Durance

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 are Defendant The School Board of Glades County,

Florida’s Motion to Dismiss (Doc. 29) and Plaintiff Kristi Durance’s response

(Doc. 30). 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 suffers from depression and anxiety disorder.

Plaintiff informed Defendant’s superintendent, Dr. Alice Barfield, of these

disabilities. Dr. Barfield initially supported Plaintiff’s mental health

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).

struggles. However, this position changed when Plaintiff informed Dr.

Barfield that she intended to write a book about her struggles with mental

health, the mental health crisis in America, and how she coped with her

struggles. Dr. Barfield asked Plaintiff not to publish the book, but Plaintiff

published it anyway.

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 disabled student. A few

weeks later, Defendant began targeting Plaintiff for termination. Plaintiff

then complained to Dr. Barfield that she was being subjected to discriminatory

treatment, a hostile work environment, and adverse employment actions

because of her mental health disabilities. Defendant ignored these complaints

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

1, 2023, Defendant suspended Plaintiff. On October 30, 2023, Dr. Barfield

terminated her. Defendant ratified Dr. Barfield’s decision during a November

9, 2023, school board meeting. (Doc. 28).

Based on the foregoing, Plaintiff brings disability discrimination claims

under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.

(count I) and the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.01 et seq.

(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). (Id.). Defendant moves to dismiss counts III, IV, and VI,

arguing Plaintiff fails to state a claim. (Doc. 29).

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 retaliation claims under the ADA

and FCRA (counts III and IV).2 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

2 “[R]etaliation 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.

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. 2020).

Defendant argues Plaintiff fails to plausibly allege she engaged in statutorily

protected expression. The Court agrees.

To satisfy the first element, Plaintiff relies on her complaints to Dr.

Barfield about being subjected to discriminatory treatment. (Doc. 28 ¶¶ 53,

62). She vaguely alleges that she lodged several internal complaints with Dr.

Barfield regarding “being subjected to discriminatory treatment, hostile work

environment, and adverse employment actions because of her mental health

disabilities.” (Doc. 28 ¶ 18). This allegation, unaccompanied by any factual

support, does not plausibly demonstrate a statutorily protected expression.

What treatment was she subjected to? How was the treatment discriminatory?

What made the work environment hostile? What adverse employment actions

did she suffer? In essence, Plaintiff alleges nothing more than: “I was subjected

to discriminatory treatment, I complained about it, and then I was fired.” Such

conclusory allegations are insufficient. See White v. Elegant Beauty Supplies,

#49, Inc., No. 22-61934-CIV, 2023 WL 3711005, at *4 (S.D. Fla. May 2, 2023)

(dismissing retaliation claim because the plaintiff’s vague, conclusory

allegations that she complained about discrimination failed to adequately

allege she engaged in a protected activity); Wester v. Datex, Inc., No. 8:20-CV-

1785-T-33SPF, 2020 WL 6203530, at *3 (M.D. Fla. Oct. 22, 2020) (dismissing

retaliation claim because the plaintiff did “not allege the contents of the

complaints she made to her supervisor” and failed “to allege what conduct she

brought to her supervisor’s attention and whether she complained that the

conduct constituted sex discrimination”).

The Court already advised Plaintiff of this pleading deficiency. In its

prior Order dismissing the retaliation claims, the Court explained that (among

other deficiencies) Plaintiff failed to allege the basis of her complaints. The

Court specifically noted that the discriminatory treatment Plaintiff “was

purportedly subjected to is unclear.” (Doc. 27 at 7). As discussed, Plaintiff has

not rectified this error. Given Plaintiff’s repeated failure to state a retaliation

claim, the Court dismisses counts III and IV with prejudice. See Carvel v.

Godley, 404 F. App’x 359, 361 (11th Cir. 2010) (“[R]epeated failure to cure

deficiencies by amendments previously allowed . . . can justify dismissal with

prejudice.” (cleaned up and citation omitted)).

Next, Plaintiff’s First Amendment retaliation claim under § 1983 (count

VI). She attempts to hold Defendant liable for Dr. Barfield’s allegedly unlawful

decision to terminate Plaintiff. Defendant, as a municipal entity, cannot be

held liable under § 1983 on a theory of respondeat superior. See Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 692 (1978). But “[m]unicipal liability may arise

with regards to an employment decision, such as a termination, provided that

the decisionmaker possesses final authority to establish municipal policy with

respect to the action ordered.” Quinn v. Monroe Cnty., 330 F.3d 1320, 1325

(11th Cir. 2003) (citation omitted).

There are several different ways of establishing municipal liability under

§ 1983. A municipality can be liable for an official policy enacted by its

legislative body, when final policymakers “have acquiesced in a longstanding

practice that constitutes the entity’s standard operating procedure,” and on a

basis of “ratification” when “a subordinate public official makes an

unconstitutional decision” (or recommendation) that someone with final

policymaking authority adopts. Hoefling v. City of Miami, 811 F.3d 1271, 1279

(11th Cir. 2016) (citations omitted). Additionally, “[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). Ultimately, “municipal liability attaches only where a

municipal decisionmaker possesses final authority to establish municipal

policy with respect to the action ordered.” S. Atl. Cos., LLC v. Sch. Bd. of

Orange Cnty., Fla., 699 F. App’x 842, 845–46 (11th Cir. 2017) (cleaned up and

citation omitted).

As a general matter, Defendant, not Dr. Barfield, has final policymaking

authority. See, e.g., Chabad Chayil, Inc. v. Sch. Bd. of Miami-Dade Cnty., Fla.,

48 F.4th 1222, 1231 (11th Cir. 2022) (determining Florida’s statutory scheme

makes it “clear that the school board is ultimately in charge of school-district

policy and that the superintendent acts, in effect, as the school board’s agent—

making recommendations to the board, executing policies that the board

adopts, etc.”); Nash-Utterback v. Sch. Bd. of Palm Beach Cnty., No. 11-CV-

80513-JMH, 2012 WL 12865852, at *22 (S.D. Fla. June 8, 2012) (“The multi-

member School Board, and not the Superintendent, has the final policymaking

authority under Florida law” regarding personnel matters). So to establish

Defendant’s Monell liability for her termination, Plaintiff invokes theories of

ratification and delegation.

Plaintiff’s ratification theory falls flat. Plaintiff alleges Defendant was

aware of Plaintiff’s complaints regarding being subjected to disability

discrimination but nonetheless ratified Dr. Barfield’s unlawful decision to

terminate her through a formal board vote during a November 9, 2023, school

board meeting. (Doc. 28 ¶ 19). This is not enough. As the final policymaker,

Defendant “must ratify not only [Dr. Barfield’s] decision itself, but also the

unconstitutional basis for it.” Fedderman v. Palm Beach Cnty. Sch. Bd., No.

22-81857-CIV, 2024 WL 654668, at *12 (S.D. Fla. Feb. 15, 2024) (citing

Matthews, 294 F.3d at 1297). The allegation that Defendant ratified Dr.

Barfield’s decision to terminate Plaintiff with knowledge of Plaintiff’s

complaints does not plausibly allege Defendant ratified the unconstitutional

basis for Dr. Barfield’s decision. See id. at *13 (explaining that the school

board’s knowledge of the superintendent’s unconstitutional motive for

transferring the plaintiff did not, by itself, demonstrate the school board agreed

with the superintendent’s recommendation); Cunningham v. Sch. Bd. of Lake

Cnty., No. 5:15-CV-480-OC-30PRL, 2016 WL 1755612, at *6 (M.D. Fla. May 3,

2016) (finding insufficient the plaintiff’s allegations that the school board

“condoned” and “ratified” the superintendent’s retaliation because “without a

factual allegation of the School Board’s intent, this allegation does not state a

claim under the retaliation theory”). So Plaintiff’s ratification theory falls

short.

Plaintiff’s delegation theory also fails. To rely on delegation for local

government liability, “the delegation must be such that the decision is not

subject to review by the policymaking authority.” Matthews, 294 F.3d at 1297;

see also Chabad Chayil, 48 F.4th at 1229–30 (11th Cir. 2022) (“This Court’s

decisions have consistently recognized and given effect to the principle that a

municipal official does not have final policymaking authority over a particular

subject matter when that official’s decisions are subject to meaningful

administrative review.” (cleaned up and citation omitted)). But, as discussed

above, Plaintiff alleges Defendant ratified Dr. Barfield’s decision by vote

during a properly noticed school board meeting. Clearly then, Dr. Barfield did

not have unfettered discretion to terminate Plaintiff. See Parnell v. Sch. Bd.

of Lake Cnty., Fla., 731 F. Supp. 3d 1298, 1311 (N.D. Fla. 2024) (“Delegating

decisionmaking discretion to [the superintendent] is not enough to make her a

final policymaker under Monell if the Board retained the power to review the

exercise of that discretion.” (citation omitted)); Cottrell v. Chickasaw City Sch.

Bd. of Educ., 307 F. Supp. 3d 1264, 1285 (S.D. Ala. 2018) (explaining the

plaintiffs failed to show the superintendent was the final policymaker “because

it is undisputed that the recommendation of the superintendent must be

approved via a majority vote of the Board before becoming final.”); Sherrod v.

Palm Beach Cnty. Sch. Dist., 424 F. Supp. 2d 1341, 1346 (S.D. Fla. 2006)

(concluding delegation was not a viable theory because the school board

considered and voted to adopt the superintendent’s recommendation to

discharge the plaintiff in an open meeting).

Plaintiff tries to sidestep Defendant’s review of Dr. Barfield’s decision by

arguing such review was not meaningful. “To succeed in such an argument,

the plaintiff needs to show that the reviewing body has defective procedures,

merely ‘rubber stamps’ the official’s decision, or ratifies the official’s decision

and improper motive.” Lopez v. Gibson, 770 F. App’x 982, 992 (11th Cir. 2019)

(citation omitted). Plaintiff alleges Defendant routinely includes all personnel

decisions (such as terminations) on its consent agenda, and that she could not

locate a single occasion in the past five years where Defendant voted against

Dr. Barfield’s decision. So, in her view, no meaningful review occurred “given

the board always approves Dr. Barfield’s personnel decisions.” (Doc. 28 ¶ 21).

But even assuming Defendant routinely adopts Dr. Barfield’s personnel

decisions on a consent agenda, such allegations do not identify defective

procedures or suggest Defendant neglected to independently investigate Dr.

Barfield’s decision to terminate Plaintiff. See Laroche v. Browning, No. 8:21-

CV-562-VMC-CPT, 2021 WL 3174211, at *3 (M.D. Fla. July 26, 2021) (“The

mere fact that the School Board ultimately adopted Browning’s

recommendation does not suggest that the School Board did not give his

recommendation meaningful review.”); see also Griffin v. City of Jacksonville,

Fla., 762 F. App’x 965, 972 (11th Cir. 2019) (explaining the rubber-stamp or

“cat’s paw” theory applies when the employer “relies on an improperly

motivated recommendation by a subordinate and does not independently

investigate the recommendation”); Crawford v. Carroll, 529 F.3d 961, 979 n.21

(11th Cir. 2008) (explaining the theory applies when the neutral decisionmaker

“has not independently investigated allegations of misconduct”); Kamensky v.

Dean, 148 F. App’x 878, 880 (11th Cir. 2005) (rejecting the plaintiff’s

meaningful review argument because he did “not point to any cognizable defect

in the proceedings”); Quinn, 330 F.3d at 1326 (same). Besides, “[t]he existence

of a reviewing board has generally been sufficient to find that the official in

question did not have final policymaking authority.” Maschmeier, 269 F. App’x

at 944 (citations omitted).

Ultimately, Defendant is the final policymaker. Plaintiff has not

plausibly alleged Defendant ratified Dr. Barfield’s purportedly

unconstitutional decision or that it delegated policymaking authority to Dr.

Barfield. Because Plaintiff fails to allege a basis for Monell liability, her claim

fails.

Even assuming Plaintiff alleged municipal liability, she still fails to state

a retaliation claim. To prevail on a First Amendment retaliation claim against

Defendant, Plaintiff must allege: (1) she engaged in speech on a matter of

public concern, (2) her First Amendment interest in the speech outweighed

Defendant’s interest in prohibiting the speech to promote the efficiency of the

public services it performs through its employees, and (3) her speech played a

substantial part in an adverse employment action taken against her by

Defendant. See Bosarge v. Mobile Area Water & Sewer Serv., No. 20-14298,

2022 WL 203020, at *10 (11th Cir. Jan. 24, 2022). “To involve a matter of

public concern, a government employee’s speech must relate to any matter of

political, social, or other concern to the community.” Maggio v. Sipple, 211

F.3d 1346, 1351–52 (11th Cir. 2000) (cleaned up and citation omitted). “An

employee’s private self-interest in improving the conditions of her employment,

without more, is not a matter of public concern.” Mulloney v. Polk Cnty. Bd. of

Cnty. Comm’rs, No. 8:17-CV-2573-T-36TGW, 2019 WL 13271780, at *7 (M.D.

Fla. Aug. 16, 2019) (citing Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993)).

Plaintiff fails to satisfy the first element.

Plaintiff does not explicitly allege what speech caused Defendant’s

retaliatory conduct.3 That said, she alleges Defendant—who was aware of

Plaintiff’s complaints regarding disability discrimination—ratified Dr.

Barfield’s unlawful termination through a formal board vote during a

November 9, 2023, school board meeting. (Doc. 28 ¶ 19). Based on this

allegation, it seems Plaintiff bases her claim on her complaints to Dr. Barfield

regarding being subjected to disability discrimination. This is a problem.

Despite being conclusory, Plaintiff’s allegation establishes her internal

complaints to Dr. Barfield were about “being subjected to” discriminatory

treatment, a hostile work environment, and adverse employment actions

because of her mental health disabilities. (Doc. 28 ¶ 18). “Generally, such

speech which exposes personally suffered discrimination for personal benefit

is not entitled to First Amendment protection.” Badia v. City of Miami, 133

3 Plaintiff does allege that this count “incorporates by reference Paragraphs 1-14, 17-21 of

this Complaint as though fully set forth below.” (Doc. 28 ¶ 79). These paragraphs encompass

Plaintiff’s published book and her internal complaints to Dr. Barfield. But applying either

to Plaintiff’s First Amendment claim fails.

F.3d 1443, 1445 (11th Cir. 1998). Indeed, the “main thrust” of Plaintiff’s

complaints suggests a private employee grievance to improve her personal

working condition. See Morgan, 6 F.3d at 755 (holding an employee’s

complaint about alleged sexual harassment did not address a matter of public

concern because the “main thrust” of her speech was a “private employee

grievance” to improve her personal working conditions); Henry v. City of

Tallahassee, 149 F. Supp. 2d 1324, 1328 (N.D. Fla. 2001) (explaining that when

“an employee complains that he was the victim of discrimination and/or

retaliation and does so for personal benefit, the main thrust of such speech will

rarely, if ever, qualify as speech on a matter of ‘public concern.’”). Because

Plaintiff has not alleged her complaints involve a matter of public concern, the

First Amendment does not protect them.

To the extent Plaintiff intended to base this claim on her published book,

she cannot do so. To maintain a First Amendment retaliation claim, “a

plaintiff must show that the decision-makers were aware of the protected

conduct[.]” Eisenberg v. City of Miami Beach, 54 F. Supp. 3d 1312, 1324 (S.D.

Fla. 2014) (citing Thampi v. Manatee Cnty. Bd. of Comm’rs, 384 F. App’x 983,

990 (11th Cir. 2010)). Plaintiff never alleges Defendant knew about her

published book. She only alleges Defendant knew about Plaintiff’s complaints

when it adopted Dr. Barfield’s decision. So the Court dismisses count VI.

Accordingly, it is now

ORDERED:

1. Defendant’s motion to dismiss (Doc. 28) is GRANTED.

2. Counts III, IV, and VI are DISMISSED.

DONE and ORDERED in Fort Myers, Florida on November 3, 2025.

, tite WObLatrat he 3

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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