Hearn v. International Business Machines

Filing 22

ORDER: Defendant's Amended Motion to Dismiss Plaintiff's Amended Complaint or For More Definite Statement 19 is granted. Counts One, Two and Four are dismissed without prejudice for failure to state a cause of action. Plaintiff's Title VII and FCRA claims are dismissed with prejudice for failure to exhaust administrative remedies. Plaintiff's §1981 claims are dismissed without prejudice. Plaintiff may file a Second Amended Complaint in compliance with this Order within 14 days. If Plaintiff does not file a Second Amended Complaint within 14 days, the Court shall dismiss this action and close the case. Signed by Judge James S. Moody, Jr on 10/1/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BETTY HEARN, pro se,
Plaintiff,
v.

Case No: 8:13-cv-827-T-30EAJ

INTERNATIONAL BUSINESS
MACHINES,
Defendant.

ORDER
THIS CAUSE comes before the Court upon the Defendant, International Business
Machines Corporation’s Amended Motion to Dismiss Plaintiff’s Amended Complaint or
For More Definite Statement and Incorporated Memorandum of Law (Dkt. #19) and
Plaintiff Betty Hearn’s Response in Opposition to the Motion (Dkt. #21). Upon review
and consideration, it is the Court’s conclusion that the Motion should be granted.
Background
Plaintiff Betty Hearn, proceeding pro se, filed this lawsuit against her former
employer, Defendant International Business Machines (“IBM”).

Hearn’s original

complaint was divided into two headings, one labeled “Fraud” and the other
“Discrimination.” She referenced numerous statutes throughout the four-page complaint,
including: 18 U.S.C. § 245, 42 U.S.C. § 1981, the Older Workers Benefit Protection Act
(“OWBPA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), the Lilly

Ledbetter Fair Pay Act of 2009 (“LLFPA”), and Title VII of the Civil Rights Act of 1964.
Hearn failed to comply with Rule 8(a) and 10(b) of the Federal Rules of Civil Procedure
in her original complaint. Further, her allegations were vague, and Hearn failed to
properly assert the specific basis for the alleged discrimination that she suffered. As a
result, the Court granted IBM’s first Motion to Dismiss and allowed Hearn to amend her
complaint.
Hearn’s Amended Complaint more closely complies with the Federal Rules of
Civil Procedure; however, it does still suffer from vagueness, still references numerous
statutes throughout and comingles several of the causes of action. Nonetheless, the
Amended Complaint is in numbered paragraphs, and Hearn has separated the claims into
seven different counts: fraud, breach of contract, race discrimination, violation of the
Equal Pay Act, violation of the Lily Ledbetter Fair Pay Act, violation of the Older
Workers Benefit Protection Act, and retaliation. Hearn also includes a set of factual
allegations that are “common to all counts.”
For purposes of the Motion to Dismiss the Court takes as true Hearn’s factual
allegations in the Amended Complaint. Hearn, a black female over the age of 40, began
working for IBM in 1973 as a billing clerk. She was promoted and worked in several
different positions over several years. Her last position with IBM was in a department
that handled international deal support and proposal development. On March 1, 2010,
IBM informed Hearn that she would be included in an “SDHE1” resource reduction
action and that her position was being moved to Brazil to younger and less expensive
1

This acronym appears in the Amended Complaint without further elaboration.

2

employees. Her employment was scheduled to terminate on March 31, 2010. IBM
offered Hearn a SDHE severance package with twenty-six weeks of severance and
retraining benefits.

The Amended Complaint includes a copy of a portion of the

severance package, including the unsigned SDHE Separation Agreement. The agreement
allowed Hearn forty-five days to sign and return it to IBM and provided that she could
revoke the agreement within seven days after signing it. On March 29, 2010, Hearn sent
correspondence to IBM requesting clarification on several issues regarding her
separation. On March 30, 2010, Hearn received three additional forms for signature
including a Statement of Understanding (“SOU”), Employee Manager Checklist of
Financial Obligations (“CFO”) and a SDHE Retraining Assistance Form (“SRAF”);
copies of which Hearn attached to the Amended Complaint.
On March 31, 2010, Hearn signed and returned the forms to IBM. Hearn alleges
that she did so “trusting that IBM required all SDHE participants to sign the SOU and
CFO.” The same day Hearn sent a letter to IBM stating that her termination was
involuntary, she did not intend to retire, and she still required clarification on the SOU
and CFO. She received a letter from IBM congratulating her on her retirement as of
March 31, 2010. On April 1, 2010 Hearn’s termination became effective, and she did not
have a job, compensation, unemployment or social security benefits, severance benefits,
or access to extended insurance benefits under the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”).
On April 4, Hearn sent a certified letter revoking the SOU and CFO. She
communicated with IBM that there were several missing pages from the “exit package,”

3

to which an IBM representative responded that the missing pages were for separation
information for “manger use only.”

Hearn continued to communicate with IBM

regarding her objection to labeling her termination as “retirement,” and requesting
clarification on the documents she signed.

On May 10, 2010,2 Hearn initiated her

pension and health benefits from her retirement health account. She then contacted the
state of Florida to inform them of her pension, and they terminated her unemployment
insurance benefit payments. Hearn made several attempts to modify the SDHE, CFO and
SOU, but IBM informed her that it would only accept signed unmodified documents.
Ultimately, on June 10, 2010 Hearn signed the SDHE Agreement which she claims she
did while “under duress.” Hearn received a severance check from IBM, which she
rejected and returned. Hearn filed a dual Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) and the Florida Commission on
Human Relations (“FCHR”) on March 2, 2013, and commenced this litigation after
receiving a Dismissal and Notice of Rights from the EEOC.
I. Motion to Dismiss Standard
A complaint must contain a short and plain statement of the claim showing that the
pleader is entitled to relief. Fed. R.Civ.P. 8(a)(2). In reviewing a motion to dismiss, a trial
court accepts as true all factual allegations in the complaint and construes the facts in the
light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,
1262 (11th Cir. 2004). However, courts are not “bound to accept as true a legal

2

Although the complaint states “May 10, 2012,” based on the sequence of events
outlined in the Amended Complaint the court infers that Hearn intended to state May 10, 2010.

4

conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986).
In Bell Atlantic Corp. v. Twombly, the Supreme Court articulated the standard by
which claims should be evaluated on a motion to dismiss:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level.
550 U.S. 544, 555, 127 S.Ct, 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted).
In accordance with Twombly, Federal Rule of Civil Procedure 8(a) calls “for
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Twombly, 550 U.S. at 570). A plausible claim for relief must include “factual
content [that] allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Furthermore, “[p]ro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.” See
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Even so, the
requirements for pleading and dismissal are still applicable. Douglas v. Yates, 535 F.3d
1316, 1320 (11th Cir. 2008). Additionally, the incorporation by reference doctrine allows
a court to consider a document attached to the pleadings or to a motion to dismiss without
converting a Rule 12(b)(6) motion into a motion for summary judgment if the document

5

is central to the claim and its authenticity is not challenged. Horsley v. Feldt, 304 F.3d
1125, 1134-35 (11th Cir. 2002) (quoting Fed.R.Civ.P. 7(a) and 10(c)).
II. Defendant’s Motion to Dismiss
IBM filed its Motion to Dismiss arguing that Hearn failed to state a cause of action
on all counts because the Amended Complaint suffers from the same defects as the
original complaint. Namely, the Amended Complaint references multiple statutes in
every count, it comingles the claims and does not include factual allegations under each
count that relate to that cause of action. Further, IBM contends that the claims brought
under Title VII of the Civil Rights of 1964, as amended by the Civil Rights Act of 1991,
42 U.S.C. § 2000e, et. seq. (“Title VII”) and the Florida Civil Rights Act, Chapter 760,
Fla. Stat. (“FCRA”) are barred because Hearn failed to exhaust her administrative
remedies as required by law.
a. Plaintiff’s §1981 claims
Hearn alleges that IBM violated § 1981 throughout the Amended Complaint.
Section 1981 provides, in part, that “all persons in the United States shall have the same
right ... to make and enforce contracts ... as is enjoyed by white citizens.” 42 U.S.C. §
1981(a). The elements of a cause of action under § 1981 are: “(1) that the plaintiff is a
member of a racial minority; (2) that the defendant intended to discriminate on the basis
of race; and (3) that the discrimination concerned one or more of the activities
enumerated in the statute.” Lopez v. Target Corp., 676 F.3d 1230, 1233 (11th Cir. 2012)
(citing Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 891 (11th Cir. 2007)).
The statute defines the term “make and enforce contracts” to include the “making,

6

performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.” Id. at §
1981(b).
In the employment context, courts recognize claims under § 1981 for
discrimination. See Tucker v. Talladega City Sch., 171 Fed. Appx. 289, 294 (11th Cir.
2006). Hearn states that she is an African-American, which is a racial minority. She also
alleges that the discrimination relates to an enumerated activity; to make, perform and
modify her employment contract and the SDHE contract with IBM. However, she fails to
allege sufficient facts to show that IBM engaged in intentional racial discrimination. See
Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141,
3150, 73 L.Ed.2d 835 (1982) (holding that Ҥ 1981, like the Equal Protection Clause, can
only be violated by purposeful discrimination”) (emphasis added)).
Courts also recognize claims under § 1981 for retaliation. CBOCS W., Inc. v.
Humphries, 553 U.S. 442 (2008). To establish a § 1981 retaliation claim based on
circumstantial evidence, the plaintiff must show: (1) he engaged in statutorily protected
expression; (2) he suffered an adverse employment action; and (3) there is a causal
connection between the two events. Porter v. Am. Cast Iron Pipe Co., 427 Fed. Appx.
734, 737 (11th Cir. 2011) (citing Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.
2008). Hearn does not sufficiently allege that she engaged in statutorily protected
expression based on race. In order to constitute statutorily protected activity capable of
supporting a § 1981 retaliation claim, an employee's complaint must reasonably convey
that she is opposing discrimination based specifically upon race, versus some other type

7

of discrimination or injustice generally. See Pennington v. City of Huntsville, 261 F.3d
1262, 1265 n. 1 (11th Cir. 2001). Therefore, Hearn fails to state a cause of action for
discrimination and retaliation under § 1981. Hearn’s § 1981 claims are dismissed without
prejudice to file a Second Amended Complaint with sufficient facts to allege a claim
under § 1981 for discrimination or retaliation or both.
b. Plaintiff’s Title VII and FCRA Claims
The Amended Complaint alleges a claim for race discrimination, age
discrimination and retaliation under the FCRA and Title VII. To bring suit for
discrimination under the FCRA or Title VII, a plaintiff first must exhaust administrative
remedies, by filing a timely discrimination charge with the appropriate commission.
Poulsen v. Publix Super Markets, Inc., 302 Fed. Appx. 906, 907 (11th Cir. 2008). Hearn
filed a dual charge of discrimination with the EEOC and the FCHR. The charge, which
Hearn attached to the Amended Complaint, states that Hearn sought relief for sex
discrimination. She did not select the boxes for “race,” “age” or “retaliation.” She did
however choose the box for “other” and inserted the words “Equal Pay Act.” Hearn’s
narrative states as follows:
PERSONAL HARM
I was employed with Respondent from December 3, 1973 to March 31,
2010, when I was terminated. At the time of my termination, I was denied
severance benefits because I refused to give up the rights to my intellectual
property. I had a previous contract with Respondent in which it recognized
and disclaimed all rights to my intellectual property. I attempted to
negotiate the terms of my severance agreement with Respondent. I was
notified on May 26, 2010 that Respondent would not modify the
agreement.
DISCRIMINATION STATEMENT

8

I believe I have been discriminated against because of my sex, female, in
violation of the Equal Pay Act of 1983.
Hearn further indicates that the latest act of discrimination took place on May 26,
2010. IBM argues that based on these allegations in her charge, Hearn’s age and race
discrimination and retaliation claims in the Amended Complaint are not within the scope
of the charge of discrimination and should therefore be dismissed with prejudice.
The starting point of ascertaining the scope of a judicial complaint alleging
employment discrimination is the administrative charge and investigation. Anderson v.
Embarq/Sprint, 379 Fed. Appx. 924, 926 (11th Cir. 2010). “A Title VII plaintiff's judicial
complaint is limited by the scope of the EEOC investigation which can reasonably be
expected to grow out of the administrative charge of discrimination.” Id. “Judicial claims
which serve to amplify, clarify, or more clearly focus earlier EEO complaints are
appropriate.” Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989). See also Anderson,
379 F. App'x at 926 ([e]ven new claims—“are allowed if they amplify, clarify, or more
clearly focus the allegations in the EEOC complaint ....”). “Allegations of new acts of
discrimination, offered as the essential basis for the requested judicial relief, are not
appropriate.” Wu, 863 F.2d at 1547. Nonetheless, courts are “extremely reluctant to
allow procedural technicalities to bar claims brought under [Title VII].”

Sanchez v.

Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir. 1970). As such, “the scope of an
EEOC complaint should not be strictly interpreted.” Id. at 465.
Since Hearn did not include any claims for race or age discrimination or retaliation
in her charge, she cannot bring these claims in her complaint unless she can show that
these claims serve to amplify, clarify, or more clearly focus her sex discrimination claim.
9

Hearn’s charge of discrimination does not allege any facts that would suggest or create an
inference of race discrimination, age discrimination or retaliation. There is no
information on the charge about her race, nor does she include any facts showing her
opposition to an unlawful employment practice under Title VII. The judicial claims
raised in her Amended Complaint cannot be reasonably expected to grow out of the
EEOC charge Hearn filed. See Francois v. Miami Dade County, Port of Miami, 432 Fed.
Appx. 819, 822 (11th Cir. 2011) (holding that plaintiff failed to administratively exhaust
his national origin discrimination claim because he did not check the box for national
origin, or allege any facts in the narrative section that could be construed to raise such a
claim of discrimination.).
Further, Hearn filed her charge too late. When the discriminatory act takes place
in a deferral state such as Florida, the plaintiff must file a charge with the state agency
within 300 days of the last discriminatory act to be timely for purposes of Title VII, the
ADA, and the ADEA; Poulsen, 302 Fed. Appx. at 907 n.2; and within 365 days for
purposes of the FCRA. See Fla. Stat. § 760.11(1); Id. citing Woodham v. Blue Cross &
Blue Shield of Fla., Inc., 829 So. 2d 891, 894 (Fla. 2002)). Hearn filed the charge almost
three years after the last act of discrimination alleged. Therefore, the Court concludes
Hearn’s FCRA and Title VII claims for race and age discrimination and retaliation are
barred as a matter of law. These claims are dismissed with prejudice since Hearn cannot
cure her failure to exhaust the administrative remedies.

10

c. Fraud Claim
Hearn labels her first count as “fraud” and recites a cause of action for fraudulent
misrepresentation. Under Florida law, in order to state a viable cause of action for
fraudulent misrepresentation the following four elements must be present: 1) a false
statement concerning a material fact; 2) the representor's knowledge that the
representation is false; 3) an intention that the representation induce another to act on it;
and 4) consequent injury by the party acting in reliance on the representation. Johnson v.
Davis, 480 So.2d 625, 627 (Fla. 1985). Hearn’s Amended Complaint does not allege a
cause of action for fraudulent misrepresentation. It states that Hearn “trust[ed] that IBM
required all SDHE participants to sign the SOU and CFO” when she signed the forms and
returned them to IBM. Nowhere in the complaint does she allege facts showing that IBM
misrepresented any of the terms in the SOU and CFO or SDHE Agreement. After making
several inquiries to clarify the terms, to which she did not receive a satisfactory response,
she voluntarily signed the SDHE. However, she does not allege or point to any false
statement made by IBM to her, upon which she relied.
Hearn’s allegations set forth a second theory for fraudulent misrepresentation. She
alleges that IBM made false statements to the human resource department for IBM and
government agencies, by stating that her termination was voluntary. She claims IBM
knew the recipients would rely upon the statement to deny her unemployment insurance,
COBRA benefits, and retention of her health benefits account. However, Hearn does not
sufficiently allege that IBM intended to induce the government to deny her

11

unemployment insurance. Hearn admits that she contacted the state when she commenced
her pension benefits, and as a result of her action she lost her unemployment benefits.
This count also states that IBM’s breach of contract violated § 772.11, Florida
Statutes. That statute creates a civil cause of action for crimes of theft and abuse or
neglect of the elderly. Hearn’s Amended Complaint does not contain any facts supporting
this cause of action. Therefore, to the extent Hearn’s breach of contract claim relies on
that statute it does not state a cause of action. Hearn essentially recites the elements but
does not provide the supporting factual allegations. Therefore, Hearn failed to state a
cause of action for fraudulent misrepresentation. This count is dismissed without
prejudice to Hearn to file a Second Amended Complaint with proper factual allegations
showing that IBM made false representations to her, what those false statements were,
what the statements induced her to do and the specific damages she suffered as a result.
d. Breach of Contract Claims
Hearn alleges that IBM breached their 1996 employment contract and the 2010
severance contract under Florida and federal law. Hearn bases this claim on 42 U.S.C.
§ 1981 and § 772.11, Florida Statutes. As discussed earlier, Hearn does not state a cause
of action for a § 1981 claim for racial discrimination and the Florida statute does not
apply to this set of facts. Further, Hearn does not even allege a basic breach of contract
cause of action. The elements of a breach of contract action are (1) a valid contract; (2) a
material breach; and (3) damages. Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914
(11th Cir. 1999)(citing Abruzzo v. Haller, 603 So.2d 1338, 1340 (Fla. 1st DCA 1992)).
She identifies the employment contract and the SDHE Agreement as the contracts at

12

issue and details damages, but does not sufficiently allege how IBM breached these
contracts. Therefore, Hearn’s breach of contract claim is dismissed without prejudice to
file a Second Amended Complaint with sufficient facts describing the material terms that
IBM allegedly breached in each of the contracts.
e. Equal Pay Act (“EPA”) Claims
Hearn alleges that IBM denied her “equality in compensation and fringe benefits
which were and continue to be less than that of others and/or who held rights to
intellectual property” (emphasis in original). To set forth a prima facie case of
discrimination under the EPA, Hearn must allege that she was paid less than a worker of
the opposite sex who held a job requiring equal skill, effort and responsibility to the job
held by her, and who performed that job under similar working conditions. Corning
Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); see
Steger v. General Elec. Co., 318 F.3d 1066, 1077-78 (11th Cir. 2003); Irby v. Bittick, 44
F.3d 949, 954 (11th Cir. 1995). Further, the EPA, unlike Title VII, does not require
exhaustion of administrative remedies. Miranda v. B & B Cash Grocery Store, Inc., 975
F.2d 1518, 1527 (11th Cir. 1992). However, Hearn has not set forth sufficient facts to
support this claim in her Amended Complaint. Therefore, the claim is dismissed without
prejudice to Hearn to file a Second Amended Complaint alleging sufficient facts to raise
this claim.
f. Violation of the Lily Ledbetter Fair Pay Act (“LLFPA”)
Claims
The LLFPA does not create an independent cause of action in itself, it serves to
amend the Rehabilitation Act of 1973, § 504(a), 29 U.S.C.A. § 794(a), by providing that
13

the statute of limitations for filing an EEOC charge alleging pay discrimination resets
with each paycheck affected by a discriminatory decision. Tarmas v. Sec'y of Navy, 433
Fed. Appx. 754, 760 (11th Cir. 2011).

Therefore, under the Act, an “unlawful

employment practice” occurs: (1) “when a discriminatory compensation decision or other
practice is adopted,” (2) “when an individual becomes subject to a discriminatory
compensation decision or other practice,” and (3) “when an individual is affected by
application of a discriminatory compensation decision or other practice, including each
time wages, benefits, or other compensation is paid, resulting in whole or in part from
such a decision or other practice.” Id. at 1024–25 (citing 42 U.S.C. § 2000e–5(e)(3)(A)).
Therefore, to the extent that Hearn’s complaint attempts to bring an independent cause of
action for unequal pay under the LLFPA, the claim is dismissed with prejudice.
g. Violation of Older
(“OWPBA”) Claims

Workers

Benefit

Protection

Act

Hearn alleges that IBM violated the OWBPA which imposes specific requirements
for releases covering ADEA claims. Oubre v. Entergy Operations, Inc., 522 U.S. 422,
424 (1998) (citing OWBPA, § 201, 104 Stat. 983, 29 U.S.C. §§ 626(f)(1)(B), (F), (G)).
The OWBPA governs the effect under federal law of waivers or releases on ADEA
claims and incorporates no exceptions or qualifications. Id. at 427. It does not create a
separate cause of action, but instead “creates a series of prerequisites for knowing and
voluntary waivers and imposes affirmative duties of disclosure and waiting periods.” Id.
If an employee’s voluntary written waiver of rights does not comply with the
requirements of the OWBPA, it is unenforceable against her insofar as it purports to
waive or release any ADEA claim. Id.
14

Hearn’s Amended Complaint claims that IBM harassed her “to induce reliance on
a contract containing ambiguous terms and conditions.” To the extent that Hearn alleges
an age discrimination suit under the ADEA, the claim is barred for failing to exhaust all
of her administrative remedies. See Poulsen, 302 Fed. Appx. at 907. To the extent Hearn
attempts to state an independent cause of action for violation of OWBPA, none exits.
Therefore, Hearn fails to state a cause of action for violation of OWBPA and the claim is
dismissed with prejudice.
Conclusion
Hearn’s Amended Complaint attempts to allege several causes of action based on
IBM’s termination of her employment and the separation documents she signed including
the SDHE Agreement, SOU, and CFO. Hearn’s allegations and causes of action are not
completely clear. The Court has made reasonable inferences to view the factual
allegations in the light most favorable to the Plaintiff. However, Hearn has failed to state
a cause of action as to all of her counts. Hearn may file a Second Amended Complaint
more properly asserting the causes of action that the Court dismissed without prejudice.
Hearn failed to exhaust her administrative remedies as to her claims for age and race
discrimination and retaliation. Therefore, Hearn may not raise these claims in her Second
Amended Complaint. The counts for violation of the LLFPA and OWBPA do not state a
cause of action for relief because those statutes do not independently create a cause of
action, therefore Hearn may not raise independent causes of action for these claims in her
Second Amended Complaint. Hearn may raise claims for fraud, breach of contract, and
for violations of § 1981, and the Equal Pay Act. Therefore, if Hearn chooses to file a

15

Second Amended Complaint, Hearn must sufficiently allege the surviving claims as
required by law as outlined in this Order.
It is ORDERED AND ADJUDGED that:
1.

Defendant International Business Machines Corporation’s Amended
Motion to Dismiss Plaintiff’s Amended Complaint or For More Definite
Statement and Incorporated Memorandum of Law (Dkt. #19) is granted.

2.

Counts One, Two and Four are dismissed without prejudice for failure to
state a cause of action.

3.

Plaintiff’s Title VII and FCRA claims are dismissed with prejudice for
failure to exhaust administrative remedies.

4.

Plaintiff’s §1981 claims are dismissed without prejudice.

5.

Plaintiff may file a Second Amended Complaint in compliance with this
Order within fourteen days of the date of this Order.

6.

If Plaintiff does not file a Second Amended Complaint within fourteen days
of the date of this Order, the Court shall dismiss this action and close the
case.

DONE and ORDERED in Tampa, Florida, this 1st day of October, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2013\13-cv-827-mtd19.docx

16