Ali v. City of Clearwater

Decision Date20 November 1992
Docket NumberCiv. No. 92-790-CIV-T-17A.
Citation807 F. Supp. 701
PartiesLuqman Abdul ALI, Plaintiff, v. CITY OF CLEARWATER, a municipal corporation, Defendant.
CourtU.S. District Court — Middle District of Florida

Jawdet I. Rubaii, Law Office of Jawdet I. Rubaii, Clearwater, FL, for plaintiff.

Mark A. Hanley, Thompson, Sizemore & Gonzalez, Tampa, FL, for defendant.


KOVACHEVICH, District Judge.

This cause is before the Court on Defendant's motion to dismiss Counts I, II, III, IV, and V and/or motion to strike Counts I, II and IV for compensatory damages or jury trial. The motions were filed on July 6, 1992 and response thereto, was filed on July 22, 1992.


Complaint in this case was filed June 11, 1992, against the City of Clearwater. The complaint contains the following counts: 1) handicap discrimination pursuant to § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (wrongful termination and failure to accommodate employee); 2) intentional handicap discrimination in violation of 29 U.S.C. § 794 (failure to give employee another position); 3) handicap discrimination in violation of 42 U.S.C. § 1983 and contrary to 29 U.S.C. § 794; 4) handicap discrimination in violation of the Florida Human Rights Act of 1977, as amended § 760.10, Fla.Stat. (1991), and Article I, Section 2 of the Florida Constitution (failure to accommodate employee); and 5) denial of equal protection pursuant to 42 U.S.C. § 1983 because of handicap.

According to the complaint, Plaintiff was employed as a Maintenance Worker I for the Defendant, the City of Clearwater. During the time of his employment with the City of Clearwater, he was involved in an automobile accident while off duty, July 27, 1988. He suffered injury. At the time the accident occurred, he was assigned to beach maintenance duty; and after the accident occurred, the Plaintiff returned to work as a Maintenance I worker on beach maintenance duty. Subsequently, however, he was assigned to a concrete crew which required him to perform heavy duty work. Plaintiff alleges that the heavy duty work aggravated his injuries.

The complaint states that Plaintiff notified his crew leader that the heavy duty work aggravated the injuries he sustained in the accident. The crew leader then reported Plaintiff's injuries to the Supervisor I, on at least three occasions. The Supervisor I in turn, notified the Supervisor II, but the Plaintiff's complaint was ignored. Finally, Supervisor II notified the assistant superintendent and Plaintiff was then placed on light duty work.

Before the City of Clearwater would allow Plaintiff to continue working, it required the Plaintiff to obtain a medical certificate from a medical doctor regarding his physical condition. Basically, Plaintiff avers that the requirement to provide a medical certificate was a pretext to discriminate against him on the basis of his handicap. Because he was, at all times, unable to afford the medical certificate, he was wrongfully terminated by the City of Clearwater.


A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

Motions to strike on the grounds of insufficiency, immateriality, irrelevancy, and redundancy are not favored, often being considered "time wasters", and will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties. Poston v. American President Lines, Ltd., 452 F.Supp. 568, 570 (S.D.Fla. 1978), citing Augustus v. Board of Public Instruction, 306 F.2d 862 (5th Cir.1962). In evaluating a motion to strike, the Court must treat all well pleaded facts as admitted and can not consider matters beyond the pleadings. U.S. Oil Co., Inc. v. Koch Refining Co., 518 F.Supp. 957, 959 (E.D.Wis.1981).

Administrative Exhaustion

As to Counts I and II, the City of Clearwater asserts that private individuals, such as Plaintiff, must exhaust their administrative remedies prior to bringing suit under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. In support of its position, the City of Clearwater relies on Doe v. Garrett, 903 F.2d 1455 (11th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991), and other circuit court decisions holding that a federal employee must exhaust his administrative remedies prior to bringing suit against the government under the Rehabilitation Act. See Morgan v. U.S. Postal Service, 798 F.2d 1162 (8th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987); Smith v. U.S. Postal Service, 766 F.2d 205 (6th Cir.1985). However, the procedures set forth for federal employees are contained in different sections of the Rehabilitation Act than the procedures for nonfederal employees. Section 501 of the Rehabilitation Act specifically addresses federal employees, while Section 504 applies to employees of any program or activity receiving federal financial assistance. Section 501 adopts the enforcement procedures contained in Title VII, whereas Section 504 adopts the enforcement procedures contained in Title VI. Compare 29 U.S.C. § 794a(a)(1) (referring to 42 U.S.C. § 2000e-16 and 2000e-5(f) through (k)) with 29 U.S.C. § 794a(a)(2) (referring to 42 U.S.C. § 2000d et seq.). Unlike Title VII, Title VI does not explicitly require the exhaustion of administrative remedies. See 42 U.S.C. § 2000e-16(c).

Although the Eleventh Circuit has yet to directly decide whether a non-governmental employee must first exhaust his administrative remedies before filing suit for an alleged violation of § 504 of the Rehabilitation Act, the question was answered in the negative by the Fifth Circuit in Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980), judgment vacated on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981).1 The Camenisch court found that the reasoning in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), applied to Section 504 cases. In Cannon, the Supreme Court determined that an implied private right of action existed under Title IX that did not require individuals to exhaust available administrative procedures.

Administrative exhaustion was not required because 1) the complaint procedures did not allow the complainant to participate in the administrative investigation or subsequent enforcement proceedings and 2) the ultimate remedy available through administrative channels — a complete cut-off of federal funds to the institution — would not provide relief for an injured claimant.

Byers v. Rockford Mass Transit Dist., 635 F.Supp. 1387 (N.D.Ill.1986) (citing Cannon, 441 U.S. at 704-06, 99 S.Ct. at 1962-63; Camenisch, 616 F.2d at 135). Similarly, HEW administrative procedures did not provide adequate relief for the plaintiff in Camenisch claiming under § 504. The court therefore, determined that, because both Title IX and § 504 refer to Title VI enforcement procedures, an exhaustion of administrative remedies was not required under § 504. For similar reasons, many federal courts have held that a private individual may sustain an action under § 504 of the Rehabilitation Act without exhaustion of administrative remedies. See, e.g., Pushkin v. Regents of the University of Colorado, 658 F.2d 1372 (10th Cir.1981); Smith v. Barton, 914 F.2d 1330 (9th Cir. 1990); Rothschild v. Grottenthaler, 716 F.Supp. 796 (S.D.N.Y.1989); Byers v. Rockford Mass Transit Dist., 635 F.Supp. 1387 (N.D.Ill.1986); Smith v. City Lake Nursing Home, 771 F.Supp. 985 (D.Minn.1991).

This Court agrees. The law is clear that an individual claimant under § 504 does not have to exhaust administrative remedies prior to bringing suit. Accordingly, Counts I and II will not be dismissed for failure to exhaust administrative remedies.


This same reasoning may be applied to determine whether compensatory damages and trial by jury are afforded to a claimant under Section 504. In Franklin v. Gwinett County Public Schools, ___ U.S. ___, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), the Supreme Court reversed the Eleventh Circuit and held that damages are available to a claimant alleging intentional discrimination under Title IX. "The long standing general rule is that absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute." Id. at 102 (citing Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). The court, relying on Guardians Assn. v. Civil Service Comm'n of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) and Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984), stated that the general rule in Bell had not been eroded.

In fact, those cases support it, since a clear majority in Guardians, expressed the view that damages were available in an action seeking remedies for an intentional violation of a statute closely analogous to Title IX, while a unanimous Court in Darrone held that another such statute authorized the award of back pay.

Franklin, ___ U.S. at ___, 112 S.Ct. at 1031 (citations omitted).

The Darrone court applied Title VI to a Section 504 claim and a plurality of the Supreme Court in Guardians stated that "in cases where intentional discrimination has been shown, ... it may be that the victim of the intentional discrimination should be entitled to a compensatory award ..." Guardians, 463 U.S. at 597, 103 S.Ct. at...

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