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.
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.
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.
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
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).
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).
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).
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
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.
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.
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.
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
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.
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
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
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.
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.
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
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.
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
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.
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
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.
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.
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).
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
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
With these principles in mind, we conclude that, the breadth of the personal information allegedly released goes beyond any legitimate bounds
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.
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.
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),
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,
AFFIRMED IN PART AND REVERSED IN PART.
For cases involving a violation of the ADA's general anti-discrimination provision involving public services and entities, 42 U.S.C. § 12132, see, e.g., Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.2001); Walker, 213 F.3d at 346; Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir.1999) ("[Subchapter] II provides disabled individuals redress for discrimination by a `public entity.' That term, as it is defined within the statute, does not include individuals.") (citation omitted); Mitchell v. Mass. Dep't of Corr., 190 F.Supp.2d 204, 211 (D.Mass.2002); but cf. Walker, 213 F.3d at 346 ("Perhaps some sections of the ADA other than the ones involved here [Subchapters I and II] allow personal liability; it is a complex statute, with several titles, and it would be foolish for a court to declare a priori that none of its many rules is exceptional.").
For cases involving a violation of other anti-discrimination provisions in comparable civil rights statutes, see, e.g., Wascura v. Carver, 169 F.3d 683, 684 (11th Cir.1999) ("Because the law of this circuit requires us to conclude that public officials in their individual capacities are not `employers' under the [Family and Medical Leave Act (`FMLA')], we hold that there is no federal subject matter jurisdiction over these claims."); but see Darby v. Bratch, 287 F.3d 673, 681 (8th Cir.2002) ("It seems to us that the plain language of the [FMLA] decides this question. Employer is defined as `any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer[.]' This language plainly includes persons other than the employer itself.") (quoting FMLA, 29 U.S.C. § 2611(4)(A)(ii)(I)); see also Welch v. Laney, 57 F.3d 1004, 1011 (11th Cir.1995) (holding that the Equal Pay Act, and therefore the Fair Labor Standards Act, precludes individual liability where, in keeping with the definition of an employer under the Act and the Fifth Circuit's test of "`the total employment situation,'" the individual defendants exerted little or no control over the employees claiming a violation under the Act) (citation omitted); Smith v. Lomax, 45 F.3d 402, 403 n. 4 (11th Cir.1995) (holding that, because the individual defendants were not the plaintiff's employer, they could not be held liable under the Age Discrimination in Employment Act); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (per curiam) ("Individual capacity suits under Title VII are ... inappropriate. The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act.").
28 C.F.R. Part 35, App. A at 532, 56 Fed.Reg. 35,696, 35,707 (July 26, 1991) ("Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services," "Section-by-Section Analysis") (emphasis added). "An individual who believes that he or she or a specific class of individuals has been subjected to discrimination on the basis of disability by a public entity," 28 C.F.R. § 35.170(a), of which retaliation is one form, "may file a private suit pursuant to section 203 of the Act." 28 C.F.R. § 35.172(b).