Ashworth v. Glades County Board of County Commissioners
Filing
15
OPINION AND ORDER granting 5 Defendant's Motion to Dismiss Count II of Plaintiff's Complaint. Count II is dismissed with prejudice. Signed by Judge John E. Steele on 12/12/2017. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL ASHWORTH,
Plaintiff,
v.
Case No:
GLADES
COUNTY
BOARD
COUNTY COMMISSIONERS,
2:17-cv-577-FtM-99MRM
OF
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant’s Motion to
Dismiss Count II of Plaintiff’s Complaint, or in the Alternative
Strike Plaintiff’s Demand for Punitive Damages (Doc. #5) filed on
October 24, 2017.
Plaintiff filed a Response in Opposition (Doc.
#13) on November 17, 2017.
For the reasons set forth below, the
Motion is granted.
I.
On August 25, 2017, plaintiff Michael Ashworth filed a twocount Complaint against his former employer, Glades County Board
of County Commissioners, for failure to pay overtime wages in
violation of the Fair Labor Standards Act (FLSA) (Count I) and
unlawful retaliation in violation of Fla. Stat. § 92.57 (Count
II).
(Doc. #2.)
Section 92.57 makes it unlawful for an employer
to terminate a person who testifies in response to a subpoena.1
The action was removed to this Court on October 19, 2017.
#1.)
(Doc.
Plaintiff alleges that he began employment with defendant
as an Animal Control Officer on May 30, 2012, and was terminated
on August 2, 2017, after offering unfavorable testimony against
defendant.
(Doc. #2, ¶¶ 15-16, 23-24.)
Defendant
now
moves
to
dismiss
plaintiff’s
unlawful
retaliation claim (Count II) based on sovereign immunity.
In the
alternative, defendant moves to strike Count II’s punitive damages
request, arguing that punitive damages are not available against
a the State or its agencies or subdivisions.
that
dismissal
is
inappropriate
because
Plaintiff responds
Florida
has
waived
sovereign immunity under the circumstances giving rise to his
unlawful retaliation claim, but plaintiff agrees to withdraw Count
II’s demand for punitive damages.
1
Section 92.57 reads:
Termination of employment of witness prohibited.
A
person who testifies in a judicial proceeding in
response to a subpoena may not be dismissed from
employment because of the nature of the person’s
testimony or because of absences from employment
resulting from compliance with the subpoena.
In any
civil action arising out of a violation of this section,
the court may award attorney’s fees and punitive damages
to the person unlawfully dismissed, in addition to
actual damages suffered by such person.
Fla. Stat. § 92.57.
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II.
“Sovereign immunity is the privilege of the sovereign not to
be sued without its consent.”
Va. Office for Prot. & Advocacy v.
Stewart,
(2011).
563
U.S.
247,
253
“In
Florida,
immunity is the rule, rather than the exception.”
sovereign
Pan–Am Tobacco
Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984) (citing Fla.
Const. art. X, § 13).
Any waiver of sovereign immunity must be
“clear and unequivocal”; thus, absent a waiver, Florida sovereign
immunity bars suit against the State or one of its political
subdivisions.
Id.; Town of Gulf Stream v. Palm Beach Cnty., 206
So. 3d 721, 725 (Fla. 4th DCA 2016).
“Only the Legislature has
authority to enact a general law that waives the state’s sovereign
immunity” and “waiver will not be found as a product of inference
or implication.”
Corp.,
908
So.
Am. Home Assur. Co. v. Nat’l R.R. Passenger
2d
459,
471
(Fla.
2005).
Counties
and
municipalities are afforded sovereign immunity to the same extent
as the State.
Town of Gulf Stream, 206 So. 3d at 725; Fla. Stat.
§ 768.28(2).
Florida’s
immunity
for
legislature
liability
in
has
torts
explicitly
involving
waived
personal
wrongful death, and loss or injury of property.
768.28.
sovereign
injury,
Fla. Stat. §
Defendant asserts that although a cause of action for
retaliatory discharge brought pursuant to Fla. Stat. § 92.57 is
“tortious in nature,” a plaintiff bringing such a cause of action
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is only entitled damages for economic loss in the form of lost
wages, for which the State has not waived its sovereign immunity.
See Cnty. of Brevard v. Miorelli Engineering, Inc., 677 So. 2d 32,
34 (Fla. 5th DCA 1996), quashed on other grounds, 703 So. 2d 1049
(Fla. 1997).
Plaintiff responds that his retaliation claim still
falls within Section 768.28 because Section 92.57 allows for the
recovery of tort-like compensatory damages, including pain and
suffering, which makes his claim akin to a personal injury tort,
citing Mason v. City of Miami Gardens, Fla., No. 14-23908-CV, 2015
WL 2152702 (S.D. Fla. May 6, 2015).
Although
application
of
Florida’s
Section
state
768.28
courts
to
have
not
retaliatory
spoken
on
discharge
the
under
Section 92.57, in Mason the District Court found that because
plaintiff was essentially seeking damages in the form of a personal
injury tort, and not for purely economic damages, the Section 92.57
claim fell within the waiver of Section 768.28.
Id. at *2.
In determining whether statutory claims such as the one at
issue here are subject to sovereign immunity, this Court takes
guidance
from
the
Supreme
Court
of
Florida,
which
generally
examines the statutory language rather than the type of damages
sought by a plaintiff.
For example, in Bifulco v. Patient Business
& Financial Services, Inc., the Supreme Court of Florida examined
whether the State had waived its sovereign immunity under Section
440.205 of the Workers’ Compensation Law, which created a cause of
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action for employees who are subject to retaliatory treatment by
their employers for attempting to claim workers’ compensation
benefits.
39 So. 3d 1255, 1257 (Fla. 2010).
The court found that
under the plain language of the Workers’ Compensation Law, the
Legislature had waived sovereign immunity by authorizing a lawsuit
against the State.
Id.
Moreover, the court pointed to the fact
that in several statutory causes of action, the Legislature has
chosen
to
waive
sovereign
immunity
Section 768.28 in the statute.
by
explicitly
referencing
Id. at 1258.
Generally, the Supreme Court of Florida has noted that the
purpose of the enactment of Section 768.28 was to waive sovereign
immunity for breaches of common law duties of care, limited to
traditional torts, rather than causes of action created by statute.
See Trianon Park Condominium Ass’n, Inc. v. City of Hialeah, 468
So. 2d 912, 917 (Fla. 1985); Hill v. Dept. of Corrections, 513 So.
2d 129, 133 (Fla. 1987).
See also State of Fla., Dept. of Elder
Affairs v. Caldwell, 199 So. 3d 1107, 1110 (Fla. 1st DCA 2016)
(finding that any waiver of sovereign immunity by legislature for
an executive agency’s interference with an ombudsman applied to
tort claims, not statutory claims such as retaliatory discharge).
In Caldwell, even though plaintiff’s cause of action allowed for
the recovery of damages for pain and suffering, the court instead
examined the statutory language and legislative intent for a “clear
and unequivocal waiver” of sovereign immunity to determine whether
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the legislature intended the Department to be sued.
Id.
See also
Fla. Dept. of Transp. V. Schwefringhaus, 188 So. 3d 840, 846 (Fla.
2016) (“Waiver cannot be found by inference or implication, and
statutes waiving sovereign immunity must be strictly construed.”)
The Court follows the guidance of Florida courts and disagrees
with plaintiff that his potential recovery of pain and suffering
damages for a statutory cause of action means that Florida has
waived its sovereign immunity for such a claim.
Plaintiff has
pointed to no language in the statute itself, nor to any other
indication
that
the
Florida
legislature
intended
to
waive
sovereign immunity for Section 92.57 claims; therefore, the Court
will not find that Florida has waived sovereign immunity for such
claims.
See Am. Home Assur. Co., 908 So. 2d at 471 (finding that
waiver will not be found as a product of inference).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant’s
Motion
to
Dismiss
Complaint (Doc. #5) is GRANTED.
Count
II
of
Plaintiff’s
Count II is dismissed with
prejudice.
DONE and ORDERED at Fort Myers, Florida, this _12th_ day of
December, 2017.
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Copies:
Counsel of Record
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