SHOTZ v. CITY OF PLANTATION, FLA.

BIRCH, Circuit Judge:

The Americans with Disabilities Act, § 503, 42 U.S.C. § 12203 (1995) ("ADA" or "the Act"), prohibits retaliation against an individual who has "opposed any act or practice made unlawful by" the Act's anti-discrimination provisions. Part A of Subchapter II of the Act, 42 U.S.C. § 12131-12134, generally makes disability discrimination in the provision of public services unlawful. As a matter of first impression, we decide that § 12203 establishes individual liability for a violation of its prohibitions, where the "act or practice" opposed is one made unlawful by Subchapter II. We also decide that releasing personal information to the media, gained after a public entity regulated by Subchapter II has retained a private investigator to conduct a comprehensive background check, is adverse action for the purpose of establishing a prima facie case of retaliation. In light of these decisions, we REVERSE the district court's order granting summary judgment to some of the individual defendants on the ADA retaliation claim, and REMAND for further consideration consonant with this opinion. As to two of the defendants, however, we AFFIRM summary judgment for lack of evidence.

I. BACKGROUND

On summary judgment, "[i]f there is conflict between the plaintiff's and the defendant's allegations or in the evidence, the plaintiff's evidence is to be believed and all reasonable inferences must be drawn in his favor." Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351, 1356 (11th Cir.2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986)). As it does so, we adopt a redacted version of the district court's recitation of the facts.1

R2-68 at 2-4 (certain footnotes omitted). That information consisted of Shotz's criminal, credit, and driving records, medical history, involvement in professional disciplinary and other civil proceedings, property ownership, social relationships, including an ongoing conflict with a neighbor, as well as a criminal report involving his wife.

Shotz filed suit in district court against the City of Plantation, Florida ("City") and the individual defendants, alleging retaliation in violation of the ADA, deprivation of his clearly established constitutional rights to freedom of speech and to petition the government for redress of grievances, in violation of 42 U.S.C. § 1983, and violation of his common law right of privacy under Florida law. The district court declined to exercise supplemental jurisdiction and dismissed the state law claim, and subsequently granted summary judgment to the defendants on the ADA and § 1983 claims. Shotz appeals summary judgment on the ADA claim, and the dismissal of his state law claim.3

II. DISCUSSION

A. The ADA Retaliation Claim

In granting summary judgment to the defendants, the district court reasoned that individual defendants may not be sued in their personal capacities under the ADA's anti-retaliation provision, and that the public release of Shotz's personal information was not sufficiently adverse to establish a prima facie case of retaliation against the City. We review summary judgment awards de novo, using the district court's legal standards. See McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir.2002).

1. Individual Liability

The individual defendants argue that Shotz's claim is not cognizable because individuals cannot be held liable under the Act's anti-retaliation provision. Summary judgment is appropriate in those cases in which "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). However, "[t]he existence of a difficult or complicated question of law, when there is no issue as to the facts, is not a bar to a summary judgment." Ammons v. Franklin Life Ins. Co., 348 F.2d 414, 417 (5th Cir.1965). Thus, if the appellees are right, they are entitled to summary judgment as a matter of law. We now address this issue of first impression.

The anti-retaliation provision states that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a).4 The question here is whether private individuals may sue under § 12203 to redress retaliation by other individuals, where the conduct opposed is made unlawful by Subchapter II of the ADA concerning public services.5 Accordingly, we must interpret the statute to determine whether it exhibits an intent to render individuals personally liable.6

To illuminate statutory intent, we apply the traditional tools of statutory construction. Though malleable, our methodology is subject to certain rules. "The first rule in statutory construction is to determine whether the `language at issue has a plain and unambiguous meaning with regard to the particular dispute.'" United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 903, 154 L.Ed.2d 786 (2003) (citation omitted). "[W]e must presume that Congress said what it meant and meant what it said." United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc). "In our circuit, `[w]hen the import of the words Congress has used is clear . . . we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.'" United States v. Weaver, 275 F.3d 1320, 1331 (11th Cir.2001), (quoting Harris v. Garner, 216 F.3d 970, 976 (11th Cir.2000) (en banc)), cert. denied, 536 U.S. 961, 122 S.Ct. 2666, 153 L.Ed.2d 840 (2002). If "the statutory language is not entirely transparent," we employ traditional canons of construction before "reverting to legislative history . . . [to] assist [us] in determining the meaning of a particular statutory provision by focusing on the broader, statutory context." CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225 (11th Cir.2001). "[C]ourts may reach results inconsistent with the plain meaning of a statute [only] `if giving the words of a statute their plain and ordinary meaning produces a result that is not just unwise but is clearly absurd.'" Id. at 1228 (citation omitted). "If the statutory language is ambiguous, however, courts may examine extrinsic materials, including legislative history, to determine Congressional intent." Fed. Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1239 (11th Cir. 2000). Our analysis therefore begins with the plain meaning of the text.

a. The Anti-Retaliation Provision

There is explicit rights-creating language in this case: "No 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).7 The provision here does more than create a generalized duty for the public benefit, states more than declarative language, and focuses more than just "on the person regulated." Alexander v. Sandoval, 532 U.S. 275, 289, 121 S.Ct. 1511, 1521, 149 L.Ed.2d 517 (2001). Instead, it specifically identifies a protected class and expressly confers on that class a right not to be retaliated against.

The statute also contains distinct duty-creating language that plainly includes individuals: "No person shall discriminate against any individual. . . ." See 42 U.S.C. § 12203(a) (emphasis added). In fact, section 12203 is the only anti-discrimination provision in the ADA that uses the unqualified term "person" to define the regulated entity. Compare 42 U.S.C. § 12112(a) ("covered entity"); 42 U.S.C. § 12132 ("public entity"); 42 U.S.C. § 12182(a) ("person who owns, leases (or leases to), or operates a place of public accommodation") (emphasis added). "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972) (quoted in Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983)). And Congress knows how to use specific language to identify which particular entities it seeks to regulate. See 42 U.S.C. § 12112(a), 12132, 12182(a).8

In addition, the term "person" is defined to include individuals in another section of the ADA. See 42 U.S.C. § 12111(7) ("The term[ ] `person[ ]' . . . shall have the same meaning given such term[] in [42 U.S.C.] § 2000e(a)," which defines "person" as, inter alia, "includ[ing] one or more individuals."). While that definition expressly applies to Subchapter I of the ADA, we "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." Goodlin v. Medtronic, Inc., 167 F.3d 1367, 1374 (11th Cir.1999); see also Doctors Hosp., Inc. of Plantation v. Bowen, 811 F.2d 1448, 1452 (11th Cir.1987) ("A presumption is made that the same words used in different parts of an act have the same meaning."). "Similarly, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 1301, 146 L.Ed.2d 121 (2000). On this term, Congress has been consistent: the meaning of a "person" in comparable civil rights statutes has always included an individual. See, e.g., 42 U.S.C. § 1997(3); 42 U.S.C. § 2000e(a) (Title VII); 29 U.S.C. § 630(a) (ADEA); 29 U.S.C. § 203(a) (FLSA); 29 U.S.C. § 2611(8) (FMLA).

Thus, 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. That a statutory provision imposes such a duty on a class of actors, however, 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. For that, we must also examine the remedies created by the statute.

b. The Remedial Provisions

i. Text and Plain Meaning

Section 12203(c) sets out the remedies available to those injured by a violation of the anti-retaliation provisions by reference to the remedies set out in various subchapters of the ADA.9 Thus, a person injured by retaliation in the public services context must look to § 12133 for available remedies. See 42 U.S.C. § 12203(a), (c). Section 12133, in turn, makes "[t]he remedies, procedures, and rights set forth in section 794a of Title 29 [(the Rehabilitation Act Amendments of 1992)] . . . the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability." Section 794a incorporates the "remedies, procedures, and rights set forth" in Title VII (42 U.S.C. § 2000e-16, 2000e-5(f)-(k)), as well as the "remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964." 29 U.S.C. § 794a(a)(1)-(2).10 For a violation of § 12203 in the context of public services, then, we ultimately look to Title VI for the remedies available. See Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 2100, 153 L.Ed.2d 230 (2002) ("[T]he remedies for violations of [§ 12133] of the ADA . . . are coextensive with the remedies available in a private cause of action brought under Title VI.").

Though Title VI is silent as to remedies, "[i]t is . . . beyond dispute that private individuals may sue to enforce" it. Sandoval, 532 U.S. at 280, 121 S.Ct. at 1516; see also Bossier Parish Sch. Bd. v. Lemon, 370 F.2d 847, 851 (5th Cir.1967) (holding that Title VI provides an implied private right of action). The courts that have considered the question, however, have generally concluded that individuals may not be held liable for violations of Title VI because it prohibits discrimination only by recipients of federal funding.11 The text of Title VI clearly suggests this: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. The Supreme Court has concluded that "Congress limited the scope of § 504 [of the Rehabilitation Act, a related nondiscrimination provision with language virtually identical to that of Title VI,] to those who actually `receive' federal financial assistance," United States Dep't of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605, 106 S.Ct. 2705, 2711, 91 L.Ed.2d 494 (1986), and the statute "does not extend as far as those who benefit from it." Id. at 607, 106 S.Ct. at 2712. Similarly, "a recipient of federal funds may be liable in damages under Title IX only for its own misconduct" in part "because the [violation] must occur `under' [a] . . . `program or activity'" of a funding recipient. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640, 645, 119 S.Ct. 1661, 1670, 1672, 143 L.Ed.2d 839 (1999) (finding that "under" is defined as "`in or into a condition of subjection, regulation, or subordination'; `subject to the guidance and instruction of' . . . [or] `subject to the authority, direction, or supervision of'") (citations omitted); see also id. at 659-60, 119 S.Ct. at 1679 (Kennedy, J., concurring) ("Under the most natural reading of this provision, discrimination violates Title IX only if it is authorized by, or in accordance with, the actions, activities, or policies of the grant recipient."); Nat'l Collegiate Athletic Ass'n v. Smith, 525 U.S. 459, 467-68, 119 S.Ct. 924, 928-29, 142 L.Ed.2d 929 (1999) (relying on Paralyzed Veterans and holding that dues payments from federal funds recipients do not render dues recipient subject to Title IX). By extension, the text of Title VI also precludes liability against those who do not receive federal funding, including individuals.12

To conclude otherwise, and license individual liability for violations of Title VI, would exceed the allowed scope of government enforcement action under the statute. That "power may only be exercised against the funding recipient, and we have not extended damages liability . . . outside the scope of this power." Davis, 526 U.S. at 641, 119 S.Ct. at 1670.13 "We think it would be anomalous to assume that Congress intended the implied private right of action to proscribe conduct that Government enforcement may not check." Nat'l Collegiate Athletic Ass'n, 525 U.S. at 467 n. 5, 119 S.Ct. at 929 n. 5.

To conclude otherwise would also violate the contract inherent in each piece of federal legislation enacted under the authority of the Spending Clause of the United States Constitution, U.S. Const. art. I, § 8, cl. 1. "When Congress acts pursuant to its spending power, it generates legislation `much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.'" Davis, 526 U.S. at 640, 119 S.Ct. at 1670 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 (1981)). "By limiting coverage to recipients, Congress imposes the obligations of [the statutes] upon those who are in a position to accept or reject those obligations as a part of the decision whether or not to `receive' federal funds." Paralyzed Veterans, 477 U.S. at 605-06, 106 S.Ct. at 2711 (citation omitted). "From what we have already written about the contractual nature of the liability, we think it follows that, because the contracting party is the grant-receiving [entity], a `Title IX claim can only be brought against a grant recipient ... and not an individual.'" Floyd v. Waiters, 133 F.3d 786, 789 (11th Cir.1998) (citation omitted). "Because the same reasoning applies to Title VI, an individual likewise may not be sued under the latter statute." Powers v. CSX Transp., Inc., 105 F.Supp.2d 1295, 1312 (S.D.Ala.2000). It is beyond question, therefore, that individuals are not liable under Title VI.14

Thus, we are confronted with a dilemma: Did Congress intend the rights-and duty-creating language in the ADA anti-retaliation provision to, itself, countenance liability against individuals for its violation, or did Congress intend the remedies available for Title VI violations to control exclusively the type of relief available as well as the appropriate scope of liability? If Congress imbued the underlying remedial provisions with dispositive authority, both as to the persons against whom the remedy may be asserted and the type of relief available, individuals could not be privately sued under the anti-retaliation provision and we would not be allowed to read in another remedy.15 If, on the other hand, Congress intended that Title VI only fix authoritatively the type of relief available, and not the scope of liability, then it must have intended the language in § 12203 to control who would be liable for its violation.16

It is this congressional enigmatism and ill-defined statutory structure that distinguishes this case from those in which we, and other courts, have found that individual liability is precluded under other anti-discrimination provisions of both the ADA and comparable civil rights statutes. In each of those cases, the regulated entity was clearly defined in the statute, and that definition did not include individuals.17

Both the district court and the appellees rely on the analysis in Key v. Grayson, 163 F.Supp.2d 697 (E.D.Mich.2001), to resolve this dilemma and conclude that individual liability is not recognized by § 12203. In Key, the court acknowledged that "[i]nterpreting § 12203(a) by itself and literally, it would at first seem that [individual] Defendants are persons within the meaning of the ADA's anti-retaliation provision and thus amenable to suit as individuals." 163 F.Supp.2d at 703. Finding that "[n]one of the remedies available for violating § 12203(a) apply against a defendant in his individual capacity," however, the court held that plaintiffs cannot maintain a cause of action against individual defendants in the public services context. Id. at 704. The Sixth Circuit similarly credited the remedial provisions with dispositive authority: "[P]lacing significance on the word `person' ... frustrates the statutory scheme ... [and] misdirects the focus of this suit, as the relevant inquiry is what remedies are available." Hiler v. Brown, 177 F.3d 542, 545 (6th Cir.1999); see also Stern v. Cal. State Archives, 982 F.Supp. 690, 694 (E.D.Cal.1997) ("Considering the ADA's overall framework, it makes sense that the retaliation provision broadly prohibits retaliation by a `person', but prescribes the available remedies according to the type of retaliation alleged.").

Were it not for the ambiguity in statutory structure, had the remedial provisions clearly controlled the scope of liability, or had the language of § 12203 omitted any duty-creating language as Title VI does, we might have agreed that the remedies in this case are limited to those provided by Title VI.18 Yet, while it is true that a single word in isolation cannot be dispositive of statutory intent, United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.1999), we may not simply read that word out of the text altogether as the opinions in Hiler, Stern, and Key suggest we do. See 180 F.3d at 1285 ("A statute should be `interpreted so that no words shall be discarded as meaningless, redundant, or mere surplusage.'") (citation omitted); accord Wong Kim Bo, 472 F.2d at 722. Rather, our task is to read the statute harmoniously, as a whole, being particularly careful not to render any portion of the statute superfluous, if possible. See Legal Envtl. Assistance Found., Inc. v. EPA, 276 F.3d 1253, 1258 (11th Cir.2001) ("[W]e must give meaning to all the words in the statute."), cert. denied, 537 U.S. 989, 123 S.Ct. 475, 154 L.Ed.2d 358 (2002). "Every statute must be viewed in its entirety so that each part has a sensible and intelligent effect harmonious with the whole." Payne v. Panama Canal Co., 607 F.2d 155, 164 (5th Cir.1979). We must therefore attempt to reconcile the plain meaning of "person" in § 12203(a) with the import of the remedial provisions.

Even were we to ignore the plain meaning 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. Though we do not decide the question, and ultimately remain unconvinced, this approach might make sense for a violation of § 12203 in the employment context. There, the aggrieved person is ultimately referred to the remedies provided by Title VII of the Civil Rights Act of 1964, see § 12203(c); 42 U.S.C. § 12117(a), which prohibits discrimination by the same entities as prohibited by Subchapter I of the ADA regulating employment, and, as is apparent from the statutory language, those remedies do not include suit against individuals.19 Indeed, employment is the context for virtually every case the appellees cite for the proposition that individual liability is unavailable for claims of retaliation under the ADA.20

In the public services context, however, allowing the remedial provisions to govern the scope of liability would deviate considerably from the intent and purpose of the statute. The ADA makes any public entity liable for prohibited acts of discrimination, regardless of funding source. See 42 U.S.C. § 12132. By contrast, Title VI remedies are available only against federal funds recipients. See discussion infra pp. 1170-1171. Thus, were the scope of liability confined to that of Title VI, not only would individuals who violate the Act be free from private suit, but public entities that do not receive federal funding as well, a result Congress logically did not intend. Otherwise, both Subchapter II and § 12203 in the public services context would be rendered superfluous as the Rehabilitation Act also prohibits disability discrimination by public entities receiving federal funds. Compare 29 U.S.C. § 794(a), with 42 U.S.C. § 12132. Indeed, an integral purpose of Subchapter II "is to make applicable the prohibition against discrimination on the basis of disability, currently set out in regulations implementing section 504 of the Rehabilitation Act of 1973, to all programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto, regardless of whether or not such entities receive Federal financial assistance." H.R.Rep. No. 101-485, pt. 2, at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 366-67. Had Congress intended to restrict liability to federal funds recipients, it would have been far easier to amend the Rehabilitation Act to account for the minor differences between it and Subchapter II of the ADA than to insert an otherwise unnecessary subchapter in the ADA itself.

Furthermore, permitting individual liability here would not create the same difficulties as doing so would under Title VI. For instance, the ADA was not enacted under Spending Clause authority as Title VI was. See 42 U.S.C. § 12101(b)(4) ("It is the purpose of [the ADA] ... to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce...."); Pace v. Bogalusa City Sch. Bd., 325 F.3d 609, 615 (5th Cir.2003) ("The ADA ... does not in any way condition the receipt of federal funds on compliance with the ADA or waiver of state sovereign immunity."). Thus, liability need not be restricted only to those who contract with the federal government.21

There would also be no incongruency with the allowed scope of government enforcement action, if individual liability were recognized, as there would be under Titles VI or IX, see infra pp. 1170-1171. "Because ... fund termination procedures ... are inapplicable to State and local government entities that do not receive Federal funds, the major enforcement sanction for the Federal government [for ADA violations] will be referral of cases by these Federal agencies to the Department of Justice." S.Rep. No. 101-116, at 57 (1989). If there is an unresolved complaint, "the designated agency shall refer the matter to the Attorney General with a recommendation for appropriate action." 28 C.F.R. § 35.174. Neither the statute nor the regulations indicate that such action may not be taken against individuals.

Thus, even if we were able to brush aside the plain meaning of § 12203, we could not give effect to an overly literal reading of the remedial sections of the ADA and those statutes to which they refer. "[E]ven the most basic general principles of statutory construction must yield to clear contrary evidence of legislative intent," Nat'l R.R. Passenger Corp. v. Nat'l Ass'n of R.R. Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974), and "courts may reach results inconsistent with the plain meaning of a statute `if giving the words of a statute their plain and ordinary meaning produces a result that is not just unwise but is clearly absurd.'" CBS Inc., 245 F.3d at 1228 (citation omitted). In light of the intent, purpose, and structure of Subchapter II of the ADA, when read together with that of Title VI, we find that Congress did not intend for us to rely only on the text of the remedial provisions to the exclusion of the plain language of § 12203. As such, we cannot say that, because Title VI precludes individual liability, Congress must have intended to preclude individual liability as a remedy under § 12203 as well. Thus, we must determine how the rights- and duty-creating language in the anti-retaliation provision work together with the remedial provisions to answer the question as to whether individual liability is permitted.22

ii. Legislative History and Purpose

Shotz urges us to credit dispositively two statements made in the legislative history. First, he says, the legislature intended to provide victims "with a full panoply of remedies." H.R.Rep. No. 101-485, pt. 2, at 98 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 381; H.R.Rep. No. 101-485, pt. 3, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 475. If Congress has provided a private right of action, "we presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise." Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 66, 112 S.Ct. 1028, 1032, 117 L.Ed.2d 208 (1992) (citation omitted). Thus, compensatory damages are available under Title VI. See Sandoval, 532 U.S. at 279, 121 S.Ct. at 1516; Barnes, 122 S.Ct. at 2100, 2103. Shotz apparently argues that this availability renders individuals liable for violations of § 12203. The analysis, however, confounds the question, not clarifies it, for the rule in Franklin addresses the type of relief available, not who has to bear it. See Franklin, 503 U.S. at 65-66, 112 S.Ct. at 1032 ("`[T]he question of whether a litigant has a "cause of action" is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive.'") (quoting Davis v. Passman, 442 U.S. 228, 239, 99 S.Ct. 2264, 2274, 60 L.Ed.2d 846 (1979)).

Second, Congress apparently "intend[ed] that persons with disabilities have remedies and procedures parallel to those available under comparable civil rights laws." H.R.Rep. No. 101-485, pt. 3, at 66 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 490. Shotz claims this includes actions under 42 U.S.C. § 1981 and 1983, which both provide for individual liability. Section 501(b) of the ADA does save other equal or greater remedies under federal or state law from horizontal or vertical preemption, respectively, see 42 U.S.C. § 12201(b), and "this includes remedies available under 42 U.S.C.1983." H.R.Rep. No. 101-485, pt. 3, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 475. It is also true that "[p]laintiffs suing under § 1983 do not have the burden of showing an intent to create a private remedy because § 1983 generally supplies a remedy for the vindication of rights secured by federal statutes. Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983." Gonzaga Univ. v. Doe, 536 U.S. 273, 284, 122 S.Ct. 2268, 2276, 153 L.Ed.2d 309 (2002) (citation omitted). Thus, it could be argued, as Shotz does, albeit obliquely, that Congress intended to allow private individuals to sue other individuals under § 1983 to vindicate violations of § 12203, and therefore must also have intended to provide for individual liability under § 12203 directly.

Yet, the Court in Gonzaga also noted that presumptive enforcement of § 1983, once a federal right has been identified, is rebuttable in part "by showing that Congress `specifically foreclosed a remedy under § 1983' ... `by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.'" 536 U.S. at 284 n. 4, 122 S.Ct. at 2276 n. 4 (citations omitted). The Supreme Court firmly established that principle long before Congress enacted the ADA's own comprehensive legislative scheme. See Middlesex County Sewerage Auth. v. Sea Clammers, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981) ("When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983."). In fact, we have ruled out "a section 1983 action in lieu of — or in addition to — a[n] ... ADA cause of action if the only alleged deprivation is of the ... rights created by ... the ADA." Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1531 (11th Cir.1997). Also, while the original bill had included "the remedies available under section 1981 of the Civil Rights Act of 1866 [for a violation of the ADA in the employment context, a]n agreement was made that people with disabilities should have the same remedies available to all other minorities under Title VII," H.R.Rep. No. 101-485, pt. 2, at 82 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 365, and the reference to § 1981 was deleted. See 42 U.S.C. § 12117(a). Logical inference would have it that omission of such a remedy in the other subchapters to begin with was intentional. Furthermore, "the [House] Committee adopted an amendment to delete the term `shall be available' [in Subchapter II's enforcement provision] in order to clarify that the Rehabilitation Act remedies are the only remedies which [Subchapter] II provides for violations of [Subchapter] II." H.R.Rep. No. 101-485, pt. 3, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 475. Finally, the language in the Committee Reports referencing "comparable civil rights laws" suggests that the laws to which the ADA is comparable may be limited to those expressly referenced in the statute for their remedial provisions: Title VII, Title VI, and Title II of the Civil Rights Act of 1964. See H.R.Rep. No. 101-485, pt. 3, at 66, reprinted in 1990 U.S.C.C.A.N. 445, 489 ("[I]f the remedies and procedures change in [a comparable civil rights law], ... they will change identically in" the ADA.). Thus, despite a single phrase in a House committee report to the contrary, we find that Congress did not specifically contemplate that individuals could sue under §§ 1981 or 1983 for ADA violations and, therefore, could not have intended to permit individual liability directly under § 12203 on that ground alone. As such, the legislative history of the ADA is not dispositive.

Examining the legislative purpose of the Act is equally unhelpful. While extending liability to individuals may advance "the elimination of discrimination against individuals with disabilities" through added deterrence, 42 U.S.C. § 12101(b)(1) (setting out the purposes of the ADA), the ADA was enacted as a finely-honed, carefully considered piece of legislation that, reticent of exposing regulated entities to new and untested duties and liability, sought to balance the interests of persons with disabilities against those who would be duty-bound to accommodate them. See Statement by President George Bush upon Signing S. 933, 26 Weekly Comp. Pres. Doc. 1165 (July 30, 1990). Individual liability may or may not tip that scale unevenly; that is for Congress to decide.

Because neither the plain language, nor the statutory structure, legislative history, and purpose are helpful, we find the statute inscrutable and Congress's intent cryptic and imprecise. We therefore turn to applicable agency interpretations, as the statute itself is ambiguous.23

c. Agency Deference under Chevron

The Department of Justice ("DOJ") has interpreted § 12203 as rendering those individuals acting in their individual capacities amenable to private suit. See Nondiscrimination on the Basis of Disability in State and Local Government, 28 C.F.R. Part 35 (2003).24

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted). If the intent of Congress is ambiguous or unclear, as we have said it is here, Chevron requires courts to give an agency's permissible construction of a statute controlling effect. See 467 U.S. at 843, 844, 104 S.Ct. at 2782; Christensen v. Harris County, 529 U.S. 576, 586-87, 120 S.Ct. 1655, 1662, 146 L.Ed.2d 621 (2000).

That construction must first qualify for Chevron deference, however. See United States v. Mead Corp., 533 U.S. 218, 226, 230 n. 11, 121 S.Ct. 2164, 2171, 2172 n. 11, 150 L.Ed.2d 292 (2001). It does so, "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." Id. at 226-27, 121 S.Ct. at 2171. "Delegation of such authority may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent." Id. at 226-27, 121 S.Ct. at 2171. If the delegation is express, "any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute." Id. at 227, 121 S.Ct. at 2171.

Here, 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. See 42 U.S.C. § 12134(a). The DOJ issued its rules contemporaneously with its implementation of these provisions, using conventional notice-and-comment rulemaking procedures. See Nondiscrimination on the Basis of Disability in State and Local Government, 56 Fed.Reg. 35,694, 35,694-95 (July 26, 1991) (codified at 28 C.F.R. Part 35) ("Rulemaking History").25 The resulting rules are therefore entitled to controlling weight unless they are procedurally flawed, substantively arbitrary and capricious, or plainly contradict the statute. See Mead, 533 U.S. at 227, 121 S.Ct. at 2171. We have said as much. See Shotz v. Cates, 256 F.3d 1077, 1079 n. 2 (11th Cir.2001); Zimring v. Olmstead, 138 F.3d 893, 897 (11th Cir.1998), aff'd in part and vacated in part on other grounds, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999); see also Helen L. v. DiDario, 46 F.3d 325, 331-32 (3d Cir.1995). As such, the relevant DOJ rule interpreting the ADA's anti-retaliation provision, 28 C.F.R. § 35.134, commands that same level of deference.26

Not only does the agency's construction here survive this low threshold of judicial scrutiny, but the interpretation is a reasonable one as well. The text of § 12203 sets out both rights- and duty-creating language, and we cannot say that Congress intended to preclude individual liability based on the remedies available under Title VI. Therefore, we must defer to the regulations.27 Accordingly, we hold that an individual may be sued privately in his or her personal capacity for violating § 12203 in the public services context.28

2. Adverse Action

The district court also granted summary judgment to the City because it thought the public release of Shotz's personal information was not sufficiently adverse to establish a prima facie case of retaliation. "Although a plaintiff's burden in proving a prima facie case is light, summary judgment against the plaintiff is appropriate if he fails to satisfy any one of the elements of a prima facie case." Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432-33 (11th Cir.1998) (citation omitted). To establish such a case, "a plaintiff must show that (1) she engaged in statutorily protected expression; (2) she suffered an adverse ... action; and (3) the adverse action was causally related to the protected expression." Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir.2002); Lucas v. Grainger, Inc., 257 F.3d 1249, 1260-61 (11th Cir.2001); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir.1999).29 There is no dispute in this case as to the first element of a prima facie case. Nor do we have any reservations that the third element has also been satisfied, though the district court did not reach this issue.30

When we have examined whether a plaintiff has established a prima facie case of retaliation under the ADA, we have done so only in the employment context.31 Thus, we have not had occasion to address in more detail the second element of a prima facie case for retaliation that is at issue here: adverse action. Clearly, a plaintiff need not demonstrate an adverse employment action when establishing a prima facie case of retaliation in the public services or accommodations contexts of the ADA, only that some type of action occurred that sufficiently qualifies as adverse under the circumstances of the case. Indeed, not "every unkind act" is sufficiently adverse. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir.2001) (citation and internal quotation marks omitted). Rather, we analyze that sufficiency "on a case-by-case basis, using both a subjective and an objective standard." Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir.2000) (citation omitted). As a general rule, "[a]n ADA plaintiff must demonstrate that a reasonable person in his position would view the ... action in question as adverse." Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1449 (11th Cir.1998).

We have said that "[a]n employment action is considered `adverse' only if it results in some tangible, negative effect on the plaintiff's employment." Lucas, 257 F.3d at 1261. Thus, "an employee must show a serious and material change in the terms, conditions, or privileges of employment ... as viewed by a reasonable person in the circumstances." Davis, 245 F.3d at 1239. The appellees seize on this language to conclude that a press release of Shotz's most personal facts was not serious or material enough to be considered adverse for the purpose of demonstrating a prima facie case. Specifically, the district court granted summary judgment to the City because Shotz did not prove that he lost business as a result of the City's action, and, referring to our decision in Davis, concluded that "a diminution of prestige and a potential loss of future employment, without more, do not rise to the level of adverse action." R2-68 at 14-15. Indeed, we have said that "loss of prestige and potential future opportunities associated with two negative job performance memoranda and the denial on two brief occasions of a favorable work assignment [ ] do not meet th[is] threshold" standard. Davis, 245 F.3d at 1246.

But our holding in Davis was explicitly predicated on Title VII's statutory language:

Id. at 1242. Our decision was also limited by the unique nature of the employment relationship in which loss of prestige and reputation may be commonplace and regular incidents of otherwise necessary employment actions.

Id. In short, "[a]ny job criticism or negative job review carries with it the possibility that the employee's future prospects may be prejudiced if that information is disclosed." Id. at 1243 (emphasis added).

We are far removed from these practical concerns with the type of conduct alleged here, however. Gathering sensitive and highly personal information which is irrelevant to an assessment of either the position or credibility of a citizen who is attempting to galvanize local government into satisfying its obligations under the ADA, as a favor to a city council member no less (no good deed goes unpunished!), and then releasing that information to the public, for whatever reason, is hardly incidental to the normal government-citizen relationship.

Doe, 145 F.3d at 1453 n. 21. Thus, while conduct must be material to be adverse in this context, it need not be traumatic. Id. at 1453. If we set the bar too high, we run the risk of chilling legitimate opposition to unlawful and discriminatory practices, and "could stifle [a person's] willingness to file charges of discrimination." Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998).

With these principles in mind, we conclude that, the breadth of the personal information allegedly released goes beyond any legitimate bounds32 and thus is sufficient to establish a prima facie case of retaliation, and, at least "with regard to the general public, is an objective factor that a court should consider as part of the reasonable person test." Doe, 145 F.3d at 1452 n. 19.33 In this case, a reasonable citizen in Shotz's position would not only view the City's actions as adverse, but appalling as well, even if they were not motivated by retaliatory animus. Accordingly, we conclude that Shotz has shown adverse action sufficient to demonstrate a prima facie case of retaliation under the ADA.34

3. Liability of Individual Defendants

Despite these holdings and their applicability to the other defendants, we AFFIRM the district court's order granting summary judgment to Donald Lunny and Mayor Armstrong because Shotz does not have enough evidence to show their participation in or prior knowledge of the adverse action taken against him, an essential element of his claim. In his response to the summary judgment motions, Shotz relies exclusively on the "Defendant's Concise Statement of Material Facts as to Which There is No Genuine Dispute" ("Concise Statement") as his only source of probative evidence.35 Based on the Concise Statement, Shotz concluded that:

R1-52 at 14-15. The Concise Statement reveals, however, that, although Lunny conducted a routine background check, "Brekelbaum [did not] advise [him] of the basis for his request." R1-43 at 4, ¶ 14. This is corroborated by the notable absence of any indication in his 22 May 2000 letter to Brekelbaum that Lunny knew of the underlying motive for the investigation. Furthermore, "[p]rior to the disclosure to the media, no one discussed the release of any investigatory materials concerning Mr. Shotz to the media with Lunny.... Lunny had no role in that decision." Id. at 5-6, ¶ 21. Thus, we affirm summary judgment in favor of Lunny.

Like Lunny, the defendants deny that Mayor Armstrong had any knowledge or role in hiring a private investigator to follow Shotz, requesting Lunny to perform the background check, or disclosing the results of the investigation to the media. However, unlike Lunny, "Brekelbaum apprized [Armstrong] on some events after they had occurred" on several occasions. Id. at 4, ¶ 15. We are not told at what point in the chain of events Mayor Armstrong was informed of the developments. In addition, while the Concise Statement assures us that Armstrong "was advised of the decision to disclose the materials to the media [only] after the decision had been made," id. at 5, ¶ 20, we are not told whether Armstrong knew of the decision before or after the release had actually occurred. Id. In either case, she may have had enough of an opportunity to bring these events to a halt.

However, while it is true that all reasonable inferences must be drawn in the non-moving party's favor, Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513, summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find ... by a preponderance of the evidence that the plaintiff is entitled to a verdict." Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512. A reasonable jury could not find that simply being informed ex post of the adverse actions against Shotz, without more, is sufficient to render Armstrong liable for retaliation under the ADA. The further inference that she may have been able to stop the events from progressing amounts to no more than a "scintilla of evidence." We therefore also affirm summary judgment in favor of Armstrong.

B. Supplemental Jurisdiction

Shotz also appeals the district court's order declining to exercise supplemental jurisdiction and dismissing, without prejudice, Shotz's state law invasion of privacy tort claim.36 By statute, Congress codified long-standing case law recognizing supplemental jurisdiction. With some limited exceptions, "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a).

We review a district court's decision to decline exercising supplemental jurisdiction for abuse of discretion. See Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir.1999). "A district court has not abused its discretion when the court has `a range of choices' and the court's choice `does not constitute a clear error of judgment.'" Vanderberg v. Donaldson, 259 F.3d 1321, 1326 (11th Cir.2001) (citation omitted), cert. denied, 535 U.S. 976, 122 S.Ct. 1449, 152 L.Ed.2d 391 (2002). "[D]istrict courts can decline to exercise [supplemental] jurisdiction ... for a number of valid reasons. Accordingly, ... `district courts [should] deal with cases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness, and comity ....'" City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 172-73, 118 S.Ct. 523, 533, 139 L.Ed.2d 525 (1997) (citations omitted). By statute, a district court may decline supplemental jurisdiction if:

28 U.S.C. § 1367(c)(1)-(4). "Depending on a host of factors, then — including the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims — district courts may decline to exercise jurisdiction over supplemental state law claims." Int'l Coll. of Surgeons, 522 U.S. at 173, 118 S.Ct. at 534.

In light of the four possible causes of action for invasion of privacy, three of which may apply here, and the myriad defenses available to the appellees arising from the doctrines of absolute and conditional privilege, see generally Restatement (Second) of Torts § 652A-G (1977),37 we cannot say that the district court abused its discretion in this instance.

CONCLUSION

The City of Plantation, Florida, allegedly retaliated against Shotz, the plaintiff in this case, for having submitted a letter to the city council pointing out various violations of the ADA in a recently constructed facility. The City conducted an in-depth background investigation of Shotz, which allegedly included his criminal, credit, and driving records, medical history, involvement in professional disciplinary and other civil proceedings, property ownership, social relationships, including an ongoing conflict with a neighbor, as well as a criminal report involving his wife. It then provided that information to the media for release to the public. Shotz filed suit alleging retaliation in violation of the ADA, 42 U.S.C. § 12203, which the district court dismissed because the City's conduct did not constitute "adverse action" and individual liability is not permitted under the ADA. The anti-retaliation provision at issue does contain clear rights- and duty-creating language implicating individuals. However, its remedies provisions, incorporating by reference the remedies available under other civil rights statutes, arguably restrict liability only to recipients of federal funding, a restriction that is contrary to the clear intent of the statute. Because Congress has not spoken unambiguously in this regard, the applicable agency regulations, which construe the provision as establishing individual liability, command deference. Accordingly, we hold that, in the context of public services, the ADA's anti-retaliation provision permits personal capacity suits against individuals. We also decide that the City's alleged conduct is sufficiently adverse to create a prima facie case of retaliation, even if Shotz suffered only public humiliation and shame, because the City's conduct, which occurred outside the employment context, would be viewed as "adverse" by a reasonable person. However, we affirm summary judgment as to two of the defendants for lack of evidence. Last, the district court did not abuse its discretion in refusing to exercise supplemental jurisdiction over Shotz's state law invasion of privacy claim. Accordingly, the judgment of the district court is affirmed in part and reversed in part, and we remand for further proceedings.

AFFIRMED IN PART AND REVERSED IN PART.