Hamway v. The School Board of Lee County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DR. ROSE HAMWAY,

Plaintiff,

v. Case No: 2:21-cv-925-JES-NPM

THE SCHOOL BOARD OF LEE

COUNTY, FLORIDA, a political

subdivision of the State of

Florida,

Defendant.

OPINION AND ORDER

This matter comes before the Court on plaintiff’s Motion for

Temporary Reinstatement Under F.S. § 112.3187(9)(f) (Doc. #2)

filed on December 12, 2021. Defendant filed a Response in

Opposition (Doc. #23) on March 18, 2022, and plaintiff filed a

Reply (Doc. #31) on April 11, 2022. The Court heard oral argument

on Plaintiff’s motion on May 16, 2022. For the reasons set forth

below, the motion is denied.

I.

Plaintiff Dr. Rose Hamway (Plaintiff or Dr. Hamway) filed a

two-count Complaint against the School Board of Lee County, Florida

(Defendant or the School Board), a political subdivision of the

State of Florida. (Doc. #1.) Count I alleges that the School Board

violated the Rehabilitation Act of 1973 (Rehabilitation Act),

while Count II alleges the School Board violated Florida’s Public

Whistle-blower Act (PWA), Fla. Stat. §§ 112.3187–112.31895. (Id.,

pp. 5, 8.) Plaintiff asserts that she was employed by the School

Board as a school psychologist, but that her employment was

terminated by the School Board in retaliation for engaging in

statutorily protected activity. (Id., ¶¶ 7, 14.) Plaintiff’s

current motion seeks an order compelling the Defendant to

temporarily reinstate her employment with the School Board while

the case progresses to an ultimate conclusion, as provided under

Fla. Stat. § 112.3187(9)(f).

The School Board responds that Dr. Hamway has not shown

entitlement to temporary reinstatement under the PWA. (Doc. #23,

p. 17.) Defendant argues that Dr. Hamway (1) was not an “employee”

of the School Board, and therefore cannot be “reinstated” to such

employment; and (2) did not engage in protected activity under the

PWA, even if she was an employee. (Id., pp. 1-2.)

II.

The Florida Public Whistle-blower's Act (PWA) was intended to

“prevent agencies or independent contractors from taking

retaliatory action against” two categories of persons: (1) “an

employee who reports to an appropriate agency violations of law on

the part of a public employer or independent contractor that create

a substantial and specific danger to the public's health, safety,

or welfare;" and (2) “any person who discloses information to an

appropriate agency alleging improper use of governmental office,

gross waste of funds, or any other abuse or gross neglect of duty

on the part of an agency, public officer, or employee.” Fla. Stat.

§ 112.3187(2). See also Fla. Stat. § 112.3187(7), providing that

the section protects employees and certain other persons. To

further this legislative intent, the PWA prohibits “[a]n agency or

independent contractor” from “dismiss[ing], discipline[ing], or

tak[ing] any other adverse personnel action against an employee

for disclosing information pursuant to the provisions of this

section.” Fla. Stat. § 112.3187(4)(a). As to a “person”

generally, the PWA prohibits “[a]n agency or independent

contractor” from “tak[ing] any adverse action that affects the

rights or interests of a person in retaliation for the person's

disclosure of information under this section.” Fla. Stat. §

112.3187(4)(b). Three classes of persons may file a whistle-

blower complaint: (1) an employee or applicant of any state agency;

(2) any local public employee protected by the Act; and (3) any

other person protected by the Act. Fla. Stat. § 112.3187(8)(a)–

(c); Sch. Bd. of Hillsborough Cnty v. Woodford, 270 So. 3d 481,

484 (Fla. 2d DCA 2019).

To establish a prima facie claim under the PWA, an employee

must show that: “(1) [s]he engaged in a protected activity; (2)

[s]he suffered an adverse employment action; and (3) there is a

causal connection between the two events.” Chaudhry v. Adventist

Health Sys. Sunbelt, Inc., 305 So. 3d 809, 814-15 (Fla. 5th DCA

2020) (citations and quotation marks omitted). As a remedial

statute, the PWA is liberally construed “in favor of granting

access to protection from retaliatory actions.” Igwe v. City of

Miami, 208 So. 3d 150, 155 (Fla. 3d DCA 2016). Retaliation claims

under the PWA are analyzed in the same manner as Title VII

retaliation claims. Sch. Bd. of Palm Beach Cnty. v. Groover, 4D20-

1547, 2022 WL 1100489, at *2 (Fla. 4th DCA Apr. 13, 2022);

Chaudhry, 305 So. 3d at 814.

The PWA provides a range of mandatory statutory relief to a

prevailing plaintiff, without necessarily precluding other types

of relief. Iglesias v. City of Hialeah, 305 So. 3d 20, 22 (Fla.

3d DCA 2019)(allowing potential recovery of noneconomic

compensatory damages not referenced in statute). The statutory

remedies include reinstatement of a former employee to the same or

an equivalent position. Fla. Stat. § 112.3187(9)(a). Under

section 112.3187(9)(a), ultimate relief in a whistleblower action

“must include” either reinstatement or reasonable front pay as

alternative relief. Groover, 2022 WL 1100489, at *5.

Where the adverse employment action is alleged to be the

discharge of an employee, relief also includes temporary

reinstatement while the case is pending.

Temporary reinstatement to the employee's former

position or to an equivalent position, pending the final

outcome on the complaint, if an employee complains of

being discharged in retaliation for a protected

disclosure and if a court of competent jurisdiction or

the Florida Commission on Human Relations, as applicable

under s. 112.31895, 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. This paragraph does not apply

to an employee of a municipality.

Fla. Stat. § 112.3187(9)(f). Thus, temporary reinstatement is

required if a plaintiff demonstrates he or she was an “employee”

and that: "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 Human

Relations, 842 So. 2d 253, 255 (Fla. 1st DCA 2003).

III.

The record establishes the following basic facts:

Dr. Hamway was directly employed by the School Board from

August 16, 2018 to February 8, 2019 (the 2018-2019 school year) as

a school psychologist pursuant to a contract with the School Board.

(Doc. #23-1, ¶ 8.) Dr. Hamway voluntarily resigned from this

employment via an email dated January 25, 2019, and her last day

of employment with the School Board was February 8, 2019. (Id., ¶

8, p. 18; Doc. #23-2, ¶ 3.) Dr. Hamway has not been directly

employed by the School Board since her resignation. (Doc. #23-1,

¶ 8.)

The School Board directly employs over 80 school

psychologists and social workers to provide services relating to

various mental health needs. (Doc. #23-1, ¶ 6.) The School Board

also maintains professional service contracts with private

contractors which provide their own personnel to the School Board

when it is short-staffed or needs to fill a temporary position.

(Id.) When the School Board enters into such a contract with a

private contractor, the School Board pays the contractor directly

for the services rendered by its personnel. The School Board does

not pay the individual directly nor provide employment benefits to

the individual. (Id., ¶ 6.)

The School Board had a contract with Community Rehab

Associates Therapy (CRA Therapy) for the 2020-2021 school year to

supplement temporary positions, including a school psychologist

position, with CRA Therapy personnel. (Id., ¶¶ 6-7, pp. 6-13.)

Pursuant to its CRA Therapy contract, the School Board paid CRA

Therapy directly for services provided by its personnel. (Id., ¶¶

6, 10; Doc. #31-2, p. 1.) The 2020-21 school year contract between

the School Board and CRA Therapy was executed on July 28, 2020 and

expired on June 30, 2021. (Doc. #23-1, ¶ 7, p. 6.)

In November 2020, CRA Therapy contacted the appropriate

School Board employee to see if the School Board would be

interested in having Dr. Hamway fill an open school psychologist

position. (Doc. #23-1, ¶ 9.) The employee responded in the

affirmative. (Id., ¶ 10.)

On December 7, 2020, Dr. Hamway signed an Offer of Employment

and a Memorandum of Understanding and Agreement with CRA Therapy.

(Id., ¶ 9; Doc. #31-2, p. 1.) Under these documents Dr. Hamway

accepted “at will” employment with CRA Therapy for the 2020-2021

school year. (Doc. #31-2, p. 2.) CRA Therapy agreed to employ

“the undersigned employee” (Dr. Hamway) as a school psychologist

for its client (the School Board) for up to fifteen hours a week.

(Id., p. 1.) Dr. Hamway worked two days a week at an elementary

school until the end of the 2020-2021 school year. (Doc. #23-1, ¶

10.) During this time, the School Board paid CRA Therapy for Dr.

Hamway’s services, and CRA Therapy in turn provided an hourly

compensation rate of $51.50 to Dr. Hamway. (Id.; Doc. #31-2, p.

1.)

During her employment with CRA Therapy, Dr. Hamway sent six

emails to various persons or entities which she asserts were

protected disclosures under the PWA. (Doc. #1, ¶ 13; Doc. #2, pp.

8, 16-20.)

The School Board entered into a contract with CRA Therapy for

school year 2022-2023, but did not need outside services at the

elementary school for that year. Dr. Hamway asserts that this

resulted in her “discharge” from her employment with the School

Board in retaliation for her protected emails. Dr. Hamway now

seeks temporary reinstatement to her part-time employment with the

School Board. (Doc. #1, ¶ 14.)

A. Whether Plaintiff Was an “Employee” of School Board

Defendant argues that Dr. Hamway is not entitled to temporary

reinstatement because she was not an “employee” of the School

Board. Defendant points out that Dr. Hamway had no contract with

the School Board for employment, but did have an employment

contract with CRA Therapy; the School Board did not directly pay

her wages or benefits, and she was not under the control and

direction of the School Board at the time of her alleged discharge.

Rather, Defendant asserts that Dr. Hamway was an employee of CRA

Therapy, as her written employment agreements state. (Doc. #23,

pp. 6-7.) Defendant therefore asserts that reinstating Dr. Hamway

to her former position is not possible since she had no employment

position with the School Board, citing Moise v. Miami-Dade Cnty.,

2018 U.S. Dist. LEXIS 143667, at *39 (S.D. Fla. Aug. 22, 2018)).

(Id.)

Dr. Hamway concedes that School Board accepted her employment

through CRA Therapy, which had a contractual agreement with the

School Board to provide on-site behavioral services. (Doc. #31, p.

2.) Dr. Hamway reasons, however, that she “is a person who performs

services through an independent contractor (CRA Therapy), which

has a contract with the Defendant in accordance with F.S. §

112.3187(3)(d),” and thus she is a protected “employee” under the

PWA.1 (Id., pp. 2-3.) The Court disagrees.

The statute defines an employee as a “person who performs

services for, and under the control and direction of, or contracts

with, an agency or independent contractor for wages or other

remuneration.” Fla. Stat. § 112.3187(3)(b). An “agency” includes

any “state, regional, county, local, or municipal government

entity, . . . or any public school . . . ,” and an “independent

contractor” is “a person, other than an agency, engaged in any

business and who enters into a contract, including a provider

agreement, with an agency.” Fla. Stat. §§ 112.3187(3)(a), (d).

The Court concludes that Dr. Hamway was not an “employee” of

the School Board for purposes of temporary reinstatement under the

PWA. There is no evidence of a direct contractual relationship

between the School Board and Dr. Hamway, nor has she presented

evidence that the School Board controlled or directed her conduct.

The School Board did not pay Dr. Hamway’s wages and provided no

1 During oral argument, Plaintiff alternatively argued that

she was an independent contractor of the School Board, and thus

she is an “employee” as defined by the PWA. Even liberally

construing the PWA, the Court does not agree. The evidence shows

that CRA Therapy, not Plaintiff, had contracted with the School

Board to offer certain services. Therefore, pursuant to Fla. Stat.

§ 112.3187(3)(d), Plaintiff was not an independent contractor who

had contracted with an “agency.” This conclusion is further

supported by Dr. Hamway’s contract with CRA Therapy, which states

under the “Covenants and Provisions” section that “[t]he employee

[Dr. Hamway] agrees to work at the referred position through CRA

as a CRA employee.” (Doc. #31-2, p. 6.)

benefits. While Dr. Hamway performed services for the School

Board, the School Board was CRA Therapy’s client, and CRA Therapy

was the company which hired her. The only employment relationship

Dr. Hamway had was with CRA Therapy. Thus, any request to be

reinstated pursuant to the PWA would have to be directed to CRA

Therapy. See Moise, 2018 U.S. Dist. LEXIS 143667, at *39; see

also Irwin v. Miami-Dade Cty. Pub. Schs., No. 06-23029-CIV-

COOKE/B, 2009 U.S. Dist. LEXIS 14382, at *13 (S.D. Fla. Feb. 24,

2009)(concluding the plaintiff had no actionable claim under

Section 112.3187 against the Florida Department of Law Enforcement

because he was not employed by the Department). Accordingly, the

Court agrees with Defendant that Dr. Hamway is not entitled to

reinstatement to a position with the School Board under the PWA

since she was not a School Board employee. Plaintiff’s motion for

temporary reinstatement is therefore denied.

B. Whether Plaintiff Was “Discharged” by School Board

Generally, the PWA applies to adverse employment actions.

One such adverse employment action – discharge – is given an

additional remedy. The statute requires temporary reinstatement

pending trial when an employee has been discharged in retaliation

for a protected disclosure. Fla. Stat. § 112.3187(9)(f). Thus,

temporary reinstatement under the PWA is only available when an

employee has been “discharged” allegedly in retaliation for a

protected disclosure. Luster v. W. Palm Beach Hous. Auth., 801

So.2d 122, 123 (Fla. 4th DCA 2001). An employee who has been simply

transferred or demoted has no statutory right to temporary

reinstatement. Id. See also Metro. Dade Cty. v. Milton, 707 So.2d

913, 914–15 (Fla. 3d DCA 1998); Utterback v. Sch. Bd. of Palm Beach

County, 219 So. 3d 940 (Fla. 4th DCA 2017). The Florida

legislature recognized the distinction between “discharge” and

other “adverse personnel action” and chose to require

reinstatement only where a discharge has resulted. Milton, 707

So. 2d at 915. Luster v. W. Palm Beach Hous. Auth., 801 So. 2d

122, 123–24 (Fla. 4th DCA 2001).

The dictionary defines the term "discharge" as "to dismiss

from employment: to terminate the employment of." Webster's Third

New Int'l Dictionary 644 (1986); Black's Law Dictionary 463 (6th

ed. 1990) ("To dismiss from employment; to terminate employment of

a person."). There is no evidence of record showing that Plaintiff

was dismissed or terminated from her employment as to CRA Therapy,

or the School Board for that matter. In a July 2, 2021 email Dr.

Hamway states that “[o]n June 25th [2021], my contract as a School

Psychology Consultant with the Lee County School District

expired.” (Doc. #2-6, p. 2.) During oral argument, the parties

agreed that CRA Therapy’s contract with the School Board expired

on June 30, 2021. Dr. Hamway’s contract with CRA Therapy states

that she was offered employment for a definitive period – the

“2020-2021 school year” and the contract makes no mention of any

option for renewal or extension of employment beyond the end of

this time period. (Doc. #31-2, p. 1.) Accordingly, Dr. Hamway’s

contract simply expired and absent from the record is any evidence

that she was “discharged.” See generally, Meredith v. Sch. Bd.,

No. 6:05-cv-1246-Orl-28DAB, 2007 U.S. Dist. LEXIS 114248, at *23

(M.D. Fla. July 10, 2007), aff’d 260 F. App’x 214 (11th Cir.

2007)(finding plaintiff was not wrongfully discharged where she

was not terminated with or without cause; rather, her annual

contract expired and was not renewed).

C. Whether Plaintiff’s Emails Were “Protected Disclosures”

Pursuant to Fla. Stat. § 112.3187(7), Dr. Hamway identifies

six emails that she asserts are the protected disclosures of

“employees and persons” who disclose information on their own

initiative in a written and signed complaint. (Doc. #2, pp. 8-9,

16-20.) The Court, however, does not find it necessary to address

whether Dr. Hamway’s emails constitute protected disclosures since

she has not demonstrated that she was an “employee” who was

“discharged” in accordance with the PWA.

Accordingly, it is now

ORDERED:

Plaintiff Dr. Rose Hamway’s Motion for Temporary

Reinstatement Under F.S. § 112.3187(9)(f) (Doc. #2) is DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 18th day of

May, 2022.

Z tkisok

JQH E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of record

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