Opinion

Russ v. The School Board of Lee County, Florida

Court
District Court, M.D. Florida
Filed
Mar 22, 2021
Cited by
0 cases
Authority
More cited than 19.8%

explaining that section 112.3187 should be construed liberally because it is remedial legislation

How later courts described this case

  • explaining that section 112.3187 should be construed liberally because it is remedial legislation
  • “[W]e construe “misfeasance” as including negligent acts... .”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

CHERI RUSS and JUDITH JOHNSON,

and individual,

Plaintiffs,

v. Case No. 2:20-cv-484-JLB-MRM

THE SCHOOL BOARD OF LEE COUNTY,

FLORIDA,

Defendant.

/

ORDER

Plaintiffs Cheri Russ and Judith Johnson move for temporary reinstatement

under Florida Statute § 112.3187(9)(f). (Doc. 52.) After an evidentiary hearing, the

Magistrate Judge filed a well-reasoned Report and Recommendation (R&R) in this

matter, recommending that the motion be granted. (Doc. 52.) A district judge may

accept, reject or modify the magistrate judge’s report and recommendation. 28

U.S.C. § 636(b)(1). When a party makes a timely and specific objection to a

magistrate judge's report and recommendation, the district judge "shall make a de

novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made." Id.

The School Board of Lee County, Florida (“School Board”) has filed numerous

objections to the R&R. (Doc. 54.) They may be summarized as follows: (1) the

Magistrate Judge did not need to conduct an evidentiary hearing and should have

ruled on the papers (id. at 2–3); (2) the Magistrate Judge’s standard for determining

which of Plaintiff’s communications were specific enough to receive whistleblower

protection under section 112.3187 was too lax (id. at 5–7); (3) the Magistrate Judge

erred in holding that one of Ms. Russ’s communications was protected (among two

others that the School Board does not object to) because she could not identify a

specific employee responsible for the misfeasance and because the wrongdoing that

she blew the whistle on amounted to mere negligence (id. at 8); and (4) the

Magistrate Judge erred by holding that any of Ms. Johnson’s communications were

protected because they lacked sufficient specificity, the wrongdoing alleged in her

communications amounted to mere negligence, and because Ms. Russ, (as a co-

Plaintiff) could not be a protected recipient of whistleblower communications under

section 112.3187 (id. at 8–16.).

After de novo review of the School Board’s objections, the Court determines

that the School Board has failed to identify any factual or legal error in the R&R.

The Court agrees with the Magistrate Judge’s findings regarding the appropriate

standard of specificity for whistleblower communications, the application of that

standard to the facts of this case (which were developed at an evidentiary hearing

that the Court deems appropriate), the severity of the wrongdoing that must be

alleged in whistleblower communications, and Ms. Russ’s status as a recipient of

protected whistleblower information. See Irven v. Dep't of Health & Rehab. Servs.,

790 So. 2d 403, 406 (Fla. 2001) (explaining that section 112.3187 should be

construed liberally because it is remedial legislation); Rosa v. Dep't of Child. &

Families, 915 So. 2d 210, 212 (Fla. 1st DCA 2005) (“[W]e construe “misfeasance” as

including negligent acts... .”); Burden v. City of Opa Locka, No. 11-22018-CIV,

2012 WL 4764592, at *13 (S.D. Fla. Oct. 7, 2012) (holding that one of the plaintiffs

could be a person to who protected disclosures by other plaintiffs were made).

Accordingly, the School District’s objections are overruled.

Plaintiffs have also filed one objection on an issue that was not addressed in

the R&R: whether their temporary reinstatement is retroactive to the date of their

termination. (Doc. 53.) The School District responds that courts ordering

temporary reinstatement do not typically specify whether it is retroactive. (Doc. 55

at 3.) The Court sees no reason why the parties cannot confer and agree on

reasonable terms of temporary reinstatement pending the outcome of this litigation.

Accordingly, itis ORDERED:

1. The R&R (Doc. 52) is ADOPTED. Defendant’s and Plaintiffs’

objections to the R&R (Docs. 53-54), are OVERRULLED. Plaintiffs’

motion for temporary reinstatement (Doc. 7) is GRANTED.

2 No later than April 5, 2021, the parties shall confer to discuss the

terms of Plaintiffs’ temporary reinstatement. No later than April 6,

2021, the parties shall file a joint status report on the outcome of their

discussions. The parties are strongly encouraged to work

together for an amicable resolution.

NOD. Dablont

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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