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

> District Court, M.D. Florida · September 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10110904

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 7, 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/10110904

## How later opinions describe it (automated extraction)

- explaining that where the text “is not ambiguous, . . . a court should not add words to manipulate its meaning”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110904. Public record. Not legal advice.