Moise v. The School Board Of Collier County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

LINDA MOISE,

Plaintiff,

v. Case No. 2:20-cv-102-JLB-NPM

THE SCHOOL BOARD OF COLLIER

COUNTY,

Defendant.

/

ORDER

Plaintiff Linda Moise is a former assistant principal at Corkscrew Middle

School in Collier County, Florida. She sues the School Board of Collier County

(“School Board”) because, among other things, she claims that she was discharged

from her job as retaliation for whistleblowing. Ms. Moise contends that, as a

preliminary remedy, she is entitled to temporary reinstatement under the Florida

Whistle-blower’s Act (“FWA”). Fla. Stat § 112.3187.

After reviewing Ms. Moise’s motion for temporary reinstatement and the

School Board’s opposition, the Magistrate Judge entered a Report and

Recommendation (“R&R”), opining that Ms. Moise’s motion should be denied

because she was not “discharged” within the meaning of the FWA. (Docs. 16, 21,

23.) Ms. Moise filed an objection to the R&R, claiming that the Magistrate Judge’s

ruling would saddle her with too high a burden of proof at this stage of the

litigation. (Doc. 24.)

After carefully reviewing the R&R, Ms. Moise’s objections, the underlying

motion, and the School Board’s responses, the Court agrees with the Magistrate

Judge that Ms. Moise’s motion for temporary reinstatement should be denied. But

the Court reaches this conclusion on different grounds: Ms. Moise has not

sufficiently demonstrated that she made any whistleblower communications

protected under the FWA. Accordingly, the R&R (Doc. 23) is ADOPTED IN PART,

and Ms. Moise’s motion (Doc. 16) is DENIED.

BACKGROUND

The R&R excellently summarizes the facts of this case, and its restatement of

the facts is fully incorporated into this Order by reference. Nevertheless, for

purposes of the readers’ convenience, some facts bear repeating.

Ms. Moise began working at Corkscrew Middle School in August 2019. (Doc.

23 at 2.) On Wednesday, October 30, 2019, a student with behavioral issues kicked

Ms. Moise in the shins and knees and threated to kill her. (Id. at 3.) The next day

(Thursday), Ms. Moise stayed home from work to recuperate and wrote an email to

Principal Ronna Smith and other school employees. (Id.) In that email (“October 31

Email”), Ms. Moise informed the recipients that she would be pressing charges

against the student. (Doc. 21-1, Ex. 2.) She also stated, “[T]he threat assessment1

is still open for the student . . . . It’s 99% filled out. Just need to submit but I don’t

know if we need to add anything there.” (Id.) On November 3 (Sunday), Ms. Moise

1 Section 1006.07, Florida Statutes, as amended by the Marjorie Stoneman

Douglas High School Public Safety Act (Ch. 2018-3, § 24, Laws of Fla.), requires

each school district to adopt policies for the establishment of threat assessment

teams to assess potentially dangerous students.

sent another email (“November 3 Email”) to Principal Smith and others, in which

she stated that she was not sure “what the update is” on the problematic student or

“if/when he would return to school,” but she would like to express her opinion that

this student was a danger to staff and other students, and she did not feel safe

around him. (Id., Ex. 3.) She concluded the email by saying, “Again, I am unsure of

what the plan is for the student since I’ve been gone.” (Id.)

Ms. Moise returned to work on the following Monday (November 4) and

continued to work at Corkscrew Middle School until November 20, 2019. (Doc. 23 at

4.) On that day—when Ms. Moise was the only administrator in the building—a

“behavioral specialist” informed Ms. Moise that the same problematic student said

he was “going to kill himself, kill [Ms. Moise], and kick [her] in the legs again like

he did before.” (Doc. 21-1, Ex. 1.) Later that day, Ms. Moise emailed Principal

Smith and others regarding the second threat assessment for the student and

stated that “[a]ny disciplinary issues with this student should be handled by

another administrator.” (Id., Ex. 4.) Principal Smith responded, “There will . . . be

instances like today that both Mrs. Peacock and I will be out of the building. I

believe in that instance you will have to respond as the [assistant principal], but I

believe in knowing the situation that maybe the deputy can some with you.” (Id.)

The next morning, on November 21, Ms. Moise texted her supervisor that she

would not be at work because she had a migraine. (Doc. 21-1, Ex. 1.) She then

claims to have gone to her doctor, asked him to fill out the school district’s leave

request sheet, and “faxed it over to benefits.” (Id.) Her leave was never approved;

the parties apparently disputed whether Ms. Moise could (or needed to) take any

such leave. (Id.) On December 5, 2019, Ms. Moise provided the school district with

a two-page Board Policy Narrative (a document she produced according to School

Board Policy 3470, which governs dispute resolution). The Narrative is essentially

a timeline of the events discussed earlier, and many of the entries in the timeline

relate to Ms. Moise’s efforts to take medical leave. The concluding paragraph in the

Narrative provides, in pertinent part:

I feel as if I have been bullied, harassed, and retaliated against. All I

have done since the initial incident occurred was voice my concern for

the safety of the staff, students, and myself from a student who has

demonstrated that he is capable of hurting others. When nothing was

done, I continued to show up and do my job until a threat was made

against me. At that point I had no choice but to think about my well-

being and safety since no one else seemed to care. Even after that I have

been met with road blocks at every turn in trying to take some time to

take care of my mental health. . . . Some of the events following the

initial attack could have been prevented if my supervisor would have

put the appropriate safety measure in place to keep me from that

student. At this point I do not feel that I can continue to serve under

the leadership of someone who has blatant disregard for the safety and

security of not only myself but of other staff members and students. The

thought of walking back into CMS where there is a student that was

physically violent towards me creates fear and anxiety which will

prevent me from doing my job effectively at CMS. Therefore, I am

requesting a transfer to another school or position within the district

after my physician sees it fit for me to return per her original statement.

(Id.) (emphasis added.)

Ms. Moise discussed her request for a transfer with the school district’s

executive director of human resources, who informed her that there were “no vacant

administrative positions in any schools.” (Doc. 21-1, Ex. 5.) The alternative

positions available to Ms. Moise were essentially demotions. Conversely, Ms. Moise

claims there were “several” other assistant principal positions available in other

school districts at the time. (Doc. 16 at 5.) The executive director of human

resources informed Ms. Moise that if she did not accept an available alternative

position, she would be expected to return to work. But she never did, and her

probationary employment contract was consequently terminated on December 18,

2019. (Doc. 21-1 at ¶ 23.) Two months later, Ms. Moise filed the complaint in this

action and subsequently moved for temporary reinstatement. (Docs. 1, 16.) Count II

of her complaint sets forth a cause of action under the FWA. (Doc. 1 at 7–9.)

DISCUSSION

I. Ms. Moise has not made a sufficient evidentiary showing that she

made any protected communications under the FWA, and therefore

her motion for temporary reinstatement is denied.

The FWA provides that a public employee who is discharged for engaging in

an activity protected by the statute can—pending the outcome of their civil

complaint—seek temporary reinstatement to their former position or an equivalent

position. Fla. Stat. § 112.3187(9)(f). In relevant part, the statute provides that a

public employee is entitled to temporary reinstatement if they:

complain[] of being discharged in retaliation for a protected disclosure

and if a court of competent jurisdiction . . . determines that the

disclosure was not made in bad faith or for a wrongful purpose or

occurred after an agency's initiation of a personnel action against the

employee which includes documentation of the employee's violation of a

disciplinary standard or performance deficiency.

Id. To summarize, a public employee seeking temporary reinstatement must show

three elements: “1) prior to termination the employee made a disclosure protected

by the statute; 2) the employee was discharged; and 3) the disclosure was not made

in bad faith or for a wrongful purpose, and did not occur after an agency's personnel

action against the employee.” State, Dep't of Transp. v. Fla. Comm'n on Hum. Rels.,

842 So. 2d 253, 255 (Fla. 1st DCA 2003) (citing Lindamood v. Off. of State Att'y,

Ninth Jud. Cir. of Fla., 731 So. 2d 829, 831 (Fla. 5th DCA 1999)).

The elements of temporary reinstatement do not resemble the elements of a

preliminary injunction, and that is by design; the FWA specifically distinguishes

injunctions from temporary reinstatement. See Marchetti v. Sch. Bd. of Broward

Cnty., 117 So. 3d 811, 814 (Fla. 4th DCA 2013). “To qualify for relief under

subsection 112.3187(9)(f), a plaintiff is required only to make the showing required

under the statute . . . .” Id. (emphasis added).

The first requirement of section 112.3187(9)(f) is that the employee must

demonstrate, at least preliminarily, that they made a protected disclosure. A

disclosure protected by the FWA must communicate one of two things:

(a) Any 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 contractor which creates and presents a substantial and

specific danger to the public's health, safety, or welfare.

(b) Any act or suspected act of gross mismanagement, malfeasance,

misfeasance, gross waste of public funds, suspected or actual Medicaid

fraud or abuse, or gross neglect of duty committed by an employee or

agent of an agency or independent contractor.

Fla. Stat. § 112.3187(5). But an employee cannot obtain temporary reinstatement

based on “vague and conclusory allegations” of a protected disclosure. Broward

Cnty. Sheriff's Off. v. Hamby, 300 So. 3d 213, 216 (Fla. 4th DCA 2020) (collecting

cases and quashing trial court’s order of temporary reinstatement for departing

from the essential requirements of law).2 At a minimum, the employee must

provide “specific factual details” or make a “sufficient evidentiary showing” from

which a court can discern whether the employee made one of the two types of

communications protected by the FWA. Id. at 217.

Ms. Moise’s complaint and motion for temporary reinstatement identify three

protected communications made on: (1) October 31, 2019; (2) November 3, 2019; and

(3) December 5, 2019. (Doc. 1 at ¶¶16–17; Doc. 16 at ¶¶ 9–10.) Ms. Moise

characterizes each communication as a “signed, written complaint” about three

issues: (1) the School Board “not completing legally required behavioral threat

assessments”; (2) Corkscrew Middle School not having a “full-time behavioralist on

staff as required”; and (3) Corkscrew Middle School being “unsafe” for Ms. Moise if

she had to supervise the student who attacked her. (Id.) The last issue—according

to Ms. Moise—necessitated an “accommodation of not having to be in the presence

of the student,” which she claims to have requested in the November 3 and

December 5 communications. (Id.) Ms. Moise also claims that her communications

blew the whistle on the School Board’s supposed noncompliance with the

Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796), the Individuals with Disabilities

2 In fairness, Hamby was decided one day after the School Board filed its

opposition to the motion for temporary reinstatement in this case. But the cases

collected in Hamby demonstrate that Florida courts demanded some specificity

before Hamby was decided. See, e.g., Hatfield v. N. Broward Hosp. Dist., 277 So. 3d

121, 123 (Fla. 4th DCA 2019) (affirming denial of temporary reinstatement where

employee claimed she was fired as retaliation for her grand jury testimony but

refused to disclose what she testified about).

Act (20 U.S.C. §§ 1400–50), and the Marjorie Stoneman Douglas High School Public

Safety Act (Ch. 2018-3, § 24, Laws of Fla.). (Id.)

The School Board has provided the Court with the communications that Ms.

Moise claims were protected: (1) the October 31 Email, (2) the November 3 Email,

and (3) the Board Policy Narrative. (Doc. 21-1, Ex. 1–3.) Ms. Moise does not dispute

that these are the communications she referenced in her complaint and motion.

The October 31 Email and November 3 Email do not appear to be protected

communications under the FWA. The emails do not read like “complaints,” let

alone “signed, written complaints,” as Ms. Moise describes them. In the October 31

Email, Ms. Moise wrote that the behavioral threat assessment for the student who

attacked her is “99% filled out” and asked if “we need to add anything there.” (Doc.

21-1, Ex. 2.) This seems to contradict her allegation that no “legally required

behavioral threat assessment” was done. In the November 3 Email, Ms. Moise

expresses her view that the student is a danger, and that she is “unsure of what the

plan is” for the student since she has been gone. (Id. at 3.) Neither email refers to

any violation of law or gross mismanagement. At this stage, Ms. Moise has not

provided the Court with “specific factual details” or made a “sufficient evidentiary

showing” of how these seemingly innocuous emails entitle her to whistleblower

protection. Hamby, 300 So. 3d at 216; see also Castro v. Sch. Bd. of Manatee Cnty.,

903 F. Supp. 2d 1290, 1303 (M.D. Fla. 2012) (finding that emails which “sought

guidance” and “posed questions” were not protected under the FWA).

The Board Policy Narrative likewise does not appear to be a protected

communication, at least at this point. Apart from a cross-reference to the October

31 Email (which has already been discussed), the Board Policy Narrative does not

provide that the School Board failed to complete a “legally required behavioral

threat assessment.” While Ms. Moise claims to have blown the whistle on the

school’s lack of a “full-time behavioralist on staff as required,” the Board Policy

Narrative provides that Ms. Moise was “not sure if we had a behavioral specialist”

as of November 5, 2020. (Id., Ex. 1) (emphasis added). Later entries refer to a

“behavioral specialist,” implying that such a person may have been working at the

school all along. (Id.) The Board Policy Narrative’s concluding paragraph accuses

the School Board of failing to take “appropriate safety measures,” but the “11/20”

entry is consistent with what Principal Smith told Ms. Moise: she may have to

interact with the problematic student when she is the only administrator at the

school, but she could ask the youth resource deputy to accompany her for

safety. (Id., Ex. 4.) Nothing in the Board Policy Narrative suggests that the School

Board’s approach was illegal, let alone violated three different statutes.

On the face of things, it appears Ms. Moise believed that the School Board’s

measures were not “appropriate” because she preferred different solutions: either a

total firewall between herself and the student, or a transfer to another assistant-

principal position at a different school. But expressing frustration with the School

Board’s approach is not the same as reporting illegal activity or gross

mismanagement under the FWA. See Trzcinka v. Ramirez, No. 6:15-cv-1055-Orl-

31DCI, 2016 WL 6524411, at *3 (M.D. Fla. Nov. 3, 2016) (holding that an email to

human resources “express[ing] frustration concerning the lack of better paying

opportunities” was not a protected disclosure under the FWA); cf. Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“We are not in the

business of adjudging whether employment decisions are prudent or fair.”).

At bottom, none of Ms. Moise’s communications clarify the foundational

questions of her FWA claim: (1) what illegal activity did Ms. Moise blow the whistle

on, and (2) why was it illegal? And while the Court does not expect Ms. Moise to

prove the merits of her case at the inception of litigation, it does expect her to

provide enough specific information for the Court to infer—at least initially—that

she made any kind of protected communication to trigger the reinstatement

provision of the FWA. Hamby, 300 So. 3d at 216.

Accordingly, Ms. Moise’s motion for temporary reinstatement is denied.

II. Ms. Moise Was Discharged from Her Employment.

Although the Court has held that Ms. Moise failed to make the requisite

showing that any of her communications were “protected” under the reinstatement

provision of the FWA, the Court nevertheless explains why it has not adopted the

R&R’s recommendation that Ms. Moise was not “discharged” from her employment.

As explained earlier, a person seeking temporary reinstatement under the FWA

must show that they were “discharged.” § 112.3187(9)(f); Dep't of Transp., 842 So.

2d at 255 (citing Lindamood, 731 So. 2d at 831). The R&R suggests that Ms.

Moise’s “refusal to continue working in her position or accept the [School District’s]

proposed transfer’s does not amount to being discharged within the meaning of the

FWA’s reinstatement provision.” (Doc. 23 at 11.) To support its conclusion that Ms.

Moise was not “discharged” within the meaning of the statute, the R&R principally

relied on two cases: Metro. Dade Cnty. v. Milton, 707 So. 2d 913 (Fla. 3d DCA 1998),

and Luster v. W. Palm Beach Hous. Auth., 801 So. 2d 122 (Fla. 4th DCA 2001).

But, unlike the employees in Milton and Luster, Ms. Moise was unquestionably

discharged from her employment.

In Milton, an employee of the Department of Corrections and Rehabilitation

of Metropolitan Dade County alleged that she was “demot[ed] to lieutenant

allegedly in retaliation for her disclosures concerning defendants.” 707 So. 2d at

914. The trial court temporarily reinstated the employee to her former position

under section 112.3187(9)(f). Id. The Third DCA reversed the reinstatement and

held, consistent with the plain language of the statute, that the FWA’s temporary

reinstatement provision applies only to employees who complain of being

discharged. Id. at 915. In other words, the Third DCA held that a demotion is not a

discharge. Milton is therefore distinguishable from this case because Ms. Moise is

complaining that she was discharged—not demoted—for her whistleblowing.

Similarly, in Luster, an employee of the West Palm Beach Housing Authority

alleged that she was terminated for reporting regulatory violations to the Federal

Housing and Urban Development Agency. 801 So. 2d. at 123. According to the

employee, her employer decided to “reorganize” shortly after she reported the

violations, and the department where she worked was eliminated during the

reorganization. Id. The employee was apparently offered “another position at the

same salary.” Id. The parties disagreed on whether the employee accepted the

position or not, but the employee claimed that she was not given the position

despite accepting it and was later terminated when her department closed. Id. The

trial court denied the employee’s motion for temporary reinstatement, and the

Fourth DCA affirmed. Id. at 124. In support of its holding, the Fourth DCA

explained:

Where an employee has been simply transferred or demoted, there is no

statutory right to temporary reinstatement. See Metro. Dade County v.

Milton, 707 So. 2d 913, 914–15 (Fla. 3d DCA 1998). In this case, the

trial court could have concluded that, at most, appellant had been

transferred but refused the position offered. Thus, she was not

discharged. She had a position with appellee and refused to accept

it. . . .

While appellant maintains that she did accept the position but was then

not placed in it, this was a factual dispute for the trial court to resolve.

As it is, the evidence supports the trial court's denial of the temporary

reinstatement.

Id. at 123–24 (emphasis added). Stated differently, the Luster court’s holding was

based on its deference to a perceived factual finding by the trial court: the employee

was not discharged. Rather, as the trial court in Luster apparently found, the

employee refused to accept an alternative job after hers was phased out due to a

“reorganization.” Under this assumption, it is easy to see why the Fourth DCA

affirmed the trial court’s ruling. Nobody was discharged; the employee simply

refused to accept alternative employment after her job ceased to exist.

Here, the parties do not dispute that Ms. Moise was discharged when the

School District terminated her contract. (Doc. 21-1 at ¶ 23.) While the parties may

disagree on why she was discharged, this disagreement is not relevant to section

112.3187(9)@), which simply requires the fact of a discharge. See Dep't of Transp.,

842 So. 2d at 255 (citing Lindamood, 731 So. 2d at 831).

It is true that Ms. Moise stopped coming to work after November 20, 2020,

and that she turned down alternative positions. But none of this happened because

her job was “reorganized” out of existence (which would have obviated the need to

terminate her contract). According to Ms. Moise, she stopped reporting to work

because the School Board broke the law by not accommodating her safety concerns,

despite her blowing the whistle on the School Board’s lawbreaking through “signed,

written complaints.” The Court has already explained why Ms. Moise’s allegations

of lawbreaking and whistleblowing are not specific enough to entitle her to

temporary reinstatement, and therefore her motion must be denied. But the fact

remains that the School Board terminated her contract, which is a “discharge”

under the FWA. Accordingly, the Court adopts the recommended holding of the

R&R without adopting its reasoning.

CONCLUSION

For the reasons above, it is ORDERED:

1. The Report and Recommendation is ADOPTED IN PART.

2. Ms. Moise’s motion for temporary reinstatement (Doc. 16) is DENIED.

ORDERED in Fort Myers, Florida, on March 16, 2021.

an

LL A

HOD Pabhent

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

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