United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendant's Motion to
Dismiss Count II of Plaintiff's Complaint, or in the
Alternative Strike Plaintiff's Demand for Punitive
Damages (Doc. #5) filed on October 24, 2017. Plaintiff filed
a Response in Opposition (Doc. #13) on November 17, 2017. For
the reasons set forth below, the Motion is granted.
August 25, 2017, plaintiff Michael Ashworth filed a two-count
Complaint against his former employer, Glades County Board of
County Commissioners, for failure to pay overtime wages in
violation of the Fair Labor Standards Act (FLSA) (Count I)
and unlawful retaliation in violation of Fla. Stat. §
92.57 (Count II). (Doc. #2.) Section 92.57 makes it unlawful
for an employer to terminate a person who testifies in
response to a subpoena.The action was removed to this Court on
October 19, 2017. (Doc. #1.) Plaintiff alleges that he began
employment with defendant as an Animal Control Officer on May
30, 2012, and was terminated on August 2, 2017, after
offering unfavorable testimony against defendant. (Doc. #2,
¶¶ 15-16, 23-24.)
now moves to dismiss plaintiff's unlawful retaliation
claim (Count II) based on sovereign immunity. In the
alternative, defendant moves to strike Count II's
punitive damages request, arguing that punitive damages are
not available against a the State or its agencies or
subdivisions. Plaintiff responds that dismissal is
inappropriate because Florida has waived sovereign immunity
under the circumstances giving rise to his unlawful
retaliation claim, but plaintiff agrees to withdraw Count
II's demand for punitive damages.
immunity is the privilege of the sovereign not to be sued
without its consent.” Va. Office for Prot. &
Advocacy v. Stewart, 563 U.S. 247, 253 (2011). “In
Florida, sovereign immunity is the rule, rather than the
exception.” Pan-Am Tobacco Corp. v. Dep't of
Corr., 471 So.2d 4, 5 (Fla. 1984) (citing Fla. Const.
art. X, § 13). Any waiver of sovereign immunity must be
“clear and unequivocal”; thus, absent a waiver,
Florida sovereign immunity bars suit against the State or one
of its political subdivisions. Id.; Town of Gulf
Stream v. Palm Beach Cnty., 206 So.3d 721, 725 (Fla. 4th
DCA 2016). “Only the Legislature has authority to enact
a general law that waives the state's sovereign
immunity” and “waiver will not be found as a
product of inference or implication.” Am. Home
Assur. Co. v. Nat'l R.R. Passenger Corp., 908 So.2d
459, 471 (Fla. 2005). Counties and municipalities are
afforded sovereign immunity to the same extent as the State.
Town of Gulf Stream, 206 So.3d at 725; Fla. Stat. §
legislature has explicitly waived sovereign immunity for
liability in torts involving personal injury, wrongful death,
and loss or injury of property. Fla. Stat. § 768.28.
Defendant asserts that although a cause of action for
retaliatory discharge brought pursuant to Fla. Stat. §
92.57 is “tortious in nature, ” a plaintiff
bringing such a cause of action is only entitled damages for
economic loss in the form of lost wages, for which the State
has not waived its sovereign immunity. See Cnty. of
Brevard v. Miorelli Engineering, Inc., 677 So.2d 32, 34
(Fla. 5th DCA 1996), quashed on other grounds, 703
So.2d 1049 (Fla. 1997). Plaintiff responds that his
retaliation claim still falls within Section 768.28 because
Section 92.57 allows for the recovery of tort-like
compensatory damages, including pain and suffering, which
makes his claim akin to a personal injury tort, citing
Mason v. City of Miami Gardens, Fla., No.
14-23908-CV, 2015 WL 2152702 (S.D. Fla. May 6, 2015).
Florida's state courts have not spoken on the application
of Section 768.28 to retaliatory discharge under Section
92.57, in Mason the District Court found that because
plaintiff was essentially seeking damages in the form of a
personal injury tort, and not for purely economic damages,
the Section 92.57 claim fell within the waiver of Section
768.28. Id. at *2.
determining whether statutory claims such as the one at issue
here are subject to sovereign immunity, this Court takes
guidance from the Supreme Court of Florida, which generally
examines the statutory language rather than the type of
damages sought by a plaintiff. For example, in Bifulco v.
Patient Business & Financial Services, Inc., the
Supreme Court of Florida examined whether the State had
waived its sovereign immunity under Section 440.205 of the
Workers' Compensation Law, which created a cause of
action for employees who are subject to retaliatory treatment
by their employers for attempting to claim workers'
compensation benefits. 39 So.3d 1255, 1257 (Fla. 2010). The
court found that under the plain language of the Workers'
Compensation Law, the Legislature had waived sovereign
immunity by authorizing a lawsuit against the State.
Id. Moreover, the court pointed to the fact that in
several statutory causes of action, the Legislature has
chosen to waive sovereign immunity by explicitly referencing
Section 768.28 in the statute. Id. at 1258.
the Supreme Court of Florida has noted that the purpose of
the enactment of Section 768.28 was to waive sovereign
immunity for breaches of common law duties of care,
limited to traditional torts, rather than causes of action
created by statute. See Trianon Park Condominium
Ass'n, Inc. v. City of Hialeah, 468 So.2d 912, 917
(Fla. 1985); Hill v. Dept. of Corrections, 513 So.2d
129, 133 (Fla. 1987). See also State of Fla., Dept. of
Elder Affairs v. Caldwell, 199 So.3d 1107, 1110 (Fla.
1st DCA 2016) (finding that any waiver of sovereign immunity
by legislature for an executive agency's interference
with an ombudsman applied to tort claims, not statutory
claims such as retaliatory discharge). In Caldwell, even
though plaintiff's cause of action allowed for the
recovery of damages for pain and suffering, the court instead
examined the statutory language and legislative intent for a
“clear and unequivocal waiver” of sovereign
immunity to determine whether the legislature intended the
Department to be sued. Id. See also Fla. Dept.
of Transp. V. Schwefringhaus, 188 So.3d 840, 846 (Fla.
2016) (“Waiver cannot be found by inference or
implication, and statutes waiving sovereign immunity must be
Court follows the guidance of Florida courts and disagrees
with plaintiff that his potential recovery of pain and
suffering damages for a statutory cause of action means that
Florida has waived its sovereign immunity for such a claim.
Plaintiff has pointed to no language in the statute itself,
nor to any other indication that the Florida legislature
intended to waive sovereign immunity for Section 92.57
claims; therefore, the Court will not find that Florida has
waived sovereign immunity for such claims. See Am. Home
Assur. Co., 908 So.2d at 471 (finding that waiver will not be
found as a product of inference).
it is hereby