Fernandez et al v. The School Board of Miami-Dade County, Florida
Filing
44
ORDER denying 32 Defendant's Motion to Dismiss. The Defendant shall ANSWER the Second Amended Complaint by 9/9/2016. Signed by Judge Darrin P. Gayles on 8/19/2016. (zvr)
— FOR REPORTER PUBLICATION —
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-21915-GAYLES
ALBERTO T. FERNANDEZ, HENNY
CRISTOBOL, and PATRICIA RAMIREZ,
Plaintiffs,
v.
THE SCHOOL BOARD OF MIAMI-DADE
COUNTY, FLORIDA,
Defendant.
/
ORDER
In this First Amendment action, the Plaintiffs, Alberto T. Fernandez, Henny Cristobol, and
Patricia Ramirez, all current employees of the Miami-Dade County School District (the “District”),
allege that the Defendant, the School Board of Miami-Dade County (the “School Board”), unlawfully took adverse employment action against them in retaliation for their attempt to convert
Neva King Cooper Educational Center (“Neva King”)—a school at which the Plaintiffs all formerly
held positions—from a public school to a charter school (an attempt that ultimately failed). Before
the Court is the School Board’s Motion to Dismiss the Plaintiffs’ Second Amended Complaint
[ECF No. 31]. The Court has carefully considered the pleadings, the operative Complaint, and the
applicable law. For the reasons that follow, the School Board’s motion shall be denied.
I.
BACKGROUND
A.
Factual Allegations
1.
Charter Conversion Attempt
According to the allegations in the Second Amended Complaint, in 2011, Plaintiff
Cristobol, the then–vice principal of Neva King, introduced the idea of charter school conversion
to its then-principal, Plaintiff Fernandez. Second Am. Compl. ¶¶ 8-9. Fernandez wanted to conduct
additional research before presenting the idea to the school’s Educational Excellence School
Advisory Committee (“EESAC”). He enlisted three Neva King employees to assist him in this
research, one of whom was Plaintiff Ramirez, who was a Placement Specialist at Neva King at
the time. Id. ¶¶ 7, 9. Fernandez recommended that the EESAC vote in favor of exploring charter
status, which it voted unanimously to do on February 2, 2012. Id. ¶ 11.
When Fernandez called his supervisor (unnamed in the Complaint) immediately following
the EESAC vote to inform him of the prospective conversion, his supervisor warned him that
“repercussions would follow.” Id. ¶ 12. The next day, and for every day thereafter until the Plaintiffs were ultimately removed from the school, a District administrator was dispatched to Neva King
to “monitor activities at the school.” Id. ¶ 13. “District administrators” then instructed Fernandez
to call a staff meeting to discuss the conversion recommendation. Id. ¶ 14. The meeting was
attended by approximately fifteen “high-level officials, including members of the Superintendent’s
Cabinet.” Id. These officials gave Neva King staff members “misleading and one-sided information
about the prospective conversion that was contrary to Florida law.” Id. “School District officials”
threw out several more hurdles; for example, Assistant Superintendent Milagros Fornell prohibited
Fernandez from rescheduling the conversion vote after the District’s Chief Budget Officer provided
incomplete information to Fernandez regarding Neva King’s revenues. Id. ¶¶ 16-17. Ultimately,
“District Administrators” decided to terminate the conversion ballot procedure. Id. ¶¶ 18-19.
2.
The District’s Investigation of Fernandez and Cristobol
After the conversion attempt failed, the District informed Fernandez and Cristobol that they
would be subject to an investigation by the District’s Civilian Investigative Unit, led by investigator
Terri Chester and her superior, Julio Miranda, for allegedly attempting to influence the outcome
of the conversion vote, using District time and resources to facilitate the conversion, and arranging
for an unauthorized individual to address school faculty and staff regarding the conversion. Id.
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¶¶ 20-21. Fernandez and Cristobol were later informed that they were “prohibited” from speaking
with complainants or witnesses during the course of the investigation. Id. ¶ 21. On April 26, 2012,
Chester sent a letter to select Neva King employees informing them that she had been assigned the
responsibility of investigating Fernandez and Cristobol for alleged violations of School Board
policies and instructing them that they were “not to contact any subject(s) or witnesses, with the
intent to interfere with the investigation.” Id. ¶ 22.
During the investigation, Chester interviewed Ava Goldman, the Administrative Director,
Fernandez and Cristobol’s supervisor, and the most frequent District administrator sent to monitor
activities at Neva King. Id. ¶ 23. In that interview, Goldman stated that Fernandez and Cristobol
“were not authorized to utilize District time and resources to research, plan, and direct staff to
present and ask for a vote to convert” Neva King into a charter school. Id. Further, she stated that
Fernandez and Cristobol were instructed not to use District time and resources to conduct those
activities. Id.
On June 22, 2012, the investigation concluded with a finding of probable cause that
Fernandez and Cristobol violated several School Board policies: Standards of Ethical Conduct,
Code of Ethics, Staff Network and Internet Acceptable Use and Safety, and Staff Electronic Mail.
Id. ¶ 25. The case was forwarded to the Office of Professional Standards, which issued a finding
of probable cause. Id. ¶ 26. A Conference for the Record was held to address Fernandez and Cristobol’s alleged violations of School Board policies; the conference’s summary stated that “converting Neva King Cooper Educational Center into a charter conversion school was not a part of [their]
official duties.” Id. ¶ 27. District administrators told Fernandez and Cristobol that they were to
“adhere to the Terms and Conditions of the Administrative placement which was issued to [them]
on May 2, 2012,” which included what later was termed as a “gag order,” directing them to “refrain
from contacting any parties involved in this investigation by any means at any time.” Id. ¶ 28.
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The School Board disposed of its disciplinary proceeding against Cristobol with the issuance of a written reprimand. Id. ¶ 34. The School Board removed Cristobol from alternate assignment status (discussed more fully infra, subection I.A.4), and continued his placement at South
Dade Senior High School as assistant principal. Id. The School Board transferred Cristobol to an
assistant principalship at TERRA Environmental Research Institute in June 2013. Id.
As for Fernandez, he was informed by letter in February 2013 that the School Board was
rescinding his provisional reappointment and that a failure by Fernandez to request a meeting within
fifteen days would result in the termination of his employment with the School Board effective
March 8, 2013. Id. ¶ 35. The letter also informed him that his non-reappointment “precluded his
future employment in any capacity by Miami-Dade County Public Schools.” Id. Fernandez
requested a meeting to contest this decision, and at that meeting, where his requests to have
counsel and a court reporter present were denied, he was told that the School Board would “get
back with” him regarding the possible termination of his employment. Id. ¶ 36. Not until the
Florida Department of Education issued a notice to the Superintendent that there were reasonable
grounds to suspect that Fernandez had been retaliated against did the School Board determine that
it would not impose a written reprimand or any other formal discipline. Id. ¶ 37. On June 19, 2013,
the School Board closed its disciplinary proceeding and appointed Fernandez “ESE [Exceptional
Student Education] Principal of Instruction System-wide.” Id.
3.
The District’s Investigation of Ramirez
On May 7, 2012, Goldman told Ramirez that she was also under investigation for her involvement in the conversion exploration. Id. ¶ 24. Miranda sent Ramirez a letter notifying her that
the School Board was conducting an investigation and alleging that she used school time and
resources to conduct “non-school related business.” Id. The investigation into Ramirez concluded
in July, and Ramirez received a letter informing her that based on the investigation, there was
4
probable cause to establish that she violated several School Board policies (Standards of Ethical
Conduct, Code of Ethics, Staff Network and Internet Acceptable Use and Safety, and Staff Electronic Mail) by using School Board email and resources to conduct “non-school business,” i.e.,
using email to communicate with Fernandez, Cristobol, and other staff regarding the conversion.
Id. ¶¶ 29-30.
A Conference for the Record was held on August 2, 2012, to address Ramirez’s alleged
violations. Id. ¶ 31. The summary of the conference stated that converting Neva King into a charter
conversion school “was not a part of Ms. Ramirez’s official duties” and “providing information
and feedback pertaining to the charter conversion” was not one of her assignments. Id. ¶ 32. The
summary culminated in the issuance of directives, including that Ramirez “conform to all school
board policies, cease and desist from using School Board resources inappropriately, and adhere to
the terms and conditions of the administrative placement.” Id. ¶ 31. The School Board disposed of
its disciplinary action against Ramirez on January 8, 2013, by reissuing these directives. Id. ¶ 33.
4.
The Plaintiffs’ Alternative Assignments and Gag Orders
During the pendency of the investigations and disciplinary processes—beginning on May
2, 2012, for Fernandez and Cristobol and May 7, 2012, for Ramirez—each Plaintiff was reassigned
from Neva King to remote District offices and given menial tasks to perform. Id. ¶¶ 38-42. The
Plaintiffs were instructed not to “contact, visit, or engage in any type of communication with staff,
parents, or community members from” Neva King. Id. ¶ 39. But the individuals the Plaintiffs were
not to contact were never identified, which resulted in the Plaintiffs being “closed off from virtually
all of the friends, colleagues, parents, business partners, and community members they had known
and worked with for a number of years.” Id. ¶ 43. When the investigations concluded, the gag
orders were not lifted. Id. ¶ 44. A few weeks later, on July 10, 2012, legal counsel stated in an
email to the Plaintiffs that the gag orders had expired and the Plaintiffs were free to speak to
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anyone. Id. ¶ 45. But in a reply to Fernandez’s personal email account, Ana Rasco, Administrative
Director of the Office of Professional Standards, instructed Fernandez that he was to adhere to the
May 2, 2012, directives, which included the gag orders. Id. The District confirmed the gag orders
were still in effect on July 19, 2012, during the Conference for the Record. Id. ¶ 46. In a letter dated
October 26, 2012, to School Board attorney Walter J. Harvey, the Plaintiffs’ counsel asked again
whether the gag orders had been lifted; he received no response. Id. ¶ 47.
5.
The School Board’s Response to Neva King Inquiries
On May 3, 2012—the day after Fernandez and Cristobol were removed from Neva King—
Keyla Martinez, a member of Neva King’s EESAC, sent an email to the School Board, in which
she stated: “[T]he principal and vice-principal were removed from the school and are being treated
like criminals by the Miami-Dade County Public School Board.” Id. ¶ 50. She further stated that
“the PTA requested an emergency meeting and the School Board has denied their entry into the
school and [told the parents] that a PTA meeting would be scheduled in the near future. The parents
want to know what is going on and what is going to happen with the future of their kids.” Id.
On May 15, 2012, Tony Peterle, a parent of a Neva King student, appeared before the
School Board, informed it about the events at Neva King, and asked it to allow the charter discussion to continue. Id. ¶ 51. A few days later, Peterle sent an email to each member of the School
Board expressing his concern about the actions of the District administrators regarding the conversion attempt at Neva King. Id. ¶ 52. According to the Plaintiffs, Peterle expressed that “high
ranking school officials stationed at the school spread misinformation against the conversion and
presented opposing viewpoints from being discussed.” Id. He also stated that at the sole parent
information meeting called during the conversion attempt, only District personnel were permitted
to speak. Id. He ultimately asked the School Board to prevent District officials from further interfering with the conversion process. Id.
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On June 18, 2012, Peterle met with Dr. Marta Perez, a member of the School Board, and
Walter Harvey, the School Board’s attorney. Id. ¶ 53. During this meeting, Dr. Perez “admitted
that the actions of the District administrators were against the law and another example of the
District’s ‘anti-charter bias.’” Id. The School Board, however, took no action. Id. ¶ 54.
6.
The School Board’s History of Opposition to
Conversion Charter Schools
The Plaintiffs allege that the “moving force behind the School Board’s response (or lack
thereof)” to the Neva King conversion attempt is the School Board’s “unwritten, long standing,
and widespread custom against the creation of conversion charter schools.” Id. ¶ 57. They contend
that the Neva King events are “part of a pattern of conduct to prevent the establishment of conversion charter schools within Miami-Dade County” and that “[s]chool officials will take any measure, including violating civil rights, to support the custom in place.” Id.
There are currently no conversion charter schools in Miami-Dade County. Id. ¶ 58. In
2001, Snapper Creek Elementary was the first district school in Miami-Dade County to submit
an application to convert to charter status. Id. ¶ 59. At a November 14, 2001, meeting, the School
Board discussed the merits of this conversion; School Board members stated “there will be no
conversions,” “conversions should only be for inner-city schools,” “conversions should only occur
in D and F rated schools,” and allowing a conversion charter school was “opening a can of worms.”
Id. ¶¶ 60-61. The School Board then denied Snapper Creek Elementary’s application to become a
charter school. Id. ¶ 62. The school appealed the denial, the Governor’s cabinet remanded the denial
to the School Board for reconsideration, and the School Board again denied the application. Id.
On January 8, 2013, two parents with children enrolled at Key Biscayne K-8 Center, a
Miami-Dade County public school, sent an email to the school’s principal requesting her to facilitate a vote to convert the school into a conversion charter school. Id. ¶ 63. In response, the District
7
sent a letter stating that the school principal had not authorized the use of her name in connection
with the conversion effort, and that District officials, rather than the principal, would schedule the
vote. Id. ¶ 64. District officials then dominated the conversion effort at that school, disseminating
flyers regarding the prospective conversion that “presented misleading and incorrect information
about funding, employee benefits, and available resources if the school converted to a charter
school.” Id. ¶ 65. At a parent information session convened to discuss the conversion, District
officials again dominated the question-and-answer session, and proponents of the conversion were
not permitted to speak. Id. ¶ 66. The District then conducted a teacher and parent vote, and both
groups voted not to convert. Id. ¶ 67.
Finally, in May 2012, after the Plaintiffs were removed from Neva King, Miami-Dade
County School District Superintendent Alberto Carvalho made an unannounced visit to Neva King.
Carvalho said in the presence of office staff, “[T]his school is a Miami-Dade County Public
School and it is going to remain a Miami-Dade County Public [S]chool and anybody who wants to
change that will have to go through me.” Id. ¶ 68.
B.
Procedural History
1.
Unlawful Reprisal Proceedings
During the course of the District’s investigation of the Plaintiffs, Marian Lambeth, Chief
of the Office of Professional Practices Services, informed the Plaintiffs that “the investigation
could lead to disciplinary action against [their] educators’ certificate[s], up to and including permanent revocation.” First Am. Compl. ¶ 43.1 On December 18, 2013, the Commissioner of Edu1
The Plaintiffs appear to have removed from the Second Amended Complaint allegations that appeared in the
First Amended Complaint regarding the complaints for unlawful reprisal they filed with the Florida Department
of Education and the proceedings that followed. See First Am. Compl. ¶¶ 29, 43-45.
“In general, [courts] do not consider anything beyond the face of the complaint and documents attached thereto
when analyzing a motion to dismiss under Rule 12(b)(6).” Fuller v. SunTrust Banks, Inc., 744 F.3d 685, 695 (11th
Cir. 2014) (citation and internal quotation marks omitted). Specifically in this instance, “[a]n amended pleading
supersedes the former pleading; the original pleading is abandoned by the amendment and is no longer a part of the
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cation reviewed the Office of Professional Practices Services’ investigative findings and determined there was no probable cause to pursue any disciplinary action against any of the Plaintiffs’
Florida Educator’s Certificates. Id.
Also during the investigation, on July 13, 2012, each Plaintiff filed a complaint for unlawful reprisal pursuant to Fla. Stat. § 1002.33(4) with the Florida Department of Education (the
“Department”). Id. ¶ 29. These complaints triggered an investigation by the Department’s Office
of Inspector General. Id. On April 12, 2013, the Department terminated its investigation with a
“finding that reasonable grounds exist to believe that an unlawful reprisal has occurred, is occurring, or is to be taken.” Id. ¶ 44. The Commissioner of Education informed Superintendent
Carvalho that the Plaintiffs’ complaints would be forwarded to the Division of Administrative
pleader’s averments against his adversary.” Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th
Cir. 2007). Although courts, under certain conditions, may consider outside evidence, such as complaints filed in
other federal court actions, see Fuller, 744 F.3d at 695, “the weight of federal authority suggests that previous complaints [filed in the same action] do not generally fall within those exceptions: ‘It is well-established that . . . facts
not incorporated into the amended pleading . . . cannot be considered by the court on a motion to dismiss the
amended complaint,’” Santana v. Cal. Dep’t of Corr. & Rehab., No. 09-3226, 2010 WL 4176364, at *7 (N.D. Cal.
Oct. 19, 2010) (emphasis added) (quoting Kelley v. Crosfield Catalysts, 135 F.3d 1202, 1204-05 (7th Cir. 1998)).
That said, the rule governing amended pleadings superseding former pleadings is a “general” one. Pintando, 501
F.3d at 1243. The Court looks to several decisions from courts in the Second Circuit, which have held that courts
“[i]n rare circumstances . . . will consider prior pleadings . . . when the plaintiff directly contradicts the facts set
forth in his original complaint.” 2002 Lawrence R. Buchalter Alaska Trust v. Phila. Fin. Life Assur. Co., 96 F.
Supp. 3d 182, 206 (S.D.N.Y. 2015). In Colliton v. Cravath, Swaine & Moore, LLP, for example, the court accepted
the facts as alleged in the plaintiff’s original complaint as true for the purposes of a motion to dismiss where the
plaintiff made a “transparent attempt . . . to amend his pleading[s] in order to avoid a dispositive defense” raised
by the defendant and the amended complaint directly contradicted the original complaint. No. 08-0400, 2008 WL
4386764, at *6 (S.D.N.Y. Sept. 24, 2008), aff’d, 356 F. App’x 535 (2d Cir. 2009) (per curiam). In these “rare occasion[s],” a court may “disregard the contradictory and manipulated allegations of an amended pleading.” Barris v.
Hamilton, No. 96-9541, 1999 WL 311813, at *2 (S.D.N.Y. May 17, 1999).
Here, the Plaintiffs’ Complaint (Compl. ¶¶ 29, 43-45) and First Amended Complaint (First Am. Compl. ¶¶ 29, 4345) contain allegations regarding the unlawful reprisal proceedings before the Florida Department of Education. In
response to both versions of the complaint, the School Board moved to dismiss, arguing (in part) that the Plaintiffs’
claims were barred by the doctrines of res judicata and collateral estoppel, based on the unlawful reprisal proceedings. The Second Amended Complaint inexplicably removes all allegations regarding the unlawful reprisal proceedings—allegations that are, of course, integral the School Board’s argument that the Plaintiffs’ claims are barred
by res judicata and collateral estoppel. As in Colliton, this Court finds that the removal of those allegations is a similarly transparent attempt to amend the complaint, in this circumstance, to avoid the res judicata and collateral estoppel
defenses raised by the School Board. And while the allegations in the Second Amended Complaint do not explicitly
contradict the allegations in the prior versions—given that the references to the unlawful reprisal proceedings
have simply been removed—the Court has found no Eleventh Circuit authority that would bar the invocation of this
exception under these specific circumstances—where plaintiffs have manipulated the allegations in their pleadings
to avoid a dispositive defense. Therefore, the Court will recite the pertinent facts here as they previously appeared.
9
Hearings (the “DOAH”), which would conduct a formal hearing. Id.
The DOAH’s final administrative hearing took place in January and February 2014. At its
conclusion, the administrative law judge entered a recommended order finding that the District
committed an unlawful reprisal against each Plaintiff in violation of Fla. Stat. § 1002.33(4). Id.
¶ 45. The Department of Education adopted the recommended order entirely, finding that the
“Miami-Dade County School Board violated section 1002.33(4)(a)” with respect to each Plaintiff. Id. Fernandez was awarded out-of-pocket expenses and lost bonuses totaling over $10,000,
but neither Cristobol nor Ramirez were awarded monetary relief. Id. The Plaintiffs were awarded
costs and attorneys’ fees, and the administrative action was remanded to DOAH for a hearing on
these issues. Id.; see also generally Def.’s Mot. Ex. A (the Department’s “Final Order”).
2.
Proceedings in this Court
The Plaintiffs filed a complaint in this Court on May 20, 2015 [ECF No. 1], and amended
that complaint on July 9, 2015 [ECF No. 11]. In their First Amended Complaint, the Plaintiffs
brought a single claim for violation of their First Amendment rights under 42 U.S.C. § 1983, alleging that the School Board infringed on their freedoms of speech and association and subjected
them to adverse employment actions. The School Board filed a motion to dismiss on July 22,
2015, arguing, inter alia, that the Plaintiffs failed to state a claim for liability under the strictures
of Monell v. Department of Social Services, 436 U.S. 678 (1978) [ECF No. 14]. On December 29,
2015, the Court granted the School Board’s motion and dismissed the First Amended Complaint
without prejudice, concluding that the Plaintiffs’ allegations did not meet the requirements of
Monell, because they “read as an attempt to hold the School Board liable for the actions of District
employees and officials in unlawfully retaliating against them for attempting to convert a public
school into a charter school.” Fernandez v. Sch. Bd., No. 15-21915, 2015 WL 9474616, at *4 (S.D.
Fla. Dec. 29, 2015).
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Plaintiffs filed their Second Amended Complaint on January 25, 2016 [ECF No. 31]. In
response, the School Board has again moved to dismiss. The School Board, as it did before, raises
four arguments: (1) this action is barred by res judicata; (2) this action is barred by collateral
estoppel; (3) the Plaintiffs fail to state a Section 1983 claim for municipal liability against the
School Board; and (4) the Plaintiffs fail to state a claim for a violation of their First Amendment
rights. The Plaintiffs oppose the motion.
II.
LEGAL STANDARD
To survive a motion to dismiss, a claim “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face,’” meaning that it must contain “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). While a court must accept well-pleaded factual allegations as true,
“conclusory allegations . . . are not entitled to an assumption of truth—legal conclusions must be
supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “[T]he
pleadings are construed broadly,” Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120
(11th Cir. 2006), and the allegations in the complaint are viewed in the light most favorable to the
plaintiff, Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). At bottom,
the question is not whether the claimant “will ultimately prevail . . . but whether his complaint [is]
sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011).
III.
DISCUSSION
A.
Res Judicata
The School Board first argues that the doctrine of res judicata applies to bar the Plaintiffs’
claims. It contends that the Plaintiffs are attempting to relitigate the claims of retaliation that were
already decided on the merits by the DOAH in the unlawful reprisal action.
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The doctrine of res judicata (or claim preclusion) “prohibits successive litigation of the
very same claim by the same parties.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305
(2016) (citation and internal quotation marks omitted). This prohibition bars “the parties or their
privies from relitigating issues that were or could have been raised” in an action that resulted in a
final judgment on the merits. Allen v. McCurry, 449 U.S. 90, 94 (1980). In the Eleventh Circuit,
a party seeking to invoke this doctrine bears the burden to establish its propriety by satisfying four
initial elements: “(1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the
same parties or their privies; and (4) both cases must involve the same causes of action.” Kaiser
Aerospace & Elecs. Corp. v. Teledyne Indus., Inc. (In re Piper Aircraft Corp.), 244 F.3d 1289,
1296 (11th Cir. 2001). If the party raising res judicata satisfies these elements, the court next
determines whether the claim in the new suit was or could have been raised in the prior action;
if yes, res judicata applies. Id.
That said, “[i]f even one of these elements is missing, res judicata is inapplicable.” Id. The
Court, therefore, need not undergo an analysis of every element, because it agrees with the Plaintiffs that they did not raise their Section 1983 claim alleging civil damages in the unlawful reprisal
proceeding, nor could they have. “Administrative agencies are creatures of statute and have only
such powers as statutes confer.” State ex rel. Greenberg v. Fla. State Bd. of Dentistry, 297 So. 2d
628, 634 (Fla. 1st DCA 1974). The statute governing unlawful reprisal, Fla. Stat. § 1002.33, provides, first, that “[n]o district school board . . . shall take unlawful reprisal against another district
school board employee because that employee is either directly or indirectly involved with an
application to establish a charter school.” Fla. Stat. § 1002.33(4)(a). Should such an unlawful
reprisal be alleged to have occurred (including disciplinary or corrective action, adverse transfer
or reassignment, suspension, demotion, dismissal, reduction in pay or benefits, etc.), the statute
12
directs that an employee file a complaint with the Department of Education. Id. If the Department
determines that the complaint demonstrates reasonable cause to suspect that an unlawful reprisal
has occurred, it conducts an investigation. Id. If, after that investigation, the Department determines
that reasonable grounds exist to believe that an unlawful reprisal has occurred, it transfers the case
to the DOAH to hear the complaint and make findings of fact and conclusions of law for a final
decision by the Department. Id.
The DOAH has self-described its power (and the limits of its power) thusly:
DOAH has no authority to impose a civil penalty in an administrative proceeding . . . . DOAH is an administrative agency organized within the executive branch
of state government. DOAH carries out quasi-judicial duties to resolve a factual
dispute between a sister, administrative agency and a substantially affected party.
The performance of quasi-judicial duties by DOAH does not transform DOAH into
a court with the exclusive constitutional power to conduct civil actions. Nor does
the performance of quasi-judicial duties imbue DOAH with the authority of a presiding court in a civil action to impose civil penalties.
Fla. Elec. Comm’n v. Davis, No. 08-6413, 2009 WL 2009215, at *1 (Fla. Div. Admin. Hrgs. July
9, 2009), aff’d, 44 So. 3d 1211 (Fla. 1st DCA 2010). Under the Florida Constitution, only the
Florida Legislature can confer on executive branch entities the power to levy civil penalties. See
Fla. Const. art. I § 18 (“No administrative agency, except the Department of Military Affairs in an
appropriately convened court-martial action as provided by law, shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.”). The Florida Legislature
has not conferred upon the DOAH such a power in presiding over unlawful reprisal proceedings.
Therefore, the School Board’s suggestion that the Plaintiffs could have raised their civil free speech
claim and request for civil penalties and damages before the DOAH because the ALJ’s adjudication of the Plaintiff’s claims was “essentially civil in nature,” Def.’s Reply at 9, “is constitutionally
infirm.” Davis, 2009 WL 2009215, at *1.
Because the DOAH does not possess the power to preside over civil actions, the Plaintiffs’
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Section 1983 claims necessarily could not have been raised in the unlawful reprisal proceeding.
Res judicata, therefore, does not attach, and the motion to dismiss on this ground is denied.
B.
Collateral Estoppel
The School Board also contends that the Plaintiffs are collaterally estopped from asserting
a claim alleging unlawful retaliation based on the fact that the claim was litigated and decided in
the unlawful reprisal proceeding. The Court disagrees.
Collateral estoppel (otherwise known as issue preclusion) “serves to bar relitigation of
identical issues that have already been fully and fairly litigated.” United States v. Robinson, No. 1220319, 2012 WL 3984786, at *5 (S.D. Fla. Sept. 11, 2012) (citing Quinn v. Monroe County, 330
F.3d 1320, 1328 (11th Cir. 2003)). On this issue, Robinson, relied upon by the Plaintiffs, is instructive. There, the United States government filed a case in this District against the defendant physician for civil penalties for violations of the Controlled Substances Act, 21 U.S.C. §§ 801-904. The
government had previously instituted administrative proceedings before the DEA to revoke the
defendant’s DEA registration, claiming that he violated recordkeeping requirements of the Act.
After an administrative hearing, the ALJ issued a decision that recommended against revoking the
registration but rather that it be maintained on a conditional basis. The defendant moved to dismiss
the civil suit, arguing that it was barred by res judicata because of the previous administrative
proceeding. Judge Moreno denied the motion, finding that the Controlled Substances Act provides
that while a revocation of a physician’s DEA registration is adjudicated in an administrative proceeding, district courts have original jurisdiction over claims for civil penalties for violations of the
Act. Id. *5 (citing 21 U.S.C. §§ 824(c), 842(c)(1); 28 U.S.C. § 1355). Because the civil penalties
claims could not have been brought before the ALJ, res judicata did not bar the claims raised in
the complaint. Id. As to collateral estoppel, Judge Moreno stated:
[b]ecause the Court has already found that the claims in this case could not be
14
adjudicated in the administrative proceedings regarding [the defendant]’s registration, issue preclusion would only apply to bar the re-litigation of factual issues
already determined by the ALJ . . . [which] supports the factual allegations that give
rise to this complaint . . . [and] would only serve to satisfy the Government’s burden
in this case.
Id. at *6.
This Court sees no reason to depart from the reasoned analysis in Robinson. The Court has
just determined that the Section 1983 claim at issue in this case could not be adjudicated before the
DOAH and res judicata did not attach. If collateral estoppel applied at all, it would apply only to
the relitigation of the factual issues that were determined by the ALJ and adopted by the Department—namely, that the School Board committed an unlawful reprisal against the Plaintiffs. This
would serve only to support the Plaintiffs’ position that the School Board violated their First
Amendment rights. Accordingly, the motion to dismiss on the basis of collateral estoppel is denied.
C.
Municipal Liability
Next, the School Board argues that the Plaintiffs have again failed to state a claim against
it for municipal liability under Section 1983. The Court provided the operative legal framework in
its decision on the School Board’s first motion to dismiss:
A school board’s liability under Section 1983 may not be based on the doctrine of
respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). A
county is “liable under section 1983 only for acts for which [the school board] is
actually responsible.” Marsh v. Butler County, 268 F.3d 1014, 1027 (11th Cir. 2001)
(en banc). A school board is liable only when the school board’s “official policy”
causes a constitutional violation. Monell, 436 U.S. at 694. Thus, to state a Section
1983 claim against a school board, a plaintiff must “identify a municipal ‘policy’
or ‘custom’ that caused [his] injury.” Gold v. City of Miami, 151 F.3d 1346, 1350
(11th Cir. 1998) (citations and internal quotations omitted).
The Plaintiffs here, therefore, have two methods by which to establish the school
board’s policy: “identify either (1) an officially promulgated [school board] policy
or (2) an unofficial custom or practice of the [school board] shown through the
repeated acts of a final policy maker for the [school board].” Grech v. Clayton
County, 335 F.3d 1326, 1329 (11th Cir. 2003). Because a school board rarely will
have an officially adopted policy of permitting a particular constitutional violation,
most plaintiffs—the Plaintiffs here included—must show that the School Board
has a custom or practice of permitting the constitutional violation and that the
15
School Board’s custom or practice is “the moving force [behind] the constitutional
violation.” Id. at 1330 (citations and internal quotation marks omitted). The Plaintiffs acknowledge in their opposition that they must proceed via the custom route,
as there is no officially adopted School Board policy mandating that employees
seeking a charter school conversion be subject to reprisal. See Pls.’ Opp’n at 6.
“To prove Section 1983 liability based on custom, a plaintiff must establish a widespread practice that, although not authorized by written law or express municipal
policy, is ‘so permanent and well settled as to constitute a custom or usage with
the force of law.’” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th
Cir. 1991) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988))
(citation and internal quotation marks omitted). And “[b]ecause Florida law identifies the School Board as the policymaker for the School District, a single decision
by the Board may constitute School Board policy, even if not phrased as a formal
policy statement.” Brown v. Miami-Dade Cnty. Sch. Dist., No. 15-22077, 2015 WL
7450753, at *3 (S.D. Fla. Nov. 24, 2015); see also Cuesta v. Sch. Bd., 285 F.3d
962, 968 (11th Cir. 2002) (“Even in the absence of an express policy or custom, a
local government body can be held liable ‘for a single act or decision of a municipal
official with final policymaking authority in the area of the act or decision.’”
(quoting McMillian v. Johnson, 88 F.3d 1573, 1577 (11th Cir. 1996))).
Under a ratification theory, the School Board, “by actively endorsing or approving
the conduct of its employees or officials, may be held responsible for it.” Garvie
v. City of Fort Walton Beach, 366 F.3d 1186, 1189 (11th Cir. 2004) (citation and
internal quotation marks omitted). For the Plaintiffs to state a successful Section
1983 claim against the School Board based on this theory, however, “they must
demonstrate that local government policymakers had an opportunity to review the
subordinate’s decision and agreed with both the decision and the decision’s basis.”
Id. (citation and internal quotation marks omitted).
Fernandez, 2015 WL 9474616, at *3-4. In their First Amended Complaint, the Plaintiffs’ allegations in support of their custom theory appeared only in a single paragraph.
Unofficial Custom or Practice. The constitutional violations resulted from an unofficial custom or practice of the School Board of Miami-Dade County to prevent
the establishment of a conversion charter school as evidenced by the repeated acts
and statements of final school board policy makers, including members of the Superintendent’s cabinet, to delay, hinder, and prevent Plaintiffs from discussing, considering, and exploring the possibility of a conversion charter school.
First Am. Compl. ¶ 49. The Court found that such a conclusory assertion, unsupported by factual
allegations, could not survive Twombly and Iqbal scrutiny. Fernandez, 2015 WL 9474616, at *4.
The First Amended Complaint alleged “specific actions taken by the Superintendent’s cabinet,
other District officials and employees, or ‘the District’ (in general terms), but it allege[d] no facts
16
involving actions taken by the actual School Board itself, the only entity with final policymaking
authority for the purposes of stating a claim for relief under Monell.” Id. (citing Andrade v. Miami
Dade County, No. 09-23220, 2011 WL 4345665, at *8 (“The mere mention of policy, practice or
custom is not enough, for a plaintiff must do something more than simply allege that such an
official policy [or custom] exists.”)). Furthermore, the Court admonished the Plaintiffs for failing
to allege “that the School Board reviewed and ratified the decisions of any of the District officials
regarding actions taken against the Plaintiffs or that the Board agreed with the decisions and the
bases for those decisions.” Id. (citing Garvie, 366 F.3d at 1189).
Considering the Second Amended Complaint, the Court now concludes that the Plaintiffs
have stated a claim for municipal liability under Monell sufficient to withstand a motion to dismiss.
The Plaintiffs have provided far more than a mere conclusory allegation that a custom existed.
Specifically, they allege that the School Board exhibited a bias against charter schools through its
actions in blocking the conversion attempts of both Snapper Creek Elementary and Key Biscayne
K-8 Center. In the Snapper Creek conversion attempt, for example, members of the School Board
stated, inter alia, that “there will be no conversions” and that allowing a conversion charter school
would be “opening a can of worms.” Second Am. Compl. ¶¶ 61-62. The School Board then denied
twice Snapper Creek’s conversion application. And in the Key Biscayne attempt, the Plaintiffs
have provided facts that plausibly suggest the School Board’s customary response when a public
school attempts to convert, given how closely that situation mirrored the situation at Neva King,
down to a question-and-answer session dominated by District officials in which no one in favor
of the conversion was permitted to speak.
The School Board forcefully argues that the allegations pertaining to the Snapper Creek
conversion could have no bearing on whether a prohibited custom exists. But if the School Board’s
alleged “anti-charter bias” is as pervasive as the Plaintiffs contend, the fear of reprisal from the
17
School Board could have chilled any number of potential conversion efforts. The Court will certainly not penalize the Plaintiffs by dismissing their claim simply due to the fact that attempts to
convert a public school into a charter school in Miami-Dade County have been exceedingly rare.
Consequently, the Court finds that the Plaintiffs have sufficiently alleged that a custom exists.
Even had the Plaintiffs not established the existence of a custom, their allegations pertaining
to their own situation state a claim under a ratification theory, as well. See Garvie, 366 F.3d at
1189 (holding that a municipal entity, “by actively endorsing or approving the conduct of its
employees or officials, may be held responsible for it”). After Fernandez and Cristobol were
removed from Neva King, Keyla Martinez of the Neva King EESAC sent an email to the School
Board stating that they were “being treated like criminals” by the School Board. Second Am.
Compl. ¶ 50. Martinez also claimed that the School Board denied parents entry into Neva King
who wished to hold an emergency PTA meeting to discuss the fallout from the removal of the
principal and vice-principal from their children’s school. Id. Even more damning against the
School Board are the allegations regarding Tony Peterle, the Neva King parent who appeared
personally before the School Board, informed it about the events at Neva King, and asked that it
allow the charter discussion to continue. Id. ¶ 51. He also emailed the School Board members individually to express his concern about the District administrators’ conduct at Neva King. Id. ¶ 52.
And he met with Dr. Perez, a School Board member, who admitted, in the presence of School Board
counsel, “that the actions of the District administrators were against the law.” Id. ¶ 53. Accepting
these well-pleaded allegations as true, the Court is satisfied that the Plaintiffs have plausibly
alleged that the School Board actively endorsed or approved the conduct of its employees or officials who punished the Plaintiffs.
The Plaintiffs have met their burden at this stage of the litigation to “demonstrate that local
government policymakers had an opportunity to review the subordinate’s decision and agreed with
18
both the decision and the decision’s basis.” Garvie, 366 F.3d at 1189. The factual allegations as
to Martinez and Peterle’s interactions with the School Board sufficiently demonstrate that the
School Board had an opportunity to review what had transpired at Neva King, as well as their
administrators and officials’ involvement in what had transpired, and agreed with the decision. See
Cuesta, 285 F.3d at 968 (“Even in the absence of an express policy or custom, a local government
body can be held liable ‘for a single act or decision of a municipal official with final policymaking
authority in the area of the act or decision.’” (quoting McMillian, 88 F.3d at 1577)). Accordingly,
the motion to dismiss on this ground is denied.
D.
First Amendment
Finally, the School Board argues that the Plaintiffs have failed to state a claim for violations of their free speech rights. “Speech by citizens on matters of public concern lies at the heart
of the First Amendment.” Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). “Government regulation
of employees’ speech differs from its regulation of the speech of its citizenry,” however, because
the government, “[a]cting as an employer, . . . is afforded broad discretion in its employment
decisions.” Boyce v. Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007) (per curiam). But “[a] government employer may not demote or discharge a public employee in retaliation for speech protected
by the First Amendment,” as a public employee “does not ‘relinquish the First Amendment rights
he would otherwise enjoy as [a citizen] to comment on matters of public interest.’” Alves v. Bd. of
Regents of Univ. Sys., 804 F.3d 1149, 1159 (11th Cir. 2015) (quoting Pickering v. Bd. of Educ.,
391 U.S. 563, 568 (1968)), cert. denied, 136 S. Ct. 1838 (2016); see also Lane, 134 S. Ct. at 2377
(“[P]ublic employees do not renounce their citizenship when they accept employment, and [the
Supreme Court] has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights.”).
As they are public employees, the Plaintiffs’ First Amendment claims are subject to a
19
four-stage analysis. Moss v. City of Pembroke Pines, 782 F.3d 613, 617 (11th Cir. 2015). First, the
Court must consider whether their speech was made as a citizen and whether it implicated a matter
of public concern. Id. If this requirement is satisfied, the Court must weigh the Plaintiffs’ First
Amendment interests against the School Board’s interest in regulating their speech to promote “the
efficiency of the public services it performs through its employees.” Id. at 618 (quoting Carter v.
City of Melbourne, 731 F.3d 1161, 1168 (11th Cir. 2013)). These two questions are questions of
law for the Court to decide. Id. If the Court finds that the speech is protected, the analysis proceeds
to stage three, which requires the Plaintiffs to show that their speech was a substantial motivating
factor in the School Board’s adverse employment action. Id. And if the Plaintiffs make this showing, the burden shifts to the School Board to prove that it would have reached the same decision
even in the absence of the protected speech. Id. Because these final two questions, which address
the casual link between the Plaintiffs’ speech and the alleged adverse employment actions, are questions of fact, a jury must resolve them unless the evidence is undisputed. Id.
The School Board’s motion to dismiss raises only the first part of the first stage of the
analysis—whether the Plaintiffs’ speech pertaining to the Neva King inquiry was citizen or employee speech—so the Court restricts its focus accordingly. The Eleventh Circuit just recently
described the pertinent analysis as follows:
The Supreme Court in Garcetti [v. Ceballos, 547 U.S. 410 (2006)] explained that
the line between speaking as a citizen or as a public employee turns on whether the
speech “owes its existence to a public employee’s professional responsibilities.”
547 U.S. at 421-22. If the speech does, then “[r]estricting [it] . . . does not infringe
any liberties the employee might have enjoyed as a private citizen. It simply reflects
the exercise of employer control over what the employer itself has commissioned
or created.” Id.; see also Boyce v. Andrew, 510 F.3d 1333, 1342-43 (11th Cir. 2007)
(collecting cases “[f]ollowing Garcetti” in which we interpreted the phrase “owes
its existence to”). In Lane v. Franks, 134 S. Ct. 2369 (2014), the Supreme Court
clarified what it meant in Garcetti when it used the phrase “owes its existence to”:
[T]he mere fact that a citizen’s speech concerns information acquired
by virtue of his public employment does not transform that speech
20
into employee—rather than citizen—speech. The critical question
under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns
those duties . . . .
Id. at 2379. We subsequently explained that “[a]fter Lane,” Garcetti’s 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, 804 F.3d at 1162.
Carollo v. Boria, — F.3d —, 2016 WL 4375009, at *4 (11th Cir. Aug. 17, 2016) (emphases added)
(footnote omitted). In Garcetti, the Supreme Court explained that a court must make a “practical”
inquiry to determine whether speech “owes its existence to” an employee’s professional duties.
547 U.S. at 424. Practical factors that may be relevant to, but not dispositive of, that inquiry
include 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. Moss, 718 F.3d at 618.
The Court is unable to undergo such an inquiry at this juncture for several reasons. First,
even had the Plaintiffs alleged the content of their respective job descriptions (which they have not),
or had the School Board submitted those job descriptions in a form the Court could consider in
ruling on a motion to dismiss (which it has not), “[i]t is not appropriate at the motion to dismiss
stage for [a court] to interpret” an employee’s job description. Carollo, 2016 WL 4375009, at *5;
see also Garcetti, 547 U.S. at 424-25 (“Formal job descriptions often bear little resemblance to the
duties an employee actually is expected to perform.”). Second, because the record has not yet been
developed, the Court cannot know whether the speech occurred at the workplace and, regardless,
cannot make any inference detrimental to the Plaintiffs or their claims at this stage by assuming
that all of the speech took place at Neva King. Third, the Second Amended Complaint does not
allege the specific content of the Plaintiffs’ speech,2 which will be necessary for the Court’s ultimate determination of that speech’s status vis-à-vis the First Amendment. See Vila v. Padron, 484
2
The School Board has advanced no argument as to the sufficiency of the Plaintiffs’ factual allegations.
21
F.3d 1334, 1340 (11th Cir. 2007) (“To determine whether [a] statement receives First Amendment
protection . . . we look to the ‘content, form, and context of a given statement, as revealed by the
whole record.’” (quoting Connick v. Myers, 461 U.S. 138, 146 (1983))).
And finally, the subject matter of the Plaintiffs’ jobs has not yet been defined, so the Court
cannot determine whether any speech was made “in accordance with or in furtherance of the ordinary responsibilities of [the Plaintiffs’] employment” or if the speech merely “concerns the ordinary responsibilities of [their] employment.” Alves, 804 F.3d at 1162. In Garcetti, the Supreme
Court declined to “articulate a comprehensive framework for defining the scope of an employee’s
duties in cases where there is room for serious debate” as to what those duties are. 547 U.S. at 424.
There is such “room for serious debate” here. Indeed, the Court need look no further for justification of a debate than several statements made by the District’s own administrators during the Plaintiffs’ disciplinary investigations: (1) Fernandez and Cristobol’s Conference for the Record summary stated that “converting Neva King . . . into a charter conversion school was not a part of
[their] official duties,” Second Am. Compl. ¶ 27 (emphasis added); (2) the letter from Miranda
to Ramirez notifying her of the School Board’s investigation into her conduct alleged that she used
school time and resources to conduct “non-school related business,” id. ¶ 24 (emphasis added);
and (3) Ramirez’s Conference for the Record summary stated that converting Neva King into a
charter school “was not a part of Ms. Ramirez’s official duties” and “providing information and
feedback pertaining to the charter conversion was not an assignment,” id. ¶ 32 (emphases added).
A developed factual record that sheds light on the Plaintiffs’ “ordinary responsibilities” will be
especially important, considering that each of the three Plaintiffs held a different position at Neva
King, presumably each with its own unique responsibilities.
The School Board contends that the Plaintiffs’ First Amendment claims must fail because
“the issue of whether an employee’s involvement in activities in furtherance of a school conversion
22
(during working hours) is part of the employee’s duties has been settled in the affirmative by” the
Eleventh Circuit’s decision in D’Angelo v. School Board of Polk County, 497 F.3d 1203 (11th
Cir. 2007). Def.’s Reply at 7. In D’Angelo, the plaintiff, D’Angelo, was hired as the principal of
Kathleen High School, a struggling school in Polk County, Florida. After D’Angelo engaged in a
failed attempt to convert Kathleen High to a charter school, the school district elected not to renew
his contract, thus ending his employment. D’Angelo filed a complaint in federal court alleging that
the Polk County School Board terminated him in retaliation for his exercise of rights protected
by the First Amendment. Id. at 1206-07. At trial, D’Angelo testified that charter conversion was
not “one of [his] assigned duties,” but admitted that “[i]t was incumbent upon [him] to investigate
Charter and to move towards Charter for the betterment of the students at Kathleen High School.”
Id. at 1206 (alterations in original). He further explained that his “number one duty, and the duty
of any principal, [wa]s to do whatever [he could] for the kids.” Id. (alterations in original). After
the close of his case-in-chief, the school board moved for judgment as a matter of law. The district
court granted the motion, concluding that, under Garcetti, D’Angelo’s speech was not protected
by the First Amendment.
The Eleventh Circuit affirmed, holding that “D’Angelo’s speech on charter conversion is not
protected by the First Amendment because he did not speak as a citizen, as required by Garcetti.”
Id. at 1210. Important to that conclusion was D’Angelo’s admission “that his efforts to convert
his school to charter status were to fulfill his professional duties.” Id. That admission, along with the
admission “that he pursued charter conversion to ‘explore any and all possibilities to improve the
quality of education at’” his school, “which was one of his listed duties and he described as his
‘number one duty’ in his ‘job as a principal,’” sufficed to bring all of his speech relating to the
conversion within the scope of his public employment and thus outside the scope of First Amendment protection. Id. (citing Battle v. Bd. of Regents, 468 F.3d 755, 761 (11th Cir. 2006) (per curiam)
23
(relying on a plaintiff’s admission that “she had a clear employment duty” in ruling that her speech
“was made pursuant to her official employment responsibilities”)).
Thus, what was dispositive in D’Angelo was the fact that D’Angelo admitted at trial that
he pursued charter conversion “pursuant to his [official] duties.” Id. (quoting Garcetti, 547 U.S. at
424). The Eleventh Circuit did not undergo the comprehensive, “practical” inquiry outlined above
because D’Angelo’s admission obviated the need to do so. Here, by contrast, there is no admission
by any of the Plaintiffs that their speech was made pursuant to any “official responsibilities.” So
D’Angelo does not stand for the proposition, as the School Board asserts, that if an employee is
involved in charter conversion activities, those activities are necessarily part of that employee’s
official responsibilities.3
The School Board also argues, based on D’Angelo, that Fernandez specifically, as the
former principal of Neva King, cannot state a First Amendment retaliation claim. In D’Angelo,
the Eleventh Circuit decided that, under Florida law, D’Angelo undertook his conversion efforts in
his capacity as the principal of Kathleen High, not as a citizen, because the statute governing charter
conversion provides that “[a]n application for a conversion charter school shall be made by the
district school board, the principal, teachers, parents, and/or the school advisory council.” Id.
(emphasis added) (quoting Fla. Stat. § 1002.33(3)(b)). Because there was no evidence that
D’Angelo was a parent or a teacher, “his efforts to convert Kathleen High to charter status necessarily were in his capacity as the principal of the school.” Id. The School Board contends that
because the same statutory provision invoked in D’Angelo remains in effect today, and because
3
The School Board mentions several times in its briefing that many of the Plaintiffs’ actions in furtherance of the
conversion effort were undertaken “during working hours” or “during school hours,” Defs.’ Mot. at 17; Defs.’
Reply at 7, as if to argue that the use of school time necessarily renders the Plaintiffs’ speech employee speech. It
does not. The Eleventh Circuit in D’Angelo made clear that “[a]lthough D’Angelo often used school resources and
spoke on school premises about charter conversion,” the court “d[id] not rely on that fact to conclude that D’Angelo
did not speak as a citizen.” 497 F.3d at 1211. This Court, therefore, will not hold that the Plaintiffs were not speaking
as citizens simply because they researched charter conversion during school hours.
24
the Second Amended Complaint contains the allegation that Fernandez was the principal of Neva
King, not a parent or a teacher, any speech by Fernandez regarding the conversion of Neva King
necessarily was made in his capacity as its principal, not as a citizen.
The Court disagrees. The critical distinction between D’Angelo and this case, for purposes
of this motion, is the posture of the two cases. The Eleventh Circuit in D’Angelo was reviewing a
decision by the district court granting judgment as a matter of law in favor of the school board at
trial after D’Angelo had put on all the evidence in his case-in-chief. And because there was “no
evidence that D’Angelo was a parent or a teacher,” the court determined that his conversion efforts
were necessarily made in the capacity as principal of the school. Id. (emphasis added) Here, on
review of a motion to dismiss, considering nothing but the allegations contained within the Complaint, this Court cannot and will not be so certain.4 Moreover, it bears repeating that D’Angelo
admitted that he acted pursuant to his official duties as principal in seeking the charter conversion,
and Fernandez has made no such admission here.
*
*
*
Given that this case is in its earliest stages; given that the Court must presently view the
allegations in the complaint in the light most favorable to the Plaintiffs, Bishop, 817 F.3d at 1270;
given that there is “room for serious debate” as to the scope of the Plaintiffs’ employment duties,
Garcetti, 547 U.S. at 424; given that the District and School Board have potentially conflicting
interpretations of the scope of the Plaintiffs’ duties; given that it is presently unclear to the Court
what exactly the Plaintiffs’ speech entailed; and given that undergoing Garcetti’s practical inquiry
into the Plaintiffs’ duties would require a much more developed factual record than is presently
4
The Court notes that (but takes no position on whether) there may be an argument to be made that the unlawful
reprisal statute itself signifies the Florida Legislature’s intent that speech regarding charter school conversions should
be protected. See Fla. Stat. § 1002.33(4)(a) (“No district school board, or district school board employee who has
control over personnel actions, shall take unlawful reprisal against another district school board employee because
that employee is either directly or indirectly involved with an application to establish a charter school.”).
25
before the Court, it would be inappropriate for the Court to conclude at this stage, as a matter of
law, that the Plaintiffs did not speak as citizens.
“Discovery will illuminate exactly” what speech the Plaintiffs’ engaged in and what their
responsibilities were, which will enable the Court to make an informed determination at a later
stage of the litigation. Carollo, 2016 WL 4375009, at *5. Thus, “with respect to the only question
before [the Court] under Rules 8(a) and 12(b)(6)—whether, taking the factual allegations in the
complaint as true, the complaint states a claim—[the Court] find[s] it plausible under Iqbal and
Twombly,” id., that the Plaintiffs spoke as citizens and not pursuant to, in accordance with, or in
furtherance of their ordinary job responsibilities when they engaged in speech regarding the Neva
King conversion effort.
Because the School Board’s motion raises no other issue for consideration regarding the
substance of the Plaintiffs’ First Amendment claims, the Court’s analysis need not proceed further.
Accordingly, the motion to dismiss on this final ground is denied.
IV.
CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED that the School Board’s
Motion to Dismiss [ECF No. 32] is DENIED. The School Board shall ANSWER the Second
Amended Complaint by September 9, 2016.
DONE AND ORDERED in Chambers at Miami, Florida, this 19th day of August, 2016.
__________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
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