Driesse v. Florida Bd. of Regents

• Decision Date: 07 October 1998
• Docket Number: No. 97-1146-CIV-ORL-18A.,97-1146-CIV-ORL-18A.
• Citation: 26 F.Supp.2d 1328
• Parties: Warren H. DRIESSE, Plaintiff, v. FLORIDA BOARD OF REGENTS, Defendant.
• Court: U.S. District Court — Middle District of Florida

26 F.Supp.2d 1328

Warren H. DRIESSE, Plaintiff, v. FLORIDA BOARD OF REGENTS, Defendant.

No. 97-1146-CIV-ORL-18A.

United States District Court, M.D. Florida, Orlando Division.

October 7, 1998.

Brandon Scott Peters, Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., Orlando, FL, for Warren H. Driesse.

Locksley O. Wade, Charlann J. Sanders, Attorney General's Office, Dept. of Legal Affairs, Tampa, FL, for University of Central Florida/Florida Board of Regents.

Henry A. Gill, Jr., Thomas Edward Allison, Attorney General's Office, Dept. of Legal Affairs, Tampa, FL, for Alice Hansen.

ORDER

G. KENDALL SHARP, District Judge.

Plaintiff Warren H. Driesse ("Driesse") brings the instant action against defendant Florida Board of Regents alleging that the defendant discriminated against him on the basis of his age, disability and medical condition in violation of both federal and state law. In his amended complaint, the plaintiff seeks lost wages, compensatory, liquidated and punitive damages, interest, costs, and attorneys' fees. Plaintiff's state claims were dismissed by this court for lack of subject matter jurisdiction on April 6, 1998. The remaining federal claims are presently before the court on the defendant's motion for summary judgment to which the plaintiff has responded in opposition. Following a review of the case file and relevant law, the court concludes that the defendant's motion should be granted in part and denied in part.

I. Factual Background

Driesse was born on May 17, 1931 and was hired by the University of Central Florida ("UCF") on February 15, 1993, as a Computer Support Specialist. Driesse's employment continued without incident until May 2, 1996, when he was diagnosed with prostrate cancer. He immediately informed his supervisor, Ms. Alice Hansen ("Hansen"), of his condition and was granted a leave of absence to undergo the necessary surgery. On June 26, 1996, UCF terminated Driesse's employment while he was still recovering from his prostrate surgery. The plaintiff protested and was reinstated into his job on September 5, 1996. Following his reinstatement, however, the plaintiff alleges that his hours were reduced and that his tasks were significantly altered. In addition, he claims that his former duties were awarded to a much younger employee. After filing three formal charges of discrimination with the appropriate agencies, plaintiff's pre-termination hours of employment were restored.

A few months later, in February of 1997, Hansen informed Driesse that his job performance was unsatisfactory and placed a "Letter of Instruction" indicating the same in his personnel file. In June of 1997, the plaintiff began experiencing painful swelling in his lower extremities. Driesse's physician informed the defendant that the removal of plaintiff's pelvic lymph system in conjunction with his prostrate cancer surgery rendered him incapable of standing on his feet for long periods of time. On August 20, 1997, the plaintiff requested reasonable accommodation for his medical complications but was turned down by the defendant. The plaintiff exhausted all of his administrative remedies and this present suit followed.

II. Legal Discussion

A. Summary Judgment Standards

Summary judgment is authorized if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505.

The moving party bears the burden of proving that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether the moving party has satisfied the burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party may rely solely on his pleadings to satisfy this burden. See Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548; Fed.R.Civ.P. 56(c).

"[A]ll that is required [to proceed to trial] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). Summary judgment is mandated, however, "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

B. The Merits of Defendant's Motion

Plaintiff's remaining claims arise under the Age Discrimination in Employment Act, 29 U.S.C. § 630(b) ("ADEA"), the Family Medical Leave Act of 1993, 29 U.S.C. §§ 2612, 2624 ("FMLA"), and the Americans with Disabilities Act, 42 U.S.C. § 12112 ("ADA"). The defendant argues that summary judgment should be granted because the ADEA and FMLA claims are barred by the Eleventh Amendment to the United States Constitution and the plaintiff is not disabled for purposes of his ADA claim. The court will first address the defendant's Eleventh Amendment immunity argument with respect to the ADEA and FMLA and then the court will analyze the defendant's arguments against the plaintiff's ADA claim.

1) Driesse's ADEA claim (Count I)

The defendant argues that the Eleventh Amendment bars an action against a state under the ADEA and therefore this court lacks subject matter jurisdiction to hear plaintiff's ADEA claim. Due to the recent Eleventh Circuit decision in Kimel v. State of Florida, 139 F.3d 1426 (11th Cir.1998), the plaintiff concedes that the Eleventh Amendment precludes his ADEA claim against Florida Board of Regents. Accordingly, the court grants defendant's motion for summary judgment with respect to Driesse's ADEA claim (Count I).

2) Driesse's FMLA claim (Count V)

In Count V of his amended complaint, the plaintiff sues the defendant for denial of benefits under the FMLA. Defendant argues that it is immune from suit in federal court for violations of the FMLA because of the Eleventh Amendment.

The Eleventh Amendment states that:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. This provision prohibits suits against a state by both its own citizens and citizens of other states, see Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), and suits against instrumentalities of the state where they are "arm[s] of the State." Regents of University of California v. Doe, 519 U.S. 425, ___, 117 S.Ct. 900, 903, 137 L.Ed.2d 55 (1997). Federal courts, however, may entertain suits by private citizens against states if the state has waived immunity or Congress has overridden it by abrogation. See Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Plaintiff does not argue that Florida has consented to suit, but rather that Congress has abrogated Florida's Eleventh Amendment immunity to suit in federal court for violations of the FMLA.

In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court stated that in determining whether Congress has successfully abrogated a state's sovereign immunity, two factors must be assessed: (1) whether Congress provided "a clear legislative statement" of its intent to abrogate immunity; and (2) whether Congress acted under proper constitutional authority. See Seminole, 517 U.S. at 54, 116 S.Ct. 1114.

Based on the Eleventh Circuit's reasoning in Kimel, Congress did not provide a clear statement of intent to abrogate sovereign immunity in the FMLA. The unmistakable intent to abrogate immunity must be found within the language of the statute itself. See Kimel, 139 F.3d at 1430 (citing Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)). The Supreme Court has stated that an examination of legislative history is unnecessary and only the text of the statute needs to be considered in deciding whether there is intent to abrogate. See Dellmuth, 491 U.S. at 228, 109 S.Ct. 2397. Therefore, the court will look only to the language of the FMLA to determine whether Congress provided the requisite clear statement of intent to abrogate.

The FMLA provides for suits "against any employer (including a public agency) in any Federal or State Court of competent jurisdiction." 29 U.S.C. § 2617(a)(2). In section 29 U.S.C. § 2611(4)(A)(iii), the FMLA defines employers to include "any `public agency,' as defined in section 203(x) of this title." Section 203(x) is the definition section of the Fair Labor Standards Act ("FLSA") and it defines "public agency" as "the government of a State or political subdivision thereof; any agency of ... a State, or a political subdivision of a State." 29 U.S.C. §...