Oakes Farms Food & Distribution Services, LLC v. The School District of Lee County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

OAKES FARMS FOOD &

DISTRIBUTION SERVICES, LLC

AND FRANCIS A. (“ALFIE”) OAKES,

III,

Plaintiffs,

v. Case No: 2:20-cv-488-JLB-KCD

THE School District OF LEE

COUNTY, FLORIDA, GREGORY

ADKINS, FREDRICK B. ROSS,

MARY FISCHER, DEBBIE JORDAN,

MELISSA W. GIOVANELLI, CHRIS

N. PATRICCA, GWYNETTA S.

GITTENS, BETSY VAUGH,

CATHLEEN O’DANIEL MORGAN,

and JOHN DOE #1,

Defendants.

ORDER

Francis A. Oakes (“Mr. Oakes”), the owner of Oakes Farms Food &

Distribution Services, LLC (“Oakes Farms”), brings this suit against the Lee County

School District (“School District”) and certain members of the School District staff

and School Board (collectively “Defendants”) after Oakes Farms was terminated

from its contract to provide fresh produce to the School District in June 2020.

June 2020 was a fraught moment in this nation as the COVID-19 pandemic

was in its early stages and relatively little was known about the virus, and protests

surrounding the death of George Floyd—a black man who died as a result of a police

interaction and use of force—were ongoing. At this time, and while his company

was under a prior contract to provide fresh produce for the School District’s lunch

program, Mr. Oakes posted on his personal Facebook page comments questioning

the legitimacy of the pandemic and criticizing George Floyd, as well as the

protesters who took to the streets in the wake of his death. The post was quickly

met with widespread public opprobrium, and within days, School District officials

investigated Oakes Farms and terminated its contract with Oakes Farms,

ostensibly for Oaks Farms’ failure to comply with certain COVID-19-related food

handling procedures.

Mr. Oakes and Oakes Farms thereafter brought this suit1 alleging that

Oakes Farms was terminated from the contract with the School District in

retaliation for Mr. Oakes’s protected speech, violating the free speech clauses of

both the United States and Florida Constitutions. Plaintiffs also allege that

Defendants breached their contract with Oakes Farms and violated various

Florida’s Sunshine Law’s provisions while planning to terminate the contract.

Before the Court are three Motions for Summary Judgment: one from

Plaintiffs (Doc. 141), one from a now former School Board member––Chris N.

Patricca–– (Doc. 140), and one from the remaining Defendants, (Doc. 143). After

careful review of the record, the Court GRANTS in part and DENIES in part Ms.

Patricca’s Motion for Summary Judgment and the remaining Defendants’ Motion

1 The operative complaint is Plaintiffs’ Third Amended Complaint, which contains

five counts. (Doc. 118).

for Summary Judgment, and the Court DENIES Plaintiffs’ Motion for Summary

Judgment.

The Court holds that the School District’s termination of Oaks Farms’ food

service contract after Mr. Oakes’s June 6, 2020 public speech via his Facebook post

on a matter of public concern was not a violation of the First Amendment to the

United States Constitution. Further, as to all individual defendants, they are

entitled to qualified immunity and are therefore dismissed from this case with

prejudice. Having fully resolved all federal questions pleaded in the operative

complaint, the Court dismisses the remaining counts––all Florida state law claims–

–without prejudice. Should they so choose, Plaintiffs may file such claims in Florida

state court.2

FACTS

Mr. Oakes started Oakes Farms3 in 2011 and by 2020, Oakes Farms had

grown into a food distribution, food processing, farming, and retail company. (Doc.

143-9 at 10, 20–21). At all times relevant, Mr. Oakes was the sole owner of Oakes

Farms. (Id. at 11).

In 2020, the School District staff included Defendants Superintendent

Gregory Adkins and Director of Procurement, Fredrick Ross, and the School District

2 The Statute of Limitations has not expired on any of Plaintiffs’ Florida law claims.

See Fla. Stat. § 95.11.

3 While a Plaintiff here is Oakes Farms Food & Distribution Services, LLC, which is

a subsidiary of the parent company, Oakes Farms, for ease of reference, Oakes

Farms is used throughout this Order to refer solely to the food distribution portion

of the company, which contracted with the School District.

was overseen by a seven-member school board consisting of Defendants Melissa

Giovanelli, Debbie Jordan, Chris Patricca, Gwynetta Gittens, Betsey Vaughn,

Cathleen Morgan, and Mary Fischer. (Doc 143-1; Doc. 143-2; Doc. 143-11; Doc. 143-

10 at 232).

Superintendent Adkins, who began his tenure at the School District in 2015,

made it a priority “to ensure that fresh fruits and vegetables were served to our

students and that we prioritize local vendors and local farmers, where possible.”

(Doc. 58-9 at ¶¶ 1, 8). Oakes Farms began providing fresh food to the School

District beginning in 2015. (Doc. 138-10; Doc. 143-1 at 116–17; Doc. 143-6 at 24–25,

32). On May 2, 2018, the School District requested bids for the provision of fresh

produce to schools within the County.4 (Doc. 49-2 at 1). Oakes Farms “went after

the Lee County contract,” and on June 26, 2018, the School Board approved Oakes

Farms’ bid. (Doc. 143-9 at 19; Doc. 118-1; Doc. 49-1 at 5).

The School Board’s meeting minutes from June 26, 2018, at which the School

Board approved Oakes Farms’ bid, state:

This bid will be effective for the period of July 1, 2018 to June 30, 2021,

at the estimated expenditure of $4,900,000.00 for the first year for the

base contract period of July 1, 2018 through June 30, 2019, with

renewal options for three additional one year periods, upon the written

agreement of the vendor and the District. Approval authorizes the

Superintendent to execute all related documents.

4 The request for bids states, “A recommendation for award will be presented to the

Superintendent, and subsequently to the School Board for consideration. The

School Board exercises final award of a contract.” (Doc. 49-2 at 4.) It further states,

“The Board reserves the right to terminate any contract resulting from this

invitation at any time and for any reason, upon giving seven (7) days prior written

notice to the other party.” (Doc. 49-2 at 7.)

(Doc. 49-1 at 5). No issues with food safety occurred with Oakes Farms’ food

distribution service throughout the entirety of the period during which Oakes

Farms contracted with the School District. (Doc. 143-9 at 137; Doc. 138-11.) In fact,

Oakes Farms continuously received rave reviews from School District personnel.

(Id.)

On March 1, 2020, Governor Ron DeSantis declared the COVID-19 pandemic

a public health emergency in the State of Florida. See State of Florida, Office of the

Governor, Executive Order, No. 20-51 (March 1, 2020) https://www.flgov.com/wp-

content/uploads/orders/2020/EO_20-51.pdf. The School District responded by

putting “detailed protocols in place over in March 2020 to prepare for ensuring the

safety of our students’ return to school.” (Doc. 143-4 at 330). This included

“distributing food to feed children through a ‘drive up’ method or delivery by bus”

and issuing publications called “COVID-19 Updates.” (Id.)

On June 1, 2020, the School District issued a COVID-19 update, reporting

that since the start of the pandemic, there had been nearly 2,000 positive cases of

COVID-19 in Lee County and more than 100 deaths attributed to the COVID-19

virus. (Doc. 143-1 at 330). The update included several “health notifications”

including recommendations that Lee County residents wear masks, social distance,

wash hands and use hand sanitizer, disinfect work surfaces and equipment,

minimize touching shared equipment, and stay home if they had any cold-like

symptoms. (Id.) Although Lee County’s public schools were operating remotely, the

School District continued to provide free meals to thousands of its students. (Id.)

The next day, on June 2, 2020, the School Board voted to renew its contract

with Oakes Farms for a term of July 1, 2020 through June 30, 2021, representing

the final year of its three-year option agreement with Oakes Farms. (Doc. 118-3).

That year-long contract estimated a $6,000,000 expenditure for the purchase of

various fresh fruits and vegetables for all District schools. (Id.) As per the School

Board minutes recorded at the initial approval of the Oakes Farms bid,

Superintendent Adkins was responsible for executing all documents related to the

renewal of Oakes Farms’ contract for the July 1, 2020 to June 30, 2021 contract

term. (Doc. 49-1 at 5.)

While the COVID-19 pandemic intensified in the country, a period of racial

reckoning was also taking place stemming from the circumstances surrounding the

death of George Floyd. (See Doc. 143-3 at 18–19, 21–22, 24, 142–43; Doc. 143-4 at

74–75). Three days after renewing Oakes Farms’ contract for the July 1, 2020 to

June 30, 2021 period, the School District, on June 5, 2020, posted a letter on its

official Twitter account––signed by Superintendent Adkins and the seven members

of the School District’s school board––commenting on the death of George Floyd.

(Doc. 143-1 at 199–200).

The School District’s Twitter post stated in part, “The actions that led to the

death of George Floyd and the protests that followed have left us overwhelmed with

grief and sadness . . . [;] we affirm our resolute commitment to our values of

diversity and inclusiveness and condemn racism in all its forms.” (Doc. 143-1 at

200).

The next day, on Saturday, June 6, 2020, Mr. Oakes posted his views of the

COVID-19 pandemic and the death of George Floyd on his personal Facebook page.

This post, which is the speech at issue in this First Amendment retaliation case and

refers to both the COVID-19 pandemic and the Black Lives Matters protests as

hoaxes, is reproduced in its entirety as follows:

The COVID19 hoax did not work to bring down our great President and

now this . . . the black lives matter race hoax . . . REALLY . . . what else

do the disgraceful powers that control this world with their puppets in

the media have planned for us in next 5 months? Is it possible that so

many of our fellow American citizens could really be this ignorant?

When I was a young child I vividly remember during church services a

sermon that described how there would come a time where many people

would not recognize good from evil or truth from blatant lies . . . I

remember thinking to myself how could this ever happen? It seems

impossible from the paradigm that I existed in.

Well here we are . . . in the past 3 months I have watched not only OUR

country’s economy but the entire world economy brought to ruins for no

other reason than multitudes of men and women have allowed

themselves to be controlled by deceit and fear. The corrupt world powers

and their brainwashing arms of the media have proven the ability to

program the masses.

Now only weeks after the COVID programming many of the same

lemmings have allowed the media to convince them that the amazing

men and women that put their lives on the line every day to protect us

are bad but some disgraceful drug addict felon is a hero being paraded

around the country. Can this really be happening??

There is absolutely no dispute that George Floyd was a disgraceful

career criminal, thief, drug addict, drug dealer and ex-con who served 5

yrs in prison for armed robbery on a pregnant woman, and spent his last

days passing around fake 20’s to store owners in Minnesota. Our new

media hero “Gentle George” had two types of heart disease due to the

tremendous amount of illegal drugs he was taking daily. In his autopsy

he tested positive for marijuana, Fentanyl, Amphetamine, morphine,

methamphetamine, and several others . . . When officer Chauvin

responded to a 911 call that someone was passing counterfeit 20s the

store owner pointed out Floyd, who was sitting in a car across the street.

When officer Chauvin confronted Floyd, and asked him to get out of the

car, Floyd refused and was not cooperating with the officer, a 20 year

public servant, who was unlucky enough to be the one having to deal

with this drug addicted criminal, a true disgrace to our human race that

represents all that is wrong with our society. Floyd continued to resist

the officers orders during this incident as one would expect from a

mindless drug addict. Now the media, Hollywood and many of our

disgraceful politicians want you to be outraged that this career criminal

drug abusing thug suffered the consequences of a lifetime of bad choices.

Unfortunately the liberal mindset that has been instilled in so many of

our young generation has taught them to take no personal responsibility

for their actions. They have been taught that if they do not success than

[sic] they must be a victim. These lost souls without any direction or

sense of purpose are so easily manipulated to blame others for their lack

of self worth. It is these lost souls with little to no self worth who are

the “protesters” that we see looting our stores, burning down our cities,

defaming our national monuments and disgracing the great men and

women that built this country . . . but I suppose now they finally found

a purpose.

As we will likely be facing tough times ahead, I can only pray that these

lost souls find a true purpose beyond the blame and deceit that is testing

if not ruining the strong fabric of once our great nation.

(Doc. 138-15 at 1–2).

On June 7, 2020, the day after Mr. Oakes published this Facebook post, an

internet petition was started by an account called “People of SWFL” on the website,

Change.org, stating:

Oakes Farms is a distributor of produce to Collier County and Lee

County schools. We are asking that both counties cut ties with Oakes

Farms as founder and CEO Alfie Oakes has shared racist views about

the murder of George Floyd on his Facebook page.

(Doc. 138-16). The petition subsequently garnered thousands of signatures. (See id.)

Later that day, Defendants received several messages from constituents and

School District staff members asking the School District to terminate its contract

with Oakes Farms. For example, a School District teacher emailed School District

school board members, including Defendant Ms. Patricca, “respectfully request[ing]

that the school board and superintendent reconsider our district’s contract with

Oakes Farms” because Mr. Oakes’s “racist, anti-black opinions directly oppose our

district’s mission of providing inclusive education for students of all abilities, needs,

and backgrounds.” (Doc. 138-17). Ms. Patricca forwarded this email to Kathy

Dupuy-Bruno, an attorney for the School District school board, adding the message,

“Hi! Can we legally get out of this contract?” (Id.) Ms. Dupuy-Bruno responded the

next day, “Yes, we have the right to terminate with 7 days’ notice.” (Doc. 138-18).

School staff including Superintendent Adkins, Ami Desamours, the Chief

Financial Officer of the School District (who is not a Defendant here), and Mr. Ross

were also concerned that Oakes Farms was not taking the COVID-19 pandemic

seriously because of Mr. Oakes’s statement that COVID-19 was a “hoax.” (See Doc.

58-9 at ¶¶ 19, 33–38; Doc. 143-1 at 63–64; Doc. 143-11 at 28, 114).

Attempting to address such concerns, Ms. Desamours and Mr. Ross began an

investigation into the COVID-19 food safety protocols implemented at Oakes Farms.

(See Doc. 49-8 at ¶¶ 14, 18–20; Doc. 138-2 at 20). Mr. Ross called the President of

Oakes Farms’ distribution business, Anthony High, and requested information

about the company’s COVID-19 protocols. (Doc. 143-6 at 41). Mr. High responded

with a detailed account of COVID-19 protocols printed on sheets with the letterhead

of another company—Marjon Foods––which Mr. High indicated was a subsidiary of

Oakes Farms. (Id. at 60, 77–78, 196; Doc. 143-2 at 21–22; Doc. 143-10 at 141–43).

Mr. High clarified subsequently that he used the Marjon Foods documents because

Marjon Foods had recently been audited by the USDA, and therefore all of the

information for the company had already been prepared and was readily available.

(Doc. 54 at ¶¶ 12–13).

Ms. Desamours and Mr. Ross discussed the documentation they had received

from Mr. High and determined that it “was inadequate.” (Doc. 143-2 at 22). Mr.

Ross explained, “[I]n my experience as a procurement professional, when a vendor

sends you their protocol, they send it on their documentation, on their letterhead. It

has their information in it and within it, and that wasn’t the case here.” (Doc. 143-

11 at 49). And Superintendent Adkins testified that he viewed “this document on

the letterhead of a completely different company, coupled without any

representation or assurance that Oakes Farms was following any safety

requirements, to be a completely insufficient assurance that Oakes Farms was

taking necessary precautions to protect the health, safety, and welfare of our

approximately 95,000 students.” (Doc. 143-1 at 267).

Mr. Ross called Mr. High and tried to find out more information about Oakes

Farms’ COVID-19 safety protocols, but he found Mr. High’s responses

unsatisfactory. (Doc. 143-11 at 47–48, 53; Doc. 143-2 at 22.) As Mr. Ross testified,

he “ha[d] no way of qualifying if the” documentation provided by Mr. High

containing the Marjon protocols was “sufficient.” (Doc. 143-11 at 48–49). Mr. Ross

then reported to Ms. Desamours that Oakes Farms did not have sufficient COVID-

19 food safety protocols. (Doc. 143-11 at 53). As Ms. Desamours testified, “the

bottom line was, when we asked for representations of what their COVID safety

protocols were at facilities that we were receiving food from, including Oakes Farms

facilities in—you know, their main location, we did not receive the information that

we requested.” (Doc. 138-2 at 33). Ms. Desamours added, “[w]e believed that the

. . . time and effort that we put in was sufficient to be able to make a decision in the

best interest of . . . our students’ and staff’s safety.” (Id. at 53.)

On June 10, 2020, Ms. Desamours discussed the findings of the investigation

with Superintendent Adkins and the School District’s Chief of Staff, Lauren

Stillwell, and recommended that the contract with Oakes Farms be terminated.

(Doc. 143-2 at 24, 42–43). At this meeting, Superintendent Adkins also determined

that he wanted to terminate the contract with Oakes Farms. (Doc. 138-1 at 58, 78;

Doc. 143-13 at 40).

Later in the evening of June 10, Ms. Stillwell arranged phone calls between

her, Superintendent Adkins, Ms. Desamours, Ms. Dupuy-Bruno, and each of the

School Board members, individually, regarding the Oakes Farms contract. (Doc.

143-13 at 143–45). During these calls, on June 11, 2020, Superintendent Adkins

“told them . . . we were terminating the Oakes Farms contract because of concerns

that we had about the safety of the . . . food.” (Doc. 143-1 at 92, 97). A

memorandum prepared by Ms. Stillwell summarizing these various meetings

reported that all members of the school board “recommend[ed] termination” of the

Oakes Farms contract. (Doc. 143-13 at 147–48).

That same day, Mr. Ross called Mr. High to alert him that the contract with

Oakes Farms was being terminated for convenience. (Doc. 54 at ¶ 16). Moments

after this call, the School District tweeted from its official Twitter account, “The

School District of Lee County has severed ties with Oakes Farms. The District will

soon be working with other suppliers to ensure that fresh fruits and vegetables

continue to be provided to our students.” (Doc. 138-30).

Later that day, Mr. Ross wrote a letter to Mr. High announcing that the final

delivery date of the contracted fruits and vegetables from Oakes Farm to the School

District would be on June 25, 2020, as follows, “Per our conversation this morning,

and in compliance with the General Conditions of the ITB, Section 29 –

Cancellation / Termination, it has been determined that it is in the best interest of

the District to terminate the contract for convenience . . . effective June 11, 2020.

The last delivery date of ordered products will be June 25, 2020.” (Doc. 143-6 at

245).

Between June 11 and June 25, 2020, the School District’s school board and

staff held several meetings in which they addressed community concerns about the

termination of the Oakes Farms contract and to determine who the next supplier of

fresh produce would be for the School District. (See Doc. 58-5 at 2; Doc. 58-6; Doc.

138-1 at 81–82; Sch. Dist. of Lee Cnty., School Board Workshop: June 12, 2020,

YOUTUBE, at 3:33:50 (June 12, 2020),

https://www.youtube.com/watch?v=BOgGcQzfmfYube (last accessed Oct. 13, 2023);

Sch. Dist. of Lee Cnty., School Board Workshop: June 23, 2020, YouTube, at 0:49:40

(June 23, 2020) https://www.youtube.com/watch?v=DNZfgZiu38E - YouTube (last

accessed October 13, 2023).).

At the June 23, 2020 meeting, Superintendent Adkins stated, “the contract

termination . . . was done relating to the health, safety, and welfare for our

students.” https://www.youtube.com/watch?v=DNZfgZiu38E - YouTube at 0:50-00.

Later during this meeting, the School Board voted on a motion introduced by Ms.

Morgan and Ms. Giovanelli, which stated:

“[o]n June 2, 2020, the Board approved expenditures for . . . fresh

produce . . . . On June 11, 2020, the District made the decision to

terminate the contract with the awarded vendor . . .. US Foods, Inc., is

able to provide uninterrupted service of fresh produce to all District

locations, as they are already established with deliveries of other food

and non-food products. It is recommended the Board approve the

increase to the previously Board approved estimated expenditure . . . for

a total estimated expenditure of $23,500,000.00, with US Foods, Inc., for

the period of July 1, 2020 through June 30, 2021, with an option to

cancel if deemed to be in the best interest of the District.”

(Doc. 58-7 at 2). The School Board approved this motion unanimously, ratifying the

contract with US Foods for the fresh produce bid that had originally been awarded

to Oakes Farms for that same July 1, 2020 to June 30, 2021 time period. (Id.)

Plaintiffs subsequently filed suit in this Court for violations of the free speech

clauses of the First Amendment to the United States Constitution (Count I) and the

Florida Constitution (Count II) against all Defendants, and breach and repudiation

of contract against the School District (Count III). Plaintiffs also allege violations of

Florida’s Sunshine Laws: Article I, Section 24 of the Florida Constitution and

Florida Statutes § 286.011(1) against the School District stemming from:

Defendants’ deliberations regarding the termination of the Oakes Farms Contract

(Counts IV); the School District’s official statement regarding the death of George

Floyd (Count V); and, the School District’s decision to hire U.S. Foods to replace

Oakes Farms as the distributor of fresh produce for the district (Count VI). (See

Doc. 118).5

Before the Court are cross-motions for summary judgment. Plaintiffs move

for summary judgment against the School District on their First Amendment claim

(Count I), breach of contract claim (Count III), and sunshine law claims (Count III,

Count IV, and Count V). They ask the Court to leave any liability of the individual

defendants for trial. (Doc. 141 at 5). The School District moves for summary

judgment on all counts. Superintendent Adkins, Mr. Ross, and the School Board

members move for summary judgment on all counts on qualified and legislative

immunity grounds.

SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that summary

judgment is appropriate where “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). An issue is genuine if a reasonable jury could return a verdict

for the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th

Cir. 1996). A fact is material if it may affect the outcome of the case under the

applicable substantive law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997).

5 Plaintiffs mistakenly allege two Count Vs, both purported violations of Florida’s

Government-in-the-Sunshine Laws.

The party seeking summary judgment bears the initial burden of

demonstrating to the Court, by reference to the record, that there are no genuine

issues of material fact to be determined at trial and that it is entitled to judgment

as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.

1991). On a motion for summary judgment, the Court views the evidence and all

reasonable inferences in the light most favorable to the non-moving party. Davis v.

Williams, 451 F.3d 759, 763 (11th Cir. 2006). If the Court determines that a

reasonable fact finder could draw more than one inference from the facts, creating a

genuine issue of material fact, summary judgment should not be granted. Samples

ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988).

DISCUSSION

I. The School District is entitled to summary judgment as to

Plaintiffs’ First Amendment retaliation claim.

Plaintiffs move for summary judgment on their First Amendment retaliation

claim against Defendant School District, arguing that there is no genuine dispute of

material fact that the School District unconstitutionally terminated its contract

with Oakes Farms as a result of Mr. Oakes’s Facebook post. (See Doc. 141 at 23).

Defendant School District counters that Plaintiffs’ First Amendment retaliation

claim fails because Plaintiffs have not meet their burden under Pickering v. Bd. of

Educ. of Twp. High Sch. Dist. 205 Will Cnty., Ill., 391 U.S. 563 (1968). (Doc. 155 at

13). Plaintiffs assert that Pickering does not apply to them. (Doc. 141 at 28–29).

For the reasons below, the Court finds that Pickering does apply to Plaintiffs, and

Plaintiffs have not met their burden under Pickering because the Pickering

balancing test weighs in favor of Defendant School District. Accordingly, summary

judgment is due to be granted in favor of the School District as to Plaintiffs’ First

Amendment retaliation claim.

The First Amendment provides that “Congress shall make no law . . .

abridging the freedom of speech.” U.S. Const. Amend. I. “The Amendment protects

not only the affirmative right to speak, but also the right to be free from retaliation

by a public official for the exercise of that right.” DeMartini v. Town of Gulf Stream,

942 F.3d 1277, 1288 (11th Cir. 2019) (citation omitted).

While it is true that “as a general matter the First Amendment prohibits

government officials from subjecting an individual to retaliatory actions for

engaging in protected speech,” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019)

(quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)), “when individuals enter into

government employment or contracts, they accept certain restrictions on their

freedom of speech as part of the deal,” Fulton v. City of Phila., Pa., 141 S. Ct. 1868,

1878 (2021). This is because “a public employee’s right to speak as a private citizen

is not absolute.” Green v. Finkelstein, 73 F.4th 1258, 1263 (11th Cir. 2023).

Instead, as the Supreme Court determined more than fifty years ago, “[t]he state

has interests as an employer in regulating the speech of its employees that differ

significantly from those it possesses in connection with regulation of the speech of

the citizenry in general.” Pickering 391 U.S. at 568 (1968). Specifically, a public

employee’s interests are limited by the state’s need to preserve efficient

governmental functions such that the First Amendment protection of a public

employee’s speech depends on a careful balance “between the interests of the

[employee], as a citizen in commenting upon matters of public concern and the

interest of the State, as an employer in promoting the efficiency of the public

services it performs through its employees.” Pickering, 391 U.S. at 568. This

balancing test is known as the Pickering test. See Williamson v. Ala. Dept. of

Mental Health and Mental Retardation et al., No. 21-13274, 2023 WL 5287873, at

*3 (11th Cir. Aug. 17, 2023).

Here, Plaintiffs argue that the Pickering test does not apply to the facts of

this case because Mr. Oakes was not an employee of the School District, and Oakes

Farms did not engage in any speech. (Doc. 141 at 29–30.) This argument is

misguided because it is well-established that the Pickering test applies to

individuals, like Mr. Oakes, who own and operate businesses that contract with the

government. See Bd. of Cnty. Cm’rs, Wabaunsee Cnty., Kan v. Umbehr, 518 U.S.

668, 684–85 (1996). In fact, the parallels between Umbehr and Plaintiffs’ version of

the events in this case are notable. In Umbehr, an individual who owned and

operated a trash hauling business that contracted with a Kansas County spoke out

at county commission meetings and wrote letters and columns in local newspapers

about a variety of topics of public concern. Id. at 671. Upset with Mr. Umbehr’s

speech, the County terminated its contract with Mr. Umbehr’s trash hauling

business. Id. Mr. Umbehr then brought suit for First Amendment violations

alleging that his company had been terminated from its government contract in

retaliation for his speech. Id. at 672. Affirming the Tenth Circuit’s decision that

“an independent contractor is protected under the First Amendment from

retaliatory governmental action, just as an employee would be,” the Supreme Court

held that the extent of that protection is to be determined in accordance with the

balancing test used to determine government employees’ First Amendment rights in

Pickering. Id. at 678–79, 686. Accordingly, contrary to Plaintiffs’ contentions, the

Pickering test is applicable to the facts of this case.

Applying the Pickering test, the Eleventh Circuit has held that “to prevail on

a First Amendment claim of unlawful retaliation, an employee must make three

showings.” Green, 73 F.4th at 1263. The employee must show that (1) his speech is

on a matter of public concern; (2) his free speech interest outweighs the employer’s

interest in prohibiting the speech to promote the efficiency of its public services; and

(3) the speech played a substantial role in the employer's decision to discharge the

employee. Battle v. Bd. of Regents for Ga., 468 F.3d 755, 759–60 (11th Cir. 2006)

(citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989)). “The first

two inquiries are questions of law for the Court.” See Green, 73 F.4th at 1263. In

answering these questions, the Court is to “consider the manner, time, and place of

the speech, plus the context in which it arose.” Williamson, No. 21-13274, 2023 WL

5287873, at *3. Further, “when an employee violates a specific rule or regulation to

which he is subject, the government employer’s position is strengthened.” Id.

1. Mr. Oakes spoke as a citizen on a matter of public concern.

To reiterate the standard articulated above, for Mr. Oakes to establish a

prima facie case of First Amendment retaliation, he must first show that he spoke

on a matter of public concern. Battle, 468 F.3d at 759–60. For speech to be deemed

a matter of public concern, it must “be fairly considered as relating to any matter of

political, social, or other concern to the community, or when it is a subject of

legitimate news interest.” Snyder v. Phelps, 562 U.S. 443, 453 (2011). Importantly,

whether speech is shocking or inappropriate is irrelevant to whether it concerns a

public matter. See, e.g., Morris v. Crow, 117 F.3d 449, 456–58 (11th Cir. 1997)

(holding that even speech that contains an “embarrassing, vulgar, vituperative, ad

hominem attack” can touch on a matter of public concern).

Here, the Court finds that Mr. Oakes’s comments regarding the COVID-19

pandemic, media bias, the death of George Floyd, and Black Lives Matter protests

were made as a citizen and pertained to matters of public concern. See Snyder, 562

U.S. at 453. These were issues that were highly newsworthy, and at the time were

the focus of significant public concern, not just in the Southwest Florida community

but around the country. While Mr. Oakes’s speech was abrasive and offensive to

many, several other courts in this circuit have held that speech of a more

vituperative nature than Mr. Oakes’s was on a matter of public concern. See, e.g.,

Darlow v. City of Coral Springs, No. 21-CIV-60083-RAR, 2021 WL 3514826, at *3

(S.D. Fla. Aug. 10, 2021), aff'd sub nom. Darlow v. Babineck, No. 21-13020, 2022

WL 15345444 (11th Cir. Oct. 27, 2022) (holding that plaintiff spoke as a citizen and

that his speech involved a matter of public concern where he “posted a meme in a

private Facebook group that depicted George Floyd with pink skin”); see also Duke

v. Hamil, 997 F. Supp. 2d 1291, 1300 (N.D. Ga. 2014) (finding that plaintiff’s

Facebook post containing an image of the Confederate flag and the text, “It’s time

for a second revolution” constituted speech on a matter of public concern because “it

[was] plausible the Plaintiff was expressing his dissatisfaction with Washington

politics.”). Even more, the fact that Mr. Oakes made these comments on his

personal–– but publicly viewable––Facebook page indicates that his comments were

public indicates that they were matters of public concern. See, e.g., Carney v. City of

Dothan, 158 F. Supp. 3d 1263, 1286 (M.D. Ala. 2016) (“The fact that [plaintiff]

lodged these complaints on a public Facebook page, an undeniably open forum,

bolsters the finding that they were public in nature.”). Accordingly, there is no

genuine dispute of material fact that the speech was made as a citizen on a matter

of public concern. As such, Mr. Oakes has made the first showing required to

establish a First Amendment retaliation claim. See Battle, 468 F.3d at 759-60

2. Balancing Mr. Oakes’s interests against the School District’s

interests.

Having established that Mr. Oakes’s speech pertained to a matter of public

concern, Mr. Oakes must next show that his First Amendment interests outweigh

“the interest of the state . . . in promoting the efficiency of the public services it

performs.” Pickering, 391 U.S. at 568. As previously noted, the Pickering balancing

test is a question of law for the Court to decide. Green, 73 F.4th at 1263. “The key

question is whether the relevant government entity had an adequate justification

for treating the employee differently from any other member of the general public.”

Id. at 1267 (internal citation omitted).

The Eleventh Circuit has instructed that the following factors are helpful

towards answering this question: “(1) whether the speech at issue impedes the

government’s ability to perform its duties efficiently, (2) the manner, time and place

of the speech, and (3) the context within which the speech was made.” Morales v.

Steirheim, 848 F.2d 1145, 1149 (11th Cir. 1988); see also Rankin v. McPherson, 483

U.S. 378, 388, (1987) (“In performing the balancing, the statement will not be

considered in a vacuum; the manner, time, and place of the employee’s expression

are relevant, as is the context in which the dispute arose”). The Supreme Court has

found “whether the statement . . . has a detrimental impact on close working

relationships for which personal loyalty and confidence are necessary, or impedes

the performance of the speaker’s duties or interferes with the regular operation of

the enterprise” are all pertinent considerations with respect to the balancing test.

Rankin, 483 U.S. at 388. “State interests weigh heavily where an employee’s speech

thwarts the mission of the agency or impedes the performance of the speaker’s

duties.” Morales, 848 F.2d at 1149.

Importantly, “a genuine potential for speech to harm a [school district]’s

reputation also justifies an employer taking action before that harm is realized.”

See Duke, 997 F. Supp. 2d at 1302 (emphasis added). As the Supreme Court held in

Connick, “we do not see the necessity for an employer to allow events to unfold to

the extent that the disruption of the office and the destruction of working

relationships is manifest before taking action.” 461 U.S. at 152; Green, 73 F.4th at

1268 (explaining that both the Supreme Court and Eleventh Circuit “have given

substantial weight to government employers’ reasonable predictions of disruption,

even when the speech involved is on a matter of public concern”) (emphasis in

original) (quoting Waters v. Churchill, 511 U.S. 661, 673 (1994)). The Supreme

Court’s First Amendment retaliation precedent is clear in recognizing that

government bodies need not always wait to see what unfolds in the wake of

controversial speech before they act upon such speech. See id.; see also Waters v.

Churchill, 511 U.S. 661, 674 (1994) (“Doubtless some speech is sometimes

nondisruptive; doubtless it is sometimes of value to the speakers and the listeners.

But we have declined to question government employers’ decisions on such

matters”); Mitchell v. Hillsborough Cnty., 468 F.3d 1276, 1288 n.31 (11th Cir. 2006)

(“Here, even assuming [plaintiff]’s speech had public value as satirical speech, we

decline to question the County’s decision to terminate [plaintiff]’s part time

employment with HTV based on its determination that the speech was highly

offensive and potentially disruptive.”).

Here, the School District argues that Mr. Oakes’s speech affected its ability to

efficiently administer its services in three ways. First, from a health perspective,

the School District argues that Mr. Oakes’s speech––namely that the COVID-19

pandemic was a “hoax”––threatened to diminish “[t]he public’s trust in food safety

for children during a pandemic,” augmented “the perceived threat of COVID-19

spread,” undermined the School District’s “desire to ensure the safety of the food

supply,” and disrupted school operations by causing the School District to worry

about “COVID spreading to staff, kids, parents and care-givers.” (Doc. 155 at 25).

Second, from a pedagogical perspective, the School District has introduced evidence

that Mr. Oakes’s speech contradicted the messages of inclusion and anti-racism that

the School District was promoting to its students. And third, from a school safety

perspective, the School District has introduced evidence that Mr. Oakes’s speech

caused protests outside of schools in the district as well as threats to School Board

members, which caused School Board members to fear for their safety. Each will be

addressed in turn.

A. Health concerns

The School District is responsible for providing “proper attention to health,

safety, and other matters relating to the welfare of” the approximately 95,000

students in Lee County. Fla Stat. § 1001.42(8)(a); (Doc. 143-1 at 26). “[I]n a public

school environment[,] . . . the State is responsible for maintaining discipline, health,

and safety.” Bd. of Educ. v. Earls, 536 U.S. 822, 830 (2002). As the Eleventh

Circuit has explained, while schools do not “have carte blanche . . . when school

authorities have prudently assessed and addressed an issue that affect student

welfare, we should pay attention.” Adams by & through Kasper v. Sch. Bd. of St.

Johns Cnty., 57 F.4th 791, 802 (11th Cir. 2022).

Here, the School District has introduced ample evidence that it was

concerned with the potential health risks posed by Mr. Oakes’s apparent disregard

for the severity of COVID-19.

First, “very little was known at the time COVID-19 first emerged as a

significant health risk,” but as it became increasingly clear that COVID-19 “was

extremely virulent” and “cause[d] acute respiratory illnesses,” Superintendent

Adkins “knew . . . [he] needed to put in place safety precautions for the benefit of

the District students and staff.” (Doc. 143-1 at 265). Superintendent Adkins

testified that, “[b]ecause of the significant danger COVID-19 poses to all people, the

District put detailed protocols in place beginning March 2020 to prepare for

ensuring the safety of our students’ return to school.” (Doc. 143-1 at 266).

Superintendent Adkins added: “[t]he decisions I make impact the lives of our

students, and the lives of their families. I have to err on the side of safety,

particularly during a health crisis pandemic.” (Id.)

Beginning in March 2020, the School District “w[as] distributing food to feed

children through a ‘drive up’ method or delivery by bus.” (Doc. 143-1 at 266). In

June 2020, the Lee County School District “community was experiencing increased

rates of COVID-19 transmission . . . which added to the District’s concern.” (Doc.

143-1 at 268). The School District also issued “COVID-19 Updates” which “detailed

the number of students served and meals served . . . [and] provided detailed

requirements for staff on how to protect themselves and others from the spread of

COVID-19. (Doc. 143-1 at 266). In one of these “COVID-19 Updates” from June 1,

2020, for example, the School District reported that there were 56,830 cases of

COVID-19 in Florida (including 1,943 cases of COVID-19 in Lee County), and there

had been 2,460 deaths from COVID-19 in Florida (including 105 deaths in Lee

County). (Id. at 330). The COVID-19 Update for June 1, 2020 also described how

the School District would “provide free meals to children 18 years old and younger”

on Monday through Friday at “more than 40 meal distribution sites” throughout the

summer. (Id. at 331). The Update further provided that the lunch program “sites

will use the same cleaning and safety protocols in place since March to prevent the

spread of COVID-19.” (Id.) As of June 1, 2020, the School District had served

1,185,612 meals to students since March 2020, and the School District was serving

more than 12,000 students per week. (Id. at 330).

Thus, as a threshold matter, the record evidence reflects that in June 2020,

(1) School District officials believed that COVID-19 was a dangerous, highly

transmissible disease; (2) hundreds of people had died from COVID-19 in Lee

County; (3) the School District was providing thousands of free meals to children

each week; (4) the School District followed cleaning and safety protocols when

providing meals to children; and (5) the School District had committed to providing

free meals to children throughout the summer.

In this context, just five days after the School District’s June 1, 2020 COVID-

19 Update, Mr. Oakes posted on his personal Facebook calling COVID-19 a “hoax,”

expressing that the COVID-19 pandemic was “planned” by “the disgraceful powers

that control this world with their puppets in the media.” (Doc. 138-15 at 1). Mr.

Oakes further stated that he believed people could not recognize “blatant lies”

regarding COVID-19, and added, “in the past 3 months I have watched not only

OUR country’s economy but the entire world economy brought to ruins for no other

reason than multitudes of men and women have allowed themselves to be controlled

by deceit and fear.” (Id.)

Mr. Oakes’s comments evinced, at the very least, skepticism, about the

severity of the COVID-19 pandemic, leading many School District officials to believe

that Mr. Oakes was not up to the task of safely providing fresh fruits and vegetables

for the School District’s students through his company, Oakes Farms. As

Superintendent Adkins stated, “Oakes Farms’ perceived lack of concern regarding

the easy transmission of COVID-19 and Mr. Oakes’ belief that COVID-19 is not

real, in light of the fact Oakes Farms delivers food products to school children, does

not comport with the District’s concerns for the health, safety, and welfare of the

children of our community and the community at large.” (Doc. 143-1 at 267–68).

Superintendent Adkins added, “Oakes Farms produces . . . fresh food and

vegetables for [ ] students. What I’m concerned about with that contract has to do

with the safety of . . . the food that comes in,” and “[i]f [I] think a company is not

taking [the COVID-19 pandemic] seriously, I have to be concerned about the safety

of our children.” (Doc. 143-1 at 64, 149).

Furthermore, staff members were concerned with Oakes Farms’ COVID-19

precautions as a result of Mr. Oakes’s Facebook post. For example, Joan Downen,

who led a local teachers’ group, emailed Ms. Gittens with the subject “info as

requested” including a link to an article about the lack of COVID-19 precautions

taken at Oakes Farms. Ms. Downen wrote, “This is the #1 reason he should not be

a vendor to the school. If he doesn’t take Covid serious, is he infecting our kids?”

(Doc. 138-5 at 130). And members of the School District community unearthed an

article from April 2020 in which Oakes Farms Vice President Steve Veneziano

called COVID-19 “absolutely nothing” and said coverage of the pandemic by the

media was “an attack on this country.” (Doc. 143-6 at 199).

Oakes Farms was also unable to confirm that it was taking precautions to

ensure that it was not transmitting COVID-19 to the students via its produce

deliveries. Instead of sending information about Oakes Farms Food & Distribution

Services, LLC, which was the entity responsible for providing fresh produce to the

School District, Mr. High sent information to Mr. Ross about Marjon Specialty

Foods’ COVID-19 precautions. (See Doc. 143-1 at 366). Further, nothing on the

documents produced by Mr. High with “Marjon Specialty Foods” letterhead

mentioned either Oakes Farms or providing fresh fruits and vegetables to the

School District. (See id.). As Mr. High testified, in 2020, Marjon was one of fifty or

sixty different vendors providing fresh fruits and vegetables to the Oakes Farms

warehouse. (Doc. 143-6 at 38). Marjon contributed some percentage—Mr. High

was not sure of the exact percentage—of the fresh produce to the Oakes Farms

warehouse. (Doc. 143-6 at 37). But, as Mr. High testified, none of the food provided

by Marjon was delivered directly from Marjon to the School District; instead, it all

passed through Oakes Farms. (Id. at 29). Thus, even though Marjon was taking

precautions, there is no indication that Marjon’s precautions were also taken at

Oakes Farms or that Marjon was supplying even ten percent of the produce that

Oakes Farms ultimately provided to the School District. Furthermore, the USDA

“Vendor Verification” provided by Marjon indicates that Mr. High was not the

designated vendor contact for the facility audited by the USDA and that the Marjon

facility site audited was in Plant City, Florida, in Hillsborough County. (Id. at 223).

Thus, there is no record evidence that the COVID-19 precautions taken at Marjon

had an effect on any or all of the fresh produce provided by Oakes Farms to the

School District. Simply stated, the record evidence indicates that they are distinct

business operations and Marjon is but one of as many as sixty vendors that provides

Oakes Farms fruits and vegetables.

In sum, viewing the health-related evidence in the light most favorable to

Plaintiffs, as the Court must, the Pickering scales are tipped in the School District’s

favor. The School District did not need to wait for a COVID-19-related illness to

occur from the fresh produce provided by Oakes Farms before taking action to

prevent that harm from occurring. See Duke, 997 F. Supp. 2d at 1302. Given how

little was known about COVID-19 in June 2020, the School District’s concern that

COVID-19 could be transmitted from a food distribution facility, which it believed

did not have adequate COVID-19 safety precautions was a “reasonable prediction of

disruption.” See Green, 73 F.4th at 1268. The Court therefore concludes that the

School District’s interests in promoting the efficiency of its free meal program and

the health of its students outweighed Mr. Oakes’s free speech interest.

B. Disruption of operations

Even if the health concerns raised by the School District were not sufficient

on their own to tip the Pickering balance in favor of the School District, the School

District has also introduced evidence that Mr. Oakes’s controversial, politically

charged speech damaged the School District’s reputation with the public and caused

disruptions to school operations.

First, considering the time, place, and manner of Mr. Oakes’s speech, as the

Court is required to do in the Pickering balancing test, see Morales, 848 F.2d at

1149, the Court notes that even though Mr. Oakes’s Facebook post was made on a

Saturday, when the School District was not serving free meals to students, it was

visible to thousands of people on Facebook, including many in the community the

School District serves. A screenshot of Mr. Oakes’s Facebook post, taken just one

day after Mr. Oakes published it, reflects that 1,400 people had reacted to it, nearly

3,000 people had commented on it, and it had been shared 877 times. (Doc. 138-7 at

336–37.) This large audience of individuals “illustrates the very gamble individuals

take in posting content on the Internet and the frequent lack of control one has over

its further dissemination.” Duke, 997 F. Supp. 2d at 1302.

The audience for Mr. Oakes’s post only grew in light of the public outcry that

it elicited. An online petition was circulated after Mr. Oakes’s Facebook post and

signed by more than 17,000 individuals, requesting that the School District sever

ties with Oakes Farms. See People of SWFL Cut Ties with Oakes Farms,

CHANGE.ORG https://www.change.org/p/cut-ties-with-oakes-farms (last accessed

October 13, 2023).

Consistent with this petition, school board members received “a ton of e-mails

and letters and phone calls” from constituents complaining about Mr. Oakes’s

Facebook post. (See Doc. 143-5 at 60, 84). At least one teacher wrote the members

of the school board requesting that the Oakes Farms’ contract be terminated and

stating that Mr. Oakes’s “racist, anti-black opinions directly oppose our district’s

mission of providing inclusive education for students of all abilities, needs, and

backgrounds.” (Doc. 143-14 at 251). A parent of a School District student emailed

the school board and Superintendent Adkins stating, “Alfie Oakes is the owner of

Seed to Table and a BLATANT RACIST . . . I urge you and the school board to

immediately end the District’s contract with Seed to Table. We are better than this

and our children deserve better than this.” (Doc. 143-5 at 255). And a resident of

Lee County wrote to the school board stating, “This is systemic racism at its core. It

is not a value which the Lee County School System should endorse with contracts

with this organization or individual. Please consider this appeal as you meet with

your board members and review this food contract.” (Doc. 138-7 at 334). These

communications are a clear indication of disruption to the School District, tipping

the Pickering scales in favor of the School District. See McCullars v. Maloy, 369 F.

Supp. 3d 1230, 1234 (M.D. Fla. Mar. 25, 2019) (finding that Pickering balance

weighed in favor of government where plaintiff’s Facebook posts caused the office’s

phones to be “constantly ringing with citizens complaining about [p]laintiff’s

Facebook posts” and “citizens calling the [office] were upset, with some people

crying while others used profanity to express their outrage” and the “comments

were largely characterized by concerned citizens as racist”); see Doggrell v. City of

Anniston, Alabama, 277 F. Supp. 3d 1239, 1259 (N.D. Ala. Sept. 29, 2017) (finding

that Pickering balance weighed in favor of government where the government

agency “received numerous complaints and its Facebook account—used to

communicate with the community . . . had to be shut down.”).

In addition to the communications to the School District staff and school

board, protests took place in Southwest Florida in the wake of Mr. Oakes’s

Facebook post. For example, protests took place outside of the main School District

administrative building demanding that the School District terminate the contract

with Oakes Farms. (Doc. 143-4 at 122–25; 143-5 at 200; Doc. 138-28 at 1). Another

protest took place outside of Mr. Oakes’s grocery store in Naples, Florida––located

in Collier County, immediately south of Lee County in Southwest Florida––led by

Lee County citizens who aimed to “show Oakes Farms that their gentrification,

abuse, and bigotry are no longer welcome in our community,” and more than 500

people RSVPed to attend. (Doc. 138-21 at 7). A community activist was quoted in a

local newspaper as saying that her organization was “targeting” organizations that

used Oakes Farms as a supplier, asking that they stop using Oakes Farms and

showing up at those businesses who refused to “make sure [their] voices are heard.”

(Doc. 138-32 at 4). In response, Mr. Oakes organized a counter protest at his retail

store in Naples, Florida, Seed to Table, stating, “Please come show your support for

[Collier County Sheriff’s Office], the rule of law and ALL lives matter at Seed to

Table . . . this Saturday!” (Doc. 138-21 at 9). Protests, and even the threat of

protests, weigh in favor of the government’s legitimate interest in avoiding

disruption. See Snipes v. Volusia Cnty, 704 F. App’x 848, 852–53 (11th Cir 2017)

(holding that Pickering balance weighed in favor of government where the

government “demonstrated only a reasonable possibility that [rallies or protests]

would occur” and an organizer testified that “if [plaintiff] had not been fired, ‘I

certainly think that we would have probably moved forward with some sort of either

demonstration or action’”); see McMullenv. Carson, 754 F.2d 936, 940 (11th Cir.

1985) (finding that Pickering balance weighed in favor of government where there

were strong community protests “create[ing] an understandably adverse public

reaction that seriously and dangerously threaten[ed] to cripple the ability of the law

enforcement agency to perform effectively its public duties”); see McCullars, 369 F.

Supp. 3d at 1240 (finding that Pickering balance weighed in favor of government

where “the threat of protests loomed”).

The School District was also under significant scrutiny from the media.

School District staff members expressed concern that local news coverage of the

tensions between Oakes Farms and the School District brought unwanted attention

and scrutiny to the School District. (See Doc. 143-5 at 240; Doc. 143-6 at 217–19;

Doc. 138-6 at 33–35). Newspaper reports described the School District as “fac[ing] a

backlash . . . for either past or present business ties with Oakes Farms following a

Facebook post by its owner.” (Doc. 138-21 at 2). School Board members held a

meeting at which they discussed how they planned to handle media inquiries. (See

Doc. 143-13 at 54–55). And Ms. Stillwell testified that the urgency to get a notice

out to the public that the School District was terminating its contract with Oakes

Farms was caused by pressure from the media to answer questions about the School

District’s plans with respect to Oakes Farms. (Doc. 143-12 at 67). Unwanted media

attention can also weigh in favor of government interests where, as here,

government employees were pulled away from their standard duties to handle

media inquiries. See McCullars, 369 F. Supp. at 1234, 1237 (finding that Pickering

balance weighed in favor of government where government office had “media

converging outside the building” and “the media was aggressively covering the

story”); see also Maples v. Martin, 858 F.2d 1546, 1554 (11th Cir. 1988) (finding that

Pickering balance weighed in favor of government where plaintiff’s speech

“subject[ed] internal administrative policies to public scrutiny . . . [and thereby]

distracted both students and faculty from the primary academic tasks of education

and research”).

Ms. Gittens, who was “the only black person” on the school board, (Doc. 138-5

at 49), was quoted frequently in the local press, and testified that she felt like she

had been placed in a particularly precarious situation given her race. (Doc. 138-6 at

275, 177–78). As Ms. Gittens stated, “I guess they assumed that because I was the

only black person on the board, that I was the purveyor of black power and,

therefore, I was wrong. And I received statements like, well, we can just tar and

feather and hang her and get rid of her.” (Doc. 138-5 at 49). The threats made Ms.

Gittens feel so unsafe that she contacted the Lee County Sheriff’s Office who put

her house under surveillance. (Id. at 50). Causing School Board members to feel

threatened is a clear disruption to the operations of the School District clearly

weighing in favor of the School District in the Pickering balance. The School

District did not need to wait on threats against School Board members to be acted

upon before taking action. See Duke, 997 F. Supp. 2d at 1302 (“[A] genuine

potential for speech to harm a [school district]’s reputation also justifies an

employer taking action before that harm is realized”); Connick, 461 U.S. at 152

(“[W]e do not see the necessity for an employer to allow events to unfold to the

extent that the disruption of the office and the destruction of working relationships

is manifest before taking action.”).

In sum, the Court finds that the record evidence demonstrates that Mr.

Oakes’s speech caused significant disruptions to the School District’s operations as

protests proliferated, complaints filled the individual Defendants’ email inboxes, the

local press hounded the School District representatives for comments, and one

School Board member was threatened. “The obvious disruptive potential of [Mr.

Oakes]’s statements . . . support[s] a conclusion that the government’s interests

outweigh [Plaintiffs].” Green, 73 F.4th at 1268; see Duke, 997 F. Supp. 2d at 1302

(holding that a police department’s interest in efficiently performing its duties

outweighed plaintiff’s free speech rights where plaintiff’s speech caused “internal

disruption,” negatively impacted the department’s reputation, offended the wider

community, raised concerns that the police department may be prejudiced, and

“undermine[d] confidence” in the police department”); see also Hussey v. City of

Cambridge, No. 21-CV-11868-AK, 2022 WL 6820717, at *5 (D. Mass. Oct. 11, 2022)

(observing in the context of a First Amendment retaliation case that “George Floyd’s

murder is inextricably tied to discussions about police brutality and racial justice,

and it is a topic that may be deemed controversial, divisive, and prejudicial”). The

Court therefore determines that the School District’s interests in quelling the

turmoil that had arisen in the School District in light of Mr. Oakes’s speech

outweighed Mr. Oakes’s First Amendment interest in making that speech because

said turmoil was interfering with the School District’s overall operations.

C. Pedagogical interests and reputational concerns

Finally, even if the disruptions to school operations and reputational damage

caused to the School District did not clearly outweigh Mr. Oakes’s free speech

interests, the School District has also introduced ample evidence that Mr. Oakes’s

speech undermined the School District’s educational mission. One of the many

considerations that the Supreme Court has expressly encouraged courts to take into

account when conducting Pickering balancing is the extent to which the employee’s

speech disrupts the mission of the institution. See Rankin, 483 U.S. at 388.

In June 2020, the School District’s Governance Team, including all School

Board members, issued a statement addressing the death of George Floyd, racism,

police brutality, among other things. The statement, which represents the School

District’s goal of inclusivity, is set forth in its entirety as follows:

A message from the School District of Lee County Governance Team:

The actions that led to the death of George Floyd and the protests that

followed have left us overwhelmed with grief and sadness. We are

writing to you today with a heavy heart. We acknowledge the pain that

many in our community are experiencing and we want you to know that

the School District of Lee County stands with you against police

brutality and racism. Please know that you are not alone and that in

these turbulent times we are stronger together.

The district’s goal of becoming a world-class school system can only be

achieved if all students and staff feel safe and valued. We recognize the

power that our education system has in shaping discourses on topics

such as race and race relations. That is why it is our goal to work with

community leaders to further the dialogue on how we as a district can

best address these important issues.

As a community, we must model the compassion and humanity everyone

deserves. We are committed to the principles of equity and restorative

practices so that we can ensure that all students reach his/her highest

personal potential. Our strength is our diversity, and we recognize the

trials of our past so that we can work together for a more just future.

As leaders of the School District of Lee County, we affirm our resolute

Commitment to our values of diversity and inclusiveness and condemn

racism in all its forms.

We know that many in our community are hurting and that there is no

easy solution. But there is an obligation that we have to our children

and the future of our community. Let’s do this together. One

conversation, and one action, at a time.

(Doc. 143-1 at 199–200). As Superintendent Adkins testified, “[w]e want all

students to feel valued, like they’re going to get a high-quality education in our

organization. And that’s what [the statement] reflects.” (Doc. 143-1 at 67). Ms.

Giovanelli testified that the statement reflected that “as a district we are against

any racism in general, and that we will strive to make sure that doesn’t happen in

our district” and that “[w]e have a lot of diversity in our district and everyone is

different throughout.” (Doc. 138-7 at 153–54).

The School District’s statement, which reflected the mission of the School to

provide an inclusive learning environment to a large and diverse student

population, was challenged by Mr. Oakes’s speech. Mr. Oakes described George

Floyd as “a disgraceful career criminal , thief , drug addict , drug dealer and ex-con

who served 5 [years] in prison for armed robbery on a pregnant woman , and spent

his last days passing around fake 20’s to store owners in Minnesota.” (Doc. 138-7 at

336). The post also stated that the police officer involved in the actions that caused

George Floyd’s death was “a 20 year public servant, who was unlucky enough to be

the one having to deal with this drug addicted criminal, a true disgrace to our

human race that represents all that is wrong with our society.” (Id.) “[Mr. Oakes’s]

intent may not have been to convey an offensive message, but his chosen manner of

speech left ample room for interpretation.” Duke, 997 F. Supp. 2d at 1302. Here,

the record demonstrates that Mr. Oakes’s comments elicited unfavorable

associations between the School District and Mr. Oakes’s views.

As one teacher in the School District stated in an email to the School Board,

“[t]hese racist, anti-black opinions directly oppose our district’s mission of providing

inclusive education for students of all abilities, needs, and backgrounds.” (Doc. 138-

7 at 309). A newspaper article quoted Ms. Jordan as stating, “[w]hen we say that

we’re going to be committed to our values of diversity and inclusion and condemn

racism in all forms, we have to stand by that. We cannot have one statement that

says one thing and allow another to stand.” (Doc. 138-32 at 3).

In response, some school board members expressed the sense that their

actions responding to Mr. Oakes’s Facebook post were an opportunity to condemn

what they perceived to be a racist message that was contrary to the School District’s

own values. For example, Ms. Gittens, told a local newspaper, “We have a lot of

young people looking at us and watching what it is we do and how we handle

situations.” (Doc. 143-5 at 240–41).

In sum, a review of the record evidence demonstrates that no genuine issue of

material fact exists as to the disconnect between the School District’s June 5, 2020

message and the contents of Mr. Oakes’s June 6, 2020 Facebook post, which raised

doubts in the community about the School District’s ability to carry out its stated

goals. The evidence is therefore clear that irrespective of criticism as to how

tenuous the connection between the School District and Mr. Oakes may have been,

the School District was associated with what many in the southwest Florida

community perceived as controversial and divisive views about the circumstances

surrounding the death of George Floyd. Further, as indicated above, many involved

in the administration of the School District believed that Mr. Oakes’s statements

undermined the “district’s goal of becoming a world-class school system,” where “all

students and staff feel safe and valued.” (Doc. 143-1 at 199). These factors weigh in

favor of the School District in the Pickering balance. See Duke, 997 F. Supp. 2d at

1303 (“[T]he politically charged context also heightens the potential for Plaintiff’s

particular speech to damage the [District]’s interests.”).

After carefully weighing these factors, the Court finds that the School

District’s stated interests outweigh Plaintiff’s First Amendment interests. Mr.

Oakes’s Facebook post caused the School District to be concerned that the health of

its students was not being appropriately minded; it disrupted the School District’s

operations as a result of numerous public complaints, numerous requests for

comments related to Mr. Oakes’s post from reporters, and a security concern for one

of its school board members; and it undermined the school’s mission by

contradicting the school’s efforts to promote an inclusive environment cognizant of

the fact that many in the Lee County School District community might be upset by

the death of George Floyd. Accordingly, the Court finds that the balance of

interests from the second step of the Pickering test weigh in favor of the School

District.

Because the Pickering balancing test weighs in favor of the School District,

Plaintiffs’ First Amendment retaliation claims fail as a matter of law.

II. Qualified Immunity

Having granted summary judgment to the School District on Plaintiffs’ First

Amendment retaliation claim, the Court now turns to the claims against the

individual defendants. Defendant staff members and school board members argue

that they are entitled to qualified immunity, and because they are entitled to

qualified immunity, the Court must enter summary judgment in their favor for

Plaintiffs’ claim of First Amendment violations pursuant to Section 1983. (Doc. 140,

Doc. 143). Plaintiffs respond that Defendants are not entitled to qualified immunity

because they were on notice that their conduct constituted a violation of Plaintiffs’

constitutionally protected free speech rights. (Doc. 152; Doc. 153.) For the reasons

discussed below, the Court finds that all of the individual defendants are entitled to

qualified immunity.

“A government official who is sued under §1983 may seek summary judgment

on the ground that he is entitled to qualified immunity.” Crosby v. Monroe Cnty.,

394 F.3d 1328, 1332 (11th Cir. 2004). Qualified immunity offers complete

protection for individual public officials performing discretionary functions “insofar

as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). “The purpose of this immunity is to allow government officials

to carry out their discretionary duties without the fear of personal liability or

harassing litigation, protecting from suit all but the plainly incompetent or one who

is knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir. 2002) (quotation omitted). Accordingly, whether an official “may be held

personally responsible for an allegedly unlawful action generally turns on the

objective legal reasonableness of the action, assessed in light of the legal rules that

were clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S.

635, 639 (1987).

“The threshold inquiry a court must undertake in a qualified immunity

analysis is whether [the] plaintiff’s allegations, if true, establish a constitutional

violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). “If a constitutional right would

have been violated under the plaintiff’s version of the facts, the next, sequential

step is to ask whether the right was clearly established.” Vinyard v. Wilson, 311

F.3d 1340, 1346 (11th Cir. 2002).6

The Eleventh Circuit has explained that “[t]he law is clearly established that

an employer may not demote or discharge a public employee for engaging in

protected speech.” Boyce v. Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007).

6 The Supreme Court has clarified that “courts may exercise their sound discretion

in deciding which of the two prongs should be addressed first.” Pearson v. Callahan,

555 U.S. 223, 236 (2009).

However, “[b]ecause no bright-line standard exists to put the employer on notice of

a constitutional violation, this circuit has recognized that a public employer is

entitled to immunity from suit unless the Pickering balance ‘would lead to the

inevitable conclusion that the discharge of the employee was unlawful.’” Busby v.

City of Orlando, 931 F.2d 764, 774 (11th Cir. 1991) (quotation omitted). That is,

using the Pickering balancing test that the Court applied in the preceding section,

do Plaintiffs’ First Amendment interests outweigh the School District’s interests

such that the imbalance would lead to the inevitable conclusion that terminating

the Oakes Farms contract was unlawful? Would the result of such a balancing test

“be so evidently in favor of protecting the employee’s right to speak that reasonable

officials in appellees’ place would necessarily know that the termination of [the

Oakes Farms’ contract] under these circumstances violated [Plaintiffs’]

constitutional rights[?]” Id.; see also Camp v. Corr. Med. Servs., Inc., 400 F. App’x

519, 520–21 (11th Cir. 2010) (“[I]t is not enough to defeat a qualified immunity

defense that under the facts of the case the Pickering balance tilts in favor of the

plaintiff’s free speech. Instead, the balance must tilt decidedly in favor of the

plaintiff’s speech in order for the defendants to have fair and clear notice that they

were violating the plaintiff’s constitutional rights.”).

Here, before strictly applying the same Pickering balancing test as above, the

Court notes that the individual Defendants’ interests in effectively managing the

district are identical to the School District’s interests. First, Superintendent Adkins

is charged with “the administration and management of the schools and for the

supervision of instruction in the district.” Fla. Stat. § 1001.32(2)-(3). “The district

school superintendent is the secretary and executive officer of the district school

board, and as such, is responsible for the administration and management of

schools and for the supervision of instruction in the school district.” McCalister v.

Sch. Bd. of Bay Cnty., 971 So.2d 1020, 1024 (Fla. 1st DCA 2008). As

Superintendent Adkins testified, “the District[’s] views” were his views because he

“represent[s] the district” and was the chief of staff of all of the district. (Doc. 138-1

at 150–51.) Thus, the interests of the School District can safely be attributed to

Superintendent Adkins given Superintendent Adkins’ role as representative and

manager of the School District.

The same is true of Mr. Ross, who was in charge of procurement for the

School District. Mr. Ross’s role, per Florida statute, entailed “broad authority for

management policies and general school district operations related to the

noninstructional program” and “report[ing] directly to the school superintendent

and supervise other administrative employees.” Fla. Stat. § 1012.01(3)(b).

Accordingly, when Mr. Ross investigated Oakes Farm’s COVID-19 protocols,

advised Ms. Desamours and Superintendent Adkins of his findings, and

recommended the termination of the contract, he was acting in furtherance of the

School District’s interests, and in service of Superintendent Adkins. Thus, the

Court finds that the interests of the School District can be safely imputed to Mr.

Ross. The same is true of the School Board members who are charged, when acting

as a board, not individually, with “exercis[ing] all powers and perform[ing] various

duties in the establishment and the operation of the schools.” See Fla. Family Ass’n

v. Sch. Bd., 494 F. Supp. 2d 1311, 1323 (M.D. Fla. May 11, 2007) (quoting Fla. Stat.

§ 1001.42).

As indicated above, based on the undisputed record evidence, the Pickering

balancing test yields the conclusion that the LCSD’s interests outweigh Plaintiffs’

First Amendment interests. Thus, the Court finds that because the Pickering

balance tilts in favor of the School District’s interests, Superintendent Adkins did

not have fair and clear notice that he was violating Plaintiffs’ constitutional rights.

That is, based on the record evidence, the Court declines to hold that

Superintendent Adkins would inevitably have been led to conclude that his actions

violated Plaintiffs’ constitutional right to free speech. See Busby, 931 F.2d at 774.

Accordingly, Superintendent Adkins, Mr. Ross, and the School Board members are

also entitled to qualified immunity.

Moreover, “[b]ecause Pickering requires a balancing of competing interests on

a case-by-case basis, only in the rarest of cases will reasonable government officials

truly know that the termination or discipline of a public employee violated ‘clearly

established’ federal rights.” Hansen v. Soldenwagner, 19 F.3d 573, 576 (11th Cir.

2017). “[T]he employer is entitled to immunity except in the extraordinary case

where Pickering balancing would lead to the inevitable conclusion that the [act

taken against] the employee was unlawful.” Id. (alteration in original). This

situation is far from one that leads this Court to the “inevitable conclusion” that any

unlawful activity occurred given that, as the Court has determined above, the

Pickering balancing test weighs in favor of the School District. Accordingly, for

these multiple reasons, the Court finds that the individual Defendants have

qualified immunity, Defendants' Motion for Summary Judgment (Doc. 143) is due to

be granted as to Count I of Plaintiffs’ Complaint, and Ms. Patricca’s Motion for

Summary Judgment (Doc. 140) is due to be granted in full.

III. Legislative Immunity

The individual defendants also assert that they are entitled to legislative

immunity. Because the Court has already found them entitled to qualified

immunity, however, the Court will not engage in a legislative immunity analysis as

doing so would be redundant.

IV. Remaining State Law Claims

Having carefully reviewed the operative complaint and summary judgment

record, it is clear to this Court that the remaining Florida constitutional, statutory,

and common law claims should be addressed by a Florida state court. As the

Supreme Court has explained, “[c]ertainly, if the federal claims are dismissed before

trial, . . . the state claims should be dismissed as well.” United Mine Workers of

America v. Gibbs, 86 S. Ct. 1130, 1139 (1966); see also Raney v. Allstate Ins. Co., 370

F.3d 1086, 1088–89 (11th Cir. 2004) (“The decision to exercise supplemental

jurisdiction over pendant state claims rests within the discretion of the district

court. We have encouraged district courts to dismiss any remaining state claims

when, as here, the federal claims have been dismissed prior to trial.”). This

principle of supplemental jurisdiction was codified in 28 U.S.C. § 1367(c), which

provides that district courts have discretion not to exercise supplemental

jurisdiction over a claim in four situations:

(1) the claim raises a novel or complex issue of state law,

(2) the claim substantially predominates over the claim or claims over

which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.

See 28 U.S.C. § 1367(c). “Any one of the section 1367(c) factors is sufficient to give

the district court discretion to dismiss a case’s supplemental state law claims.”

Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 743 (11th Cir. 2006).

Here, the third factor in section 1367(c) applies. The Court has original

jurisdiction over Plaintiffs’ First Amendment retaliation claims and Section 1983

claims against the individual Defendants. The Court has granted summary

judgment in favor of Defendants as to these claims and determined that each of the

individual Defendants are entitled to qualified immunity. Because the federal

claims were dismissed, the Court, in its discretion, chooses to not exercise

supplemental jurisdiction over Plaintiffs’ Florida state law claims. See Hicks v.

Moore, 422 F.3d 1246, 1255 n.8 (11th Cir. 2005) (“Today’s decision [granting

summary judgment in favor of Defendants], in effect, eliminates all federal claims

in this case, leaving only Plaintiff’s state-law claims. We allow the district court to

exercise its discretion, under the Gibbs doctrine, to decide whether or not to

consider Plaintiff’s state-law claims on remand”); Murphy v. Florida Keys Elec. Co-

op. Ass’n, Inc., 329 F.3d 1311, 1320 (11th Cir. 2003) (“Once the district court

granted summary judgment on [Defendant’s] contribution claim it had the

discretion to dismiss” a third-party’s state-law based counterclaim”).

The Court thus dismisses those claims (Count II, Count III, Count IV, Count

V, and Count VI) without prejudice. The Court is, however, hopeful, that the

parties can resolve this matter without further judicial intervention.

CONCLUSION

For the reasons outlined above, the Court grants summary judgment in favor

of Defendants with respect to Count I, Plaintiffs’ First Amendment Retaliation

Claim. Further, all of the individual Defendants are entitled to qualified immunity

and are due to be dismissed from this case with prejudice. Finally, all of Plaintiffs’

state law claims are dismissed without prejudice.

For the foregoing reasons, the Court finds that:

1. Plaintiffs Alfie Oakes and Oakes Farms Distributions’ Motion for

Summary Judgment (Doc. 141) is DENIED.

2. Defendants’ Motion for Summary Judgment (Doc. 143) is GRANTED in

part.

3. Defendant Chris Patricca’s Motion for Summary Judgment (Doc. 140) is

GRANTED to the extent that Ms. Patricca (named in Counts One and

Two) is entitled to qualified immunity. Thus, Ms. Patricca is

DISMISSED from this case with prejudice.

4. Because the Court dismisses all Florida state claims without prejudice to

any right to refile such claims in Florida state court, Plaintiffs’ and

Defendants’ motions for summary judgment as to all Florida state law

claims: (Count II (violation of Fla. Const. Art. I, § 4), Count III (breach of

contract), Count IV and V7 (Florida’s Government-in-the-Sunshine Law),

Count V are DENIED AS MOOT.

5. Defendants Gregory Adkins, Frederick Ross, Mary Fischer, Debbie

Fischer, Melissa Giovanelli, Gwynetta Gittens, and Cathleen Morgan

(named in Counts One and Two) are entitled to qualified immunity and

are therefore DISMISSED from this case with prejudice.

6. Given the Court’s order, scheduling of oral argument, per Plaintiffs’

request (Docs. 142, 161), is DENIED AS MOOT.

7. The Clerk is directed to terminate all pending motions and deadlines, to

close the file, and to enter judgment accordingly.

ORDERED in Fort Myers, Florida on October 16, 2023.

(i a LF ; 7 □□

ee Bs Loflee, □□

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

7 As previously noted, Plaintiffs mistakenly allege two Count Vs, both purported

violations of Florida’s Government-in-the-Sunshine Laws. It is the Court’s intent

that both Count Vs be denied as moot such that Plaintiffs may, should they so

choose, file such claims in Florida state court.

AZT