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

Filing 24

OPINION AND ORDER denying 21 Defendants' Motion to Dismiss Counts II and III of Plaintiff's Second Amended Complaint. See Opinion and Order for details. Signed by Judge John E. Steele on 5/5/2015. (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

Defendants’

Kim

Dickerson and Christine Brady’s Motion to Dismiss Counts II and
III of Plaintiff’s Second Amended Complaint (Doc. #21) filed on
February 17, 2015.
3, 2015.

Plaintiff filed a Response (Doc. #23) on March

For the reasons set forth below, the motion is denied.
I.

Plaintiff Arnold McAllister (McAllister) has filed a fourcount Second Amended Complaint (Doc. #20) 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 Second 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 for unauthorized Medstar flights.

(Id. at ¶¶ 24-40.)

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 ¶¶ 41-61.)

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 (FAA) 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, via Brady (the County’s
Human Resources Director) and Dickerson (McAllister’s supervisor),
retaliated against him as a result of his speech.
78.)

(Id. at ¶¶ 62-

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

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Medstar and the County.

(Id.)

from administrative leave.

McAllister was never reinstated

Instead, he was terminated along with

other Medstar pilots when the County eliminated the Medstar program
in

its

entirety.

McAllister’s

(Id.)

termination

Although
was

the

the

result

County
of

its

claimed

that

decision

to

discontinue Medstar, McAllister alleges that the County’s actual
motive was retaliation for his whistleblowing.

(Id.)

Indeed,

McAllister alleges that the County had a pattern and practice of
punishing whistleblowers by terminating their employment.

(Id.)

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).
Dickerson and Brady now move to dismiss, arguing that they are
entitled to qualified immunity.
II.
Dickerson and Brady argue that the causes of action against
them in their individual capacities (Counts II and III) must be
dismissed

because

they

are

entitled

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to

qualified

immunity.

“Qualified immunity shields government officials sued in their
individual capacities who act pursuant to discretionary authority
insofar as their conduct does not violate clearly established
constitutional rights of which a reasonable person would have
known.”

Williams v. Alabama State Univ., 102 F.3d 1179, 1182

(11th Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817–
18 (1982)).

“When properly applied, it protects all but the

plainly incompetent or those who knowingly violate the law.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986)).

Because it “is both a

defense to liability and a limited entitlement not to stand trial
or face the other burdens of litigation,” Ashcroft v. Iqbal, 556
U.S. 662, 672 (2009) (quotation omitted), the availability of
qualified immunity “should be decided by the court long before
trial.”
A.

Hunter v. Bryant, 502 U.S. 224, 228 (1991).

Whether Dickerson And Brady Acted Within Their Discretionary
Authority
To

determine

whether

an

act

was

performed

within

an

individual’s discretionary authority, “a court must ask whether
the act complained of, if done for a proper purpose, would be
within, or reasonably related to, the outer perimeter of an
official's discretionary duties.”

Harbert Int'l v. James, 157

F.3d 1271, 1282 (11th Cir. 1998).

Here, Dickerson and Brady’s

allegedly

retaliatory

acts

consist

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of

placing

McAllister

on

administrative leave, refusing to process McAllister’s grievance
requests,

giving

McAllister

negative

performance

reviews,

requiring McAllister to submit to a psychiatric evaluation, filing
a false claim with the FAA regarding McAllister, and terminating
McAllister’s

employment.

(Doc.

#20,

¶¶

64-78.)

It

is

indisputable that those actions, if done for a proper purpose,
were within the scope of Dickerson’s and Brady’s official duties
as

McAllister’s

Director.

supervisor

and

the

County’s

Human

Resources

See, e.g., Stanley v. City of Dalton, 219 F.3d 1280,

1285 (11th Cir. 2000) (supervisor acted within his discretionary
authority when terminating employee); Sims v. Metro. Dade Cnty.,
972 F.2d 1230, 1236 (11th Cir. 1992) (employee discipline was
within a supervisor’s discretionary authority).

Accordingly, the

first prong of the qualified immunity analysis is met.
B.

Whether Dickerson And Brady Violated A Clearly Established
Constitutional Right
The

next

step

is

to

determine

whether,

as

alleged

by

McAllister in the Second Amended Complaint, Dickerson and Brady
violated a clearly established constitutional right.
Supreme

Court

recently

explained,

“[a]

Government

As the

official's

conduct violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently clear
that every reasonable official would have understood that what he
is doing violates that right.”

Ashcroft v. al-Kidd, 131 S. Ct.

- 5 -

2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)).

This standard “do[es] not require a case directly

on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.”

Id.

As it pertains to McAllister’s claims here, “[t]he law is
clearly established that an employer may not demote or discharge
a public employee for engaging in protected speech.”
Jones, 323 F.3d 1294, 1295 (11th Cir. 2003).

Travers v.

To prevail on such

a claim, 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.”
Cir. 2007).

Vila v. Padron, 484 F.3d 1334, 1339 (11th

Thus, if the allegations in the Second Amended

Complaint satisfy this test, McAllister has adequately alleged
that he was discharged for engaging in protected speech, and
Dickerson and Brady are not entitled to qualified immunity at this
stage of the proceedings.
1.

Speech On A Matter Of Public Concern
The threshold question is whether McAllister spoke as a

citizen on a matter of public concern.

In accordance with the

Supreme Court’s holding in Garcetti v. Ceballos, 547 U.S. 410
(2006), this question requires two separate analyses.

The court

must determine “(1) if the government employee spoke as an employee

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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 first inquiry is “whether the speech at issue is itself
ordinarily within the scope of an employee’s duties, not whether
it merely concerns those duties.”
2369, 2379 (2014).

Lane v. Franks, 134 S. Ct.

If a public employee speaks pursuant to his

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

Garcetti, 547 U.S. at 421.

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

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, McAllister alleges that he was employed by the County
as a Medstar pilot and EMT.

He further alleges that his job duties

did not involve speaking to the media regarding Medstar safety and
billing issues.

Accepting these allegations as true, the Court

concludes that McAllister has adequately alleged that he was

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speaking as a private citizen when he disclosed the County’s
alleged misconduct to the media.
The second inquiry is whether McAllister’s speech addressed
a matter of public concern.

“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.”
134 S. Ct. at 2380 (quotation omitted).

Lane,

Here, McAllister alleges

that he spoke to the media concerning the County’s misappropriation
of public funds and mismanagement of a public program.
clearly

addresses

a

matter

of

public

concern.

Such speech
Id.

at

2380

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

involves

a

concern.”); Garcetti, 547
inefficiency

and

significance.”).

matter
U.S.

misconduct

of

at

425

is

a

significant
(“Exposing

matter

of

public

governmental
considerable

Accordingly, the Court concludes that McAllister

has adequately alleged that his speech addressed a matter of public
concern and, therefore, this prong of the analysis is satisfied.
2.

The Interest
Employer

Of

The

Citizen

And

The

Interest

Of

The

“[I]f an employee speaks as a citizen on a matter of public
concern, the next question is whether the government had an
adequate justification for treating the employee differently from

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any other member of the public based on the government's needs as
an employer.”

Lane, 134 S. Ct. at 2380 (quoting Garcetti, 547

U.S. at 418).

Here, under the facts alleged by McAllister, no

such justification existed.

According to McAllister, he raised

the Medstar billing and safety violations internally with County
officials and was rebuffed.
information.

Only then did he go public with this

There is no justifiable government interest in

disciplining and discharging an employee for disclosing government
malfeasance and mismanagement, especially where, as McAllister
alleges here, the County was given the opportunity to address the
violations

before

McAllister

spoke

publicly.

See

id.

(no

justifiable government interest in disciplining an employee who
testified truthfully regarding corruption in a public program and
misuse of state funds).

Accordingly, McAllister has satisfied

this prong of the analysis.
3.

The Role Of The Speech In The Adverse Employment Action
Finally, McAllister must adequately allege that his “speech

played a substantial or motivating role in the adverse employment
action.”

Vila, 484 F.3d at 1339.

He has done so.

In addition

to circumstantial allegations such as the fact that McAllister was
placed on administrative leave immediately following his speech,
McAllister alleges that Dickerson subjected him to “verbal attacks
that

included

specific

reference

disclosures” regarding Medstar.

to

[his]

.

(Doc. #20, ¶ 70.)

- 9 -

.

.

truthful

Additionally,

McAllister alleges that the County was hiring EMTs at the same
time he was terminated, yet never offered to allow McAllister, who
was an EMT as well as a pilot, to transfer positions.
65.)

(Id. at ¶

Taken together, these factual allegations provide sufficient

support

for

McAllister’s

assertion

that

his

speech

was

a

substantial or motivating factor behind Dickerson’s and Brady’s
decisions to discipline him and terminate his employment.
In

sum,

discharged

McAllister

for

engaging

has
in

adequately
protected

alleged

speech,

that

and,

he

was

therefore,

Dickerson and Brady are not entitled to qualified immunity at this
stage of the proceedings.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendants’ Kim Dickerson and Christine Brady’s Motion to
Dismiss Counts II and III of Plaintiff’s Second Amended Complaint
(Doc. #21) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
May, 2015.

Copies:
Counsel of Record

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5th

day of