Albra v. Advan, Inc., 06-15969, Non-Argument Calendar.

• Decision Date: 26 June 2007
• Docket Number: No. 06-15969, Non-Argument Calendar.,06-15969, Non-Argument Calendar.
• Parties: Adem A. ALBRA, Plaintiff-Appellant, v. ADVAN, INC., Wayne Abbott, Troy Abbott, Myriam Abbott, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

490 F.3d 826

Adem A. ALBRA, Plaintiff-Appellant, v. ADVAN, INC., Wayne Abbott, Troy Abbott, Myriam Abbott, Defendants-Appellees.

No. 06-15969, Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 26, 2007.

Adem A. Albra, Ft. Lauderdale, FL, pro se.

Cathy Mattson Stutin, Fisher & Phillips, LLP, Ft. Lauderdale, FL, for Advan, Inc.

Appeal from the United States District Court for the Southern District of Florida.

Before BLACK, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

Adem Albra, proceeding pro se, appeals the district court's dismissal of his complaint brought pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq., and the Florida Omnibus AIDS Act ("FOAA"), Fla. Stat. § 760.50. As a matter of first impression, we hold that individuals are not amenable to private suit for violating the ADA's anti-retaliation provision, 42 U.S.C. § 12203, where the act or practice opposed by the plaintiff is made unlawful by the ADA provisions concerning employment, 42 U.S.C. §§ 12111-12117. We also hold that individuals are not amenable to private suit for violating § 760.50(3)(b) of the FOAA.

I. BACKGROUND

On July 3, 2006, Albra filed a pro se complaint against his employer, Advan, Inc., and Advan officers Wayne Abbott, Troy Abbott, and Myriam Abbott (collectively, the "Abbotts"). In the complaint, Albra alleged discrimination and retaliation based on his HIV status in violation of the ADA and the FOAA. On August 8, 2006, Albra executed service to Advan's registered agent, Wayne Abbott, by sending a copy of the summons (but not the complaint) via U.S. mail. The Return of Service showed that Albra listed himself as the process server. On August 17th, Myriam was served by a non-party to the lawsuit. Albra filed a notice of Advan's failure to answer the complaint on August 28th. In that notice, Albra stated that he had "followed Rule 4 of the Federal Rules of Civil Procedure and mailed the summons to the Registered Agent of the Corporation, Wayne Abbott." On August 31st, service was executed to Wayne in his personal capacity.

On September 19th, pursuant to Federal Rule of Civil Procedure 12(b)(5), Advan filed a motion to dismiss the complaint for insufficiency of service. On that same date, pursuant to Rule 12(b)(6), Myriam and Wayne filed a motion to dismiss for failure to state a claim upon which relief may be granted on the ground that claims against individual defendants are not cognizable under either the ADA or the FOAA. Finally, service was executed to Troy on October 4th, and shortly thereafter, he notified the district court that he joined in Myriam and Wayne's motion to dismiss.

In a written order, the district court granted Advan's motion to dismiss, concluding that Albra had failed to effectuate service upon Advan in accordance with Rule 4(c) because he had personally served Advan through the mail. In that same order, the court granted the Abbotts' motion to dismiss, holding that neither the ADA nor the FOAA countenance individual liability. In so holding, the court dismissed Albra's complaint against Advan without prejudice and dismissed the complaint with prejudice as to the Abbotts. Albra now appeals.

II. DISCUSSION

On appeal, Albra argues that the district court erred in dismissing his complaint because (1) Advan was properly served, and (2) individual defendants may be liable under the ADA and the FOAA. Advan has moved for sanctions pursuant to Federal Rule of Appellate Procedure 38 on the ground that Albra's appeal is frivolous. We address each argument in turn.¹

A. Service of Advan

Albra argues that service to Advan was proper because he mailed a copy of the summons to Advan's registered agent, Wayne Abbott, who was also named as a defendant in the action. "We review the district court's grant of a motion to dismiss for insufficient service of process under [Federal Rule of Civil Procedure] 12(b)(5) by applying a de novo standard to the law and a clear error standard to any findings of fact." Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 920 (11th Cir.2003).

Federal Rule of Civil Procedure 4(c) provides that service of process shall be effected by serving a summons "together with a copy of the complaint. . . . within the time allowed under [Rule 4(m)] . . . . by any person who is not a party and who is at least 18 years of age." Fed.R.Civ.P. 4(c) (emphasis added). A defendant's actual notice is not sufficient to cure defectively executed service. See Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir.1991) (interpreting former Rule 4(j)), superseded in part by rule as stated in Horenkamp v. Van Winkle And Co., Inc., 402 F.3d 1129, 1132 n. 2 (11th Cir.2005). And although we are to give liberal construction to the pleadings of pro se litigants, "we nevertheless have required them to conform to procedural rules." Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir.2002).

Here, the record demonstrates that Albra, the plaintiff in the suit, served Advan by mailing a copy of the summons without attaching a copy of the complaint. Accordingly, Albra failed to properly effect service upon Advan in accordance with Rule 4(c), and the district court's grant of Advan's motion to dismiss was proper.

B. Dismissal of Albra's Complaint Against the Abbotts

Albra also argues that the Abbots, as owners, officers, and managers of Advan, constitute "employers" under the ADA and the FOAA, and the district court thus erred in dismissing his complaint against them. A district court's dismissal for failure to state a claim under Rule 12(b)(6) is reviewed de novo. Hill v. White, 321 F.3d 1334, 1335 (11th Cir.2003). Questions of law, such as the construction of a statute, are also reviewed de novo. Konikov v. Orange County, Fla., 410 F.3d 1317, 1321 (11th Cir.2005).

1. ADA Claims

The ADA prohibits disability discrimination in three areas: employment, public services, and public accommodations. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1166 n. 5 (11th Cir.2003). Subchapter I of the ADA, which prohibits discrimination on account of disability in employment, covers the same employers and provides the same remedies contained in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e(b). See 42 U.S.C. §§ 12111-12117. Subchapter II bars discrimination by any state or local government entity (that is, discrimination in public services) and affords the remedies outlined in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. See 42 U.S.C. §§ 12131-12165. Subchapter III prohibits discrimination by public accommodations and incorporates the remedies of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(a). See 42 U.S.C. §§ 12181-12189. And Subchapter IV sets forth various miscellaneous provisions, including the ADA's anti-retaliation provision, 42 U.S.C. § 12203. See 42 U.S.C. §§ 12201-12213.

a. Discrimination Under the ADA

Albra argues that the Abbotts are personally liable under the ADA for discriminating against him on account of his HIV status. The anti-discrimination provision of Subchapter I of the ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The term "covered entity" means "an employer, employment agency, labor organization, or joint labor-management committee." Id. § 12111(2).

The ADA's definition of "employer" is similar to that under Title VII and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 630(b), and this court has held that neither of those Acts countenance individual liability. Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996). In light of our construction of Title VII and the ADEA, we also have held that individual defendants are not amenable to private suit for violating the anti-discrimination provision of Subchapter I of the ADA. Id.

Here, Albra's ADA discrimination claim names the Abbotts as defendants in their individual capacities. Because individual liability is precluded for violations of the ADA's employment discrimination provision, we conclude that the district court properly dismissed Albra's discrimination claim against the Abbotts.

b. Retaliation Under the ADA

The ADA's general anti-retaliation provision provides that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter. . . ." 42 U.S.C. § 12203(a) (emphasis added). In the instant case, Albra argues that the Abbotts are personally liable under the ADA for retaliating against him after he filed formal charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Florida Commission on Human Relations. Thus, the issue before this court is whether individual defendants may be personally liable for violating the ADA's anti-retaliation provision when the "act or practice" opposed by the plaintiff is made unlawful by the ADA provisions concerning employment (Subchapter I).

In Shotz, a panel of this court held that individual liability is not precluded for violations of the ADA's anti-retaliation provision, 42 U.S.C. § 12203(a), where the act or practice opposed by the plaintiff is made unlawful by the ADA provisions concerning public services, 42 U.S.C. §§ 12131-12165 (Subchapter II). Shotz, 344 F.3d at 1179-80. In so holding, the Shotz panel first examined the plain language of § 12203 and noted that this provision "is the only anti-discrimination provision in the ADA that uses the unqualified term `person' to define the regulated entity." Id. at 1168. The panel also observed that in Subchapter I of the ADA (the provisions regarding employment), the term "person" is...