horace’s amended complaint alleged that like

other black ARIA employees, he had to voluntarily resign because

ARIA repeatedly refused to fix his pay rate when he brought it to

management’s attention and instead falsely told him his pay rate

was correct. Thus, Horace has alleged two facially plausible

adverse employment actions.

Further, Horace’s amended complaint alleged that only

black ARIA employees had their rate of pay changed and lowered

multiple times and without notice, and it identified a “non-black”

comparator, Betsy Galicia, whose rate of pay was never changed

while she worked at ARIA. At the pleading stage, Horace was not

required to allege facts showing that Galicia was similarly situated

in all material respects. See Surtain, 789 F.3d at 1246. Indeed, this

Court has observed that a “plaintiff’s failure to produce a

comparator does not necessarily doom the plaintiff’s case,” even at

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later stages of the litigation. Tynes v. Fla. Dep’t of Juv. Justice, 88 F.4th

939, 946-47 (11th Cir. 2023) (affirming denial of motion for

judgment as a matter of law based on evidence of comparator

employees who were not similarly situated in all material respects).

Nonetheless, in an email attached to his amended

complaint, Horace advised the state agency’s manager

investigating his race discrimination charge that he and Galicia had

the same title, behavior health technician. Further, in his amended

complaint, Horace alleged, albeit with respect to his Title VII

gender discrimination claim, that he complained to the lead

technician, Faye, about the difference between his and Galicia’s

pay. Thus, at a minimum, it appears Horace and Galicia held the

same position and perhaps had the same supervisor.

Even if the factual allegations in Horace’s amended

complaint do not allege “a classic McDonnell Douglas prima facie

case” of race discrimination, they are adequate to “plausibly

suggest that [Horace] suffered an adverse employment action due

to intentional racial discrimination.” See Surtain, 789 F.3d at 1246.

Accordingly, Horace’s Title VII and FCRA race discrimination

claims are plausible on their face and should not have been

dismissed. See Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678.

IV. CONCLUSION

In sum, we affirm the district court’s dismissal of Horace’s

gender discrimination claims in Counts 2 and 4 with prejudice. We

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reverse the district court’s dismissal of Horace’s race discrimination

claims in Counts 1 and 3 and remand for further proceedings.4

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

4 In its appeal brief, ARIA argues that we lack appellate jurisdiction because

Horace’s appeal was untimely. This Court already rejected this argument

when it denied ARIA’s motion to dismiss the appeal.