UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

CASE NO. 22-81766-CIV-CANNON/Reinhart

ANDREW HORACE, 

Plaintiff,

v. 

ADDICTION RECOVERY INSTITUTE

OF AMERICA (ARIA),

Defendant.

__________________________________/ 

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 

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

Pro Se Amended Complaint (the “Motion”) [ECF No. 20]. The Court has reviewed the Motion, 

Plaintiff’s Response in Opposition [ECF No. 21], Defendant’s Reply [ECF No. 22], and the full 

record. For the reasons set forth below, the Motion [ECF No. 20] is GRANTED. 

RELEVANT BACKGROUND

The following facts are drawn from the Amended Complaint [ECF No. 19] and accepted 

as true for purposes of this Order.1

 

Plaintiff Andrew Horace, an African American male, worked as a Behavioral Health 

Technician at Defendant Addiction Recovery Institute of America (“ARIA”) from December 2021 

to February 2022 [ECF No. 19 ¶¶ 7, 21]. Immediately following his hiring, Plaintiff’s payroll rate 

was changed twice without his knowledge, with one of his paychecks only reflecting a $0.1875 

hourly rate [ECF No. 19 ¶¶ 26, 44]. Plaintiff brought these payroll issues to the attention of his 

1 The Court granted Defendant’s earlier Motion to Dismiss and dismissed Plaintiff’s initial 

Complaint [ECF No. 1-2 pp. 7–18] without prejudice [ECF No. 17]. In that Order, the Court 

granted “Plaintiff one final opportunity to file an amended complaint” [ECF No. 17 p. 6 (emphasis 

in original)]. 

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hiring manager, Jefferey Mann; the payroll director, Cliff Churchill; and the owner of ARIA, 

Shawn Leon [ECF No. 19 ¶ 27]. Despite escalating these issues, “Plaintiff had to get a wage 

attorney in order to get his wages back” [ECF No. 19 ¶ 27]. Plaintiff does not allege that he did 

not ultimately receive the wages owed to him.2 

This payroll change “caused humiliation, embarrassment, and emotional stress as 

non-black employees were not subjected to pay-rate changes without their consent” [ECF No. 19 

¶ 46]. Defendant “exuded disparate treatment to other black employee’s [sic] prior to Plaintiff’s 

hiring,” and “other black employee’s [sic] voluntarily separated due to disparate treatment in 

wages performed by Defendant” [ECF No. 19 ¶¶ 29–30]. Yolanda, another African American 

employee employed by Defendant during Plaintiff’s tenure, also received disparate treatment in 

her wages [ECF No. 19 ¶ 25]. Meanwhile, Betsy Galicia a “non-black employee” did not 

experience a pay-rate change during her tenure with Defendant [ECF No. 19 ¶ 32]. Plaintiff also 

references a Fair Labor Standards Act case filed by a separate employee against ARIA 

[ECF No. 19 ¶ 37]. 

On the basis of these allegations, Plaintiff filed a complaint in the Circuit Court of the 

Fifteenth Judicial Circuit in and for Palm Beach County, Florida, bringing a claim for race 

discrimination under the Florida Civil Rights Act (FCRA) and a claim for violations of the Equal 

Pay Act [ECF No. 1-2]. Following ARIA’s removal of this matter to federal court [ECF No. 1], 

the Court granted ARIA’s Motion to Dismiss and permitted Plaintiff one final opportunity to file 

an amended pleading [ECF No. 17]. Plaintiff subsequently filed the Amended Complaint, bringing 

the following claims:

2 This payroll issue was corrected, in part, during Plaintiff’s employment with ARIA. In his 

Response, Plaintiff notes that he “obtain[ed] wages that were not correctly paid” on January 21, 

2022, when he accompanied Cliff Churchill to a bank on Palm Beach Lakes Boulevard and “signed 

for the cash” he was given to correct the payroll issue [ECF No. 21 ¶ 4A]. 

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(1) Race Discrimination in Violation of Title VII [ECF No. 19 ¶¶ 50–65]

(2) Sex Discrimination in Violation of Title VII [ECF No. 19 ¶¶ 66–78]

(3) Race Discrimination in Violation of the FCRA [ECF No. 19 ¶¶ 79–87]

(4) Sex Discrimination in Violation of the FCRA [ECF No. 19 ¶¶ 88–101]

On February 28, 2023, ARIA filed the instant Motion, seeking dismissal for failure to state 

a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure [ECF No. 20]. The Motion is 

ripe for adjudication [ECF Nos. 21, 22].

LEGAL STANDARD

Rule 8(a)(2) requires complaints to provide “a short and plain statement of the claim 

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To avoid dismissal under 

Rule 12(b)(6), a complaint must allege facts that, if accepted as true, “state a claim to relief that is 

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); 

see Fed. R Civ. P. 12(b)(6). A claim for relief is plausible if the complaint contains factual 

allegations that allow “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 plausibility standard 

is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a 

defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 545). Conclusory allegations, 

unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent 

dismissal. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

DISCUSSION

Upon a review of the Amended Complaint, the Court agrees with ARIA that Plaintiff has 

failed to state a claim upon which relief can be granted as to either the race discrimination or sex 

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discrimination counts.

3

 

First, on Plaintiff’s race discrimination claims (Counts I and III), the Amended Complaint 

lacks factual allegations to plausibly state a claim for race discrimination. As ARIA argues,

Plaintiff has failed to remedy the deficiencies the Court identified in his original pleading 

[ECF No. 17 pp. 3–4], because the Amended Complaint still provides no allegations showing that 

Plaintiff was intentionally paid less because of his race. And, even if such allegations were present, 

the Amended Complaint is devoid of details demonstrating that “similarly situated non-black 

employees were treated any differently” than Plaintiff [ECF No. 20 p. 5]. 

To establish a claim for intentional race discrimination under Title VII and the FCRA in 

the absence of direct evidence of discrimination, as is the case here, a Plaintiff must establish that 

(1) he is a member of a protected class; (2) he was subjected to adverse employment action; (3) his 

employer treated similarly situated employees more favorably; and (4) he was qualified to do the 

job. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (stating elements for violations 

of Title VII of the Civil Rights Act). As was the case with Plaintiff’s original pleading, the 

Amended Complaint fails to establish two of these elements. The Amended Complaint alleges 

that Plaintiff is a member of a protected class [ECF No. 19 ¶ 7 (“The Plaintiff is a Black male.”)]

and that he “was fully qualified for his position” [ECF No. 19 ¶ 23]. However, the Amended 

Complaint does not provide factual allegations from which the Court can infer, even accepting all

facts as true, that Plaintiff was subjected to an adverse employment action or that ARIA treated 

similarly situated employees more favorably. The only action Plaintiff alleges he faced was an 

unexpected change in his pay rate, but as is evident from the Complaint, Plaintiff’s wages were 

3 Though Plaintiff brings claims under both Title VII and the FCRA, “Florida courts have held that 

decisions construing Title VII are applicable when considering claims under the Florida Civil 

Rights Act, because the Florida act was patterned after Title VII.” Harper v. Blockbuster Ent. 

Corp., 139 F.3d 1385, 1387 (11th Cir. 1998). As such, the Court will address Plaintiff’s federal 

and state claims together here. 

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eventually corrected, and any lost wages were returned to him [ECF No. 19 ¶ 27 (“Plaintiff had to 

get a wage attorney in order to get his wages back.”); see also ECF No. 21 ¶ 4A]. Plaintiff has 

also not shown that ARIA treated similarly situated employees of a different race more favorably. 

Plaintiff states in conclusory fashion that “Defendant treated non-black employee’s [sic] in 

similarly situation [sic] more favorably” [ECF No. 19 ¶ 24] and references Betsy Galicia, a “nonblack employee,” who did not experience a pay rate change [ECF No. 19 ¶ 32]. However, the 

Amended Complaint provides no information from which the Court can infer that Ms. Galicia is 

similarly situated to Plaintiff in all material respects.4 See Lewis v. City of Union City, Georgia, 

918 F.3d 1213, 1228 (11th Cir. 2019). Because of these deficiencies, even accepting all facts in 

the Complaint as true, Plaintiff has not stated a plausible claim for race discrimination under Title 

VII or the FCRA. 

Plaintiff’s sex discrimination claims (Counts II and IV) also merit dismissal for lack of 

exhaustion. Prior to filing a suit for violations of Title VII or the FCRA, a plaintiff must first 

exhaust his administrative remedies by filing a timely charge of discrimination with the relevant 

agency. EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002) (Title VII); 

Poulsen v. Publix Super Markets, Inc., 302 F. App’x 906, 907 (11th Cir. 2008) (FCRA). A 

plaintiff’s subsequent judicial complaint is limited to the scope of the investigation “which can 

reasonably be expected to grow out of the charge of discrimination” filed with the agency. 

Gregory v. Ga. Dep’t of Hum. Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (internal quotation marks 

omitted). Under Florida law, a timely charge must be filed “within 300 days of the last 

discriminatory act.” Joe’s Stone Crabs, Inc., 296 F.3d at 1271. The same time period applies to 

4 While Plaintiff’s Response states that “Betsy Galicia and Plaintiff worked for ARIA as 

Behavioral Health Technicians who performed work responsibilities exactly the same”

[ECF No. 21 ¶ 12], this is not sufficient to cure the deficient allegations in the Amended 

Complaint. See McKally v. Perez, 87 F. Supp. 3d 1310, 1317 (S.D. Fla. 2015) (“[A] complaint 

may not be amended by briefs in opposition to a motion to dismiss.”)

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charges brought under Title VII when the plaintiff initially institutes proceedings with a state or 

local agency, as Plaintiff did here [ECF No. 20-1 (charge filed with Palm Beach County Office of 

Equal Opportunity)]. 42 U.S.C. § 2000e-5(e)(1). 

Here, Plaintiff’s charge of discrimination is devoid of any allegation of sex discrimination. 

The charge, filed with the Palm Beach County Office of Equal Opportunity on March 23, 2022, 

states only that Plaintiff believed he was “discriminated against because of [his] race (African 

American)” [ECF No. 20-1 p. 2]. Plaintiff makes no reference in the administrative charge to 

differential treatment because of his gender. Because of this complete absence of allegations 

regarding sex discrimination, the Court cannot conclude that an investigation into sex 

discrimination would “reasonably be expected to grow” from the charge. Gregory, 355 F.3d at 

1280. Further, because the alleged sex discrimination Plaintiff complains of occurred more than 

a year ago [ECF No. 19 ¶ 21 (explaining that Plaintiff’s employment with ARIA ended in February 

2022)], any attempt by Plaintiff to now file a charge for sex discrimination rooted in the asserted 

allegations would be time-barred. See Joe's Stone Crabs, Inc., 296 F.3d at 1271; 42 U.S.C. 

§ 2000e-5(e)(1). Counts II and IV are due to be dismissed for Plaintiff’s failure to exhaust his 

administrative remedies.5

5 Because Plaintiff’s claims are due to be dismissed on procedural grounds, the Court need not 

address Defendant’s arguments regarding the merits of Plaintiff’s claims [ECF No. 20 p. 7]. 

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CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion to Dismiss the Amended Complaint [ECF No. 20] is GRANTED

2. Plaintiff’s race discrimination claims (Counts I and III) [ECF No. 19 ¶¶ 50–65, 79–87] 

are DISMISSED WITH PREJUDICE.

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3. Plaintiff’s sex discrimination claims (Counts II and IV) [ECF No. 19 ¶¶ 66–78, 88–101] 

are DISMISSED WITH PREJUDICE due to Plaintiff’s failure to exhaust his 

administrative remedies. 

4. The Clerk of Court is directed to CLOSE this case. Any scheduled hearings are 

CANCELED, any pending motions are DENIED AS MOOT, and all deadlines are 

TERMINATED.

DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 16th day of June 2023.

_________________________________

AILEEN M. CANNON

UNITED STATES DISTRICT JUDGE

cc: counsel of record

6 The Court previously granted Plaintiff “one final opportunity to file an amended complaint” 

[ECF No. 17 p. 6 (emphasis in original)]. Plaintiff’s Amended Complaint remains deficient and 

is thus due to be dismissed with prejudice. Further, the Court notes that any attempt by Plaintiff 

to file a new action would be untimely. Plaintiff was issued a Notice of Right to Sue on December 

21, 2022 [ECF No. 19 ¶ 14], and the ninety-day period for filing a judicial complaint following 

such notice being issued has expired. 42 U.S.C. § 2000e-5(e)(1). 

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