Summary
dismissing federal law claim against DOC as barred by Eleventh Amendment
Summary of this case from Henry-Evans v. State, Florida Department of CorrectionsOpinion
No. 3:00-CV-1355-J-21-TEM
January 14, 2002
ORDER
Filed herein is Defendant's Motion to Dismiss Plaintiff's Complaint (Dkt. 6) and Defendant's response in opposition thereto (Dkt. 11).
I. BACKGROUND
Plaintiff, Manoher R. Bearelly, M.D., claims that Defendant, State of Florida, Department of Corrections, discriminated against him due to his age and disability when it terminated him. Plaintiff alleges that he is a licensed physician who was employed by Defendant as a psychiatrist from August 25, 1997, until his termination on February 11, 1999, at which time Plaintiff was fifty-seven years old. Plaintiff states that he is physically impaired due to the residual affects of childhood polio, that he walks with a limp, and that he is generally weaker on the left side of his body.
As a result of this left-sided weakness, Plaintiff claims that he developed a medical condition in his left shoulder for which he required leave to rest and seek treatment. Plaintiff allegedly requested and obtained such leave from Defendant in September 1998 and returned to work in January 1999. The next month, however, Plaintiff claims that his physician directed him to undergo physical therapy for his shoulder ailment three times per week for four to six weeks. When Plaintiff informed his supervisor, Executive Medical Director Tuong Nguyen ("Nguyen"), and requested approval of partial days off for the physical therapy appointments, Nguyen allegedly refused his request because the recommended therapy visits were too frequent and for too long a period of time. According to Plaintiff, Nguyen also commented negatively about Plaintiff's polio, physical condition, and age. On the next day, February 11, 1999, Plaintiff alleges that Defendant terminated him because of his disability, perceived disability, and age. Plaintiff also claims that his termination was in retaliation for his assertion of rights under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132.
Thereafter, Plaintiff filed administrative charges of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") which issued a notice of the right to sue within ninety days ("Notice"). The Notice was dated September 21, 2000 and Plaintiff states that he received the Notice no earlier than September 23, 2000. This lawsuit was filed on December 21, 2000. Plaintiff requests damages, declaratory relief, and injunctive relief.
The Notice from the EEOC is not attached to the Complaint. These dates are those alleged by Plaintiff.
II. MOTION TO DISMISS STANDARD
It is well established that "a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would not be entitled to recover under any state of facts which could be proved in support of his claim." Cook Nichol, Inc. v. Plimsoll Club, 451 F.2d 505, 506(5th Cir. 1971); accord Conley v. Gibson, 355 U.S. 41, 45-46(1957). In evaluating the sufficiency of a complaint for purposes of a motion to dismiss for failure to state a cause of action under Rule 12(b)(6), the allegations of the complaint must be accepted as true, Hishon v. King Spalding, 467 U.S. 69, 73(1984), and viewed in a light most favorable to the plaintiff. See Cannon v. Macon County, 1 F.3d 1558, 1565(11th Cir. 1993) (citing Scheuer v. Rhodes, 416 U.S. 232(1974)).
In Bonner v. City of Prichard, 661 F.2d 1206(11th Cir. 1981)( en banc), the Eleventh Circuit adopted as binding precedent all decisions rendered by the former Fifth Circuit prior to October 1, 1981.
III. MOTION TO DISMISS
A. Count I — Discrimination Based on Disability
Preliminarily, the Court notes that Plaintiff's Count I purports to combine two distinct claims: (1) termination of Plaintiff because of disability (actual or perceived) and (2) retaliatory termination of Plaintiff. The combining of such claims in one count renders the Complaint confusing and deficient. As hereinafter noted, any amended complaint filed by Plaintiff will have to appropriately state such claims separately.
The facts alleged in Count I are as previously stated in this Order. Plaintiff alleges that he has a disability and is a qualified individual within the meaning of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, ("ADA"). Defendant argues that Count I fails to state a cause of action for discrimination under the ADA for two reasons. First, because Plaintiff's Complaint makes merely a conclusory statement that he is disabled without alleging facts establishing a physical or mental impairment which substantially limits one or more of his major life activities within the meaning of the ADA. Defendant's second argument addressed to Count I is that the Complaint fails to adequately allege a claim based on Defendant's perception of a disability. Defendant asserts that Plaintiff fails to allege that Defendant regarded Plaintiff as having an impairment which was limiting to the Plaintiff in a major life activity within the meaning of the ADA. Defendant does not address Plaintiff's claim of retaliation.
After the subject motion to dismiss was filed, Defendant supplemented its argument with the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356(2001). In Garrett, the Supreme Court held that the Eleventh Amendment bars suits in federal court by state employees to recover money damages by reason of the state's failure to comply with Title I of the ADA. The Court did not, however, limit individuals from seeking injunctive relief in federal court. See Garrett, 531 U.S. at 374, n. 9.
Plaintiff herein requests money damages and other relief under Title I of the ADA. Under Garrett, Plaintiff's claim for monetary relief — including lost wages, lost benefits, and punitive damages — is due to be dismissed with prejudice. Garrett, however, does not preclude ADA actions against a state brought for injunctive or other equitable relief. Therefore, the Court further considers Defendant's Motion to Dismiss as it relates to the equitable relief requested.
The Plaintiff alleges that Count I is based on the "The American [sic] with Disabilities Act of 1990, Title II, 42 U.S.C. §. 12132 et seq." However, the allegations of the Complaint, taken together with Plaintiff's argument m opposition to the Motion to Dismiss, reveal that Plaintiff is proceeding under Title I of the ADA, which deals with employment discrimination. Title II deals with public services and § 12132 defines discrimination in supplying public services to the disabled. Therefore, the statutory provision applicable to Plaintiff's purported disability claims is 42 U.S.C. § 12112; the Court will discuss Plaintiff's claims as such.
Title I of the ADA prohibits discrimination against a qualified individual because of his or her impairment with regard to certain employment practices, including the one at issue here — discharge.See 42 U.S.C. § 12112(a). To establish a prima facie case of discrimination under the ADA, the plaintiff must prove that he or she: (1) is disabled; (2) is a qualified individual; and (3) was discriminated against by the employer because of the disability. See Reed v. Heil Co., 206 F.3d 1055, 1061(11th Cir. 2000).
See note 3 supra.
With respect to these three elements, Defendant's argument focuses on the first element. Defendant asserts that Plaintiff has failed to properly allege that he is disabled because he has not alleged facts demonstrating that he is disabled under the ADA's definition of the term "disability." Disability, with respect to an individual, is defined in the ADA as:
Defendant does not address Plaintiff's allegations that he is a qualified individual. Defendant refutes the third element.
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2) (emphasis added).
As recently pointed out by the Supreme Court in Toyota Motor Manufacturing. Kentucky. Inc. v. Williams, No. 00-1089, 2002 WL 15402(U.S. Jan. 8, 2002), "[t]here are two potential sources of guidance for interpreting the terms of [the statute's definition of disability] — the regulations interpreting the Rehabilitation Act of 1973, 87 Stat. 361, as amended, 29 U.S.C. § 706(8)(B) (1988 ed.), and the EEOC regulations interpreting the ADA." With respect to the former, "[t]he Rehabilitation Act regulations issued by the Department of Health, Education, and Welfare (HEW) in 1977, . . . appear without change in the current regulations issued by the Department of Health and Human Services" at 45 C.F.R. § 84.1, et seq. Toyota Motor Manufacturing, 2002 WL 15402 at *7. The Supreme Court noted that the "HEW regulations are of particular significance because at the time they were issued, HEW was the agency responsible for coordinating the implementation and enforcement of§ 504 of the Rehabilitation Act. . . ." Id.
With respect to the EEOC regulations ( 29 C.F.R. § 1630.1, et seq.) interpreting the ADA, the Supreme Court observed that, although the "persuasive authority of the EEOC regulations is less clear. . . [nevertheless because] both parties accept the EEOC regulations as reasonable, we assume without deciding that they are, and we have no occasion to decide what level of deference, if any, they are due." Id.
The persuasiveness of the EEOC regulations aside, it is clear that the Complaint herein, although sufficiently alleging a "physical impairment," is inadequate to allege a disability under the ADA, i.e. an impairment (actual or perceived) which substantially limits one or more of the major life activities of Plaintiff.
The key allegations in the complaint are: Plaintiff has polio (Dkt. 1 at ¶ 8); the polio has caused Plaintiff to be physically disabled since childhood (Id.); the polio caused Plaintiff to walk with a limp "due to the residual weakness and atrophy affecting his left leg" (Id.); the polio caused Plaintiff to develop a "very painful medical condition in his left shoulder" (Id. at ¶ 10); the shoulder condition caused Plaintiff to be absent from work from September 1998 to January 1999 (Id. at ¶¶ 11 and 12); and the shoulder condition required extensive physical therapy (three times per week for four to six weeks)(Id. at ¶ 13).
The "major life activity" relied upon by a person seeking redress under the ADA is critical, as is the statutory requirement that the plaintiff demonstrate that the impairment "substantially limited" him in his major life activity. See Toyota Motor Manufacturing, 2002 WL 15402. The HEW Rehabilitation Act regulations provide a list of examples of major life activities, including "walking, seeing, hearing," and "performing manual tasks." 45 C.F.R. § 84.3(j)(2)(ii)(2001). According to the EEOC regulations, major life activities include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i). They also include sitting, standing, lifting, and reaching. See 29 C.F.R. Pt. 1630, App. § 1630.2(i).
Although the HEW regulations do not define the term "substantially limits," the EEOC regulations do define the term to mean:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.29 C.F.R. § 1630.2(j)(1). The EEOC regulations also list a number of factors to be considered when determining whether an individual is substantially limited in a major life activity. 29 C.F.R. § 1630.2(j)(2)(i)-(iii).
"The following factors should be considered in determining whether an individual is substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment."29 C.F.R. § 1630.2(j)(2)(i)-(iii).
As above stated, Plaintiff's Complaint fails to allege facts supporting the essential requirement that the impairment (actual or perceived) substantially limits one or more of the major life activities of Plaintiff. The major life activity allegedly limited is not even identified. While most of the cases relied upon by Defendant are summary judgment cases and, although the Eleventh Circuit has apparently not directly addressed the issue of the necessity of alleging facts demonstrating that the impairment (actual or perceived) be one that substantially limits one or more major life activities, this Court is persuaded that this component of Plaintiff's ADA claims is so foundational that it must not be left to conjecture and that the Plaintiff must be required to better articulate in his complaint the basis for such claims.
Such cases include Kelly v. Drexel University 94 F.3d 102, 105(3d Cir. 1996) (affirming district court's finding as a matter of law that the plaintiff's impairment did not rise to the level of a disability); Hamm v. Runyon, 51 F.3d 721, 724 n. 3 (7th Cir. 1995) (affirming district court's finding that the plaintiff did not prove that he was perceived as having a disability); Stone v. Entergy Services. Inc., 1995 WL 368473(E.D. La. 1995) (granting summary judgment even though the plaintiff had submitted evidence regarding his residual partial paralysis from polio because the impairment was not a disability); and Penny v. United Parcel Service, 128 F.3d 408 (6th Cir. 1997) (affirming district court's determination that "[a]lthough the plaintiff may well experience some difficulty in walking, the probative evidence. . . does not raise a genuine issue of material fact as to whether the plaintiff's impairment substantially limits his ability to walk.").
A summary judgment case relied upon by Plaintiff is Belk v. Southwestern Bell Tele. Co., 194 F.3d 946(8th Cir. 1999). In Belk, the Eighth Circuit approved the district court's finding that the plaintiff was disabled because of the residual effects from polio despite the plaintiff's use of a leg brace and ability to engage in many physical activities, but reversed and remanded due to other errors.
The Court recognizes that this issue regarding the necessity of pleading such facts is not a settled issue. See Poindexter v. Atchison, Topeka and Santa Fe Railway Co., 168 F.3d 1228, 1232(10th Cir. 1999) (major life activity must be alleged); EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 852 and 254(6th Cir. 2001) (major life activity need not be alleged); Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113, 117 n. 2(3d Cir. 1998)(plaintiff's allegations sufficient).
Turning now to the purported retaliation claim of Count I, Plaintiff alleges that "the adverse employment decisions made by Defendant were done in retaliation for [Plaintiff] having asserted his rights under the ADA." (Dkt. 1, ¶ 22). Under the ADA, a claim for retaliation is separate and distinct from a discrimination claim. The ADA's prohibition on retaliation is set forth as follows:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.42 U.S.C. § 12203(a). It follows from this statutory language, that "[t]o establish a prima facie case of retaliation, a plaintiff must show: (1) statutorily protected expression; (2) adverse employment action; and (3) a causal link between the protected expression and the adverse action." Stewart v. Happy Herman's Cheshire Bridge. Inc., 117 F.3d 1278, 1287(11th Cir. 1997). Plaintiff's conclusory statement that "the adverse employment decisions made by Defendant were done in retaliation for [Plaintiff] having asserted his rights under the ADA" in paragraph twenty-two of the Complaint is not sufficient to state a claim for retaliation.
As earlier stated, under Garrett, Plaintiff may not sue the State of Florida for monetary damages under Title I of the ADA and those claims will, therefore, be dismissed with prejudice. Plaintiff's remaining ADA claims, for the reasons stated above, will be dismissed but with leave to amend. Any such amended claims may seek only equitable relief. As such, Plaintiff is not entitled to trial by jury on claims seeking equitable relief; his demand for jury trial is, therefore, due to be denied.
B. Count II — Discrimination Based on Age
Plaintiff alleges that Defendant discriminated against him in the "terms and conditions of employment" because of his age of fifty-seven (57) years in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 ("ADEA"). Defendant argues that, under Kimel v. Florida Bd. of Regents, 528 U.S. 62(2000), the Supreme Court has found that the application of the ADEA to the states violates the Constitution. Therein, argues Defendant, the Supreme Court held that age is not a classification that rises to the level justifying such congressional interference and, as such, Congress did not have the power to abrogate the Eleventh Amendment immunity through the enactment of the ADEA. With no abrogation of the state's sovereign immunity from suit, Defendant maintains that all claims under the ADEA against the Defendant are barred. Plaintiff apparently concedes that Kimel applies and that his ADEA claims against Defendant are completely barred under the Eleventh Amendment. (See Dkt. 11 at 4, n. 1). However, Plaintiff points out that he also included allegations of discriminatory violations under § 112.044, Florida Statutes. He claims that while Kimel stands for the proposition that his federal cause of action fails, he still has properly alleged violations under state statutes. The Court will address that argument in the next section. As to Plaintiff's ADEA claims, these claims are due to be dismissed with prejudice.
C. Count III — Discrimination Based on Age in Violation of Section 112.044, Florida Statutes
By this Count, Plaintiff alleges that he was subjected to discrimination in the terms and conditions of employment because of his age — fifty-seven years — in violation of the Florida Age Discrimination in Employment Act, Florida Statutes, § 112.044 ("FL-ADEA"). With regard to his age discrimination claim, the pertinent allegations in the Complaint regarding Plaintiff's age are: Plaintiff's supervisor, Nguyen, commented negatively about his age and Plaintiff was terminated due to his age. (Dkt. 1 at ¶¶ 15 and 17).
Defendant argues that Plaintiff's claims under the FL-ADEA are barred as a matter of law by Eleventh Amendment Immunity. Defendant argues that there must be an "explicit" and "definite" waiver of Eleventh Amendment immunity to suit in federal court within the FL ADEA for this Court to exercise jurisdiction. With no explicit waiver, Defendant argues that Plaintiff's state law claims are due to fail as a matter of law. In response, Plaintiff argues that his state law claims are substantially related to the federal law claims over which this Court has original jurisdiction and, therefore, this Court may exercise supplemental jurisdiction under 28 U.S.C. § 1367.
Section 768.28(17), Florida Statutes, states:
(17) No provision of this section, or of any other section of the Florida Statutes, whether read separately or in conjunction with any other provision, shall be construed to waive the immunity of the state or any of its agencies from suit in federal court, as such immunity is guaranteed by the Eleventh Amendment to the Constitution of the United States, unless such waiver is explicitly and definitely stated to be a waiver of the immunity of the state and its agencies from suit in federal court. This subsection shall not be construed to mean that the state has at any time previously waived, by implication, its immunity, or that of any of its agencies, from suit in federal court through any statute in existence prior to June 24, 1984.
With regard to supplemental jurisdiction, 28 U.S.C. § 1367 provides:
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
The Eleventh Amendment provides: "The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or Citizens or Subjects of any Foreign State." The U.S. Supreme Court has generally construed the Eleventh Amendment in line with principles of sovereign immunity; Congress or the individual states may waive this immunity. See Yeary v. State of Florida, Department of Corrections, 1997 WL 284648, *2, 73 FEP Cases (BNA) 1483, 1485-86(M.D. Fla. 1997) (citing Pennhurst State Sch. and Hosp v. Halderman, 465 U.S. 89(1984)). A state may waive its Eleventh Amendment immunity and consent to suit in federal court. See Gamble v. Florida Dept. of Health and Rehab. Services, 779 F.2d 1509, 1512 (11th Cir. 1986). Such a waiver may be made only by express legislative action of the state. See Edelman v. Jordan, 415 U.S. 651, 673(1974). A state's waiver of its Eleventh Amendment immunity must be by "the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction." Yeary, 1997 WL 284648 (alterations in original) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 [38 FEP Cases 97](1985)). The state "must specify [its] intention to subject itself to suit in federal court." Id. (alterations in original) (quoting Atascadero, 473 U.S. at 241). Generally, therefore, states are immune from suits based on state law claims in federal court under Eleventh Amendment immunity.
The Plaintiff has not directed the Court to an express waiver of sovereign immunity for suit over discriminatory practices in federal court, nor has the Court's own research located such a provision. Without a waiver of sovereign immunity, Plaintiff's state law claim of age discrimination is due to be dismissed. While the FL-ADEA may well provide for Plaintiff to proceed against the state in state court, the Court does not here deal with any issue related thereto.
Indeed, Plaintiff's Memorandum (Dkt. 11) is of no help to the Court on the Defendant's Eleventh Amendment arguments.
The Court notes that 28 U.S.C. § 1367, the alleged basis of subject matter jurisdiction of Plaintiff's FCRA claim in this Court, cannot override the Eleventh Amendment. See Pennhurst, 465 U.S. at 121. ("[N]either pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment.").
D. Count IV — Violation by State Employer of the Due Process Clause of the Fourteenth Amendment to the United States Constitution under 42 U.S.C.A. § 1983
In Count IV, Plaintiff alleges that he was terminated from his employment with Defendant solely because of his age and disability in a manner of discharge that "foreclosed his ability to engage in a wide range of employment possibilities in the public and private sectors." He further claims that his "liberty interest has been infringed upon because he, as a government employee, was fired for publicly announced reasons of incompetence." Plaintiff asserts that Defendant acted under color of state law in denying him his due process rights, in violation of 42 U.S.C. § 1983.
Defendant argues that this claim must also fail for several reasons, primarily because the Defendant is not a "person" for the purposes of § 1983 and because the Plaintiff's § 1983 claims are barred by the Eleventh Amendment. Defendant also asserts that, even if the claims are allowed, the Plaintiff cannot recover punitive damages under § 1983.
Clearly, Plaintiff's claims against Defendant under Count IV are barred under Eleventh Amendment immunity. Accordingly, Defendant is entitled to dismissal with prejudice as to the Count IV claims.
Plaintiff appears to concede the Eleventh Amendment bar and, in a footnote on the last page of his memorandum (Dkt. 11), "requests leave to amend his Complaint to add his former supervisors and managers as defendants to this case." As counsel for Plaintiff should certainly know, the Court does not act upon matters such as that based upon a "request" in a footnote. Such matters are procedurally governed by the applicable Federal Rules of Civil Procedure and the Local Rules of this Court.
Upon consideration of the foregoing it is hereby ORDERED:
1. With respect to Count I, Plaintiff's demands for monetary damages are DISMISSED with prejudice; the claims of Count I for equitable relief are DISMISSED without prejudice and with leave to amend by filing an amended complaint limited to equitable claims under the ADA and rectifying the deficiencies of Count I previously noted herein.
To the extent that Plaintiff intends to assert more than one claim — e.g. claim for termination because of disability and claim for retaliatory discharge due to exercise of rights under the ADA — such claims shall be stated in separate counts with sufficient factual allegations supporting each such claim. Although the Court believes that it is preferable that the Plaintiff state in separate counts his purported two theories of ADA discrimination: (I) termination based on disability; and (2) termination based on perceived disability, the Court does not rule that the Complaint is dismissable by reason of Plaintiff's purporting to combine both such theories of ADA discrimination in one count.
2. Counts II, III, and IV are DISMISSED with prejudice.
3. Plaintiff's demand for trial by jury is DENIED.
4. Plaintiff's amended complaint, if any, filed as authorized in paragraph 1. above, shall be filed on or before February 22, 2002.
5. Plaintiff's counsel (Kenneth B. Jacobs, Esq.), whose motion (Dkt. 22) for leave to withdraw as counsel of record was granted by the Magistrate Judge on January 9, 2002, (Dkt. 25), shall forthwith serve a copy of this Order on the Plaintiff and file a certificate verifying such service. In paragraph 4. hereof, the Court has given Plaintiff an extended period for filing an amended Complaint in view of the Magistrate Judge's said Order