Davis v. Orange County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

STEPHEN M. DAVIS,

Plaintiff,

v. Case No: 6:22-cv-2222-PGB-EJK

ORANGE COUNTY,

Defendant.

/

ORDER

This cause comes before the Court on Defendant’s Motion to Dismiss (Doc.

9 (the “Motion”)) and Plaintiff’s response in opposition (Doc. 20). Upon

consideration, the Motion is due to be granted.

I. BACKGROUND1

This case flows from the release of a firefighter from his employment by a

Florida municipality. (Doc. 1-1). Before his termination in October 2021, Plaintiff

Stephen M. Davis (“Plaintiff”) was a Battalion Chief for the Orange County Fire

and Rescue Battalion 4, a department within the municipality of Defendant

Orange County, Florida (“Defendant”). (Id. ¶¶ 1, 6–7). Part of Plaintiff’s job

responsibilities as Battalion Chief included administering disciplinary measures

to his subordinates. (Id. ¶ 14).

1 This account of the facts comes from the Plaintiff’s Complaint. (Doc. 1-1). The Court accepts

these well-pled factual allegations as true when considering motions to dismiss. See

Williams v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).

Due to the Covid-19 pandemic, Defendant set forth a vaccination policy for

its employees. (Id. ¶¶ 2, 15). After some negotiation, the Orange County Fire

Fighters Association Local 2057, the union representing Plaintiff and other

Orange County firefighters, reached an agreement whereby its members were

allowed to submit religious or health exemption accommodation requests in lieu

of vaccination certifications by September 30, 2021. (Id. ¶¶ 2, 17–18). Under the

union agreement, an employee who did not submit an exemption request or

vaccination certification on or before this date was subject to written reprimand

only—no further disciplinary action could be taken under the vaccination policy.

(Id. ¶ 18). Those employees who did not submit a vaccination certification—either

due to an exemption request or lack of submission altogether—were required to

undergo weekly testing or else be subject to further discipline beyond written

reprimands. (Id.). Plaintiff timely submitted a religious exemption request and

was not himself subject to discipline for failing to comply with the vaccination

policy. (Id. ¶ 16). Plaintiff also joined a lawsuit seeking to strike down

Defendant’s vaccine policy as unlawful on October 1, 2021.2 (Id. ¶¶ 20, 30).

On October 5, 2021, Defendant, through Assistant Chief Kimberly Buffkin

(“Assistant Chief Buffkin”), gave an order to the Battalion Chiefs to issue

written reprimands for those employees on a provided list for failure to comply

with the vaccination policy. (Id. ¶¶ 19, 21). Plaintiff believed some employees in

2 This suit was filed in Florida state court, and the Court may take judicial notice of the fact

that the plaintiffs there voluntarily dismissed the suit as this public record can be accurately

and readily determined from sources whose accuracy cannot reasonably be questioned. See

Wheat v. Orange County, No. 2021-CA-009579-O (Fla. Orange Cnty. Ct. June 9, 2022).

his battalion who were on this list had requested exemptions. (Id. ¶ 23). Plaintiff

received this list after close of business, so he could not contact Human

Resources to verify his beliefs regarding the employees on the list. (Id. ¶ 25).

Plaintiff further believed that to issue written reprimands in this situation would

violate Florida and federal civil rights laws as well as Orange County Fire and

Rescue Rules and Regulations. (Id. ¶¶ 24, 26, 28–29). Plaintiff both spoke with

and sent an email to Assistant Chief Buffkin in order to express his concerns. (Id.

¶¶ 25, 27, 29–30). The email stated:

Chief,

Mesa and Landers are state they are vaccinated and filled out the

county forms. Is there a way to confirm this? Secondly, station 50

does not have any test kits at their station. I have 5 boxes here,

however, each box has an expired lot number that is not on the

two pdfs you set out. How do you want me to proceed? It appears

that all kits in B4 are expired too. I have reached out to all stations

to get confirmation of their kits and each of them showed the same

lot numbers.

(Id. at p. 117). That evening, Plaintiff met with Assistant Chief Buffkin in-person

to further express his concerns. (Id. ¶ 31). After hearing Plaintiff’s concerns,

Assistant Chief Buffkin “gave a direct order to [Plaintiff] to issue the reprimands,

without acknowledging or verifying if his concerns were correct. [Plaintiff]

refused. [Plaintiff] was then immediately relieved of duty by [Assistant Chief]

Buffkin.” (Id.).

Plaintiff was officially terminated from his position following a

predetermination hearing pursuant to departmental rules on October 13, 2021

that cited, among other violations of Orange County Fire & Rescue rules, his

violation of a direct order from a superior. (Id. ¶¶ 41–42). At this hearing,

Plaintiff expressed his concerns in writing when at least two assistant chiefs were

present along with a union representative, and this writing was provided to them

after the hearing as well. (Id. ¶ 41). Plaintiff received notice of his official

termination October 18, 2021, effective on October 19, 2021. (Id. ¶¶ 41, 44).

Following this, Plaintiff provided written notice of what he alleges was an

unlawful termination and retaliation to Orange County Mayor Jerry Demings

(“Mayor Demings”) on October 19, 2021. (Id. ¶¶ 7, 50). Plaintiff then appealed

this determination through the Grievance and Arbitration procedure provided for

in the Orange County Fire Rescue Collective Bargaining Agreement. (Id. ¶¶ 57–

60). His appeal was denied. (Id.).

To remedy an alleged violation of the Florida Whistleblower Act flowing

from these events, Plaintiff filed suit in Florida state court. (Doc. 9, p. 3). Plaintiff

amended his complaint further alleging retaliation claims under Title VII of the

Civil Rights Act (“Title VII”), the Florida Civil Rights Act (the “FCRA”), and the

Americans With Disabilities Act (the “ADA”) as well as breach of contract. (Doc.

1-1). Defendant removed the case to this Court. (Doc. 1). Defendant now moves to

dismiss the amended complaint in full for failure to state a claim (Doc. 9), and

after Plaintiff’s response in opposition (Doc. 20), this matter is ripe for review.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, the complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face

when the plaintiff “pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Legal conclusions and recitation of a claim’s elements are properly disregarded,

and 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). Courts must also

view the complaint in the light most favorable to the plaintiff and must resolve

any doubts as to the sufficiency of the complaint in the plaintiff’s favor. Hunnings

v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam).

Furthermore, in ruling on a motion to dismiss, “[a] court is generally

limited to reviewing what is within the four corners of the complaint” and the

attachments thereto which are undisputed and central to the claim. St. George v.

Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002); Austin v. Modern Woodman

of Am., 275 F. App’x 925, 926 (11th Cir. 2008) (quoting Bickley v. Caremark RX,

Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006)). In addition, however, the court

may consider documents central to a claim whose authenticity is not in dispute as

well as matters that are subject to judicial notice. See Tellabs, Inc. v. Makor

Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Allen v. USAA Cas. Ins. Co., 790

F.3d 1274, 1278 (11th Cir. 2015); Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.

2002) (permitting courts to consider documents attached to a motion to dismiss

without converting the motion into one for summary judgment, but only if the

attached documents are central to the plaintiff’s claims and undisputed); see also

FED. R. EVID. 201 (stating that a court “may judicially notice a fact that is not

subject to reasonable dispute” because it is either “generally known within the

trial court’s territorial jurisdiction” or it “can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned”).

In sum, courts must: reject conclusory allegations, bald legal assertions,

and formulaic recitations of the elements of a claim; accept well-pled factual

allegations as true; and view well-pled allegations in the light most favorable to

the plaintiff. Iqbal, 556 U.S. at 679.

III. DISCUSSION

In turn, the Court addresses the insufficiency of Plaintiff’s FWA claim, his

three retaliation claims, and his breach of contract claim.

A. The Florida Whistleblower’s Act

The Florida Whistleblower’s Act, FLA. STAT. §§ 112.3187–112.31895 (the

“FWA”), is a remedial statute designed to encourage the elimination of public

corruption by protecting public employees who ‘blow the whistle,’ so it should be

construed liberally in favor of granting access to the remedy. Martin County v.

Edenfield, 609 So. 2d 27, 29 (Fla. 1992). In order to state a claim under the FWA,

plaintiff must allege sufficient facts for courts to plausibly conclude that (1) prior

to termination, the plaintiff engaged in a protected activity (i.e., a protected

disclosure of information or a refusal to participate in acts prohibited by the

FWA); (2) the plaintiff suffered an adverse employment action; and (3) the two

events are not wholly unrelated. FLA. STAT. § 112.3187(4); Shaw v. Town of Lake

Clarke Shores, 174 So. 3d 444, 445–46 (Fla. 4th DCA 2015); see also Nazzal v.

Fla. Dep’t of Corr., 267 So. 3d 1094, 1096 (Fla. 1st DCA 2019) (finding that

plaintiff failed to state a claim under the FWA because she did not make a

protected disclosure as statutorily defined even when liberally construed).

At issue here is whether Plaintiff has properly alleged a protected

disclosure of information prior to termination under the FWA and whether

Plaintiff’s termination is not wholly unrelated to that alleged disclosure. The FWA

sets parameters for what constitutes a protected disclosure of information

regarding how the employee must make the disclosure, the nature of the

information disclosed, and to whom the information must be disclosed. FLA.

STAT. §§ 112.3187(5)–(7). For the following reasons, Plaintiff’s FWA claim fails to

plausibly allege he made a protected disclosure that is not wholly unrelated to his

termination.

Public employees in Florida are protected if they either 1) “disclose

information on their own initiative in a written and signed complaint;” or 2)

“refuse to participate in any adverse action prohibited by this section.” FLA. STAT.

§§ 112.3187(7).3 “[T]he purpose of requiring a signed writing is to document what

3 Plaintiff appears to argue that he alleges a protected act under both the disclosure prong and

the refusal to participate prong of FLA. STAT. §§ 112.3187(7). (Doc. 20, pp. 7–10). However,

while Plaintiff surely conclusorily mentions his refusal to participate, he does not ever allege

that the acts which he refused to participate in were “adverse actions prohibited by this

section”—that is, the taking of adverse actions against the employees subject to his oversight

for protected disclosures under the FWA. Instead, he refused to take action due to his belief

that such action was prohibited by other laws, not the FWA. As such, the Court only

analyzes the FWA’s disclosure prong.

the employee disclosed, and to whom the employee disclosed it, thus avoiding

problems of proof for purposes of the Whistle-blower’s Act.” Walker v. Fla. Dep’t.

of Veterans’ Affs., 925 So. 2d 1149, 1150 (Fla. 4th DCA 2006). Under FLA. STAT. §

112.3187(5), the signed writing must identify either the suspected violation at

issue which presents a “substantial and specific danger to the public’s health,

safety, or welfare” or the “act or suspected act of gross mismanagement,

malfeasance, misfeasance, gross waste of public funds, . . . or gross neglect of

duty.” FLA. STAT. § 112.3187(5); Pickford v. Taylor Cnty. Sch. Dist., 298 So. 3d

707, 711 (Fla. 1st DCA 2020) (finding communication at issue was not a protected

disclosure because employee merely disputed a pay discrepancy by explaining his

understanding of the related policy rather than setting forth concerns that qualify

as a statutorily protected disclosure under FLA. STAT. § 112.3187(5)). Only one

writing in Plaintiff’s complaint potentially qualifies as a protected disclosure.

First, Plaintiff’s initial email to Assistant Chief Buffkin merely requests if it

is possible to confirm the vaccination status of those employees for whom he was

responsible. (Doc. 1-1, ¶ 30, p. 117). This email is not sufficiently detailed or

related to the topics necessary for it to constitute a protected disclosure under the

FWA. Pickford, 298 So. 3d at 711.

Second, Plaintiff includes multiple references to communications allegedly

sent by other parties to various persons throughout the scope of this litigation.

(See Doc. 1-1). These other communications do not qualify as protected

disclosures here because Plaintiff did not make them. See Shaw, 174 So. 3d at

445–46 (noting the plaintiff must make the disclosure protected by the FWA and

the defendant must know it came from the plaintiff).

Third, Plaintiff mentions that he was one of many plaintiffs in a different

lawsuit filed against Defendant challenging the lawfulness of the vaccination

policy. (Doc. 1-1, ¶ 30). Filing such a suit is certainly filing a written and signed

complaint, but this disclosure was not made to the proper local officials to qualify

for FWA treatment but instead to a Florida state court. When the information

disclosed concerns a “local government entity in Florida,” the information must

be disclosed to “a chief executive officer as defined in § 447.203(9) or other

appropriate local official.” FLA. STAT. § 112.3187(6).

While “other appropriate local official” is not further defined in FLA. STAT.

§ 112.3187(6), the Court concludes that the meaning of “appropriate” is cabined

by its surrounding text. This is so because the text is not clear on its face by way

of its ordinary or plain meaning. In a noted dictionary, “appropriate” is defined as

“especially suitable or compatible: fitting.” Appropriate, MERRIAM-WEBSTER.COM,

https://www.merriam-webster.com/dictionary/appropriate (last visited July 20,

2023). This definition does not aid the Court because it does little to help the

Court understand what would make other officials “suitable,” “compatible,” or

“fitting.” Id. Instead, the Court turns to the definition of “chief executive officer”

for local governments, which is defined in the FWA as “the person, whether

elected or appointed, who is responsible to the legislative body of the public

employer for the administration of the governmental affairs of the public

employer.” FLA. STAT. § 447.203(9). The Court gleans from this definition that the

Florida legislature intended that some “other appropriate local official” to be a

high-level administrative officer within a local government acting in an executive

capacity and who is in some way democratically accountable. Quintini v. Panama

City Hous. Auth., 102 So. 3d 688, 689 (Fla. 1st DCA 2012) (concluding that the

person or entity deemed to be an “other appropriate local official” must be

affiliated with the local executive government in some way); see also Burden v.

City of Opa Locka, No. 11–22018–civ, 2012 WL 4764592, at *13 (S.D. Fla. Oct. 7,

2012) (concluding that the city’s human resources director and assistant city

manager are “appropriate local officials” because they were empowered to

investigate complaints and make reports or recommend corrective action).

Consequently, a complaint filed with a local court is not a complaint filed with an

“appropriate local official” under the FWA.

Fourth, Plaintiff allegedly made a written disclosure on October 19, 2021

regarding his concerns to Mayor Demings who he also alleges is the chief

executive officer of Defendant Orange County. (Doc. 1-1, ¶¶ 50, 67). However, this

disclosure occurred after his termination which was already made final the day

previously, the appeal notwithstanding. (Id. ¶¶ 44, 50). As such, it is wholly

unrelated to the potential adverse action taken against him—namely, his

termination. Shaw, 174 So. 3d at 445–46.

Fifth and finally, Plaintiff alleges that around the time of the

predetermination hearing, he “yet again, in writing expressed his grave concerns

of the illegality of Defendant’s conduct and demand that he engage in that

unlawful conduct. This written defense was provided to higher command,”

including to at least “two assistant chiefs and a union representative.” (Doc. 1-1,

¶¶ 42–44). This single vague conclusory allegation is the only potential writing in

the complaint that might qualify as a protected disclosure under the FWA.

Indeed, the two assistant chiefs might plausibly qualify as “other appropriate

local official[s]” under FLA. STAT. § 112.3187(6) due to their capacity as high-

ranking administrative officers in one of Defendant’s executive municipal

departments. Moreover, although Plaintiff does not allege the writing was signed

as required, such a deficiency might be remedied upon repleader.

Repleader, however, is unnecessary. Critically, Plaintiff fails to plausibly

allege that his concerns approximate the gravity necessary for them to fall under

the purview of FLA. STAT. § 112.3187(5) even when liberally construed. Pursuant

to the FWA, the information disclosed “must include” either: (1) a “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” and

that violation must “create[] and present[] a substantial and specific danger to

the public’s health, safety, or welfare”; or (2) an “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). As a preliminary matter, Plaintiff fails to plead his concerns which he

expressed in the writing he allegedly gave to the relevant attendees of his

predetermination hearing. (Doc. 1-1, ¶¶ 42–44). Even when read in the light most

favorable to Plaintiff such that the Court infers Plaintiff’s concerns from the rest

of his pleadings and the Court assumes the administration of the discipline

described in the Complaint would be discriminatory for some reason, there is no

arguable case based on the information pled that such discipline would have

either created a “substantial and specific danger to the public’s health, safety, or

welfare” or constituted an “act or suspected act of gross mismanagement,

malfeasance, misfeasance, gross waste of public funds, . . . or gross neglect of

duty.” FLA. STAT. § 112.3187(5). While Defendant’s system for creating lists of

employees subject to a written reprimand for initial lack of compliance with the

vaccination policy could be plausibly characterized as an act of mismanagement,

if it indeed contained employees who had timely submitted exemption requests,

yet it is not plausible to characterize it as grossly so. Id. What is more, the

insinuation that such a bureaucratic snafu could have plausibly created a

“substantial and specific danger to the public’s health, safety, or welfare” is not

tenable. Id. Accordingly, Plaintiff fails to plausibly allege he engaged in protected

activity under the FWA and thus fails to state such a claim.

B. Retaliation Under Title VII, the FCRA, and the ADA

Similarly, to establish a prima facie case of retaliation under Title VII, the

FCRA, and the ADA (collectively, the “Acts”),4 Plaintiff must demonstrate three

elements: (1) he engaged in protected activity, (2) he suffered an adverse

employment action, and (3) the adverse employment action was causally related

to his protected activity. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454

(11th Cir. 1998). It is undisputed that Plaintiff suffered an adverse employment

action due to his termination. Instead, the plausibility of whether Plaintiff

engaged in a protected activity under the Acts is chiefly at issue here.

There are two types of protected activities under the Acts: those afforded

protection under a participation theory and those afforded protection under an

opposition theory. See Crawford v. Metro. Gov’t of Nashville & Davidson Cnty.,

Tenn., 555 U.S. 271, 274–75 (2009). Plaintiff proceeds under an “opposition”

theory, not a participation theory.5 Under an opposition theory, plaintiffs can

4 Florida courts interpret the retaliation provisions of the FCRA in accord with Title VII

because the FCRA is patterned after Title VII. Hinton v. Supervision Int’l, Inc., 942 So. 2d

986, 989 (Fla. 5th DCA 2006) (citing Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385

(11th Cir. 1998) (“Florida courts have held that decisions construing Title VII are applicable

when considering claims under the Florida Civil Rights Act.”)). The same goes for the ADA.

Chanda v. Engelhard/ICC, 234 F.3d 1219, 1225 (11th Cir. 2000); Standard v. A.B.E.L.

Services, Inc., 161 F.3d 1318, 1328 (11th Cir. 1998); see also Stewart v. Happy Herman’s

Cheshire Bridge, 117 F.3d 1278, 1287 (11th Cir. 1997).

5 A participation theory flows from Title VII’s Participation Clause which “protects

proceedings and activities which occur in conjunction with or after the filing of a formal

charge [of discrimination] with the EEOC; it does not include participating in an employer’s

internal, in-house investigation, conducted apart from a formal charge with the EEOC.”

Equal Employment Opportunity Commission v. Total Systems Services, Inc., 221 F.3d 1171,

1174 (11th Cir. 2000). Plaintiff admits in effect that he proceeds under an opposition theory

because he did not file anything with the EEOC until after his employment ended. (Doc. 1-1,

plead a prima facie case of protected activity by showing they reasonably believed

they were opposing an employer’s unlawful conduct. Howard v. Walgreen Co.,

605 F.3d 1239, 1244 (11th Cir. 2010). While the employer conduct at issue need

not actually be unlawful, the plaintiffs must both 1) subjectively believe in good

faith it is unlawful and 2) the belief must be objectively reasonable.6 Id. To be

objectively reasonable, the allegedly unlawful employment practice at issue is

measured against the existing substantive law at the time of the incident.7 See id.

(citing Clover v. Total Sys. Serv., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999)).

Plaintiff alleges he engaged in protected activity when he refused to follow

Defendant’s order to issue discipline to employees whom he knew or reasonably

believed had sought an exemption from Defendant’s vaccination policy (or who

were otherwise compliant with that same policy) such that administering that

discipline would have constituted disability or religious discrimination under the

civil rights laws, including Title VII, the ADA, and the FCRA; Plaintiff further

alleges he communicated this belief when he opposed his superior’s orders. (Doc.

¶¶ 57–62; Doc. 20, p. 10 (“the first element may be demonstrated as opposition to an

employer’s conduct”)).

6 Plaintiff plausibly alleges he subjectively believed Defendant’s actions to be unlawful. (Doc.

1-1, ¶ 29). Thus, the Court only scrutinizes the objective reasonability of this belief.

7 The intervening change in Florida law regarding the legality of Defendant’s vaccination

policy occurred after Defendant engaged in the alleged protected activity. (Doc. 20, p. 12).

Because the Court must only consider the state of the law at the time of the incident, this

change in law is irrelevant to the objective reasonableness of Plaintiff’s belief regarding the

existing substantive law.

1-1, ¶¶ 3, 22–26, 28–29, 31–44, 51–57, 68, 70–73, 79, 81–83, 85, 91, 93–95, 97,

104, 107–10; Doc. 20, pp. 10–16).8 For the following reasons, the Court disagrees.

As an initial matter, opposing alleged discrimination under the Acts is a

protected activity only when it is objectively reasonable to believe the elements of

an underlying discrimination claim are present. Howard, 605 F.3d at 1244. One

of the elements of discrimination under the Acts is an adverse employment

action. Maynard v. Bd. of Regents of Div. of Univ. of Fla. Dep’t of Educ. ex rel.

Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003) (noting Title VII

discrimination claim requires adverse employment action); Lucas v. W.W.

Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001) (detailing that an ADA

discrimination claim requires an adverse employment action). Not all employer

actions that negatively impact an employee such as a written reprimand qualify

as “adverse employment actions.” Davis v. Town of Lake Park, 245 F.3d 1232,

1238 (11th Cir. 2001). Rather, only those employment actions that result in “a

serious and material change in the terms, conditions, or privileges of

employment” suffice. Id. at 1239 (emphasis in original). Moreover, the

employee’s subjective view of the significance and adversity of the employer’s

8 Of note, Plaintiff argues that many of Defendant’s “protected activity” arguments pertain to

factual matters that should be fleshed out in discovery. (Doc. 20, pp. 11, 13, 15–16). The

Court ultimately disagrees. While Plaintiff need not meet the bar necessary to survive

summary judgment, it is a legal question whether the non-conclusory allegations pled in the

Complaint support a plausible inference that Plaintiff had an objectively reasonable belief

that he was opposing unlawful employer actions. See Henderson v. JP Morgan Chase Bank,

N.A., 436 F. App’x 935, 937 (11th Cir. 2011). As such, Defendant does not “illustrate[ its]

animus” against Plaintiff by citing to various allegations within the Complaint in order to

support its argument that Plaintiff’s belief regarding the unlawfulness of Defendant’s actions

as the employer was not objectively reasonable. (Doc. 20, p. 11).

action does not control; the employee must be materially disadvantaged as

viewed by a reasonable person under the circumstances such that the employer

action results in a serious change in the terms, conditions, and privileges of

employment. Id.; Howard, 605 F.3d at 1245; Davis, 245 F.3d at 1239.

Here, Plaintiff argues, in effect, that if he had issued the reprimands as

ordered, those employees would have experienced a material and serious change

in the terms, conditions, or privileges of their employment. (See Doc. 20, p. 15).

Plaintiff acknowledges Defendant’s vaccination policy provided that, beyond

being subject to written reprimand, “[n]o further disciplinary action shall be

taken for failing to comply with the COVID-19 vaccination policy deadlines. This

written reprimand shall not be considered or used in the bargaining unit

member’s performance evaluation.” (Doc. 1-1 ¶¶ 17–18; Doc. 1-1, p. 38). Plaintiff

notes this disciplinary policy does not comport with Defendant’s normal policy

which provides that written reprimands can give rise to “future discipline up to

and including termination.” (Doc. 1-1, ¶ 40; Doc. 20, p. 15). Plaintiff further

argues that this reprimand “was part of progressive discipline”: those who did not

timely submit their exemption request were subject to testing requirements,

which if uncompiled with could give rise to disciplinary measures beyond a

written reprimand. (Doc. 1-1, ¶¶ 17–18; Doc. 1-1, pp. 38–39; Doc. 20, p. 15). In

other words, Plaintiff contends that it was objectively reasonable for him to

believe that administering this discipline would result in an adverse employment

action to those subject to that discipline such that they would have been seriously

and materially disadvantaged. (Doc. 20, pp. 14–16). At the minimum, Plaintiff

argues this is a question on which he is entitled to seek discovery. (Id.).

Even when the allegations are viewed in the light most favorable to

Plaintiff, the Court disagrees. See Wallace v. Georgia Dep’t. of Transp., 212 F.

App’x. 799, 801 (11th Cir. 2006)9 (holding written reprimand that did not lead to

any tangible harm in the form of lost pay or benefits did not qualify as prima facie

case necessary to establish an adverse employment action). First, no reasonable

person in Plaintiff’s position would have believed that the vaccination policy’s

express disciplinary procedures would not control rather than the general

disciplinary procedures. (Doc. 1-1, pp. 38–39). Second, no reasonable person

would thus have believed any further potential discipline administered would be

related to the discipline Plaintiff was ordered to administer. (Id.). Third, no

reasonable person in Plaintiff’s position would have believed that Defendant

would not wipe out this discipline from the records of its employees who did, in

fact, comply with the policy after its human resource lists were accurately

updated as Defendant, through Assistant Chief Buffkin, had reiterated would

occur. (Id. ¶¶ 23, 35). Finally, no reasonable person in Plaintiff’s position would

have believed that continued improper disciplinary measures would necessarily

come to pass against those same employees due to anything beyond their own

improper actions. (Id. at pp. 38–39).

9 “Unpublished opinions are not controlling authority and are persuasive only insofar as their

legal analysis warrants.” Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 (11th

Cir. 2007).

In short, it was not objectively reasonable for Plaintiff to believe he was

opposing unlawful discrimination because a reasonable person would not view

the discipline he was ordered to administer as imposing a material and serious

employment disadvantage on the employees in question. Davis, 245 F.3d at 1239.

Accordingly, Plaintiff fails to plausibly allege an underlying adverse employment

action and thus that he engaged in protected activity under the Acts.10 The

retaliation claims in Counts II, III, and IV therefore fail to state a claim for which

relief can be granted.

C. Breach of Contract

Finally, Plaintiff alleges Defendant violated the Collective Bargaining

Agreement (the “CBA”) to which his employment with Defendant was subject.

(Id. ¶¶ 112–120). Specifically, Plaintiff alleges Defendant breached its duties to

Plaintiff under the CBA by: 1) failing to engage in the grievance process in good

10 Plaintiff’s ADA claim fails for an additional reason. To assert a claim of discrimination under

the ADA, an employee must first establish they are disabled. Hillburn v. Murata Elecs. N.

Am., Inc., 181 F.3d 1220, 1226 (11th Cir. 1999). The term “disability” is defined under the

ADA as either (1) a physical or mental impairment that substantially limits one or more

major life activities of such individual; (2) a record of such an impairment; or (3) being

regarded as having an impairment. 42 U.S.C. § 12102. “Major life activities” include, for

example, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,

walking, standing, lifting, speaking, breathing, learning, reading, concentrating, thinking,

communicating, and working. 42 U.S.C. § 12102(2)(A).

Here, an employee that voluntarily chooses not to get vaccinated does not have a physical or

mental impairment that substantially limits one or more major activities; neither is such an

employee regarded as having such an impairment or as having a record of the same. Id.

Plaintiff does not put forward any non-conclusory arguments to the contrary; the arguments

he does muster are entirely bereft of citation to persuasive or controlling authority. (See Doc.

20, p. 14 n.5). As such, the employees Plaintiff was allegedly protecting from discrimination

were not disabled as defined under the ADA. Consequently, it was not objectively reasonable

for Plaintiff to believe that administering discipline to those on the list constituted disability

discrimination.

faith; 2) withholding evidence during that process; 3) failing to conduct a fair

investigation as part of that process; 4) applying Orange County Fire and Rescue

rules “unequally;” 5) making changes to the CBA’s disciplinary process without

appropriately bargaining with the union; 6) inappropriately disciplining Plaintiff

in violation of the CBA; and 7) failing to timely select an arbitrator and “move

forward with the grievance process.” (Id.). Defendant counters correctly that the

Florida Public Employees Relations Commission (“PERC”) has exclusive

jurisdiction over labor disagreements such as this one involving the

implementation and interpretation of organized labor agreements. (Doc. 9, pp.

21–22).

The Florida Legislature in FLA. STAT. § 447.503 created and empowered

PERC to resolve “disputes regarding alleged unfair labor practices” as defined in

FLA. STAT. § 447.501. Browning v. Brody, 796 So. 2d 1191, 1192 (Fla. 5th DCA

2001); City of Orlando v. Cent. Fla. Police Benev. Ass’n, 595 So. 2d 1087, 1089

(Fla. 5th DCA 1992) (noting PERC “was intended to provide the exclusive method

for resolving labor disputes between public employees and employers”) (citing

Maxwell v. Sc. Bd. Of Broward Cnty., 330 So. 2d 177, 179 (Fla. 4th DCA 1976)).

Any practice that “arguably” constitutes an unfair labor practice as defined in §

447.501 falls within PERC’s exclusive jurisdiction. Browning, 796 So. 2d at 1192.

These unfair labor practices relevantly include:

(1) Public employers or their agents or representatives are

prohibited from:

(a) Interfering with, restraining, or coercing public

employees in the exercise of any rights guaranteed them

under this part.

. . .

(c) Refusing to bargain collectively or failing to bargain

collectively in good faith with a public employer.

(d) Discharging or discriminating against a public

employee because he or she has filed charges or given

testimony under this part.

(e) Dominating, interfering with, or assisting in the

formation, existence, or administration of, any employee

organization or contributing financial support to such an

organization.

(f) Refusing to discuss grievances in good faith pursuant

to the terms of the collective bargaining agreement with

either the certified bargaining agent for the public

employee or the employee involved.

FLA. STAT. § 447.501(1). Moreover, “whether a claim is within PERC’s exclusive

jurisdiction depends [on] the nature and substance of the claim, not on how the

plaintiff labels the claim.” City of Hollywood v. Perrin, 292 So. 3d 808, 812 (Fla.

4th DCA 2020) (declining to exercise jurisdiction over claim requesting court to

compel arbitration pursuant to alleged violation of a CBA provision due to

PERC’s exclusive jurisdiction over the same). Each one of Defendant’s alleged

violations of its duties under the CBA arguably falls under the ambit of FLA. STAT.

§ 447.501. As such, these grievances should have been brought before PERC, not

this Court. Consequently, the Court cannot exercise jurisdiction over the claim.

Plaintiff is muddled in his response.11 He states, “Statutorily provided labor

dispute resolution schemes do not preempt causes of action to enforce rights that

are independent of the CBA, including statutory rights like [Plaintiff’s] Counts I-

IV.” (Doc. 20, p. 17). Too true. Defendant, however, moved to dismiss only the

breach of contract claim in Count V due to the exclusive jurisdiction of PERC.

Plaintiff further appears to concede that Count V is not an independent cause of

action when he states that his allegations therein “fundamentally draw from the

terms of the CBA only with regard to his claims for retaliation under statutory

provisions providing for their own administrative remedy and civil right of

action, not with regard to the interpretation of the CBA terms themselves or the

provisions of Florida’s labor laws.” (Id. at p. 18). To the extent that Defendant’s

alleged violations of the CBA and its provisions form the backdrop to Plaintiff’s

FWA and retaliation claims, the Court agrees such allegations speak to those

claims.12 They do not, however, state an independent claim for breach of the CBA

as a contract. Plaintiff’s claim is, in reality, an allegation that Defendant engaged

in unfair labor practices by failing to comply with the CBA in good faith—in other

words, a claim that falls under PERC’s exclusive jurisdiction.

11 For example, Plaintiff chiefly relies on a wholly inapposite case involving the federal Railway

Labor Act’s preemption of underlying state claims, not a case related to PERC and its

exclusive jurisdiction. (Doc. 20, pp. 16–17). In fact, Plaintiff never specifically cites to any

authority dealing with PERC or its exclusive jurisdiction. (See id.).

12 Nevertheless, these claims fail for the reasons outlined above.

IV. CONCLUSION

Accordingly, itis ORDERED AND ADJUDGED that:

1. Defendant’s Motion to Dismiss (Doc. 9) is GRANTED;

2. Plaintiffs claims against Defendant Orange County, Florida in the

Complaint (Doc. 1-1) are dismissed as follows:

a. Counts I, II, II, and IV are DISMISSED WITH

PREJUDICE;

b. Count V is DISMISSED WITHOUT PREJUDICE yet

without leave to replead;?3 and

3. The Clerk of Court is DIRECTED to close the file.

DONE AND ORDERED in Orlando, Florida on July 25, 2023.

ce /

PAUL G.

UNITED STATE ISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties

13 A dismissal for lack of jurisdiction must be made without prejudice so that the party may

refile when and where appropriate, if possible. See Stalley ex rel. U.S. v. Orlando □□□□

Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). To proceed with this count

before this Court, however, would be futile as the Court cannot exercise jurisdiction over it.