# Gargett v. Florida Department of Juvenile Justice

> District Court, M.D. Florida · July 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10642418

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

FRANK L. GARGETT, JR.,

Plaintiff,

v. Case No. 8:19-cv-2051-VMC-TGW

FLORIDA DEPARTMENT
OF JUVENILE JUSTICE,

Defendant.
______________________________/

ORDER
This matter comes before the Court pursuant to Defendant
Florida Department of Juvenile Justice’s Amended Motion to
Dismiss (Doc. # 150), filed on June 14, 2024. Plaintiff Frank
L. Gargett, Jr. responded on June 27, 2024. (Doc. # 160). The
Department replied on July 8, 2024. (Doc. # 162). Gargett
filed a sur-reply on July 15, 2024. (Doc. # 164). For the
reasons that follow, the Motion is granted.
I. Background
Gargett initiated this case on August 16, 2019,
asserting claims against his former employer for age
discrimination under the Age Discrimination in Employment Act
(“ADEA”) and the Florida Civil Rights Act (“FCRA”), for
retaliation under the ADEA and FCRA, and for violations of
the Family Medical Leave Act (“FMLA”). (Doc. # 1). Upon remand
from the Eleventh Circuit (Doc. # 104), the only claims that
remain are the ADEA and FCRA age discrimination claims.
The Department moved to dismiss the ADEA claim based on
Eleventh Amendment immunity. (Doc. # 150). Gargett has
responded. (Doc. # 160). The Department then replied, arguing
for the first time that both the ADEA and the FCRA claim
should be dismissed based on Eleventh Amendment immunity.

(Doc. # 162). With the Court’s permission, Gargett has filed
a sur-reply to address the FCRA claim. (Doc. # 164). The
Motion is ripe for review.
II. Discussion
A. ADEA Claim
The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend.
XI. “Despite its limited terms, the Eleventh Amendment has

long been interpreted as evidencing broader principles of
federalism that prohibit federal courts from exercising
jurisdiction over suits against a non-consenting [s]tate, not
only where brought by citizens of other [s]tates or of foreign
nations but also by that [s]tate’s own citizens as well.”
Lambert v. Bd. of Trustees of Univ. of Ala., No. 2:18-CV-
1112-JEO, 2019 WL 339178, at *7 (N.D. Ala. Jan. 28, 2019),
aff’d sub nom. Lambert v. Bd. of Trustees, 793 F. App’x 938
(11th Cir. 2019); see Eubank v. Leslie, 210 F. App’x 837, 844
(11th Cir. 2006) (“The Eleventh Amendment has been construed
to bar suits against a state brought by that state’s own
citizens, absent the state’s consent.”).

The Eleventh Amendment bars suits against any “arm of
the state,” including “agents and instrumentalities of the
[s]tate.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003)
(en banc) (plurality opinion). Here, Gargett does not dispute
that the Department, as a state agency, is an arm of the
state. (Doc. # 160). “The long-standing rule is that the
Eleventh Amendment bars such suits [against arms of the state]
unless: (1) the state has expressly waived its immunity
through legislative enactment; or (2) Congress has exercised
its power under § 5 of the Fourteenth Amendment to override
that immunity.” Amiri v. Bd. of Trustees of Univ. of Ala.,

440 F. Supp. 3d 1267, 1273 (N.D. Ala. 2020). But it is
established that, “in the ADEA, Congress did not validly
abrogate the States’ sovereign immunity to suits by private
individuals.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91
(2000).
Thus, the only issue is whether the Department’s
immunity has been waived for ADEA claims. “The test to
determine if a state has waived its sovereign immunity ‘is a
stringent one.’” Barnes v. Zaccari, 669 F.3d 1295, 1308 (11th
Cir. 2012) (quoting Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999)).
“A waiver of Eleventh Amendment immunity must specifically

permit suits in federal court.” Id. Indeed, “[a] state’s
consent to suit must be ‘unequivocally expressed’ via
legislative enactment.” Amiri, 440 F. Supp. 3d at 1273
(citation omitted); see also Connor v. Halifax Hosp. Med.
Ctr., 135 F. Supp. 2d 1198, 1215 (M.D. Fla. 2001) (“In order
to constitute waiver of Eleventh Amendment immunity from suit
in federal court, a state statute must employ language that
is either explicit, or else admits of no other reasonable
interpretation.”), aff’d sub nom. Connor v. Halifax Hosp., 45
F. App’x 878 (11th Cir. 2002).
“Generally, waiver is found only when the state

voluntarily invokes the jurisdiction of a federal court or
the state ‘makes a “clear declaration” that it intends to
submit itself’ to federal jurisdiction.” Shedrick v. Dist.
Bd. of Trustees of Miami-Dade Coll., 941 F. Supp. 2d 1348,
1359 (S.D. Fla. 2013); see also Vasseur v. Valdosta State
Univ., No. 7:22-CV-97 (WLS), 2023 WL 6929805, at *6 (M.D. Ga.
Oct. 19, 2023) (“Courts will find a waiver of Sovereign
Immunity by litigation conduct if a State voluntarily invokes
federal jurisdiction, or if the State makes a ‘clear
declaration’ that it intends to submit itself to federal
jurisdiction. The decision to waive Sovereign Immunity ‘is
altogether voluntary on the part of the sovereignty,’ and,

accordingly, the test for determining whether a State has
waived Sovereign Immunity ‘is a stringent one.’” (citations
omitted)).
Here, the parties have not cited — and this Court has
not been able to locate — a Florida statute in which the state
waives its Eleventh Amendment immunity as to ADEA claims.
(Doc. # 150 at 2-3; Doc. # 160 at 12); see Shedrick, 941 F.
Supp. 2d at 1359 (“Plaintiffs point to no clear declaration
of waiver by Florida, and, in fact, Florida has expressly
retained its immunity from suit in federal court.” (citing
Fla. Stat. § 768.28(18))).

Gargett’s citation to Florida Statute § 760.11(4) is
unavailing. (Doc. # 160 at 12). As Gargett himself
acknowledges, the statute merely provides that an individual
may file an FCRA case in “any court of competent
jurisdiction.” Fla. Stat. § 760.11(4) (“If the commission
determines that there is reasonable cause to believe that a
discriminatory practice has occurred in violation of the
Florida Civil Rights Act of 1992, the aggrieved person may
either: (a) Bring a civil action against the person named in
the complaint in any court of competent jurisdiction; or (b)
Request an administrative hearing under ss. 120.569 and
120.57.”). Section 760.11(4) makes no reference to the ADEA

or federal claims generally. Even if Section 760.11(4)
applied to ADEA claims, which it does not, its language
allowing suit “in any court of competent jurisdiction” still
would not amount to a waiver of Eleventh Amendment immunity
in federal court. See Crisman v. Fla. Atl. Univ. Bd. of
Trustees, 572 F. App’x 946, 948 (11th Cir. 2014) (“A state
does not consent to suit in federal court merely by stating
its intention to sue and be sued, ‘or even by authorizing
suits against it in any court of competent jurisdiction.’”
(quoting Coll. Sav. Bank, 527 U.S. at 676)); see also Fla.
Stat. § 768.28(18) (“No provision of this section, or of any

other section of the Florida Statutes, whether read
separately or in conjunction with any other provision, 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, 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.” (emphasis
added)).
Nor has the Department waived its immunity by its conduct
in this case. True, the Department did not raise Eleventh
Amendment immunity as a defense in its answer (Doc. # 20),

nor argue Eleventh Amendment immunity in its motion for
summary judgment. (Doc. # 56). But “the failure to plead
Eleventh Amendment immunity cannot plausibly be held to be a
clear declaration of, or to even raise an overwhelming
implication of, waiver, particularly in light of Florida’s
express retention of Eleventh Amendment immunity.” Shedrick,
941 F. Supp. 2d at 1359; see also Moultrie v. Smith, No. 3:14-
CV-00020-TCB, 2015 WL 12552095, at *3 (N.D. Ga. Sept. 22,
2015) (“But the Eleventh Amendment defense is not necessarily
waived simply because it is not pled in the answer as an
affirmative defense.”).

Here, the Department never explicitly waived its
immunity. Even though it has litigated defensively in this
case, the Department did not make a voluntary, active decision
to litigate in this Court. See Bd. Of Regents of Univ. Of
Wis. Sys. v. Phoenix Int’l Software, Inc., 653 F.3d 448, 463
(7th Cir. 2011) (noting that “[t]he distinction between a
voluntary, active decision by the state to entrust a matter
to federal court and involuntary, defensive measures is
reflected in the Supreme Court’s decisions addressing waiver
by litigation conduct”).
And its failure to raise the immunity argument earlier
does not preclude it from doing so at this stage. “[T]he

Supreme Court has expressly noted that Eleventh Amendment
immunity ‘deprives federal courts of any jurisdiction to
entertain such claims, and thus may be raised at any point in
a proceeding.’” Shedrick, 941 F. Supp. 2d at 1359 (quoting
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99
n.8 (1984)); see also Edelman v. Jordan, 415 U.S. 651, 678
(1974) (noting that “the Eleventh Amendment defense
sufficiently partakes of the nature of a jurisdictional bar
so that it need not be raised in the trial court” to be
considered on appeal); Doe v. Moore, 410 F.3d 1337, 1349 (11th
Cir. 2005) (“Eleventh Amendment jurisdictional questions can

be raised for the first time on appeal.”). Thus, the
Department has not waived its immunity defense. See Moultrie,
2015 WL 12552095, at *3 (considering on the merits the
Eleventh Amendment immunity defense even though the defendant
did not raise the defense in its answer or in its motion for
summary judgment). The cases cited by Gargett in support of
his waiver argument do not convince the Court, given their
easily distinguishable facts.1 No doubt it would have been
better for the Department to seek dismissal of the ADEA claim
on the basis of Eleventh Amendment immunity earlier in the
case. Nevertheless, the Court does not conclude that the

1 For example, the Supreme Court merely held in Lapides v.
Board of Regents of University System of Georgia, 535 U.S.
613 (2002), that — under certain circumstances — a state
waives its Eleventh Amendment immunity by removing a case
from state court to federal court. Id. at 620; see also Stroud
v. McIntosh, 722 F.3d 1294, 1301 (11th Cir. 2013) (addressing
whether a state defendant’s removal of a case to federal court
waives its Eleventh Amendment immunity).
Another example: in Florida Virtual School v. K12, Inc.,
674 F. Supp. 3d 1127 (M.D. Fla. 2023), the plaintiff
governmental entity had filed its Lanham Act claims against
the private defendant in federal court. Because of this
invocation of the Court’s jurisdiction, the Court held that
plaintiff could not invoke Eleventh Amendment immunity to
dismiss the counterclaim that defendant then filed seeking
cancellation of plaintiff’s trademarks. Id. at 1135; see also
Fla. Virtual Sch. v. K12, Inc., No. 6:20-cv-2354-GAP-EJK,
2023 WL 6292409, at *2 (M.D. Fla. Aug. 25, 2023) (rejecting
the Eleventh Amendment immunity defense again at the summary
judgment stage in the same case). Also, while the Court in
Castro v. Kentucky Higher Education Student Loan Corp., No.
16-24690-CIV, 2017 WL 588379 (S.D. Fla. Feb. 14, 2017), noted
that a state can waive its immunity by its “conduct in
litigation,” the Court’s denial of defendant’s motion to
dismiss was not based on waiver. Rather, the Court held that
defendant was not an “arm of the state.” Id. at *2-10.
In this case, the Department did not remove the case to
this Court. Also, the Department is the defendant, meaning
that it did not voluntarily invoke this Court’s jurisdiction.
Department’s delay in asserting the defense here was a clear
waiver of its immunity.
Next, Gargett’s reference to Ex parte Young, 209 U.S.
123 (1908), does not help him. (Doc. # 160 at 15). True,
“there is an exception to Eleventh Amendment immunity for
suits against individual defendants in their official
capacity.” Kerce v. Fla. Dep’t of L. Enf’t/Capitol Police,

No. 4:16-CV-239/MCR/GRJ, 2017 WL 11504388, at *3 (N.D. Fla.
Aug. 16, 2017). “Pursuant to the exception established in Ex
parte Young, . . . official-capacity suits against state
officials are permissible . . . under the Eleventh Amendment
when the plaintiff seeks ‘prospective equitable relief to end
continuing violations of federal law.’” Lane v. Cent. Ala.
Cmty. Coll., 772 F.3d 1349, 1351 (11th Cir. 2014).
Here, however, no individual defendants exist. No state
officials have been named as defendants. Gargett chose to sue
only the Department, which is an arm of the state. Thus, the
Ex parte Young exception does not apply, even though Gargett

sought both retrospective and prospective relief for his ADEA
claim. See Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S.
247, 255 (2011) (explaining that the Ex parte Young doctrine
“rests on the premise . . . that when a federal court commands
a state official to do nothing more than refrain from
violating federal law, he is not the State for sovereign-
immunity purposes. The doctrine is limited to that precise
situation, and does not apply ‘when “the state is the real,
substantial party in interest.”’” (emphasis added) (citation
omitted)); Brown v. Newberger, 291 F.3d 89, 92 (1st Cir. 2002)
(“Appellants having sued only state agencies, not officials,
there is no basis for invoking Ex parte Young.”).

In short, the Department is immune from the ADEA claim.
See Duva v. Bd. of Regents of the Univ. Sys. of Ga., 654 F.
App’x 451, 453 (11th Cir. 2016) (“The parties do not dispute
that the Board is an agency of the State of Georgia. Thus,
the district court dismissed properly Duva’s ADEA claim
against the Board as barred by the Eleventh Amendment.”).
Thus, this Court lacks jurisdiction over that claim. The ADEA
claim is dismissed without prejudice. See Parson v. Ga. Dep’t
of Nat. Res., No. 4:20-CV-328, 2021 WL 2043960, at *4 (S.D.
Ga. May 21, 2021) (“In sum, Defendant — as a state agency —
is entitled to the protection of Eleventh Amendment immunity,

and neither Congress nor the state of Georgia has validly
abrogated or waived that immunity as to Plaintiff’s ADEA
claim, the sole claim alleged in this case. Accordingly, the
Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s
Complaint.”); Bell-Babineaux v. Fla. Dep’t of Juv. Just., No.
8:12-cv-2153-EAK-AEP, 2014 WL 281971, at *4 (M.D. Fla. Jan.
24, 2014) (“Defendant State of Florida Department of Juvenile
Justice has chosen to assert Eleventh Amendment immunity to
bar Plaintiff’s claims [including an ADEA claim]. After
consideration, the Court grants Defendant’s Motion to Dismiss
the above claims on the basis of Eleventh Amendment
immunity.”).

B. FCRA Claim
Because the Court has dismissed the ADEA claim, the only
remaining claim is the FCRA age discrimination claim, over
which the Court has been exercising supplemental
jurisdiction. In its reply, the Department now argues that
the FCRA claim should also be dismissed based on Eleventh
Amendment immunity or, alternatively, the Court should
decline to exercise supplemental jurisdiction over the FCRA
claim. (Doc. # 162 at 5-7). Gargett has filed a sur-reply
regarding the FCRA claim, arguing that the Court should
continue to exercise supplemental jurisdiction over the FCRA

claim even if the ADEA claim is dismissed. (Doc. # 164).
Notably, Gargett has failed to address whether the Department
enjoys Eleventh Amendment immunity over the FCRA claim.
(Id.).
While it would have been better for the Department to
clearly address its Eleventh Amendment immunity as to the
FCRA claim in its Motion, the Court agrees that such immunity
applies. Again, “[a] state does not consent to suit in federal
court merely by stating its intention to sue and be sued, ‘or
even by authorizing suits against it in any court of competent
jurisdiction.’” Crisman, 572 F. App’x at 948 (quoting Coll.

Sav. Bank, 527 U.S. at 676). “Such ambiguous and general
consent-to-suit provisions, standing alone, are insufficient
to waive Eleventh Amendment immunity.” Id.
As mentioned in the previous section, Florida allows
FCRA claims to be filed against it “in any court of competent
jurisdiction.” See Fla. Stat. § 760.11(4) (“If the commission
determines that there is reasonable cause to believe that a
discriminatory practice has occurred in violation of the
Florida Civil Rights Act of 1992, the aggrieved person may .
. . Bring a civil action against the person named in the
complaint in any court of competent jurisdiction.”). Section

760.11(4), however, does not explicitly waive Florida’s
sovereign immunity in federal court. See Gould v. Fla. Atl.
Univ. Bd. of Trustees, No. 10-81210-CIV, 2011 WL 13227893, at
*4 (S.D. Fla. June 14, 2011) (“While Florida has pursuant to
Fla. Stat. § 760.11(4)(a) waived its sovereign immunity from
FCRA suits brought in Florida courts, Florida has not
consented to suit in federal court under the FCRA.”). The
statute makes no reference to permitting FCRA suits against
the state in federal court. Thus, Section 760.11(4)’s
language “in any court of competent jurisdiction” does not
amount to a waiver of Eleventh Amendment immunity for claims
in federal court. See Crisman, 572 F. App’x at 949 (“The

consent-to-suit provision at issue, section 112.044(4),
contains language authorizing suit ‘in any court of competent
jurisdiction,’ but the Supreme Court has held such language
is ambiguous and insufficient to indicate a state’s intent to
be sued in federal court. . . . Accordingly, the district
judge erred by denying FAU’s motion to dismiss Crisman’s FL–
ADEA claim.”). Indeed, Florida Statute § 768.28(18) makes
clear that no state statute should “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, 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.” Fla. Stat. § 768.28(18).
In short, Florida’s Eleventh Amendment immunity has not
been waived as to the FCRA claim asserted in this Court. Thus,
the FCRA claim is also dismissed without prejudice based on
Eleventh Amendment immunity. See, e.g., Crisman, 572 F. App’x
at 949 (“FL–ADEA does not explicitly and definitely state
Florida consents to suit in federal court. Therefore, FAU is
entitled to Eleventh Amendment immunity on Crisman’s FL–ADEA
claim.” (citation omitted)); Gould, 2011 WL 13227893, at *4
(dismissing an FCRA retaliation claim on the basis of Eleventh

Amendment immunity); Parker-Hall v. Univ. of Fla. Bd. of
Trustees, No. 1:21-CV-138-AW-GRJ, 2021 WL 10426246, at *2
(N.D. Fla. Nov. 17, 2021) (“UF has Eleventh Amendment immunity
as to Plaintiff’s FCRA claims.”); Wang v. Fla. Atl. Univ. Bd.
of Trustees, No. 16-80915-CIV, 2017 WL 1155889, at *4 (S.D.
Fla. Mar. 27, 2017) (“Wang’s FCRA claims against FAU are
barred by the grant of immunity under the Eleventh Amendment,
and this Court must dismiss Counts I and II of the Amended
Complaint for lack of subject matter jurisdiction.”).
Alternatively, even if the Department did not enjoy
immunity over the FCRA claim, the FCRA claim would still be

dismissed without prejudice. “The decision to exercise
supplemental jurisdiction over pendant state claims rests
within the discretion of the district court.” Raney v.
Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th Cir. 2004).
The Eleventh Circuit has “encouraged district courts to
dismiss any remaining state claims when, as here, the federal
claims have been dismissed prior to trial.” Id. at 1089.
Indeed, the Supreme Court has also explained that “in the
usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under
the pendent jurisdiction doctrine — judicial economy,
convenience, fairness, and comity — will point toward

declining to exercise jurisdiction over the remaining state-
law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 n.7 (1988); see also Silas v. Sheriff of Broward Cnty.,
55 F.4th 863, 866 (11th Cir. 2022) (“A district court,
exercising its already broad discretion, will rarely err by
declining supplemental jurisdiction after the federal claims
that supported its jurisdiction are dismissed.”).
Here, the balance of the relevant factors (comity,
judicial economy, convenience, and fairness) weigh in favor
of declining to exercise supplemental jurisdiction over the
FCRA claim. While remaining in federal court may be more

convenient for Gargett, given that discovery has been
completed and an appeal regarding summary judgment has
resolved, other concerns outweigh the convenience factor. In
particular, concerns of comity and “concerns of federalism —
namely, of federal courts of limited jurisdiction weighing in
on state law — counsel in favor of dismissing [the FCRA claim]
[now that] the federal claims are dismissed.” Silas, 55 F.4th
at 866. The FCRA claim, a state law claim alleging
discrimination by a state agency, should be resolved in state
court. Thus, even if the FCRA claim were not dismissed based
on the Department’s immunity, the Court would decline to
exercise supplemental jurisdiction over the FCRA claim.
The FCRA claim is dismissed without prejudice.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1) Defendant Florida Department of Juvenile Justice’s
Amended Motion to Dismiss (Doc. # 150) is GRANTED.
(2) Both the ADEA claim and FCRA claim are dismissed without
prejudice based on Eleventh Amendment immunity.
(3) The Clerk is directed to enter judgment accordingly and,
thereafter, terminate all deadlines and motions and
close this case.
DONE and ORDERED in Chambers in Tampa, Florida, this
19th day of July, 2024.

fasion. Henenby CrecGh
VIRGINIA M. HERNANDEZ’COVINGTON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642418. Public record. Not legal advice.