Campbell v. Lee County, Florida Board of County Commissioners

Filing 21

OPINION AND ORDER granting in part and denying in part 12 Defendant's Motion to Dismiss Plaintiff's Complaint. Count II is dismissed without prejudice to filing an Amended Complaint within 14 days of this Opinion and Order. The motion is otherwise denied. Signed by Judge John E. Steele on 3/17/2015. (MAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL
CAMPBELL,
individual,

an

Plaintiff,
v.

Case No: 2:14-cv-213-FtM-29DNF

LEE COUNTY, FLORIDA BOARD OF
COUNTY
COMMISSIONERS,
a
political subdivision of the
State of Florida,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of Defendant’s
Motion

to

Dismiss

Plaintiff's

December 18, 2014.
December 24, 2014.

Complaint

(Doc.

#12)

filed

on

Plaintiff filed a Response (Doc. #14) on
For the reasons set forth below, the motion is

granted in part and denied in part.
I.
Plaintiff Michael Campbell (Campbell) has filed a two-count
Complaint (Doc. #1) against Defendant Lee County, Florida Board of
County
Florida

Commissioners

(the

Whistleblower’s

County)
Act

and

alleging
the

constitutional right to freedom of speech.

violations

deprivation

of
of

the
his

The underlying facts,

as set forth in the Complaint, are as follows:

Campbell worked for the County’s Department of Transportation
as a “Crew Leader” from October 2006 to October 2013.
7.)

(Id. at ¶

While he was employed by the County, Campbell became aware of

the County’s “mismanagement of public funds, gross inequities in
personnel decisions and extensive age discrimination.”
10.)

(Id. at ¶

In mid-September 2013, Campbell provided written statements

to members of the news media detailing the County’s mismanagement
and age discrimination.

(Id. at ¶¶ 11-12.)

During the same time

period, Campbell also voiced his concerns to his superiors at the
County.

(Id. at ¶ 13.)

Less than two weeks after speaking with

the media, the County terminated Campbell’s employment.

(Id. at

¶ 15.)
Based on these allegations, Campbell brings causes of action
against the County for violating 42 U.S.C. § 1983 (Section 1983)
by depriving him of his constitutional right to freedom of speech,
and for violating the Florida Whistleblower’s Act (FWA).

The

County now moves to dismiss the Complaint, arguing that both counts
fail to state a claim upon which relief can be granted.

Campbell

replies that both counts are adequately pled.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

2

formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

accusation.”

an

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (internal quotation marks and citations omitted). Thus,
the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity

3

and

then

determine

whether

entitlement to relief.”

they

plausibly

give

rise

to

an

Iqbal, 556 U.S. at 679.
III.

A.

Count I – Section 1983
Public employees, like plaintiff, may bring First Amendment

retaliation claims pursuant to 42 U.S.C. § 1983.
Scott, 610 F.3d 701, 703 (11th Cir. 2010).

See Randall v.

Section 1983 imposes

liability on any person who, under color of state law, deprives a
person “of any rights, privileges, or immunities secured by the
Constitution and laws.”

42 U.S.C. § 1983.

It is well established

that a state employee may not be discharged in retaliation for
speech protected under the First Amendment.

Vila v. Padron, 484

F.3d 1334, 1339 (11th Cir. 2007) (citing Rankin v. McPherson, 483
U.S. 378, 383 (1987)).

Nonetheless, “[g]overnment employers, like

private employers, need a significant degree of control over their
employees’ words and actions; without it, there would be little
chance for the efficient provision of public services.”

Garcetti

v. Ceballos, 547 U.S. 410, 418 (2006).
In order to establish a claim of retaliation under the First
Amendment, a plaintiff must show: “(1) she was speaking as a
citizen on a matter of public concern; (2) her interests as a
citizen outweighed the interests of the State as an employer; and
(3) the speech played a substantial or motivating role in the
adverse employment action.”

Vila, 484 F.3d at 1339 (citing Akins

4

v. Fulton Cnty., 420 F.3d 1293, 1303 (11th Cir. 2005)).

The

Eleventh Circuit modified the first part of the inquiry, in
accordance with the Supreme Court’s holding in Garcetti, “to
determine if an employee’s speech has constitutional protection by
deciding at the outset (1) if the government employee spoke as an
employee or citizen and (2) if the speech addressed an issue
relating to the mission of the government employer or a matter of
public concern.”

Boyce v. Andrew, 510 F.3d 1333, 1342 (11th Cir.

2007) (citing D’Angelo v. Sch. Bd., 497 F.3d 1203, 1209 (11th Cir.
2007)).

The County argues that Count I must be dismissed because

Campbell’s

allegations

fail

to

satisfy

both

prongs

of

this

analysis.
1.

Whether Campbell Spoke as an Employee or Citizen
Campbell’s

speech

may

be

entitled

to

protection only if he spoke as private citizen.

constitutional
The critical

question under this step of the analysis is “whether the speech at
issue is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.”
Franks, 134 S. Ct. 2369, 2379 (2014).

Lane v.

If a public employee speaks

pursuant to his “official duties,” the employee is not speaking as
a citizen and the speech is not protected.
421.

Garcetti, 547 U.S. at

A number of relevant, but non-dispositive factors have been

established to assist in the determination of whether the speech
is

within

the

scope

of

an

employee’s

5

duties,

including

the

employee’s job description, whether the speech occurs in the
workplace, and whether the speech concerns the subject matter of
the employee’s job.

Abdur-Rahman v. Walker, 567 F.3d 1278, 1282

(11th Cir. 2009) (citing Garcetti, 547 U.S. at 420-421).
Here, Campbell alleges that he was employed by the Department
of Transportation as a Crew Leader.

He further alleges that his

duties as a Crew Leader did not involve speaking to the media
regarding

the

County’s

finances

and

employment

practices.

Accepting these allegations as true, the Court concludes that
Campbell has adequately alleged that he was speaking as a private
citizen when he disclosed the County’s alleged misconduct to the
media.

Accordingly, the County’s motion to dismiss on this basis

is denied.
2.

Whether Campbell’s Speech Addressed a Matter of Public
Concern
Campbell’s

concern.

speech

must

also

address

a

matter

of

public

“Speech involves matters of public concern when it can

be fairly considered as relating to any matter of political,
social, or other concern to the community, or when it is a subject
of legitimate news interest; that is, a subject of general interest
and of value and concern to the public.”
(quotation omitted).
media

concerning

discriminatory

Lane, 134 S. Ct. at 2380

Here, Campbell alleges that he spoke to the

the

County’s

employment

misuse

practices.

6

of

public

Such

funds

speech

and

clearly

addresses a matter of public concern.

Lane, 134 S. Ct. at 2380

(“[C]orruption in a public program and misuse of state funds []
obviously

involves

a

matter

of

significant

public

concern.”); Garcetti, 547 U.S. at 425 (“Exposing governmental
inefficiency

and

significance.”).

misconduct

is

a

matter

of

considerable

Accordingly, the County’s motion to dismiss on

this basis is denied.
B.

Count II – The Florida Whistleblower’s Act
The

FWA

prohibits

a

state

agency

from

dismissing

or

disciplining an employee for disclosing violations or suspected
violations of federal, state, or local law, or any act of gross
mismanagement,

malfeasance,

or

misfeasance.

Fla.

Stat.

§

112.3187.

Campbell alleges that the County violated the FWA by

dismissing

him

misconduct.

for

disclosing

the

County’s

mismanagement

and

A FWA retaliatory discharge claim is analyzed via the

same framework as retaliation claims brought pursuant to Title VII
of the Civil Rights Act.
(11th Cir. 2013).

Turner v. Inzer, 521 F. App'x 762, 764

Therefore, to state a claim for retaliatory

discharge under the FWA, a plaintiff must allege that: (1) he
engaged in an activity protected by the FWA, (2) he suffered an
adverse employment action, and (3) a causal connection existed
between the protected activity and the adverse employment action.
Id.

7

The County challenges only the first prong of Campbell’s prima
facie case.

Specifically, the County argues that Campbell’s

disclosure of alleged misconduct to his “superiors” at the County’s
Department of Transportation was not protected by the FWA.

The

FWA protects whistleblower employees who, inter alia, “file any
written complaint to their supervisory officials.”

Fla. Stat. §

112.3187(7). However, when the alleged misconduct concerns a local
governmental entity such as the County, “the information must be
disclosed to a chief executive officer . . . or other appropriate
local official.”

Id. § 112.3187(6).

The FWA does not define

“appropriate local official,” but the general consensus among
Florida courts is that an individual is an “appropriate local
official” for the purposes of the FWA if he or she is “affiliated
with the local government in some way” and is “empowered to
investigate complaints and make reports or recommend corrective
action.”

Quintini v. Panama City Hous. Auth., 102 So. 3d 688, 689

(Fla. 4th DCA 2012) (collecting cases and Florida Attorney General
Opinions).
Here,

Campbell

does

not

allege

that

he

disclosed

the

Department of Transportation’s misconduct to the County’s chief
executive officer.

Accordingly, the sufficiency of Campbell’s

allegations turns on whether his “superiors” at the Department of
Transportation qualify as “other appropriate local official[s]”
for the purposes of the FWA.

The Complaint does not allege who

8

Campbell’s “superiors” at the Department of Transportation were,
nor does it allege whether Campbell’s “superiors” had authority to
investigate

his

complaints

or

recommend

corrective

action.

Accordingly, the Court concludes that Campbell has failed to allege
that his disclosures qualify for FWA protection.

Therefore, Count

II will be dismissed without prejudice and Campbell will be given
leave to amend.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss Plaintiff's Complaint (Doc.
#12) is GRANTED IN PART and DENIED IN PART.

Count II of the

Complaint (Doc. #1) is dismissed without prejudice to filing an
Amended Complaint within FOURTEEN (14) DAYS of this Opinion and
Order.

The motion is otherwise denied.

DONE AND ORDERED at Fort Myers, Florida, this
March, 2015.

Copies: Counsel of record

9

17th

day of