King et al v. Board of County Commissioners, Polk County, Florida et al
ORDER: Defendants' Motions for Summary Judgment (Doc. ## 103 - 106 ) are GRANTED to the extent judgment shall be granted in Defendants' favor for the First Amendment retaliation claims, Counts III and IV. The Florida Public Whistleblow er Act claims, Counts I and II, are DISMISSED WITHOUT PREJUDICE so that they may be reasserted in state court. The Clerk is directed to enter judgment in favor of Defendants and against Plaintiff Nancy King for Counts III and IV. Thereafter, the Clerk is directed to CLOSE the case. Signed by Judge Virginia M. Hernandez Covington on 12/6/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
NANCY KING, THE OCCUPATIONAL
HEALTH CENTER, INC., and
WORK LOSS MANAGEMENT, INC.,
Case No. 8:16-cv-2651-T-33TBM
BOARD OF COUNTY COMMISSIONERS,
POLK COUNTY, FLORIDA, KANDIS
LEA ANN THOMAS, individually,
and JIM FREEMAN, individually,
Florida’s Motion for Summary Judgment (Doc. # 106), Jim
Freeman’s Motion for Summary Judgment (Doc. # 103), Kandis
Baker-Buford’s Motion for Summary Judgment (Doc. # 105), and
Lea Ann Thomas’s Motion for Summary Judgment (Doc. # 104).
Plaintiffs Dr. Nancy King, the Occupational Health Center,
Inc., and Work Loss Management, Inc., filed responses on
November 6 and 7, 2017. (Doc. ## 117-119, 122). Defendants
replied on November 20, 2017. (Doc. ## 130-133). For the
reasons that follow, the Motions are granted to the extent
judgment is entered for Defendants on the First Amendment
retaliation claims and the remaining state law claims are
dismissed without prejudice.
The Saga of Mr. J
The facts are these. King worked as the occupational
health director for Polk County, Florida, from October 2000,
to March 31, 2016. (King Aff. Doc. # 116-4 at ¶¶ 3, 67).
Plaintiff entities, The Occupational Health Center, Inc., and
Work Loss Management, Inc., are two companies owned and
operated by King, with drug testing done through Work Loss
Management and physicals done through Occupational Health
Center. (King Dep. Doc. # 100 at 7:7-19, 16:4-14). Although
these entities provided, and were paid for, services to the
County, the contract at issue was between only King and the
County. (Id. at 21:9-22:5; Craig Aff. Doc. # 112 at 11, ¶ 6).
As the occupational health director, King, among other
incumbents of Fire Rescue Services and rendering an opinion
as to whether these individuals were medically qualified or
not medically qualified to perform the essential functions of
their positions.” (King Aff. Doc. # 116-4 at ¶ 5). In making
recognized medical standard known as NFPA  1582,” which
“provides information for physicians and other health care
medical programs.” (Id. at ¶¶ 5-6). Although a Florida Statute
determining whether a firefighter is physically fit, it is
not required and the County never formally adopted NFPA 1582
as a mandatory requirement. (Id.; Freeman Dep. Doc. # 85 at
King would provide her recommendation to one of two
employees of the County’s Risk Management Department, the
clinic’s manager Diane Mulloney. (King Dep. Doc. # 100 at
20:16-25, 24:4-25:20). After King made her recommendation,
Risk Management passed it along to HR and the County then
decided whether or not to hire the applicant. (Id. at 24:1125:3). The County was free to reject King’s recommendation
and hire an applicant, even if King did not recommend the
applicant as medically cleared. (Id. at 112:18-113:7).
King and her employees were not the only ones working in
services for County employees, such as treatment for colds or
other acute illnesses, were provided by Dr. Aguilera and his
staff, including nurses and physician assistants. (Aguilera
Dep. Doc. # 84 at 8:14-9:18). But Dr. Aguilera or the nurses
at the Employee Health Services clinic also performed some of
the pre-employment physicals. (Id. at 12:1-15; Mulloney Dep.
Doc. # 96 at 23:10-24:4).
In December of 2013, a physician assistant employed by
King, Kelly Manion, performed a pre-employment fitness exam
on a man who was about to begin training to be a Polk County
firefighter — a man whom the Court will refer to as Mr. J.
During that examination, Manion noticed that Mr. J, who is
African-American, “had a very abnormal pulmonary function
prevented her from completing the examination. (Manion Dep.
Doc. # 91 at 26:9-28:12).
Instead, Manion informed Mr. J and entered into her notes
that “Candidate will need medical clearance from his personal
physician and in the interim is not medically qualified for
entrance into the firefighter academy.” (Id. at 28:13-31:17,
74). Mr. J would be expected to send the results of the
further testing with his personal physician back to Employee
employment clearance determination. (Id. at 29:12-30:7). But,
Mr. J was under the impression that he only needed to get
clearance from his personal physician or a pulmonologist.
(Mr. J Dep. Doc. # 92 at 143:18-146:7).
In late December of 2013 or early January of 2014, BakerBuford, the Equal Opportunity Administrator who subsequently
became Human Resources Director, called Mulloney and asked
whether Risk Management would permit Mr. J to begin classroom
training pending final medical clearance. (Mulloney Dep. Doc.
# 96 at 45:2-47:7, 113-14). Mulloney gave permission for Mr.
J to begin classroom training, and discussed having Mr. J
sign a letter acknowledging that he must be medically cleared
before he could be hired as a firefighter. (Id.). Although
she testified that other employees have been provisionally
hired pending medical clearance in the past, Mulloney did not
realize that Mr. J would become a County employee by attending
classroom training. (Id. at 47:6-49:7). Regardless, in the
County’s eyes, Mr. J became a County employee when he was
training. (Freeman Dep. Doc. # 85 at 47:12-18).
Apparently, the confusion about Mr. J’s pre-employment
clearance arose because Mr. J participated in a special County
diversity program, the Proactive Diversity Recruitment and
trainees on the County’s payroll. (Baker-Buford Aff. Doc. #
109 at ¶¶ 10, 16-17). Ordinarily, trainees are not employees
— only after a trainee successfully completes the firefighter
or EMT training program is he hired by the County. (Id. at ¶
employment fitness exam before beginning their training.
The diversity program changed this dynamic for its six
yearly participants because it sought to increase the number
of diverse firefighters and EMTs in Polk County. (BakerBuford Aff. Doc. # 109 at ¶ 12; Mathis Aff. Doc. # 111 at ¶¶
5-6, 10). In this context, “diverse” had a wide definition —
anyone, regardless of gender or race, was eligible for the
program so long as they have resided in Polk County for at
least six months and are “economically disadvantaged, as
defined by the HUD guidelines.” (Baker-Buford Aff. Doc. # 109
at ¶ 12). The program’s solution was to hire the selected
applicants as County employees for the entirety of their
training, and have the County cover the training expenses.
(Id. at ¶¶ 15-16). The Equal Opportunity Center (EOC), within
the Equity and Human Resources Department, was in charge of
recruiting and hiring the diversity program participants,
whereas Risk Management, under which Employee Health Services
clearance for new employees to HR before they were hired.
(Id. at ¶¶ 3, 6, 9, 16; Mulloney Dep. Doc. # 96 at 15:1718:7).
Pursuant to her conversation with Mulloney, Baker-Buford
wrote Mr. J a letter, which she had Mr. J sign on January 10,
2014. (Mr. J Dep. Doc. # 92 at 97; Baker-Buford Aff. Doc. #
109 at ¶ 17). The letter stated that Mr. J had to meet the
requirements imposed by Employee Health Services and that his
clearance.” (Mr. J Dep. Doc. # 92 at 97). Later, on April 18,
2014, Baker-Buford called Mulloney and informed her that
Baker-Buford had given Mr. J a May 1, 2014, deadline to get
medical clearance. (Id. at 101; Mulloney Dep. Doc. # 96 at
In April of 2014, Mr. J went to a pulmonologist, Dr.
Shah. (Manion Dep. Doc. # 91 at 79). On April 23, 2014, Dr.
Shah wrote a letter stating that he was treating Mr. J for a
rare type of pneumonia and stated that Mr. J was “cleared to
join Polk County fire [rescue], with the limitations that he
may not do any major physical activity.” (Manion Dep. Doc. #
91 at 79). Dr. Shah further stated that Mr. J would “be reevaluated in 2-3 months to reassess his condition.” (Id.).
For whatever reason, King was not provided a copy of this
clearance and would not become involved in reviewing Mr. J’s
records for months to come. (King Dep. Doc. # 100 at 38:739:11). Dr. Aguilera, however, was provided the letter and
determined that Mr. J was not medically qualified to be a
firefighter on April 29, 2014. (Mulloney Dep. Doc. # 96 at
On May 14, 2014, a nurse practitioner, Nurse Albano,
wrote a letter stating that Mr. J was under her care and was
“cleared to attend EMT classes and ride [alongs]” but would
need clearance from a pulmonologist for physical training or
exercises. (Manion Dep. Doc. # 91 at 80). A few days later,
on May 20, 2014, Nurse Albano wrote a letter “releas[ing]
[Mr. J] to perform all duties as an EMT trainee.” (Id. at
81). Someone from the EOC office sent Nurse Albano’s letter
to Mulloney at the Employee Health Services clinic. (King
Dep. Doc. # 100 at 277). Still, Mulloney did not recall
receiving this clearance letter. (Mulloney Dep. Doc. # 96 at
57:23-58:18). A few days later, on June 3, 2014, Nurse Albano
wrote a letter clarifying that a pulmonologist must clear Mr.
J for physical training. (Id. at 122; Albano Dep. Doc. # 88
Ackerman, in August of 2014. Dr. Ackerman stated that Mr. J
was “cleared for work (firefighter school) but will have
another [pulmonary function test] and ct [scan] done in 3
[months].” (King Dep. Doc. # 100 at 280). After Dr. Ackerman’s
findings, on October 14, 2014, Nurse Albano filled out an
Fitness for Firefighter Training, Bureau of Fire Standards
and Training,” giving Mr. J full clearance to engage in
firefighter training. (Albano Dep. Doc. # 88 at 37:1-40:23,
132). But someone from the Employee Health Services clinic
contacted Nurse Albano and, on November 18, 2014, Nurse Albano
rescinded the clearance she had given Mr. J the previous
month. (Mulloney Dep. Doc. # 96 at 62:18-67:9, 134).
Meanwhile, Mr. J had continued his treatment with Dr.
condition and performing additional tests, issued another
clearance for Mr. J on November 24, 2014. (King Dep. Doc. #
100 at 286; Mulloney Dep. Doc. # 96 at 130). That letter
states: “After the physical evaluation of [Mr.] J’s health
and reviewing the job description for Firefighter, [Mr.] J is
released to perform all duties as a Firefighter.” (Id.). As
Dr. Ackerman continued treating Mr. J, he sent further letters
clearing Mr. J in February and March of 2015. (Mulloney Dep.
Doc. # 96 at 137, 139).
Also in November of 2014, the then-director of Risk
explained Mr. J’s situation to him. (Mulloney Dep. Doc. # 96
at 69:19-25). He emailed Mulloney and King asking them to
prepare “a detailed chronology with medical records and notes
of [their] conversations with HR” and stating that he needed
“to discuss the pre placement physical examination process
with [Baker-Buford].” (King. Dep. Doc. # 100 at 309). Kushner
candidates for employment should send their medical records
directly to Employee Health Services, rather than to the EOC,
clearance is received from Employee Health. (King. Dep. Doc.
# 100 at 309).
explained that she needed to see him personally to make that
determination. (King Dep. Doc. # 100 at 338). On November 14,
2014, King called Baker-Buford to notify her that King would
be performing a fitness for duty evaluation for Mr. J. (Id.).
Baker-Buford refused, stating that “it would be inappropriate
for [King] to see Mr. J as he had already received medical
clearance from his treating physician and that he would not
be [undergoing] any further evaluation by [King].” (Id.).
“[i]n fifteen years, the County had never prevented [King]
from performing [her] job responsibilities.” (King Aff. Doc.
# 116-4 at ¶ 15).
After that, in a December 1, 2014 email, Kushner asked
King to “review the medical records regarding Mr. J and render
an opinion on whether or not he may perform the duties of a
firefighter” and to provide her “medical opinion as to whether
Mr. J completed his physical intake questionnaire accurately
given the medical history he provided” to other providers.
(King Dep. Doc. # 100 at 310). King had never before been
potentially false information.” (King Aff. Doc. # 116-4 at ¶
16). Still, King acknowledged that she needed to have “a
comfort level” with the accuracy of an applicant’s medical
history to make her fitness for duty determinations and that
an inaccurate history is “certainly something [she] take[s]
into consideration.” (King Dep. Doc. # 100 at 129:24-130:9).
King also stated that, if she discovered inconsistencies or
falsification of medical records while making a fitness for
certainly notify the employer.” (Id. at 130:18-25).
On December 10, 2014, King completed her records review
specialist or pulmonologist should give a second opinion,
“given the contentious nature of this case.” (King Dep. Doc.
# 100 at 338). King noted “multiple inconsistencies reported
to various medical providers by [Mr.] J, specifically false
information regarding past pulmonary conditions.” (King Aff.
Doc. # 116-4 at ¶ 18).
Kushner then told Baker-Buford that he wanted a second
opinion from another pulmonologist, Dr. McCluskey, about Mr.
J. (King Dep. Doc. # 100 at 291). Baker-Buford wrote back
that she was “fine with it, if [the County had] done so with
other employees” but was concerned because Mr. J had already
gone to a pulmonologist and been cleared, so the County
“shouldn’t keep making him jump through hoops.” (Id.). After
the appointment with Dr. McCluskey was scheduled by Risk
reschedule the appointment so that Mr. J would not have to
miss class, as trainees are only allowed to miss three days
of class total. (King Aff. Doc. # 116-4 at ¶ 27; Baker-Buford
Aff. Doc. # 109 at ¶ 19). The appointment was rescheduled for
February 6. (Baker-Buford Aff. Doc. # 109 at ¶ 19).
In February of 2015, County Manager Freeman and Deputy
County Manager Thomas had a meeting with Kushner and BakerBuford about the confusion regarding the medical clearance
process raised by Mr. J’s situation. (Freeman Aff. Doc. # 107
at ¶ 8). Freeman learned that Mr. J had been an employee for
over a year, had medical clearance to enter the EMT training
providers, but had never been cleared by King. (Id.). Kushner
individual should be able to choose which specialist he sees
if King decided a second opinion was needed. (Id.; Freeman
Dep. Doc. # 85 at 88:4-91:13; Kushner Dep. Doc. # 89 at 18:820:3). Freeman was frustrated that the issue was being brought
to him a year later and “directed [Kushner] and [Baker-Buford]
to work together and propose a better practice for both of
their departments to follow, so that this situation would not
repeat itself.” (Freeman Aff. Doc. # 107 at ¶ 8; Freeman Dep.
Doc. # 85 at 89:11-90:14).
determination was sufficient to medically clear a candidate
for employment. In a March 2, 2015 email, Kushner emphasized
that King had discretion in choosing the specialist to which
a candidate was referred for further testing, rather than
letting the candidate choose from a panel of options. (King
Dep. Doc. # 100 at 312). Even if the candidate’s personal
physician for Employee Health Services should make the final
“determin[ation] whether or not the candidate or employee may
perform the essential functions of the job with or without
In response, Baker-Buford stated that she knew King did
not currently give employees or job candidates a panel of
three specialists to choose from, if King required a second
personal physician or specialist. (King Aff. Doc. # 116-4 at
“implement [those] changes to the process,” which Kushner did
not do. (Id.). Furthermore, Baker-Buford told Kushner that
“County Management” notified her that “once the employee is
cleared by his/her [personal care physician] or specialist,
that is it” and the employee would not be seen by “any other
physician at the County’s expense,” and the County would hire
the applicant. (Id. at 76, ¶ 31). Kushner responded that he
disagreed with the County “hir[ing] an employee based upon
the recommendation of a personal physician rather than the
county’s assigned occupational medicine doctor” and that the
County management was “making an error in judgment.” (Id. at
Around this time, in the middle of March, King was told
by Dr. McCluskey that the February appointment with Mr. J had
been cancelled by a woman who referred to Mr. J as “her
represented by an attorney. (King Aff. Doc. # 116-4 at ¶ 39).
With Risk Management’s help, King did a public records search
to determine who called Dr. McCluskey. (Id.). The search
revealed that Dr. McCluskey had been called by Sharon Mathis’s
office phone — Mathis is an employee of Baker-Buford in the
County’s EOC. (Id.). King “[found] it very unusual that
someone from the County would be calling on behalf of an
employee to make determinations about whether or not he’s
going to be at an appointment or not” and another example of
the high involvement the EOC and HR departments had displayed
in Mr. J’s case. (King Dep. Doc. # 100 at 107:23-108:8).
As Mathis later explained to Freeman and testified in
her deposition, she had not cancelled Mr. J’s appointment at
all, nor had she represented herself to Dr. McCluskey as Mr.
J’s attorney. (Mathis Aff. Doc. # 111 at ¶¶ 20-21; Freeman
Aff. Doc. # 107 at ¶¶ 13-14). Rather, Mathis had called Mr.
J to remind him of the appointment scheduled for the next
day, but was told by Mr. J that he was in the hospital with
food poisoning. (Mathis Aff. Doc. # 111 at ¶ 18). In order to
give Mr. J a telephone number so he could rearrange the
appointment, Mathis searched the internet for Dr. McCluskey’s
office number. (Id. at ¶¶ 19, 22). Apparently Dr. McCluskey
had changed offices numerous times and different telephone
numbers were listed for him. (Id. at ¶ 19). Mathis called
various incorrect numbers for Dr. McCluskey’s office, and,
after eventually reaching Dr. McCluskey himself, told him
only that she “was calling on behalf of Mr. J and was
confirming Dr. McCluskey’s number.” (Id.). Freeman “concluded
that [Mathis] had not represented herself as Mr. J’s attorney
and that the records corroborated her story.” (Freeman Aff.
Doc. # 107 at ¶ 14).
pulmonologist Dr. Ackerman issued another clearance for Mr.
J, King faxed Dr. Ackerman a letter “outlining [her] position
with the [County] as well as [her] concerns regarding [Mr.
J]” and “inform[ing] him of the NFPA 1582 medical guidelines
for physicians evaluating firefighters.” (King Dep. Doc. #
100 at 339). Dr. Ackerman called King that day, admitted that
he was unaware of the NFPA 1582 guidelines, and “concurred
immediately that Mr. J did not meet” those guidelines. (Id.).
But Dr. Ackerman did not issue a revocation of his previous
clearance at that time. The next day, King sent a certified
letter to Mr. J “apprising him of [her] conversation with Dr.
essential functions of the job of a firefighter.” (Id.).
After her conversation with Dr. Ackerman, King emailed
Baker-Buford to tell her about Dr. Ackerman’s change in
recommendation regarding [Mr. J]” soon. (Id. at 316). BakerBuford responded that it was important for King to treat Mr.
J the same as other employees and that the County should not
subject him “to additional requirements or barriers.” (Id.).
Baker-Buford attached a copy of Dr. Ackerman’s March 10, 2015
clearance letter — the last written opinion of Dr. Ackerman’s
on file. (Id.). King was “once again astonished” and “shocked”
by Baker-Buford’s conduct, specifically her possession of “an
employee’s medical records, circumventing the Employee Health
stepped outside the boundaries of her duties on multiple
occasions.” (King Aff. Doc. # 116-4 at ¶ 38). King “notified
 Kushner of  Baker-Buford’s email and [her] frustration
with what [King] perceived was gross interference with [her]
job responsibilities.” (Id.).
On March 31, 2015, King had a meeting with Thomas. During
the meeting, King communicated her public safety concerns
regarding Mr. J potentially working as a firefighter, as well
as her concern that “the County could face exposure for
unprecedented involvement in the medical clearance process.”
(Id. at ¶ 40). King “also reported to  Thomas that Dr.
McCluskey received a call from  Mathis’ desk during which
the caller indicated that [Mr.] J was her client.” (Id.).
Ackerman on April 1, 2015, to which she attached an official
medical clearance form for Dr. Ackerman’s signature. (King
Dep. Doc. # 100 at 339). Dr. Ackerman signed the form the
next day, noting that Mr. J was not medically qualified for
firefighter training. (Id.; Mulloney Dep. Doc. # 96 at 141).
King sent the form to Mulloney and had Mulloney forward it to
the firefighter academy. (Mulloney Dep. Doc. # 96 at 142143). Mr. J was dismissed from firefighter training on April
6, 2015, as a result. (King Aff. Doc. # 116-4 at ¶ 41).
Although he had been removed from firefighter training,
King was asked her opinion “as to whether or not [Mr.] J could
work as an EMT without firefighting responsibilities” on
April 21, 2015. (King Aff. Doc. # 116-4 at ¶ 44). King
determined that an outside physician, Dr. Gupta, should make
situation. (Id.). Mr. J had his appointment with Dr. Gupta on
June 24, 2015. (Id. at ¶ 46). Based on Mr. J’s results, Dr.
Gupta recommended that Mr. J “complete a physical agility
test with a pulse oximeter in place” before a final fitness
determination be made. (Id.).
On June 25, 2015, King provided a letter to Kushner
outlining her recommendation that Mr. J undergo the physical
agility test again. (King Dep. Doc. # 100 at 324, 341). She
also conveyed her “concerns regarding his credibility as a
patient and ability to provide a truthful account of his
current medical condition and symptoms,” based on additional
inconsistencies with the medical history Mr. J reported to
Dr. Gupta. (Id.). She wrote:
If it is the determination of County officials that
in spite of multiple self-reported medical history
inconsistencies as well as untruthful information
provided to . . . Dr. Gupta, they wish to continue
with further testing, then it is my recommendation
to proceed with the requirements set forth in Dr.
(Id. at 324). She concluded that she was “unable to provide
medical clearance without this additional testing, therefore,
the patient continues to remain medically unqualified for
this position pending successful completion of same.” (Id.).
Shortly after issuing her letter, King was contacted by
another Deputy County Manager, Gary Hester, who told her “that
under no circumstances was the County going to require any
additional testing of [Mr.] J” and that she “was putting the
County at risk for a disability action by [Mr.] J.” (Id. at
341; King Aff. Doc. # 116-4 at ¶ 49). King felt that Hester
“was trying to intimidate [her]” and became hostile when she
“refused to acquiesce.” (King Aff. Doc. # 116-4 at ¶ 49).
Freeman ultimately decided to place Mr. J in a nonfirefighter EMT position with the County. (Freeman Aff. Doc.
# 107 at ¶ 10). At this time, Mr. J was already a state and
nationally certified EMT, and had “been medically cleared to
enter the Polk State College EMT program.” (Hester Aff. Doc.
# 110 at ¶ 7; Freeman Aff. Doc. # 107 at ¶ 10). Hester had
spoken with “the training academy director, who confirmed 
that Mr. J was fully capable of performing the job duties and
training.” (Hester Aff. Doc. # 110 at ¶ 7). Hester also
related to Freeman that EMTs are never required to take the
physical agility test with a pulse oximeter on their finger,
as suggested by Dr. Gupta, and that such test likely could
not even be taken while wearing a pulse oximeter. (Id. at ¶
6; Freeman Aff. Doc. # 107 at ¶ 11). Hester and the County’s
labor attorney were also concerned about requiring Mr. J to
retake the physical agility test because they “had never
previously passed.” (Hester Aff. Doc. # 110 at ¶ 5).
According to Freeman, the irregularities with Mr. J’s
medical-clearance and records were not his sole concern in
deciding whether Mr. J should work as an EMT. The County
Freeman that Mr. J, as a County employee, was entitled to a
Disabilities Act. (Freeman Aff. Doc. # 107 at ¶¶ 9-12; King
Dep. Doc. # 100 at 151:23-153:8). Essentially, although Mr.
J had never been approved for employment by King, Mr. J had
been an employee for almost a year and was owed all the
privileges and protections enjoyed by other County employees,
including reasonable accommodations. (Craig Aff. Doc. # 112
at ¶ 9). Freeman took King’s medical opinion into account by
removing Mr. J from firefighter training, and instead hiring
him as an EMT. (Freeman Dep. Doc. # 85 at 53:6-25).
Later, King and Freeman had a meeting on September 11,
2015. (Freeman Aff. Doc. # 107 at ¶ 15). King described the
purpose of the meeting as “to discuss the public safety
concerns [she] had regarding Mr. J as well as [the] oddities
of involvement” of Baker-Buford. (King Dep. Doc. # 100 at
341). In contrast, Freeman considered the meeting to be a
“debriefing” of the events, as the decision had already been
made months before to retain Mr. J in an EMT position.
(Freeman Dep. Doc. # 85 at 66:18-67:4; Freeman Aff. Doc. #
107 at ¶ 15). During the meeting, King insisted that Mr. J
was not qualified to be a firefighter or EMT, based on his
test results and inconsistent medical history, and trumpeted
firefighter or EMT would pose. (King Dep. Doc. # 100 at
149:13-21, 341). Although Freeman does not remember King
lawsuits by white firefighter trainees who had been medically
disqualified. (Id. at 151:6-16, 341; Freeman Dep. Doc. # 85
at 73:13-23, 75:11-23).
During the meeting, Freeman told King: “We just needed
your help on this, Dr. King.” (Freeman Dep. Doc. # 85 at
69:22-70:7; King Aff. Doc. # 116-4 at ¶ 53). Freeman contends
his statement “was not meant to imply anything other than
what [he] was trying to accomplish” — that the County “needed
help from all departments in improving communication, finding
a suitable accommodation for that employee, and finding ways
to make sure this situation does not reoccur.” (Freeman Aff.
Doc. # 107 at ¶ 16). Freeman states he was not frustrated
because King disqualified Mr. J as a firefighter or EMT, but
because he felt King’s “participation should have been more
constructive in understanding the situation and helping us
medically find an accommodation instead of seeming to want to
advocate for [Mr. J’s] dismissal.” (Freeman Dep. Doc. # 85 at
94:7-10, 52:14-53:1, 69:22-70:7, 98:3-99:25).
In response to Freeman’s comment, King stated that she
would not compromise her medical judgment. (King Dep. Doc. #
100 at 341). Freeman told King that he would never ask her to
compromise her medical judgment and did not want her to do
so. (Id.; Freeman Dep. Doc. # 85 at 70:8-21). The meeting
then ended cordially. (King Dep. Doc. # 100 at 150:22-24).
Request For Proposals and King’s Resignation
County Attorney Michael Craig explains in his affidavit
that he “determined in 2013 that all contracts for county
procurement process.” (Craig Aff. Doc. # 112 at ¶ 4). In
accordance with this determination, a different contract —
the contract for the County’s emergency medical services
director — was offered out through a Request for Proposals
(RFP) in 2014. (Id.). Craig avers that, “[a]lthough  King’s
contract did not go out for the competitive procurement
process until it expired in 2015, the decision to do so was
made in 2013” — long before King’s involvement in the Mr. J
In an email chain, with the subject line “Nancy Davis
King,” from December of 2013, Mulloney and Kushner argued
that King’s contract would not need to be put out through an
RFP because of a state statute exempting medical director
services from the competitive bidding process. (Id. at 5-6).
An attorney in the County Attorney’s office responded that
governments like the County — and medical services were not
exempt under the County procurement ordinance that controlled
the decision. (Id. at 5).
In September of 2015, at the direction of Thomas, Kushner
informed King that her contract would be put through the RFP
process, rather than being renewed as it had been before.
(King Dep. Doc. # 100 at 341; King Aff. Doc. # 116-4 at ¶
52). Kushner, who had disagreed with the County Attorney about
the necessity of the RFP process, told King that “County
Management was not happy with how [King] handled the [Mr.] J
situation.” (King Aff. Doc. # 116-4 at ¶ 52; King Dep. Doc.
# 100 at 157:15-23). Kushner also asked King to continue
working past the September 30 expiration date of her contract
while the RFP process was ongoing, to which King agreed. (King
Aff. Doc. # 116-4 at ¶ 52).
process by King and the University of South Florida, which
also provided the County services for its indigent health
care program. (Thomas Dep. Doc. # 99 at 9:17-21; 33:3-9).
Thomas had earlier requested that Kushner reach out to the
medical director from USF to see if USF would be interested
in submitting an RFP proposal. (King Aff. Doc. # 116-4 at ¶
54; King Dep. Doc. # 100 at 178:2-15). Kushner testified that
one of the reasons he was asked to contact USF was that the
County “was looking to see if [they] could consolidate some
of the job responsibilities” for the various medical director
(Kushner Dep. Doc. # 89 at 67:12-21; Thomas Dep. Doc. # 99 at
In February of 2016, the selection committee met and
interview, Thomas asked King a question related to Mr. J’s
situation that King considered inappropriate. Thomas asked:
“Based upon recent difference of expectations with the County
Manager’s Office and that whole situation of care, what would
you do differently or how would you handle that if we were
starting in the beginning?” (King Aff. Doc. # 116-4 at ¶ 60;
King Dep. Doc. # 100 at 180:20-181:9). King responded that
she “would not have done anything different” and, in the
future, would demand access to the County’s labor attorney to
discuss her concerns. (King Aff. Doc. # 116-4 at ¶ 61).
member of the selection committee, including Thomas, ranked
King’s proposal higher than USF’s. (Thomas Aff. Doc. # 113 at
selection committee had to “collectively decide if they would
authorize staff to enter into Contract Negotiations with the
highest-ranked Proposer.” (King Dep. Doc. # 100 at 355). But
the meeting minutes taken by the committee’s facilitator,
Tammy Winton-Spearman, state that the selection committee
“collectively decided not to make a recommendation to the
Board at this time.” (Doc. # 102 at 139). Some members of the
committee do not recall taking a vote on whether to recommend
a proposal to the Board at all or assumed that King’s proposal
would be sent to the Board because it was ranked highest.
(Fulse Dep. Doc. # 87 at 20:20-21:11; McMicken Dep. Doc. # 95
at 17:5-18:7; Page Dep. Doc. # 97 at 7:13-9:20).
taken, but that there was no consensus among the committee
members that they were going to make any recommendation to
the Board that day. (Winton-Spearman Dep. Doc. # 98 at 13:115,
Thomas stated that she was not ready to make a recommendation
and the other committee members “chimed in.” (Id. at 31:410, 32:11-17). Regardless, no committee member stated that
the committee had agreed to recommend King’s proposal to the
Board, but were overridden. Although King’s proposal was not
recommended to the Board at that meeting, it had not been
rejected and the selection committee “could reconvene at a
later time, if it chose to do so, because the RFP allowed the
proposals to remain open and irrevocable for 90 days.” (Thomas
Aff. Doc. # 113 at ¶ 15; Winton-Spearman Dep. Doc. # 98 at
unusual for selection committees not to immediately send a
recommendation to the Board for the highest-ranked proposal.
(Winton-Spearman Dep. Doc. # 98 at 21:23-25, 22:6-9; Thomas
Aff. Doc. # 113 at ¶ 19). Another member of the selection
committee, Lance Fulse, also stated that it was not surprising
to him that King did not get the contract because he had been
on other RFP committees in which the highest-ranking proposal
was not ultimately awarded the contract. (Fulse Dep. Doc. #
87 at 15:7-25).
Indeed, the County was free to explore other options and
the highest-ranking proposal was not entitled to be awarded
the contract. (Winton-Spearman Dep. Doc. # 98 at 34:18-36:5).
Here, as it had been discussing for years, the County was
“considering whether to consolidate [the separate positions
of occupational health director and medical director], or
not” and “wanted time to evaluate all possible options for
providing the best quality at the best cost.” (Thomas Aff.
Doc. # 113 at ¶ 16; Freeman Aff. Doc. # 107 at ¶ 22).
But, King — having never been through the RFP process in
her 15 years with the County — interpreted the selection
committee’s failure to immediately recommend her proposal to
the Board differently. As she explained, King felt she “had
decisively won” the RFP because hers was the highest ranking
proposal and that the proposal should have been recommended
to the Board then. (King Aff. Doc. # 116-4 at ¶ 67; King Dep.
Doc. # 100 at 200:18-201:17). Adding to King’s belief that
denial of her proposal was inevitable, King learned that
someone from the County had spoken to Dr. Aguilera about
providing some services covered by the RFP and that worker’s
compensation services covered by the RFP had begun being
provided by a different medical provider. (King Dep. Doc. #
100 at 188:19-190:6; King Aff. Doc. # 116-4 at ¶ 81).
King had been working under an extension of her contract
throughout this process. The Board of County Commissioners
had approved an official extension of King’s contract through
April 30, 2016. (King Dep. Doc. # 100 at 378). But, in a
February 17, 2016 email to Mulloney, King acknowledged that
she had not signed the extension contract. (Id. at 202:1-9,
forwarded the proposed extension contract to her attorney.
(Id. at 379).
Then, on March 1, 2016, King emailed Mulloney stating
that she was ending her contract with the County and her last
day would be March 31, 2016. (Id. at 376). But King also
stated she would be willing to continue her services under
the outstanding RFP proposal. (Id.; King Aff. Doc. # 116-4 at
¶ 67). Rather than conduct and complete contract negotiations
with King in the 30-day period before King stopped working,
the County’s Procurement Director, Fran McAskill, rejected
both RFP proposals on March 24, 2016. (McAskill Dep. Doc. #
101 at 45:23-46:24; Doc. # 102 at 137-38; King Aff. Doc. #
116-4 at ¶ 69).
Freeman frames the rejection of the proposals as a
response to King’s termination of her contract:
A decision was never made that the County would not
enter into contract negotiations with Dr. King. We
were looking at a new plan for occupational
medicine and Dr. King was potentially a part of
that. Then she abruptly terminated her contract,
and we had to work quickly to explore all options.
(Freeman Aff. Doc. # 107 at ¶ 21). Thomas also emphasized
County needed to find a replacement for King quickly, in light
of King’s resignation. (Thomas Aff. Doc. # 113 at ¶ 17;
McAskill Dep. Doc. # 101 at 46:10-24, 120:9-22).
King maintains that, although the procurement director
may reject a bid, McAskill did not have any authority to
reject an RFP, as McAskill did. (King Aff. Doc. # 116-4 at ¶
69). In contrast, McAskill asserts she had such authority
under the County’s procurement ordinance. (McAskill Dep. Doc.
# 101 at 56:4-19, 67:6-11). King did not protest the RFP
recommended to the Board or when her proposal was ultimately
rejected. (King Dep. Doc. # 100 at 198:3-5). King states she
did not protest through the RFP’s formal procedures because
she believed she could not. The protest provision specified
that protests could be submitted “with respect to the initial
award of any bid or request for proposal, suspension or
debarment,” none of which specifically occurred. (Id. at
198:3-13; King Aff. Doc. # 116-4 at ¶ 69).
Nevertheless, after her RFP proposal was rejected, King
concerns. According to King, one County Commissioner, Ed
Smith, told her “that the RFP was put out because the County
was embarrassed” about the “whole [Mr.] J situation.” (King
Dep. Doc. # 100 at 159:25-160:21). This series of events
instilled in King a “fervent belief that the County failed to
renew [her] contract . . . in retaliation for raising both
medically unqualified firefighter trainee applicant.” (King
Aff. Doc. # 116-4 at ¶ 78). Additionally, King believes her
“unwillingness to find [Mr. J] medically fit as an EMT without
properly evaluating his pulmonary condition was deemed as
recalcitrant and obstructive by County management.” (Id. at
Ultimately, in August of 2016, the County entered a
“piggyback” agreement for another health provider to provide
occupational health services through that provider’s preexisting
possibility that the County had previously been discussing.
(Thomas Aff. Doc. # 113 at ¶ 18; Freeman Aff. Doc. # 107 at
¶ 22; McAskill Dep. Doc. # 101 at 11:7-12:9). “Piggybacking”
entity’s contract, as long as it was awarded by a governing
body, a board or a commission or a council,” without having
to go through a separate competitive procurement process for
the added services. (Winton-Spearman Dep. Doc. # 98 at 35:1936:1).
services to be consolidated in the same provider.” (Thomas
Aff. Doc. # 113 at ¶ 18).
academy as a regular trainee outside of the diversity program.
(Mr. J Dep. Doc. # 92 at 7:17-8:6, 70:19-71:7). He was
medically cleared and has been working as a firefighter in
Polk County since November of 2016. (Id. at 7:17-8:6, 70:1923, 72:10-18).
Plaintiffs initiated this action on September 15, 2016,
asserting claims for First Amendment Retaliation and for
Defendants moved to dismiss the Amended Complaint (Doc. ##
34-37), and the Court granted the motions. The Court held
concerning” Mr. J’s medical clearance was employee speech and
could not support her First Amendment retaliation claims.
(Doc. # 42 at 11).
After King filed her Second Amended Complaint (Doc. #
43), Defendants again moved to dismiss. (Doc. ## 48-51). The
Court denied the motions and held that some of King’s speech,
specifically her speech “regarding the possibility of reverse
discrimination lawsuits and the falsification of records by
Mr. J,” plausibly was citizen speech on a matter of public
concern. (Doc. # 58 at 14-16).
Defendants have now moved for summary judgment (Doc. ##
103-106), and the Motions are fully briefed. (Doc. ## 117119, 122, 130-33).
Summary Judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260
(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). “When a moving party has discharged its
pleadings,’ and by its own affidavits, or by ‘depositions,
designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988)(citing Augusta Iron & Steel
Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856 (11th
Cir. 1988)). However, if the non-movant’s response consists
required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.
First Amendment Retaliation Claim
In Counts III and IV of the Second Amended Complaint,
King asserts First Amendment retaliation claims against the
individual Defendants and the County. (Doc. # 43). Both of
King’s First Amendment claims are governed by a four-stage
analysis to determine whether King’s speech is protected.
Moss v. City of Pembroke Pines, 782 F.3d 613, 617 (11th Cir.
2015)(citing Carter v. City of Melbourne, Fla., 731 F.3d 1161,
1168 (11th Cir. 2013)). The first step is for the Court to
“consider whether [King’s] speech was made as a citizen and
whether it implicated ‘a matter of public concern.’” Id.
(quoting Rankin v. McPherson, 483 U.S. 378, 384 (1987)).
If this threshold requirement is met the Court will “then
weigh [King’s] First Amendment interests against the City’s
efficiency of the public services it performs through its
employees.’” Id. at 618 (quoting Rankin, 483 U.S. at 384);
see also Pickering v. Bd. of Educ. of Twp. High Sch. Dist.
205, Will Cty., 391 U.S. 563 (1968). These first two questions
are “questions of law that are decided by the Court.” Moss,
at 618 (citing Battle v. Bd. of Regents for Ga., 468 F.3d
755, 760 (11th Cir. 2006)).
“If [the employee’s] speech is so protected, the third
stage of the analysis requires Plaintiff to show that it was
a substantial motivating factor in [her] termination.” Id. at
618. If the employee does so, the burden shifts to the
employer “to show by a preponderance of the evidence that it
would have made the same decision even in the absence of the
protected speech.” Boyce v. Andrew, 510 F.3d 1333, 1343 (11th
Defendants argue King’s speech was unprotected employee
speech and that no adverse action causally-connected to that
speech was taken against King. Even if an adverse action was
taken, Defendants insist the same decision would have been
made regardless of King’s speech. In the event the Court finds
that King was retaliated against because of protected speech,
qualified immunity. The Court will address each argument in
King’s Speech is Not Protected by the First
In its Order denying Defendants’ Motions to Dismiss the
Second Amended Complaint, the Court held that King’s speech
medical clearance (even if cast in the guise of “public safety
concerns”) was employee speech and could not support her First
Amendment retaliation claims. (Doc. # 58 at 14). But the Court
also held that King’s speech “regarding the possibility of
records by Mr. J” plausibly was citizen speech on a matter of
public concern. (Id. at 14-16). Now, with the benefit of
discovery, the Court will again address whether King’s speech
regarding potential reverse discrimination liability and the
First, Defendants argue that King’s speech was, as a
matter of law, not citizen speech on a matter of public
concern. They argue King spoke as an employee because her
statements were made pursuant to her role as occupational
health director tasked with making recommendations on whether
applicants are medically qualified. (Doc. # 105 at 5-7).
Furthermore, Defendants argue that King did not speak on a
matter of public concern. According to Defendants, “the main
thrust of [King’s] voiced concern was a private grievance
because she was trying to get [Mr.] J dismissed to purport
with her own medical determination and frustration at what
she perceived to be interference in her realm.” (Doc. # 106
The determination of whether an employee spoke as a
citizen concerns whether the speech “owes its existence to a
public employee’s professional responsibilities.” Garcetti v.
Ceballos, 547 U.S. 410, 421-22 (2006). However, the phrase
“owes its existence to . . . must be read narrowly to
encompass speech that an employee made in accordance with or
employment, not merely speech that concerns the ordinary
responsibilities of her employment.” Alves v. Bd. of Regents
of the Univ. Sys. of Ga., 804 F.3d 1149, 1162 (11th Cir.
2015). Thus, “the mere fact that a citizen’s speech concerns
information acquired by virtue of his public employment does
not transform that speech into employee — rather than citizen
— speech.” Lane v. Franks, 134 S. Ct. 2369, 2379 (2014).
Instead, the Court considers relevant practical factors
including “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.” Alves, 804 F.3d at
1161. However, these factors are not dispositive. Id. An
employee’s job duties are interpreted practically because
courts recognize that “[f]ormal job descriptions often bear
little resemblance to the duties an employee actually is
expected to perform.” Garcetti, 547 U.S. at 424-25. And, as
the Eleventh Circuit has explained,
[W]e do not agree that speech regarding conduct
responsibilities is not itself ordinarily within
the scope of the employee’s duties. Implicit in
Appellants’ duty to perform their roles as
psychologists, committee members, supervisors, and
coordinators is the duty to inform, as Appellants
put it, “those that would appear to have the most
need to know and best opportunity to investigate
Alves, 804 F.3d at 1165.
Regarding the public concern prong, an employee’s speech
involves a matter of public concern if that speech can “be
fairly considered as relating to any matter of political,
social, or other concern to the community.” Cook v. Gwinnett
Cty. Sch. Dist., 414 F.3d 1313, 1319 (11th Cir. 2005)(quoting
Connick v. Myers, 461 U.S. 138, 146 (1983)). Still, “the
relevant inquiry is not whether the public would be interested
in the topic of the speech at issue but rather is ‘whether
the purpose of [the plaintiff’s] speech was to raise issues
of public concern.’” Maggio v. Sipple, 211 F.3d 1346, 1353
(11th Cir. 2000)(quoting Morgan v. Ford, 6 F.3d 750, 754 (11th
“In determining whether an employee’s speech touched on
a matter of public concern, [courts] look to the content,
form, and context of a given statement, as revealed by the
whole record,” and determine “whether the ‘main thrust’ of
the speech in question is essentially public in nature or
private.” Mitchell v. Hillsborough Cty., 468 F.3d 1276, 1283
factor is dispositive, [courts] look to: (1) ‘whether the
speech was communicated to the public at large or privately
to an individual;’ and (2) ‘what the speaker’s motivation in
speaking was.’” Wilbourne v. Forsyth Cty. Sch. Dist., 306 F.
App’x 473, 477 (11th Cir. 2009)(quoting Mitchell, at 1283–
“Although ‘content’ is the most important factor in
assessing whether a particular type of speech is a matter of
public concern, when context and motivation indicate that
speech is private, speech that otherwise would be considered
Wilbourne, 306 F. App’x at 477 (quoting Mitchell, at 1284).
Indeed, “[w]hen there is a personal element to the speech,
complaints of wrongdoing within a public agency may not
constitute speech on a matter of public concern.” Stanley v.
City of Dalton, Ga., 219 F.3d 1280, 1289 n.13 (11th Cir.
discrimination lawsuits and Mr. J’s alleged falsification of
medical records, the Court determines King did not speak as
a citizen on a matter of public concern. King does not allege
falsification of records or possible reverse discrimination
at a city council meeting, or made her concerns public in any
other way. Cf. Boyce, 510 F.3d at 1344-46 (finding caseworkers
“complaints, although more often in a written format as a
letter or memorandum to a supervisor, were not sent to an
outside entity”). Although this fact is not dispositive, it
supports that King was speaking as an employee, rather than
King spoke privately to Thomas and Freeman, within the
County’s management. In her conversations with them, King
expressed her belief that Mr. J had provided inaccurate
medical history information to Employee Health Services and
outside medical providers. King reached this conclusion after
she was asked to review Mr. J’s medical records and note any
Kushner. Although King had never been asked to review medical
questionnaires for inconsistencies before, King was asked to
give her “medical opinion” as to the accuracy of Mr. J’s
questionnaires in the same email in which she was asked to
“render an opinion on whether or not he may perform the duties
of a firefighter.” (King Dep. Doc. # 100 at 310).
Thus, King was asked to review the accuracy of the
director. See Berry v. Coleman, 172 F. App’x 929, 932 (11th
Cir. 2006)(“[I]n this case Berry prepared the memorandum in
response to an order from his employer and not on his own
something in which the public might have an interest, Berry
spoke through it solely in his position as an employee.”);
see also Phillips v. City of Dawsonville, 499 F.3d 1239, 1242–
43 (11th Cir. 2007)(finding that, although the plaintiff city
litigation expenses and liability for the city was not part
of her “enumerated duties,” plaintiff spoke “pursuant to
[her] official duties”).
Additionally, in her deposition, King agreed that she
needed to have “a comfort level” with the accuracy of an
applicant’s medical history to make her fitness for duty
determinations and that an inaccurate history is “certainly
something [she] take[s] into consideration.” (King Dep. Doc.
# 100 at 129:24-130:9). And, in her June of 2015 letter, King
discussed her “concerns regarding [Mr. J’s] credibility as a
patient and ability to provide a truthful account of his
current medical condition and symptoms” as part of the reason
why she would not medically clear Mr. J unless he took an
additional test. (Id. at 324). Thus, Mr. J’s medical history
was a consideration in King’s performance of her job duties
as occupational health director. Even though King continued
to speak about the perceived falsification of Mr. J’s medical
records after the decision was made to hire him as an EMT,
King’s speech was made in accordance with her ordinary duties
of making fitness for duty determinations.
As for the public concern prong, the inconsistencies in
Mr. J’s medical questionnaires served to bolster King’s preexisting argument made in her capacity as occupational health
director — that Mr. J should be dismissed. True, speech
regarding public safety or misconduct by government employees
Gwinnett Cty. Sch. Dist., 414 F.3d 1313, 1319 (11th Cir.
2005)(“In various contexts, we have made it clear that speech
relating to the safety of the public involves a matter of
reference to safety issues or misconduct, King was motivated
by her frustration in her job. See Myles v. Richmond Cty. Bd.
of Educ., 267 F. App’x 898, 900 (11th Cir. 2008)(“Though her
speech did touch on a matter of public interest, the true
purpose behind Appellant’s various complaints was not to
raise an issue of public concern, but rather to further her
own private interest in improving her employment position.”).
In her affidavit, King wrote that, whenever she had
disqualified him in the past, “the County did not hire that
individual for that position.” (King Aff. Doc. # 116-4 at ¶
30). According to King, “[i]n fifteen years, the County never
(Id.). Defendants did not show the same deference to King in
Mr. J’s case, much to King’s chagrin. In context, the main
clearances for Mr. J should be ignored, not only because King
disagreed medically, but also because Mr. J provided them
2005)(holding that plaintiff employees’ expression of ethical
concerns with the operation of clinics did not address a
matter of public concern because “the plaintiffs’ objections
did not so much center on patient welfare as on the internal
plaintiffs’ roles within the clinics”).
discrimination was not on a matter of public concern. Again,
King did not address her concerns to the public — only within
the County management. And, within her conversations with
concern was not the main focus of King’s complaints. King’s
personal notes taken after her meetings with Thomas and
Freeman do not mention possible discrimination lawsuits by
medically disqualified white applicants. (King. Dep. Doc. #
100 at 151:6-16, 338-41). Rather, during these meetings, King
discussed the safety concern she felt was created by not
heeding her professional advice and allowing someone she had
not medically qualified to work as an EMT or firefighter.
King emphasized HR’s “unprecedented involvement,” including
Baker-Buford’s advising King to treat Mr. J fairly and her
clearances without requiring clearance from King. (Id. at
141:23-143:12, 149:22-150:1). King considered Baker-Buford’s
responsibilities.” (King Aff. Doc. # 116-4 at ¶ 38). And,
“shocked” that Baker-Buford had implied King was treating Mr.
J unfairly, King retorted that Baker-Buford’s treatment of
would-be firefighters. (Id. at ¶¶ 38, 40)
failing to follow “normal” procedures – i.e. the County
choosing not to adopt King’s recommendation as to Mr. J’s
fitness, as it usually did. (Doc. # 106 at 20); see also
Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993)(internal
citation omitted)(“Considering the entire record, we conclude
herself and a co-worker] as an employee in order to improve
her work environment. While she did speak about her coworker’s plight, which contains a public concern aspect, the
main thrust of her speech took the form of a private employee
grievance.”). This is a personal grievance. See Myles, 267 F.
App’x at 900 (noting that while plaintiff’s complaint that
unqualified people were being appointed to positions in the
school district touched on an important matter of public
interest, plaintiff “voiced her concerns as a disgruntled
Therefore, King’s speech is not protected by the First
Amendment. The Court need not determine under the Pickering
balancing test whether Defendants’ interests in efficient
operation of the County outweighed King’s interest in her
Proposals are not Causally Connected to King’s
Even if King’s speech were protected, Defendants argue
that King cannot show that any adverse action was taken
against her because of that speech. In contrast, King insists
that an adverse action was taken because of her speech when
the County “notified [King] that it would not renew her
contract, and intended to submit her contract for RFP.” (Doc.
# 122 at 10). Additionally, King implies that the failure to
award her a new contract under the RFP was another adverse
action. (Id.; Doc. # 117 at 17).
motivated to take the adverse action because of the protected
speech.” Castle v. Appalachian Tech. Coll., 631 F.3d 1194,
1197 (11th Cir. 2011). “However, once the plaintiff shows
that her protected conduct was a motivating factor, the burden
shifts to the defendant to show that she would have taken the
same action in the absence of the protected conduct, in which
case the defendant cannot be held liable.” Id. “In other
words, the defendants may show that retaliation was not the
Florida, 661 F. App’x 581, 585 (11th Cir. 2016)(quoting Massey
v. Johnson, 457 F.3d 711, 717 (7th Cir. 2006)). “The plaintiff
then may show that the defendants’ proffered reasons are
pretextual and that retaliatory animus was the real reason
for the adverse action.” VanDeWalle, 661 F. App’x at 585. “At
bottom, the employee must prove an improper employer motive.”
Id. (citation and internal quotation marks omitted).
King has not shown a genuine issue of material fact as
to whether her speech caused any adverse action. Defendants
insist the reason the contract was sent to RFP was a County
ordinance that Defendants believed required an RFP for King’s
position. (Doc. # 103 at 23; Doc. # 106 at 25-26). According
to Defendants, they would have put the contract through RFP
regardless of King’s speech. (Id.). Here, Defendants decided
to put all medical service provider contracts through the RFP
process, including King’s contract, because of the County
ordinance in 2013 — long before King’s speech at issue. (Craig
Aff. Doc. # 112 at ¶¶ 4-5).
King maintains that the County ordinance in question did
not apply to her contract for various reasons. (Doc. # 117 at
17). This argument misses the mark. What matters is whether
Defendants believed the County ordinance required the RFP, as
Defendants have shown. See Heffernan v. City of Paterson,
N.J., 136 S. Ct. 1412, 1418 (2016)(“In a word, it [is] the
employer’s motive, and in particular the facts as the employer
Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.
1984)(noting, in the Title VII context, that an “employer may
fire an employee for a good reason, a bad reason, a reason
based on erroneous facts, or for no reason at all, as long as
its action is not for a discriminatory reason”). Although
King stresses the proximity between her speech and the RFP’s
initiation, that does not show causation because the RFP was
contemplated since 2013. See Drago v. Jenne, 453 F.3d 1301,
1308 (11th Cir. 2006)(“[I]n a retaliation case, when an
employer contemplates an adverse employment action before an
employee engages in protected activity, temporal proximity
between the protected activity and the subsequent adverse
employment action does not suffice to show causation.”).
Additionally, King asserts that, after the RFP proposals
had been cancelled, County Commissioner Smith told her “that
the RFP was put out because the County was embarrassed” about
the “whole [Mr.] J situation.” (King Dep. Doc. # 100 at
159:25-160:21). But the opinion of a County Commissioner
uninvolved in the RFP process does not undermine the record
evidence showing that the decision was made in 2013 and does
not create a genuine issue of material fact. Even if King had
shown a prima facie case that her speech was a motivating
factor in the RFP being initiated, Defendants have shown that
they would have taken the same action regardless of King’s
speech in order to comply with the County Attorney’s advice
about complying with the ordinance.
As for the subsequent rejection of King’s RFP proposal,
even assuming King established a causal connection between
her speech and the rejection, Defendants have shown by a
preponderance of the evidence that the same decision would
have been made. Defendants contend that, regardless of King’s
speech, the County would have rejected the RFP proposals after
King’s resignation under her current contract. (Doc. # 103 at
King’s RFP proposal to the Board, it was Procurement Director
McAskill’s rejecting both RFP proposals and ending the RFP
process entirely that prevented King from being awarded a new
contract. And, Freeman, Thomas, and McAskill all described
the rejection of the RFP proposals on March 24, 2016, as a
effective March 31, 2016. (Freeman Aff. Doc. # 107 at ¶ 21;
Thomas Aff. Doc. # 113 at ¶ 17; McAskill Dep. Doc. # 101 at
King’s arguments are insufficient to show pretext. King
points out that Thomas had Kushner ask USF to participate in
the RFP process and other County employees spoke to other
vendors while the RFP was underway. (Doc. # 117 at 19). But
evidence shows that the County was considering consolidating
various medical services provided by different providers,
consolidation for years. (Kushner Dep. Doc. # 89 at 67:1221; Thomas Aff. Doc. # 113 at ¶ 16; Freeman Aff. Doc. # 107
at ¶ 22). Thomas also asked whether King would change how she
handled Mr. J’s situation if she could during the selection
committee interview. That comment does not rebut the evidence
that the rejection of both RFP proposals, including King’s,
was motivated by King’s resignation.
Even if the decision to reject King’s proposal was not
made because of her resignation, there is no evidence that
the decision was based on King’s speech, rather than King’s
handling of Mr. J’s situation in her capacity as occupational
committee meeting — if it shows any disapproval of King at
disqualify Mr. J despite Defendants’ placing him as an EMT.
Indeed, in her affidavit, King states that her “unwillingness
to find [Mr. J] medically fit as an EMT without properly
evaluating his pulmonary condition was deemed as recalcitrant
and obstructive by County management.” (King Aff. Doc. # 1164 at ¶ 79).
recommendation that Mr. J was not medically qualified, that
would be frustration over how King performed her job — not
over King’s speech about potential reverse discrimination
liability or falsification of records. Defendants were free
to take action against King if they disapproved of the medical
recommendation she made, or refused to make, as occupational
health director. See Garcetti, 547 U.S. at 424 (“[T]he First
Amendment does not prohibit managerial discipline based on an
evidence to suggest that her speech about Mr. J’s alleged
falsification of records or potential reverse discrimination
lawsuits was the true reason why the RFP was initiated or why
she was not awarded a contract under the RFP.
The Individual Defendants
Alternatively, Freeman, Thomas, and Baker-Buford are
each entitled to qualified immunity because King has not shown
that the law regarding the alleged constitutional violation
government officials performing discretionary functions from
constitutional right. Brannon v. Finkelstein, 754 F.3d 1269,
1278 (11th Cir. 2014).
In order to establish a defense of qualified immunity,
a government official must first demonstrate that he or she
was acting within his or her discretionary authority. See
Dalrymple v. Reno, 334 F.3d 991, 995 (11th Cir. 2003). King
does not challenge that the individual Defendants were acting
in their discretionary authority. Assuming some of King’s
speech was protected under the First Amendment, the Court’s
qualified immunity analysis focuses on whether King’s right
was clearly established.
To determine if a right is clearly established, courts
in the Eleventh Circuit use “three methods to show that the
government official had fair warning” Gaines v. Wardynski,
871 F.3d 1203, 1208 (11th Cir. 2017).
First, the plaintiffs may show that a materially
similar case has already been decided. Second, the
plaintiffs can point to a broader, clearly
established principle that should control the novel
facts of the situation. Finally, the conduct
involved in the case may so obviously violate the
constitution that prior case law is unnecessary.
Id. “The second and third methods are generally known as
‘obvious clarity’ cases.” Id. at 1209.
appropriate one for the Court’s analysis. (Doc. # 117 at 2223). The Court disagrees. The first method is the relevant
one for this analysis because “it is not ‘so obvious’ that
[Defendants] violated the First Amendment in light of the
close merits question of whether” King spoke as an employee
or as a citizen. Carollo v. Boria, 833 F.3d 1322, 1333 (11th
Furthermore, under the first method, the Court agrees
with Defendants that this case does not present the unusual
circumstance in which the employee’s right to speak was so
clearly established as to defeat qualified immunity. “[T]o
establish fair warning under this method, plaintiff may point
to prior case law (from the Supreme Court of the United
States, the Eleventh Circuit, or the highest court in the
relevant state) that is ‘materially similar.’” Gaines v.
Wardynski, 871 F.3d 1203, 1209 (11th Cir. 2017)(citation
omitted). Under this method, the “existing case law does not
necessarily have to be ‘directly on point,’” but “it must be
close enough to have put ‘the statutory or constitutional
question beyond debate.’” Id. at 1209–10 (citation omitted).
“If reasonable people can differ on the lawfulness of a
government official’s actions despite existing case law, he
immunity.” Id. at 1210.
Here, existing case law did not give the individual
Defendants fair warning that their actions violated King’s
First Amendment rights. Case law provides that “[t]he law is
speech.” Travers v. Jones, 323 F.3d 1294, 1295 (11th Cir.
“clearly established law should not be defined at a high level
statements of the law are not inherently incapable of giving
fair and clear warning . . . but in the light of pre-existing
law the unlawfulness must be apparent.” Id. (citations and
quotation marks omitted).
particularly difficult to overcome the qualified immunity
defense in the First Amendment context.” Gaines, 871 F.3d at
1210; see also Maggio v. Sipple, 211 F.3d 1346, 1354 (11th
Cir. 2000)(“[A] defendant in a First Amendment suit will only
rarely be on notice that his actions are unlawful” (citation
omitted)). This is because the law must be clearly established
as to both prongs of the Pickering test, meaning that it must
be clearly established that King spoke as a citizen on a
matter of public concern and that her interest in her speech
outweighed Defendants’ interests. See Maggio, 211 F.3d 1346,
complaint do not so clearly establish that her testimony at
believe that both prongs of the test had not been met.”
(citation and quotation marks omitted)).
None of the cases cited by King clearly established that
her speech was protected as citizen speech on a matter of
public concern. See Cook, 414 F.3d at 1319-20 (holding that
school bus driver, who was also president “of an organization
that, inter alia, seeks to improve the safety of children in
school,” spoke on a matter of public concern and the Pickering
balancing tilted in her favor when she “expressed her concerns
about the safety of children due to bus overcrowding”); Fikes
1996)(reversing grant of qualified immunity at motion to
dismiss stage where police officer alleged “he was fired
because he reported police misconduct” in the form of a
“failure to terminate a dangerous, high-speed chase, and
improper use of a confiscated vehicle”); Finch v. City of
Vernon, 877 F.2d 1497, 1501-02 (11th Cir. 1989)(reversing
grant of judgment notwithstanding the verdict where Finch
made public statements “[w]arning that closing a public road
would create a safety hazard”).
None of these cases deal with alerting an employer to
potential liability based on an intended hiring decision of
the employer’s. Nor do they deal with an employee — let alone
records — alleging the falsification of records. Although the
cases deal with potential threats to public safety, King’s
complaints that Mr. J answered his medical questionnaires
inconsistently is far weaker a supposed public safety threat
than those in the described cases. These cases would not give
Defendants fair warning that any actions they took against
King were a violation of King’s First Amendment rights.
Furthermore, it is not clear from these cases that King’s
interest in her speech would outweigh the County’s interest
in efficient operation. After determining if an employee
spoke as a citizen on a matter of public concern, the next
balancing test. See Pickering, 391 U.S. at 568. “The Pickering
test seeks to arrive at a balance between the employee’s
interest in commenting on matters of public concern and his
services.” Moss, 782 F.3d at 621 (citing Leslie v. Hancock
Cty. Bd. of Educ., 720 F.3d 1338, 1346 (11th Cir. 2013)). “In
striking this balance, we consider ‘(1) whether the speech at
issue impedes the government’s ability to perform its duties
efficiently, (2) the manner, time and place of the speech,
and (3) the context within which the speech was made.’” Snipes
v. Volusia Cty., No. 16-14221, 2017 WL 3588273, at *3 (11th
Cir. Aug. 21, 2017)(quoting Morales v. Stierheim, 848 F.2d
1145, 1149 (11th Cir. 1988)).
The Court agrees that it would not be clear to Defendants
that the Pickering balancing test weighed against them. See
Dartland v. Metro. Dade Cty., 866 F.2d 1321, 1323 (11th Cir.
1989)(“Because no bright-line standard puts the reasonable
public employer on notice of a constitutional violation, the
employer is entitled to immunity except in the extraordinary
case where Pickering balancing would lead to the inevitable
Assuming King spoke as a citizen on a matter of public
concern, King had a sizeable interest in her speech. See
Bryson v. Waycross, 888 F.2d 1562, 1566 (11th Cir. 1989)(“[A]
core concern of the [F]irst [A]mendment is the protection of
corruption.”). But, according to Defendants, the County also
has “a strong interest in the PDRTP [diversity program],
hiring diverse candidates, having an occupational director
who was on-board with federal anti-discrimination laws, and
working with employees who had the potential to serve the
County and overcome temporary physical set-backs.” (Doc. #
103 at 22).
Defendants assert that King’s speech interfered with the
County’s efficient operation:
in voicing her opinion that [Mr.] J remained
employed with Polk County because of reverse
discrimination and thus refusing to work with the
County in reasonably accommodating him,  King’s
speech interfered with the County’s interest in
promoting the PDRTP [diversity program] and
complying with all federal and state antidiscrimination laws.
(Doc. # 106 at 23). Defendants presented evidence that Freeman
advocating for Mr. J’s dismissal, without making constructive
(Freeman Dep. Doc. # 85 at 94:7-10, 98:18-99:4). King herself
stated that her refusal to medically qualify Mr. J “was deemed
as recalcitrant and obstructive by County management.” (King
Aff. Doc. # 116-4 at ¶ 79). In light of the competing
interests, it was not clear that the balancing test weighed
in favor of King. Therefore, Defendants did not have fair
notice that their actions violated King’s First Amendment
Finally, as to causation, “the defendant is entitled to
qualified immunity ‘[w]here the facts assumed for summary
unlawful motivations) and pre-existing law does not dictate
that the merits of the case must be decided in plaintiff’s
favor.’” Brannon, 754 F.3d at 1278–79 (quoting Foy v. Holston,
94 F.3d 1528, 1535 (11th Cir. 1996)). Here, even if Defendants
were motivated by King’s protected speech, the evidence shows
they also had lawful motives and the merits of the case need
not be decided in King’s favor. The County Attorney had
advised in 2013 that the County needed to put all medical
director contracts through the RFP process. Additionally,
Defendants were motivated, at least in part, to reject King’s
entitled to qualified immunity.
Florida Public Whistleblower Claim
King’s First Amendment retaliation claims provided the
sole source of federal jurisdiction in this case, as the
jurisdiction pursuant to 28 U.S.C. § 1332. Rather, the Court
“The dismissal of [a plaintiff’s] underlying federal
question claim does not deprive the [c]ourt of supplemental
jurisdiction over the remaining state law claims.” Baggett v.
First Nat. Bank of Gainesville, 117 F.3d 1342, 1352 (11th
Cir. 1997). “Indeed, under 28 U.S.C. § 1367(c), the Court has
jurisdiction over non-diverse state law claims, where the
[c]ourt has dismissed all claims over which it had original
jurisdiction, but [the court] is not required to dismiss the
case.” Id. Nevertheless, the Eleventh Circuit has “encouraged
district courts to dismiss any remaining state claims when,
as here, the federal claims have been dismissed prior to
trial.” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th
determinations of state law. “[S]tate courts, not federal
courts, should be the final arbiters of state law.” Ingram v.
School Bd. of Miami–Dade County, 167 F. App’x 107, 108 (11th
Cir. 2006). Furthermore, the Court finds that principles of
judicial economy and comity weigh in favor of the Court
Plaintiffs’ remaining claims.
Motions for Summary Judgment with regard to King’s federal
claims, and diversity jurisdiction does not exist, the Court
jurisdiction over Plaintiffs’ whistleblower claims. See Nagy
4448579, at *14 (M.D. Ga. Oct. 5, 2017)(“[B]ecause Defendants
are entitled to judgment as a matter of law on the federal
jurisdiction over the state law tort claims.”). The Florida
whistleblower claims, Counts I and II, are dismissed without
prejudice. Pursuant to 28 U.S.C. § 1367(d), the statute of
limitations is tolled “for a period of 30 days after it is
dismissed unless State law provides for a longer tolling
King’s First Amendment retaliation claims, Counts III
and IV, fail and summary judgment is granted for Defendants
on those claims. With the federal claims disposed of before
trial, the state law claims, Counts I and II, are dismissed
without prejudice so that Plaintiffs may reassert them in
state court, if they wish.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendants’ Motions for Summary Judgment (Doc. ## 103106) are GRANTED to the extent judgment shall be granted
in Defendants favor for the First Amendment retaliation
claims, Counts III and IV.
The Florida Public Whistleblower Act claims, Counts I
and II, are DISMISSED WITHOUT PREJUDICE so that they may
be reasserted in state court.
The Clerk is directed to enter judgment in favor of
Defendants and against Plaintiff Nancy King for Counts
III and IV. Thereafter, the Clerk is directed to CLOSE
DONE and ORDERED in Chambers in Tampa, Florida, this 6th
day of December, 2017.
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