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