Levitt v. Iovine et al

Filing 94

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED THAT: 1. Plaintiff's Motion for Partial Summary Judgment 67 is DENIED; and 2. Defendants' Motion for Summary Judgment 68 is GRANTED. The Clerk shall enter judgment accordingly, terminate all remaining deadlines as moot, and close the file. Signed by The Hon. Paul A. Magnuson on 11/26/2019. (LLM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Oliver E. Levitt,

Case No. 2:18-cv-36-FtM-PAM-MRM

Plaintiff,
v.

MEMORANDUM AND ORDER

Marti Iovine, Angela J Pruitt,
Gregory K. Adkins, and The
School District of Lee County,
Defendants.
This matter is before the Court on the parties’ cross-Motions for Summary
Judgment. For the following reasons, Plaintiff’s Motion for Partial Summary Judgment
is denied and Defendants’ Motion for Summary Judgment is granted.
BACKGROUND
In the fall of 2016, Plaintiff Oliver Levitt was a newly hired teacher at Success
Academy, an alternative school for troubled students in Lee County. Before Success
Academy, Levitt taught for five years at Success Academy’s predecessor, Alternative
Learning Center. (3d Am. Compl. (Docket No. 42) ¶ 9.) 1
At the time, the principal of Success Academy was Defendant Marti Iovine. Iovine
was also relatively new to the school, having been appointed principal in April 2016. (Id.
¶ 8.) At the beginning of the 2016-2017 school year, Iovine told the staff that she had

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The Court relies on the pleadings for basic facts because the parties’ briefs do not
clearly set forth the background in this matter.

chosen teacher John Ball to act at the lead building representative (“LBR”) for the teacher’s
union, the Teacher’s Association of Lee County (“TALC”). (Id. ¶ 11.) According to
Levitt, Ball was a “personal friend” of Iovine (id.); according to Iovine, she had worked
with Ball previously but they were not friends outside of the school setting (Pl.’s Ex. 8
(Docket No. 67-8) (Iovine Dep.) at 34-36).
Levitt and other teachers complained to the union about this appointment. (3d Am.
Compl. ¶ 11.) The union contacted Iovine and told her that the collective bargaining
agreement required that teachers elect the LBR, not that the principal appoint the LBR.
(Id.) The union thereafter held an election and Levitt was elected to the LBR position.
(Id.) Levitt believes that, “[f]or the remainder of the school year, Dr. Iovine held a grudge
against Mr. Levitt because he interfered with her appointment of Mr. Ball as LBR.” (Id.)
Levitt also alleges that Iovine retaliated against him when he advocated on behalf
of the union.

(Id. ¶ 12.)

Levitt sent Iovine several e-mails regarding what he

characterizes as safety issues at the school, and ultimately included Lee County School
District administrators, including Defendant Angela Pruitt, who is the District’s Chief
Human Resources Officer, on his emails to Iovine. (Id.; see also id. ¶ 3.)
In March 2017, shortly after Levitt’s email that included District administrators,
Iovine wrote a “Letter of Reprimand” for Levitt’s personnel file. (Id. ¶ 26; id. Ex. 6.)
The Letter of Reprimand asserted that Levitt violated his ethical responsibilities under
Florida law by copying District administrators on the email. (Id. Ex. 6 at 1-2.) This letter
was provided to Pruitt and to Defendant Gregory Adkins, the Superintendent of the District.
(Id. ¶ 26.) Levitt alleges that Iovine wrote the Letter of Reprimand “because [Levitt]

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exposed safety issues to District administrators.” (Id. ¶ 28.) Levitt filed a grievance
regarding the Letter of Reprimand, and Pruitt held a hearing on the grievance. She
concluded that the Letter should be “downgraded” to a warning that would be in Levitt’s
school file but not in his District personnel file. (Id. ¶ 42.)
In Levitt’s final performance evaluation for the school year, Iovine rated him
“developing/needs improvement” in most categories, and “unsatisfactory” in one category.
(Pl.’s Ex. 17 (Docket No. 67-18).) His contract to teach at Success Academy was not
renewed.
Levitt’s Third Amended Complaint asserts four claims. Count I alleges that all
Defendants retaliated against Levitt for his exercise of First Amendment rights, in violation
of 42 U.S.C. § 1983. Specifically, Levitt contends that he engaged in six instances of
protected speech: (1) his discussions with the union regarding Iovine’s appointment of
Ball to be LBR; (2) telling school administrators that he wanted to be on the ballot for the
LBR position; (3) a November 2016 email to Iovine regarding an incident involving Ball
and a student; (4) January and February 2017 emails to Iovine regarding school safety; (5)
the February 2017 email about security issues that was copied to District administrators;
and (6) Levitt’s statements about those security issues at the Letter of Reprimand grievance
hearing. (3d Am. Compl. ¶ 56.) Levitt alleges that all of these instances address matters
of public concern, “namely the safety of Success Academy, a public middle and high
school.” (Id. ¶ 57.) He contends that Defendants retaliated against him by imposing
discipline, such as the Letter of Reprimand, and giving him poor performance ratings. (Id.
¶ 58.)

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Count II raises a due-process claim under § 1983, contending that Levitt had a
property interest in continued employment at Success Academy and that all Defendants
failed to provide him with the process he was due before depriving him of that property
right. (Id. ¶ 66.) He also asserts that Defendants deprived him of “his liberty interest to
move easily to other employment opportunities by failing to renew his contract,”
disciplining him, and giving him bad performance reviews. (Id. ¶ 70.)
Count III contends that the District breached its collective bargaining agreement
(“CBA”) with the union by not reinstating him. (Id. ¶ 79.) Finally, Count IV asserts that
Iovine defamed him and that the District is vicariously liable for her defamation. (Id.
¶¶ 81-83.) Levitt seeks injunctive relief in the form of requiring Defendants to remove
any negative material from his personnel file and to revise his final performance ratings,
and to require Defendants to allow Levitt to continue teaching in the District “as long as
he performs satisfactorily.” (Id. p. 28.) He also seeks unspecified compensatory and
punitive damages, and attorney’s fees. (Id. p. 29.)
DISCUSSION
Summary judgment is proper only if there are no disputed issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must view the evidence
and the inferences that may be reasonably drawn from the evidence in the light most
favorable to the nonmoving party. Burton v. City of Belle Glade, 178 F.3d 1175, 1187
(11th Cir. 1999) (citation omitted).

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The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. O’Ferrell v. United
States, 253 F.3d 1257, 1265 (11th Cir. 2001). When opposing a motion for summary
judgment, the nonmoving party must demonstrate the existence of specific facts in the
record that create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). A party opposing a properly supported motion for summary judgment may
not rest on mere allegations or denials and “must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted).
Levitt first contends that the Court cannot revisit its prior rulings with respect to the
validity of his First Amendment claims. (Pl.’s Opp’n Mem. (Docket No. 74) at 3 n.2.)
But a ruling on a motion to dismiss that a claim is plausibly pled is not binding on a motion
for summary judgment, where the Court must consider the evidence in support of that
claim. The Court’s previous rulings do not mandate denial of Defendants’ Motion on
Levitt’s First Amendment claim.
Defendants argue that they are entitled to qualified immunity on Levitt’s claims
under § 1983. To overcome a defense of qualified immunity, it is Levitt’s burden to show
that the undisputed facts make out a violation of his constitutional rights, and also that the
rights were “clearly established” at the time of the violation. Pearson v. Callahan, 555

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U.S. 223, 239 (2009). 2 Because Levitt has failed to establish that the facts demonstrate
that Defendants violated his constitutional rights, his § 1983 claims fail on that basis alone.
A.

First Amendment
“A government employer may not demote or discharge a public employee in

retaliation for speech protected by the First Amendment.” Alves v. Bd. of Regents of the
Univ. Sys. of Georgia, 804 F.3d 1149, 1159 (11th Cir. 2015). To determine whether a
public employee’s speech is constitutionally protected, the Court must first “determin[e]
whether the employee spoke as a citizen on a matter of public concern.” Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006). “If the answer is no, the employee has no First
Amendment cause of action based on his . . . employer’s reaction to the speech.” Id. If
the employee was speaking as a citizen on a matter of public concern, the Court must then
determine whether the employer “had an adequate justification for treating the employee
differently from any other member of the general public.” Id. These questions are a
matter of law for the Court to determine. Alves, 804 F.3d at 1159.
“The threshold question is comprised of two components. For a government
employee’s speech to be constitutionally protected, the employee must speak (1) as a
private citizen and (2) on a matter of public concern.” Santarlas v. City of Coleman, No.
5:16cv380, 2018 WL 3495863, at *2 (M.D. Fla. July 20, 2018). Thus, the Court must

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Levitt similarly argues that the Court’s previous determination that he plausibly
pled that the rights involved were clearly established precludes Defendants from arguing
to the contrary. But again, the Court’s decision on a motion to dismiss is not binding at
summary judgment in the way Levitt argues. Summary judgment tests the facts in the
record, not the allegations in the pleadings.

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examine “both the ‘role the speaker occupied’ and ‘the content of the speech’ to ascertain
whether the putative government retaliation at issue necessitates the Pickering test, which
balances rights of the speaker against the practical considerations of government
operations.” Id. (quoting Alves, 804 F.3d at 1160; citing Pickering v. Bd. of Educ. of
Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968)).
In his briefs on these Motions, Levitt discusses many instances of allegedly
protected speech that are not mentioned in his Third Amended Complaint. He may not
amend his pleadings in arguments on a Motion for Summary Judgment, and the Court will
not consider any speech other than the six instances pled in the Third Amended Complaint.
1.

Private Citizen

The parties seem to agree that any speech Levitt made in his capacity as LBR is
speech as a citizen. (Defs.’ Supp. Mem. (Docket No. 68) at 10.) But even assuming that
a union rep is ipso facto not speaking in his role as an employee, at least three of Levitt’s
statements were not made in his capacity as LBR: the first two statements, which were
made before Levitt became LBR, and his statements at the grievance hearing, which were
made regarding his role as a teacher and had nothing to do with his status as LBR. Levitt
does not address this, merely contending that all of his statements were made in his capacity
as LBR and therefore were made as a citizen. But “[i]f the speech ‘owes its existence to
a public employee’s professional responsibilities,’ that indicates the speech is not protected
by the First Amendment.” King v. Bd. of Cty. Comm’rs, 916 F.3d 1339, 1346 (11th Cir.
2019) (quoting Garcetti, 547 U.S. at 421).

Levitt’s complaints regarding the LBR

appointment and his request to the union that he be allowed to run for LBR undoubtedly

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owe their existence to Levitt’s job, and that his comments at his own employee grievance
hearing stem from his job responsibilities is beyond cavil. See, e.g., Alves, 804 F.3d at
1165 (noting that an employee speaks pursuant to his professional responsibilities “when
reporting conduct that interfered with [his] ordinary job duties”).

Levitt’s First

Amendment claim as to these three statements must be dismissed.
2.

Public Interest

Assuming that the other three statements, all of which were made in emails, were
made in his capacity as LBR and are therefore at least arguably citizen speech, the Court
must next determine whether the content of the speech involved a matter of public concern.
Courts have repeatedly found that “speech that concerns internal administration of the
educational system and personal grievances will not receive constitutional protection.”
Maples v. Martin, 858 F.2d 1546, 1552 (11th Cir. 1988); see also Mpoy v. Rhee, 758 F.3d
285, 291 (D.C. Cir. 2014) (finding a teacher’s email to school district administrators that
“list[ed] a litany of complaints indicating that the school, and particularly its principal, had
been interfering with [the teacher’s] ‘primary duty’” to be unprotected speech).
“‘[T]he relevant inquiry is not whether the public would be interested in the topic
of the speech at issue,’ it is ‘whether the purpose of [the employee’s] speech was to raise
issues of public concern.’” Alves, 804 F.3d at 1167 (quoting Maggio v. Sipple, 211 F.3d
1346, 1353 (11th Cir. 2000) (emphases in Alves) (internal quotation marks omitted)).
Moreover, contrary to what appears to be Levitt’s implicit assumption, speech in his
capacity as LBR is not automatically speech on a matter of public concern.

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Levitt repeatedly characterizes his speech as not only addressing school safety, but
also addressing Success Academy’s “culture.”

But even if speech regarding school

culture is always speech on a matter of public concern, 3 the actual content of the speech
belies this characterization. Moreover, this alleged focus on school culture is found
nowhere in Levitt’s pleadings.
a.

November 2016 email

Levitt’s November 2016 email to Iovine concerned an incident involving Mr. Ball,
the teacher whom Iovine initially appointed to be LBR. The email mentions that another
teacher talked to Iovine “about negative things he heard Mr. Ball saying about myself to
other students” and adds that Levitt “heard that [Mr. Ball] said similar things about another
teacher to his students.” (Pl.’s Supp. Mem. Ex. 10 (Docket No. 67-11).) Levitt then goes
on to recount what he had been told about a hallway incident between Mr. Ball and a
student, in which Mr. Ball ostensibly threatened to fight with the student. The email closes
by asking Iovine to look at the video of the incident and talk to those who were present,
“[f]or the safety of our school, and more importantly our students.” (Id.)
School safety is undeniably a matter of public concern. However, the mere fact
that this email addressed school safety is not dispositive.
3

Rather, the Court must

Defendants note that Levitt’s sudden focus on school “culture” likely stems from
the fact that none of the District administrators testified that they were concerned about
safety at Success Academy, making it unlikely that any speech regarding safety could have
caused the retaliation about which Levitt complains. (See, e.g., Pl.’s Supp. Mem. Ex. 26
(Docket No. 67-26) (Adkins Dep.) at 55 (testifying that he was not aware of safety concerns
at Success Academy).) Superintendent Adkins testified that he was concerned about
Success Academy’s “culture,” and Levitt appears to be attempting to bootstrap the facts to
fit this expressed concern, in order to bolster his retaliation claim. (Id. at 56-58.)

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determine whether the purpose of this email was to raise issues of public concern. Alves,
804 F.3d at 1167.

The email’s subject is “issue regarding student safety,” lending

credence to Levitt’s argument that the purpose of the email was a matter of public concern.
And the content of the email, while also mentioning that Mr. Ball had bad-mouthed
teachers to their students, is primarily concerned with the incident in the hall. Moreover,
the email emphasizes concerns for safety, fear amongst staff members, and the potential
for injuries. The November 2, 2016, email addressed a matter of public concern and is
thus protected speech under the First Amendment.
b.

January and February 2017 emails

Levitt’s January 27, 2017, email asks Iovine to meet with teachers “as a whole in a
forum setting so everyone can be heard.” (Pl.’s Supp. Mem. Ex. 19 (Docket No. 67-20).)
The email states that “[i]t is our belief that this will aid in team building.” (Id.) Similarly,
Levitt’s February 13, 2017, email notes that he has “requested a meeting with you and
[TALC] members for quite some time.” (Id. Ex. 21 (Docket No. 67-22).) Levitt states
that “we have some excellent solutions to many of the issues at our school and would like
to be heard in a forum setting by you, our principal.” (Id.)
These emails do not raise any matter of public concern. Even if the “issues” Levitt
mentions in his February email include school safety, it is clear that these emails are
addressed to what he and other teachers perceive as poor management on the part of Iovine.
See Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985) (noting that courts are
required “to look at the point of the speech in question: was it the employee’s point to bring
wrongdoing to light? Or to raise other issues of public concern, because they are of public

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concern? Or was the point to further some purely private interest?”).

Levitt is not

attempting to bring any wrongdoing to light but is merely complaining that Iovine will not
hold a forum meeting with members of the union. His First Amendment claim as to this
speech must be dismissed.
c.

February 16, 2017, email

On February 16, 2017, Levitt again emailed Iovine to ask her to hold a forum
meeting with members of the union. (Pl.’s Supp. Mem. Ex. 22 (Docket No. 67-23).) He
copied several District administrators on this email and included the email chain in which
he repeatedly asked Iovine for a forum meeting with union members. The email mentions
safety, noting that “[j]ust today four kids were arrested on campus . . . for fighting.” (Id.
at 1.) The email then goes on to discuss “[a]nother issue:” overcrowding. Levitt states
that “Success was designed to hold no more than 150 students” but now has “over 200
students enrolled with four or five less teachers than last year.” He states that “we realize
the growing numbers are not your fault” but nevertheless “we would like some answers
and guidance.” (Id.) Finally, he notes that the assistant principal, Mr. Harris, met with
teachers the previous day and was asked why Dr. Iovine never meets with the teachers.
Levitt closed by again requesting a meeting with the group “so we can offer solutions.”
(Id.)
The public certainly might be interested in Levitt’s February 16 email. But the
question is not public interest, but rather “whether the purpose [of the email] was to raise
issues of public concern.” Maggio, 211 F.3d at 1353 (quotation omitted). Even taking
the evidence in the light most favorable to Levitt, the only conclusion can be that the

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purpose of this email was purely personal to Levitt and the other teachers at Success
Academy. The email is a list of complaints “indicating that the school, and particularly
its principal, had been interfering with” the teachers’ jobs by not sufficiently supporting
the teachers or by not sufficiently listening to the teachers. Mpoy, 758 F.3d at 291. “At
bottom, the impetus for [his] speech was frustration at work, not fear for public safety or
the public purse.” King, 916 F.3d at 1349. Levitt’s First Amendment claim as to this
email must be dismissed.
3.

Pickering balancing test

The determination that Levitt’s November 2, 2016, email is speech entitled to
constitutional protection does not end the analysis. The Court must next examine whether
the District “had an adequate justification for treating [Levitt] differently from any other
member of the general public” based on his speech. Garcetti, 547 U.S. at 418. But this
presumes that indeed the District did treat Levitt differently; in other words, before
determining whether there was an adequate justification for any different treatment, the
Court must first examine whether there was different treatment in the first instance, and
whether Levitt’s speech caused any such different treatment.
The parties do not specifically argue about any retaliation with respect to each
instance of Levitt’s speech. Rather, they argue about whether the Letter of Reprimand in
March 2017 was retaliation for Levitt’s February 16 email. And Defendants focus on the
qualified-immunity question: was there a case clearly establishing that Defendants could
not do what they did, namely issuing the Letter of Reprimand and ultimately not renewing
Levitt’s contract.

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But Levitt’s February 16 email was not speech on a matter of public concern and
thus cannot support a First Amendment claim. The only question remaining is whether
there was any different treatment after Levitt’s November 2, 2016, email. The only record
evidence of different treatment is the two “letters of concern” that Iovine placed in Levitt’s
school file. The first of these is dated November 14, 2016. (Pl.’s Supp. Mem. Ex. 12.)
This letter recounts a November 10 meeting between Iovine, Levitt, and Assistant Principal
Harris, which discussed Levitt’s November 2 email and other issues. The letter does not
go into any detail about Levitt’s expressed safety concerns, instead focusing on Levitt’s
complaints regarding Mr. Ball bad-mouthing him and other teachers, which Iovine said she
investigated and were “unfounded.” (Id. at 1.) And the letter outlines Iovine’s belief that
Levitt was spending too much time during the school day at another school on the same
campus, where his wife was assistant principal. (Id. at 1-2.)
The second Letter of Concern is dated November 16, 2016. (Pl.’s Supp. Mem. Ex.
14.) This letter, signed by Assistant Principal Harris rather than Iovine, discussed Levitt’s
ostensible failure to use restorative practices rather than sending students out of his class
for misbehavior. It also encouraged Levitt to use technology in his classroom, and to
support the school’s goals of working with community partners. Levitt asserts that Harris
testified that he did not believe that Levitt deserved to be disciplined and that Iovine
directed him to write the November 16 letter. (Harris Dep. (Pl.’s Supp. Mem. Ex. 2) at
53, 59.) But this mischaracterizes Harris’s testimony. Harris testified that he did not
believe that either Letter of Concern was disciplinary. (Id. at 52; see also id. at 55 (“I did
not view [the Nov. 14] letter as disciplinary.”).) And he said that Iovine asked him to

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write the second letter because it would be a good learning opportunity for him as a firstyear assistant principal. (Id. at 59-60.)
Given the timing of these letters and Levitt’s email, the Court cannot say as a matter
of law that they do not constitute differential treatment on the basis of his speech. The
question then becomes whether Iovine “had an adequate justification for treating [Levitt]
differently from any other member of the general public” based on his November 2 email.
Garcetti, 547 U.S. at 418. In other words, the question is whether Defendants “had an
adequate justification for [the Letters of Concern] other than [Levitt’s] speech.” Carollo
v. Boria, 833 F.3d 1322, 1329 (11th Cir. 2016).
The letters themselves proffer Defendants’ justifications for them. Levitt contends
that these justifications were pretext, but he offers no evidence to support that contention.
Indeed, he often misstates the record and relies almost solely on hearsay in an attempt to
prove his claims. This is insufficient when opposing Defendants’ properly supported
summary-judgment Motion. Defendants have offered an adequate justification for the
two Letters of Concern. “A government entity has broader discretion to restrict speech
when it acts in its role as employer, but the restrictions it imposes must be directed at speech
that has some potential to affect the entity’s operations.” Garcetti, 547 U.S. at 418.
Taking the facts in the record in the light most favorable to Levitt, the Letters of Concern
were directed at speech that affected the school’s operation. Levitt has not established a
First Amendment claim as to the November 2, 2016, email.

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B.

Due Process
Levitt’s due-process claim has two parts: one is a procedural due-process claim,

contending that Defendants deprived Levitt of his property interest in continued
employment without giving him due process. (3d Am. Compl. ¶ 66.) The second part
argues that Defendants deprived him of a liberty interest in besmirching his employment
record. (Id. ¶ 70.)
Even if Levitt had a property interest in continued employment, as he contends, he
received all the process that was due. He had a grievance hearing, and while Pruitt did
not allow him to grieve the two Letters of Concern because any grievance with regard to
those was untimely, this determination is not a violation of Levitt’s due-process rights.
The CBA provides the due-process framework here, and under the CBA Levitt had the
opportunity to be heard. (See id. Ex. 1 Art. 4.) That he did not avail himself of that
opportunity in a timely fashion does not arise to a due-process violation.
Levitt’s liberty-interest claim fares no better. Although “reputational damage []
sustained in connection with a termination of employment . . . may give rise to a procedural
due process claim for deprivation of liberty . . . actionable under section 1983,” Levitt
cannot show the elements necessary to make out such a claim. Cotton v. Jackson, 216
F.3d 1328, 1330 (11th Cir. 2000). He must show 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.” Warren v. Crawford, 927 F.2d 559, 565 (11th Cir.
1991) (quoting Buxton v. City of Plant City, 871 F.2d 1037, 1042-43 (11th Cir. 1989)).

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Again, because Levitt had the opportunity to grieve his end-of-year evaluation that
resulted in the non-renewal of his contract, and he did grieve the Letter of Reprimand, he
cannot make out a due-process claim. “[O]nly when the state refuses to provide a process
sufficient to remedy the procedural deprivation does a constitutional violation . . . arise.”
McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc). That Levitt disagrees
with the outcome of his grievances does not mean he suffered any due-process deprivation.
Levitt could have, but did not, appeal the outcome of his grievances. (3d Am. Compl. Ex.
1 ¶ 4.04 (describing grievance procedures, including procedures “[i]f the grievant is not
satisfied with the disposition of the grievance”).) Levitt was provided a process to address
his complaints, and thus he did not suffer any due-process violation.
Moreover, as Defendants point out, even if he could make out the elements of a dueprocess liberty-interest claim, he cannot show any damages as to that claim. He admitted
in his deposition that he chose not to apply for any teaching positions for reasons unrelated
to the events at Success Academy, and that in fact Defendant Lee County School District
hired him for a teaching position for the 2017-2018 school year. (Defs.’ Supp. Mem. Ex.
4 (Docket No. 68-4) at 204-07; 215-16.)

Thus, either the allegedly false statements were

not stigmatizing or he suffered no damages as a result of them. His due-process claims
fail.
C.

Breach of Contract
Levitt’s breach of contract claim contends that the CBA and state law required the

District to renew his contract. He contends that, in the absence of retaliation for the
exercise of his First Amendment rights, he would have been entitled to a better end-of-year

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rating. (3d Am. Compl. ¶ 77.) With a better rating, the CBA required renewal of his
contract: teachers with three consecutive years of “effective” ratings or above and no
disciplinary actions are entitled to reinstatement. (3d Am. Compl. Ex. 1 ¶ 5.01(1)); see
also Fla. Stat. § 1012.33(3)(b).
But the time between the November 2, 2016, email and the end-of-year evaluation
is too great for a determination that the email caused the alleged retaliation. Rather, Levitt
argues repeatedly that the alleged retaliation happened because of the February email
copying District administrators. Levitt cannot establish that he was entitled to a better
rating, and thus that the District breached the CBA or violated Florida law by failing to
reinstate him. His contract claim fails.
D.

Defamation
Levitt claims that Iovine defamed him by telling Assistant Principal Harris that

Levitt was not a team player and that he should not socialize with Levitt (3d Am. Compl.
¶ 83), and told a Success Academy guidance counselor that Levitt would not be renewed
because he was not pulling his weight and was not cooperative. (Id. ¶ 84.)
Levitt cannot base his defamation claim on any oral statements, because he has
failed to establish that those statements were, in fact, made. Harris’s testimony regarding
Iovine’s statements do not support either of the allegations Levitt makes. (Harris Dep. at
10; 81-83.) And Iovine denies making the statement. (Iovine Dep. (Pl.’s Supp. Mem.
Ex. 7 (Docket No. 67-8) at 57-58.) Levitt did not depose the guidance counselor to whom
Iovine allegedly made the statements, and again, Iovine denied making any statement that
Levitt’s contract would not be renewed. (Id. at 215.) She was not asked whether she told

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the guidance counselor that Levitt was uncooperative. Finally, any alleged statement that
Levitt’s class sizes were smaller than other teachers is simply not defamatory.
At this stage, Levitt cannot rely on his own testimony to support his defamation
claims. And that is all he has. Defendants are entitled to summary judgment on his
defamation claim.
CONCLUSION
Plaintiff has not come forward with facts in the record to establish any genuine issue
as to his claims. Accordingly, IT IS HEREBY ORDERED that:
1.

Plaintiff’s Motion for Partial Summary Judgment (Docket No. 67) is
DENIED; and

2.

Defendants’ Motion for Summary Judgment (Docket No. 68) is GRANTED.

The Clerk shall enter judgment accordingly, terminate all remaining deadlines
as moot, and close the file.

s/ Paul A. Magnuson

Dated: November 26, 2019

Paul A. Magnuson
United States District Court Judge

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