# Laroche v. Browning

> District Court, M.D. Florida · July 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10108090

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10108090

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DAVID P. LAROCHE,

Plaintiff,
v. Case No. 8:21-cv-562-VMC-CPT
KURT S. BROWNING,
in his official capacity as
Superintendent of Schools
for Pasco County, and
PASCO COUNTY SCHOOL BOARD,

Defendants.
______________________________/
ORDER
This matter is before the Court on consideration of
Defendant Kurt S. Browning’s Motion to Dismiss the Second
Amended Complaint with Prejudice (Doc. # 37), filed on June
16, 2021. Plaintiff David P. Laroche responded on July 7,
2021. (Doc. # 41). Browning replied on July 22, 2021. (Doc.
# 43). For the reasons that follow, the Motion is granted.
I. Background
In February 2007, Laroche began working as Principal of
Hudson High School. (Doc. # 35 at 6). Browning is the Pasco
County Superintendent of Schools and, thus, Laroche’s “boss.”
(Id. at 7). Browning in turn reports to Defendant Pasco County
School Board, which “is the final ‘policy maker’ as it
pertains to the Pasco County Schools.” (Id. at 2).
On November 20, 2019, Laroche filed his candidacy for
the position of Pasco County Superintendent of Schools, to
run against Browning. (Id. at 8). “After announcing that he
was running for the Pasco County Superintendent of Schools
position, Browning never again directly communicated with
Laroche, delegating that responsibility to Monie Ilse,
Assistant Superintendent for Pasco County Schools.” (Id. at
7). Ilse warned Laroche “that he ‘better win, because []
Browning’ and his supporters, were ‘very vindictive.’” (Id.

at 7-8).
In response to an email inquiry Laroche sent in January
2020 about renovations to a middle school, School Board
employee Ray Gadd emailed Browning the following: “What a
Goober. I can stop that whenever youre [sic] ready. He is
principal first. Candidate second. He is not untouchable.”
(Id. at 9). Browning responded “Let’s talk. He certainly does
not support this district.” (Id.).
Months passed. Then, during the COVID-19 pandemic, on
June 2, 2020, Ilse called Laroche, stating : “You don’t share
the [School] Board’s mission and vision. Leave your keys on
the desk by end of day and clean out your office. If you can’t

get it all done today, she would have someone ‘escort’ him on
another day.” (Id. at 10). Ilse said that the reason for this
decision was Laroche’s missing a Zoom meeting because of car
trouble, Laroche’s failure to “put in his ‘time,’” and that
Laroche did “not believe in the mission and vision of the
district as a leader.” (Id. at 11).
During a meeting of the School Board on June 16, 2020,
the School Board as the “final decision maker” voted “4 to 1”
in favor of transferring Laroche to a different position.
(Id. at 10-11). Laroche was demoted to the position of
Assistant Principal of Mitchell High School. (Id. at 11-12).

According to the second amended complaint, Laroche “felt the
timing [of] Browning’s and the Board’s ‘final decision’ to
abruptly ‘transfer’ him was highly suspect and was imposed as
clear and unequivocal retaliation for Laroche’s decision to
run against Browning for the position of Superintendent of
Schools.” (Id. at 12).
Laroche alleges that “no activity had taken place to
support Browning’s abrupt decision to demote and punish
Laroche, other than Laroche declaring his candidacy.” (Id.).
“Laroche was thus punished and demoted by Browning, which was
adopted and ratified by the ‘final decisionmaker,’ the
Board.” (Id.).

Laroche initiated this action against Browning, in both
his official and individual capacity, on March 10, 2021. (Doc.
# 1). After Browning moved to dismiss the original complaint,
Laroche filed an amended complaint. (Doc. # 25). After
Browning moved to dismiss the amended complaint, Laroche
filed the second amended complaint. (Doc. # 35). The second
amended complaint includes one count under 42 U.S.C. § 1983
asserted against both Browning in his official capacity and
the School Board. (Id.).
Now, Browning moves to dismiss the claim asserted
against him in the second amended complaint with prejudice.

(Doc. # 37). Laroche has responded (Doc. # 41), and Browning
has replied. (Doc. # 43). The Motion is ripe for review.
II. Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), this
Court accepts as true all the allegations in the complaint
and construes them in the light most favorable to the
plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,
1262 (11th Cir. 2004). Further, the Court favors the plaintiff
with all reasonable inferences from the allegations in the
complaint. Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990). But,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its
consideration to well-pleaded factual allegations, documents
central to or referenced in the complaint, and matters
judicially noticed. La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004).
III. Analysis
“To establish a claim under 42 U.S.C. § 1983, a plaintiff
must prove (1) a violation of a constitutional right, and (2)
that the alleged violation was committed by a person acting
under color of state law.” Holmes v. Crosby, 418 F.3d 1256,
1258 (11th Cir. 2005). “Defendants acting under color of state
law are ‘clothed with the authority of state law,’ and their
‘deprivation of a federal right [must] be fairly attributable
to the State.’” Basile v. Walt Disney Parks & Resorts U.S.,
Inc., No. 6:10-cv-993-CEH-DAB, 2011 WL 13298729, at *18 (M.D.
Fla. June 23, 2011)(citations omitted). “In the specific
employment termination context, Plaintiffs may sufficiently
allege a Section 1983 violation based on an action taken by
a decisionmaker who possesses final authority to establish
municipal policy with respect to the action ordered.” Vaughan
v. City of Sandy Springs, No. 1:09-CV-2852-ODE-WEJ, 2010 WL
11508351, at *10 (N.D. Ga. May 25, 2010)(citation and internal
quotation marks omitted).
“State law determines which bodies or persons may
establish municipal policy.” K.M. v. Sch. Bd. of Lee Cnty.,
150 F. App’x 953, 957 (11th Cir. 2005). “Under Florida law,

final policymaking authority for a school district is vested
in the School Board. The Superintendent may recommend
policies to the School Board, but is not given authority to
make final policy without the Board’s approval.” Id.
(citations omitted)).
This is because “[a]n official is not a final policymaker
where his decisions are subject to ‘meaningful administrative
review.’” Lopez v. Gibson, 770 F. App’x 982, 992 (11th Cir.
2019)(citation omitted). “Generally, the existence of a
reviewing body suffices to find that an official whose
decisions are subject to review was not a final policymaker.”
Id. “However, a plaintiff can attempt to demonstrate that the

reviewing body’s administrative review is not meaningful,
such that the official should be considered the final
policymaker.” Id. “To succeed in such an argument, the
plaintiff needs to show that the reviewing body has defective
procedures, merely ‘rubber stamps’ the official’s decision,
or ratifies the official’s decision and improper motive.” Id.
Additionally, “[t]he cat’s paw theory is typically
understood to create employer liability under either
[Section] 1981 or [Section] 1983 when the employer relies on
an improperly motivated recommendation by a subordinate and
does not independently investigate the recommendation.”

Griffin v. City of Jacksonville, 762 F. App’x 965, 972 (11th
Cir. 2019). “Under this theory of liability, an employer found
to have acted in a nondiscriminatory manner can still face
liability for ‘rubber stamp[ing]’ its employee’s
discriminatory recommendation.” Id. “[C]at’s paw liability
is appropriate only when a person took some sort of action —
for example, making a termination recommendation — that led
to the adverse action against the plaintiff.” Id.
Under either the ratification or cat’s paw theory,
Laroche has not plausibly pled that Browning, as the
Superintendent of Schools, was the decisionmaker with final
authority over the decision to demote Laroche. In an attempt

to get around the School Board having final say on demotions,
Laroche alleges that while the School Board is technically
the “final decision maker,” the School Board “adopted and
ratified” Browning’s decision to demote Laroche. (Doc. # 35
at 13).
But there are no allegations in the second amended
complaint that the School Board “rubber-stamped” Browning’s
recommendation or that the School Board otherwise had
defective procedures. The mere fact that the School Board
ultimately adopted Browning’s recommendation does not suggest
that the School Board did not give his recommendation

meaningful review. See Nash-Utterback v. Sch. Bd. of Palm
Beach Cnty., No. 11-CV-80513-JMH, 2012 WL 12865852, at *22
(S.D. Fla. June 8, 2012)(“Here, the statute contemplates that
the Superintendent makes recommendations on personnel matters
to the School Board, and that the School Board may reject
[the] Superintendent’s recommendation on a personnel matter
for good cause. This is not a review without meaning.”). At
most, Laroche attaches a copy of the agenda minutes and “rough
verbatim excerpts” from the June 16 School Board meeting.
(Doc. # 35-5). But merely attaching this exhibit without
alleging relevant details in the second amended complaint
falls far short of a plausible allegation that the School

Board’s procedures were defective. And this exhibit shows
that three members of the public expressed opposition to
Laroche’s transfer before the School Board voted. (Id.).
Thus, while Laroche has alleged that Browning disliked
Laroche because of his candidacy, the allegations of the
second amended complaint do not plausibly support that
Browning was the true final decisionmaker for Laroche’s
demotion.
Regardless, the claim against Browning is also subject
to dismissal for another separate reason. Because the claim
is brought against Browning in his official capacity, it is

duplicative of the claim against the School Board. “Section
1983 suits against officers in their official capacities
‘generally represent only another way of pleading an action
against an entity of which an officer is an agent,’ not
against the officer individually.” C.P. by & through Perez v.
Collier County, 145 F. Supp. 3d 1085, 1090 (M.D. Fla.
2015)(citation omitted). “Such suits against municipal
officers are therefore, in actuality, suits directly against
the city that the officer represents.” Busby v. City of
Orlando, 931 F.2d 764, 776 (11th Cir. 1991).
“Where a plaintiff has named a state agency in the same
suit, any claim against an officer of that agency in his or

her official capacity is ‘duplicative’ of the claim against
the agency and is ‘due to be dismissed.’” J.M. v. Selma City
Bd. of Educ., No. CV 16-0280-CG-M, 2016 WL 7030452, at *10
(S.D. Ala. Nov. 16, 2016)(citation omitted), report and
recommendation adopted, No. CV 16-0280-CG-B, 2016 WL 7031901
(S.D. Ala. Dec. 1, 2016). “Thus, insomuch as [Laroche’s claim]
here [is] against [Browning] in [his] official capacit[y],
[it is] due to be dismissed since [Laroche] has also brought
suit against the relevant state agency, the Board.” Id.; see
also Pestana v. Miami-Dade Cnty. Bd. of Comm’rs, 282 F. Supp.
3d 1284, 1288–89 (S.D. Fla. 2017)(“[I]t is clear that if

Plaintiff is attempting to state a claim against the Director
of the Miami–Dade Corrections Rehabilitation Department in
his official capacity, the proper Defendant is the municipal
entity for which that individual works. Typically, a
plaintiff will state identical ‘official capacity’ and
‘municipal liability’ claims, and the district court will
simply dismiss the official capacity claims as duplicative of
the municipal liability claims.” (citations omitted)).
Laroche argues that this claim is not duplicative
because he “has alleged causes of action against Browning
which are cognizable and separate claims from [the School
Board],” presumably because he has alleged the “cat’s paw

theory” of liability. (Doc. # 41 at 13). However, the cat’s
paw cases cited by Laroche involved claims against persons
sued in their individual capacities — not their official
capacities. See Gilroy v. Baldwin, 843 F. App’x 194, 196-97
(11th Cir. 2021)(addressing the cat’s paw theory in relation
to a claim against former police chief who was sued in his
individual capacity); Griffin, 762 F. App’x at 972
(addressing Section 1983 claim under cat’s paw theory against
defendant supervisor in her individual capacity). Thus, the
fact that Laroche has attempted to allege the cat’s paw theory
does not change the fact that any claim against Browning in

his official capacity is duplicative of the claim against the
School Board.
Because the claim against Browning in his official
capacity is duplicative of the claim against the School Board,
amendment to such claim appears futile. Thus, the Court will
not grant Laroche leave to amend his claim against Browning
in his official capacity.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1) Defendant Kurt S. Browning’s Motion to Dismiss the
Second Amended Complaint with Prejudice (Doc. # 37) is
GRANTED.

(2) Count I of the second amended complaint is dismissed to
the extent it is asserted against Browning. The Clerk is
directed to terminate Browning, who has been sued in his
official capacity, as a party to this action.
DONE and ORDERED in Chambers in Tampa, Florida, this
26th day of July, 2021.

lanier. Hesnerby (reni¥h.
VIR! IA M. HERNANDEZ'COVINGTON
UNITED STATES DISTRICT JUDGE

12

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108090. Public record. Not legal advice.