King et al v. Board of County Commissioners, Polk County, Florida et al
Filing
42
ORDER: Defendants' Motions to Dismiss (Doc. ## 34 , 35 , 36 , 37 ) are granted in part and denied in part. Counts III and IV are dismissed with leave to amend. Plaintiffs Dr. Nancy King and the Occupational Health Center, Inc., may file a second amended complaint by January 23, 2017. Signed by Judge Virginia M. Hernandez Covington on 12/22/2016. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NANCY KING, and THE OCCUPATIONAL
HEALTH CENTER, INC.,
Plaintiffs,
v.
Case No. 8:16-cv-2651-T-33TBM
BOARD OF COUNTY COMMISSIONERS,
POLK COUNTY, FLORIDA, KANDIS
BAKER-BUFORD, individually,
LEA ANN THOMAS, individually,
and JIM FREEMAN, individually,
Defendants.
________________________________/
ORDER
This
Defendants
Florida’s
matter
Board
Motion
comes
of
to
before
County
the
Court
Commissioners,
Dismiss
(Doc.
#
36),
pursuant
Polk
Kandis
to
County,
Baker-
Buford’s Motion to Dismiss (Doc. # 34), Lea Ann Thomas’s
Motion to Dismiss (Doc. # 35), and Jim Freeman’s Motion to
Dismiss
(Doc.
#
37).
Plaintiffs
Dr.
Nancy
King
and
the
Occupational Health Center, Inc., filed responses on December
7, 2016. (Doc. ## 40, 41). For the reasons that follow, the
Court grants in part and denies in part the Motions.
1
I.
Background
King is the owner and employee of the Occupational Health
Center (OHC), which contracts with Polk County to provide
medical services. (Doc. # 23 at ¶¶ 10-11). Through OHC, King
worked as the occupational medicine medical director for the
County from 2000 until March of 2016. (Id. at ¶¶ 10, 48). The
contract was renewed for three consecutive five year terms
without the County using a bidding process. (Id. at ¶ 10).
King’s duties included “overs[eeing] the administration of
physicals, drug testing, and worker’s compensation claims”
and “performing all the fitness-for-duty evaluations” for the
County. (Id. at ¶ 12).
In December of 2013, one of King’s physician assistants
performed a fitness-for-duty examination on Mr. J, 1 who had
been recruited to be a firefighter by the County in its effort
to increase diversity. (Id. at ¶ 13). The physician assistant
determined that Mr. J was not qualified to be a firefighter.
(Id.). Yet, in November of 2014, King learned that Mr. J was
in the County’s firefighter training program. (Id. at ¶ 14).
The County again asked King to review Mr. J’s medical records
and
make
a
fitness-for-duty
1
determination
based
For privacy reasons, the Amended Complaint uses the
pseudonym Mr. J, as does the Court.
2
on
the
records. (Id.). King stated that she would need to personally
examine Mr. J to make that determination. (Id.).
A
few
days
later,
the
County’s
director
of
risk
management, Michael Kushner, asked King to tell Baker-Buford,
the County’s human resources director and diversity director,
that King would be examining Mr. J. (Id. at ¶ 15). BakerBuford told King that she could not re-examine Mr. J because
Mr. J’s personal physician had already cleared him for duty.
(Id. at ¶¶ 16-17). King reported Baker-Buford’s refusal to
Kushner, who later requested in an email that King review Mr.
J’s
medical
records
“to
determine
whether
or
not
they
contained falsified medical information.” (Id. at ¶¶ 18-19).
When King requested Mr. J’s medical records that had
been provided to the employee health clinic, she discovered
that Baker-Buford herself had submitted some of Mr. J’s
records, although employees typically submit their own. (Id.
at ¶ 19). After reviewing the records, King emailed Kushner
and
suggested
that
Mr.
J
undergo
an
examination
by
a
specialist for a second opinion. (Id. at ¶ 20). According to
King, her email to Kushner “reported, at the very least, a
violation of [the County’s] policies on medical clearance
requirements for firefighters working for [the County] and
3
interference
in
the
medical
clearance
requirements
for
firefighters.” (Id.).
An
appointment
with
a
specialist
was
scheduled
in
February of 2015, but the specialist received a phone call
from a woman purporting to be Mr. J’s attorney cancelling the
appointment. (Id. at ¶¶ 21-23). A public records request
revealed that the phone call had been made from an employee’s
phone
in
Baker-Buford’s
department.
(Id.
at
¶
23).
Subsequently, Kushner emailed Baker-Buford and emphasized to
her
that
King
“had
sole
discretion
in
making
medical
determinations on behalf of [the County],” but Baker-Buford
insisted that King should not have chosen the specialist to
examine Mr. J. (Id. at ¶ 24).
At that time, King tried but was unable to arrange a
meeting with either the county manager, Freeman, or the deputy
county manager, Thomas, to discuss her concerns. (Id. at ¶
25). Thereafter, King contacted Mr. J’s physician and asked
him
whether
guidelines
he
for
thought
Mr.
J
firefighters.
met
(Id.
the
at
specific
¶
26).
physical
The
doctor
“admitted that he had been unaware of the guidelines” and
that Mr. J was not medically fit. (Id. at ¶ 28). As a result,
Mr. J was dismissed from firefighter training, but was still
being considered for an EMT position. (Id. at ¶¶ 34-36). After
4
a different physician concluded that more tests were required
to determine whether Mr. J was medically fit to be an EMT,
another deputy county manager informed King that the County
would not require Mr. J to take the tests. (Id. at ¶ 37).
Eventually, King met with the county manager, Freeman,
and explained her concerns over Mr. J’s fitness and BakerBuford’s involvement, “which [King] understood to constitute
both violations of law, rule or regulation” and “malfeasance,
misfeasance or gross misconduct” by the County. (Id. at ¶
38). This disclosure of her public safety concerns was not
part of King’s ordinary job duties. (Id.).
Allegedly
in
retaliation
for
King’s
disclosure
and
refusal to certify Mr. J, the County put the occupational
medicine medical director contract out for bidding. (Id. at
¶ 40). King submitted her proposal and attended an interview
with the selection committee, which included Thomas. (Id. at
¶ 44). During the interview, Thomas asked whether King would
handle Mr. J’s certification differently if she were able.
(Id.). Later, King was informed that the committee could not
agree to make a recommendation for either King or the other
candidate. (Id. at ¶ 46). On March 24, 2016, the County’s
“procurement director formally rejected all proposals for the
occupational health program.” (Id. at ¶ 48). However, when
5
King later spoke with two members of the selection committee,
they informed King that the committee had voted to give her
the contract. (Id. at ¶¶ 51-54).
On September 15, 2016, King and OHC filed their Complaint
against the Board of County Commissioners for Polk County, as
well as Freeman, Baker-Buford, and Thomas in their individual
capacities, alleging that they violated her First Amendment
rights and Florida’s Whistleblower Act for public employees,
Section 112.3187, Fla. Stat., by retaliating against her for
reporting her public safety concerns. (Doc. # 1).
After Defendants moved to dismiss, King and OHC filed an
Amended Complaint on November 4, 2016. The Amended Complaint
contains four counts: (I) Florida whistleblower retaliation
claim against the County by King; (II) Florida whistleblower
retaliation claim against the County by OHC; (III) First
Amendment retaliation claim, brought under 42 U.S.C. § 1983,
against the individual Defendants by King; and (IV) a § 1983
First Amendment retaliation claim against the County by King.
(Doc. # 23).
On November 18, 2016, all Defendants filed Motions to
Dismiss the First Amended Complaint. (Doc. ## 34-37). King
and OHC filed responses on December 7, 2016. (Doc. ## 40-41).
The Motions are ripe for review.
6
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]
complaint and all reasonable inferences therefrom are taken
as true.”). However,
[w]hile 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
7
the
four
corners
of
the
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
III. Analysis
A.
First Amendment Retaliation Claim against the Board
of County Commissioners
The First Amendment protects independent contractors
from adverse actions taken by the government in retaliation
for their exercise of the freedom of speech. Bd. of Cty.
Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 673
(1996).
But,
the
First
Amendment
does
not
guarantee
contractors “absolute freedom of speech.” Id. at 675. Rather,
the balancing test commonly applied in the employment context
determines the extent of their protection. Id. at 673.
Thus, King’s First Amendment claims, Counts III and IV,
are governed
by
a
four-stage
analysis.
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)). These first two
questions are “questions of law that are decided by the
Court.” Id. at 618 (citing Battle v. Bd. of Regents for Ga.,
8
468 F.3d 755, 760 (11th Cir. 2006)). Only if this threshold
requirement is met will the Court “then weigh [King’s] First
Amendment interests against the City’s interest in regulating
[her] speech to promote ‘the efficiency of the public services
it performs through its employees.’” Id. at 618 (quoting
Rankin, 483 U.S. at 384).
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
in
furtherance
of
the
ordinary
responsibilities
of
her
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
9
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. Also,
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.
King alleges that reporting to Freeman was not a part of
her typical duties and thus was not employee speech. (Doc. #
23 at ¶ 38). Rather, King asserts that her duties included
“performing all the fitness-for-duty evaluations” required by
the County. (Id. at ¶ 12). King states that she went to
Freeman because “her responsibility to [the County] was to
make sure that personnel were medically fit for duty, and
that she would not compromise her medical judgment.” (Id. at
¶ 38).
Although King alleges that she had concerns for the
public’s safety, King made all of her disclosures to her
employer rather than the public. See Alves, 804 F.3d at 1161
(noting that whether speech occurred in the workplace is
relevant but not dispositive). King does not allege that she
contacted the media, or spoke out about the implementation of
firefighter fitness requirements at a city council meeting,
10
or made her concerns public in any other way. Cf. Boyce v.
Andrew, 510 F.3d 1333 (11th Cir. 2007)(finding caseworkers
spoke
as
employees
and
noting
that
one
employee’s
“complaints, although more often in a written format as a
letter or memorandum to a supervisor, were not sent to an
outside entity”); McShea v. Sch. Bd. of Collier Cty., 58 F.
Supp. 3d 1325, 1339 (M.D. Fla. 2014)(denying motion to dismiss
retaliation claim and noting “[i]f McShea voiced her concerns
to only Defendants, the Court might agree with Defendants’
conclusion
that
McShea’s
speech
qualifies
as
employee
she
did
speech”).
Taking
as
true
King’s
allegation
that
not
ordinarily report to Freeman, King’s complaints regarding the
breach of procedures concerning Mr. J were made so that she
could fulfill her duties as occupational medicine medical
director by correcting what King considered improper conduct
by
Baker-Buford.
complaint
in
the
See
Alves,
804
F.3d
at
1164-65
(“Each
Memorandum
was
made
in
furtherance
of
[plaintiffs’] ability to fulfill their duties with the goal
of correcting Dr. Lee-Barber’s alleged mismanagement, which
interfered with [plaintiffs’] ability to perform.”); see also
Winder
v.
Erste,
566
F.3d
209,
215
(D.C.
Cir.
2009)(“[Employee’s speech] was an attempt to ensure proper
11
implementation of [his duties] and was therefore offered
pursuant
to
his
job
duties.”).
Indeed,
King
“had
sole
discretion in making medical determinations on behalf of [the
County],” a discretion which Baker-Buford’s actions impeded.
(Doc. # 23 at ¶ 24).
As the Eleventh Circuit explained,
[W]e do not agree that speech regarding conduct
that
interferes
with
an
employee’s
job
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
and
correct”
the
barriers
to
Appellants’
performance.
Alves,
804
F.3d
at
1165.
King
reported
Baker-Buford’s
involvement in Mr. J’s fitness evaluation to Freeman and
Thomas because they would have the opportunity to end BakerBuford’s interference with King’s performance of her duty to
administer all fitness evaluations for the County. Cf. Mpoy
v. Rhee, 758 F.3d 285, 291 (D.C. Cir. 2014)(finding teacher
spoke as an employee when he sent email to the school district
administration that primarily “related to the misbehavior of
Mpoy’s teaching assistants”).
The
interfered
Court
with
finds
that
“in
[her]
ordinary
12
reporting
job
duties,
conduct
[King]
that
spoke
pursuant to those duties.” Alves, 804 F.3d at 1165. Thus,
King’s First Amendment retaliation claim fails at the first
stage of the analysis, and must be dismissed. Cf. Blanchard
v. City of Winter Haven, No. 8:09-cv-2049-T-33AEP, 2011 WL
1166892, at *8 (M.D. Fla. Mar. 28, 2011)(dismissing First
Amendment retaliation claim because “[t]he complaint was not
filed in Blanchard’s role as a citizen, but in his role as a
wrecker operator on the rotational list”). However, King may
amend her First Amendment retaliation claims.
B.
Whistleblower Retaliation
In Counts I and II, King and OHC bring claims for public
employee
whistleblower
retaliation
against
the
County.
Florida’s Whistleblower Act exists “to prevent agencies and
independent
contractors
from
taking
retaliatory
action
against an employee who reports danger to the public’s health,
safety, or welfare or who alleges improper use of governmental
office, gross waste of funds, or other abuse or gross neglect
of duty.” Competelli v. City of Belleair Bluffs, 113 So. 3d
92, 94 (Fla. 2d DCA 2013). “The public whistleblower statute
is remedial, and courts should construe it broadly.” Id. at
93.
In order to state a claim under the statute, a plaintiff
must allege that (1) he or she engaged in a statutorily
13
protected
activity;
(2)
he
or
she
suffered
an
adverse
employment action; and (3) there existed a causal connection
between the two events. See Castro v. Sch. Bd. of Manatee
Cty., Fla., 903 F. Supp. 2d 1290, 1302 (M.D. Fla. 2012).
A disclosure is protected under the statute if the
information revealed includes “[a]ny violation or suspected
violation of any federal, state, or local law, rule, or
regulation committed by an employee or agent of an agency or
independent
substantial
contractor
and
which
specific
creates
danger
to
the
and
presents
public’s
a
health,
safety, or welfare” or “[a]ny act or suspected act of gross
mismanagement, malfeasance, [or] misfeasance . . . committed
by
an
employee
or
agent
of
an
agency
or
independent
contractor.” Fla. Stat. § 112.3187(5).
The Amended Complaint’s allegations that Baker-Buford
submitted the suspected false medical records for Mr. J and
called to cancel Mr. J’s appointment with the specialist
physician while pretending to be Mr. J’s attorney plausibly
qualify as malfeasance, which is “the doing of an act which
a person ought not do at all,” or misfeasance, which is “the
improper doing of an act which a person might lawfully do.”
Burden
v.
City
of
Opa
Locka,
No.
11-22018-CIV,
2012
WL
4764592, at *10 (S.D. Fla. Oct. 7, 2012)(citations omitted).
14
For disclosures concerning a local governmental entity
like the County, “the information must be disclosed to a chief
executive officer” or “other appropriate local official.”
Fla. Stat. § 112.3187(6). Additionally, the disclosure of a
violation or suspected violation must be made in a signed
written
complaint,
if
disclosed
on
the
employee’s
own
initiative or to the employee’s “supervisory officials.” Fla.
Stat. § 112.3187(7). But if the disclosure is made pursuant
to a “request[] to participate in an investigation, hearing,
or
other
inquiry
conducted
by
any
agency
or
federal
governmental entity,” there is no writing requirement. Id.
The County argues that King and OHC fail to meet the
writing requirement. The Court disagrees. Although King’s
disclosures to Freeman and Thomas were oral, the Amended
Complaint states that King sent emails to Kushner and BakerBuford regarding her concerns over Mr. J’s medical fitness
and placement in firefighter training despite his medical
issues. (Doc. # 23 at ¶¶ 20, 29). An email qualifies as a
signed writing. Scheirich v. Town of Hillsboro Beach, No. 0761630-CIV, 2008
WL 186621, at *14 (S.D. Fla. Jan. 18,
2008)(stating “[t]hese alleged complaints in the form of a
report,
letter,
and
email
messages
meet
the
writing
requirement of § 112.3187(7)”). Also, King and OHC have
15
sufficiently
alleged
that
Kushner,
as
director
of
risk
management for the County, was an appropriate official who
had authority to investigate misconduct by County employees
to whom King could report her public safety concerns. See
Saunders
v.
Hunter,
980
F.
Supp.
1236,
1246
(M.D.
Fla.
1997)(denying motion to dismiss because “plaintiff allege[d]
she reported the incidents not to a chief executive officer
but to her supervisors who are appropriate local officials”).
Even if King’s emails were not sent to the appropriate
officials,
the
Amended
Complaint
alleges
that
Kushner
requested King participate in an investigation, during which
she
made
a
disclosure
about
Baker-Buford’s
conduct,
and
therefore a writing would not have been required. King claims
that Kushner asked her to review Mr. J’s medical records to
determine
whether
they
contained
“falsified
medical
information.” (Doc. # 23 at ¶ 19). This allegation — that the
County’s director of risk management contacted King to review
records for signs of falsification — suffices to establish at
this
juncture
that
King
was
asked
to
assist
in
an
investigation of misconduct rather than asked to perform her
ordinary duty of providing medical fitness evaluations.
Furthermore,
causal
connection
King
and
between
OHC
have
King’s
16
plausibly
disclosures
alleged
to
a
Kushner,
Baker-Buford, Thomas, and Freeman and the nonrenewal of OHC’s
contract with the County. In the Amended Complaint, King
alleges that Thomas, a member of the selection committee,
asked King during her interview whether King would handle Mr.
J’s certification differently if given the chance, at least
giving rise to an inference that King’s disclosures were a
consideration during the contract renewal process. (Doc. # 23
at
¶
44).
proposal
After
was
the
rejected
interview,
OHC
despite
other
and
King’s
contract
committee
members’
statements that they had voted in favor of King’s proposal.
(Id. at ¶¶ 51-54). Taking these allegations as true, King and
OHC have plausibly alleged that the County decided not to
renew the contract with OHC because of King’s disclosures.
Finally, it is not clear on the face of the Amended
Complaint whether King and OHC’s claims are time-barred.
Under the whistleblower statute, a claim under Florida’s
whistleblower statute must be brought within 180 days of the
violation. Fla. Stat. § 112.3187(8). King alleges that the
adverse employment action — the nonrenewal of her contract —
took place on March 24, 2016, at the latest, when the County
formally rejected King’s proposal for the occupational health
program. (Doc. # 23 at ¶ 48). King and OHC filed the original
Complaint in this Court on September 15, 2016, which is only
17
175 days after the alleged adverse employment action. (Doc.
#
1).
Therefore,
at
this
juncture,
the
whistleblower
retaliation claims do not appear to be time-barred.
In light of the broad interpretation of the statute, the
Court finds that King and OHC have stated plausible claims
for whistleblower retaliation under Florida law.
IV.
Conclusion
King
and
OHC
have
stated
plausible
claims
under
Florida’s public employee whistleblower statute. Thus, Counts
I and II survive the motion to dismiss stage.
However,
regarding
the
Amended
Complaint’s
First
Amendment retaliation claims, King’s allegations indicate
that
she
spoke
as
an
employee
and
her
speech
does
not
implicate the First Amendment. Therefore, King’s claims for
First Amendment retaliation, Counts III and IV, must be
dismissed. King may amend her Amended Complaint to state a
First Amendment retaliation claim, if possible, by January
23, 2017.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendants’ Motions to Dismiss (Doc. ## 34, 35, 36, 37)
are GRANTED IN PART AND DENIED IN PART. Counts III and
IV are dismissed with leave to amend.
18
(2)
Plaintiffs Dr. Nancy King and the Occupational Health
Center, Inc., may file a second amended complaint by
January 23, 2017.
DONE and ORDERED in Chambers in Tampa, Florida, this
22nd day of December, 2016.
19
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