# Leuzzi

> District Court, M.D. Florida · October 17, 2025

URL: https://www.frixlaw.com/law-library/cases/11172771

## Case

- **Full name:** Melissa Leuzzi v. Fawcett Memorial Hospital, Inc. d/b/a HCA Florida Fawcett Hospital
- **Court:** District Court, M.D. Florida
- **Decided:** October 17, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11172771

## How later opinions describe it (automated extraction)

- finding plaintiff failed to state a defamation claim where he “alleges generally that Dr. Potter maliciously made the statements in the March 12 memo, [but] he states no facts that support this allegation”
- finding that memory loss and the exacerbation of a preexisting condition were insufficient

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

MELISSA LEUZZI,

Plaintiff,

v. Case No.: 2:25-cv-396-SPC-DNF

FAWCETT MEMORIAL
HOSPITAL, INC. d/b/a HCA
FLORIDA FAWCETT HOSPITAL,

Defendant.

OPINION AND ORDER
Before the Court is Defendant Fawcett Memorial Hospital’s Motion to
Dismiss Plaintiff’s Amended Complaint. (Doc. 17). Plaintiff Melissa Leuzzi
responded in opposition (Doc. 26), and Defendant replied (Doc. 32). For the
below reasons, the Court grants the motion.
Background1
On April 24, 2023, Plaintiff accepted an offer through a healthcare
staffing agency, Aya Healthcare Companies, to work as a registered nurse at
Defendant from May 31, 2023, through August 26, 2023. (Doc. 14 ¶ 7; id. at
35–38 (“Exhibit A”)). The offer included pre-approved days off so Plaintiff could

1 The Court accepts the well-pleaded facts in the First Amended Complaint (“FAC”) (Doc. 14)
as true and construes them in the light most favorable to Plaintiff. United States v. Jallali,
478 F. App’x 578, 579 (11th Cir. 2012).
attend classes, take exams, and go to a medical appointment. Additionally,
Defendant had a Non-Retaliation Policy (“NRP”). (Id. ¶ 13; id. at 39–41). The

NRP provided that “Protected Activity means communicating appropriately,
in good faith, about ethics or compliance concerns, reporting concerns or
inappropriate behavior, participating in an investigation, refusing to
participate in appropriate or wrongful activity and exercising rights protected

by law.” (Id. at 41).
Shortly after accepting the offer to work at Defendant, Plaintiff accepted
an offer to begin working at a Veterans Affairs (“VA”) hospital in New Mexico
in August 2023. She told Defendant that she was selling her residence in

Miami and relocating to New Mexico but confirmed she would fulfill her
contract.
Plaintiff attended orientation on May 31. Judy Elliott, nurse manager
and Plaintiff’s supervisor, provided her with a work schedule. Plaintiff notified

Elliott that the assigned days conflicted with her educational commitments
and asked for a schedule change. Elliott refused. June 1 was a scheduled
training day for Plaintiff. She advised Defendant’s director, Brandy Crabill, of
the scheduling conflict and asked for a schedule change to “accommodate her

protected disabilities,” her academic schedule, and commitments related to her
relocation. (Id. ¶ 25). Defendant refused. So on June 1, Plaintiff submitted
her two-weeks’ notice. (Id. ¶ 27; id. at 42 (“Exhibit C”)).
On June 4, Plaintiff began work and identified several problems at the
hospital. For instance, multiple patients had overdue IV infusion medication

orders. Plaintiff told the charge nurse and expressed concerns about her
patient assignments. Defendant incorrectly programmed Plaintiff’s phone, so
she could not call many doctors to assist a medically unstable patient. Plaintiff
describes additional issues with Defendant’s staff.

She submitted three incident reports through the risk management
portal, and the next day, she told the nurse manager that Defendant’s practices
violated the Nurse Practice Act and Nursing Code of Ethics. On June 5, she
asked to be removed from future work schedules. (Doc. 14 at 50 (“Exhibit E”)).

She texted the nurse manager and the director that her resignation was
effective immediately. In total, Plaintiff worked at Defendant Hospital for Aya
for one week.
On June 7, Aya advised Plaintiff that one of her patients said she did not

feel euphoria from her pain medication, and Defendant was investigating
potential diversion of pain medication. Defendant requested an in-person
meeting with Plaintiff about the issue on June 8. But that was one of Plaintiff’s
pre-approved days off, and she was in Miami. At first, Defendant agreed to a

phone meeting but then insisted Plaintiff attend in person. Plaintiff requested,
but was refused, a Zoom meeting or a different date.
On June 9, Defendant conducted a meeting and created an investigation
report. (Doc. 14 at 43–49 (“Exhibit D”)). Under Pharmacy Findings, the report

explains that no discrepancies were found with medication documentation.
Plaintiff alleges that Defendant made “materially false and misleading
statements” in the report, which it submitted to the Florida Department of
Health (“DOH”) in a Health Care Provider Complaint Form on June 14, 2023.

Among other things, Plaintiff alleges:
the claim that the “Patient reported nurse was
stealing her medications” is contradicted by the words
that Fawcett alleged the patient to have stated, as
reflected on the Complaint form of the preceding page,
and is materially false;

the statement that Plaintiff “was scheduled to come in
June 8, 2023 and did not show” is false as Plaintiff had
resigned on June 5, 2023; she never agreed to meet in
person on June 8, 2023; that day, June 8, 2023, was a
preapproved day off; and Fawcett knew all that before
it wrote the Report;

“Melissa quit to nursing supervisor on June 6th when
questioned” is a material falsehood, as Fawcett did not
communicate with Plaintiff on June 6, 2023, and
Plaintiff had already resigned for cause the previous
day.

(Doc. 14 ¶ 54). Plaintiff alleges that because of the report, an investigation was
conducted that if resolved against her, would have subjected her to potential
or actual loss of her license as a registered nurse. She alleges that “Fawcett
basically alleged [she] committed federal crimes” and filed the report in
retaliation for her submission of the incident reports. (Id. ¶ 56).

As a result, Plaintiff alleges that she suffered severe emotional distress
that disrupted her employment with Defendant and afterward, leading to
periods of unemployment, unstable housing, debts, and other damages. She
had to hire a lawyer to defend herself against the allegations in the report. The

complaint was ultimately dismissed, and Plaintiff obtained her license as a
psychiatric mental health nurse practitioner. However, her plans to move to
New Mexico were delayed because she had to defend herself. Her severe
emotional distress resulted in physical manifestations and caused Plaintiff to

end her employment with the VA earlier than she would have but for the
emotional distress Defendant caused. Defendant allegedly caused her to suffer
lost wages from June 2023 to August 2023 and October 2023 to March 2024.
Her damages exceed $100,000.

Based on these facts, Plaintiff brings claims against Defendant for
breach of contract (count I), intentional infliction of emotional distress (“IIED”)
(count II), negligent infliction of emotional distress (“NIED”) (count III),
violation of Florida’s Whistleblower Act (“FWA”), Fla. Stat. §§ 448.101 et seq.

(count IV), and defamation (count V). (Doc. 14).
Legal Standard
To survive a Federal Rule of Civil Procedure 12(b)(6) motion, a complaint

must allege “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)).
Analysis

Defendant moves to dismiss all claims. (Doc. 17). First, the Court
addresses whether Defendant is immune from suit arising from its disclosures
to the DOH. (Id. at 6). Based on the allegations in the FAC, the Court
concludes it is.

In regulating health professions, Florida law provides:
(11) A privilege against civil liability is hereby granted to
any complainant or any witness with regard to information
furnished with respect to any investigation or proceeding
pursuant to this section, unless the complainant or witness
acted in bad faith or with malice in providing such
information.

(12)(a) No person who reports in any capacity, whether or
not required by law, information to the department with
regard to the incompetence, impairment, or unprofessional
conduct of any health care provider licensed under chapter
458, chapter 459, chapter 460, chapter 461, chapter 462,
chapter 463, chapter 464, chapter 465, or chapter 466 shall
be held liable in any civil action for reporting against such
health care provider if such person acts without intentional
fraud or malice.

Fla. Stat. § 456.073(11), (12)(a). In Florida, a court may consider any
affirmative defense in resolving a motion to dismiss “when the complaint
affirmatively and clearly shows the conclusive applicability of the defense to
bar the action.” Meyer v. Fay Serv’g, LLC, 385 F. Supp. 3d 1235, 1242 (M.D.
Fla. 2019) (quoting Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1277
(11th Cir. 2004)).
To overcome the privilege, a plaintiff must plead and prove “that the
defamatory statements were false and uttered with common law express
malice—i.e., that the defendant’s primary motive in making the statements
was the intent to injure the reputation of the plaintiff.”2 See Fridovich v.
Fridovich, 598 So. 2d 65, 69 (Fla. 1992); see also Nodar v. Galbreath, 462 So.
2d 803, 810 (Fla. 1984) (explaining that malice may not be inferred “from the

2 Plaintiff disputes that she must allege express malice, not statutory malice. (Doc. 26 at 5).
For support, she cites Florida Statute § 456.073(11) and (12)(a), which mentions but does not
define malice. She provides no alternative definition from case law or statutes. So the Court
applies the definition Defendant provides, citing Florida law.
mere fact that the statements are untrue” rather “there must be a showing
that the speaker used his privileged position to gratify his malevolence”)

(quotations omitted). Express malice means “ill will, hostility and an evil
intention to defame and injure.” Demby v. English, 667 So. 2d 350, 353 (Fla.
Dist. Ct. App. 1995) (citation omitted).
Defendant contends that Plaintiff’s allegations are insufficient to show

malice. (Doc. 17 at 7). In response, Plaintiff argues that Rule 9(b) allows her
to allege malice “generally,” so she has met the threshold to overcome the
privilege. (Doc. 26 at 4). But she still must satisfy Rule 8. See Iqbal, 556 U.S.
at 678. Plaintiff’s conclusory allegations miss the mark. She alleges that

Defendant filed the complaint and report, knowing it contained intentionally
false information, in bad faith, and with malicious intent, ill will, hostility, and
an evil intention to defame and injure Plaintiff in retaliation for her filing the
incident reports. (Doc. 14 ¶ 57; see also id. ¶¶ 86, 99, 113, 126). Plaintiff uses

the buzzwords for malice but does not support them with facts showing that
Defendant used a privileged position to gratify its malevolence. See Sirpal v.
Univ. of Miami, 684 F. Supp. 2d 1349, 1361 (S.D. Fla. 2010) (finding plaintiff
failed to state a defamation claim where he “alleges generally that Dr. Potter

maliciously made the statements in the March 12 memo, [but] he states no
facts that support this allegation”).
She also relies on allegations that statements in the report were
materially false and intended to injure her reputation. (Id. ¶ 54). But malice

cannot be inferred from the fact that the statements are allegedly untrue.
Nodar, 462 So. 2d at 810. Her allegations fail to overcome the statutory
privilege. Thus, to the extent Plaintiff’s claims in counts I, II, III, and V are
based on Defendant’s filing of the complaint and report with DOH, they are

dismissed without prejudice.
As for Plaintiff’s defamation claim (count V), it is entirely based on the
report and complaint to DOH. (Doc. 14 ¶¶ 127–37). So it is dismissed without
prejudice for the reasons stated above.3

The Court turns to Plaintiff’s emotional distress claims. Like her
defamation claim, Plaintiff’s intentional and negligent infliction of emotional
distress claims (counts II and III) are largely based on the report and complaint
to DOH. (Doc. 14 ¶¶ 87–98, 100–12). To that extent, they are dismissed

without prejudice for the reasons stated above. However, Plaintiff also alleges
other bases for these claims, so the Court addresses Defendant’s other
substantive arguments.

3 Although Plaintiff attempts to switch course and argue that the FAC alleges defamation
per se (a distinct claim from defamation) (Doc. 26 at 16), she cannot amend her pleading in
her response. See Eiras v. Florida, 239 F. Supp. 3d 1331, 1342 (M.D. Fla. 2017). Regardless,
the defamation per se allegation is still based on the DOH complaint and barred by the
privilege.
First, the IIED claim. The elements are: (1) extreme and outrageous
conduct; (2) an intent to cause, or reckless disregard to the probability of

causing, emotional distress; (3) severe emotional distress suffered by the
plaintiff; and (4) proof that the conduct caused the severe emotional distress.
Gonzalez-Jimenez de Ruiz v. United States, 231 F. Supp. 2d 1187, 1199 (M.D.
Fla. 2002), aff’d sub nom. Gonzalez-Jiminez de Ruiz v. United States, 378 F.3d

1229 (11th Cir. 2004). “Only in extremely rare circumstances will courts
uphold claims for intentional infliction of emotional distress.” Id. The alleged
action must be “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency” and be regarded as “atrocious and

utterly intolerable in a civilized community.” Id. Whether a plaintiff has
alleged conduct which meets the essential elements for a claim for IIED is a
matter of law to be decided by the Court. Id.
Regarding IIED, Plaintiff alleges that Defendant:

intentionally assigned Plaintiff an unreasonable acuity
and dangerous patient assignments that presented a risk
to patient safety and care after Plaintiff reported her
concerns about patient care at the hospital, which was
outrageous because Plaintiff barely had a few days of work
experience at the Hospital, her phone was improperly
programed such that she could not contact patients’
physicians, Fawcett generally was unwilling to help
Plaintiff administer care in any meaningful way, and
Fawcett knew all of that, but nevertheless intentionally
assigned Plaintiff a workload that caused her severe
emotional distress and physical exhaustion to a point of
near physical collapse, to handle based on her steadfast
desire to deliver top notch patient care.[4]

91. Moreover, it was outrageous for Fawcett to threaten to
report, and to actually report, Plaintiff to the Board of
Nursing if she did not travel three or more hours on next-
to-no notice for an in person meeting about a matter in
which Fawcett possessed actual evidence of no wrongdoing
by Plaintiff.

(Doc. 14 ¶¶ 90–91). This is not one of the “extremely rare” cases where
Defendant’s conduct was outrageous enough to sustain a claim for IIED.
The case Plaintiff relies on does not save her claim. For support, Plaintiff
cites McAlpin v. Sokolay, 596 So. 2d 1266 (Fla. Dist. Ct. App. 1992), where a
doctor verbally assaulted a plaintiff in an x-ray room about a debt she owed his
friend and his expectation that she would not pay her bill. The plaintiff feared
she had cancer and expected medical staff to treat her with concern and care.
Id. at 1267–68. When the doctor refused to give her an x-ray and threatened
to have security remove her from the hospital, the plaintiff tried to explain she
had a business dispute with his friend unrelated to medical billing. Id. at 1268.
But her throat constricted in panic, she became violently nauseous, could not
get words out, began sobbing, and ran from the room in a panic—nude except
for her hospital gown—through the hospital. Id. The court reversed the lower
court’s ruling that such conduct did not constitute IIED. Id. at 1270.

4 If Plaintiff amends her complaint, the Court cautions her against writing run-on sentences
like this one.
McAlpin is distinguishable. Here, Plaintiff alleges she was moving to
New Mexico and did not have stable housing, was obtaining a new job and was

thus unemployed after her contract with Defendant, and was about to apply to
governmental licensing authorities to continue her nursing career. (Doc. 26 at
13 (citing Doc. 14 ¶¶ 12–13, 26, 60–61, 67). And during that period, Defendant
submitted the report and complaint. Juxtaposing the two situations, the Court

disagrees that Defendant’s alleged conduct compares with the McAlpin
defendant’s—particularly given the McAlpin plaintiff’s fear that her symptoms
meant cancer and the vulnerable relationship between a patient and doctor.
And, as Defendant points out, Florida courts have found allegations of

false statements insufficient to state a claim. (Doc. 17 at 15 (citing Valdes v.
GAB Robins N. Am., Inc., 924 So. 2d 862, 866 (Fla. Dist. Ct. App. 2006)
(investigating and then making false statements to state agency which lead to
plaintiff’s arrest was “not the type of conduct that is so outrageous in character

and extreme in degree as to go beyond the bounds of decency and be deemed
utterly intolerable in a civilized society”), review denied, 949 So. 2d 200 (Fla.
2007); Legrande v. Emmanuel, 889 So. 2d 991, 995 (Fla. Dist. Ct. App. 2004)
(clergyman falsely branded a thief in front of parishioners failed to state claim

of IIED)). In the Court’s view, the defendant’s conduct in Valdes is arguably
even more concerning than Defendant’s here because it led to the plaintiff’s
arrest, yet the court still found it insufficient to state a claim. Because Plaintiff
has not alleged sufficiently outrageous conduct, her IIED claim is dismissed
without prejudice.

Turning to NIED. The elements are: “(1) the plaintiff must suffer a
physical injury; (2) the plaintiff’s physical injury must be caused by the
psychological trauma; (3) the plaintiff must be involved in some way in the
event causing the negligent injury to another; and (4) the plaintiff must have

a close personal relationship to the directly injured person.” Zell v. Meek, 665
So. 2d 1048, 1054 (Fla. 1995). “[T]he Florida Supreme Court held that
psychological trauma must cause a demonstrable physical injury such as
death, paralysis, muscular impairment, or similar objectively discernible

physical impairment before a cause of action may exist.” Corbin v. Prummell,
655 F. Supp. 3d 1143, 1167 (M.D. Fla. 2023) (quoting Brown v. Cadillac Motor
Car Div., 468 So. 2d 903, 904 (Fla. 1985)).
Defendant argues that Plaintiff has failed “to allege a discernable

physical injury.” (Doc. 17 at 16). On that score, Plaintiff alleges that she
“suffered physical manifestations from that emotional distress, including
without limitation by almost physical collapse at Fawcett due to the workload,
and stress and mental anguish resulting from the filing of the false and

materially misleading Report and Complaint causing pre-existing physical
conditions to exacerbate substantially, including resulting in surgery.” (Doc.
14 ¶ 112).
Again, Plaintiff’s allegations fall short. “Almost physical collapse” does
not suffice. Nor do “stress and mental anguish.” See Gonzalez-Jiminez de

Ruiz, 378 F.3d at 1231 (“While the children claim they suffered mental anguish
from the BOP’s actions, they failed to establish any major adverse physical
impact.”) (emphasis added). Plaintiff cites no cases to support as much.
Rather, she hangs her hat on unidentified pre-existing physical conditions

which required an unspecified surgery. (Doc. 26 at 14). She cites Zell to
support the proposition that “joint pain” is enough. (Id.). But she takes Zell
completely out of context. In that case, the plaintiff witnessed her father’s
death at the hands of an anonymous bomber at her father’s apartment. See

Zell, 665 So. 2d at 1049. The plaintiff did not suffer significant physical
injuries from the smoke or shattered glass that fell on her. But immediately
after witnessing her father’s death, the plaintiff began having insomnia,
experiencing depression, short-term memory losses, extreme fear of loud

noises, bad dreams, and an inability to stop reliving the event. She later began
experiencing physical impairment in her upper stomach. The pain in her rib
cage worsened. She became very ill, with pain spreading to her chest. She
took ulcer medication but then experienced a blockage in her esophagus, could

not swallow, and had difficulty breathing. She developed joint pain in her hips
and elbows.
In short, Zell could hardly be more distinguishable from Plaintiff’s
ambiguous allegation of pre-existing physical conditions that resulted in

surgery. What’s more, Defendant cites numerous cases in its reply supporting
the proposition that an exacerbated pre-existing condition fails to state a claim.
(Doc. 32 at 4 (citing Trocano v. Vivaldi, 720 F. Supp. 3d 1231, 1242 (M.D. Fla.
2024); Elliott v. Elliott, 58 So. 3d 878, 882 (Fla. Dist. Ct. App. 2011) (a pre-

existing condition that is exacerbated is insufficient) (collecting cases);
LeGrande, 889 So. 2d at 995 (finding that memory loss and the exacerbation of
a preexisting condition were insufficient); Gonzalez–Jimenez de Ruiz, 231 F.
Supp. 2d at 1201–02 (concluding that aggravation of pre-existing conditions is

insufficient to satisfy impact rule)). Accordingly, Plaintiff’s claim of NIED is
dismissed without prejudice.
Moving to Plaintiff’s breach of contract claim (count I). The elements are
a valid contract, a material breach, and damages. See Beck v. Lazard Freres &

Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999) (citation omitted). To prove the
existence of a contract, a plaintiff must plead: (1) offer; (2) acceptance; (3)
consideration; and (4) sufficient specification of the essential terms. St. Joe
Corp. v. McIver, 875 So. 2d 375, 381 (Fla. 2004).

Plaintiff alleges that by filing the report and complaint with DOH and
taking other retaliatory actions, Defendant “breached the dependent, material
terms of the NRP relating to Protected Activity and non-retaliation, which
survived her separation.” (Doc. 14 ¶ 83). Defendant moves to dismiss the
claim, arguing that it is not party to the contract, and even if it was, the NRP

is not a contract. The Court agrees with both points.
First, the employment contract is between Aya and Plaintiff. (Doc. 35–
38). Plaintiff does not address Defendant’s contention that it is not party to
the contract. See Negreanu v. Starbucks Corp., No: 8:22-cv-2421-CEH-SPF,

2024 WL 810857, at *2 (M.D. Fla. Feb. 27, 2024) (“Generally, the failure
to respond to the merits of a request for dismissal of a Plaintiff’s claims would
serve as a concession that the request is due to be granted.”). The contract
extends an offer to join the “Aya Healthcare Companies[], a healthcare staffing

agency.” (Doc. 14 at 35). The “Facility” where Plaintiff would work is “Fawcett
Memorial Hospital,” but Defendant is not a party to the contract. (Id.).
Nevertheless, Defendant’s initial argument is somewhat beside the
point. The true bone of contention is whether the NRP is a binding contract

that Defendant could have allegedly breached. For these reasons, the Court
finds that it is not.
Both Florida courts and federal courts interpreting Florida law have
recognized that:

[i]t is well established Florida law that policy statements
contained in employment manuals do not give rise to
enforceable contract rights in Florida unless they contain
specific language which expresses the parties’ explicit
mutual agreement that the manual constitutes a separate
employment contract.

Freese v. Wuesthoff Health Sys., Inc., No. 6:06CV175-ORL-31JGG, 2006 WL
1382111, at *8 (M.D. Fla. May 19, 2006) (quoting Quaker Oats Co. v. Jewell,
818 So.2d 574, 576–77 (Fla. Dist. Ct. App. 2002)). Plaintiff does not—and
cannot—argue that the NRP contains language expressing the parties’ mutual
agreement that it is a separate employment contract. There is no such
language in the NRP. Instead, she argues that the NRP does not contain any
express language disclaiming that it is a contract. (Doc. 26 at 8). She cites no

binding authority for support. And the only case that conceivably supports her
argument is distinguishable.
In Centennial Bank v. Servisfirst Bank Inc., the court denied a motion to
dismiss a breach of contract claim, reasoning that certain ethics codes could be

contracts. No. 8:16-CV-88-T-36JSS, 2017 WL 11632487, at *10 (M.D. Fla.
Sept. 15, 2017). Like the NRP here, the ethics codes contained no disclaimer
that they were contracts. Id., at *10. But unlike the NRP, at least one of the
ethics codes specified that compliance with its provisions was a condition of

employment and that the obligations survive termination. Id. Further, the
defendants in Centennial Bank signed forms acknowledging that they
understood the provisions and agreed to comply with the ethics code. Id.
The NRP contains no provisions stating it is a condition of employment
or that its obligations survive termination. (Doc. 14 at 39–41). It contains no

signatures of Defendant’s acknowledgement. Accordingly, it is distinguishable
from Centennial Bank—which is merely persuasive authority. Under these
circumstances, Plaintiff’s breach of contract claim is dismissed with prejudice.
Finally, Plaintiff’s whistleblower claim (count IV). “An employer may

not take any retaliatory personnel action against an employee because the
employee has: . . . [o]bjected to, or refused to participate in, any activity, policy,
or practice of the employer which is in violation of a law, rule, or regulation.”
Fla. Stat. § 448.102(3). Plaintiff alleges:

While an employee of Fawcett, Plaintiff objected to and
refused to participate in the activities, policies, or practices
that Fawcett was utilizing for Fawcett’s provision of
healthcare services to patients, as well as the work
environment Fawcett provided for nurses to render
healthcare services to patients, which Plaintiff identified to
Fawcett as being violative of the Nurse Practice Act, F.S.
464.001 et seq., and the rules and regulations applicable to
the Nursing Code of Ethics, which are “[l]aw[s], rule[s], or
regulation[s]” as that term is defined in F.S. § 448.101(4).

(Doc. 14 ¶ 117).
To state a claim under the FWA, a plaintiff must allege that (1) plaintiff
engaged in a protected activity, (2) plaintiff suffered a materially adverse
employment action, and (3) the adverse action was causally connected to the
protected activity. Vuolo v. MHM Health Pros., LLC, No. 22-12059, 2023 WL
2669827, at *2 (11th Cir. Mar. 29, 2023). To allege a violation of a law, rule,
or regulation under § 448.102(3), Plaintiff must plead facts to establish that:
(1) there is a rule or regulation that prohibits the complained of conduct; (2) an

actual violation occurred versus just a “good faith” hunch about a violation;
and (3) the conduct is attributable to the employer. Colon v. Total Renal Care,
Inc., No. 8:07-CV-151-T26MAP, 2007 WL 4145940, at *2 (M.D. Fla. Nov. 19,
2007).

Defendant moves to dismiss Plaintiff’s FWA claim, arguing that
although she makes many general allegations regarding other nurses’ conduct,
she fails to allege a violation of any specific law, rule, or regulation. (Doc. 17
at 17 (citing Doc. 14 ¶ 118)). Specifically, Plaintiff does not identify what

particular provision of the Nurse Practice Act Defendant allegedly violated,
and her general reference to the whole statute is not enough to state a claim.
(Id.).
In her response, Plaintiff dodges the issue. Instead, she references

paragraph 117 of the FAC, which contains the general reference to the Nurse
Practice Act Defendant highlights. (Doc. 26 at 15). She then argues that she
also alleged Defendant’s hospital is not a safe environment for patients. (Id.
(citing Exhibit E)). Curiously, she then states that Defendant’s failure to

manage risk and its personnel subjects it to statutory violations—particularly
Florida Statute § 766.110(a). (Id.) But Plaintiff pleads no violation of that
section in the FAC, and there is no allegation she complained to Defendant of
any violation under this section. As the Court has already explained, Plaintiff
cannot amend her pleading through her response. On this basis, her FWA
claim is dismissed without prejudice.>
Accordingly, it is now
ORDERED:
1. Defendant’s Motion to Dismiss (Doc. 17) is GRANTED, as explained
above.
2. If Plaintiff chooses to file an amended complaint, she must do so by
October 30, 2025.
DONE and ORDERED in Fort Myers, Florida on October 16, 2025.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

5 Defendant raises additional arguments for dismissal of this claim. But the Court need not
reach them at this time. Defendant is free to raise these arguments again in subsequent
motion practice, if appropriate.

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11172771. Public record. Not legal advice.