Upton v. Day & Zimmerman NPS
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 4/1/2016. (AVC)
2016 Apr-01 PM 03:50
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DAY & ZIMMERMAN NPS,
CIVIL ACTION NO.
In this employment discrimination case, plaintiff Michael
Upton (“Upton”) alleges that defendant Day & Zimmerman NPS (“D &
Z”) unlawfully refused to hire him and conducted prohibited medical
inquiries, in violation of the Americans with Disabilities Act and
§ 504 of the Rehabilitation Act. D & Z is a federal contractor,
providing services to the government through entities such as the
Tennessee Valley Authority. (Doc. 1 at 2-3, ¶ 6). D & Z filed a
partial motion to dismiss, only seeking dismissal of Upton’s
Rehabilitation Act claim, because it contends that it does not
receive “Federal financial assistance,” a requirement to establish
liability. 29 U.S.C. § 794(a). Upton only alleges that D & Z
receives federal assistance by virtue of the contracts. (Doc. 1 at
2-3, ¶ 6).
institutions receiving federal financial assistance.” Moore v. Sun
Bank of N. Fla., N.A., 923 F.2d 1423, 1429 (11th Cir. 1991). Not
all government payments, however, qualify as federal financial
assistance. “[W]hen the federal government makes payments for
obligations incurred as a market participant such payments do not
constitute ‘federal assistance.’” Arline v. Sch. Bd. of Nassau
Cty., 772 F.2d 759, 762 (11th Cir. 1985). “Generally, ‘to determine
the applicability of [the Rehabilitation Act], [a court] must
determine whether the government intended to give [the defendant]
a subsidy,’ as opposed to compensation.” Shotz v. Am. Airlines,
Inc., 420 F.3d 1332, 1335 (11th Cir. 2005) (quoting DeVargas v.
Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1382 (10th Cir.
1990)). Payment for services rendered under a federal contract
plainly qualifies as compensation, not a subsidy. Contrary to
Upton’s assertion, this type of contract is quite different from
the “contracts of insurance or guaranty” the Eleventh Circuit found
to “constitute federal financial assistance within the meaning of
section 504” in Moore, 923 F.2d at 1431.
Upton also presents two other arguments against dismissal.
First, he argues that he suspects that D & Z may receive federal
funds through other means such as federally provided training
programs. Upton requests that dismissal be denied pending discovery
Rehabilitation Act claim is largely duplicative of his ADA claims,
D & Z would not be prejudiced by the court’s denial of the motion.
Both of these arguments fail. “Rule 8 . . . does not unlock the
doors of discovery for a plaintiff armed with nothing more than
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). If
Upton is not willing to plead, consistent with Rule 11, that D & Z
in fact receives federal financial assistance, he is not permitted
to proceed to discovery on his claims based upon nothing more than
a hope that such assistance exists. In fact, Upton’s professed need
for that discovery belies his contention that D & Z would not be
prejudiced by allowing the Rehabilitation Act claim to proceed. As
D & Z correctly points out, “Upton will seek discovery regarding
the existence and terms of any federal contract, instances in which
[D & Z] has received federal monies and the amount, and information
and documents pertaining to [D & Z’s] interactions with federal
agencies and personnel. The additional discovery will increase the
time and money the parties must expend in discovery.” (Doc. 13 at
6, ¶ 9). Accordingly, D & Z’s partial motion to dismiss (Doc. 8)
will be granted by separate order.
DONE this 1st day of April, 2016.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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