Opinion
Case No. 4:20-cv-262-AW-MJF
2020-10-21
Kelly MARSEY, Plaintiff, v. STATE BOARD OF ADMINISTRATION OF FLORIDA, Defendant.
Tiffany Rousseau Cruz, Friedman Abrahamsen & Cruz, Tallahassee, FL, for Plaintiff. Lisa Barclay Fountain, Robert Jacob Sniffen, Sniffen & Spellman PA, Tallahassee, FL, for Defendant.
Tiffany Rousseau Cruz, Friedman Abrahamsen & Cruz, Tallahassee, FL, for Plaintiff.
Lisa Barclay Fountain, Robert Jacob Sniffen, Sniffen & Spellman PA, Tallahassee, FL, for Defendant.
ORDER GRANTING MOTION TO DISMISS
Allen Winsor, United States District Judge
Plaintiff Kelly Marsey filed a host of claims against her former employer, the State Board of Administration. This order concerns just two—Counts V and IX. In Count V, Marsey alleges that the SBA violated the Rehabilitation Act and that she is entitled to damages. In Count IX, she alleges First Amendment violations under 42 U.S.C. § 1983. The SBA moves to dismiss these counts. As to the Rehabilitation Act claim, the SBA argues that Marsey's allegations do not support a damages award. As to the § 1983 claim, the SBA argues it is not a "person" under § 1983 and, regardless, has Eleventh Amendment immunity. I conclude that the SBA's motion should be granted.
I.
The SBA was created by the Florida Constitution. ECF No. 25 (FAC) ¶ 5. It invests and manages state retirement and pension plans. See id. ¶ 10. Marsey worked as the SBA's Director of Performance and Risk Analytics. Id. ¶¶ 11-12, 18, 22.
For purposes of the SBA's motion to dismiss, Marsey's factual allegations are accepted as true. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The same is true for the SBA's alternative request to strike. Reyher v. Trans World Airlines, Inc. , 881 F. Supp. 574, 576 (M.D. Fla. 1995).
In early August 2019, Marsey reported a claim of gender bias brought to her attention by a woman she supervised. Id. ¶ 24. Marsey had previously complained of gender bias and discrimination at the SBA but did not feel that her complaints were taken seriously. See id. ¶¶ 24, 28-30. Instead, she believes the SBA retaliated against her. Id. ¶ 31.
From mid-August to November 2019, Marsey took FMLA leave. Id. ¶ 34. When she returned, she found many of her duties assigned to another employee. Id. ¶¶ 38-39. She disagreed with that employee's decision to remove certain safeguards and controls, and she reported her concerns to the SBA Inspector General. Id. ¶¶ 40-41, 44. All the while, the SBA's retaliation continued. Id. ¶ 43.
In December 2019, Marsey filed charges of discrimination with the FCHR and EEOC. Id. ¶ 45. In response, the SBA's general counsel sent a letter instructing employees to only speak with her about Marsey's pending claims. Id. ¶ 46. Then, in February 2020, the SBA terminated Marsey. Id. ¶ 55. This lawsuit followed.
Marsey sued the SBA's general counsel, Maureen Hazen, for First Amendment violations under § 1983. FAC at 29. That claim was voluntarily dismissed, and Hazen is no longer a defendant. ECF No. 37.
II.
The SBA moves to dismiss Marsey's Rehabilitation Act claim, or, alternatively, to strike the demand for damages. ECF No. 31 at 3, 7-9. To recover damages under the Rehabilitation Act, a plaintiff must show deliberate indifference to prove discriminatory intent. Liese v. Indian River Cty. Hosp. Dist. , 701 F.3d 334, 342, 348 (11th Cir. 2012) ; see also McCullum v. Orlando Reg'l Healthcare Sys., Inc. , 768 F.3d 1135, 1146-47 (11th Cir. 2014). Here, even when drawing all reasonable inferences in favor of the nonmovant, Newton v. Duke Energy Fla., LLC , 895 F.3d 1270, 1275 (11th Cir. 2018), I find that Marsey's pleading falls short.
A plaintiff establishes "deliberate indifference" when she shows (1) "that the defendant knew that harm to a federally protected right was substantially likely," and (2) "failed to act on that likelihood." McCullum , 768 F.3d at 1147 (quotations omitted). Marsey has not alleged facts to show that the SBA knew harm to her was substantially likely. Marsey's allegations do not clearly identify her disability, let alone that the SBA knew about it. Marsey references a "perceived disability," see, e.g. , FAC ¶¶ 4, 39, 57, 79, 85, 91, but the complaint is silent as to any detail that would show (i) what the claimed disability was or (ii) how the SBA was to be aware of it. The SBA could not protect Marsey from discrimination based on a disability it didn't know about. Marsey's allegations do not establish deliberate indifference, and therefore she has failed to state a claim for damages under the Rehabilitation Act. See Boynton v. City of Tallahassee , 650 F. App'x 654, 658-59 (11th Cir. 2016) (finding that plaintiff failed to allege deliberate indifference where there were no allegations that employer knew about his disability).
Marsey's allegations here are paradigmatic of a shotgun complaint. See Weiland v. Palm Beach Cty. Sheriff's Off. , 792 F.3d 1313, 1320 (11th Cir. 2015). The thrust of Marsey's complaint is that the SBA retaliated against her for speaking up about gender discrimination and policy changes she disagreed with. But none of this has anything to do with discrimination against Marsey based on an unidentified disability. Her complaint nonetheless incorporates the same paragraphs into each separate claim, leaving the reader trying to figure out which facts support which claims. Chudasama v. Mazda Motor Corp. , 123 F.3d 1353, 1359 n.9 (11th Cir. 1997). This supports a separate, independent grounds for dismissal. See Cramer v. Florida , 117 F.3d 1258, 1263 (11th Cir. 1997) ; see also Wagner v. First Horizon Pharm. Corp. , 464 F.3d 1273, 1280 (11th Cir. 2006) ("Given the district court's proper conclusions that the complaint was a shotgun pleading and that plaintiffs' failed to connect their causes of action to the facts alleged, the proper remedy was to order repleading sua sponte. "). Accordingly, the SBA's motion will be granted as to Count V. Marsey may replead as to the Rehabilitation Act. And she must replead as to the remaining claims and avoid another shotgun complaint.
III.
The SBA also moves to dismiss Marsey's § 1983 First Amendment claim, through which she claims the letter from the SBA's general counsel restricted her from speaking with other employees about her pending claims. FAC ¶¶ 46, 114, 118. Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ....
42 U.S.C. § 1983 (emphasis added). The SBA argues that Marsey's claim should be dismissed because (1) it is not a "person" under § 1983, and (2) it is immune under the Eleventh Amendment. The SBA is correct on both points.
In Will v. Michigan Department of State Police , the Supreme Court held "that a State is not a person within the meaning of § 1983." 491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). This holding has been understood to include state agencies as well. Edwards v. Wallace Cmty. Coll. , 49 F.3d 1517, 1524 (11th Cir. 1995) ; McGuire v. Fla. Lottery , 520 F. App'x 850, 851 (11th Cir. 2013) ("[T]he ‘Florida Lottery,’ does not constitute a ‘person’ under § 1983, and enjoys immunity as a state agency pursuant to the Eleventh Amendment."); McGinley v. Fla. Dep't of Highway Safety & Motor Vehicles , 438 F. App'x 754, 756 (11th Cir. 2011) ("The Florida Highway Patrol is a state agency, and as such the McGinleys can not bring a § 1983 claim against it.").
State agencies are also immune from suit under the Eleventh Amendment unless immunity has been abrogated or waived. Carr v. City of Florence , 916 F.2d 1521, 1524-25 (11th Cir. 1990) ; see also Manders v. Lee , 338 F.3d 1304, 1308 (11th Cir. 2003). Congress did not abrogate state sovereign immunity in enacting § 1983. Will , 491 U.S. at 66, 109 S.Ct. 2304. Nor has the State of Florida waived its immunity in this context. Howlett by & Through Howlett v. Rose , 496 U.S. 356, 364, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990).
So the question is whether the SBA is a state agency. If it is, then the SBA is not a person under § 1983 and it is immune from suit. To determine if an entity is a state agency, courts consider "(1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity." Manders , 338 F.3d at 1309. While Marsey pleaded that the "SBA is not a ‘state agency’ " (FAC ¶ 8), this allegation does not control the court's inquiry. Instead, the Florida Constitution and statutes related to the SBA show that it is an arm of the state.
Legal conclusions are not accepted as true. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. For her assertion that the SBA is not an agency and is not part of the executive branch, Marsey's complaint cites § 216.011 of the Florida Statutes, which includes a lengthy list of definitions. FAC ¶ 8. She provides no explanation, but presumably she means to reference subsection (qq), which includes a list of state agencies and does not include the SBA. § 216.011(qq), Fla. Stat (2020). But that list is explicitly nonexhaustive, id. (" ‘state agency’ or ‘agency’ includes, but is not limited to ...." (emphasis added)), and the SBA meets the broader ambit of the definition provided there—" ‘State agency’ or ‘agency’ means any official, officer, commission, board, authority, council, committee, or department of the executive branch of state government." Id. On top of that, the SBA is listed as part of the "Organizational Structure" of the "Executive Branch" in Chapter 20 of Title IV of the Florida Statutes. See § 20.28, Fla. Stat. (2020).
The Florida Constitution created the SBA. Art. IV, § 4(e), Fla. Const. The SBA is described in Article 4, Section 4 of the Florida Constitution, which concerns the executive branch, and more specifically the cabinet. It is led by Florida's governor, chief financial officer, and attorney general. Id. The SBA is tasked with investing "all the funds in the System Trust Fund, ... and all other funds specifically required by law to be invested by the board." § 215.44(1), Fla. Stat. It also may invest funds of state agencies, universities, and local governments. Id. Florida law treats the SBA like a state entity, and it is no doubt controlled by the State. Further, each year the SBA is required to prepare an operating budget to submit to the state's legislative appropriation committees and the Executive Office on the Governor. Id. § 215.44(4). Therefore, its funds come from the State, and judgments against it would be paid from those funds. In sum, each factor weighs in favor of a finding that the SBA is a state agency. Cf. Treadstone Capital Mgmt., L.P. v. TBTW Holdings , No. 1:09-CV-1099, 2010 WL 1038653, at *3-4 (W.D. Mich. Mar. 18, 2010) (finding that the SBA is an arm of the State of Florida for purposes of determining diversity jurisdiction); Fla. State Bd. of Admin. v. All. Capital Mgmt., L.P. , No. 02-CA-1104, 2003 WL 22719563, at *1 (Fla. Cir. Ct. Jan. 21, 2003) (concluding that "[c]learly, the [SBA] is an ‘agency’ " and documents in its possession as a state agency are public records subject to the Public Records Act).
Because the SBA is a state agency, it is not a "person" for § 1983 purposes, and it also enjoys Eleventh Amendment immunity. As a result, Marsey's § 1983 claim fails. And because there is no repleading that could save Marsey's claim, Count IX is dismissed with prejudice.
IV.
The SBA's motion to dismiss and strike (ECF No. 31) is GRANTED. Marsey's claim for damages under the Rehabilitation Act in Count V is DISMISSED WITHOUT PREJUDICE. Marsey's § 1983 claim is DISMISSED WITH PREJUDICE. Marsey must file an amended complaint within 14 days that matches each factual allegation to the count (or counts) it supports.
SO ORDERED on October 21, 2020.