McAllister v. Lee County, Florida Board of County Commissioners et al

Filing 18

OPINION AND ORDER granting in part and denying in part 12 15 Defendants' Motions to Dismiss. Counts II, III, V, and VI of the Amended Complaint are dismissed without prejudice to filing a Second Amended Complaint within 14 days. See Opinion and Order for details. Signed by Judge John E. Steele on 1/23/2015. (MAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ARNOLD
MCALLISTER,
individual,

an

Plaintiff,
v.

Case No: 2:14-cv-403-FtM-29CM

LEE COUNTY, FLORIDA BOARD OF
COUNTY
COMMISSIONERS,
a
political subdivision of the
State
of
Florida,
KIM
DICKERSON, an individual,
and
CHRISTINE
BRADY,
an
individual,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of Defendants'
Motions to Dismiss (Docs. ##12, 15) filed on October 31 and
November 19, 2014.

Plaintiff filed Responses (Docs. ##14, 16) on

November 10 and November 26, 2014.

For the reasons set forth

below, the motions are granted in part and denied in part.
I.
Plaintiff Arnold McAllister (McAllister) has filed a sixcount Amended Complaint (Doc. #8) against Defendants Lee County
Florida’s

Board

of

County

Commissioners

(the

County),

Kim

Dickerson (Dickerson), and Christine Brady (Brady) for violating
the False Claims Act (FCA) and for depriving McAllister of his

right to freedom of speech.

The underlying facts, as set forth in

the Amended Complaint, are as follows:
McAllister was hired by the County in 2002 as a pilot and EMT
for Medstar, the County’s medical helicopter program.
9.)

(Id. at ¶

While working for Medstar, McAllister discovered that it was

operating

one

of

its

helicopters

without

required

federal

certifications, which resulted in the County billing Medicare and
Medicaid millions of dollars for unauthorized Medstar flights.
(Id. at ¶¶ 24-43.)

McAllister also discovered various safety

issues concerning the County’s operation of Medstar helicopters.
(Id.)

McAllister brought these issues to the attention of his

supervisors at Medstar, but was rebuked.

(Id. at ¶¶ 43-50.)

McAllister was met with similar resistance when he raised the
billing and safety issue with other County officials.

(Id.)

Dissatisfied with the County’s response, McAllister raised the
issues with the Federal Aviation Administration and began to speak
publicly, via news outlets and social media, concerning what he
viewed as serious misconduct by the County.

(Id.)

McAllister alleges that the County retaliated against him as
a result of his speech.

(Id. at ¶¶ 62-78.)

Specifically,

McAllister alleges that he was placed on administrative leave for
“trumped up” and “fraudulent” incidents and was subject to harsh
performance reviews despite the fact that he had been given
excellent reviews prior to his criticism of Medstar and the County.

2

(Id.)

McAllister was never reinstated from administrative leave.

Instead, he was terminated along with other Medstar pilots when
the County eliminated the Medstar program in its entirety.

(Id.)

Although the County claimed that McAllister’s termination was the
result its decision to discontinue Medstar, McAllister alleges
that

the

County’s

actual

whistleblowing.

(Id.)

had

and

a

pattern

motive

was

retaliation

for

his

Indeed, McAllister alleges that the County
practice

of

terminating their employment.

punishing

(Id.)

whistleblowers

by

In support, McAllister

alleges that the County was hiring EMTs at the same time McAllister
was terminated, yet never offered to allow McAllister, who was an
EMT as well as a pilot, to transfer positions.

(Id.)

Based upon these allegations, McAllister brings causes of
action against the County, Dickerson, and Brady for violating 42
U.S.C.

§

1983

(Section

1983)

by

depriving

him

of

his

First

Amendment right to freedom of speech (Counts I-III); and a cause
of action against the County for violating the FCA (Count IV).1
Each Defendant has moved to dismiss.

Dickerson and Brady argue

that they are entitled to qualified immunity and, therefore, the
Section 1983 causes of action against them (Counts II-III) must be

1

The Amended Complaint also alleges violations of the Florida
False Claims Act (Count V) and the Florida Public Whistleblower
Act (Count VI). The County moves to dismiss these counts as timebarred, and McAllister concedes that they are subject to dismissal.
(Doc. #14, p. 19 n.5.) Accordingly, the County’s motion to dismiss
Counts V and VI is granted.

3

dismissed. The County argues that McAllister’s FCA cause of action
(Count IV) must be dismissed for failure to state a claim upon
which

relief

can

be

granted.2

Plaintiff

responds

that

the

challenged 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
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

2

The County has not moved to dismiss the Section 1983 claim brought
against it (Count I).

4

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
and

then

determine

whether

entitlement to relief.”

they

plausibly

give

rise

to

an

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

A.

Section 1983 Claims Against Dickerson and Brady (Counts IIIII)
Section 1983 imposes liability on anyone 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,
and “[t]he law 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).

McAllister claims that Dickerson and Brady (County employees sued
in

their

individual

capacities)

violated

his

First

Amendment

rights by discharging him as retaliation for speaking out about
Medstar’s billing and safety issues.

5

Dickerson and Brady argue

that McAllister’s claims against them must be dismissed because
they are entitled to qualified immunity.
As currently pled, Counts II and III are at best confusing
and must be amended to add needed clarity regarding the retaliatory
conduct Dickerson and Brady are alleged to have committed.

The

thrust of Counts II and III appears to be that the Medstar program
was shut down in retaliation for McAllister’s public disclosure of
the County’s alleged misconduct.

As a result, McAllister was

discharged and denied a transfer to an available position as a
non-pilot

EMT.

(Doc.

#8,

¶¶

62-78.)

However,

the

Amended

Complaint is not clear as to the role Dickerson and Brady played
in the alleged retaliation.

For example, while McAllister alleges

that Dickerson and Brady informed him of his discharge, it is
unclear

whether

they

had

decision-making

communicated decisions made by others.

authority

(Id. at ¶ 72.)

or

merely

The Court

finds that while there may be valid Section 1983 causes of action
against Dickerson and Brady arising from the events alleged (for
which Dickerson and Brady may or may not be entitled to qualified
immunity), Counts II and III need to be clearer as to what actions
taken

by

Dickerson

and

Brady

are

McAllister’s constitutional rights.

alleged

to

violated

The Court will dismiss Counts

II and III, but grant McAllister leave to amend.

6

have

B.

FCA Claim Against the County (Count IV)
“The FCA prohibits fraud against government programs” and

allows either the United States government or private citizens to
file civil lawsuits to enforce its provisions.

U.S. ex rel.

Osheroff v. Humana Inc., No. 13-15278, 2015 WL 223705, at *2 (11th
Cir. Jan. 16, 2015).

To encourage private citizens with knowledge

of FCA violations to come forward, the FCA contains an antiretaliation provision which prohibits employers from discharging,
demoting,

threatening,

harassing,

or

otherwise

discriminating

against an employee who acts in furtherance of an FCA claim or
attempts to stop an FCA violation. 31 U.S.C. § 3730(h). Employers
who violate the anti-retaliation provision are subject to civil
suits

by

aggrieved

employees.

Id.

To

prevail

on

an

FCA

retaliation claim, a plaintiff must show (1) that he engaged in
conduct protected by the FCA; (2) that the defendant was aware of
the

plaintiff's

actions;

and

(3)

that

the

plaintiff

discriminated against in retaliation for his conduct.

was

Mack v.

Augusta-Richmond Cnty., Ga., 148 F. App'x 894, 897 (11th Cir.
2005).
The prototypical example of conduct protected by the FCA is
the filing of an FCA claim.

U.S. ex rel. Sanchez v. Lymphatx,

Inc., 596 F.3d 1300, 1303 (11th Cir. 2010).

The FCA also protects

employees from retaliation if “there was at least a distinct
possibility of litigation under the [FCA] at the time of the

7

employee's actions.”

Id. (quotation omitted).

Thus, the FCA

prohibits retaliation against an employee who “put her employer on
notice of possible [FCA] litigation by making internal reports
that alert the employer to fraudulent or illegal conduct,” even if
an FCA claim is never filed.

Id. at 1304.

But, mere reporting of

wrongdoing to supervisors, without alleging that the wrongdoing
constitutes fraud on the government, does not qualify as protected
conduct.

Put simply, “[i]f an employee's actions, as alleged in

the complaint, are sufficient to support a reasonable conclusion
that

the

employer

could

have

feared

being

reported

to

the

government for fraud or sued in a qui tam action by the employee,
then the complaint states a claim for retaliatory discharge under §
3730(h).”

Id.

Here, McAllister alleges that the County was aware that he
notified County, state, and federal officials of the alleged
misappropriation of federal funds.

(Doc. #8, ¶¶ 127-32.)

He also

alleges that he was harassed and discharged in retaliation for
this conduct.

(Id.)

These allegations satisfy the second and

third elements of his FCA retaliation claim.

The remaining issue

is whether, as alleged, McAllister’s conduct is sufficient to
support a reasonable conclusion that the County could have feared
being reported to the government or sued directly in a qui tam
action.

The Court concludes that it does.

8

McAllister

alleges

that

he

notified

County,

state,

and

federal officials that the County was misappropriating federal
funds.

(Id. at ¶¶ 45-49, 125-27.)

McAllister also alleges that

he reported the same misconduct to the FAA and spoke to news
organizations

regarding

the

misappropriations.

(Id.)

Taken

together, these allegations support a reasonable conclusion that
the County could have feared McAllister would report the County’s
alleged fraudulent billing to Medicare and/or Medicaid or bring
his own qui tam action.

Therefore, the County’s motion to dismiss

Count IV is denied.
Accordingly, it is now
ORDERED:
Defendants' Motions to Dismiss (Docs. ##12, 15) are GRANTED
IN PART and DENIED IN PART.

Counts II, III, V, and VI of the

Amended Complaint are dismissed without prejudice to filing a
Second Amended Complaint within FOURTEEN (14) DAYS of this Opinion
and Order.

The motions are otherwise DENIED.

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

Copies: Counsel of record

9

23rd

day of