Slichter v. The School Board of Lee County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

PEGGY SLICHTER, an individual,

Plaintiff,

v. Case No: 2:21-cv-704-JLB-NPM

THE SCHOOL BOARD OF LEE

COUNTY, FLORIDA,

Defendant.

/

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING

MOTION FOR TEMPORARY REINSTATEMENT1

Peggy Slichter moves the Court for her temporary reinstatement under

Florida’s Public Whistleblower Act, Fla. Stat. § 112.3187(9)(f) (“FWA”). (Doc. 2.)

The School Board of Lee County, Florida (“School Board”) opposes Ms. Slichter’s

temporary reinstatement (Doc. 25), and Ms. Slichter has replied (Doc. 35). The

matter was referred to the Magistrate Judge for a recommended disposition. (Doc.

30.) The Magistrate Judge filed his Report and Recommendation on August 16,

2022, recommending the Court deny Ms. Slichter’s motion for temporary

reinstatement. (Doc. 38.)

1 Documents hyperlinked to CM/ECF are subject to PACER fees. By using

hyperlinks, the Court does not endorse, recommend, approve, or guarantee any

third parties or the services or products they provide, nor does it have any

agreements with them. The Court is also not responsible for a hyperlink’s

availability and functionality, and a failed hyperlink does not affect this Order.

Ms. Slichter filed objections to the Report and Recommendation, arguing that

it is incorrect in two overarching respects.2 (Doc. 39.) First, she contends that the

Report and Recommendation improperly concludes that Ms. Slichter did not engage

in statutorily protected activity under the FWA. Next, she asserts it is further

incorrect by determining that she was statutorily disqualified from temporary

reinstatement because her purported whistleblowing disclosures were made after

personnel actions against her. After independently examining the entire file and de

novo review of the objected-to findings of fact and recommended conclusions of law

set forth in the Report and Recommendation, the Court adopts the Report and

Recommendation.3

The FWA’s remedial section entitles temporary reinstatement of a

complainant-employee if she demonstrates the following: “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

2 It is unnecessary to wait for the School Board’s response in addressing Ms. Slichter’s

objections and ruling on the pending motion.

3 A district judge may accept, reject, or modify the magistrate judge’s report and

recommendation. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo

determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” Id. And legal conclusions are

reviewed de novo even without any objection. Cooper-Houston v. Southern Ry. Co.,

37 F.3d 603, 604 (11th Cir. 1994).

(Fla. 1st DCA 2003). Section 112.3187 explains that a “disclosure” is “protected” if

it involves:

(a) Any violation or suspected violation of any federal, state,

or local law, rule, or regulation committed by an employee

or agent of an agency or independent contractor which

creates and presents a substantial and specific danger to

the public’s health, safety, or welfare.

(b) Any act or suspected act of gross mismanagement,

malfeasance, misfeasance, gross waste of public funds,

suspected or actual Medicaid fraud or abuse, or gross

neglect of duty committed by an employee or agent of an

agency or independent contractor.

Fla. Stat. § 112.3187(5)(a)–(b). Furthermore, the FWA allows for temporary

reinstatement of the complainant-employee as follows:

(9) Relief.--In any action brought under this section, the

relief must include the following:

. . .

(f) 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

[section] 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.

Fla. Stat. § 112.3187(9)(f) (emphasis supplied).4

4 Because this concerns a preliminary question, Ms. Slichter need only make an

initial showing; the Court’s findings are for the purposes of whether temporary

reinstatement is warranted only and are not binding as to the merits of the FWA

claim. See Broward Cnty. Sheriff’s Office v. Hamby, 300 So. 3d 213, 217 n.2 (Fla.

4th DCA 2020).

First, the Magistrate Judge correctly found that Ms. Slichter’s “rebuttal

letters5 did not push for compliance with SESIR reporting6 or object to the speed

with which Title I data7 was submitted.” (Doc. 38 at 6.) Ms. Slichter contends this

finding “overlooks the actual words” in her letters. (Doc. 39 at 3.) But, confusingly

so, she later urges the Court not to look for “magic words” or explicit violations in

her letters but instead to interpret those letters as addressing the “nuanced”

communications of her complaints of misfeasance or malfeasance. (Doc. 39 at 3–6.)

The Court disagrees. After careful review, it is clear that the rebuttal letters

do not—even taking a “nuanced” view of them, as Ms. Slichter suggests—constitute

protected disclosures about the school’s compliance with SESIR or Title I reporting.

The context and content of Ms. Slichter’s rebuttal letters demonstrate that, to the

very limited extent she mentions SESIR or Title I at all, she did not set out to

communicate any violations, malfeasance, or misfeasance. The letters instead

5 The communications here are letters Ms. Slichter wrote in response to written

reprimands from her school’s principal, Dr. Scott LeMaster.

6 “SESIR is an acronym for School Environmental Safety Incident Reporting, which

is a system that collects data and provides school-level, district-level, and state-level

reports about violent, criminal, or disruptive incidents and related disciplinary

actions.” (Doc. 38 at 6 n.8 (citing Doc. 1 ¶¶ 16–17; Doc. 2 at 13–14; About SESIR –

School Environmental Safety Incident Reporting (fldoe.org)).

7 As alleged by Ms. Slichter, Title I of the Elementary and Secondary Education Act,

as amended by the Every Student Succeeds Act (ESSA), provides financial

assistance to local educational agencies and schools with high numbers or high

percentages of children from low-income families to help ensure that all children

meet state academic standards. (Doc. 1 ¶ 31); Title I, Part A: Improving the

Academic Achievement of the Disadvantaged (fldoe.org).

merely communicate excuses, justifications, and rationalizations for her conduct

that violated School District standards.

Ms. Slichter’s first rebuttal letter and purported whistleblowing disclosure

followed her March 3, 2021, written reprimand for (1) failing to promptly advise her

school principal, Dr. LeMaster, about a kindergartner who claimed, falsely as it

turned out, she had a machete in her backpack, (2) failing to promptly contact the

kindergartener’s parents and the parents of a student who heard the false claim,

and (3) failing to document the incident. (Doc. 2-1.) Ms. Slichter’s second rebuttal

letter followed her April 21, 2021, written reprimand for violating applicable

professional standards. (Doc. 2-2.) As background, Ms. Slichter provided a doctor’s

note that her more than a month’s absence from work was because she was unable

to work. However, during that prolonged absence period, she posted on social media

a photograph of her relishing crabcakes and a mint julep in New Orleans. Both

instances violated School Board policy in at least one way.

This finding that Ms. Slichter’s communications did not involve a “protected

disclosure” under section 112.3187(5)—alone—is enough to deny Ms. Slichter’s

request for temporary reinstatement. Fla. Stat. § 112.3187(5)(a)–(b); see Moise v.

The Sch. Bd. of Collier Cnty., No. 2:20-CV-102-JLB-NPM, 2021 WL 973497, at *3–5

(M.D. Fla. Mar. 16, 2021) (stating, “[t]he first requirement of section 112.3187(9)(f)

is that the employee must demonstrate, at least preliminarily, that they made a

protected disclosure,” and denying temporary reinstatement on finding the plaintiff

made no such protected disclosure). At bottom, the Magistrate Judge did not err in

recommending that Ms. Slichter’s motion for temporary reinstatement be denied

because she did not make a preliminary showing of any protected disclosure.8

Turning to Ms. Slichter’s second argument, the Report and Recommendation

concluded that because her rebuttal letters were made after (indeed, as a direct

response to) Dr. LeMaster’s “documentation of [Ms. Slichter’s] violation of a

disciplinary standard or performance deficiency,” her argument for temporary

reinstatement is “[s]quarely at odds with the plain text of the statute.” (Doc. 38 at 5

(citing Fla. Stat. § 112.3187(9)(f)).) Even if Ms. Slichter’s two rebuttal letters

somehow established a preliminary showing of a protected disclosure, the Court

agrees with the Report and Recommendation that those reprimand letters are

personnel actions.

After a careful de novo review, the written reprimands from Dr. LeMaster

clearly evince “personnel action” against Ms. Slichter that includes “documentation

of [Ms. Slichter’s] violation of a disciplinary standard or performance deficiency.”

Fla. Stat. § 112.3187(9)(f). The Report and Recommendation concludes that,

because Ms. Slichter’s purported whistleblowing disclosures were made after these

written reprimands, she is disqualified from temporary reinstatement. (Doc. 38 at

5.)

8 As the Magistrate Judge aptly notes, it is telling that on the first page of both of

Ms. Slichter’s rebuttal letters Ms. Slichter noted that she submitted the letters in

an effort “to protect [her]self.” (Doc. 38 at 8 (citing Doc. 2-1 at 1; Doc. 2-2 at 1).)

Ms. Slichter objects, arguing that a write-up does not constitute the kind of

personnel action contemplated by section 112.3187(9)(f). (Doc. 39 at 8–13.) As Ms.

Slichter would have it, section 112.3187(9)(f) merely precludes temporary

reinstatement when an otherwise qualifying disclosure is made after an adverse

personnel action provided it is accompanied by documentation of that employee’s

violation of a disciplinary standard or performance deficiency. (Doc. 35 at 6–9.) She

also asks this Court to accept that a “personnel action” is the same as an “adverse

personnel action.” (Doc 35 at 10 n.7.) The School Board contends (and the Report

and Recommendation agrees) that “documentation of the employee’s violation of a

disciplinary standard or performance deficiency” is—in and of itself—an example of

a personnel action that cannot precede a protected disclosure. (Doc. 25 at 6–10;

Doc. 38 at 3–6.)

The Court finds it difficult to reconcile Ms. Slichter’s argument that an

employer’s action of composing a reprimand letter to an employee: (1) setting forth

the employee’s specific conduct at issue, (Doc. 25-1 at 6–7, 9–10), (2) identifying that

her conduct contravened specific employment standards to which the employee is

bound, (Doc. 25-1 at 7–9), (3) directing an employee to follow specific directions

customized to the violative behavior (Doc. 25-1 at 7, 10) or she would receive

“further discipline action up to and including termination,” (Doc. 25-1 at 7, 10), and

(4) then explaining that the letter would be made a part of the employee’s school

and/or School District personnel file, (Doc. 25-1 at 7, 10) is not the kind of

“personnel action” the Florida Legislature envisioned when it penned the phrase,

“determines that the disclosure . . . 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.” Fla.

Stat. § 112.3187(9)(f) (emphasis supplied).

To accept Ms. Slichter’s strained interpretation of section 112.3187(9)(f), a

provision which she admits is unambiguous (Doc. 2 at 5 n.4), would require this

Court to add language—“provided it is accompanied by” before the phrase

“documentation of that employee’s violation of a disciplinary standard or

performance deficiency,” (Doc. 35 at 8), and “adverse” before section 112.3187(9)(f)’s

phrase, “personnel action.” Had the Florida Legislature intended the statute to

include that the “personnel action” must be “adverse,” such as an employee’s

termination, and intended to include “provided it is accompanied by” before the

phrase “documentation of that employee’s violation of a disciplinary standard or

performance deficiency,” as Ms. Slichter suggests, the Florida Legislature would

have put that language in the statute in the first place. See Therlonge v. State, 184

So. 3d 1120, 1121 (Fla. 4th DCA 2015) (“In analyzing statutory language, reviewing

courts must give the statutory language its plain and ordinary meaning, and cannot

add words which were not placed there by the Legislature.”) (internal citation and

quotation marks omitted); cf. McCoy v. R.J. Reynolds Tobacco Co., 229 So. 3d 827,

829 (Fla. 4th DCA 2017) (explaining that where the text “is not ambiguous, . . . a

court should not add words to manipulate its meaning”).

In final analysis, Ms. Slichter is not entitled to temporary reinstatement for

either or both of the two, independent reasons set forth in the Report and

Recommendation.

Accordingly, it is now ORDERED:

1. Ms. Slichter’s objections (Doc. 39) are OVERRULED.

2. The Report and Recommendation (Doc. 38) is ADOPTED.

3. Ms. Slichter’s Motion for Temporary Reinstatement (Doc. 2) is DENIED.

ORDERED in Fort Myers, Florida on September 7, 2022.

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record