Bell-Babineaux v. State of Florida-Department of Juvenile Justice
Filing
34
ORDER granting 31 Amended Motion to Dismiss Second Amended Complaint. See Order for details. Signed by Judge Elizabeth A. Kovachevich on 1/24/2014. (JM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DARLENE BELL-BABINEAUX,
Plaintiff,
v.
CASE NO. 8:12-CV-2153-T-17AEP
STATE OF FLORIDA
DEPARTMENT OF JUVENILE
JUSTICE,
Defendant.
/
ORDER
This cause is before the Court on:
Dkt. 31 Amended Motion to Dismiss Second Amended Complaint
In the Second Amended Complaint, Plaintiff seeks to recover actual damages of
$750,000.00, and punitive damages of $1,000,000.00 for the alleged discriminatory
actions Defendant exhibited toward Plaintiff. Plaintiff Bell-Babineaux was employed by
Defendant State of Florida Department of Juvenile Justice from 1980 until June, 2011.
I. Dkt. 19 Second Amended Complaint
Plaintiff alleges that Defendant illegally terminated her employment. Plaintiff
further alleges that Defendant denied Plaintiff promotions in retaliation for Plaintiffs
criticism of alleged unfair practices, and that Plaintiff reported the incidents of disparate
treatment to her immediate supervisor and her superiors. Plaintiff further alleges that
her supervisor, Adonis Miles, sexually harassed Plaintiff, but Plaintiff did not report the
alleged sexual harassment due to fear of additional retaliation. Plaintiff alleges that
Case No. 8:12-CV-2153-T-17AEP
acts of retaliation and harassment intensified in Fall, 2010, when Plaintiff received a
written reprimand. Plaintiff further alleges that her supervisor, Adonis Miles, later
recommended disciplinary action in the form of termination of employment, but Plaintiff
received only a one-day suspension.
Plaintiff alleges that the continuing stress caused severe emotional distress and
physical illness, such that Plaintiff entered Defendants Employee Assistance Program.
Defendant’s EAP representative and Plaintiffs physician recommended that Plaintiff
take an FMLA leave of absence. Plaintiffs physician further recommended short term
disability leave, and in Spring, 2011 Plaintiffs physician requested approval to move
Plaintiff from FMLA status to a short term disability leave because of the expectation
that Plaintiff would be able to return to work in July, 2011. In response to the request of
Plaintiff’s physician, Plaintiff alleges that Defendant terminated her employment for a
false reason, and that additional leave was extended to other similarly situated
employees.
Plaintiff alleges the following violations:
1. First Amendment right to freedom of speech;
2. Retaliation for speaking out against sexual harassment, and for
reporting misconduct and illegal conduct by Defendant with respect to
hiring and other unfair practices. Retaliation was Defendant’s denial of
promotions and termination of Plaintiffs employment.
3. Violation of ADA by denying Plaintiff the opportunity to return to work
with the necessary accommodations that would have allowed Plaintiff to
perform her work. Plaintiff completed Defendant’s “Fit for Duty” form and
returned it to Defendant on June 2, 2011.
4. Violation of Family Medical Leave Act by Defendant’s failure to
reinstate Plaintiff to same or equivalent position, and terminated Plaintiffs
employment at the conclusion of Plaintiffs leave, for an illness that is
protected under the FMLA. Defendant extended additional leave to other
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employees but denied it to Plaintiff. Defendant caused Plaintiff to lose
wages, medical benefits, and participation in DROP.
5. Violation of Florida Civil Rights Act of 1992, Ch. 760, by discriminating
against Plaintiff on the basis of age, making disparaging remarks
regarding Plaintiff’s age.
6. Violation of Age Discrimination in Employment Act, by making
defamatory remarks about Plaintiff’s age;
7. Violation of Title VII, sexual harassment which created a hostile work
environment, repeated acts of sexual harassment which were severe and
pervasive, directed to Plaintiff and other women in the workplace;
8. Violation of Health Insurance Portability and Accountability Act of 1996
(“HIPAA”); Defendant did not maintain Plaintiffs medical records in a
confidential manner; protected health information was put in the hands of
staff members who should not have had access, and inappropriately
disposed of. Defendant did not notify Plaintiff of the breach of
confidentiality and that Plaintiff’s personal information was exposed to
others.
II. Standard of Review
A. Fed. R. Civ. P. 12(b)(6)
“Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” “[D]etailed
factual allegations” are not required, Bell Atlantic v. Twomblv. 550 U.S. 544, 555 (2007),
but the Rule does call for sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face,” kL at 570. A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged, id., at 556. Two working principles
underlie Twomblv. First, the tenet that a court must accept a complaint's allegations as
true is inapplicable to threadbare recitals of a cause of action's elements, supported by
mere conclusory statements. kL at 555. Second, only a complaint that states a
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plausible claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim is context-specific, requiring the reviewing court to draw on its
experience and common sense. ]cL, at 556. A court considering a motion to dismiss
may begin by identifying allegations that, because they are mere conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the complaint’s
framework, they must be supported by factual allegations. When there are
well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief. See Ashcroft v.
labal. 129 S.Ct. 1937, 1955-1956 (2009)(quoting Bell Atlantic v. Twomblv. 550 U.S. 544
(2007).
B. Fed. R. Civ. P. 12(b)(1)
Attacks on subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) come in two
forms: “facial attacks” and “factual attacks.” Facial attacks on the complaint “require[ ]
the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in his complaint are taken as true.
Lawrence v. Dunbar. 919 F.2d 1525, 1528-29 (11th Cir. 1990). Where a factual attack
challenges the existence of subject matter jurisdiction, the Court may consider matters
outside the pleadings. The Court is free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case. No presumptive truthfulness attaches to
plaintiffs allegations, and the existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of jurisdictional claims. See Lawrence v.
Dunbar. 919 F.2d 1525 (11th Cir. 1990). Where a factual attack implicates an element
of the cause of action, the Court should find that jurisdiction exists and deal with the
objection as a direct attack on the merits of plaintiffs case, proceeding under Rule
12(b)(6) or Rule 56. The exceptions to this rule are narrowly drawn, and are intended
to allow jurisdictional dismissals only in those cases where the federal claim is clearly
immaterial or insubstantial. See Williamson v. Tucker. 645 F.2d 404 (5th Cir.), cert.
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denied. 102 S.Ct. 396 (1981).
C. Pro Se Pleadings
“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States. 148
F.3d 1262,1263 (11th Cir. 1998) (per curiam).
Although pro se pleadings are liberally
construed, the Court requires pro se litigants to conform to procedural rules. Albra v.
Advan. Inc.. 490 F.3d 826, 829 (11th Cir. 2007)
III. Amended Motion to Dismiss
Defendant moves to dismiss the Second Amended Complaint as follows:
1. The Second Amended Complaint does not comply with Fed. R. Civ. P.
8(a). It is unclear which factual allegations Plaintiff relies on to support
each cause of action Plaintiff asserts. Defendant cannot adequately
respond to the Second Amended Complaint;
2. Plaintiff has not sufficiently alleged jurisdiction, and does not allege
where the violations occurred;
3. Plaintiff does not allege when each alleged violation occurred;
4. Plaintiffs claims under the ADEA, ADA, FMLA, FCRA and First
Amendment should be dismissed on the basis of Eleventh Amendment
immunity from suit;
5. Plaintiffs claims under Title VII, ADEA, ADA, and FCRA should be
dismissed on the basis of failure to exhaust administrative remedies;
6. Plaintiff’s claim under HIPAA should be dismissed because there is no
private right of action.
The Court notes that Plaintiff has not filed a response in opposition to
Defendant’s Amended Motion to Dismiss, and it is past the time for a response to be
filed. Plaintiff did not request an extension of time. Although Plaintiff is proceeding
pro se, Plaintiff has filed other motions in this case to seek relief. The Court has taken
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the Amended Motion to Dismiss to be unopposed.
A. Eleventh Amendment Immunity
Under the Eleventh Amendment of the United States Constitution, a
nonconsenting state is immune from suit in federal court by the state’s citizens.
In this case, Defendant seeks dismissal of Plaintiffs claims under the ADEA, ADA,
FMLA, FCRA and First Amendment based on Eleventh Amendment immunity.
Defendant relies on Pennhurst v. State School & Hosp. v. Halderman. 465 U.S. 89, 98
(1984)(Eleventh Amendment bars state law claims under pendent jurisdiction); Kimel v.
Florida Board of Regents. 120 S.Ct. 631 (2000)(states entitled to Eleventh Amendment
immunity from suits by private citizens in federal court under ADEA); Board of Trustees
of University of Alabama v. Garrett. 121 S.Ct. 955 (2001)(abrogating Kimel v. State Bd.
of Regents that Congress effectively abrogated States’ Eleventh Amendment sovereign
immunity from suit under ADA); and Coleman v. Court of Appeals of Maryland. 132
S.Ct. 1327 (2012)(Congress did not validly abrogate states’ sovereign immunity from
suit for money damages in enacting FMLA’s self-care provision).
As to Plaintiff’s claim under the First Amendment, Defendant presumes that the
Court’s jurisdiction is pursuant to 42 U.S.C. Sec. 1983, and argues that a State or State
Agency is not a “person” against whom a Sec. 1983 claim can be brought. Will v.
Michigan Dept, of State Police, et al.. 109 S.Ct. 2304 (1989).
The Eleventh Amendment precludes suits by citizens against their own States in
federal court. Miccosukee Tribe of Indians v. Florida State Ath. Comm’n. 226 F.3d
1226, 1231 (11th Cir. 2000). For purposes of the Eleventh Amendment, a “state”
includes certain state agents and state instrumentalities, Shands Teaching
Hosp. &
Clinics. Inc. v. Beech St. Corp.. 208 F.3d 1308, 1311 (11th Cir. 2000), and state officials
sued in their official capacities. McMillian v. Monroe Countv. 520 U.S. 781, 785 (1997).
Case No. 8:12-CV-2153-T-17AEP
The Eleventh Amendment bars such suits in federal court unless the State consents or
waives its immunity. Stevens v. Gav. 864 F.2d 113k 114 (11th Cir. 1989).
The Court notes that Congress has not abrogated Eleventh Amendment
immunity for states in 42 U.S.C. Sec. 1983 cases. Quern v. Jordan. 440 U.S. 332, 338
(1979). The Florida Legislature has not waived Eleventh Amendment immunity.
Gamble v. Florida Dep’t of Health & Rehabilitative Servs.. 779 F.2d 1509, 1515 (11th
Cir. 1986)(discussina Fla. Stat. Sec. 768.28).
Because the Eleventh Amendment represents a constitutional limitation on the
federal judicial power established in Article III, federal courts lack jurisdiction to
entertain claims that are barred by the Eleventh Amendment. See Vermont Aaencv of
Natural Res, v. United States. 529 U.S. 765, 778 (2000). Unlike most subject matter
jurisdiction issues, which cannot be waived by the parties and must be raised by a court
on its own initiative, the Eleventh Amendment does not automatically deprive a court of
original jurisdiction. Wisconsin Dept, of Corrections v. Schacht. 524 U.S. 381, 389
(1998). The Eleventh Amendment grants the State a legal power to assert a sovereign
immunity defense should it choose to do so. Schacht. 524 U.S. at 389.
In the Second Amended Complaint, Plaintiff has not asserted any claims against
individuals, in their individual or official capacities. Plaintiff seeks an award of actual
and punitive damages against Defendant State of Florida Department of Juvenile
Justice, but not prospective injunctive relief. Defendant State of Florida Department of
Juvenile Justice has chosen to assert Eleventh Amendment immunity to bar Plaintiffs
claims. After consideration, the Court grants Defendant’s Motion to Dismiss the above
claims on the basis of Eleventh Amendment immunity.
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B. Exhaustion of Administrative Remedies
Defendant moves to dismiss Plaintiffs claims under Title VII, the ADEA, the ADA
and the FCRA for failure to exhaust administrative remedies.
Plaintiff has asserted claims under Title VII, the ADEA, the ADA, and the FCRA.
Plaintiff has also asserted a retaliation claim which may be included with Plaintiffs Title
VII claim. However, Plaintiff does not allege that Plaintiff filed a Charge of
Discrimination with the EEOC as to the Title VII, ADEA, ADA and FCRA claims, or with
the Florida Commission on Human Rights, as to the FCRA claim.
In order to litigate a
claim for discrimination under Title VII, the ADEA or the ADA, a plaintiff must first
exhaust administrative remedies, beginning with the filing of a charge of discrimination
with the EEOC. Wilkerson v. Grinnell Corp.. 270 F.3d 1314, 1317 (11th Cir. 2001).
The charge must be filed with the EEOC within 300 days after the alleged unlawful
practice occurred. As to Plaintiff’s FCRA claim, a charge must be filed with the EEOC
or state fair-employment-practice commission within 365 days of the alleged unlawful
employment practice, pursuant to Sec. 760.11, Fla,. Stat.
Since Plaintiff does not allege the exhaustion of administrative remedies, the
Court grants Defendant’s Motion to Dismiss as to Plaintiffs Title VII claim. Plaintiffs
ADEA, ADA and FCRA claims were dismissed on the basis of Eleventh Amendment
immunity.
C. No Private Right of Action
Defendant seeks dismissal of Plaintiffs HIPAA claim because there is no private
right of action.
Case No. 8:12-CV-2153-T-17AEP
Defendant relies on Acara v. Banks. 470 F.3d 569 (5th Cir. 2006), and other
authorities which hold that HIPAA did not create a private right of action. The Court
notes Sneed v. Pan American Hosp.. 370 Fed. Appx. 47, 50 (11th Cir.
2010)(unpublished)(declining to hold HIPAA creates a private cause of action or rights
enforceable through Sec. 1983); Crawford v. Citv of Tampa. 397 Fed. Appx. 621 (11th
Cir. 2010)(unpublished)(no private right of action, citing Acara) and Bradley v. Pfizer.
440 Fed. Appx. 805 (11th Cir. 2011)(unpublished)(no private right of action, citing
Acara).
After consideration, the Court grants Defendant’s Motion to Dismiss Second
Amended Complaint as to Plaintiffs HIPAA claim.
D. Retaliation
In the general factual allegations, Plaintiff allege that Plaintiff believes she was
not hired for positions for which she had applied and for which she was qualified, and
was more qualified than the candidate hired, due to Plaintiff’s previous exercise of First
Amendment rights through reports to the governing Program Office for Circuit against
Defendant. (Dkt. 19, p. 4). In the allegations specifically identifying Defendant’s
alleged violations, Plaintiff alleges that Plaintiff experienced retaliation as a result of her
exercise of free speech rights by speaking out against the sexual harassment of a
superior, and for reporting alleged misconduct and illegal conduct by Defendant with
respect to hiring and other unfair practices. Plaintiff further alleges that Defendant
retaliated by denying Plaintiff promotions and by discharging Plaintiff from her
employment and refusing to rehire her. It is unclear whether Plaintiff intended to assert
a retaliatory discharge claim as a violation of First Amendment rights under Sec. 1983,
or as part of Plaintiff’s Title VII claim.
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The Court has dismissed Plaintiffs Section 1983/First Amendment claim on the
basis of Eleventh Amendment immunity, and has dismissed Plaintiffs Title VII claim for
failure to exhaust administrative remedies.
In the event that Plaintiff is able to cure the
failure to exhaust administrative remedies as to Plaintiff’s Title VII claim, Plaintiff shall
allege facts explaining what statutorily protected activity in which Plaintiff engaged,
when the statutorily protected activity took place, what adverse employment action
Plaintiff suffered, and how the adverse employment action was causally related to the
statutorily protected activity.
E. Title VI
In Plaintiff’s allegations as to jurisdiction, Plaintiff refers to the Title VI prohibition
against exclusion from participation in, denial of benefits of, and discrimination under
Federally assisted programs on the basis of race, color or national origin. It is unclear
to the Court how Title VI supports any of the claims Plaintiff has asserted in the Second
Amended Complaint.
E. Procedural Deficiencies
The Court reminds Plaintiff that Plaintiff is subject to the Federal Rules of Civil
Procedure and the Local Rules of the Middle District of Florida. The Second Amended
Complaint does not comply with Fed. R. Civ. P. 8(a). It does not identify which factual
allegations support each separate claim. In the event that Plaintiff files another
amended complaint, Plaintiff shall separate each claim into a separate count, and shall
identify the relief sought in each separate count. Plaintiff is directed to comply with Fed.
R. Civ. P. 8(a) and Fed. R. Civ. P. 10(b), and failure to do so may have adverse
consequences. Accordingly, it is
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ORDERED that the Amended Motion to Dismiss Second Amended Complaint is
granted as follows:
1. Plaintiff’s ADEA, ADA, FMLA, FCRA and Sec. 1983 (First Amendment)
claims are dismissed on the basis of Eleventh Amendment immunity;
2. Plaintiffs Title VII claim is dismissed for failure to exhaust administrative
remedies;
3. Plaintiff’s HIPAA claim is dismissed because there is no private right of action
available under the statute.
In the event that Plaintiff is able to amend the Second Amended Complaint to
allege exhaustion of administrative remedies as to Plaintiffs Title VII claim, Plaintiff
shall seek leave to file an amended Complaint within fourteen days. If no motion is
filed, this case will be closed.
NE and ORDERED in Chambers, in Tampa, Florida on this
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