Durance v. The School Board of Glades County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

KRISTI DURANCE,

Plaintiff,

v. Case No.: 2:25-cv-137-SPC-NPM

THE SCHOOL BOARD OF

GLADES COUNTY, FLORIDA,

Defendant.

/

OPINION AND ORDER

Before the Court is Defendant The School Board of Glades County,

Florida’s Motion to Dismiss. (Doc. 21). Plaintiff Kristi Durance filed a

response in opposition (Doc. 24), so the motion is ripe for review. For the below

reasons, the Court grants in part and denies in part the motion.

This is an employment-discrimination case.1 Plaintiff began working for

Defendant as a student services director but was later promoted to principal of

an elementary school. She holds a Bachelor of Science degree in elementary

education and a Master of Education in education leadership, accompanied by

twenty-two years’ experience working in education. She suffers from

1 The Court “accept[s] the allegations in the complaint as true and constru[es] them in the

light most favorable to” Plaintiff. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th

Cir. 2009).

depression and anxiety disorder, which adversely affects her ability to perform

the major life activities of working, eating, and sleeping when not in remission.

Plaintiff shared her disabilities with Defendant’s superintendent, who

initially supported her mental-health struggles. However, this changed when

Plaintiff informed Defendant’s superintendent that she intended to author a

book about her struggles with mental health, the mental health crisis in

America, and how she coped with her struggles. The superintendent asked

Plaintiff not to publish the book, but Plaintiff refused.

Around this time, Plaintiff lodged several internal complaints with

Defendant regarding its failure to comply with § 504 of the Rehabilitation Act,

29 U.S.C. § 794, (“Rehab Act” or § 504) regarding a student who suffered from

disabilities. Plaintiff complained that Defendant’s deliberate indifference to

its obligations under § 504 caused a disabled student not to obtain her needed

accommodations. She specifically objected to Defendant’s staff taunting and

discussing the student’s personal and private information and Defendant’s

repeated attempts to remove the student rather than provide the proper

accommodations.

Only a few weeks after Plaintiff refused to pull her book and lodged her

§ 504 complaints, Defendant began targeting Plaintiff for termination.

Plaintiff then lodged more internal complaints, this time about being subjected

to harassment because of her disabilities. Defendant ignored these complaints

and instead launched an investigation into Plaintiff’s conduct. On September

1, 2023, Defendant suspended Plaintiff. And on October 30, 2023, the

superintendent terminated her.

Based on the foregoing, Plaintiff brings disability discrimination claims

under the ADA (count I) and the Florida Civil Rights Act (“FCRA”) (count II),

as well as retaliation claims under the ADA (count III), the FCRA (count IV),

the Rehab Act (count V), and the First Amendment under 42 U.S.C. § 1983

(count VI). (Doc. 16). Defendant moves for dismissal arguing Plaintiff fails to

state a claim. (Doc. 21).

To survive a Federal Rule of Civil Procedure 12(b)(6) motion, a complaint

must contain “sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Bare “labels and conclusions, and a formulaic recitation of the elements of a

cause of action,” do not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). A district court should dismiss a claim when a party does not plead

facts that make the claim facially plausible. See id. at 570. A claim is facially

plausible when a court can draw a reasonable inference, based on the facts

pled, that the opposing party is liable for the alleged misconduct. See Iqbal,

556 U.S. at 678. This plausibility standard requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550

U.S. at 557 (internal quotation marks omitted)).

The Court first addresses Plaintiff’s ADA and FCRA disability

discrimination claims (counts I and II).2 The ADA prohibits discrimination

“against a qualified individual on the basis of disability in regard to job

application procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a). “[T]o establish a prima facie

case of employment discrimination under the ADA, a plaintiff must

demonstrate that (1) [s]he has a disability, (2) [s]he is a ‘qualified individual,’

which is to say, able to perform the essential functions of the employment

position that [s]he holds or seeks with or without reasonable accommodation,

and (3) the defendant unlawfully discriminated against [her] because of the

disability.” D’Angelo v. ConAgraFoods, Inc., 422 F.3d 1220, 1226 (11th Cir.

2005) (quotations omitted). Defendant attacks the first element—disability.

Defendant argues that Plaintiff fails to allege she has a disability. The

ADA defines “disability” as either “a physical or mental impairment that

substantially limits one or more major life activities . . . a record of such an

impairment . . . or being regarded as having such an impairment.” 42 U.S.C.

§ 12102(1). In turn, “major life activities” is defined to include “major bodily

2 “[D]isability-discrimination claims under the FCRA are analyzed using the same framework

as ADA claims.” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007). So

the Court analyzes these claims together.

function[s] including, but not limited to, functions of the immune system,

normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,

circulatory, endocrine, and reproductive functions.” Id. § 12102(2)(B).

Plaintiff alleges she suffers from depression and anxiety disorder, which

adversely affects her ability to perform the major life activities of working,

eating, and sleeping when not in remission. (Doc. 16 ¶ 11). This is enough to

allege a “disability.” See Martin v. Sabo, No. 8:22-CV-00640-TPB-MRM, 2023

WL 4626759, at *3 (M.D. Fla. July 19, 2023) (finding sufficient the plaintiff’s

allegations that he “is a former combat veteran and suffers from PTSD,

depression, and anxiety that substantially limit one or more major life

activities”); Martin v. Estero Fire Rescue, No. 2:13-CV-393-FTM, 2014 WL

2772339, at *3 (M.D. Fla. June 18, 2014) (finding sufficient the plaintiff’s

allegation that his anxiety and depression substantially limits his emotional

system, which seriously impacts life activities).

Moving to dismiss these claims, Defendant focuses on Plaintiff’s failure

to allege facts demonstrating how her anxiety and depression affects her life.

In support, Defendant cites Powell v. Space Coast Credit Union, No. 6:15-CV-

550-ORL-22-TBS, 2015 WL 9664963, at *4 (M.D. Fla. Dec. 23, 2015), report

and recommendation adopted, 2016 WL 81374 (Jan. 7, 2016). But Powell is

distinguishable. There, the Court found the plaintiff failed to state an ADA

discrimination claim because he only alleged his disability “precluded [him]

from performing one or more essential functions of his position,” without

alleging such essential functions. Id. Here, in contrast, Plaintiff alleges the

affected essential functions—working, eating, and sleeping. Defendant offers

nothing to suggest Plaintiff needs to provide anything more at this stage.3 So

counts I and II survive.

Next, Defendant moves to dismiss Plaintiff’s retaliation claims under the

ADA and FCRA (counts III and IV).4 Under the ADA, it is unlawful for an

employer to “discriminate against any individual because such individual has

opposed any act or practice made unlawful by [the ADA] or because such

individual made a charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under [the ADA].” 42 U.S.C.

§ 12203(a). To state a viable retaliation claim under the ADA, “a plaintiff must

plead facts that plausibly support a finding that: (1) she engaged in statutorily

protected expression; (2) she suffered an adverse employment action; and (3)

there was a causal link between the protected expression and adverse action.”

Stewart v. Jones Util. & Contracting Co., 806 F. App’x 738, 742 (11th Cir.

3 Tellingly, the rest of Defendant’s cited authority on this point are from the summary-

judgment stage. (Doc. 21 at 8–9). Defendant’s argument is more appropriate there.

4 “As with disability discrimination claims, retaliation claims brought under the FCRA are

analyzed under the ADA framework.” Monroe v. Fla. Dep’t of Corr., 793 F. App’x 924, 928

(11th Cir. 2019). So the Court analyzes counts III and IV together.

2020). Defendant argues Plaintiff fails to allege she engaged in statutorily

protected expression. The Court agrees.

To support her ADA and FCRA retaliation claims, Plaintiff alleges two

different protected expressions: (1) authoring and publishing her book on

mental illness, and (2) her internal complaints about being subjected to

harassment because of her disabilities. (Doc. 16 ¶¶ 13, 15–16, 18). Given

authoring a book is not opposition to unlawful conduct under the ADA, the

Court doubts Plaintiff’s book constitutes protected expression under the ADA

or FCRA (and Plaintiff does not argue otherwise). And while internal

complaints about discrimination are generally protected expression, they must

be made to a superior. See Gerard v. Bd. of Regents of State of Ga., 324 F.

App’x 818, 825 (11th Cir. 2009) (“Statutorily protected expression includes

internal complaints of discrimination to superiors[.]”); Burns v. Alabama

Power Co., No. 6:15-CV-02332-LSC, 2017 WL 1491304, at *6 (N.D. Ala. Apr.

25, 2017) (noting informal complaints “must be made to the employee’s

‘superior’ so as to provide notice of the discrimination to the employer.”).

Plaintiff never indicates to whom she made the internal complaint. Nor does

she explain the basis of the complaints. She simply states she “lodged several

internal complaints regarding being subjected to harassment because of her

disabilities[.]” (Doc. 16 ¶ 18). The harassment she was purportedly subjected

to is unclear. So the Court cannot determine whether the complaints were

protected expression. Plaintiff thus fails to state a retaliation claim under the

ADA or FCRA, and the Court dismisses counts III and IV.

Moving on, Defendant argues Plaintiff fails to state a retaliation claim

under § 504 of the Rehab Act (count V). “[T]he prima facie case for retaliation

under the Rehabilitation Act is the same as that under the ADA.” Albra v. City

of Fort Lauderdale, 232 F. App’x 885, 891 (11th Cir. 2007). Plaintiff alleges

that she endured adverse employment action—termination—because she

lodged several internal complaints with Defendant concerning its failure to

comply with § 504 regarding a particular disabled student. Specifically, she

objected to Defendant’s staff taunting and discussing the student’s personal

and private information and Defendant’s repeated attempts to remove the

disabled student rather than provide the proper accommodations. (Doc. 16 ¶¶

15–16). This is sufficient to state a Rehab Act retaliation claim. Cf. Gadjiev v.

Atlanta Indep. Sch. Sys., No. 1:12-CV-2700-JEC, 2013 WL 5349854, at *4 (N.D.

Ga. Sept. 23, 2013) (the plaintiff’s allegations that he was terminated because

he informed his superiors that disabled students were not receiving

appropriate education as required by law stated a retaliation claim under the

Rehab Act).

Defendant’s argument for dismissing this claim falls short. In a nutshell,

Defendant argues Plaintiff fails to state a retaliation claim because

Defendant’s underlying conduct she purportedly complained about does not

violate the Rehab Act. But Plaintiff need not prove an underlying violation to

prevail on her retaliation claim. See Little v. United Techs., Carrier Transicold

Div., 103 F.3d 956, 960 (11th Cir. 1997) (“A plaintiff, therefore, need not prove

the underlying discriminatory conduct that he opposed was actually unlawful

in order to establish a prima facie [retaliation] case.”). Rather, Plaintiff only

needs to show she “had a good faith, reasonable belief that [Defendant] was

engaged in unlawful” practices. Weeks v. Harden Mfg. Corp., 291 F.3d 1307,

1311 (11th Cir. 2002); Vickaryous v. Mason Classical Acad., Inc., No. 2:21-CV-

903-JLB-NPM, 2022 WL 4463560, at *4 (M.D. Fla. Sept. 26, 2022) (“A

complaint is protected if the complainant demonstrates a good faith,

reasonable belief that the employer engaged in unlawful employment

practices.” (citation and quotations omitted)). Defendant never argues

Plaintiff lacked a good faith, reasonable belief that Defendant violated § 504 of

the Rehab Act, so Plaintiff’s Rehab Act retaliation claim (count V) survives.5

Finally, Defendant argues Plaintiff fails to allege a First Amendment

retaliation claim under § 1983 (count VI). Plaintiff claims her termination by

the superintendent was in retaliation for her refusal to pull her mental-health

5 To the extent Defendant intended to argue that, because the conduct Plaintiff complained

about did not violate the Rehab Act, she lacked an objectively reasonable belief that its

conduct was unlawful, this would still fail. See Lett v. Wells Fargo Bank, N.A., 233 F. Supp.

3d 1330, 1339 (S.D. Fla. 2017) (rejecting the defendant’s argument that its conduct was not

unlawful so Plaintiffs could not have had an objectively reasonable, good-faith belief

otherwise).

book. Because Defendant is a unit of local government, Fedderman v. Palm

Beach Cnty. Sch. Bd., No. 22-81857-CIV, 2023 WL 11963656, at *6 (S.D. Fla.

July 10, 2023) (“The School Board is a unit of local government.” (citation

omitted)), it is not vicariously liable under § 1983 for the actions or omissions

of an employee unless those actions “may fairly be said to represent

[Defendant’s] official policy[.]” Monell v. Dep’t of Soc. Servs. of City of New

York, 436 U.S. 658, 694 (1978). Accordingly, “municipal liability attaches only

where a municipal decisionmaker possesses final authority to establish

municipal policy with respect to the action ordered.” S. Atl. Companies, LLC

v. Sch. Bd. of Orange Cnty., Fla., 699 F. App’x 842, 845–46 (11th Cir. 2017)

(cleaned up and citation omitted); see also Hill v. Clifton, 74 F.3d 1150, 1152

(11th Cir. 1996) (“Only those officials who have final policymaking authority

may render the municipality liable under § 1983.”).

Plaintiff does not point to an express policy or custom. Instead, she

broadly alleges the superintendent’s decision to terminate her was ratified by

Defendant or, alternatively, Defendant vested the superintendent with final

decision-making authority. (Doc. 16 ¶¶ 82–83). “[A] municipality can be held

liable on the basis of ratification when a subordinate public official makes an

unconstitutional decision and when that decision is then adopted by someone

who does have final policymaking authority.” Hoefling v. City of Miami, 811

F.3d 1271, 1279 (11th Cir. 2016). Or “[l]ocal government liability can exist

when someone with final policymaking authority delegates that authority to

someone else.” Matthews v. Columbia Cnty., 294 F.3d 1294, 1297 (11th Cir.

2002). The problem is, Plaintiff alleges no facts to support the purported

ratification or delegation. Such naked assertions are not enough to state a

§ 1983 claim against Defendant. See Weiland v. Palm Beach Cnty. Sheriff's

Off., 792 F.3d 13138, 1329 (11th Cir. 2015) (concluding “naked assertions” of a

policy or custom are insufficient to establish municipal liability under § 1983).

So the Court dismisses count VI.

Accordingly, it is now

ORDERED:

Defendant’s motion to dismiss (Doc. 21) is GRANTED in part and

DENIED in part.

1. Counts ITI, IV, and VI are DISMISSED without prejudice.

2. If Plaintiff intends to file a second-amended complaint, she must do

so on or before August 19, 2025.

DONE and ORDERED in Fort Myers, Florida, on August 4, 2025.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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