McAllister v. Lee County, Florida Board of County Commissioners et al
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
Case No: 2:14-cv-403-FtM-29CM
LEE COUNTY, FLORIDA BOARD OF
political subdivision of the
DICKERSON, an individual,
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.
Plaintiff Arnold McAllister (McAllister) has filed a sixcount Amended Complaint (Doc. #8) against Defendants Lee County
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.
(Id. at ¶
While working for Medstar, McAllister discovered that it was
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.
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.
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.
McAllister alleges that the County retaliated against him as
a result of his speech.
(Id. at ¶¶ 62-78.)
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.
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.
Although the County claimed that McAllister’s termination was the
result its decision to discontinue Medstar, McAllister alleges
Indeed, McAllister alleges that the County
terminating their employment.
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.
Based upon these allegations, McAllister brings causes of
action against the County, Dickerson, and Brady for violating 42
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
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.
dismissed. The County argues that McAllister’s FCA cause of action
(Count IV) must be dismissed for failure to state a claim upon
challenged counts are adequately pled.
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
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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).
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
The County has not moved to dismiss the Section 1983 claim brought
against it (Count I).
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
“Factual allegations that are merely consistent
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
entitlement to relief.”
Iqbal, 556 U.S. at 679.
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
Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007).
McAllister claims that Dickerson and Brady (County employees sued
rights by discharging him as retaliation for speaking out about
Medstar’s billing and safety issues.
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.
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
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
communicated decisions made by others.
(Id. at ¶ 72.)
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
McAllister’s constitutional rights.
The Court will dismiss Counts
II and III, but grant McAllister leave to amend.
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,
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
retaliation claim, a plaintiff must show (1) that he engaged in
conduct protected by the FCA; (2) that the defendant was aware of
discriminated against in retaliation for his conduct.
Augusta-Richmond Cnty., Ga., 148 F. App'x 894, 897 (11th Cir.
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
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
Put simply, “[i]f an employee's actions, as alleged in
the complaint, are sufficient to support a reasonable conclusion
government for fraud or sued in a qui tam action by the employee,
then the complaint states a claim for retaliatory discharge under §
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.)
alleges that he was harassed and discharged in retaliation for
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
The Court concludes that it does.
federal officials that the County was misappropriating federal
(Id. at ¶¶ 45-49, 125-27.)
McAllister also alleges that
he reported the same misconduct to the FAA and spoke to news
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
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
The motions are otherwise DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
Copies: Counsel of record
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