Devries v. Florida Cancer Specialists, P.L.

Filing 17

ORDER: Defendant Florida Cancer Specialists, P.L.'s Partial Motion to Dismiss 14 is GRANTED. Plaintiff Michele Devries has until August 12, 2014, to file a Second Amended Complaint. Signed by Judge Virginia M. Hernandez Covington on 7/28/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHELE DEVRIES,
Plaintiff,
v.

Case No. 8:14-cv-1365-T-33TGW

FLORIDA CANCER SPECIALISTS, P.L.,
Defendant.
_________________________________/
ORDER
This cause comes before the Court pursuant to Defendant
Florida Cancer Specialists, P.L.’s Partial Motion to Dismiss
(Doc. # 14), filed on July 15, 2014. Plaintiff Michele Devries
filed a response in opposition to the Motion on July 25, 2014.
(Doc. # 16). For the reasons stated below, the Court grants
Defendant’s

Motion.

However,

Count

III

of

the

Amended

Complaint is dismissed without prejudice, so that Devries may
file a Second Amended Complaint by August 12, 2014, to state
a claim as to Count III, if possible.
I.

Background
At

all

times

relevant

to

this

action,

Devries

was

employed by Defendant as a radiation nurse. (Doc. # 6 at ¶
2). In March of 2012, Devries applied for leave under the

Family and Medical Leave Act (FMLA) for a serious medical
condition, and Defendant approved her request. (Id. at ¶ 7).
Subsequent to the approval, Defendant’s physicians asked
Devries whether she would consider quitting because of her
medical condition. (Id. at ¶ 8).
According to the Amended Complaint, physicians “joked
and ridiculed [Devries] about her medical condition.” (Id. at
¶ 9). Devries reported the “harassment” regarding her medical
condition and use of leave to Defendant’s human resources
department, but contends that she was warned to “never go to
human resources again.” (Id.). Thereafter, Devries contends
that she was told that she could either apply for disability
or face termination. (Id. at ¶ 10). On June 2, 2014, Devries’
employment was terminated. (Id. at ¶ 14).
On June 9, 2014, Devries initiated this action (Doc. #
1), and filed an Amended Complaint on July 8, 2014, alleging
(1)

FMLA

interference,

(2)

FMLA

retaliation,

and

(3)

Violation of the Florida Whistleblower Act, Fla. Stat. §§
448.101 et seq (Doc. # 6). As to Count III, Devries submits
that:
During the term of [Devries’] employment, she
objected to an activity and practice of Defendant,
which was in violation of Florida law governing
health care providers, the AHCA and laws, rules and

2

regulations governing radiation treatment.
In
particular, a physician yelled and screamed at
[Devries] about the necessity of reporting the
medical error.
* * *
[Devries] voiced specific objections to the
Defendant’s management. [Devries] was intimidated
and harassed because she insisted that the proper
authorities be notified of a medical error.
(Id. at ¶¶ 32, 34).
On July 15, 2014, Defendant filed the present Motion
seeking dismissal of Count III. (Doc. # 14). Devries filed a
response in opposition to the Motion on July 25, 2014. (Doc.
# 16). The Court has reviewed the Motion, and the response
thereto, and is otherwise fully advised in the premises.
II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this

Court

favors

the

plaintiff

with

all

reasonable

inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (“On a motion to dismiss, the facts stated in [the]

3

complaint and all reasonable inferences therefrom are taken
as true.”). However:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).

Courts are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
of

review

must

be

limited

to

the

four

corners

of

the

complaint.” St. George v. Pinellas Cnty., 285 F.3d 1334, 1337
(11th Cir. 2002).
III. Analysis
Florida's Whistleblower Act is “designed ‘to protect
private employees who report or refuse to assist employers
who violate laws enacted to protect the public.’” Golf Channel
v. Jenkins, 752 So. 2d 561, 562 (Fla. 2000) (quoting Arrow
Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994)). “To
that end, the Whistleblower Act provides victims of certain
retaliatory personnel actions a remedy against their privatesector employers.” Stubblefield v. Follett Higher Educ. Grp.,

4

Inc., No. 8:10-cv-824-T-24-AEP, 2010 WL 2025996, at *2 (M.D.
Fla. May 20, 2010). Among other things, the Act prohibits an
employer from retaliating when an employee has “[o]bjected
to, or refused to participate in, any activity, policy, or
practice of the employer which is in violation of a law, rule,
or regulation.” Id.; Fla. Stat § 448.102(3).
Florida applies the framework for Title VII retaliation
claims when evaluating Whistleblower Act claims. See Bell v.
Georgia–Pacific Corp., 390 F. Supp. 2d 1182, 1187 (M.D. Fla.
2005); Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125,
1132 (Fla. 4th DCA 2003). Therefore, to establish a claim
under the Act, an employee must prove: (1) there was a
statutorily protected activity; (2) an adverse employment
action occurred; and (3) there was a causal link between the
protected activity and the adverse employment action. Bell,
390 F. Supp. 2d at 1187–88.
To establish the first element of a prima facie case
under the Whistleblower Act, a plaintiff must demonstrate
that she objected to or refused to participate in an activity,
policy, or practice of her employer that violates a law, rule,
or

regulation.

Id.

at

1188.

Accordingly,

to

survive

Defendant’s Motion, Devries must sufficiently establish that
she objected to an activity, policy, or practice of Defendant

5

that actually violated a law, rule, or regulation. See Vargas
v. Lackmann Food Serv., Inc., 510 F. Supp. 2d 957, 968 (M.D.
Fla. 2007). Here, Devries alleges that she objected to “an
activity and practice of Defendant, which was in violation of
Florida law governing health care providers, the AHCA and
laws, rules, and regulations governing radiation treatment.”
(Doc. # 6 at ¶ 32). Devries further contends that “a physician
yelled and screamed [at her] about the necessity of reporting
the medical error.” (Id.).
Defendant argues that Count III fails to specifically
identify which “law, rule, or regulation” Defendant allegedly
violated or provide any explanation for the medical error
Devries is referring to in her Amended Complaint. (Doc. # 14
at 3). Defendant submits that the statutes referenced in the
Amended Complaint do not mention medical errors, and as a
result, Devries “fails to either state what medical error was
committed, or what law Defendant violated by ‘yelling and
screaming’ at her about reporting the medical error.” (Id. at
4).
In response, Devries explains that she has cited “a
number of statutory sources that require that health care
providers comply with certain record keeping and reporting
procedures.” (Doc. # 16 at 2).

6

Attached to her response –

Exhibit A entitled Notification and Reporting Procedure –
Devries provides an example of the statutory authority she
believes will apply to the reporting of medical incidents
involving the use of radiation (Id. at 3; Ex. A). Noteworthy,
however, Devries “acknowledges that she has not yet provided
all the factual detail” relevant to this case, but has “tried
to avoid providing a tremendous amount of medical detail, due
to possible implications of HIPAA.” (Doc. # 16 at 2-3).
Upon review of the Amended Complaint, the Court finds it
appropriate to grant Defendant’s Motion as Devries has failed
to establish that she objected to an activity, policy, or
practice of Defendant that actually violated a law, rule, or
regulation.
alleges

In

that

the

Amended

Defendant’s

Complaint,

actions

Devries

violated

generally

“Florida

law

governing health care providers, the AHCA and laws, rules and
regulations governing radiation treatment.” (Doc. # 6 at ¶
32). In particular, Devries claims that “a physician yelled
and screamed at [her] about the necessity of reporting the
medical

error.”

(Id.).

Without

more,

this

conclusory

statement does not sufficiently put Defendant on notice of
the claim against it; namely what medical error was committed
or what law Defendant violated. As a result, Devries fails to
satisfy the pleading standard set forth in Fed. R. Civ. P.

7

8(a). See Stubblefield, 2010 WL 2025996, at *4 (finding that
the

complaint

failed

to

allege

conduct

sufficient

to

demonstrate an actual violation of law).
The Court notes that Devries attached to her response an
example of the statutory authority she believes applicable in
the instant action. However, the Court’s inquiry on a motion
to dismiss is restricted to the four corners of the complaint.
Thus, the Court may not consider this attachment in making
its determination.
As Devries has failed to adequately allege the first
element of her Whistleblower Act claim, Defendant’s Motion is
granted. Devries has until August 12, 2014, to file a Second
Amended Complaint to state a claim under Count III, if
possible.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Florida Cancer Specialists, P.L.’s Partial
Motion to Dismiss (Doc. # 14) is GRANTED.

(2)

Plaintiff Michele Devries has until August 12, 2014, to
file a Second Amended Complaint.

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DONE and ORDERED in Chambers, in Tampa, Florida, this
28th day of July, 2014.

Copies: All Counsel of Record

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