Shotz v. City of Plantation, Fla.

Citation344 F.3d 1161
Decision Date08 September 2003
Docket NumberNo. 02-12502.,02-12502.
PartiesFrederick A. SHOTZ, Plaintiff-Appellant, v. CITY OF PLANTATION, FLORIDA, Ron Jacobs, Bob Brekelbaum, Rae Carol Armstrong, Peter Markowitz, d.b.a. Marlowe Investigations, Donald Lunny, Jr., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Miguel M. De La O, Amaury Cruz, Miami, FL, for Plaintiff-Appellant.

Christine M. Duignan, Edmund Bruce Johnson, Johnson, Anselmo, Murdoch, Burke & George, Ft. Lauderdale, FL, Oscar

E. Marrero, O'Connor, Meyers & Lemos, P.A., Coral Gables, FL, for Defendants-Appellees.

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

Before BIRCH, CARNES and HUG*, Circuit Judges.

BIRCH, Circuit Judge:

The Americans with Disabilities Act, § 503, 42 U.S.C. § 12203 (1995) ("ADA" or "the Act"), prohibits retaliation against an individual who has "opposed any act or practice made unlawful by" the Act's anti-discrimination provisions. Part A of Subchapter II of the Act, 42 U.S.C. § 12131-12134, generally makes disability discrimination in the provision of public services unlawful. As a matter of first impression, we decide that § 12203 establishes individual liability for a violation of its prohibitions, where the "act or practice" opposed is one made unlawful by Subchapter II. We also decide that releasing personal information to the media, gained after a public entity regulated by Subchapter II has retained a private investigator to conduct a comprehensive background check, is adverse action for the purpose of establishing a prima facie case of retaliation. In light of these decisions, we REVERSE the district court's order granting summary judgment to some of the individual defendants on the ADA retaliation claim, and REMAND for further consideration consonant with this opinion. As to two of the defendants, however, we AFFIRM summary judgment for lack of evidence.


On summary judgment, "[i]f there is conflict between the plaintiff's and the defendant's allegations or in the evidence, the plaintiff's evidence is to be believed and all reasonable inferences must be drawn in his favor." Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351, 1356 (11th Cir.2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986)). As it does so, we adopt a redacted version of the district court's recitation of the facts.1

In May 2000, Plantation City Council member Leon Hillier requested that [Appellant, Frederick A.] Shotz, an expert in ADA requirements, inspect the recently constructed Community Center at Volunteer Park to determine whether it complied with the requirements of the ADA and the regulations promulgated thereunder. Hillier had requested that Shotz perform the inspection as a favor to him; Shotz was not to be compensated for his efforts. Shotz inspected the building and on May 10, 2000, provided a letter to Hillier setting forth various ADA violations. Hillier, in turn, provided a copy of Shotz's . . . letter to Mayor Armstrong. Ultimately, the other individual Defendants also received a copy or learned of the letter. . . .

. . . .

During a discussion of City issues between City Council Member Jacobs and Assistant Mayor and Finance Director Brekelbaum, the subject of Shotz's letter arose. Brekelbaum decided to make inquiries about Shotz's background and qualifications and informed Jacobs of his intention to do so. Subsequently, Brekelbaum requested a staff member who was working on ADA issues to inquire into Shotz's background. The staff member later verbally reported his findings to Brekelbaum, and Brekelbaum, in turn, shared that information with Jacobs.. . .

. . . Brekelbaum requested the City's Risk Management Department to hire a private investigator to further inquire into Shotz's background and qualifications. Brekelbaum also instructed the investigator to surveil Shotz. . . .

Brekelbaum also requested City Attorney Lunny to conduct a background check on Shotz through a computer data base. The City routinely performs such background checks on contractors bidding for City jobs, as well as others. Brekelbaum did not inform Lunny of the purpose of the background check.

Brekelbaum possessed final decision-making authority to hire the private investigator and to request the City Attorney to conduct a background check. . . .

In early June 2000, Brekelbaum received the investigator's report, along with a surveillance tape.2 Knowing of Jacob[s]'s interest in this information, Brekelbaum provided copies of the materials to him. Jacobs had not known the details of the investigation until Brekelbaum gave him the materials. Upon receiving the investigatory materials,. . . City Council Member Jacobs decided to release the information about Shotz to the media.

R2-68 at 2-4 (certain footnotes omitted). That information consisted of Shotz's criminal, credit, and driving records, medical history, involvement in professional disciplinary and other civil proceedings, property ownership, social relationships, including an ongoing conflict with a neighbor, as well as a criminal report involving his wife.

Shotz filed suit in district court against the City of Plantation, Florida ("City") and the individual defendants, alleging retaliation in violation of the ADA, deprivation of his clearly established constitutional rights to freedom of speech and to petition the government for redress of grievances, in violation of 42 U.S.C. § 1983, and violation of his common law right of privacy under Florida law. The district court declined to exercise supplemental jurisdiction and dismissed the state law claim, and subsequently granted summary judgment to the defendants on the ADA and § 1983 claims. Shotz appeals summary judgment on the ADA claim, and the dismissal of his state law claim.3

A. The ADA Retaliation Claim

In granting summary judgment to the defendants, the district court reasoned that individual defendants may not be sued in their personal capacities under the ADA's anti-retaliation provision, and that the public release of Shotz's personal information was not sufficiently adverse to establish a prima facie case of retaliation against the City. We review summary judgment awards de novo, using the district court's legal standards. See McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir.2002).

1. Individual Liability

The individual defendants argue that Shotz's claim is not cognizable because individuals cannot be held liable under the Act's anti-retaliation provision. Summary judgment is appropriate in those cases in which "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). However, "[t]he existence of a difficult or complicated question of law, when there is no issue as to the facts, is not a bar to a summary judgment." Ammons v. Franklin Life Ins. Co., 348 F.2d 414, 417 (5th Cir.1965). Thus, if the appellees are right, they are entitled to summary judgment as a matter of law. We now address this issue of first impression.

The anti-retaliation provision states that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a).4 The question here is whether private individuals may sue under § 12203 to redress retaliation by other individuals, where the conduct opposed is made unlawful by Subchapter II of the ADA concerning public services.5 Accordingly, we must interpret the statute to determine whether it exhibits an intent to render individuals personally liable.6

To illuminate statutory intent, we apply the traditional tools of statutory construction. Though malleable, our methodology is subject to certain rules. "The first rule in statutory construction is to determine whether the `language at issue has a plain and unambiguous meaning with regard to the particular dispute.'" United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 903, 154 L.Ed.2d 786 (2003) (citation omitted). "[W]e must presume that Congress said what it meant and meant what it said." United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc). "In our circuit, `[w]hen the import of the words Congress has used is clear . . . we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.'" United States v. Weaver, 275 F.3d 1320, 1331 (11th Cir.2001), (quoting Harris v. Garner, 216 F.3d 970, 976 (11th Cir.2000) (en banc)), cert. denied, 536 U.S. 961, 122 S.Ct. 2666, 153 L.Ed.2d 840 (2002). If "the statutory language is not entirely transparent," we employ traditional canons of construction before "reverting to legislative history . . . [to] assist [us] in determining the meaning of a particular statutory provision by focusing on the broader, statutory context." CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225 (11th Cir.2001). "[C]ourts may reach results inconsistent with the plain meaning of a statute [only] `if giving the words of a statute their plain and ordinary meaning produces a result that is not just unwise but is clearly absurd.'" Id. at 1228 (citation omitted). "If the statutory language is ambiguous, however, courts may examine extrinsic materials, including legislative history, to determine Congressional intent." Fed. Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1239 (11th Cir. 2000). Our analysis therefore begins with the plain meaning of the text.

a. The Anti-Retaliation...

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