Ortino v. The School Board Of Collier County

Filing 16

OPINION AND ORDER granting in part and denying in part 12 Defendant's Motion to Dismiss. Count II of the Complaint is dismissed without prejudice. The motion is otherwise denied. See Opinion and Order for details. Signed by Judge John E. Steele on 4/9/2015. (MAW)

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

ORTINO,

an

Plaintiff,
v.

Case No: 2:14-cv-693-FtM-29CM

THE SCHOOL BOARD OF COLLIER
COUNTY,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of Defendant’s
Motion to Dismiss (Doc. #12) filed on January 7, 2015.
filed a Response (Doc. #13) on January 20, 2015.

Plaintiff

For the reasons

set forth below, the motion is granted in part and denied in part.
I.
Plaintiff Virginia Ortino (Ortino) has filed a three-count
Complaint (Doc. #1) against Defendant the School Board of Collier
County, Florida (the School Board or District) alleging violations
of the False Claims Act (FCA), the Florida False Claims Act (FFCA),
and the Florida Whistleblower’s Act (FWA).

The underlying facts,

as set forth in the Complaint, are as follows:
Ortino was hired by the District as a teacher in 2000.
Sometime thereafter, she took a position as a Career Education
Manager.

(Id.

at

¶

9.)

In

2007,

Ortino

became

aware

of

misappropriation of federal and state funds by the District.
at ¶ 10.)

(Id.

When Ortino filed an internal complaint concerning the

alleged misconduct with her supervisor, she was subjected to a
hostile work environment and was told that pursuing her complaint
would result in her being “blackballed” from working in the
District.

(Id. at ¶¶ 10-15.)

Her supervisor suggested that she

instead resign as a Career Education Manager and apply for other
teaching positions within the District.

(Id. at ¶ 15.)

Ortino resigned from her position and, from 2008 to 2014,
applied for more than 100 teaching positions within the District.
Ortino was not hired for any of these positions.

(Id. at ¶ 20.)

In one instance, a principal within the District had decided to
hire Ortino, only to have that decision reversed by one of Ortino’s
former supervisors.

(Id. at ¶¶ 32-37.)

While applying for a

teaching position in 2014, Ortino became aware that the District’s
computer

system

listed

employment as a teacher.

Ortino

as

ineligible

(Id. at ¶¶ 41-58.)

for

full-time

According to Ortino,

the District deemed her ineligible in retaliation for her reporting
the misappropriation of federal and state funds.

(Id. at ¶ 58.)

Based on these allegations, Ortino brings causes of action
against the District for violations of the FCA (Count I), the FFCA
(Count II), and the FWA (Count III).

The District now moves to

dismiss all three counts, arguing (1) that Ortino cannot maintain
her FCA and FFCA claims because she was not an employee at the

2

time of the alleged retaliation; (2) that each count is barred by
the statute of limitations; (3) that Ortino’s FWA cause of action
fails to state a claim upon which relief can be granted; and (4)
that Ortino failed to satisfy certain FWA pre-suit obligations.
Ortino concedes that her FFCA cause of action (Count II) is subject
to dismissal, but argues that her FCA and FWA causes of action are
both timely and 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,

3

551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzaín, 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.

Count I – False Claims Act
“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., 776 F.3d 805, 809 (11th Cir. 2015).

To

encourage private citizens with knowledge of FCA violations to
come forward, the FCA contains an anti-retaliation 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

4

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 was discriminated against in
retaliation for his conduct.

Mack v. Augusta-Richmond Cnty., 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
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,

5

then the complaint states a claim for retaliatory discharge under §
3730(h).”

Id.

Here,

Ortino

alleges

that

her

report

to

the

District

complained of misappropriation of federal and state funds and
explained that she was being asked to sign off on fraudulent grant
applications.

Taken as true, the Court concludes that these

allegations support a reasonable conclusion that the District
could have feared being reported to the government for fraud.
Ortino further alleges that, as a result of her report, she was
blacklisted

from

working

as

a

teaching

with

the

district.

Accordingly, Ortino has adequately pled an FCA retaliation cause
of action.

Nevertheless, the District argues that Ortino’ claim

is barred because (1) the FCA’s whistleblower protections do not
extend to former employees; and (2) the statute of limitations has
expired.
(1)

The Court will address each in turn.

FCA Protection for Former Employees

The District argues that, by its plain terms, the FCA’s antiretaliation provision applies only to current employees.

Because

Ortino alleges that the District’s discrimination did not occur
until after she resigned, the District argues that she is precluded
from invoking the FCA’s protections.
The

District

is

correct

that

provision refers only to employees.

the

FCA’s

anti-retaliation

The statute does not define

the term “employee,” nor does its text provide any guidance

6

regarding the proper interpretation of the term.
FCA’s

legislative

‘employee’

and

“[t]emporary,

history

explains

‘employer’

should

blacklisted

or

that

be

“the

However, the
definitions

all-inclusive”

discharged

workers

considered ‘employees' for purposes of this act.”

and

of

that

should

be

S. Rep. 99-345,

at 34 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5299 (1986).
Although neither the parties nor the Court was able to locate
applicable

Eleventh

Circuit

precedent,

the

Sixth

Circuit

has

reasoned that this legislative history suggests that Congress
intended to extend the FCA’s whistleblower protections to former
employees.

Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056,

1063 (6th Cir. 2014).
The Sixth Circuit’s conclusion in Vander Boegh is bolstered
by

the

Supreme

Court’s

similar

interpretation

of

the

anti-

retaliation provision in Title VII of the Civil Rights Act.

In

Robinson v. Shell Oil Co., the Supreme Court addressed whether
Title VII’s anti-retaliation provision protected both former and
current employees.

519 U.S. 337, 341 (1997).

Title VII’s anti-

retaliation provision is nearly identical to the FCA’s and, like
the FCA, Title VII uses the term “employees” without providing a
definition. 42 U.S.C. § 2000e-3(a). While the Supreme Court noted
the plain text of the statute “would seem to refer to those having
an

existing

employment

relationship

with

the

employer

in

question,” such an interpretation “does not withstand scrutiny” in

7

light of the intent of the anti-retaliation provision, Congress’s
choice not to use the phrase “current employees,” and that fact
that an employer could discriminate against an individual long
after that individual ceased to be employed.
at 341-46.
purposes

of

Robinson, 519 U.S.

Therefore, the Supreme Court concluded that, for the
Title

VII’s

anti-retaliation

provision,

the

term

“employees” encompassed both current and former employees.
Here, the Court is persuaded by the analysis in Vander Boegh
and Robinson, and likewise holds that the FCA’s anti-retaliation
provision extends to former employees such as Ortino.

Therefore,

the District’s motion to dismiss on this basis is denied.
(2)

Statute of Limitations

The District contends that Ortino’s FCA claim falls outside
the three year statute of limitations.

Ortino concedes that the

FCA now carries a three year limitations period, but argues that
a four year statute of limitations applied to causes of action
accruing

prior

to

2010.1

The

Court

need

not

determine

the

applicable statute of limitations at this time, because Ortino
alleges that she was retaliated against as recently as August 9,
2014, when her most recent application was rejected.

1

Accordingly,

Prior to its 2010 amendments, the FCA contained no explicit
statute of limitations. 31 U.S.C.A. § 3730 (2010). During that
time period, “the most closely analogous state limitations period”
applied to FCA retaliation claims. Foster v. Savannah Commun.,
140 F. App'x 905, 908 (11th Cir. 2005).

8

even if Ortino’s FCA claim is subject to a three year limitations
period,

Ortino

retaliation.

has

alleged

at

least

one

timely

instance

of

Thus, the District’s motion to dismiss on this basis

is denied.
B.

Count III – 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,
112.3187.

malfeasance,

or

misfeasance.

Fla.

Stat.

§

Ortino alleges that the District violated the FWA by

refusing to rehire her in retaliation for filing a complaint
concerning the District’s misappropriation of state and federal
funds.

An FWA employment retaliation 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

an

FWA

employment

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

Id.

As detailed above, Ortino alleges that she filed a written
internal complaint regarding the felonious misappropriation of
federal and state funds and that, as a result, she was blacklisted
from future employment as a teacher within the District.

9

Taken as

true, these allegation are sufficient to state a claim for a
violation of the FWA.
Nevertheless, the District argues that Count III must be
dismissed because Ortino failed to exhaust administrative remedies
prior to filing suit.2

Prior to filing an FWA suit, a local public

employee such as Ortino must first “file a complaint with the
appropriate local governmental authority, if that authority has
established by ordinance an administrative procedure for handling
such

complaints

or

has

contracted

with

the

Division

of

Administrative Hearings . . . to conduct hearings under this
section.”

Fla. Stat. § 112.3187(8)(b).

If the local governmental

authority does not resolve the complaint to the public employee’s
liking, the employee may then file suit.

Id.

However “[i]f the

local governmental authority has not established an administrative
procedure by ordinance or contract, a local public employee may,
within 180 days after the action prohibited by this section, bring
a

civil

action

in

(emphasis added).

a

court

of

competent

jurisdiction.”

Id.

Thus, the FWA requires Ortino to exhaust

administrative remedies only if such remedies were established by
the District.

Here, the District has not provided any evidence

that applicable administrative remedies existed.

2

Further, Ortino

The District also argues that Ortino’s FWA claim is untimely.
For the reasons set forth in the Court’s analysis of Count I, the
District’s motion to dismiss on that basis is denied.

10

has alleged that “[a]ll conditions precedent to bringing this
action of occurred, been waived, excused or satisfied.”
¶ 8.)

(Doc. #1,

Satisfaction of conditions precedent, such as exhaustion of

administrative remedies, need only be alleged generally.
Civ. P. 9(c).

Fed. R.

Therefore, the District’s motion to dismiss on this

basis is denied.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss (Doc. #12) is GRANTED IN PART
and DENIED IN PART.
prejudice.

Count II of the Complaint is dismissed without

The motion is otherwise denied.

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

Copies: Counsel of record

11

9th

day of