The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 2:19-CV-14311-ROSENBERG/MAYNARD
BRIAN SELL,
Plaintiff,
v.
FLORIDA DEPARTMENT OF HEALTH,
OKEECHOBEE COUNTY HEALTH
DEPARTMENT,
Defendant.
/
ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION TO DISMISS
THIS CAUSE is before the Court on Defendant Florida Department of Health, Okeechobee
County Health Department’s 12(b)(1) Motion to Dismiss. The Court has considered the Motion
(DE 6), Plaintiff’s Response (DE 7), and Defendant’s Reply (DE 10), and is fully advised in the
premises. For reasons that follow, the Motion is GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND1
Plaintiff Brian Sell was employed by Defendant Florida Department of Health, Okeechobee
County Health Department beginning in 2011 and was eventually promoted to the position of
Operations & Management Consultant Manager in September 2016. Plaintiff had an array of duties
over the course of his employment, including work on various health-related, philanthropic, and
emergency response programs. Among Plaintiff’s duties was to deploy in the case of a disaster or
emergency situation. Deployment occurs only upon authorization from the Florida Division of
Emergency Management, and orders to deploy are issued by the Florida Department of Health’s
1 The facts in this part are derived from Plaintiff’s Complaint and are accepted as true. DE 1.
Bureau of Preparedness and Response. Plaintiff was deployed twice during his employment: once
after a tornado in April 2017, and once after a mass hospitalization in June 2018.
Plaintiff is a U.S. Army veteran identified by the U.S. Department of Veterans Affairs as 80
percent disabled. He suffers from post-traumatic stress disorder, chronic fatigue syndrome,
fibromyalgia, sleep apnea, osteoarthritis, degenerative disc disease, sarcoidosis, and a severe allergy
to bee venom. The treatment for sarcoidosis produces side effects, including diabetes, high blood
pressure, shortness of breath, tachycardia, and immunosuppression. Plaintiff’s supervisor, Tiffany
Collins, was responsible for approving his leave for numerous medical appointments, and she was
on notice of Plaintiff’s health issues and his status as a veteran. Plaintiff was hospitalized in May
2018 following an anaphylactic reaction requiring ongoing treatment by Plaintiff’s allergist. This
treatment prevented Plaintiff from deploying for more than five days at a time and limited his
ability to perform his deployment duties.
In October 2018, Collins directed Plaintiff to volunteer for deployment following Hurricane
Michael. Deploying upon activation was one of Plaintiff’s job duties, so he would have been
deployed regardless of whether he volunteered. Plaintiff was concerned about his ability to deploy,
believing that his medical condition would prevent him from doing certain work and that
deployment would interfere with his weekly medical treatment. Plaintiff nonetheless listed himself
as a volunteer for fear of losing his job. On October 19, 2018, Plaintiff applied for leave under the
Family and Medical Leave Act on the advice of Lison Philor, who was covering for Collins while
she was out of the office. Plaintiff and Philor asked Katherine Stake, Human Resources Director,
whether Plaintiff was eligible for FMLA leave, who replied that he was eligible on October 23,
2018.
The same day, Collins sent a Termination Justification Request to Deputy Secretary for
Health Paul Myers. Collins argued that Plaintiff had made numerous attempts to avoid deployment,
and that his requested FMLA leave was an attempt to avoid deployment. Collins stated that no
record in Plaintiff’s file indicated a disability accommodation was needed. On October 24, 2018,
Plaintiff’s allergist completed the certification required for FMLA leave, but Plaintiff was
terminated the same day. Plaintiff further alleges that a female employee, Dacia Garcia, was
excused from deployment after providing a doctor’s note.
Plaintiff seeks damages under the Americans with Disabilities Act of 1990, 42 U.S.C. §
12101 et seq. (“ADA”); the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.
(“FMLA”); and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.
Defendant moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1), arguing
that the Court lacks subject-matter jurisdiction because the claims are barred by the Eleventh
Amendment.
II. LEGAL STANDARD
Eleventh Amendment immunity “is in the nature of a jurisdictional bar” that “should be
decided at an early stage.” Ross v. Jefferson Cty. Dep’t. of Health, 701 F.3d 655, 659 (11th Cir.
2012) (quoting Bouchard Transp. Co. v. Fla. Dep’t. of Envtl. Prot., 91 F.3d 1445, 1448 (11th Cir.
1996)) (internal quotation marks omitted). In ruling on a Rule 12(b)(1) motion to dismiss for lack
of subject-matter jurisdiction, courts may consider matters outside the pleadings without converting
the motion into one for summary judgment. See Fed. R. Civ. P. 12(d). Motions under Rule
12(b)(1) can be categorized as either “facial attacks” or “factual attacks.” Garcia v. Copenhaver,
Bell & Assoc., M.D.’s, P.A., 104 F.3d 1256, 1260 (11th Cir. 1997) (quoting Lawrence v. Dunbar,
919 F.2d 1525, 1529 (11th Cir. 1990)). A facial attack is an assertion that the complaint fails to
allege a basis for subject-matter jurisdiction, which the court resolves by looking to the complaint
alone. Id. at 1260. A factual attack disputes “the existence of subject matter jurisdiction in fact,
irrespective of the pleadings.” Id. (quoting Lawrence, 919 F.2d at 1529). “If the facts necessary to
sustain jurisdiction do not implicate the merits of plaintiff’s cause of action, then . . . ‘the trial court
is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.’” Id.
(quoting Lawrence, 919 F.2d at 1529).
III. DISCUSSION
“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not
be sued by private individuals in federal court.” Bd. of Tr. Of Univ. of Ala. v. Garrett, 531 U.S.
356, 363 (2001). “The Eleventh Amendment protects the immunity of not only the states, but of
state agencies and entities that function as an ‘arm of the state.’” Ross v. Jefferson Cty. Dep’t. of
Health, 701 F.3d 655, 659 (11th Cir. 2012) (citing Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir.
2003) (en banc)). Four factors are relevant to determining whether an entity acts as an arm of the
state in performing a given function: “(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.” Id. at 660 (quoting Manders, 338 F.3d at 1309). In
weighing these factors, the most important consideration is how state courts treat the entity. Id. at
659. Finally, Congress may abrogate states’ Eleventh Amendment immunity, but only if it does so
“unequivocally” and “pursuant to a valid grant of constitutional authority.” Garrett, 531 U.S. at
363 (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)) (internal quotation marks
omitted).
a. ADA
Plaintiff does not argue that the State of Florida has waived Eleventh Amendment immunity
with respect to any of his claims. See Fla. Stat. § 768.28(18) (stating that no statute shall be
construed to be a waiver of Eleventh Amendment immunity “unless such waiver is explicitly and
definitely stated to be a waiver of the immunity of the state and its agencies from suit in federal
court”). Further, Congress did not validly abrogate Eleventh Amendment immunity with respect to
Plaintiff’s claim under the ADA’s employment provisions. Ross, 701 F.3d at 659 (citing Garrett,
531 U.S. at 374). Accordingly, Plaintiff’s ADA claim must be dismissed if Defendant is an arm of
the state. The parties have not identified any cases from Florida courts specifically stating whether
county health departments are considered state agencies. Although authority appears to be sparse,
Florida’s Fourth District Court of Appeals has described a county health department as “a
subdivision of the State of Florida, Department of Health.” Goodman v. Martin County Health
Dep’t., 786 So. 2d 661, 663 n.1 (Fla. Dist. Ct. App. 2001). Proceeding to the four-part inquiry, the
Court concludes that Defendant is an arm of the state.
i. State law defines Defendant as a state agency for personnel purposes.
First, state law defines the county health departments as agencies of the State of Florida.
The organic statute for the Florida Department of Health provides that the Department “shall plan
and administer its public health programs through its county health departments.” Fla. Stat. §
20.43(5) (emphasis added). Further, the director and administrator of each county health
department “shall be appointed by the State Surgeon General after the concurrence of the boards of
county commissioners of the respective counties.” Fla. Stat. § 154.04(1)(b). And most importantly
for present purposes, Florida law provides:
The personnel of the county health department shall be employed by the Department
of Health. The compensation of such personnel shall be determined under the rules of
the Department of Management Services. Such employees shall engage in the
prevention of disease and the promotion of health under the supervision of the
Department of Health.
§ 154.04(2) (emphasis added). This statutory scheme compels the conclusion that state law
defines county health departments as state entities. Plaintiff makes two arguments in response.
First, he correctly notes that the operations of county health departments are also governed by
contractual arrangements between the Florida Department of Health and county boards of
commissioners. See Fla. Stat. §154.001 (“[T]he Legislature intends that the public health needs of
the several counties be provided through contractual arrangements between the state and each
county.”); § 154.01(3) (“The Department of Health shall enter into contracts with the several
counties for the purposes of this part. All contracts shall be negotiated and approved by the
appropriate local governing bodies on behalf of the department.”). However, Defendant submitted
in its briefing the contract2 between the Department of Health and the Okeechobee County Board of
County Commissioners in effect at the time of Plaintiff’s termination. It echoes section 154.04(2),
providing that the “CHD and its personnel shall follow all State policies and procedures” and that
“[a]ll CHD employees shall be State or State-contract personnel subject to State personnel rules and
procedures.” Id. at 3.
Second, Plaintiff cites two Florida Attorney General opinions for the proposition that county
health departments are not state entities. The first opinion, issued in 1985, concluded that county
health departments are public agencies and therefore subject to public-records laws, describing them
in passing as “agenc[ies] of county government.” Op. Att’y Gen. Fla. 85-79 (1985). The opinion
did not discuss in depth the division of authority between the state and counties with respect to
county health departments.
The second opinion, issued in 2000, concluded that county health departments are agencies
of the counties rather than the state in the context of tax levies pursuant to section 154.02. Op.
Att’y Gen. Fla. 2000-19. Under Florida law, counties are authorized to impose a tax to contribute to
the County Health Department Trust Fund. Fla. Stat. § 154.02(2). The Attorney General concluded
that such a tax would count toward the statutory and state constitutional maximum tax that counties
could impose on real property and tangible personal property. The opinion also cited, in addition to
2 The Court considers the contract because the Defendant’s Motion is a factual rather than facial attack on subject-
matter jurisdiction; both parties have presented facts outside the Complaint. DE 7-1; DE 10-1, 10-2, 10-3, 10-4.
Whether Defendant is an arm of the State of Florida does not implicate an element of Plaintiff’s causes of action; rather,
it implicates this Court’s ability to decide the case. Accordingly, this Court may “weigh the evidence and satisfy itself
as to the existence” of subject-matter jurisdiction. Garcia, 104 F.3d at 1260 (quoting Lawrence, 919 F.2d at 1529).
the 1985 opinion discussed above, opinions from 1974 and 1966. Op. Att’y Gen. Fla. 2000-19 n.11.
The 1974 opinion concluded that county health departments are county agencies and therefore the
Florida Department of General Services was not required to approve their facilities leases. Op.
Att’y Gen. Fla. 74-381 (1974). The 1966 opinion concluded that funds raised for the county health
departments through county taxation are county funds, even though they are deposited with the state
treasurer. Op. Att’y Gen. Fla. 66-84 (1966).
These opinions are inapposite because none of them speak to the “function” at issue here:
personnel decisions. In Ross v. Jefferson County Department of Health, the Eleventh Circuit
considered a similar case in which an employee who was terminated from the Jefferson County
Department of Health in Alabama sued under the ADA and Title VII. 701 F.3d 655. Holding that
the county health department was an arm of the State of Alabama, the Court stated: “Because Ross
sued about her allegedly wrongful termination, the ‘function’ at issue is the termination of
employees, and state law establishes that the state controls that function.” Id. at 660. Even a
precisely on-point opinion of the Attorney General would not be dispositive of the arm-of-the-state
inquiry, because it is to state courts that deference is principally owed. Id. at 559. And where, as
here, the cited opinions do not address the function at issue in this case––terminating employees—
they do not disturb the conclusion that state law defines county health departments as arms of the
state for personnel purposes.
ii. The state decides whether to terminate Defendant’s personnel.
The State of Florida controls the decision whether to terminate Defendant’s personnel, who
by statute are “employed by the Department of Health.” § 154.04(1)(b). Plaintiff’s own Complaint
acknowledges that, prior to terminating him, his supervisor sent a “Termination Justification
Request” to Deputy Secretary Paul Myers in the Florida Department of Health. DE 1 ¶ 52. The
need to submit a request to terminate an employee evidences the state’s control over the decision.
In response, Plaintiff cites a case denying Eleventh Amendment immunity for The Public Health
Trust of Miami-Dade County, but the Health Trust is not equivalent to a county health department.
The Health Trust is managed by a board of trustees appointed by the county, and “the state itself
maintains no degree of control over the Health Trust’s employment related functions.” Singleton v.
Pub. Health Tr. of Miami-Dade Cty., 203 F. Supp. 3d 1181, 1188 (S.D. Fla. 2016).
iii. Most of Defendant’s funding comes from the State of Florida.
The State of Florida is responsible for most of Defendant’s funding for the relevant period.
The 2018–19 contract between Okeechobee County and the Department of Health provides:
The State’s appropriated responsibility . . . is an amount not to exceed $1,674,223.00.
. . . The State’s obligation to pay under this contract is contingent upon an annual
appropriation by the Legislature.
The County’s appropriated responsibility . . . is an amount not to exceed $210,000.00.
DE 10-3, at 2. Defendant also submitted the Okeechobee County Health Department
Spending Plan for Fiscal Year 2018–19.3 DE 10-4. The plan indicates that local contributions
account for $157,500 out of a $2,104,443 budget, or approximately 7.5 percent. State contributions
account for $1,520,336, or 72.2 percent of the budget.4 The remaining revenue consists of various
federal funds, fees, and miscellaneous sources. That the State of Florida is responsible for the lion’s
share of funding weighs in favor of determining that Defendant an arm of the state.
iv. A judgment against Defendant would be paid from Florida’s Risk Management Trust
Fund.
Florida maintains a State Risk Management Trust Fund, under which the state generally
insures “all departments of the State of Florida and their employees, agents, and volunteers.” Fla.
Stat. § 284.31. See also Fla. Stat. § 284.385 (“All departments covered by the State Risk
3 The Court considers the plan for the reasons discussed supra note 2.
4 Plaintiff submitted an excerpt from Okeechobee County’s proposed 2018–19 budget. DE 7-1. It indicates a proposed
appropriation of $243,169 for Defendant, but the document does not include the amount of any funding from other
sources.
Management Trust Fund under this part shall immediately report all known or potential claims to
the Department of Financial Services for handling. . . . The payment of a settlement or judgment for
any claim covered and reported under this part shall be made only from the State Risk Management
Trust Fund.”). Defendant represents that it is covered by this provision, which is supported by case
law. DE 10, at 9. In Goodman v. Martin County Health Department, the prevailing plaintiff in a
suit against Martin County Health Department sought attorney’s fees from the State of Florida. 786
So. 2d 661 (Fla. Dist. Ct. App. 2001). The fees were denied because the plaintiff failed to comply
with a statutory provision governing the State Risk Management Trust Fund, requiring service of
the pleadings on the Florida Department of Financial Services. Id. at 663.
Each of the four factors discussed indicates that Defendant is an arm of the state and
immune from Plaintiff’s ADA claim under the Eleventh Amendment. Accordingly, this claim is
DISMISSED WITH PREJUDICE.
b. FMLA
Plaintiff acknowledges that Congress did not validly abrogate Eleventh Amendment
immunity as it relates to his self-care FMLA claim. Coleman v. Ct. of Appeals of Md., 556 U.S. 30,
43–44 (2012). Because Defendant is an arm of the State of Florida, Plaintiff’s FMLA claim must
also be DISMISSED WITH PREJUDICE.
c. Title VII
Unlike the other claims in the Complaint, Congress validly abrogated Eleventh Amendment
immunity in enacting the employment-discrimination provisions of Title VII. Fitzpatrick v. Bitzer,
427 U.S. 445, 456 (1976). Therefore, the Eleventh Amendment is no obstacle to Plaintiff’s Title
VII claim. Because Defendant has not moved to dismiss this claim on any basis other than Eleventh
Amendment immunity, this claim survives.
IV. CONCLUSION
It is ORDERED AND ADJUDGED:
1. Defendant’s Motion to Dismiss [DE 6] is GRANTED IN PART AND DENIED IN
PART.
2. Count I and Count II of the Complaint [DE 1] are DISMISSED WITH PREJUDICE.
3. Defendant shall file an answer on or before December 3, 2019.
DONE AND ORDERED in Chambers in West Palm Beach, Florida, this 22nd day of
November, 2019.
A TRRA
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to: All counsel of record via CM/ECF
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