[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 26, 2007
No. 06-15969 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60979-CV-JAL
ADEM A. ALBRA,
Plaintiff-Appellant,
versus
ADVAN, INC.,
WAYNE ABBOTT,
TROY ABBOTT,
MYRIAM ABBOTT,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 26, 2007)
Before BLACK, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Adem Albra, proceeding pro se, appeals the district court’s dismissal of his
complaint brought pursuant to the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et. seq., and the Florida Omnibus AIDS Act (“FOAA”), Fla. Stat.
§ 760.50. As a matter of first impression, we hold that individuals are not
amenable to private suit for violating the ADA’s anti-retaliation provision, 42
U.S.C. § 12203, where the act or practice opposed by the plaintiff is made unlawful
by the ADA provisions concerning employment, 42 U.S.C. §§ 12111-12117. We
also hold that individuals are not amenable to private suit for violating
§ 760.50(3)(b) of the FOAA.
I. BACKGROUND
On July 3, 2006, Albra filed a pro se complaint against his employer, Advan,
Inc., and Advan officers Wayne Abbott, Troy Abbott, and Myriam Abbott
(collectively, the “Abbotts”). In the complaint, Albra alleged discrimination and
retaliation based on his HIV status in violation of the ADA and the FOAA. On
August 8, 2006, Albra executed service to Advan’s registered agent, Wayne
Abbott, by sending a copy of the summons (but not the complaint) via U.S. mail.
The Return of Service showed that Albra listed himself as the process server. On
August 17th, Myriam was served by a non-party to the lawsuit. Albra filed a
2
notice of Advan’s failure to answer the complaint on August 28th. In that notice,
Albra stated that he had “followed Rule 4 of the Federal Rules of Civil Procedure
and mailed the summons to the Registered Agent of the Corporation, Wayne
Abbott.” On August 31st, service was executed to Wayne in his personal capacity.
On September 19th, pursuant to Federal Rule of Civil Procedure 12(b)(5),
Advan filed a motion to dismiss the complaint for insufficiency of service. On that
same date, pursuant to Rule 12(b)(6), Myriam and Wayne filed a motion to dismiss
for failure to state a claim upon which relief may be granted on the ground that
claims against individual defendants are not cognizable under either the ADA or
the FOAA. Finally, service was executed to Troy on October 4th, and shortly
thereafter, he notified the district court that he joined in Myriam and Wayne’s
motion to dismiss.
In a written order, the district court granted Advan’s motion to dismiss,
concluding that Albra had failed to effectuate service upon Advan in accordance
with Rule 4(c) because he had personally served Advan through the mail. In that
same order, the court granted the Abbotts’ motion to dismiss, holding that neither
the ADA nor the FOAA countenance individual liability. In so holding, the court
dismissed Albra’s complaint against Advan without prejudice and dismissed the
complaint with prejudice as to the Abbotts. Albra now appeals.
3
II. DISCUSSION
On appeal, Albra argues that the district court erred in dismissing his
complaint because (1) Advan was properly served, and (2) individual defendants
may be liable under the ADA and the FOAA. Advan has moved for sanctions
pursuant to Federal Rule of Appellate Procedure 38 on the ground that Albra’s
appeal is frivolous. We address each argument in turn.1
A. Service of Advan
Albra argues that service to Advan was proper because he mailed a copy of
the summons to Advan’s registered agent, Wayne Abbott, who was also named as
a defendant in the action. “We review the district court’s grant of a motion to
dismiss for insufficient service of process under [Federal Rule of Civil Procedure]
12(b)(5) by applying a de novo standard to the law and a clear error standard to
any findings of fact.” Prewitt Enters., Inc. v. Org. of Petroleum Exporting
Countries, 353 F.3d 916, 920 (11th Cir. 2003).
Federal Rule of Civil Procedure 4(c) provides that service of process shall be
effected by serving a summons “together with a copy of the complaint. . . . within
the time allowed under [Rule 4(m)] . . . . by any person who is not a party and who
1
Albra also raises several other arguments on appeal that were not presented in the
district court below. “[A]rguments not presented in the district court will not be considered for
the first time on appeal.” Sterling Fin. Inv. Group, Inc. v. Hammer, 393 F.3d 1223, 1226 (11th
Cir. 2004). We therefore do not address these arguments.
4
is at least 18 years of age.” Fed. R. Civ. P. 4(c) (emphasis added). A defendant’s
actual notice is not sufficient to cure defectively executed service. See Schnabel v.
Wells, 922 F.2d 726, 728 (11th Cir. 1991) (interpreting former Rule 4(j)),
superseded in part by rule as stated in Horenkamp v. Van Winkle And Co., Inc.,
402 F.3d 1129, 1132 n.2 (11th Cir. 2005). And although we are to give liberal
construction to the pleadings of pro se litigants, “we nevertheless have required
them to conform to procedural rules.” Loren v. Sasser, 309 F.3d 1296, 1304 (11th
Cir. 2002).
Here, the record demonstrates that Albra, the plaintiff in the suit, served
Advan by mailing a copy of the summons without attaching a copy of the
complaint. Accordingly, Albra failed to properly effect service upon Advan in
accordance with Rule 4(c), and the district court’s grant of Advan’s motion to
dismiss was proper.
B. Dismissal of Albra’s Complaint against the Abbotts
Albra also argues that the Abbots, as owners, officers, and managers of
Advan, constitute “employers” under the ADA and the FOAA, and the district
court thus erred in dismissing his complaint against them. A district court’s
dismissal for failure to state a claim under Rule 12(b)(6) is reviewed de novo. Hill
v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Questions of law, such as the
5
construction of a statute, are also reviewed de novo. Konikov v. Orange County,
Fla., 410 F.3d 1317, 1321 (11th Cir. 2005).
1. ADA Claims
The ADA prohibits disability discrimination in three areas: employment,
public services, and public accommodations. Shotz v. City of Plantation, Fla., 344
F.3d 1161, 1166 n.5 (11th Cir. 2003). Subchapter I of the ADA, which prohibits
discrimination on account of disability in employment, covers the same employers
and provides the same remedies contained in Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e(b). See 42 U.S.C. §§ 12111-12117.
Subchapter II bars discrimination by any state or local government entity (that is,
discrimination in public services) and affords the remedies outlined in Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794. See 42 U.S.C. §§ 12131-
12165. Subchapter III prohibits discrimination by public accommodations and
incorporates the remedies of Title II of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000a-3(a). See 42 U.S.C. §§ 12181-12189. And Subchapter IV sets forth
various miscellaneous provisions, including the ADA’s anti-retaliation provision,
42 U.S.C. § 12203. See 42 U.S.C. §§ 12201-12213.
a. Discrimination Under the ADA
Albra argues that the Abbotts are personally liable under the ADA for
6
discriminating against him on account of his HIV status. The anti-discrimination
provision of Subchapter I of the ADA provides that “[n]o covered entity shall
discriminate against a qualified individual with a disability because of the
disability of such individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training,
and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
The term “covered entity” means “an employer, employment agency, labor
organization, or joint labor-management committee.” Id. § 12111(2).
The ADA’s definition of “employer” is similar to that under Title VII and
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 630(b), and
this court has held that neither of those Acts countenance individual liability.
Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996). In light of our
construction of Title VII and the ADEA, we also have held that individual
defendants are not amenable to private suit for violating the anti-discrimination
provision of Subchapter I of the ADA. Id.
Here, Albra’s ADA discrimination claim names the Abbotts as defendants in
their individual capacities. Because individual liability is precluded for violations
of the ADA’s employment discrimination provision, we conclude that the district
court properly dismissed Albra’s discrimination claim against the Abbotts.
7
b. Retaliation Under the ADA
The ADA’s general anti-retaliation provision provides that “[n]o person
shall discriminate against any individual because such individual has opposed any
act or practice made unlawful by this chapter . . . .” 42 U.S.C. § 12203(a)
(emphasis added). In the instant case, Albra argues that the Abbotts are personally
liable under the ADA for retaliating against him after he filed formal charges of
discrimination with the Equal Employment Opportunity Commission (“EEOC”)
and the Florida Commission on Human Relations. Thus, the issue before this court
is whether individual defendants may be personally liable for violating the ADA’s
anti-retaliation provision when the “act or practice” opposed by the plaintiff is
made unlawful by the ADA provisions concerning employment (Subchapter I).
In Shotz, a panel of this court held that individual liability is not precluded
for violations of the ADA’s anti-retaliation provision, 42 U.S.C. § 12203(a), where
the act or practice opposed by the plaintiff is made unlawful by the ADA
provisions concerning public services, 42 U.S.C. §§ 12131-12165 (Subchapter II).
Shotz, 344 F.3d at 1179-80. In so holding, the Shotz panel first examined the plain
language of § 12203 and noted that this provision “is the only anti-discrimination
provision in the ADA that uses the unqualified term ‘person’ to define the
regulated entity.” Id. at 1168. The panel also observed that in Subchapter I of the
8
ADA (the provisions regarding employment), the term “person” is defined to
include “individuals.” Id. Stating that it “may consider Congress’s use of a
particular term elsewhere in the statute to determine its proper meaning within the
context of the statutory scheme[,]” the Shotz panel concluded that “the
anti-retaliation provision not only unequivocally confers on those whom it protects
a federal right to be free from retaliation, but also imposes a correlative duty on all
individuals to refrain from such conduct.” Id. But according to the panel, “[t]hat a
statutory provision imposes such a duty on a class of actors . . . does not compel
the further conclusion that individual members of that class are amenable to private
suit or otherwise liable for a breach of that duty.” Id.
The Shotz panel then examined the remedies created by the ADA, noting
that the remedies for persons injured by retaliation in the public services context
incorporate the remedies set forth in Title VI of the 1964 Civil Rights Act, 42
U.S.C. §§ 2000d et seq., and courts generally have concluded that Title VI
precludes individual liability. Shotz, 344 F.3d at 1169-75. But the panel went on
to state that “[e]ven were we to ignore the plain meaning [of § 12203(a)] and look
only to the available Title VI remedies in determining the scope of liability, we still
could not conclusively establish that Congress intended to preclude individual
liability under § 12203.” Id. at 1173. According to the panel, such an “approach
9
might make sense for a violation of § 12203 in the employment context[,]” as in
that context, “the aggrieved person is ultimately referred to the remedies provided
by Title VII of the Civil Rights Act of 1964, which prohibits discrimination by the
same entities as prohibited by Subchapter I of the ADA regulating employment,
and . . . those remedies do not include suit against individuals.” Shotz, 344 F.3d at
1173 (citations omitted). But the Shotz panel determined that in the public services
context, “allowing the remedial provisions to govern the scope of liability would
deviate considerably from the intent and purpose of the statute” because “[t]he
ADA makes any public entity liable for prohibited acts of discrimination,
regardless of funding source[,]” while “Title VI remedies are available only against
federal funds recipients.” Id. at 1174 (citation omitted) (emphasis in original). The
panel therefore concluded that the scope of liability of § 12203 in the public
services context could not be confined to that of Title VI. Id. at 1175.
Finding the plain language and statutory structure unhelpful in ascertaining
Congress’s intent, the Shotz panel turned to the legislative history and purpose of
the ADA and found both to be “equally unhelpful.” Id. at 1176-77.
The panel then examined the Department of Justice (“DOJ”) regulations
construing the ADA. Id. at 1177. The relevant DOJ regulation provides that “[n]o
private or public entity shall discriminate against any individual because that
10
individual has opposed any act or practice made unlawful by this part . . . .” 28
C.F.R. § 35.134. The DOJ defines a “private entity” as “a person or entity other
than a public entity.” 28 C.F.R. § 36.104 (emphasis added). And the appendix to
the regulations provides that
Section 35.134 implements section 503 of the ADA, which prohibits
retaliation against any individual who exercises his or her rights under
the Act. . . . [T]he section applies not only to public entities subject to
this part, but also to persons acting in an individual capacity or to
private entities. For example, it would be a violation of the Act and
this part for a private individual to harass or intimidate an individual
with a disability in an effort to prevent that individual from attending
a concert in a State-owned park.
28 C.F.R. pt. 35, App. A at 532, 56 Fed.Reg. 35,696, 35,707 (July 26, 1991)
(“Preamble to Regulation on Nondiscrimination on the Basis of Disability in State
and Local Government Services,” “Section-by-Section Analysis”). From this
language, the Shotz panel concluded that the DOJ “has interpreted § 12203 as
rendering those individuals acting in their individual capacities amenable to private
suit.” Shotz, 344 F.3d at 1177.
After stating that “Congress expressly authorized the Attorney General to
make rules with the force of law interpreting and implementing the ADA
provisions generally applicable to public services[,]” the Shotz panel concluded
11
that the DOJ’s construction of § 12203 was reasonable and accorded Chevron 2
deference to the DOJ regulations. Id. at 1179. The panel thus held that “an
individual may be sued privately in his or her personal capacity for violating
§ 12203 in the public services context.” Id. at 1180.
In reaching its holding, the Shotz panel expressly declined to decide whether
individual liability is also precluded for violation of the ADA’s anti-retaliation
provision in the employment context. Id. at 1173. Thus, as stated above, the
question before us in the instant case is whether individual defendants may be
personally liable for violating § 12203 when the act or practice opposed by the
plaintiff is made unlawful by the ADA provisions concerning employment—that
is, Subchapter I.
We first look to the plain language of § 12203(a), which, again, provides
that “[n]o person shall discriminate against any individual because such individual
has opposed any act or practice made unlawful by this chapter . . . .” 42 U.S.C.
§ 12203(a) (emphasis added). As the Shotz panel noted, § 12203(a) “is the only
anti-discrimination provision in the ADA that uses the unqualified term ‘person’ to
define the regulated entity[,]” and Subchapter I of the ADA defines the word
“person” to include “individuals.” Shotz, 344 F.3d at 1168 (citing 42 U.S.C.
2
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778,
81 L.Ed.2d 694 (1984).
12
§ 12111(7)). But Subchapter I’s definition of “person” explicitly incorporates the
definition of “person” articulated in Title VII. 42 U.S.C. § 12111(7) (“The term[ ]
‘person’ . . . shall have the same meaning given such term[ ] in section 2000e of
this title[,]” which defines “person” as, inter alia, “includ[ing] one or more
individuals,” 42 U.S.C. § 2000e(a)). And although Title VII defines the term
“employer” to include “persons,” and the term “persons” is defined to include
“individuals,”3 42 U.S.C. § 2000e(a)-(b), this court has long held that individuals
are not amenable to private suit under Title VII. Mason, 82 F.3d at 1009; Smith v.
Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995); Busby v. City of Orlando, 931 F.2d
764, 772 (11th Cir. 1991). Thus, § 12203’s use of the word “person” rather than
the term “entity” or “employer” is not dispositive in determining whether an
individual may be personally liable for violating this provision. See Shotz, 344
F.3d at 1168. We therefore turn to the remedies created by the statute.
The remedies for violation of the ADA’s anti-retaliation provision in the
employment context are set forth in 42 U.S.C. § 12117. 42 U.S.C. § 12203(c).4
3
“The term ‘employer’ means a person engaged in an industry affecting commerce who
has fifteen or more employees for each working day in each of twenty or more calendar weeks in
the current or preceding calendar year . . . .” 42 U.S.C. § 2000e(b) (emphasis added). “The term
‘person’ includes one or more individuals, governments, governmental agencies, political
subdivisions, labor unions, partnerships, associations, corporations . . . .” Id. § 2000e(a)
(emphasis added).
4
Section 12203(c) provides:
The remedies and procedures available under sections 12117, 12133, and 12188
13
Section 12117, in turn, explicitly incorporates the remedies available under Title
VII. See id. § 12117(a);5 Baird v. Rose, 192 F.3d 462, 471-72 (4th Cir. 1999).
Title VII “prohibits discrimination by the same entities as prohibited by
Subchapter I of the ADA regulating employment . . . .” Shotz, 344 F.3d at 1173
(emphasis added). And, as stated above, this court has held that there is no
individual liability for violations of Title VII. Mason, 82 F.3d at 1009; Smith, 45
F.3d at 403 n.4; Busby, 931 F.2d at 772. Thus, in Mason, this court construed the
ADA’s employment discrimination provision, 42 U.S.C. § 12112(a), in light of
Title VII and concluded that “there is no sound reason to read the [ADA] any
differently from this Court’s reading of Title VII . . . .” Mason, 82 F.3d at 1009.
In Shotz, this court determined that limiting the scope of remedies for
violations of § 12203 in the public services context (Subchapter II) to that available
under Title VI “would deviate considerably from the intent and purpose of the
of this title shall be available to aggrieved persons for violations of subsections
(a) and (b) of this section, with respect to subchapter I, subchapter II and
subchapter III of this chapter, respectively.
42 U.S.C. § 12203(c).
5
Section 12117(a) provides:
The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5,
2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and
procedures this subchapter provides to the [Equal Employment Opportunity]
Commission, to the Attorney General, or to any person alleging discrimination on
the basis of disability in violation of any provision of this chapter, or regulations
promulgated under section 12116 of this title, concerning employment.
42 U.S.C. § 12117(a).
14
[ADA,]” because Subchapter II of “the ADA makes any public entity liable for
prohibited acts of discrimination, regardless of funding source[,]” while “Title VI
remedies are available only against federal funds recipients.” Shotz, 344 F.3d at
1174 (emphasis in original). But in the employment context, “the aggrieved
person is ultimately referred to the remedies provided by Title VII[,] . . . which
prohibits discrimination by the same entities as prohibited by Subchapter I of the
ADA regulating employment, and . . . those remedies do not include suit against
individuals.” Shotz, 344 F.3d at 1173 (citations omitted) (emphasis added). Thus,
unlike the public services context at issue in Shotz, limiting the scope of remedies
available for violations of § 12203 in the employment context to those remedies
available under Title VII would not deviate considerably from the intent and
purpose of the ADA. And unlike the DOJ regulations interpreting the ADA (at
issue in Shotz), neither the EEOC regulations interpreting the ADA nor the
EEOC’s interpretive guidance accompanying those regulations state that
individuals acting in their individual capacities are amenable to private suit.6 See
6
Although Congress delegated authority to the EEOC to implement Subchapter I of the
ADA, see 42 U.S.C. § 12116, the ADA’s anti-retaliation provision, § 12203, is outside of
Subchapter I, and the Supreme Court has stated that “[n]o agency . . . has been given authority to
issue regulations implementing the generally applicable provisions of the ADA.” Sutton v.
United Airlines, Inc., 527 U.S. 471, 479, 119 S.Ct. 2139, 2145, 144 L.Ed.2d 450 (1999). As
such, the degree of deference, if any, courts owe the EEOC regulations implementing the ADA’s
generally applicable provisions is an open question. See id. at 480, 119 S.Ct. at 2146; Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194, 122 S.Ct. 681, 689, 151 L.Ed.2d 615
(2002); Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 762 n.7 (3d Cir.
15
29 C.F.R. § 1630.2; 29 C.F.R. pt. 1630, App., 56 Fed. Reg. 35,726, 35,739-35,753
(July 26, 1991) (“Interpretive Guidance on Title I of the Americans with
Disabilities Act”).
For these reasons, we conclude that individual liability is precluded under
§ 12203 where the act or practice opposed by the plaintiff is made unlawful by
Subchapter I of the ADA.
2. FOAA Claim
Finally, Albra argues that the Abbotts are personally liable for
discriminating against him in violation of the FOAA, Fla Stat. § 760.50. In
relevant part, the FOAA provides:
No person may fail or refuse to hire or discharge any individual,
segregate or classify any individual of employment opportunities or
adversely affect his status as an employee, or otherwise discriminate
against any individual with respect to compensation, terms,
conditions, or privileges of employment on the basis of knowledge or
belief that the individual has taken a human immunodeficiency virus
test or the results or perceived results of such test unless the absence
of human immunodeficiency virus infection is a bona fide
2004); Waldrip v. Gen. Elec. Co., 325 F.3d 652, 655 n.1 (5th Cir. 2003); Pollard v. High’s of
Baltimore, Inc., 281 F.3d 462, 468 n.2 (4th Cir. 2002). Nonetheless, the Supreme Court’s
pronouncements in Sutton and Toyota strongly suggest that these regulations are not entitled to
Chevron deference to the extent they interpret ADA provisions outside of Subchapter I. See
Sutton, 527 U.S. at 479-80, 119 S.Ct. at 2145-46; Toyota, 534 U.S. at 194, 122 S.Ct. at 689; see
also Waldrip, 325 F.3d at 655 n.1. Here, however, we need not determine what deference is due
because, as stated above, the relevant regulations and interpretive guidelines do not state that
individuals acting in their individual capacities are amenable to private suit. See 29 C.F.R.
§ 1630.2; 29 C.F.R. pt. 1630, App., 56 Fed. Reg. 35,726, 35,739-35,753 (July 26, 1991)
(“Interpretive Guidance on Title I of the Americans with Disabilities Act”).
16
occupational qualification of the job in question.
Fla. Stat. § 760.50(3)(b).
Although this court has yet to address the issue of individual liability under
the FOAA, in Huck v. Mega Nursing Services, Inc., the District Court for the
Southern District of Florida found “the spirit of the [FOAA]” to be similar to that
of Title VII and the ADA “in the area of employer/employee liability.” 989
F. Supp. 1462, 1464 (S.D. Fla. 1997). The Huck court thus concluded that
In light of the language of the [FOAA] and upon reviewing the case
law of similar statutes, this Court is convinced that the Florida
Legislature did not intend to provide a cause of action against
individual employees. Rather, the [FOAA] creates a cause of action
for employees who have been discriminated against by their
employing entity.
Id. at 1464-65. We agree.
Section 760.50(2) of the FOAA provides that “[a]ny person with or
perceived as having [AIDS, AIDS-related complex, or HIV] shall have every
protection made available to handicapped persons.” Fla. Stat. § 760.50(2)
(emphasis added). The Florida Civil Rights Act (“FCRA”), Fla. Stat.
§ 760.01-760.10, provides that it is an unlawful employment practice for an
employer to discriminate against an individual on the basis of, inter alia, an
individual’s “handicap.” Fla. Stat. § 760.10(1)(a) (emphasis added). “The FCRA
is modeled after Title VII, so that federal case law regarding Title VII is applicable
17
to construe the Act.” Byrd v. BT Foods, Inc., 948 So. 2d 921, 925 (Fla. 4th DCA
2007). “As applied to discrimination based on a handicap, the FCRA is construed
in conformity with the federal Americans with Disabilities Act (ADA).”7 Id.
(emphasis added); McCaw Cellular Commc’ns of Fla. v. Kwiatek, 763 So. 2d
1063, 1065 (Fla. 4th DCA 1999).
Because the FOAA provides that persons with HIV or AIDS “shall have
every protection made available to handicapped persons,” Fla. Stat. § 760.50(2)
(emphasis added), the FCRA prohibits employment discrimination on the basis of
an individual’s handicap, Fla. Stat. § 760.10(1)(a), and the FCRA is to be
“construed in conformity with the” ADA, Byrd, 948 So. 2d at 925, we conclude
that the FOAA’s employment discrimination provisions shall also be construed in
conformity with the ADA. And because we have held that individual liability is
precluded for violations of the ADA’s anti-discrimination provision in the
employment context, Mason, 82 F.3d at 1009, we thus conclude that an individual
may not be sued privately in his or her personal capacity for violating the FOAA’s
employment discrimination provisions. Accordingly, the district court’s dismissal
7
Notably, the District Courts of the Middle, Northern, and Southern District of Florida
have held that individual employees may not be sued under the FCRA’s employment
discrimination provisions. See Lapar v. Potter, 395 F. Supp. 2d 1152, 1160 (M.D. Fla. 2005);
King v. Auto, Truck, Indus. Parts and Supply, Inc., 21 F. Supp. 2d 1370, 1382-83 (N.D. Fla.
1998); Huck, 989 F. Supp. at 1464. Thus, persons claiming employment discrimination based
on a handicap may not sue individual defendants in their individual capacities under either the
FCRA or the federal ADA. See Lapar, 395 F. Supp. 2d at 1160; Mason, 82 F.3d at 1009.
18
of Albra’s FOAA claim against the Abbots was proper.
C. Advan’s Motion for Rule 38 Sanctions
Advan argues that this court should impose sanctions against Albra under
Federal Rule of Appellate Procedure 38 because Albra’s claims on appeal are
“frivolous” in light of the “well-settled law.” Rule 38 provides that “[i]f a court of
appeals determines that an appeal is frivolous, it may, after a separately filed
motion or notice from the court and reasonable opportunity to respond, award just
damages and single or double costs to the appellee.” Fed. R. App. P. 38.
Here, Albra’s appeal was not “frivolous,” as this court’s resolution of the
appeal required us to decide two issues of first impression in this circuit. We
therefore deny Advan’s motion for Rule 38 sanctions.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s dismissal of
Albra’s complaint against Advan and the Abbotts, and we DENY Advan’s motion
for sanctions.
19
Adem A. Albra v. Advan, Inc.
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2007-06-26
Citations: 490 F.3d 826
Copy CitationsCombined Opinion