Bledsoe v. Palm Beach Soil Water Conserv. Dist., 94-8360-CIV.

• Decision Date: 17 October 1996
• Docket Number: No. 94-8360-CIV.,94-8360-CIV.
• Parties: Mark BLEDSOE, Plaintiff, v. PALM BEACH SOIL AND WATER CONSERVATION DISTRICT, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

942 F.Supp. 1439

Mark BLEDSOE, Plaintiff, v. PALM BEACH SOIL AND WATER CONSERVATION DISTRICT, et al., Defendants.

No. 94-8360-CIV.

United States District Court, S.D. Florida.

October 17, 1996.

Isidro M. Garcia, Garcia Elkins & Carbonell, P.A., West Palm Beach, FL, for Plaintiff.

Richard H. McDuff, Johnson, Anselmo, Murdoch, Burke & George, P.A., Fort Lauderdale, FL, James G. Brown, Brown & Green, Orlando, FL, Glen J. Torcivia, West Palm Beach, FL, for Defendant.

ORDER GRANTING DEFENDANT PALM BEACH SOIL AND WATER CONSERVATION DISTRICT'S MOTION FOR SUMMARY JUDGMENT

RYSKAMP, District Judge.

THIS CAUSE came before the Court upon defendant Palm Beach Soil and Water Conservation District's Motion for Summary Judgment (DE 215), filed August 1, 1996. Plaintiff has responded in opposition. On September 20, 1996, the Court heard oral argument on the motion for summary judgment, and indicated that the motion would be granted.

BACKGROUND

This case arises from plaintiff Mark Bledsoe's four-year tenure as Resource Technician for defendant Palm Beach Soil and Water Conservation District ("the District"). The position required that Bledsoe spend a large portion of his time walking, surveying, and performing manual labor in the fields. On February 26, 1990, while performing field work at Boynton Farm, plaintiff sustained an injury to the left knee. Upon the advice of his doctors that he should refrain from excessive walking and walking on uneven terrain, plaintiff requested some form of accommodation from his supervisor. In response, the District offered plaintiff the position of Resource Conservationist, but he rejected it. In October of 1992, the District terminated him.

On July 27, 1994, plaintiff settled his workers' compensation case. The parties signed a joint settlement agreement, which contained the following provision:

As further consideration for the aforementioned payment, the Employee/Claimant agrees and does hereby release, discharge, and surrender any and all claims, whether or not asserted against the Employer/Carrier or Servicing Agent, or any of its officers, agents, servants, employees, directors, successors, assigns, and any other person or entity so connected to the Employer/Carrier or Servicing Agent, of any nature whatsoever....

Despite signing the release, plaintiff brought this action under the Americans with Disabilities Act (Title II of the "ADA"), 42 U.S.C. § 12131, and the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., as amended by the Civil Rights Act of 1991, alleging that he incurred a disability for which the District provided no reasonable accommodation, and, as a result of which, the District terminated him from its employment.¹ The District has now moved for summary judgment, arguing that the release bars plaintiff's action, and that his employment discrimination claim is not cognizable under Title II of the ADA.

LEGAL STANDARD

Federal Rule of Civil Procedure 56(c) sets forth the standard governing summary judgment. In its most basic form, summary judgment is appropriate where there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.") (emphasis in original).

The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the party opposing summary judgment may not simply rely on the pleadings or mere denials of the allegations. Rather, the opposing party must adduce some evidence showing that material facts are in issue. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. "Rule 56(c) therefore requires a non-moving party to go beyond the pleadings and by [its] own affidavits or by the depositions, answers to interrogatories, and admissions on file designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); See also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

The Eleventh Circuit has restated the method for allocating burdens in a summary judgment motion. Specifically, in accordance with U.S. Supreme Court precedent,

The moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).

DISCUSSION

Defendant sets forth two reasons for the granting of summary judgment in its favor. The District argues that the release signed by plaintiff should be construed as a matter of law to prevent plaintiff from bringing this action, and that Title II of the ADA does not create a cause of action for discrimination in employment.

I. THE RELEASE

The release argument is no stranger to this Court. In its Omnibus Order of July 27, 1995, the Court considered the very same argument, but declined to hold, as a matter of law, that the release barred plaintiff's ADA and Rehabilitation Act claims. On authority of Barefoot v. Sears Roebuck & Co., 650 So.2d 1036 (Fla. 1st DCA1995), the Court found that the release was not so unambiguous under Florida law as to warrant dismissal of the action.

Developments since the issuance of the Court's Omnibus Order suggest that reconsideration of this issue would be appropriate. By Order dated February 18, 1995, Judge Hurley of this same district and division found that a virtually identical handicap discrimination claim was barred by the exact same release executed by Mr. Bledsoe. F.M. v. Palm Beach County, 912 F.Supp. 514 (S.D.Fla.1995). The Eleventh Circuit affirmed without opinion, simply citing Eleventh Circuit Rule 36-1. F.M. v. County Commissioners, 84 F.3d 438 (11th Cir.1996).

At oral argument, counsel for plaintiff suggested that the Eleventh Circuit's decision is not binding on this Court because the Court of Appeals failed to issue an opinion. This is not precisely what the rules say. Eleventh Circuit Rule 36-2 does say that unpublished opinions are not considered binding precedent, but merely persuasive authority. However, we are not dealing here with an opinion, but with what Rule 36 of the Federal Rules of Appellate Procedure denominates "an entry of judgment." Indeed, Eleventh Circuit Rule 36-1 is expressly about the entry of judgment without opinion. Therefore, Eleventh Circuit Rule 36-2, relating to unpublished opinions, has no effect on the question of whether entries of judgment have binding precedential value. Indeed, entries of judgment without opinion are binding. United States v. Cagnina, 697 F.2d 915, 923 (11th Cir.) ("Affirmance without a published opinion is binding precedent for panels of the court, subject only to en banc consideration."), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983). Whether this Court is "bound" by the judgment of the Eleventh Circuit or merely "persuaded," it will join Judge Hurley and the Eleventh Circuit in finding that the release terminated plaintiff's right to sue for discrimination on the basis of handicap.²

II. SUITS FOR EMPLOYMENT DISCRIMINATION UNDER TITLE II OF THE ADA

Defendant also argues that a State employer does not violate Title II of the ADA by dismissing an employee on the basis of his handicap, because Title II does not relate to employment. Plaintiff responds that a majority of federal courts to consider the issue have held otherwise, and that the legislative history of Title II supports the employment discrimination cause of action. Although the Court recognizes that it may be swimming against the current, it concurs with defendant, and holds that no cause of action for employment discrimination lies under Title II of the ADA. The Court notes, in passing, that resolution of this issue is not dispositive of this case because the release, discussed above, eliminates Bledsoe's claim, whether or not it is cognizable under Title II. Nonetheless, the Court feels that it would be remiss to avoid the Title II issue, which stands in sore need of careful and deliberate treatment.

1. The Split of Authority

The Eleventh Circuit has yet to pass on the question of whether Title II creates a cause of action for employment discrimination. The federal district courts, however, have split on the issue. At least one court has squarely held that Title II applies only to public services and programs, and that it does not cover employment.³ See Iskander v. Rodeo Sanitary Dist., 1995 WL 56578 *9 (N.D.Cal.1995) ("Title II is inapplicable to the District's composition of employees."); see also Dertz v. City of Chicago, 912 F.Supp. 319, 325 (N.D.Ill.1995) (distinguishing between suits for "employment discrimination" under Title I and for "discrimination in the administration of a public program" under Title II). The majority of the federal district courts to rule on the issue, however, have taken the view that Title II does comprehend a public entity's employment practices. See Wagner v. Texas A & M Univ., 939 F.Supp. 1297, 1309-10 (S.D.Tex.1996); Graboski v. Guiliani, 937 F.Supp. 258, 268-69 (S.D.N.Y. 1996); Silk v. City of Chicago, 1996 WL 312074 *10 (N.D.Ill.1996); Bruton v. Southeastern Pennsylvania Transp. Authority, 1994 WL 470277 *2 (E.D.Pa.1994); Ethridge v. Alabama, 847 F.Supp. 903, 906 (...