Schaeffer v. Sch. Bd. of Broward Cnty.
| Decision Date | 07 November 2014 |
| Docket Number | Case No. 14-CIV-61972-BLOOM/Valle |
| Parties | MARC SCHAEFFER, Plaintiff, v. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
This matter is before the Court upon Defendant School Board of Broward County, Florida's Motion to Dismiss, ECF No. [11]. The Court has reviewed the Motion, all opposing and supporting filings, and the record in this case, and is otherwise fully advised in the premises. For the reasons that follow, the Court now denies Defendant's Motion.
This matter stems from Plaintiff Marc Schaeffer's allegedly unlawful termination from his position as a substitute teacher. See ECF No. [1]. As a result of his termination, Plaintiff Schaeffer ("Plaintiff") commenced this action on August 28, 2014, asserting violations of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12201 et seq., against the School District of Broward County, Florida ("Defendant"). See id. Plaintiff suffers from Type I Diabetes, and, as a result, is required to take regular injections of insulin five to seven times a day. Id. at ¶ 15. If he fails to take his medication on a regular basis, Plaintiff exposes himself to countless risks, including, but not limited to, the inability to walk, care for himself, or performbasic life functions such as seeing, hearing, standing, and communicating. See id. at ¶ 16. For three years prior to his termination, Plaintiff was able to perform his job as a substitute teacher at New River Middle School with reasonable accommodation. See id. at ¶ 23. When Plaintiff was required to take his injection, he would place a call the administration informing them of the matter. Id. at ¶ 25. The administration would then send a relief faculty member so that Plaintiff could step out and privately administer the injection. Id.
On January 13, 2013, Plaintiff was working at New River Middle School when he was required to take his injection. Id. at ¶¶ 28-29. As was customary, he called administration in order to request relief. Id. at ¶ 29. Although he spoke with an administrator, no relief arrived. Id. at ¶ 30. Plaintiff called and requested relief for a second time. Id. Again, no relief arrived. See id. at ¶ 30-31. Consequently, Plaintiff was obligated to either leave the children unattended, or take the injection while still in the classroom. See id. at ¶¶ 31-32. He opted for the latter, taking his injection as discretely as possible. See id. The next day, January 14, 2013, Plaintiff realized that his future assignments had been cancelled. Id. at ¶ 33. On January 15, 2013, Plaintiff called New River Middle School where he was informed that his employment was terminated because he "was shooting up drugs in the classroom." Id. at ¶ 34.
As a result of his termination, Plaintiff filed the instant action, bringing claims for failure to accommodate in violation of the ADA by virtue of Defendant's failure to provide a relief faculty member so that he could administer his medication (Count I), and discrimination in violation of the ADA because he took his required medication in the classroom (Count II). See id. at ¶¶ 48-53. Defendant now seeks to dismiss Plaintiff's Complaint for failure to comply with the notification requirements of § 768.28(6), Florida Statutes. See ECF No. [11].
A pleading in a civil action must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (). Nor can a complaint rest on "'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). The Supreme Court has emphasized "[t]o survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002).
Defendant asserts that Plaintiff has not alleged that he has complied with all conditions precedent and exhausted his administrative remedies prior to initiating this action. Section 768.28, Florida Statutes provides in its pertinent part:
Fla. Stat. § 768.28(6)(a) and (b). Pursuant to the statute, a plaintiff must satisfy the notice requirements prior to maintaining a lawsuit against a subdivision of the State, "and the complaint must contain an allegation that such notice was given." Fletcher v. City of Miami, 567 F. Supp. 2d 1389, 1393 (S.D. Fla. 2008) (quoting Diversified Numismatics, Inc. v. City of Orlando, Fla., 783 F. Supp. 1337, 1347 (M.D. Fla. 1990)). Generally, an action pursued without first satisfying the statutory notice provision must be dismissed without prejudice, so that plaintiff may amend his complaint to comply with the requirement. Id. (citation omitted). However, where the time for notice has expired and it is evident that the plaintiff cannot fulfill the requirement, a dismissal with prejudice is warranted. Id. (citing Wagatha v. City of Satellite Beach, 865 So. 2d 620, 622 (Fla. 5th DCA 2004)).1
Defendant avers that because it is a subdivision of the State of Florida, Plaintiff was required to present his claims in writing and obtain pre-suit authorization. Plaintiff does not dispute that he did not first notify the appropriate agency or the Florida Department of Financial Services prior to commencing this lawsuit. See ECF No. [12]. Rather, Plaintiff contends that the pre-suit requirements under § 768.28, Florida Statutes, are inapplicable to his federal claims under the ADA. See id. The Court agrees.
Section 768.28 is entitled "Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions." Fla. Stat. § 768.28 (emphasis supplied). Subdivision (a) speaks to the purpose of the statute:
[T]he state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act."
Fla. Stat. § 768.28 (1) (emphasis supplied). Pursuant to this language, the notification requirement applies solely to state-law tort claims. Indeed, "[t]he sole purpose for the enactment of section 768.28 was to waive sovereign immunity for breaches of common law torts." Bifulco v. Patient Bus. & Fin. Servs., Inc., 997 So. 2d 1257, 1258 (Fla. 5th DCA 2009) approved and remanded, 39 So. 3d 1255 (Fla. 2010) (citing Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985)) (emphasis supplied). Consequently, the pre-suit notification requirement under § 768.28(6), "was only intended to apply to suits for whichimmunity was waived by enactment of the statute, to wit: common law torts" Id. (emphasis supplied).2 Plaintiff's claims are brought pursuant to the ADA, and are therefore neither state law causes of action nor claims sounding in tort.3 See Gutman v. Quest Diagnostics Clinical Labs., Inc., 707 F. Supp. 2d 1327, 1332 (S.D. Fla. 2010) (); see also McElrath v. Burley, 707 So. 2d 836, 839 (Fla. 1st DCA 1998) (). Accordingly, the notification requirement set forth in § 768.28 is inapplicable to the case at bar. Cf. Majette v. O'Connor, 811 F.2d 1416, 1418 (11th Cir. 1987) (). Moreover, "Congress [has] expressly abrogated states' eleventh amendment sovereign immunity with respect to ADA claims." Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489, 1494-95 (S.D. Fla. 1994) (c...
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