Riegel v. The School Board of Lee County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

KEVIN RIEGEL, an individual,

Plaintiff,

v. Case No: 2:23-cv-1133-JES-KCD

THE SCHOOL BOARD OF LEE

COUNTY, FLORIDA, a political

subdivision of the State of

Florida,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of defendant’s

Motion to Dismiss Amended Complaint (Doc. #21) filed on January

23, 2024. Plaintiff filed a Response (Doc. #26) on February 12,

2024. For the reasons set forth below, the motion is granted in

part and denied in part.

I.

As alleged in the Amended Complaint (Doc. #14), plaintiff

Kevin Riegel (Plaintiff or Riegel) was employed by the School Board

of Lee County, Florida (Defendant or School Board) from 2011 until

2013 in “various roles.” During the 2012-2013 school year,

Plaintiff discovered that Principal Jackie Corey was mismanaging

funds and a personnel position. Plaintiff also discovered another

Principal (Jeff Spiro) had made material misrepresentations to the

State of Florida on his renewal application for his teaching

certificate by failing to inform the State of his prior arrests.

Plaintiff signed written complaints to local officials, and

Defendant thereafter placed Plaintiff on administrative leave

without any disciplinary basis. Plaintiff was asked to, and did,

participate in investigations conducted by the Florida Office of

Inspector General (OIG). Defendant thereafter declined to renew

Plaintiff’s employment contract in June 2013.

As a private citizen, Plaintiff continued to uncover

violations and other misdeeds by the School Board or its employees:

•

In 2016, Plaintiff unearthed evidence of TIFF Fund

mismanagement and more information on Principal Jeff

Spiro. Plaintiff reported the information in writing to

the OIG. Plaintiff was later invited to lunch by an

unnamed School Board member, who informed Plaintiff he

needed to stop digging and insinuated that his status

could change making him employable by the School Board.

•

Starting at the end of 2017, Plaintiff continued his

whistleblowing activity, sending information to the OIG

and the Attorney General’s Office (AG).

•

In 2020, Jeff Spiro and then-Superintendent Adkins asked

Plaintiff to stop digging, insinuating that if he did

stop he would no longer be categorized as ineligible for

rehire.

•

In April 2021, after completion of Plaintiff’s

dissemination of documents to the OIG and AG, then-

Superintendent Adkins announced his retirement.

Numerous policy changes mandated by the State were then

put in place.

In or around June 2022, Plaintiff applied to be the School

Board’s Director of Risk Management, a new position in a new

department under the Financial Services Department wing of the

school district. Unknown to Plaintiff, Dr. Ami Desamours was the

head of that department, and she had been included in Plaintiff’s

prior whistleblowing correspondence. The position was posted,

would sit dormant, would come down weeks later, and then would be

re-posted without the School Board contacting Plaintiff.

Plaintiff asserts he was not contacted about the position because

he had been categorized as ineligible for rehire based on the

School Board’s policy of categorizing employees who petition the

government for redress of grievances as being ineligible for

rehire. (Doc. #14, ¶¶ 24, 29.) Plaintiff also asserts that the

School Board would not allow him in the Financial Services

Department because 80% to 90% of his whistleblowing involved some

financial fraud on the part of the School Board. On September 15,

2023, Defendant hired William Wilson, who Plaintiff asserts is

objectively not more qualified than Plaintiff.

The Amended Complaint further alleges that on an unspecified

occasion Defendant rejected Plaintiff’s application for a position

on the audit committee for the same “ineligible for rehire”

reasons, and “even more so” because Plaintiff would have been privy

to the School Board’s sensitive documents. (Doc. #14, ¶ 27.)

Plaintiff has filed a two-count Amended Complaint. (Doc.

#14.) Count I alleges a claim pursuant to 42 U.S.C. § 1983

asserting that the School Board’s failure to rehire Plaintiff was

retaliation for Plaintiff exercising his First Amendment rights.

Count II alleges a state-law claim of retaliation under Florida’s

Public Whistleblower Act (PWA) for his disclosures.

II.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

above the speculative level.” Id. at 555. See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth,” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially

plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted). Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,

a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679.

III.

The School Board seeks to dismiss the federal claim in Count

I for failure to state a claim upon which relief may be granted.

The School Board further asks the Court to then decline

jurisdiction over the state-law claim in Count II.

A. Relevant First Amendment Principles

“The First Amendment applies to the states through

incorporation by the Due Process Clause of the Fourteenth

Amendment.” Turner v. Williams, 65 F.4th 564, 579 (11th Cir. 2023)

(citing Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707 (1931)).

“‘The [First] 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.’” Turner, 65 F.4th at

579–80 (citation omitted). See also DeMartini v. Town of Gulf

Stream, 942 F.3d 1277, 1288 (11th Cir. 2019) (same). “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, 587 U.S. , 139 S. Ct.

1715, 1722 (2019) (internal quotation marks and citation omitted).

To state a claim for First Amendment retaliation under § 1983,

a plaintiff must plead that (1) plaintiff engaged in

constitutionally protected speech and/or petition activity, (2)

defendant's retaliatory conduct adversely affected the protected

speech and/or petition activity, and (3) a causal connection

existed between the retaliatory conduct and the adverse effect on

plaintiff’s speech or petition right. See Warren v. DeSantis, 90

F.4th 1115, 1127 (11th Cir. 2024); Zen Group, Inc. v. Agency for

Health Care Admin., 80 F.4th 1319, 1329 (11th Cir. 2023).

As to the first element, Constitutional protection extends to

speech regarding governmental misconduct because such speech lies

at the core of the First Amendment.” Butterworth v. Smith, 494

U.S. 624, 632 (1990) (citations omitted). See also Bryson v. City

of Waycross, 888 F.2d 1562, 1566 (11th Cir. 1989) (noting that “a

core concern of the first amendment is the protection of the

‘whistle-blower’ attempting to expose government corruption”).

Whether the First Amendment protects a particular activity is a

question of law. Warren, 90 F.4th at 1127.

As to the second element, “[t]o be considered an adverse

employment action in a First Amendment retaliation case, the

complained-of action must involve an important condition of

employment.” Stavropoulos v. Firestone, 361 F.3d 610, 619 (11th

Cir. 2004), abrogation recognized, Bell v. Sheriff of Broward

Cnty., 6 F.4th 1374, 1377 (11th Cir. 2021). This element is

satisfied when the alleged employment action would likely chill

the exercise of constitutionally protected speech. Turner, 65

F.4th at 580; Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir.

2005). Refusal to hire is, as a matter of law, an important

condition of employment. Akins v. Fulton Cnty., Ga., 420 F.3d

1293, 1300 (11th Cir. 2005); Goffer v. Marbury, 956 F.2d 1045,

1049 n.1 (11th Cir. 1992).

The third element of a First Amendment retaliation claim

requires plaintiff to allege and ultimately establish a “causal

connection” between the defendant's “retaliatory animus” and the

plaintiff's “subsequent injury.” Nieves, 587 U.S. at , 139 S.

Ct. at 1722 (quoting Hartman v. Moore, 547 U.S. 250, 259 (2006)).

The desire to retaliate must be the “but-for” cause of the

challenged employment action. Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 352 (2013). In other words, the Complaint

must allege that the retaliatory motive caused the injury. This

means that, taking Plaintiff’s alleged facts as true, it must be

plausible that, had the School Board not had any ill will toward

Plaintiff, Plaintiff would not have been denied employment with

the School Board. Turner, 65 F.4th at 581.

Where the § 1983 action is against a local unit of government,

Plaintiff must allege and ultimately prove that an official

government policy was the moving force which caused the

constitutional injury. Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 690 (1978)).

A plaintiff can establish municipal liability

under Monell in three ways: (1) identifying an

official policy; (2) identifying an unofficial

custom or widespread practice that is so

permanent and well settled as to constitute a

custom and usage with the force of law; or (3)

identifying a municipal official with final

policymaking authority whose decision

violated the plaintiff's constitutional

rights. See Cuesta v. Sch. Bd. of Miami-Dade

Cnty., 285 F.3d 962, 966-68 (11th Cir. 2002).

Chabad Chayil, Inc. v. Sch. Bd. of Miami-Dade Cnty., Fla., 48 F.4th

1222, 1229 (11th Cir. 2022). See also Christmas v. Nabors, 76

F.4th 1320, 1329 (11th Cir. 2023) (discussing second method). The

third method to establish a policy is only satisfied if “the

decisionmaker possesses final authority to establish municipal

policy with respect to the action ordered.” Pembaur v. City of

Cincinnati, 475 U.S 469, 481 (1986). In Florida, school

superintendents do not have final policymaking authority regarding

employment decisions. Chabad Chayil, 48 F.4th at 1230 (citing

Greene v. Sch. Bd. of Hamilton Cnty., 444 So. 2d 500, 501 (Fla.

1st DCA 1984)); Mizzell-Bullock v. Seminole Cnty. Pub. Sch., 23-

11599, 2024 WL 65199, at *4 (11th Cir. Jan. 5, 2024) (citing Chabad

Chayil).

B. Application of First Amendment Principles

Because the matter is before the Court on a Rule 12(b)(6)

motion to dismiss, the question is whether Plaintiff plausibly

alleged that the School Board retaliated against him for exercising

his First Amendment rights. Bell v. Sheriff of Broward Cnty., 6

F.4th 1374, 1376–77 (11th Cir. 2021) (citing Twombly 550 U.S. at

556-67). The Court therefore examines each of the elements of the

§ 1983 claim and the allegations in the Amended Complaint.

(1) Protected Activity

“[T]he School Board concedes that complaints against a public

entity of public concerns is a protected constitutional right under

the First Amendment....” (Doc. #21, p. 8.) This is clearly

correct, and includes, as matter of law, speech and petition

activities concerning governmental misconduct and whistle-blowing

activities. Butterworth, 494 U.S. at 632; Bryson, 888 F.2d at

1566.

While conceding the legal principle, the School Board argues

that the Amended Complaint fails to “allege a deprivation of his

First Amendment rights.” (Doc. #21, p. 8.) This element of the

claim focuses on the conduct of Plaintiff, asking whether his

conduct constituted the exercise of a First Amendment right. The

School Board, however, focuses on the conduct of others and on

matters which do not relate to whether First Amendment conduct by

Plaintiff was at issue. (Id. at 8-9.) The Court finds that the

Amended Complaint sufficiently alleges conduct by Plaintiff which

easily falls within the scope of the First Amendment. (Doc. #14

at ¶¶ 8, 9, 10, 11, 14, 16, 17, 21, 28.)

(2) Adverse Employment Action

As a matter of law, the refusal to hire is an important

condition of employment and therefore is an adverse employment

action under a § 1983 claim of First Amendment retaliation. Akins,

420 F.3d at 1300; Goffer, 956 F.2d at 1049 n.1. There are three

possible events mentioned in the Amended Complaint which may be

1

the basis for a retaliation claim , and at least one of them must

1

At various places in Count I, the Amended Complaint refers

to the underlying claim in the plural, i.e., that Plaintiff was

qualified for the “positions” he applied for (Doc. #14, ¶ 37), and

be sufficiently pled. Fed R. Cv. P. 8(d)(2). As it turns out,

only one of them is sufficiently pled.

(a) 2013 Nonrenewal of Contract

Plaintiff’s initial employment with the School Board ended in

June 2013 when the School Board declined to renew his contract.

(Id. at ¶ 12.) The Amended Complaint alleges that this non-

renewal was in retaliation for his prior First Amendment

activities. (Doc. #14 at ¶¶ 12, 15.) But, as the School Board

correctly argues, this cannot form the basis for a First Amendment

claim.

This refusal to rehire cannot form the basis for the § 1983

claim because the face of the Amended Complaint establishes that

the claim is barred by the statute of limitations. The statute of

limitations for a Section 1983 claim is four years. Doe as Next

Friend of Doe #6 v. Swearingen, 51 F.4th 1295, 1302–03 (11th Cir.

2022). “‘A dismissal for failure to state a claim on statute of

limitations grounds is appropriate only if it is apparent from the

face of the complaint that the claim is time-barred.’” S. Y. v.

Wyndham Hotels & Resorts, Inc., 521 F. Supp. 3d 1173, 1191 (M.D.

Fla. 2021) (quoting United States ex rel. Hunt v. Cochise

Consultancy, Inc., 887 F.3d 1081, 1085 (11th Cir. 2018)). The

refers to “violations” of his First Amendment rights (Id. at ¶ 42)

and seeks damages he would have received had he obtained the

“positions”. (Id. “Wherefore” paragraph.)

Amended Complaint asserts that Plaintiff’s employment with the

School Board ended in June 2013 when the School Board declined to

renew Plaintiff’s contract. The Amended Complaint asserts, and

Plaintiff argues, that this nonrenewal was for reporting and

participating in the OIG investigation in 2012-2013. (Doc. #14,

¶¶ 12, 15; Doc. #21, p. 23.) If this nonrenewal is intended as a

basis for the § 1983 claim, it is apparent from the face of the

Amended Complaint that the claim is time-barred since the

nonrenewal occurred more than ten years prior to the filing of the

original Complaint in state court on November 6, 2023. If this is

intended as the basis for the § 1983 claim, it is dismissed without

prejudice.

(b) Director of Risk Management Position

The Amended Complaint alleges that Plaintiff applied for a

position as Director of Risk Management in or around June 2022,

and he was not considered for the position based on the School

Board’s policy. (Id. at ¶¶ 23-26, 29.) The position which went

to another person in 2023. A claim based on this event is not

barred by the statute of limitations, and the Court concludes that

the facts in the Amended Complaint set forth a plausible basis to

be considered an adverse employment action.

(c) Audit Committee Position

The third possible event occurred on an unspecified occasion

when the School Board rejected Plaintiff’s application for a

position on the audit committee. This rejection was based on the

same policy reasons, and “even more so” because Plaintiff would

have been privy to Defendant’s sensitive documents. (Doc. #14, ¶

27.)

If this is intended as the basis for a First Amendment

retaliation claim, it fails. While it is not facially barred by

the statute of limitations (since no date is alleged), there are

no facts which establish that placement on an audit committee is

employment or that failure to be placed on an audit committee is

an important condition of employment. If a claim was intended to

be based on this event, the claim is not plausible and is therefore

dismissed without prejudice.

(3) Causation; Official Policy

Much of the School Board’s argument relates to asserted

defects in the pleading of the official policy required for

municipal liability. The Court concludes that none of these

arguments justify dismissal of the claim relating to the Director

of Risk Management position.

The School Board argues that to constitute a policy for which

liability may attach, the policy must have been formulated with

“deliberate indifference to its known or obvious consequences.”

(Doc. #21, pp. 7-8) (citing Davis v. DeKalb Cty. Sch. Dist., 233

F.3d 1367, 1375 (11th Cir. 2000)). But the action referred to in

Davis was not the formulation of the policy, but the conduct which

was alleged to have violated plaintiff’s rights. Id. The custom,

policy, or practice which satisfies Monell need not have been

formulated with deliberate indifference.

The School Board also argues that the Amended Complaint failed

to sufficiently allege that the School Board created a “policy or

custom” to deprive Plaintiff of his First Amendment rights. (Doc.

#21, pp. 9-12.) The Court finds the Amended Complaint to be

sufficient in this regard.

The Eleventh Circuit has summarized the relevant legal

principles:

A local government body, such as the School

Board in this case, is liable under § 1983

“when execution of a government’s policy or

custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said

to represent official policy, inflicts the

injury....” Monell v. Dep't of Social Servs.,

436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed.

2d 611 (1978). A plaintiff can establish §

1983 liability by identifying that she has

been deprived of constitutional rights by

either an express policy or a “widespread

practice that, although not authorized by

written law or express municipal policy, is so

permanent and well settled as to constitute a

custom and usage with the force of law.” Brown

v. City of Fort Lauderdale, 923 F.2d 1474,

1481 (11th Cir. 1991) (internal quotes

omitted) (quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 123, 108 S. Ct. 915,

99 L. Ed. 2d 107 (1988)) ….

It is not sufficient for a government body’s

policy to be tangentially related to a

constitutional deprivation. The “official

policy or custom must be the moving force of

the constitutional violation in order to

establish liability of a government body under

§ 1983.” Gilmere v. City of Atlanta, Ga., 737

F.2d 894, 901 (11th Cir. 1984) (internal

quotes omitted). A plaintiff “must demonstrate

a direct causal link between the municipal

action and the deprivation of federal rights.”

Bd. of the County Comm'rs v. Brown, 520 U.S.

397, 404, 117 S. Ct. 1382, 137 L. Ed. 2d 626

(1997).

Cuesta v. Sch. Bd. of Miami-Dade Cnty., Fla., 285 F.3d 962, 966–

67 (11th Cir. 2002).

The alleged custom, policy or practice is described in the

Amended Complaint as follows:

Because he [Plaintiff] exercised his free

speech rights and acted a whistleblower, the

Defendant – through the Superintendent –

categorized him as being ineligible for

rehire. This is consistent with the

Defendant’s official policy and practice to

categorize any employee who had the temerity

to bring claims against the Defendant as being

ineligible for rehire.

This is evidenced by the dozens – if not

hundreds – of settlement agreements the

Defendant has entered into with current or

former employees where they are required to

either resign or waive any right to future

employment with the public Defendant. The

Defendant also categorizes employees as being

ineligible for rehire where no settlement was

reached. In other words, although maybe not

authorized by written law or express municipal

policy, the Defendant has a permanent, well-

settled and widespread practice of

categorizing employees like RIEGEL as being

ineligible for rehire when they exercise their

right to petition the government for redress

of grievances.

(Doc. #14, ¶ 22)(emphasis added). Thus, Plaintiff has alleged

that the School Board has a policy that categorizes employees as

ineligible for rehire when they exercise their right to petition

the government. The descriptions of Plaintiff’s own experiences

and the settlements plausibly state that a policy is the moving

force behind the deprivation, even if they may ultimately prove

unconvincing.

The School Board also argues that it cannot be vicariously

liable for the acts of its employees, including the Superintendent,

who is alleged to have established the policy. Defendant contends

that Plaintiff failed to plausibly allege that the Superintendent

had decision-making authority for the School Board. The Amended

Complaint alleges that the Superintendent is vested with final

decision-making authority on personnel hiring and can take action

constituting official policy, including categorizing plaintiff as

ineligible for rehire. (Doc. #14, ¶ 19.) Florida law says a

superintendent cannot do so. Chabad Chayil, 48 F.4th at 1230;

Greene, 444 So. 2d at 501; Mizzell-Bullock, 2024 WL 65199, at *4;

K.M. v. Sch. Bd. of Lee Cnty. Fla., 150 F. App’x 953, 957 (11th

Cir. 2005) (“Under Florida law, final policymaking authority for

a school district is vested in the School Board. Fla. Stat. Ann.

§ 230. 22(1) (2001) (now codified at § 1001.41). The Superintendent

may recommend policies to the School Board, but is not given

authority to make final policy without the Board's approval.”)

But Plaintiff need not assert that the Superintendent had final

decision-making authority.

[I]dentifying and proving that a final

policymaker acted on behalf of a municipality

is ‘an evidentiary standard, and not a

pleading requirement.” Hoefling [v. City of

Miami, 811 F.3d 1271, 1280 (11th Cir. 2016)]

(quoting Swierkiewicz v. Sorema, N.A., 534

U.S. 506, 510 (2002)). [Plaintiff] needed only

to “allege a policy, practice, or custom of

the [School Board] which caused the violation

of his First Amendment rights.” Id.

Christmas v. Nabors, 76 F.4th 1320, 1329–30 (11th Cir. 2023). The

Court finds that Plaintiff has satisfied his pleading obligation

as to this matter.

The Amended Complaint also alleges that “Defendant has a

permanent, well-settled and widespread practice of categorizing

employees” like plaintiff “when they exercise their right to

petition the government for redress of grievances.” (doc. #14, ¶

22.) Such a practice may be the basis for liability.

Accordingly, it is now

ORDERED:

Defendant’s Motion to Dismiss (Doc. #21) is GRANTED IN PART

AND DENIED IN PART. Those portions of the Amended Complaint which

assert a First Amendment claim under § 1983 founded on Plaintiff’s

non-renewal of employment in June 2013 and his failure to be

appointed to an audit committee are dismissed without prejudice.

The motion is denied as to the refusal to hire for the Director of

Risk Management position.

DONE AND ORDERED at Fort Myers, Florida, this Ist day of

April 2024,

= kok

JGH E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

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