The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LUIS A. GONZALEZ-BARRETO,
Plaintiff,
v. CASE NO. 8:18-cv-3024-T-23JSS
FLORIDA DEPARTMENT OF
CHILDREN AND FAMILIES,
Defendant.
__________________________________/
ORDER
Appearing pro se and demanding $14 million in damages, Luis Gonzalez-
Barreto sues his former employer, the Florida Department of Children and Families,
for disability discrimination under the ADA and race discrimination under Title VII.
Also, Gonzalez-Barreto asserts tort claims under Florida’s common law. The
Department, a Florida agency, moves (Doc. 37) to dismiss for failure to state a claim
and asserts immunity, and Gonzalez-Barreto opposes (Doc. 42). The complaint
alleges the following facts, which are presumed true in resolving the sufficiency of the
complaint to state a claim.
BACKGROUND
Although Gonzalez-Barreto declines to name his disability, Gonzalez-Barreto
suffered a “back [and] neck injury” that has caused “musculoskeletal, neurological,
and digestive” dysfunction. (Doc. 9 at ¶ 1) In November 2014, a physician
diagnosed Gonzalez-Barreto as suffering from “an emergency medical condition . . .
manifesting itself by acute sufficient severity that the absence of immediate medical
attention could reasonably be expected to result in serious jeopardy to patient health
. . . .” (Doc. 9 at ¶ 1)
In early 2015, one Paul Regan became the “Operations Management
Consultant” at the Department and assumed supervisory authority over Gonzalez-
Barreto. (Doc. 9 at ¶ 2) Regan began “harassing” Gonzalez-Barreto by “gruffly”
instructing Gonzalez-Barreto to remain at his desk, by “forcing” Gonzalez-Barreto to
use a non-ergonomic chair, and by prohibiting Gonzalez-Barreto’s using a cellular
telephone during meetings. (Doc. 9 at ¶ 18)
In March 2015, Regan “removed [Gonzalez-Barreto] from telework status”
but “did not remove any other ESS1 from telecommuting.” (Doc. 9 at ¶ 3)1 After
the removal of Gonzalez-Barreto’s telework status, Regan reduced Gonzalez-
Barreto’s score on a monthly “performance assessment,” but Gonzalez-Barreto
alleges that the reduced performance resulted from increased pain attendant to
working in the office instead of teleworking. (Doc. 1 at ¶ 16)
From June 2015 until March 2017, Gonzalez-Barreto weekly requested
permission to telework, but Gonzalez-Barreto received no response from Regan or
1 Presumably, an “ESS1” is Gonzalez-Barreto’s title of employment at the Department. The
amended complaint contains no allegation describing Gonzalez-Barreto’s work for the Department.
from other supervisors. (Doc. 9 at ¶ 13) In August 2016, Gonzalez-Barreto
submitted a physician’s note and requested an ergonomic chair, but Regan allegedly
refused the doctor’s note, declined to help Gonzalez-Barreto locate the forms to
request an ADA accommodation, and instructed Gonzalez-Barreto to request
assistance from the human resources department. (Doc. 9 at ¶ 19) In December
2016, Gonzalez-Barreto asked Regan “if there is anything else [he] could do to
telecommute,” and Regan instructed Gonzalez-Barreto to request FMLA leave but
again “failed to tell [Gonzalez-Barreto] where to find” the FMLA form. (Doc. 9 at
¶ 21)
In February 2017, Regan reportedly refused to resolve Gonzalez-Barreto’s
request to telework and advised Gonzalez-Barreto to search for different
employment. (Doc. 9 at ¶ 22) And in March 2017, Regan denied the request to
telework and claimed that Gonzalez-Barreto had failed to furnish adequate medical
records. (Doc. 9 at ¶ 24) Two weeks later, however, Gonzalez-Barreto learned that
his request to telework remained pending before the human resources department.
(Doc. 9 at ¶ 25) Later that day, Gonzalez-Barreto learned from a supervisor that
Regan could authorize Gonzalez-Barreto to telework “on the basis of health care”
and without requiring the approval of an ADA accommodation or FMLA leave.
(Doc. 9 at ¶ 26) After learning that Regan for two years had purportedly misled
Gonzalez-Barreto about the requirements to telework and had “walked [Gonzalez-
Barreto] in circles,” Gonzalez-Barreto “experience[d] an emotional brake-down [sic]”
and requested that Regan remain outside Gonzalez-Barreto’s range of perception.
(Doc. 9 at ¶¶ 26, 28) During a meeting with the human resources department the
following day, Gonzalez-Barreto’s request to telework was approved, but the human
resources department “intentionally inflict[ed] emotional distress” by permitting
Regan to appear at the meeting and by gesturing toward Regan. (Doc. 9 at ¶ 29)
From July 2017 until March 2018, Betty Thomas, presumably a co-worker,
“produce[d]” unspecified false statements and accusations against Gonzalez-Barreto.
(Doc. 9 at ¶ 32) Also, Pari Afordeh, presumably a co-worker, declared that
Gonzalez-Barreto was “full of shit.” On March 13, 2018, Gonzalez-Barreto received
a “Notice of Intent to Dismiss from Employment.” (Doc. 9 at ¶ 33) Gonzalez
internally appealed, but the Department issued a “Notice of Final Action —
Dismissal” three days after the appeal. (Doc. 9 at ¶¶ 34, 35)
After Gonzalez-Barreto’s dismissal, the Department and other unnamed
government agencies allegedly defamed Gonzalez-Barreto by disclosing unspecified
“private information” to certain medical facilities and to a church attended by
Gonzalez-Barreto. (Doc. 9 at ¶ 37) Also, Gonzalez-Barreto alleges that, in concert
with unnamed affiliates of unnamed government agencies, the Department retaliated
against Gonzalez-Barreto’s filing a charge of discrimination by firing Gonzalez-
Barreto and by directing unnamed proxies of the Department to “shoot[] guns in
front of the house,” to “knock[] and attempt[] to open doors” at Gonzalez-Barreto’s
home, “to cause vehicle accidents,” and to subject Gonzalez-Barreto to “constant
surveillance.” (Doc. 9 at ¶ 53)
DISCUSSION
Gonzalez-Barreto claims that the preceding conduct by the Department
constitutes race discrimination under Title VII and disability discrimination under
the ADA (Count I), negligence (Count II), harassment (Count III), retaliation
(Count IV), intentional infliction of emotional distress (Count V), defamation
(Count VI), invasion of privacy (Count VII), and “coercing” (Count VIII). Moving
to dismiss each count, the Department argues (1) that sovereign immunity bars the
ADA claim and the tort claims based on disability discrimination, (2) that Gonzalez-
Barreto fails to state a Title VII claim, and (3) that Gonzalez-Barreto fails to state a
plausible claim under Florida law.
1. Immunity from the ADA claims and the state-law claims.
Under the Eleventh Amendment, “nonconsenting States may not be sued by
private individuals in federal court.” Bd. of Trs. v. Garrett, 531 U.S. 356, 363 (2001).
Immunity under the Eleventh Amendment extends to a state agency, such as the
Department. Jackson v. Florida Dep’t of Children & Families, 2010 WL 11565364, at *2
(N.D. Fla. 2010). A state or state agency waives sovereign immunity only if the state
“unequivocally express[es]” consent to suit in federal court. Garrett, 531 U.S. at 363.
Although Gonzalez-Barreto nominally sues under Title III of the ADA, which
prohibits discrimination in a place of public accommodation, and alleges no facts
suggesting that the Department denied Gonzalez-Barreto’s enjoying any public
accommodation, a charitable construction of Gonzalez-Barreto’s pro se complaint
confirms that Gonzalez-Barreto purports to sue under Title I of the ADA, which
requires an employer to accommodate reasonably a disabled employee. Although
Title I of the ADA applies to state agencies, Title I of the ADA fails to abrogate a
state’s immunity under the Eleventh Amendment, Board of Trustees of University of
Alabama v. Garrett, 531 U.S. 356, 362–363 (2001), and neither Florida nor the
Department has waived Eleventh Amendment immunity or consented to suit under
Title I of the ADA. The Department is immune from Gonzalez-Barreto’s claim
under Title I of the ADA (Count I), the claim for ADA “harassment” (Count III),
the claim for ADA “coercing” (Count VIII), and the claim for ADA retaliation
(Count IV).2
Also, Gonzalez-Barreto claims negligence (Count II), defamation (Count VI),
and invasion of privacy (Count VII) under Florida’s common law. Although Section
768.28, Florida Statutes, waives sovereign immunity for certain tort actions, Section
768.28 has not waived Florida’s immunity from suit in federal court under the
Eleventh Amendment.3 Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir. 1990). That
2 Gonzalez-Barreto attributes the claims for “harassment” and “coercing” to the ADA.
(Doc. 9 at ¶ 1)
3 Section 768.28(18) states, “No provision of this section, or of any other section of the
Florida Statutes . . . shall be construed to waive the immunity of the state or any of its agencies from
suit in federal court, as such immunity is guaranteed by the Eleventh Amendment to the
Constitution of the United States . . . .”
is, to assert a tort claim against a Florida agency in accord with Section 768.28’s
waiver of sovereign immunity, the plaintiff must sue in state court and comply with
Section 768.28’s notice and other requirements. Ross v. Dep’t of Children and Families,
2014 WL 12625122, at *3 (M.D. Fla. 2014) (Davis, J.) (dismissing under the
Eleventh Amendment a negligence claim against the Department). Accordingly, the
Eleventh Amendment bars the state-law tort claims.4
2. Gonzalez-Barreto fails to state a Title VII claim.
Claiming that the Department discriminated against Gonzalez-Barreto’s
Hispanic heritage, Gonzalez-Barreto relies on one allegation only: “Paul Regan
selected a white female, Erin Broderick, to fill the position of Senior Economic Self-
Sufficiency, although I was better qualified for the position.” (Doc. 9 at ¶ 14) To
state a claim based on a failure to promote, Gonzalez-Barreto must allege facts
showing, among other things, that he applied for the position and that he possessed
the requisite qualifications. Sridej v. Brown, 361 F. App’x 31, at *2 (11th Cir. 2010).
Gonzalez-Barreto alleges no facts describing the qualifications for the position of
4 Also, each state-law claim suffers at least one defect. The negligence claim fails because
Gonzalez-Barreto identifies no common-law duty requiring an employer to accommodate an
employee’s disability. White v. NCL America, Inc., 2006 WL 1042548, at *6 (S.D. Fla. 2006) (Seitz,
J.). The claim for intentional infliction of emotional distress fails because the alleged conduct — a
co-worker’s calling Gonzalez-Barreto “full of shit,” Regan’s wrongly advising about the requirement
to obtain telework status, and Regan’s appearance within Gonzalez-Barreto’s range of perception —
is not “outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and
utterly intolerable in a civilized community.” Deauville Hotel Mgm’t, LLC v. Ward, 219 So. 3d 949,
955–56 (Fla. 3rd DCA 2017). The defamation claim fails because Gonzalez-Barreto identifies
neither a false statement nor a publication of the false statement. Finally, Gonzalez-Barreto fails to
state a claim for invasion of privacy because Gonzalez-Barreto neither describes the information
disclosed nor alleges facts plausibly suggesting that a reasonable person would find the disclosure
“objectionable.” Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003).
“Senior Economic Self-Sufficiency,” alleges no facts describing his qualifications,
and alleges no facts showing that he applied for the position. Gonzalez-Barreto’s
assertion that he “was better qualified” is a legal conclusion, which warrants no
consideration on a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
CONCLUSION
Because Eleventh Amendment immunity bars both the ADA claims and the
state law claims and because Gonzalez-Barreto fails to state a plausible Title VII
claim, the motion (Doc. 37) to dismiss is GRANTED, and the amended complaint is
DISMISSED. No later than JUNE 29, 2020, Gonzalez-Barreto may amend the
complaint.5 If the amended complaint contains a discrimination claim, Gonzalez-
Barreto must append to the complaint a copy of the charge filed with the EEOC.
Gonzalez-Barreto’s motion (Doc. 43) for clarification of an order denying Gonzalez-
Barreto’s second motion for reconsideration is DENIED.
A CAUTION TO MR. GONZALEZ-BARRETO
Litigation in federal court is difficult and requires timely compliance with
applicable rules, including the Federal Rules of Civil Procedure, the Local Rules, the
Federal Rules of Evidence, and several procedural, discovery, and other orders. A
judge cannot assist a party, even a pro se party, in conducting an action, and a
plaintiff enjoys only a limited opportunity to amend the complaint. Mr. Gonzalez-
5 Absent timely amendment, this dismissal order becomes the final judgment. Auto. Alignment
& Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 720 (11th Cir. 2020).
Barreto’s management of this action strongly suggests that Mr. Gonzalez-Barreto
will benefit from the advice and assistance of a lawyer. Finally, the Department has
raised immunity as a defense to Mr. Gonzalez-Barreto’s claims, and sovereign
immunity affords the Department immunity from suit. The knowing maintenance of
an action despite the defendant’s entitlement to immunity might — on occasion —
subject the plaintiff to a monetary or other sanction. Therefore, Mr. Gonzalez-
Barreto is strongly advised — before amending the complaint — to obtain legal
advice and assistance from a member of The Florida Bar.
ORDERED in Tampa, Florida, on June 12, 2020.
ALIA W rye
_ STEVEND.MERRYDAY □□
UNITED STATES DISTRICT JUDGE
-9-