THIS CAUSE comes to this Court upon Defendant's Motion to Dismiss Plaintiff's Amended Complaint and to Dismiss Defendant John K. Clark, individually (D.E. #30) filed on July 27, 1994. After requesting and obtaining an extension of time, Plaintiff filed a Memorandum in Opposition (D.E. #36) on August 16, 1994.

I. Factual Background

Plaintiff was employed in the Palm Beach County Tax Collector's Office from August, 1979 until she was terminated on January 15, 1993. Plaintiff alleges that Defendant terminated her because of her diabetes.

Plaintiff thus brings this action alleging discrimination on the basis of physical disability in violation of the Americans for Disabilities Act (ADA), 42 U.S.C. SEC. 12117. Plaintiff also asserts a claim under 42 U.S.C. SEC. 1983, claiming that in terminating her, Defendant deprived her of her liberty interests and property interests without due process of law in violation of the 14th Amendment of the United States Constitution.

II. Legal Standard

This Court is generally hesitant to grant motions to dismiss for failure to state a claim based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under the liberal pleading rules codified in Rule 8(a), the plaintiff is only required to make a short plain statement of the facts that would enable defendant to frame a responsive pleading. Fed. R. Civ. P. 8; Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Therefore, a motion to dismiss is justified only where the complaint clearly indicates that the plaintiff has no claim.

For purposes of a motion to dismiss, the Court must read the complaint in the light most favorable to the plaintiff and take all allegations made by the plaintiff as true. 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure SEC. 1357 (1990). There are a few exceptions to this rule, such as where the facts alleged are internally inconsistent or where they run counter to facts of which the court can take judicial notice. Id. Conclusory allegations and unwarranted deductions of fact also need not be accepted as true. Assoc. Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974). Likewise, a court is not bound to accept a plaintiff's legal conclusions. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991).

The test for determining the sufficiency of the complaint is whether the non-moving party can prove any set of facts in support of the claim that would entitle him or her to relief. Id. If some factual scenario would entitle the plaintiff to relief, the motion to dismiss must be denied.

III. Analysis

A. Disability Discrimination

The ADA states that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual with regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions, and privileges of employment." 42 U.S.C. SEC. 12112(a). Plaintiff claims that Defendant discharged her from employment because of her handicap of diabetes, and/or "because defendant perceived her to be suffering from alcoholism, also a handicap within the intent of the ADA." (Amended Complaint, para. 1). Defendant contends that Plaintiff's diabetes is not a handicap within the meaning of the ADA and that the ADA does not limit an employer's authority to terminate an employee for the illegal use of drugs and alcohol in the workplace.

1. Diabetes Claim

Plaintiff alleges that Defendant terminated her for being intoxicated but that she "actually had a fluctuation of her blood glucose level." (Amended Complaint, para. 9). This statement is insufficient to allege that Defendant discharged her because of her diabetes. Thus, this Court finds that Plaintiff has failed to state a claim upon which relief can be granted.

2. Alcoholism

Plaintiff claims that Defendant dismissed her from employment because Defendant perceived her to be suffering from alcoholism. Plaintiff further claims that when Defendant perceived her to be intoxicated at work, Plaintiff was actually suffering from her diabetic condition. Plaintiff contends that such a misperception is discrimination within the meaning of the ADA. Plaintiff argues that since alcoholism is not excluded from the definition of disability, it is a disability within the meaning of the ADA.

Under the ADA, the definition of disability includes "being regarded as having such an impairment." 42 U.S.C. SEC. 12102(2)(C). Thus, whether or not a plaintiff was actually disabled, if she was subject to discrimination based on the perception of a disability, she is covered by the ADA. Id. In support of her claim of discrimination, Plaintiff alleges Defendant stated that "plaintiff was intoxicated at work and that said intoxication was the reason for her termination" and that plaintiff has "been under the influence of alcohol during the past several months . . ." (Amended Complaint, paras. 18-19).

Even taking these statements in the light most favorable to Plaintiff, they do not show that Defendant misperceived Plaintiff to be suffering from alcoholism. The ADA provides that a covered entity "may prohibit the use of alcohol at the workplace by all employees" and hold an employee suffering from alcoholism to the same performance standards as other employees. 42 U.S.C. SEC. 12114(c)(1)-(4). The ADA does not restrict the right of an employer to terminate an employee for alcohol use, even if any performance or behavior is related to the employee's alcoholism. Id. This Court thus finds that Plaintiff has failed to state a claim that Defendant erroneously perceived her to be suffering from a disability.

B. 42 U.S.C. SEC. 1983

1. Property Interest

In the context of a claim under 42 U.S.C. SEC. 1983, a defendant's motion to dismiss will normally be granted if the facts alleged by the plaintiff, taken as true, do not show that the defendant acted under color of state law and deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or the laws of the United States. Whitehorn v. Harrelson, 758 F.2d 1416, 1419 (11th Cir. 1985).

In the employment context, whether a public employee has a property interest in continuing employment is to be determined by reference to state law. Bishop v. Wood, 426 U.S. 341, 347, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976). Under Florida law, employment is at-will unless the state has created a property interest or the employer has created a property interest by contract. Smith v. Piezo Technology & Professional Administrators, 427 So.2d 182, 184 (Fla. 1983). Ragucci v. City of Plantation holds that where a statute or ordinance lists specific grounds for discharge of a public employee or states that a public employee can only be terminated for just cause, an employee has a property right in employment and is entitled to due process protection. 407 So.2d 932, 935 (Fla. 1981).

Plaintiff asserts that the Employment Information Handbook granted her a "vested property interest in continued employment." (Amended Complaint, para. 27). Plaintiff did not attach a copy of said Employment Information Handbook in her Complaint. Defendant attached a copy of said Handbook to the Motion to Dismiss (Exh. C).

Page three of the Handbook clearly states that "nothing in this handbook is intended to create a guarantee or contract of employment between any employee(s) of the Office of the Tax Collector and the office itself or any official thereof." The plain language of the Handbook thus explicitly refutes Plaintiff's contention that the Handbook gave her a vested interest in employment. Moreover, Plaintiff's contention that since the Tax Collector's Office promulgated the Handbook, the Handbook now has the force of an ordinance is without merit. The mere fact of promulgation does not by itself give the Handbook the force of an ordinance.

Under the Federal Rules of Civil Procedure, consideration of matters outside the pleadings requires that the motion be treated as one for summary judgment. Fed. R. Civ. Pro. 12(b); Carter v. Stanton, 405 U.S. 669, 671, 31 L. Ed. 2d 569, 92 S. Ct. 1232 (1972). At the same time, however, Federal Rule of Civil Procedure 10(c) provides that "[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes." A plaintiff is not required to attach to her complaint documents upon which her action is based, but a defendant may introduce pertinent documents if the plaintiff fails to do so. 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, SEC. 1327 (1990). Further, documents that the defendant attaches to a motion to dismiss can be considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim. Venture Associates v. Zenith Data Systems, 987 F.2d 429, 431 (7th Cir. 1993). Plaintiff refers specifically to the Employment Handbook and said Handbook constitutes the basis of her claim to a property right in employment. For the reasons stated above, this Court finds that Plaintiff fails to allege a property interest in continued employment.

2. Liberty Interest

Plaintiff alleges that in terminating her employment, Defendant also violated her 14th Amendment liberty interest. The United States Supreme Court has held that for a statement by a government employer to implicate an employee's liberty interest, the statement must negatively implicate the employee's "good name, reputation, honor, or integrity," or impose "a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).

In order for a discharged public employee to establish violation of a liberty interest, the employee must show the following: "(1) a false statement (2) of a stigmatizing nature (3) attending a governmental employee's discharge (4) made public (5) by the governmental employer (6) without a meaningful opportunity for employee name clearing." Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1042-43 (11th Cir. 1989). The Buxton court explicitly held that placing information into the public record by a state entity pursuant to state statute or otherwise constitutes sufficient publication to implicate the liberty interest under the 14th Amendment. Buxton, 871 F.2d at 1046.

In a motion to dismiss, the Court must view the Complaint in the light most favorable to the Plaintiff. In this case, the Court may not consider Defendant's Exhibit B, a letter from Defendant to Plaintiff dated February 16, 1993. Plaintiff's Amended Complaint alleges that Defendant's statement about Plaintiff being under the influence of alcohol while at work is false and stigmatizing; that said letter became a public document pursuant to Fla. Stat. 119.07; that prior to and after publishing said statements, Defendant failed to give plaintiff a meaningful opportunity to clear her name; that these circumstances attended her discharge from employment at the Palm Beach County Tax Collector's office. This Court finds, under Roth and Buxton, that Plaintiff has sufficiently pleaded a liberty interest claim.

C. Defendant John K. Clark's Individual Capacity

Immunity, whether absolute or qualified, shields government officials from suits seeking damages against them in their personal capacity. A defense of qualified immunity seeks to balance the values of providing a damages remedy to protect the rights of citizens and of protecting officials who must exercise discretion and the related public interest in the vigorous exercise of official authority. Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1973). The Supreme Court has held that

bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. . . . [and] that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Qualified immunity has been extended to state officials. Malley v. Briggs, 475 U.S. 335 (1986).

Plaintiff has alleged only that in an official letter of termination, Defendant Clark stated Plaintiff "had been under the influence of alcohol while on duty during the past several months . . ." and that this statement was made "maliciously and/or with reckless indifference," thereby violating Plaintiff's 14th Amendment rights. (Amended Complaint, para. 19) Such a conclusory statement is insufficient to allege that Defendant Clark knowingly violated clearly established statutory or constitutional rights of which a reasonable person would have known. This Court thus finds, under Harlow and Malley, that Plaintiff has failed to assert a claim under 42 U.S.C. SEC. 1983 against Defendant John K. Clark in his individual capacity.

III. Conclusion

After careful review of the record, and the Court being otherwise fully advised, it is

ORDERED, ADJUDGED AND DECREED that Defendant's Motion to Dismiss, be and the same is hereby, GRANTED IN PART AND DENIED IN PART. As to Plaintiff's claim of discrimination based on diabetes, Defendant's Motion to Dismiss is, and the same is hereby, GRANTED. As to Plaintiff's claim of discrimination due to misperception of alcoholism, Defendant's Motion to Dismiss is, and the same is hereby, GRANTED. As to Plaintiff's claim of deprivation of property without due process of law, Defendant's Motion to Dismiss is, and the same is hereby, GRANTED. As to Plaintiff's claim of deprivation of liberty without due process of law, Defendant's Motion to Dismiss is, and the same is hereby, DENIED. As to Plaintiff's claim under 42 U.S.C. SEC. 1983 against Defendant John K. Clark in his individual capacity, Defendant's Motion to Dismiss is, and the same is hereby, GRANTED.

DONE and ORDERED in chambers at the United States District Courthouse, Federal Justice Building, Miami, Florida, this 21st day of September, 1994.

JAMES LAWRENCE KING

U.S. DISTRICT JUDGE, SOUTHERN DISTRICT OF FLORIDA