Levitt v. Iovine et al
Filing
55
ORDER granting in part and denying in part 45 Defendants' Motion to Dismiss Third Amended Complaint. Dr. Iovine's Motion to Dismiss certain statements from Count IV is granted. Count IV against the District is dismissed with prejudice in its entirety. The Motion to Dismiss is denied in all other respects. Signed by Judge Sheri Polster Chappell on 3/7/2019. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
OLIVER E LEVITT,
Plaintiff,
v.
Case No: 2:18-cv-36-FtM-99MRM
MARTI IOVINE, ANGELA J PRUITT,
GREGORY K. ADKINS and THE
SCHOOL DISTRICT OF LEE
COUNTY,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Defendants’ Motion to Dismiss Third
Amended Complaint (Doc. 45) filed on December 19, 2018. Plaintiff filed a Response in
Opposition (Doc. 48) on January 9, 2019. For the reasons set forth below, the Motion is
granted in part and denied in part.
BACKGROUND
This case centers on the termination of Plaintiff Oliver E. Levitt who brings a 42
U.S.C. § 1983 action coupled with two Florida state law claims for breach of contract and
defamation. (Doc. 42). Levitt, a former teacher with the School District of Lee County
(the “District”) at Success Academy, claims Defendants violated his First and Fourteenth
1
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some other site does not affect the opinion of the Court.
Amendment rights under the U.S. Constitution when they fired him at the end of the 201617 school year in retaliation for his protected speech. Prior to his termination, Plaintiff
had a yearly, renewable contract, and claims that he had a long track record of success
with the District. At all relevant times, Dr. Marti Iovine was Success Academy’s principal,
Dr. Angela J. Pruitt was the School District’s chief human resources officer, and Dr.
Gregory T. Adkins was its superintendent. (Id., ¶¶ 2-4).
Plaintiff is currently proceeding on a Third Amended Complaint.2
(Doc. 42).
Defendants move to dismiss the Third Amended Complaint because the individual
Defendants are entitled to qualified immunity and/or absolute immunity, and because
Plaintiff has failed to state a claim. The Court recounts the factual background that
occurred throughout the 2016-17 school year leading up to Plaintiff’s termination3 as pled
in Plaintiff’s Third Amended Complaint, which the Court must take as true to decide
whether the Third Amended Complaint states a plausible claim. See Chandler v. Sec’y
Fla. Dep’t of Transp., 695 F.3d 1194, 1198-99 (11th Cir. 2012).
A. Lead Building Representative Election
Teachers at schools in the District were and are represented by the Teacher’s
Association of Lee County (TALC). In the 2016-17 school year, the Collective Bargaining
Agreement (CBA) entered into between TALC and the District (Doc. 42-1) provided that
TALC would be represented at each school by a Lead Building Representative (LBR).
(Doc. 42, ¶ 10). The CBA states that the LBR is an elected, continuing position, which
2
The Court previously dismissed the initial Complaint with leave to amend and dismissed the
Second Amended Complaint as a shotgun pleading. (Docs. 33, 39).
The District disputes that Plaintiff was “terminated”, instead asserting that his teaching contract
was simply not renewed for the 2017-18 school year.
3
2
exempts the holder from an involuntary transfer if there is a surplus of teachers at the
institution. (Doc. 42-1, ¶ 5.03(4)).
Even though the LBR was to be elected by members of TALC in the bargaining
unit, in August 2016, Dr. Iovine informed the faculty that she had selected a particular
instructor and personal friend, Mr. Ball, to be the LBR at Success Academy. (Doc. 42, ¶
11). Because this action was contrary to the CBA, a group of faculty members, including
Levitt, informed TALC’s professional staff that Dr. Iovine had appointed Ball in violation
of the CBA. (Id.) TALC intervened and told Dr. Iovine that the CBA required the faculty
who were members of TALC to elect the LBR. (Id.) Dr. Iovine then allowed the faculty to
elect the LBR, and Levitt won. (Id.) In his role as TALC representative, Levitt reported
to and was supervised by the President of the union. (Id., ¶ 21).
For the remainder of the school year, Dr. Iovine held a grudge against Levitt
because he interfered with her appointment of Ball as LBR. (Doc. 42, ¶ 21.) Dr. Iovine
imposed disciplinary actions on him, and meted our poor performance ratings, solely
because he interfered with the appointment of Ball and because he became a TALC
advocate for addressing concerns about violence at Success Academy. 4
(Id.)
Throughout the school year, Dr. Iovine retaliated against Levitt because of his affiliation
with TALC and advocacy for TALC. (Id., ¶ 12).
B. Defendants’ Retaliatory Actions Against Levitt
1. Levitt’s November 2, 2016 Email
On November 2, 2016, Levitt sent Dr. Iovine an email (Doc. 42-2), writing that
many TALC members whom he trusted and respected had advised him that Ball had
Success Academy is “an alternative public high school for disruptive or violent students.” (Doc.
42, ¶ 1).
4
3
been exhibiting strange and dangerous behavior, including rushing a student in the
hallway while yelling “I am not your bitch bro, I will show you a bitch.” (Doc. 42, ¶ 12).
According to these TALC members, Ball had to be restrained by a school safety officer.
(Id.) Levitt wrote that, for the safety of the school, he hoped Dr. Iovine would review the
video of the incident, talk to the teachers and staff who were present, and act in the best
interest of the school. (Id.) In writing the email, Levitt expressed the view of many TALC
members that, because of Ball’s abnormal behavior, he potentially presented a significant
safety threat. (Id.) Under the CBA, “no employee was required to work in conditions that
are not safe or secure . . .” (Doc. 42-1, CBA ¶ 6.01(3)). Therefore, as LBR, Levitt was
obligated to bring this incident to Dr. Iovine’s attention. (Doc. 42, ¶¶ 12, 14).
2. November 10, 2016 Meeting
Instead of working with Levitt to resolve the issue, at a meeting to discuss the email
held on November 10, 2016, Dr. Iovine, without justification, advised Levitt that he had
unfairly maligned Ball and violated school policy in doing so. (Doc. 42, ¶ 13). Dr. Iovine
had not investigated the incident but used Levitt’s email as an excuse to retaliate against
Levitt for advocating for TALC. (Id.) Dr. Iovine also falsely told Levitt that she had spoken
with students in his classes and they indicated he was not a good teacher. (Id.) Dr. Iovine
fabricated these accounts because she held a grudge against Levitt for running for LBR
and being an advocate for TALC. (Id.)
3. Letter of Concern #1
On November 14, 2016, Dr. Iovine issued a disciplinary letter (Letter of Concern
#1) against Levitt (Doc. 42-3). Primarily, Dr. Iovine claimed that Levitt did not work
cooperatively with other teachers and stated: “After review of your safety and negative
4
comments complaint [sic] of your colleague – Mr. Ball’s, none were founded.” (Doc. 42,
¶ 14). Dr. Iovine cited paragraph 5.01 of the “TALC Contract” that Levitt violated. (Id.)
Contrary to the CBA, Dr. Iovine did not tell Levitt about Letter of Concern #1 and did not
provide Levitt a copy. Instead, she secretly placed the letter in his personnel file, which
prevented him from appealing it to Dr. Adkins. (Id., ¶ 15).
4. Letter of Concern #2
On November 16, 2016,5 a second disciplinary letter was issued (Letter of Concern
#2) (Doc. 42-4). This letter primarily expressed concerns about Levitt’s “restorative
techniques” (i.e., sending students to the principal’s office too frequently instead of
allowing them to stay in class). Dr. Iovine had never discussed this issue with Plaintiff
before. (Doc. 42, ¶ 17). The letter failed to document any specific incidents in which
Levitt used “restorative practices” inappropriately. (Id., ¶ 18). The letter also claimed that
Levitt was deficit in classroom technology, lacked ability to make instructional
presentations, and failed to participate in outreach activities to community and business
partners. (Id.) These issues, as well, had never been discussed with Levitt. (Id.)
5. School Safety Forum Request
As the 2016-17 school year progressed, Levitt received an increasing number of
reports from fellow members of TALC about profane language and increasing incidents
of physical violence at Success Academy. Members of the school’s faculty, who were
also members of TALC, requested that Levitt speak with Dr. Iovine and attempt to
persuade her to host a forum at which faculty and staff could express their concerns about
school safety. (Doc. 42, ¶ 20).
5
The Third Amended Complaint states that this letter is dated November 10, 2016 (Doc. 42, ¶
17). However, this appears to be a typo as the letter (Doc. 42-4) is dated November 16, 2016.
5
Responding to the faculty and staff’s concerns, in January and February of 2017,
Levitt wrote a series of emails to Dr. Iovine requesting that she host a forum at which
faculty and staff could express their views about how to improve school safety (Doc. 425). The emails Levitt sent explicitly advised Dr. Iovine that he was requesting a forum as
a representative of TALC because teachers and staff in the building, many of whom were
TALC members, were becoming increasingly alarmed about working conditions at the
facility. (Doc. 42, ¶ 22).
Dr. Iovine never responded to Levitt’s emails and repeatedly refused to host a
forum. (Doc. 42, ¶ 23). After continuing to receive complaints from members of the
faculty and staff, and after conferring with TALC’s professional staff, on February 16,
2017, at TALC’s professional staff’s direction, Levitt sent another email to Dr. Iovine, and
copied various District administrators, including Dr. Pruitt (Doc. 42-5). TALC professional
staff felt the situation was urgent and Levitt should send the email. (Doc. 42, ¶ 26). Levitt
sent a hard copy of the email by internal mail to Dr. Adkins. (Doc. 42, ¶¶ 23, 48).
The February 16, 2017 email expressed concerns about safety issues at Success
Academy and requested Dr. Iovine host a forum at which members of the faculty and staff
could provide recommendations concerning safety at the school. (Doc. 42, ¶ 24). Levitt
noted in the email that he had sent multiple prior requests on behalf of Success Academy
faculty and staff and provided the email chain containing the prior requests. (Id.)
Shortly after the email was sent, Dr. Iovine scheduled a meeting to discuss the
email, which was held on March 23, 2017. (Doc. 42, ¶ 25). At the meeting, attended by
Dr. Iovine, Harris, and a TALC representative, Dr. Iovine contended that the email violated
school policy because it was a public record and that she should have approved it before
6
Levitt sent it to District administrators. (Id.) Dr. Iovine also contended that she would not
have approved the email because the vast majority of the faculty did not believe there
were significant issues at the school. (Id.)
6. Letter of Reprimand
On March 24, 2017, a day after the meeting, Dr. Iovine imposed a severe
disciplinary action on Levitt, namely a Letter of Reprimand, which she provided to Drs.
Adkins6 and Pruitt for inclusion in Levitt’s personnel file (Doc. 42-6).7 The letter falsely
accused Levitt of violating the Code of Ethics and the Principals of Professional Conduct
of the Education Profession in Florida because he sent the February 16, 2017 email to
District administrators without Dr. Iovine’s approval. (Doc. 42, ¶ 26).
Contrary to the
Letter of Reprimand, the concerns he reflected were shared by the vast majority of faculty
and staff. (Id., ¶ 27). Dr. Iovine imposed the Letter of Reprimand on Levitt because he
exposed safety issues to District administrators including Drs. Adkins and Pruitt. (Id., ¶
28). In effect, Dr. Iovine imposed a penalty on Plaintiff because, on behalf of TALC, he
spoke publicly about safety conditions at the school. (Id.)
After receiving the Letter of Reprimand, Levitt filed a formal grievance (appeal) of
the letter with Dr. Adkin’s delegated representative, Dr. Pruitt.8 (Doc. 42, ¶ 41). In the
course of the proceeding, Levitt learned for the first time that Dr. Iovine had placed Letters
6
Pursuant to paragraph 4.04(2)(b) of the CBA, Dr. Adkins is ultimately responsible for the
resolution of grievances. (Doc. 42, ¶ 46). Although Dr. Adkins delegated the responsibility to
address Levitt’s grievance to Dr. Pruitt, he was informed of her actions on Levitt’s grievances.
(Id.) When Levitt sought reconsideration of Dr. Pruitt’s refusal to withdraw the Letter of
Reprimand, he sent Dr. Adkins a copy of the letter. (Doc. 42-12). Thus, Dr. Adkins was fully
aware of the disciplinary actions against Levitt.
7
Levitt did not sign the Letter of Reprimand.
8
Dr. Adkins, however, received copies of Dr. Pruitt’s reports on the grievances. (Doc. 42, ¶ 47).
7
of Concern # 1 and 2 in his school file. (Id.) Levitt attempted to join a grievance on these
disciplinary letters with his grievance for the Letter of Reprimand, but Dr. Pruitt refused it,
claiming it was untimely under the CBA. (Id.; Doc. 42-10). However, because Dr. Pruitt
could see that Levitt had not signed Letters of Concern #1 and 2, she knew or should
have known that he had no knowledge of them prior to the grievance. (Doc. 42, ¶ 41).
Therefore, Plaintiff alleges Dr. Pruitt violated his due process rights when she declined to
allow the grievance on Letters of Concern # 1 and 2.
When Dr. Pruitt conducted a hearing on the Letter of Reprimand, she was aware
that Dr. Iovine imposed the disciplinary action in retaliation for the February 16, 2017
email and knew Levitt was acting as LBR when he sent the email. Yet, she did not
recommend that the disciplinary action be rescinded, only that it be downgraded and
called a “warning” instead of a “reprimand.” (Doc. 42, ¶ 42). By filing to overturn the
disciplinary action with knowledge that it infringed Levitt speech, Dr. Pruitt, as Dr. Iovine’s
supervisor, became complicit in Dr. Iovine’s violations of Levitt’s First Amendment rights.
(Id.)
7. Levitt’s Mid-Year Evaluation
Shortly after Dr. Iovine’s first disciplinary actions against Levitt, Letters of Concern
#1 and 2, and without discussing the issue with Assistant Principal Harris, Dr. Iovine
compiled a mid-year performance evaluation of Levitt. (Doc. 42, ¶ 29). Because Levitt
was not a first-year teacher, this was outside standard practice. (Id.) See CBA, ¶ 8.02(1).
The evaluation (Doc. 42-7) concluded that Levitt’s first semester performance was
“unsatisfactory” but provided no documentation. (Doc. 42, ¶¶ 29-30). Prior to this, Levitt
had never received a performance evaluation of less than “effective” before. (Doc. 42, ¶
8
29). Dr. Iovine did not provide a copy of the mid-year evaluation to Levitt, never told him
about it, and never gave him an opportunity to submit a rebuttal. (Id.) Dr. Iovine complied
the mid-year evaluation to penalize Levitt for becoming LBR and expressing concerns
about Ball’s safety threats. (Id., ¶ 30). The manner in which Dr. Iovine prepared and
presented the evaluation violated the CBA because she prepared it secretly, did not
provide a copy to Levitt, and did not allow him to submit a rebuttal. (Id.)
8. The Targeted Observation
The CBA required Dr. Iovine to engage in at least one formal observation of each
classroom teacher per year. It states that if deficiencies are noted, they must be recorded
and that the principal “shall thereafter confer with the teacher and make recommendations
as to the specific areas of unsatisfactory performance and provide assistance in helping
to correct such deficiencies.” (Doc. 42-1, ¶ 8.02(4)).
On March 1, 2017, about two weeks after Levitt sent the February 16, 2017 email
to District administrators, Dr. Iovine, accompanied by Assistant Principal Harris,
conducted a formal observation of Levitt’s class. (Doc. 42, ¶ 32). The formal observation
was to evaluate Levitt’s ability in Domain 3(B), Using Questioning and Discussion
Techniques. (Id.) Dr. Iovine conducted her observation during the first 10 minutes of
class even though she knew that during this time Levitt would have been engaged in
administrative functions and was not involved in questioning and discussion with
students. (Id.) Nevertheless, Dr. Iovine rated Levitt “unsatisfactory.” (Id.) During a
meeting with TALC on March 23, 2017, Dr. Iovine agreed the rating was invalid and
agreed to redo the formal observation. (Id.)
9
On April 1, 2017, Dr. Iovine and Harris conduct the repeat formal observation.
(Doc. 42, ¶ 33). This time, Levitt was engaged in Domain 3(B) discussion when they
observed the class, which was about diversifying a financial portfolio and Levitt was
instructing the students to use diversification to decrease financial risk, a topic involving
higher order thinking (HOT). (Id.) After observing the class, Dr. Iovine indicated to Harris
that Levitt’s facility with HOT was excellent. (Id.) However, in her written evaluation (Doc.
42-8), Dr. Iovine reversed course and rated the performance “needs improvement.” In
violation of the CBA, Dr. Iovine failed to “make recommendations as to specific areas of
unsatisfactory performance and provide assistance in helping to correct such
deficiencies.” (Doc. 42-1, ¶ 8.02(4)).
On May 26, 2017, at a meeting with TALC at which Dr. Pruitt was present on the
final day of school, Dr. Iovine could not explain what she found objectionable about
Levitt’s performance during the formal observation. (Doc. 42, ¶¶ 33, 43). Dr. Iovine
provided an unfavorable evaluation as a penalty for Levitt’s February 16, 2017 email to
District administrators. (Id.)
9. Levitt’s End-of-Year Performance Evaluation
Near the end of the school year, Dr. Iovine posted Levitt’s final performance
evaluation to Success Academy’s internal system without first discussing it with Levitt as
required by the CBA. (Doc. 42-1, ¶ 8.02(5)). She also did not give him the opportunity
to submit a rebuttal, as required by the CBA and state law. (Doc. 42, ¶¶ 35, 37).
Levitt appealed the ratings and thereafter Dr. Iovine provided what she claimed
was documentation (Doc. 42-9) - a “total fabrication” according to Levitt. (Doc. 42, ¶ 36).
Although Dr. Iovine claimed several deficient areas of performance, she could not explain
10
any respect in which Levitt’s performance was less than “effective.” (Id.) Instead, Dr.
Iovine rated Levitt less than effective as a penalty for serving as LBR and expressing the
faculty and staff’s concerns about school safety. (Id.)
Levitt met with Drs. Iovine and Pruitt on May 26, 2017 to discuss the Final
Performance Evaluation. (Doc. 42, ¶ 43). At the meeting, Dr. Pruitt admitted that the
ratings did not comply with the CBA. (Id.) Dr. Pruitt agreed to work with Dr. Iovine over
the summer to review the ratings. (Id.)
On July 27, 2017, Dr. Pruitt provided Levitt with a copy of the revised ratings she
and Dr. Iovine prepared. (Doc. 42-7). However, the revised ratings did not provide any
documentation for the original ratings or the revisions. (Doc. 42, ¶ 44). Thus, Levitt asked
for a hearing on the ratings, which Dr. Pruitt rejected. (Id.; Doc. 42-11). In addition, in
violation of the CBA, Dr. Pruitt falsely claimed that Levitt had failed to address the ratings
in a formal meeting with Dr. Iovine before seeking a hearing. (Id.) She also falsely
claimed Levitt lacked standing because his contract had expired on June 30, 2017, even
though the reason he filed for the hearing was that he was seeking to have his contract
renewed.9 (Id.) Plaintiff believes Dr. Pruitt violated Levitt’s right to due process of law by
denying the hearing. (Id.)
C. Dr. Iovine’s Comments About Levitt to Other Administrators
Following Levitt’s February 26, 2017 email to District administrators, Dr. Iovine
telephoned Assistant Principal Harris late that night on his cell phone and told him to
9
The exact date and manner in which Plaintiff was informed that his contract would not be
renewed for the 2017-18 school year is not clear from the Third Amended Complaint. Drs. Pruitt
and Adkins supported Dr. Iovine’s contract non-renewal recommendation despite knowing of Dr.
Iovine’s personal vendetta against Levitt, and the District ratified the recommendations by
delegating final authority to Drs. Pruitt and Adkins. (Doc. 42, ¶¶ 52-53).
11
disband the bowling team he played on with Levitt and not socialize again. (Doc. 42, ¶
38). Further, Dr. Iovine told Colin Kleinmann, Lee County’s Counselor of the Year, that
Levitt’s classes were smaller than those of the average teacher and that she intended to
“get rid of” Levitt at the end of the school year. (Id., ¶ 39). These comments were untrue
and were made in a school hallway and the comments were outside either parties’
professional responsibilities. (Id.) Dr. Iovine made these defamatory statements because
she held a grudge against Levitt for serving as LBR and expressing TALC’s concerns
about school safety in the February 16, 2017 email.10
Levitt now seeks relief through this action. Levitt’s four-count Third Amended
Complaint includes claims under § 1983 for violation of his First and Fourteenth
Amendment rights against all Defendants, a breach of contract claim against the School
District, and a defamation claim against Iovine and the School District. In particular, Levitt
alleges that Defendants violated his First Amendment right to free speech by retaliating
against him for statements made in his capacity as a citizen (Count I). He claims
Defendants deprived him of his Fourteenth Amendment rights to liberty and property
without due process of law (Count II). Levitt also asserts that the District breached the
CBA (Count III). And finally, Levitt alleges that the District and Dr. Iovine defamed him by
making false statements about him (Count IV).
10
Plaintiff alleges that Dr. Adkins was aware of the safety issues at Success Academy and the
primary reason Dr. Adkins supported Drs. Pruitt and Iovine’s disciplinary actions against Levitt
was that he wanted to suppress Levitt’s speech concerning school safety. (Doc. 42, ¶¶ 48-51).
Dr. Adkins supported their recommendation that Levitt’s contract not be renewed for the same
reason. (Id., ¶ 51).
12
LEGAL STANDARD
To survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a
complaint must contain sufficient factual allegations that raise a right to relief above the
speculative level. Bell A. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In reviewing a
motion to dismiss, courts must accept all factual allegations as true and then determine
whether the factual allegations plausibly give rise to a claim entitled to relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). While detailed factual allegations are not required, a
complaint
needs
more
than
“unadorned,
the-defendant-unlawfully-harmed-me
accusation[s].” Id. And courts are under no obligation to accept legal conclusions as
true. Id.
A complaint is also subject to dismissal under Rule 12(b)(6) if its allegations on
their face show that an affirmative defense bars recovery on the claim. See Cottone v.
Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). While a court is generally limited to
reviewing the face of the complaint to determine the sufficiency of a plaintiff’s claims, a
court may consider documents attached to a motion to dismiss if the attached documents
are (1) central to plaintiff’s claims and (2) the authenticity of the documents are not
challenged. Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).
DISCUSSION
A. Qualified Immunity Analysis (Counts I, II)
Defendants assert qualified immunity as to Counts I (First Amendment) and II
(Fourteenth Amendment). To receive qualified immunity, a government official “must first
prove that he was acting within the scope of his discretionary authority when the allegedly
13
wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). Plaintiff
does not dispute this first step.
“Once the defendant establishes that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that qualified immunity is not
appropriate.” Id. at 1194. To do so, the plaintiff must make a two-part showing. First,
the plaintiff must allege that the facts of the case, if proven to be true, would make out a
plausible constitutional violation.
Pearson v. Callahan, 555 U.S. 223, 232 (2009);
Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007). Second, the plaintiff must
allege that the constitutional right was “clearly established” at the time of the alleged
misconduct. Pearson, 555 U.S. at 232. Because qualified immunity provides a complete
defense from suit, “courts should ascertain the validity of a qualified immunity defense as
early in the lawsuit as possible.” Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013).
Regarding Plaintiff's two-part showing, Defendants dispute whether the Third Amended
Complaint plausibly alleges both prongs with respect to both Counts I and II.
1. First Amendment Free Speech Claim (Count I)
a. Constitutional Violation
The constitutional right at issue in Count I is the First Amendment’s right of free
speech. To state a First Amendment retaliation claim, a plaintiff must plead (1) his speech
was protected; (2) he suffered an adverse consequence; and (3) a causal relationship
exists between the adverse conduct and protected speech. Castle v. Appalachian Tech.
College, 631 F.3d 1194, 1197 (11th Cir. 2011). Defendants mainly take issue with the
first prong.
14
Time and time again, the Supreme Court has reiterated that “[s]peech by citizens
on public concerns lies at the heart of the First Amendment, which ‘was fashioned to
assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people.’” Lane v. Franks, 573 U.S. 228, 235-35 (2014) (quoting
Roth v. United States, 354 U.S. 476, 484 (1957)). And “[t]his remains true when speech
concerns information related to or learned through public employment.” Id. For it is well
established that the acceptance of public employment does not require the employee to
relinquish their constitutional rights, especially those afforded under the First Amendment.
Id.
But a public employee’s right to share information is not absolute. Instead, the
Supreme Court has “acknowledged the government’s countervailing interest in controlling
the operation of its workplaces” because “[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.” Lane,
573 U.S. at 235-35. Consequently, “[t]he problem in any case is to arrive at a balance
between the interests of the teacher, as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.” Pickering v. Bd. of Ed. of Twp. High
Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563, 568 (1968).
The First Amendment “protects a public employee’s right, in certain circumstances,
to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547
U.S. 410, 418 (2006). It is well established that “[a] government employer may not
demote or discharge a public employee in retaliation for speech protected by the First
15
Amendment.” Alves v. Bd. of Regents of the Univ. Sys. of Georgia, 804 F.3d 1149, 1159
(11th Cir. 2015). To establish a claim under the First Amendment, a plaintiff must plead
and ultimately prove that: (1) he was speaking; (a) as a citizen; (b) on a matter of public
concern; (2) his interests in speaking outweighed the interests of the government as an
employer under the Pickering framework ; and (3) the speech played a substantial or
motivating role in the adverse employment action. Lane, 573 U.S. at 235-42; Alves v. Bd.
of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1159-60 (11th Cir. 2015); Vila v.
Padron, 484 F.3d 1334, 1339 (11th Cir. 2007).
Thus, as a public employee, for his speech to be afforded constitutional protection,
Plaintiff must first plausibly allege that he spoke as a citizen on a matter of public concern.
Defendants dispute whether Levitt spoke as a citizen on a matter of public concern when
he made the reports identified in the Third Amended Complaint.
(1) Speech as Employee or Citizen
The District asserts that Levitt’s speech was made as an employee of the District,
not as a private citizen, and therefore is not protected by the First Amendment. Levitt
responds that his speech arose from his role as LBR, not teacher. The Court finds that
Plaintiff has plausibly alleged that he spoke as a citizen.
Determining whether an employee spoke as a citizen turns on whether the speech
“owes its existence to a public employee’s professional responsibilities.” Garcetti, 547
U.S. a 421-22. The phrase “must be read narrowly to encompass speech that an
employee made in accordance with or in furtherance of the ordinary responsibilities of her
employment, not merely speech that concerns the ordinary responsibilities of her
employment.” Alves, 804 F.3d at 1162. “The critical question … is whether the speech
16
at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely
concerns those duties.” Id. Factors such as “the employee’s job description, whether the
speech occurred at the workplace, and whether the speech concerned the subject matter
of the employee’s job” may all be considered. Id. at 1161. However, these factors are
not dispositive. Id.
Here, Levitt’s speech included, but was not limited to, allegations of:
•
The November 2, 2016 email to Dr. Iovine regarding Ball’s erratic behavior
and school safety concerns
•
Emails sent to Dr. Iovine regarding school safety concerns
•
School safety forum request, including the February 16, 2017 email to
District administrators
•
Statements about security issues at a March 24, 2017 grievance hearing
From the allegations, it is plausible that the complaints were not within the job duties of
teachers like Plaintiff. The Court reaches this conclusion mainly because Plaintiff made
the complaints at the request of faculty, staff, and TALC members. For example, Plaintiff
alleges that he sent Dr. Iovine an email on November 2, 2016 because many TALC
members who he trusted and respected had advised him that Ball had been exhibiting
strange and dangerous behavior. (Doc. 42, ¶ 12). Regarding the school safety forum
request, Plaintiff alleges that members of the school’s faculty, who were also members of
TALC, requested that Levitt speak with Dr. Iovine and attempt to persuade her to host a
forum at which faculty and staff could express their concerns about school safety. (Doc.
42, ¶ 20). And Plaintiff states that when he wrote the series of emails to Dr. Iovine
requesting a forum in January and February of 2017, he was responding to the faculty
and staff’s concerns. (Id., ¶ 22). The emails Levitt sent explicitly advised Dr. Iovine that
17
he was requesting a forum as a representative of TALC because teachers and staff in the
building, many of whom were TALC members, were becoming increasingly alarmed
about working conditions at the facility. (Doc. 42, ¶ 22). Then after continuing to receive
complaints from members of the faculty and staff, and after conferring with TALC’s
professional staff, on February 16, 2017, at TALC’s professional staff’s direction, Levitt
sent another email to Dr. Iovine, and copied various District administrators, including Dr.
Pruitt (Doc. 42-5).
If Plaintiff was not LBR, and merely a teacher at Success Academy, it is unlikely
that faculty, staff, and TALC members would be requesting that he send their concerns
to Dr. Iovine, and it is equally unlikely that Levitt’s speech-related activities in this case
are required in his role as teacher.11 And Defendants’ argument that Levitt’s role as a
teacher involves ensuring student safety does not carry the day. Undoubtedly every
teacher should ensure their student’s safety, but Levitt’s speech here is mainly voicing
the concerns of others in his capacity as LBR, representing the interests of TALC pursuant
to the CBA. Just because Levitt should ensure the safety of his students does not convert
his First-Amendment protected complaints as a union representative to employee
speech.
It is plausible that the types of complaints Plaintiff made were not within the job
duties of a teacher and he did not speak about these issues in the manner that he did
because his job required him to speak about it. See Garcetti, 547 U.S. at 421. Thus,
11
At this point, little is known about the LBR position. Although the CBA is attached to the Third
Amended Complaint (Doc. 42-1), it does not set forth in any detail the role of the LBR. However,
at the motion to dismiss stage, the Court accepts the allegations regarding the LBR role as true.
18
because Plaintiff has plausibly alleged that his speech arose from his role as LBR and
not as a teacher, the first prong is satisfied.
(2) Matter of Public Concern
The District argues that Levitt’s speech, even if made as a citizen and not as an
employee, did not address a matter of public concern, and therefore is not protected by
the First Amendment. “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. The inquiry turns on the content, form, and context of
the speech.” Lane, 573 U.S. at 241. See Boyce v. Andrew, 510 F.3d 1333, 1343 (11th
Cir. 2007) (internal citations omitted). If the “main thrust” of a public employee’s speech
is on a matter of public concern, the speech is protected. Alves, 804 F.3d at 1162.
Whether the speech is communicated to the public is relevant, but not dispositive. Id.
Plaintiff alleges that the serious safety risks occurring at Success Academy were
reported by local television news, resulting in email exchanges between members of the
public and District administrators, and that the safety in public schools is a public concern.
(Doc. 42, ¶¶ 49, 57). Based on the allegations as plausibly alleged in the Third Amended
Complaint which the Court accepts as true, Levitt’s speech concerning the safety of
Success Academy, the safety and well-being of students, teachers, and administrators of
a public school is a matter of public concern as identified by the Eleventh Circuit. See
Boyce, 510 F.3d at 1344; Alves, 804 F.3d at 1166 (finding that an employee whose
speech directly affects the public’s perception of the quality of education in a given
academic system is protected). And that the impetus for his speech was a concern for
19
public safety which he was tasked with protecting in his role as LBR. See King v. Bd. of
Cnty. Comms., --- F.3d ---, 2019 WL 994031, *7 (11th Cir. Mar. 1, 2019); Cook v. Gwinnett
Cnty. Sch. Dist., 414 F.3d 1313, 1319 (11th Cir. 2005) (finding that in various contexts
the court has made “clear that speech relating to the safety of the public involves a matter
of public concern”).
b. Clearly Established Right
Next, Plaintiff must allege that the constitutional right was “clearly established” at
the time of the alleged misconduct. “A Government official's conduct violates clearly
established law when, at the time of the challenged conduct, ‘[t]he 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, 563 U.S. 731, 741 (2011) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “So conceived, the object of the
‘clearly established’ immunity standard is not different from that of ‘fair warning.’” United
States v. Lanier, 520 U.S. 259, 270 (1997). Applicable here, the Eleventh Circuit has held
that the relevant inquiry is whether “binding opinions from the United States Supreme
Court, the Eleventh Circuit Court of Appeals, and the highest court in the state where the
action is filed ... gave [the defendant] fair warning that his treatment of [the plaintiff] was
unconstitutional.” Merricks v. Adkisson, 785 F.3d 553, 559 (11th Cir. 2015).
Defendants argue that there is no “bright line” factual situation in which controlling
law clearly applies because there is no clearly established precedent on whether
Plaintiff’s speech made in his capacity as LBR is speech made as a citizen or as an
employee.
20
In Carollo v. Boria, the Eleventh Circuit found that “reasonable public officials would have
known at the time of Carollo’s termination that it violated the First Amendment to terminate
a colleague for speaking about matters of public concern that are outside the scope of his
ordinary job responsibilities.” 833 F.3d 1322, 1334 (11th Cir. 2016). The court found that
Carollo at least “plausibly pled that at least some of his speech was about matters of
public concern and outside the scope of his ordinary job responsibilities.” Id. at 1334-35.
See also Cook, 414 F.3d at 1318 (“The law is clearly established that a public employer
may not retaliate against an employee for an employee’s exercise of constitutionally
protected speech.”) In line with Eleventh Circuit precedent that was in effect at the time
of the alleged constitutional violations in this case, the Court finds that Plaintiff has
plausibly alleged that his First Amendment Rights were clearly established.
Thus, because Plaintiff has plausibly alleged a constitutional violation occurred,
and that the constitutional right was clearly established, the Motion to Dismiss Count I is
denied.
2. Fourteenth Amendment Procedural Due Process Claim (Count II)
a. Constitutional Violation
Plaintiff alleges that Defendants are liable under the Fourteenth Amendment for
violating his property and liberty interests by declining to reappoint him to his contract in
retaliation for exercising his First Amendment rights.
It is axiomatic that “[t]he
requirements of procedural due process apply only to the deprivation of interests
encompassed by the Fourteenth Amendment’s protection of liberty and property.” Board
of Regents v. Roth, 408 U.S. 564, 569 (1972). The Court will consider each interest in
turn.
21
(1) Property Interest
Plaintiff asserts that he had a property interest in his teaching contract which was
deprived because, had he not been subject to Dr. Iovine’s retaliatory actions, renewal of
the contract was mandatory, citing ¶ 5.01(a) of the CBA which states: “An annual contract
teacher who has received an effective or highly effective rating on their last three (3)
consecutive annual evaluations shall be reappointed, if a teaching position exists at the
school where the teacher is employed at the time of reappointment.” Before Dr. Iovine’s
retaliatory actions, Plaintiff had never received a composite performance rating of less
than effective.
Defendants argue that a review of the CBA reveals that Plaintiff was not entitled to
appointment and would not have been entitled to reappointment even if his evaluation
had been effective. Defendants state that the contract expired at the end of the year and
Plaintiff worked through and received all the benefits of his 2016-17 contract and was not
automatically entitled to a contract for the 2017-18 school year.
The Supreme Court has recognized that a government employee may have a
constitutionally protected property interest in continued government employment. Roth,
408 U.S. at 577. In order to establish that he had a property interest in his position,
Plaintiff must show that he had a “legitimate claim of entitlement” to his continued
employment. Id.; Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1185 (11th Cir.
1985). For example, a permanent government employee whose employment may be
terminated only for cause has a property interest in his continued employment. Blanton
v. Griel Memorial Psychiatric Hosp., 758 F.2d 1540, 1542 (11th Cir. 1985); Thompson v.
Bass, 616 F.2d 1259, 1265 (5th Cir. 1980), cert. denied, 449 U.S. 983 (1980). An
22
employee’s mere subjective expectation of continued employment does not give her a
constitutionally protected property interest.
Perry v. Sinderman, 408 U.S. 593, 603
(1972); Roth, 408 U.S. at 577. However, a “person’s interest in a benefit is a ‘property
interest for due process purposes if there are ...’ rules or mutually explicit understandings
that support [her] claim of entitlement to the benefit.” Perry, 408 U.S. at 601.
Here, the Court cannot (and need not) determine whether Plaintiff was actually
deprived of a constitutionally-protected property interest as the record is not yet
developed in this regard, including whether Defendants’ actions followed the procedures
of the CBA or any other policies and procedures normally followed by the District when
they declined to renew Plaintiff’s contract. The Court is likewise unaware at this point of
any “mutual explicit understanding” existed. Given the lack of any factual record at this
point, the Court only looks to the allegations in the Third Amended Complaint, wherein
the Court finds that Plaintiff plausibly alleges that Defendants imposed disciplinary actions
on him, including termination, without following the procedures of the CBA in retaliation
for his protected speech.
(2) Liberty Interest (Stigma-Plus Test)
Plaintiff alleges that Defendants deprived him of his liberty interest to move easily
to other employment opportunities by failing to renew his contract in violation of the CBA
and imposing unfounded disciplinary actions and below par mid-year and end-of-year
evaluations, which became part of the public file. (Doc. 42, ¶¶ 70-71). Plaintiff states that
the stigma attached to these disciplinary actions impaired his professional opportunities
in Lee County and any other school district in the state. (Id., ¶ 71). Defendants argue
23
that Plaintiff has offered little more than speculation that Defendants damaged his
prospects for future career opportunities.
Conduct causing damage to an employee’s reputation in connection with a
termination of employment may give rise to an actionable procedural due process claim
for deprivation of liberty, sometimes referred to as a “stigma-plus” suit, which Plaintiff
argues he satisfies in this case. See Cotton v. Jackson, 216 F.3d 1328, 1330 (11th Cir.
2000); see also Sammons v. Cameron, Case No. 2:04-cv-161-FTM29DNF, 2005 WL
1027509, *4 (M.D. Fla. Apr. 15, 2005). To establish such a procedural due process claim,
Plaintiff must prove that: “(1) a false statement (2) of a stigmatizing nature (3) attending
a governmental employee’s discharge (4) was made public (5) by the governmental
employer (6) without a meaningful opportunity for an employee name clearing hearing.”
Cotton, 216 F.3d at 1330.
The Eleventh Circuit has summarized what is required to satisfy the stigma-plus
test. “To establish a liberty interest sufficient to implicate the fourteenth amendment
safeguards, the individual must not only be stigmatized but also stigmatized in connection
with a denial of a right or status previously recognized under state law.” Smith v.
Siegelman, 322 F.3d 1290, 1296 (11th Cir. 2003); see also Cypress Ins. Co. v. Clark, 144
F.3d 1435, 1436-37 (11th Cir. 1998) (“This rule, labeled the “stigma-plus” standard,
requires a plaintiff to show that the government official’s conduct deprived the plaintiff of
a previously recognized property or liberty interest in addition to damaging the plaintiff's
reputation.”)
The Court finds that Plaintiff has plausibly pled the requirements to satisfy the
stigma-plus test, which the Court must accept as true at the Motion to Dismiss stage.
24
Namely, that Dr. Iovine included false statements about Levitt’s competence and
character in the Letters of Concern and Reprimand, claiming that he fails to interact
collegially with other members of the faculty and that he violated ethical standards.
Plaintiff alleges that the conduct stigmatized him because it labelled him as
unprofessional and of low moral character and the false statements were included in his
personnel file, which Plaintiff alleges is public (Doc. 42, ¶ 71). Plaintiff also incorporates
by reference into Count II (Id., ¶ 64) the false statements that Dr. Iovine made to Colin
Kleinmann. Moreover, Levitt was never given a meaningful opportunity for a nameclearing hearing because Drs. Pruitt and Adkins improperly rejected his grievances and
allowed the Letters of Concern and Letter of Reprimand to stand.
b. Clearly Established
Defendants argue that the clear terms of Plaintiff’s annual contract show that he
had no vested right or expectation to continued employment under the CBA or Florida
law. Thus, Defendants did not violate a “clearly established” right under the Fourteenth
Amendment.
However, as discussed above, the parties dispute whether Plaintiff’s
contract was terminated in compliance with the terms of the CBA and accepting the wellpled allegations in the Third Amended Complaint, the Court has found that Plaintiff has
plausibly alleged that Defendants imposed disciplinary actions on him, including
termination, without following the procedures of the CBA in retaliation for his protected
speech.
3. Defendant Adkins Liability - Personal Participation
Defendant Adkins argues that qualified immunity is appropriate as to him because
there are no allegations to suggest that he personally participated in any of the activity of
25
which Plaintiff complains. (Doc. 45, p. 19). While the Court agrees that Plaintiff must
allege facts sufficient to show that each named Defendant personally participated in the
alleged constitutional violation, see Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.
2003), Plaintiff has done so in this case, alleging that Dr. Adkins had knowledge of Drs.
Iovine and Pruitt’s retaliatory actions but did nothing to prevent them. See Doc. 42, ¶¶
46-52; Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (a supervisor might be
subjected to individual liability when the supervisor personally participates in the alleged
constitutional violation or where there is a causal connection between the supervising
official and the alleged constitutional deprivation).
Specifically, Plaintiff alleges that because Dr. Adkins was ultimately responsible
for the resolution of grievances, Dr. Adkins was informed of the Letter of Reprimand and
of Levitt’s reports on his grievances. (Doc. 42, ¶¶ 46-47). Dr. Adkins was also aware of
the safety concerns Levitt raised in his emails to Dr. Iovine (Id., ¶¶ 48-50). A primary
reason that Dr. Adkins supported Drs. Pruitt and Iovine’s disciplinary actions against Levitt
was that he wanted to suppress Levitt’s speech concerning school safety and he
supported their recommendation that Levitt’s contract not be renewed for the same
reason. (Id., ¶ 51).
B. District Liability Under Section 1983
Defendant next argues that it cannot be liable to Plaintiff solely because of
respondeat superior for injuries caused by District employees, citing Monell v. Dept. of
Social Servs., 436 U.S. 658, 691 (1978). Rather, the District can only be liable under
Section 1983 if the execution of the District’s “official policy” or “custom” serves as the
“moving force” of a constitutional violation.
26
Plaintiff responds that Monell does not
insulate a municipal authority from liability for unconstitutional acts of its employees when
it delegates all responsibilities in a particular area to those employees and in this case
the District delegated complete authority to discipline Levitt and renew, or not renew, his
contract to Drs. Adkins, Pruitt, and Iovine. In addition, it was the District’s policy to screen
employees’ speech on matters of public concern.
Title 42 U.S.C. § 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 [.]” To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the defendant
deprived him of a right secured under the United States Constitution or federal law, and
(2) such deprivation occurred under color of state law. Salvato v. Miley, 790 F.3d 1286,
1295 (11th Cir. 2015).
A municipal governing body may be held liable for acts or policies of individuals to
whom it delegated final decision-making authority in a particular area. Matthews v.
Columbia Cty., 294 F.3d 1294, 1297 (11th Cir. 2002) (“Local government liability can exist
when someone with final policymaking authority delegates that authority to someone else.
But the delegation must be such that the decision is not subject to review by the
policymaking authority.”). In Holloman ex rel. Holloman v. Harland, the Eleventh Circuit
noted a theme that “reiterated through much of our case law – in assessing whether a
governmental decision maker is a final policy maker, we look to whether there is an actual
‘opportunity’ for ‘meaningful’ review.” 370 F.3d 1252, 1293 (11th Cir. 2004).
Plaintiff does not address the meaningful review issue in his brief; instead, Plaintiff
simply argues that because he has alleged that the District delegated complete authority
to discipline Levitt to Drs. Adkins, Pruitt, and Iovine he has stated a Section 1983 claim
27
against the District. Although it is unknown at this point whether the decisions made by
Drs. Adkins, Pruitt, and Iovine were subject to review by the District, that is an issue that
will be determined after the pleading stage. At this point, Plaintiff has plausibly alleged
that all responsibility over disciplinary actions and appointment decisions were delegated
by the District to Defendants. (Doc. 42, ¶ 72). This is enough at the pleading stage.
C. Breach of Contract (Count III)
In Count III, Plaintiff alleges breach of the CBA against the District only, claiming
that the District breached the CBA and state law by refusing to renew Plaintiff’s contract.
The District argues that the claim fails because Plaintiff has not shown that he would have
been entitled to renewal. However, as discussed above, the parties dispute whether
Defendants followed the CBA when refusing to renew his contract. Plaintiff has plausibly
alleged that a breach occurred as the Third Amended Complaint alleges other breaches
of the CBA apart from the contract non-renewal. See Doc. 42, ¶¶ 10-11, 15-18, 29, 3336.
D. Defamation (Count IV)
Under Count IV, Plaintiff brings a defamation claim against Dr. Iovine and the
District. Levitt alleges that Dr. Iovine defamed him by making false written statements as
set forth in the Letter of Reprimand and the Letters of Concern. (Doc. 42, ¶ 81). Levitt
further alleges that Dr. Iovine made false oral statements defaming Levitt when he called
Assistant Principal Harris on his cellphone after hours to vilify him. (Id., ¶ 82). Plaintiff
alleges that Dr. Iovine also told Colin Kleinmann, a school guidance counselor, in a school
hallway after a meeting that Levitt was not pulling his weight and that she was going to
28
get rid of him. (Id., ¶ 83). Plaintiff states that these comments resulted in damage
because they maligned his character and professional competence. (Id.)
Dr. Iovine argues she is entitled to absolute immunity under Florida law for any
defamatory statements made as part of her duties. Levitt counters that Dr. Iovine was
not acting within the scope of her duties when she made the defamatory statements
because she was acting in bad faith and failed to assist Levitt in remediation of the alleged
deficiencies.
Under Florida law, defamation has five elements: “(1) publication; (2) falsity; (3)
actor must act with knowledge or reckless disregard as to the falsity on a matter
concerning a public official, or at least negligently on a matter concerning a private person;
(4) actual damages; and (5) statement must be defamatory.” Jews For Jesus, Inc. v.
Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). Additionally, defamatory language includes
that which “tend[s] to injure a person in [his] office, occupation, business, or employment
and which in natural and proximate consequence will necessarily cause injury,” or that
which “imputes to another conduct, characteristics, or a condition incompatible with the
proper exercise of his lawful business, trade, profession or office.” Scobie v. Taylor, No.
13-60457-Civ, 2013 WL 3776270, *2 (S.D. Fla. July 17, 2013) (quoting Metropolis Co. v.
Crosadell, 199 So. 568, 569 (Fla. 1941)) (alterations in original).
Public employees enjoy absolute immunity from defamation suits if the statements
were made as part of their duties. Boggess v. Sch. Bd. of Sarasota County, 8:06CV2245T-27EAJ, 2008 WL 564641, at *5 (M.D. Fla. Feb. 29, 2008). The scope of an official’s
duties is to be liberally construed. See Prins v. Farley, 208 So. 3d 1215, 1217 (Fla. 1st
DCA 2017). The controlling factor is whether the speech was performed within the scope
29
of an employee’s duties, not whether the employee complied with the procedures before
performing said duties. See e.g. Hennagan v. Dept. of Hwy. Safety and Motor Vehicles,
467 So. 2d 748, 750 (Fla. 1st DCA 1985) (“[C]onduct may be within the scope of
employment, even if it is unauthorized, if it is of the same general nature as that of
authorized or is incidental to the conduct authorized.”).
1. Dr. Iovine
The Third Amended Complaint describes three discrete instances of alleged
defamation against Dr. Iovine: (1) the Letters of Reprimand and Concern; (2) the
afterhours cell phone call to Assistant Principal Harris; and (3) the comments to Colin
Kleinmann. (Doc. 42, ¶¶ 82-83). As the Court stated in its previous Opinion and Order
(Doc. 33), it cannot reasonably be said that a school principal may not issue a teacher
official letters of reprimand or warning or evaluate a teacher’s performance. Thus, the
statements in the Letters of Reprimand and Concern fall within the scope of Dr. Iovine’s
duties, and Dr. Iovine is entitled to absolute immunity for any defamation claim arising
from them. However, it is plausible that the cell phone call to Harris and the comments
to Kleinmann were not performed within the scope of Dr. Iovine’s regular duties and were
“off the record.” Thus, absolute immunity as to these two instances is denied.
2. The District
The District argues that Levitt failed to state a claim for defamation against it
because there are no allegations it published defamatory statements about Levitt or that
the District is vicariously liable for Dr. Iovine’s statements. Plaintiff responds that as Dr.
Iovine’s employer, the District is responsible for her defamatory words.
30
An employer’s liability for an employee’s intentional acts may arise when the acts
are within the ‘real or apparent scope’ of employment.” Trabulsy v. Publix Super Mkt.,
Inc., 138 So. 3d 553, 555 (Fla. 5th DCA 2014) (quoting Weiss v. Jacobson, 62 So. 2d
904, 906 (Fla. 1953)).
Conduct is within the scope of employment if it occurs substantially within
authorized time and space limits, and it is activated at least in part by a
purpose to serve the master. The purpose of the employee’s act, rather
than the method of performance thereof, is said to be the important
consideration. Stated another way, only when the employee steps aside
from his employment to ... accomplish some purpose of his own, is the act
not within the scope of employment. This is generally a question of fact for
the jury.
Id. at 555 (internal citations and punctuation omitted). An employee’s conduct is within
the scope of his employment, where: (1) the conduct is of the kind she was employed to
perform, (2) the conduct occurs substantially within the time and space limits authorized
or required by the work to be performed, and (3) the conduct is activated at least in part
by a purpose to serve the master. Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783
So. 2d 353, 356 (Fla. 3d DCA 2001) (holding pastor’s criminal conduct was independent,
self-serving act and did not occur within course and scope of employment).
Here, Plaintiff has failed to state a plausible claim against the District for vicarious
liability for the cell phone call that Dr. Iovine made to Assistant Principal Harris and for the
comments Dr. Iovine made to Kleinmann. The cell phone call was made after hours,
outside the workplace, and was not the kind of conduct she was employed to perform.
Furthermore, Plaintiff himself alleges that the comments made to Kleinmann were “made
privately [ ] outside of her role as a principal at Success Academy.” (Doc. 42, ¶ 83).
31
Accordingly, it is now
ORDERED:
Defendants’ Motion to Dismiss Third Amended Complaint (Doc. 45) is GRANTED
IN PART AND DENIED IN PART.
1. Dr. Iovine’s Motion to Dismiss certain statements from Count IV is granted.
2. Count IV against the District is dismissed with prejudice in its entirety.
3. The Motion to Dismiss is denied in all other respects.
DONE and ORDERED in Fort Myers, Florida this 7th day of March, 2019.
Copies: All Parties of Record
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