Teblum v. The City of Cape Coral Charter School Authority

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

AMY TEBLUM and DARYL TEBLUM,

individually,

Plaintiffs,

v. Case No: 2:20-cv-547-JLB-MRM

THE CITY OF CAPE CORAL CHARTER

SCHOOL AUTHORITY, a Public Body

Corporation, a/k/a City of Cape Coral,

Florida,

Defendant.

ORDER

Defendant, the City of Cape Coral Charter School Authority (“Authority”),

moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiffs Amy and

Daryl Teblums’ (“the Teblums”) Second Amended Complaint (“the Complaint”) for

failure to state a claim. (Doc. 11.) Under 42 U.S.C. § 1983, the Teblums allege

violations of their First Amendment right to protected speech (Counts I and III),

with Mrs. Teblum also alleging a violation of her right to freedom of intimate

association (Count II). (Doc. 3.) They claim that the Authority retaliated against

them for their protected speech critical of the Authority and its employees. But the

Authority maintains that the Teblums’ protected speech claims fail as a matter of

law because they spoke neither as private citizens nor on matters of public concern.

It also contends that the Teblums have not alleged facts establishing that the

Authority had a widespread unconstitutional practice or custom for liability under

section 1983.

Although the Authority raises important points that will ultimately

determine the outcome of this dispute, the Court lacks an adequate factual record to

definitively address these issues at this early stage. Because the Teblums have

sufficiently pleaded facts to support their claims, the Court DENIES the

Authority’s motion to dismiss (Doc. 11).

BACKGROUND1

Between 2015 and 2016, Mrs. Teblum worked for the Authority as an

Exceptional Student Education (“ESE”) teacher at Christa McAuliffe Elementary

School (“Christa”). (Doc. 3 at 2.) Her husband, Mr. Teblum, served as a member

of the Authority’s voluntary board (“Board”), and their daughter attended

Christa. (Id.) During this time, Mrs. Jacquelin Collins was Christa’s principal,

and Mr. Nelson Stephenson was the Authority’s superintendent. (Id.) For clarity,

the Court begins with the facts pertaining to Mr. Teblum before summarizing the

same for Mrs. Teblum.

1 “At the motion to dismiss stage, all well-pleaded facts are accepted as true,

and the reasonable inferences therefrom are construed in the light most favorable to

the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1274 n.1 (11th Cir.

1999) (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th

Cir.1998)). To state a claim, a complaint must provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(2). Under this standard, the complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

A. Mr. Teblum

Mr. Teblum was appointed to the voluntary Board by the Cape Coral City

Council. (Doc. 3-1, Ex. A.) Over the course of one year, Mr. Teblum documented

and reported “well over two dozen administrative violations,” mostly attributable to

Mrs. Collins. (Doc. 3-2, Ex. B.) According to a January 11, 2016 email that Mr.

Teblum sent from his private Gmail account to Mr. Stephenson, Mr. Teblum first

reported violations to Mr. Stephenson on January 18, 2015. (Id.) Specifically, he

reported that Mrs. Collins had “abandoned” Christa’s campus with neither an

administrator nor a school resource officer on the campus to address “emergency,

disciplinary[,] or other issues.” (Id.) In August 2015, he informed Mr. Stephenson

that Mrs. Collins knowingly presented the Board with inaccurate information about

Christa’s budget for the upcoming school year, and he insisted she abide by her

originally proposed budget. (Id.) Mr. Teblum tried discussing his concerns with

Mrs. Collins by email but was met with threats and intimidation concerning his

wife and daughter—a student at Christa. (Id.) Mr. Teblum forwarded these

threatening communications to Mr. Stephenson so Mr. Stephenson “could protect

our staff and students from the actions of their principal.” (Id.)

At a December 2015 Board meeting, Mr. Teblum and fellow Board members

approved an overnight field trip to the Kennedy Space Center. Based on the

information Mrs. Collins provided the Board, the Board believed the entire fifth-

grade class would attend this trip. (Id.) Only after the Board approved this trip

did Mrs. Collins email the Board and clarify that only students in Christa’s

accelerated classes would attend the overnight trip. (Doc. 3-1, Ex. A.) Mr. Teblum

pointed out that this decision contradicted the information Mrs. Collins provided

the Board. (Id.) He expressed his frustration with this repeated lack of

transparency and stated that the misinformation was hurting Christa’s public

reputation. (Id.)2 Mrs. Collins replied that Mr. Teblum was the only individual

making an issue of this, and that his daughter attending Christa created a conflict

of interest. (Id.) At this, Mr. Teblum replied that Mrs. Collins’s repeated actions

were harming the Authority’s reputation, particularly Christa’s, and that he did not

appreciate her constantly mentioning his wife and child. (Id.)

Mr. Teblum publicly raised the above issues at a January 2016 Board

meeting but was met with public humiliation and insults from fellow Board

members and staff. (Doc. 3 at 4.) Two months later, at another Board meeting, a

Christa teacher publicly read a statement directed toward Mr. Teblum. (Doc. 3 at

4; Doc. 3-3, Ex. C.) The statement, which 30 other teachers signed, explained that

Mr. Teblum’s actions at the January Board meeting embarrassed and concerned

Christa’s teachers, potentially harmed the school’s public image, and unfairly

targeted Mrs. Collins. (Id.)

On March 11, 2016, only a few days after that statement’s reading, Mrs.

Teblum was transferred from Christa to a different elementary school. (Doc. 3 at

2 Later, Mr. Teblum explained to Mr. Stephenson that this decision excluded

80–100 non-accelerated students from the trip whom the accelerated students were

now bullying because the non-accelerated students “weren’t smart enough” to

attend. (Doc. 3-2, Ex. B.) He characterized Mrs. Collins’s decision as “blatant

discrimination” against the non-accelerated students. (Id.)

4.) Mr. Teblum characterized this transfer as the Authority unlawfully retaliating

against him, through his wife, for his criticism of Mrs. Collins. (Id.) He then

informed Mr. Stephenson that he was in the process of requesting a formal

investigation into Mrs. Collins’s retaliation. (Doc. 1-1, at 23.) At the end of

March, the Authority removed Mr. Teblum from the Board.

B. Mrs. Teblum

A few weeks before her transfer from Christa, on February 24, 2016, Mrs.

Teblum discovered an issue with one of her ESE students. Mrs. Teblum “was

responsible for managing” this student’s “case” and “ensuring that” the student

received “legally mandated services and accommodations.” (Doc. 3-5, Ex. E.)

Even though the “Authority is contracted to provide” these services and

accommodations, Mrs. Teblum learned that the student “was NOT [sic] receiving

them.” (Id.) She approached the teacher responsible for providing these

accommodations, but the teacher told Mrs. Teblum she was simply too busy to

provide them. Mrs. Teblum then discovered that other ESE students also were not

receiving similar accommodations at the school. She reported these violations to

Mrs. Collins, but Mrs. Collins took no action. (Id.)

As for her transfer, Mrs. Teblum explains that, initially, Mrs. Collins told her

that Mr. Stephenson ordered the transfer for Mrs. Teblum’s benefit considering the

conflict between Mrs. Collins and Mr. Teblum. (Id.) But later, Mrs. Teblum’s

former colleagues informed her that Mrs. Collins revealed at a Christa staff meeting

she herself had transferred Mrs. Teblum, hoping to improve the working

environment at Christa. (Id.) Mrs. Teblum believed that Mrs. Collins’s actions

were because of her husband’s criticism of Mrs. Collins. (Id.; see also Doc. 3 at 6.)

Finally, Mrs. Collins’s targeted harassment of Mrs. Teblum eventually led to

Mrs. Teblum’s termination. About a week after Mrs. Teblum’s transfer, she

learned that her teaching certificate was no longer compliant. (Doc. 3-5, Ex. E.)

While Mrs. Collins could have raised this sooner, she waited until Mrs. Teblum’s

transfer in 2016 before informing Mr. Stephenson of this issue. (Id.) Now, Mrs.

Teblum faced the possibility of demotion or termination if she could not remedy her

certificate in a short amount of time. Ultimately, the Authority did not renew her

employment for the following school year. (Doc. 3 at 5.) And even after Mrs.

Teblum left the Authority, Mrs. Collins continued retaliating against her by

misfiling information about her teaching certificate. (Id. at 10.)

Against this backdrop, the Teblums bring their lawsuit. In Counts I and III,

they argue that the Authority took the above adverse actions against them because

of their protected speech criticizing Mrs. Collins and the Authority. (Doc. 3 at 6–7,

9–10.) Mr. Teblum claims that the temporal proximity between his comments at

the January 2016 Board meeting and the Authority’s transfer of Mrs. Teblum in

March 2016 shows that his statements caused the transfer. (Id. at 6.) Mrs.

Teblum also claims that the Authority acted against her, in part, because of Mr.

Teblum’s comments, thereby violating her right to intimately associate with her

husband (Count II). (Id. at 8.) In addition, Mrs. Teblum claims the Authority

retaliated against her because she reported violations concerning an ESE student.3

The Teblums claim the Authority’s actions caused their loss of government benefits

(e.g., healthcare through Mrs. Teblum’s employment) and government wages (e.g.,

Mrs. Teblum’s salary). (Id. at 7.) The Authority has not answered the Complaint

and instead moves to dismiss. (Doc. 11.)

DISCUSSION

The Authority argues that the “Complaint fails to state a claim for violation

of the First Amendment because a governmental employee’s speech is not protected

when the speech arises from the employee’s job responsibilities.” (Doc. 11 at 2.)

In support, the Authority relies on the First Amendment analysis for public

employees set forth in Pickering and later refined by Garcetti and its progeny.4

Before the Court can reach the merits of the Authority’s motion, it must first

address the applicability of Pickering and Garcetti.

I. The Complaint Alleges Facts Which State a First Amendment Claim

The Government’s regulation of its employees’ speech differs from its

regulation of the speech of ordinary citizens. Connick v. Myers, 461 U.S 138, 140

(1983); Pickering, 391 U.S. at 568. When the Government acts as an employer, it

has broad discretion in its employment decisions. Johnson v. Clifton, 74 F.3d 1087,

1092 (11th Cir. 1996). But Mr. Teblum maintains that the Authority’s argument

3 Florida law requires that students with developmental disabilities receive

specialized instruction as part of an ESE program. See Fla. Stat. § 1003.57.

4 Pickering v. Bd. of Educ., 391 U.S. 563 (1968); Garcetti v. Ceballos, 547

U.S. 410 (2006).

directed at him on this point “utterly misses the mark in its protected speech

analysis” (Doc. 13 at 5) because he “was not an employee of the Board and thus, . . .

was speaking as a member of the public” (Doc. 3 at 6).5

The obvious problem here is that Garcetti rests on the assumption that a

public employer cannot force a public employee to choose between his constitutional

rights or his livelihood. 547 U.S. at 419 (“[P]ublic employer” cannot “leverage the

employment relationship to restrict” employee’s free speech (emphasis added)).6

Nevertheless, some courts have found that “the opportunity to serve as a volunteer

constitutes the type of governmental benefit or privilege the deprivation of which

can trigger First Amendment Scrutiny.” Hyland v. Wonder, 972 F.2d 1129, 1135

(9th Cir. 1992), cert. denied, 508 U.S. 908 (1993). Based on this assumption, others

have reasoned that “similar First Amendment concerns would apply in a volunteer

context.” Versarge v. Township of Clinton N.J., 984 F.2d 1359, 1364 (3rd Cir. 1993)

5 The Court notes that neither party has helpfully briefed this issue. The

Authority, while recognizing Mr. Teblum’s voluntary position (Doc. 11 at 2),

immediately launches into its analysis of public employee speech without discussing

what effect—if any—Mr. Teblum’s status as a volunteer has on that analysis. For

their part, the Teblums’ response flatly states, “Mr. Teblum was not an employee of

the Defendant. [] Thus, the authorities cited by the Defendant do not

apply.” (Doc. 13 at 5.) Otherwise, they offer nothing more by way of discussion or

caselaw. The City of Cape Coral’s Code of Ordinances states, “No member of the

Board will be an employee of the Authority or receive any financial benefits from

the operation of the charter school(s).” Cape Coral, Fla., Code § 26-6(c) (2016).

But for reasons discussed below, this is not dispositive. Should the parties raise

this argument later in this litigation, they should both develop the record and

meaningfully brief this issue for the Court’s consideration.

6 To be certain, applying a public employee protected speech analysis would

not be wholly unreasonable when the Complaint itself alleges that Mr. Teblum “lost

government benefits wages and benefits [sic].” (Doc. 3 at 7.) That allegation

implicates both Mr. Teblum’s livelihood, to an extent, and his right to free speech.

(citing Hyland and applying “an analysis typically used in a government

employment context—the Pickering balancing test” to volunteer firefighter’s First

Amendment retaliation claim); see also Rodin v. City of Coral Springs, 229 F. App’x

849, 855 (11th Cir. 2007) (applying Pickering balancing test to volunteer firefighter

who was “not a paid city employee”). But the Court need not—and indeed,

considering the unfledged record before it, should not—wade into this quagmire to

resolve this motion to dismiss. Even if the Court assumes that Pickering and

Garcetti apply to Mr. Teblum, the Complaint nevertheless states a claim.7

II. The Teblums’ Protected Speech Claims (Counts I & II)

“A government employer may not demote or discharge a public employee in

retaliation for speech protected by the First Amendment.” Alves v. Bd. of Regents,

804 F.3d 1149, 1159 (11th Cir. 2015) (citing Bryson v. City of Waycross, 888 F.2d

1562, 1565 (11th Cir. 1989)). Under Garcetti, to survive the Authority’s motion to

dismiss, the Teblums’ Complaint must allege sufficient facts which show that they

spoke: (1) as private citizens; and (2) on matters of public concern. See Boyce v.

Andrew, 510 F.3d 1333, 1342 (11th Cir. 2007) (citing D'Angelo v. School Bd. of Polk

Cnty., 497 F.3d 1203, 1209 (11th Cir. 2007)).

A. The Speech as a Private Citizen or Public Employee

Requirement

“[W]hen public employees make statements pursuant to their official duties,

the employees are not speaking as citizens for First Amendment purposes, and the

7 This conclusion is limited solely to the facts of this case, at this procedural

stage.

Constitution does not insulate their communications from employer

discipline.” Garcetti, 547 U.S. at 421. “The central inquiry is whether the speech

at issue ‘owes its existence’ to the employee’s professional responsibilities.” Moss v.

City of Pembroke Pines, 782 F.3d 613, 618 (11th Cir. 2015) (quoting Garcetti, 547

U.S. at 421). The Supreme Court has explained that “[t]he 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.” Lane v. Franks,

573 U.S. 228, 240 (2014) (emphasis added). After Lane, unprotected speech that

owes its existence to an employee’s professional responsibilities is speech “that an

employee made in accordance with or in furtherance of the ordinary responsibilities

of [his or her] employment, not merely speech that concerns [those]

responsibilities.” Alves, 804 F.3d at 1162.

B. The Public Concern Requirement

“The second requirement—that the speech address a matter of public

concern—concerns the context of the speech and asks whether the employee spoke

on a matter of public concern or on matters of only personal interest.” Alves, 804

F.3d at 1162 (citing Boyce, 510 F.3d at 1342–43). For speech to touch upon a

matter of “public concern,” it must relate to “any matter of political, social, or other

concern to the community.” Connick, 461 U.S. at 146. The analysis turns on “the

content, form, and context of a given statement, as revealed by the whole

record.” Id. at 147–48. “[A]n employee’s speech will rarely be entirely private or

entirely public.” Akins v. Fulton Cnty., 420 F.3d 1293, 1304 (11th Cir. 2005)

(quoting Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993)). A court must look to

“whether the ‘main thrust’ of the speech in question is essentially public in nature

or private.” Vila v. Padron, 484 F.3d 1334, 1340 (11th Cir. 2007) (quoting Mitchell

v. Hillsborough Cnty., 468 F.3d 1276, 1283 (11th Cir. 2006)).

C. A Summary of Alves

On both prongs of Garcetti, the Authority relies almost exclusively on Alves

as “on point and dispositive of Plaintiffs’ claims.” (Doc. 11 at 8.) There, the

Eleventh Circuit held that a group of psychologists airing grievances about their

employer spoke as employees, not private citizens, so their First Amendment

retaliation claims failed on summary judgment. 804 F.3d at 1163. The

psychologists worked for a University of Georgia clinic and penned a memorandum

to the University detailing several problems the psychologists had with a new

doctor in charge of running the clinic. Id. at 1155–56. Soon after they wrote this

memorandum, the University fired the psychologists. Id. at 1158. The

psychologists argued that their speech was private, in part, because their job duties

did not require them specifically to write and submit the memorandum. Id. at

1163.

The Eleventh Circuit, quoting Garcetti, 547 U.S. at 424–25, first reasoned

that “formal job descriptions ‘often bear little resemblance to the duties an employee

actually is expected to perform’” and instead applied a “functional review.” Id. at

1164 (citing Abdur-Rahman v. Walker, 567 F.3d 1278, 1285 (11th Cir. 2009)).

Next, the court summarized each psychologist’s work-duties—including specific

tasks—and compared those responsibilities with the memorandum’s

allegations. Id. The court concluded that the group wrote the memorandum “in

the course of performing—or, more accurately, in the course of trying to perform—

their ordinary roles as” employees. Id. (emphasis in original). The court’s holding

was premised on its finding that “[e]ach complaint in the Memorandum was made

in furtherance of their ability to fulfill their duties with the goal of correcting [the

new doctor’s] alleged mismanagement, which interfered with [the group’s] ability to

perform” their jobs. Id. 1164–65. Accordingly, the Eleventh Circuit reasoned that

the psychologists did not speak as private citizens, but rather as public employees.

And while the Alves court’s inquiry could have stopped there, it nevertheless

continued its analysis and determined that the group also did not speak on matters

of public concern. The court began by noting that “[a]fter Connick, ‘courts have

found speech that concerns internal administration of the educational system and

personal grievances will not receive constitutional protection.’” Alves, 804 F.3d at

1166 (quoting Maples v. Martin, 858 F.2d 1546, 1552 (11th Cir. 1988)). Then, the

Eleventh Circuit reviewed the memorandum’s specific grievances. To summarize,

the Eleventh Circuit determined that although the memorandum “touched upon”

matters of public concern (e.g., the counseling services the clinic provided the

public), the main purpose was to express the group’s “private employee

grievance[s]” against management. Id. at 1167. That the group and University

provided public services did not change the fact that the memorandum largely failed

to address issues concerning the public; instead, it concerned the psychologists’ own

frustrations about their roles as employees. See id.

D. Alves Is Distinguishable

1. The Complaint Alleges that the Teblums Spoke as Private

Citizens.

To begin, the Court agrees with the Teblums that Alves is distinguishable

from their dispute on procedural grounds alone; the Eleventh Circuit and district

court in Alves had the benefit of a developed summary-judgment record with

specific job duties to assist their analysis. Here, the Court does not enjoy the same

luxury. Moreover, the issue before the Court is whether the Teblums have

properly pleaded their First Amendment retaliation claims, not whether they will

succeed on those claims.

For example, it is unclear whether Mr. Teblum, as a Board member, had a

duty to “keep accurate records” of “administrative violations” occurring at one of the

Authority’s elementary schools and then report those violations to the Authority’s

superintendent. Nor is it clear how Mr. Teblum’s complaints about Mrs. Collins

abandoning Christa or causing the harassment and bullying of students furthers his

own duties as a Board member. The Court can reasonably infer that Mr. Teblum,

as a Board member, is not personally responsible for the individual well-being of the

Authority’s students. And without a specific showing from the Authority, the

Court neither agrees that Mr. Teblum’s speech necessarily “owes its existence” to

his professional responsibilities, nor that his speech was made “in furtherance of

[his] ability to fulfill [his] duties” as a Board member. Alves, 804 F.3d at 1164.

For similar reasons, the Court finds that the Complaint sufficiently alleges

Mrs. Teblum also spoke as a private citizen. The Complaint states that when Mrs.

Teblum approached another teacher, Mrs. Teblum learned that “other students

were not receiving their mandated accommodations under the same classroom

teacher.” (Doc. 3-5, Ex. E.) After Mrs. Teblum confirmed this, she reported all

these violations to Mrs. Collins. Beyond her one, specific student noted above,

nothing in the Complaint suggests Mrs. Teblum was supposed to ensure all ESE

students received their accommodations. There is also no indication that Mrs.

Teblum, for example, managed a group of ESE teachers at the school so that her

duties included reporting another teacher’s failure to provide accommodations to

ESE students Mrs. Teblum was not overseeing. To conclude otherwise, the Court

would need to draw an adverse inference from the limited record against Mrs.

Teblum, which would defy the standard this Court must employ in deciding a rule

12(b)(6) motion.

2. The Complaint Alleges that the Teblums Spoke on

Matters of Public Concern.

The Complaint also alleges facts which show Mr. Teblum’s speech went

beyond issues of personal grievances or matters relating to the Authority’s internal

administration. For example, accepting the allegations in the Complaint as true,

Mr. Teblum did not question Mrs. Collins’s lack of transparency and misconduct

solely for their impact on the Teblums. Mr. Teblum desired to address these issues

as “the reputation of ([the Authority]) [was] at stake in a public forum.” (Doc. 3-1,

Ex. A.) He tried resolving these issues “internally instead of air[ing them] in a

public forum as this would cause harm to the system and specifically Christa.”

(Id.) And despite having a daughter at Christa, Mr. Teblum never once mentions

her outside the context of Mrs. Collins’s threats. Instead, his speech focused on

how Mrs. Collins’s actions—abandoning her campus and limiting attendance for the

field trip—affected the student body at large. These allegations suffice at the

pleading stage. See Maples, 858 F.2d at 1553 (finding that while an employee’s

speech was critical of department head’s management style, it also involved

“substantive issues that could influence the public’s perception of the quality of

education provided by the [d]epartment”).

The Complaint also alleges that Mrs. Teblum’s speech did not merely “touch

up against matters of public concern,” but was rather “directed at such

concerns.” Alves, 804 F.3d at 1167; see Maples, 858 F.2d at 1553 (“[F]ailure to

execute federally mandated programs for handicapped students is issue of public

concern.” (citing Southside Pub Schs. v. Hill, 827 F.2d 270, 273 (8th Cir. 1987))).

Mrs. Teblum did not assert “a private grievance respecting employment or working

conditions” when she informed Mrs. Collins that several ESE students were not

receiving legally mandated accommodations. Hill, 827 F.2d at 273 (citing Connick,

461 U.S. at 147). As opposed to a personal detriment, the Complaint alleges that

Mrs. Teblum was responsible for only one ESE student who did not receive their

accommodation. (Doc. 3-5, Ex. B.) But Mrs. Teblum also reported that several

other students, under the control of another ESE teacher, were not receiving

statutorily required accommodations. “Surely such a shortcoming is to be regarded

as a legitimate area of public concern.” Hill, 827 F.2d at 273–74. At bottom, the

Authority has not shown that the “purpose” of Mrs. Teblum’s speech was to further

her own private interests rather than raising issues of public concern. See Morgan,

6 F.3d at 754.

For these reasons, the Teblums have met their burden in stating their claims.

The Complaint contains sufficient factual allegations from which, when taken as

true, the Court can infer that both husband and wife not only spoke as private

citizens, but that they also spoke on matters of public concern. This finding simply

means that the Teblums may litigate those claims. Whether they ultimately

succeed on the same is another matter entirely.

III. Mrs. Teblum’s Freedom of Association Claim (Count II)

In Count II, Mrs. Teblum alleges that the Authority retaliated against her for

her husband’s speech, thereby violating her right to intimately associate with Mr.

Teblum under the First Amendment. (Doc. 3 at 8.) “To show that a public

employer has impermissibly burdened or infringed a constitutional right,” Mrs.

Teblum “must first demonstrate that the asserted right is protected by the

Constitution—which . . . the right to freedom of intimate association is—and that []

she suffered adverse action for exercising that right.” Gaines v. Wardynski,

871 F.3d 1203, 1212–13 (11th Cir. 2017). The Authority advances no new

argument specific to this issue and instead relies on the same contentions it raised

against Counts I and II, above. (See Doc. 11 at 10 n.1.) And because the Court

has already rejected those arguments, the Authority’s argument here must also

fail.8

8 In any event, the Authority’s argument fails for at least one other reason. The

IV. The Teblums’ Municipal Liability Allegations

“All charter schools in Florida are public schools and shall be part of the

state’s program of public education.” Fla. Stat. § 1002.33(1). The Authority is a

public corporate body which exercises “public and governmental functions, [] for

public purposes, and [its powers and duties] are matters of public necessity.” Cape

Coral, Fla., Code § 26-15(a) (2016). Like any sub-state public entity, the Authority

“may not be sued under § 1983 for an injury inflicted solely by its employees or

agents.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Instead, the

Authority must have “officially sanctioned or ordered” the violation of the Teblums’

First Amendment rights. Mandel v. Doe, 888 F.2d 783, 791 (11th Cir. 1989)

(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)).

The Board is the policymaker for the Authority: “The powers of the Authority

shall be exercised through a governing [B]oard . . . and which shall provide

governance of the charter schools.” Cape Coral, Fla., Code § 26-2 (2016). Thus, a

single decision by the Board may constitute Authority policy, even if that decision is

not a formal policy. See 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

Authority seems to argue that Mr. Teblum’s speech must satisfy Garcetti for Mrs.

Teblum to maintain her intimate association claim. (See Doc. 11 at 10 n.1.) In

D’Angelo v. School Board of Polk County, the Eleventh Circuit held that Garcetti

“requires [] public employees to have engaged in associational activity as citizens to

be protected under the First Amendment.” 497 F.3d 1203, 1212 (11th Cir. 2007)

(emphasis added). But the subject matter of a public employee’s associational

activity “need not be on matters of public concern to be protected under the First

Amendment.” D’Angelo, 497 F.3d at 1212.

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))).

A. Mr. Teblum’s Municipal Liability Allegations

Mr. Teblum alleges that the Authority “retaliated against” him when it

“ultimately removed him from the Board.” (Doc. 3 at 6.) And, as noted, the

Authority is liable—even for single acts—of its policymakers (e.g., the Board). See

Cuesta, 285 F.3d at 967–68; K.M. v. Sch. Bd., 150 F. App’x 953, 957 (11th Cir. 2005)

(“Because 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.” (emphasis added)).

While the Complaint does not allege specifically how the Authority removed

Mr. Teblum, the most favorable construction of the Complaint is that the Board

voted to remove him. This is because the Board itself had “final policymaking

authority . . . in the area of the act or decision” to remove Mr. Teblum. McMillian,

88 F.3d at 1577. And because the Court must infer that the Authority removed

Mr. Teblum for his comments criticizing itself and Mrs. Collins, Mr. Teblum has

sufficiently pleaded the Authority’s liability under section 1983. See Pembaur, 475

U.S. at 481 (“[W]here action is directed by those who establish governmental policy,

the municipality is equally responsible [when] that action is [] taken only once.”).

B. Mrs. Teblum’s Municipal Liability Allegations

The Complaint also satisfies the applicable pleading standard for Mrs.

Teblum in at least one of two ways. The “authority to make municipal policy may

be . . . delegated by an official who possesses such authority.” Mandel, 888 F.2d at

792. The Authority’s Board delegated to Mr. Stephenson the “power to . . .

terminate personnel, provided, however, that the Superintendent [would] exercise

this power in accordance with the personnel rules and policies adopted by the

Authority.” Cape Coral, Fla., Code § 26-15(b)(37) (2016). Mr. Stephenson was

also “responsible . . . for directing the work of the personnel of the Cape Coral

Charter Schools.” Id. § 26-15(b)(15) (2016).

While final policymaking authority over a subject area does not vest in an

official whose decisions in that area are subject to meaningful administrative

review, Quinn v. Monroe Cnty., 330 F.3d 1320, 1325 (11th Cir. 2003), the Authority

provides no indication that Mr. Stephenson’s decisions were, in fact, subject to such

review. Alternatively, under a ratification theory, Mrs. Teblum may show that the

Authority, “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, 1889 (11th Cir. 2004) (citation and quotation omitted). To succeed

in this approach, Mrs. Teblum “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.

To that end, Mrs. Teblum emailed Mr. Stephenson her Whistleblower

Retaliation Complaints form. (Doc. 3 at 5; Doc. 3-5, Ex. E.) There, Mrs. Teblum

explained that she was transferred to a different school because she reported

“violations of ESE law.” (Id.) Initially, when she followed up with Mr.

Stephenson, he assured her that she had not been fired, but rather “saved from

further backlash . . . [h]ence the reason he had chosen to transfer” her. (Id.

(emphasis added)). But Mrs. Teblum learned that Mrs. Collins “made the decision

to transfer” her, and that Mrs. Collins also “placed [Mrs. Teblum] in such a position

as to be demoted and/or fired.” (Id.) Construing these allegations in Mrs.

Teblum’s favor, either: (a) Mr. Stephenson—as the superintendent with the power

to direct and terminate Authority personnel—transferred Mrs. Teblum for reporting

ESE violations; or (b) Mr. Stephenson reviewed and approved Mrs. Collins’s

decision over the same thereby ratifying her actions.

Even if the Board did not delegate policymaking authority to Mr. Stephenson,

the Complaint also alleges facts from which the Court can infer that the Board itself

knew of these adverse actions against Mrs. Teblum. Mr. Stephenson apparently

forwarded Mrs. Teblum’s form to the City of Cape Coral City Attorney. (Doc. 3-6,

Ex. F.) Then, the City Attorney told Mrs. Teblum that “[i]n accordance with

Charter School policy . . . the Authority will be commencing an investigation of the

allegations in your complaint. After the investigation is complete, the Authority

will make a determination regarding your complaint.” (Id. (emphasis added)). If

the Authority did not delegate the power to relocate or terminate Mrs. Teblum, then

these affirmative representations can give rise to the inference that the Board

learned of, and later ratified, Mrs. Teblum’s adverse employment consequences for

reporting ESE law violations. Cf. K.M., 150 F. App’x at 958 (letter from school

district's attorney insufficient to establish municipal liability where letter neither

identified decisionmaker nor explained what decision a school board may have

taken). Accordingly, the Complaint contains facts which show that the Authority

may be liable to Mrs. Teblum under section 1983.

CONCLUSION

Based upon the foregoing, the Authority has not met its burden for dismissal

of the Teblums’ Complaint. This is not to say that its arguments are incorrect or

otherwise without merit. To the contrary, the Authority identifies many issues

over which it may ultimately prevail. But instead of focusing on the relevant

pleading standard, the Authority has raised fact-intensive arguments better suited

for a summary judgment motion. The Teblums have alleged facts which, when

construed in their favor, could support a finding that the Teblums engaged in

protected speech for which the Authority retaliated against them. Accordingly, it

is ORDERED that the Authority’s Motion to Dismiss (Doc. 11) is DENIED.

ORDERED at Fort Myers, Florida, on March 29, 2021.

(i 7 a LF I LA os

□□ “te a & Loflee, □□

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE