# Hamway v. The School Board of Lee County, Florida

> District Court, M.D. Florida · May 18, 2022

URL: https://www.frixlaw.com/law-library/cases/10110110

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 18, 2022
- **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/10110110

## How later opinions describe it (automated extraction)

- finding plaintiff was not wrongfully discharged where she was not terminated with or without cause; rather, her annual contract expired and was not renewed

## Opinion text

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

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110110. Public record. Not legal advice.