VIRGINIA EMERSON HOPKINS, District Judge.
Pro se Plaintiff Christopher Todd Ruggieri alleges a violation of the Americans with Disabilities Act ("ADA") and the Health Insurance Portability and Accountability Act ("HIPAA"). (See Doc. 1 at 3).
Before the Court are two motions. Defendant City of Hoover (the "City") filed a Motion To Dismiss on May 1, 2018. (Doc. 6). Defendants Melinda James Lopez and Mesha Dacus filed a Motion To Dismiss on the same day. (Doc 7). Plaintiff Ruggieri responded on May 8. (Doc. 14). Defendants filed a joint reply on that same day. (Doc. 15). Mr. Ruggieri then filed a sur-reply three days later. (Doc. 16). Accordingly, this Motion is ripe for review. For the reasons stated in today's opinion, the motions are due to be
Consistent with the standard at the motion to dismiss stage, the Court accepts all the alleged facts in Mr. Ruggieri's Complaint to be true for the purpose of these motions. For the reader's benefit, the Court summarizes what Mr. Ruggieri alleges occurred.
Mr. Ruggieri worked for the City in Information Technology. (See Doc. 1 at 8). Ms. Lopez and Ms. Dacus also worked for the City. (See id. at 2,8). In July 2017, Ms. Lopez and Ms. Dacus ordered Mr. Ruggieri to "undergo psychiatric counseling." (See id. at 8). Mr. Ruggieri recorded this conversation and believes the counseling was unrelated to job performance. (See id.).
Mr. Ruggieri attended counseling with Dr. Lita Clark. (See id.). Dr. Clark told Mr. Ruggieri "that the City of Hoover, through Mesha Dacus, was requiring [him] to waive [his] HIPPA [sic] rights." (See id.). "Dr. Clark instructed [Mr. Ruggieri] that if [he] refused then the sessions would terminate and the City would terminate [his] employment." (See id.). Mr. Ruggieri recorded his therapy sessions. (See id.).
"After the third session, [Mr. Ruggieri] was released from counseling with Dr. Clark stating there was nothing wrong." (Id.). "[Mr. Ruggieri] brought [his] concerns over why [he] was sent to counseling . . . to Mesha Dacus, the City of Hoover Assistant [Human Resources] Director the same day of [his] release." (Id.). "Less than a week later, [Mr. Ruggieri was] called into [Ms. Lopez's] office again, told [his] fears were unfounded, but that [he was] now forbidden from recording any further communications." (Id.).
Mr. Ruggieri filed an EEOC charge on December 21, 2017. (See Doc. 6-1).
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See FED. R. CIV. P. 12(b)(6) ("[A] party may assert the following defenses by motion: (6) failure to state a claim upon which relief can be granted[.]"). The Federal Rules of Civil Procedure require only that the complaint provide "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting FED. R. CIV. P. 8(a)(2)), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007); see also FED. R. CIV. P. 8(a) (setting forth general pleading requirements for a complaint including providing "a short and plain statement of the claim showing that the pleader is entitled to relief").
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8 does not mandate the inclusion of "detailed factual allegations" within a complaint. Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S. Ct. at 103). However, at the same time, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine
A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).
The City argues that the ADA claim "is due to be dismissed because [Mr. Ruggieri] failed to file a charge of discrimination with the EEOC alleging discrimination based on disability." (See Doc. 6 at 1). Indeed, Mr. Ruggieri's EEOC charge does not check the box indicating that he was alleging "discrimination based on" "disability." (See Doc. 6-1 at 2) (capitalization omitted). He checked the box for "discrimination based on" "other." (See id.) (capitalization omitted). Mr. Ruggieri wrote the following:
(Id.).
The City relies on the McWhorter decision to support dismissal. (See Doc. 6 at 2-5) (citing McWhorter v. Nucor Steel Birmingham Inc., 304 F.Supp.3d 1185 (N.D. Ala. 2018)). In that case, "the EEOC charge as drafted gave no notice whatsoever to [d]efendant that [p]laintiff was claiming age or disability discrimination, or retaliation because of opposition to age or disability discrimination or participation in any age or disability proceeding." See McWhorter, 304 F. Supp. 3d at 1192-93. This was because the plaintiff did not check the box corresponding to "age" and "disability" and his intent to bring those claims could not be gleaned from his written description. See id. at 1191. Here, the Defendants argue that this case is factually analogous. (See Doc. 6 at 2-5).
However, this case is distinguishable in a significant way. Here, unlike in McWhorter, Mr. Ruggieri is pro se. See McWhorter, 304 F. Supp. 3d at 1192; (see Doc. 16 at 1) (implying that Mr. Ruggieri prepared the EEOC charge without the benefit of an attorney). The court in McWhorter noted that "[c]ourts have broadly interpreted the scope of administrative charges filed by unrepresented parties." Id. at 1192 (citing Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004)). The Eleventh Circuit in Gregory noted that "[c]ourts are nonetheless `extremely reluctant to allow procedural technicalities to bar claims brought under [Title VII].'" Gregory, 355 F.3d at 1280 (citing another source).
In this case, Mr. Ruggieri focuses on 42 U.S.C. §12112(d)(4)(A) as the reason he is entitled to relief. (See Doc. 1 at 3, 8). That statute states, in relevant part:
42 U.S.C. § 12112(d)(4)(A). This litigation is based on Mr. Ruggieri's EEOC charge which states, in relevant part:
(See Doc. 6-1 at 2).
What Mr. Ruggieri wrote in his EEOC charge matters. The rule is that "[a] plaintiff's judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Muhall v. Advance Sec., Inc., 19 F.3d 586, 589 n.8 (11th Cir. 1994). However, the Eleventh Circuit "has noted that judicial claims are allowed if they `amplify, clarify, or more clearly focus' the allegations in the EEOC complaint, but has cautioned that allegations of new acts of discrimination are inappropriate." Gregory, 355 F.3d at 1279-80 (citing another source).
At bottom, the City argues that Mr. Ruggieri's EEOC charge is deficient. (See Doc. 6 at 4-5). In order to evaluate whether this is so, the Court first examines what the baseline for a sufficient EEOC charge is. The McWhorter court states that "[a] charge must, at minimum, `be in writing and . . . name the prospective respondent and . . . generally allege the discriminatory act(s).'" McWhorter, 304 F. Supp. 3d at 1191 (quoting 29 C.F.R. § 1626.6). This is because "[t]he purpose of the administrative charge is to (1) notify the employer that a charge has been filed and (2) initiate an EEOC investigation." Id. at 1191 (citing EEOC v. Shell Oil Co., 466 U.S. 54, 63, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984)).
Guided by the aforementioned legal authority, the Court determines that Mr. Ruggieri's EEOC charge is sufficient. (See Doc. 6-1 at 2). Mr. Ruggieri's EEOC charge is in writing. (See id.). It names the respondent — the City. (See id.). It generally alleges the discriminatory acts. (See id.) ("On July 6, 2017, I was forced into anger management counseling. I was the only one in my department required to do so, thereby showing it was inconsistent with job requirements and business necessity. Thereafter I was consistently being subjected to verbal disciplines, and I did not receive my annual review or step increase."). It states several dates in connection to the alleged discrimination. (See id.).
The City argues that "the charge of discrimination . . . does not mention disability discrimination or retaliation." (See Doc. 6 at 5). The City is right in that Mr. Ruggieri did not cite any statute in his EEOC charge. (See Doc. 6-1 at 2). He also did not check the "disability" box. (See id.). It appears that Mr. Ruggieri was reluctant to check that box because he is not alleging that he is disabled. (Cf. Doc. 14 at 2). Of course, under the section of the ADA he is litigating, he does not have to allege that he is disabled. In the Eleventh Circuit, "§ 12112(d)(4)(A) protects employees
The City points to the sentence in the EEOC charge referring to PCI compliance to argue that it is irrelevant to an ADA claim. (See Doc. 6 at 4). However, the City overlooks the next sentence where Mr. Ruggieri essentially complains that the City forced him into "anger management counseling" without justification. (See Doc. 6 at 4); (Doc. 6-1 at 2).
Finally, the City argues the following:
(Doc. 6 at 5-6). This argument is unpersuasive for three reasons. First, the City has not provided the Court with any legal authority supporting the proposition that a quick dismissal can give an inference of an insufficient EEOC charge. (See id.). Second, the City states that it was never "ask[ed] . . . for a position statement." (See id.). However, the City has not cited evidence showing this to be the case and "[s]tatements by counsel in briefs are not evidence." Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir.1980).
(Doc. 1 at 9) (emphasis added). Thus, Mr. Ruggieri's EEOC charge was sufficient for the EEOC to conduct an investigation, however short. (See Doc. 1 at 9).
Today's decision is fact specific. The Court declines to find Mr. Ruggieri's EEOC charge deficient when it was not drafted by an attorney, meets the requirements in the Code of Federal Regulations, outlines allegations and facts tracking a provision in the ADA, and provides enough facts for the EEOC to conduct an investigation. Under these circumstances, the Court will not dismiss the case because Mr. Ruggieri did not check the "disability" box. Accordingly, the City's Motion To Dismiss the ADA claim is denied.
The City also argues that the HIPAA claim fails because "[t]here is no private cause of action under HIPAA." (See Doc. 6 at 2). The City is right.
To begin with, Justice Scalia's majority opinion in Alexander v. Sandoval informs this Court's analysis:
Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (emphasis added). "HIPAA contains no express provision creating a private cause of action." Sneed v. Pan American Hosp., 370 F. App'x 47, 50 (11th Cir. 2010). Ergo, "no private right of action exists under the Health Insurance Portability and Accountability Act." Crawford v. City of Tampa, 397 F. App'x 621, 623 (11th Cir. 2010) (citing Acara v. Banks, 470 F.3d 569, 572 (5th Cir.2006)).
Mr. Ruggieri replies by citing to two cases from state courts in Connecticut and New York. (See Doc. 14 at 2-3) (citing Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 102 A.3d 32 (Conn. 2014); Arons v. Jutkowitz, 880 N.E.2d 831 (N.Y. 2007)). However, those cases are not binding authority because this Court is a federal district court in the Eleventh Circuit. Moreover, from reading Mr. Ruggieri's brief, he does not say where in these opinions these state courts have held that an individual can bring a lawsuit directly under HIPAA. (See Doc. 14 at 2-3). In fact, as the Defendants note, Byrne says quite the opposite. (See Doc. 15 at 4) (citing Byrne, 102 A.3d at 35); see also Byrne, 102 A.3d at 45 (calling the fact that there is no private right of action "well settled"). There is a difference between a federal statute guiding a state court's standard of care and a federal statute providing an individual the right to sue in federal court under that statute.
Additionally, any claim that Mr. Ruggieri attempts to bring under the Health Information Technology for Economic and Clinical Health Act (the "HITECH Act") also fails for two reasons. First, nowhere in Mr. Ruggieri's Complaint is the HITECH Act mentioned. (See generally Doc. 1). Instead, Mr. Ruggieri mentions it in his briefs. (See Doc. 14 at 2-3); (Doc. 16 at 1). Second, Mr. Ruggieri has not provided the Court any authority showing that a private individual has a right of action under that statute. Accordingly, the HIPAA claim is dismissed.
Ms. Dacus and Ms. Lopez argue that they cannot be liable under the ADA because they are individuals. (See Doc. 7 at 2-3) (citing Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996); Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007)). Generally, "[the ADA] does not provide for individual liability, only for employer liability." Mason, 82 F.3d at 1009; see also Tobar v. Federal Defenders Middle Dist. of Ga., 618 F. App'x 982, 985 n.2 (11th Cir. 2015) (citing sources) ("[T]here is no individual liability under . . . the ADA.").
Mr. Ruggieri specifically complains of a violation of 42 U.S.C. § 12112(d)(4)(A) and no other section in the ADA. (Doc. 1 at 3). Again, the relevant provision states that "[a]
Mr. Ruggieri has not put forward any legal authority that detracts from the Court's conclusion that he cannot sue an individual under § 12112(d)(4)(A) of the ADA. (See Doc. 14 at 2-3); (Doc. 16 at 1-2). Instead, he argues that dismissing the individual defendants would provide the City "another legal loophole and trick to avoid taking responsibility." (See Doc. 16 at 2). This argument does not detract from legal precedent and the plain language of the ADA— authority that the Court must follow. For that reason, this argument is unpersuasive.
Since the ADA does not provide for individual liability under the provision that Mr. Ruggieri alleges, the ADA claim against Ms. Dacus and Ms. Lopez is due to be dismissed.
The Court previously discussed how Mr. Ruggieri cannot bring a private right of action under HIPAA. That analysis is relevant here. For that reason, the HIPAA claim is dismissed.
Mr. Ruggieri asks the Court for leave to amend the Complaint "if the Court determines [he] has failed to state a claim." (Doc. 14 at 3). Today's opinion is actually favorable to Mr. Ruggieri on his ADA claim against the City. While the Court dismissed Mr. Ruggieri's other ADA and HIPAA claims, amending those claims would be futile because of the legal framework stated above. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)) ("A district court need not, however, allow an amendment . . . where amendment would be futile.").
To the extent not futile, the Court will permit Mr. Ruggieri to submit an entirely new operative amended complaint that would totally replace the original Complaint submitted to the Court. Accordingly, the Court will grant him 14 days to amend his Complaint, if he so chooses.
After consideration of the parties' arguments, this case will proceed on Mr. Ruggieri's ADA claim against the City.
In short, the Court
Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). The EEOC charge meets these two requirements, and the Court considers it here.
Gregory, 355 F.3d at 1280-81.
