Andrew Horace v. ARIA

[DO NOT PUBLISH]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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2 Opinion of the Court 23-12414
Defendants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cv-81766-AMC
____________________
Before B RASHER , ABUDU and H ULL , 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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23-12414 Opinion of the Court 3
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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4 Opinion of the Court 23-12414
“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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23-12414 Opinion of the Court 5
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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23-12414 Opinion of the Court 7
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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8 Opinion of the Court 23-12414
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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23-12414 Opinion of the Court 11
(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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12 Opinion of the Court 23-12414
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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23-12414 Opinion of the Court 13
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.
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