United States District Court, M.D. Florida, Tampa Division
NANCY KING, THE OCCUPATIONAL HEALTH CENTER, INC., and WORK LOSS MANAGEMENT, INC., Plaintiffs,
BOARD OF COUNTY COMMISSIONERS, POLK COUNTY, FLORIDA, KANDIS BAKER-BUFORD, individually, LEA ANN THOMAS, individually, and JIM FREEMAN, individually, Defendants.
VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT
matter comes before the Court pursuant to Plaintiffs Nancy
King, the Occupational Health Center, Inc., and Work Loss
Management, Inc.'s Motion for Reconsideration (Doc. #
146), filed on January 3, 2018. Defendants Board of County
Commissioners, Polk County, Jim Freeman, Kandis Baker-Buford,
and Lea Ann Thomas responded on January 23, 2018. (Doc. #
150). For the reasons that follow, the Motion is denied.
detailed recitation of the facts of this case is unnecessary
at this time. Plaintiffs initiated this action on September
15, 2016, asserting claims for First Amendment retaliation
and for violation of Florida's Whistleblower Act for
public employees, Section 112.3187, Fla. Stat. (Doc. # 1).
Subsequently, King filed her Second Amended Complaint (Doc. #
43), and Defendants moved to dismiss. (Doc. ## 48-51). The
Court denied the motions and held that some of King's
speech, specifically her speech “regarding the
possibility of reverse discrimination lawsuits and the
falsification of records by Mr. J, ” was plausibly
citizen speech on a matter of public concern. (Doc. # 58 at
Defendants moved for summary judgment. (Doc. ## 103-106).
After briefing, the Court granted the motions in part by
granting summary judgment on King's First Amendment
retaliation claims but dismissing the state whistleblower
claims without prejudice. (Doc. # 138). Judgment was entered
on December 6, 2017. (Doc. # 140). Plaintiffs now move for
reconsideration of the Court's summary judgment Order,
arguing that the Court erred in finding that King's
speech was not protected by the First Amendment, that no
genuine question of material fact existed as to causation,
and that, alternatively, the individual Defendants were
entitled to qualified immunity. (Doc. # 146). Defendants have
responded, (Doc. # 150), and the Motion is ripe for review.
Federal Rule of Civil Procedure 59, “[a] motion to
alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.” Fed.R.Civ.P. 59(e).
“The only grounds for granting a Rule 59 motion are
newly-discovered evidence or manifest errors of law or
fact.” Anderson v. Fla. Dep't of Envtl.
Prot., 567 Fed.Appx. 679, 680 (11th Cir. 2014)(quoting
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.
2007)(quotation marks omitted)). Granting relief under Rule
59(e) is “an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of
scarce judicial resources.” United States v.
DeRochemont, No. 8:10-cr-287-T-24MAP, 2012 WL 13510, at
*2 (M.D. Fla. Jan. 4, 2012)(citation omitted). Furthermore,
“a Rule 59(e) motion [cannot be used] to relitigate old
matters, raise argument or present evidence that could have
been raised prior to the entry of judgment.”
Michael Linet, Inc. v. Vill. of Wellington, 408 F.3d
757, 763 (11th Cir. 2005).
insist the Court should reconsider its summary judgment
ruling for three reasons. First, they contend that the Court
erred in determining that King's speech was not protected
speech under governing law. Second, Plaintiffs assert that
newly discovered evidence shows there is a genuine issue of
material fact as to whether King's speech was the cause
of her contract being put through a competitive bidding
process. And, third, they argue that the Court erred in
determining that the individual Defendants are entitled to
King's Speech was Not Citizen Speech on a Matter of
is not warranted for the Court's finding that King's
speech was not protected by the First Amendment. In arguing
for reconsideration, Plaintiffs emphasize that the Court
previously denied dismissal of King's First Amendment
claims as to her speech regarding the alleged falsification
of Mr. J's medical records and the reporting of potential
reverse discrimination liability. (Doc. # 146 at 4).
Plaintiffs attempt to cast the Court's summary judgment
ruling that King's speech was not citizen speech on a
matter of public concern as a “reversal, ”
“without explanation, ” of the Court's
previous ruling. (Id. at 4-5).
are wrong. First, a denial of a motion to dismiss does not
preclude the granting of summary judgment for the defendant
following discovery. See Vintilla v. United States,
931 F.2d 1444, 1447 (11th Cir. 1991)(“[T]he district
court's denial of the government's initial motion to
dismiss was not a final judgment. The court was therefore
free to reconsider its ruling on jurisdiction at the summary
judgment stage.”); see also Joseph v.
Napolitano, No. 11-21468-CIV, 2012 WL 3244674, at *4
(S.D. Fla. Aug. 9, 2012)(explaining that the law of the case
doctrine did not apply and did not preclude the district
court from granting summary judgment to defendant where the
court had earlier denied a motion to dismiss).
the Court did not “reverse itself” in ruling that
King's speech was not protected in its summary judgment
Order. The Court never held in its Order on the motions to
dismiss that King's speech was protected under the First
Amendment as a matter of law. The Court held only that King
had plausibly alleged that her speech was protected, which
was sufficient to survive the pleading stage. See,
e.g., (Doc. # 58 at 16-18)(“At the motion to
dismiss stage, where the Court must accept the allegations of
the Second Amended Complaint as true, King has plausibly
alleged that her speech touched on a matter of public concern
and was motivated by such a concern.”).
summary judgment Order, the Court acknowledged its previous
denial of Defendants' motions to dismiss and explained
that it was time, “with the benefit of discovery,
” to “again address whether King's
speech” was protected. (Doc. # 138 at 38). Such
assessment after review of the complete record was necessary
because the legal question of whether speech is protected by
the First Amendment is highly fact-specific. See Worley
v. City of Lilburn, 408 Fed.Appx. 248, 252 (11th Cir.
2011)(“[T]he analysis of First Amendment retaliation
claims involves intensely fact-specific legal
determinations.”); Mitchell v. Hillsborough
County, 468 F.3d 1276, 1283 (11th Cir. 2006)(“In
determining whether an employee's speech touched on a
matter of public concern, [courts] look to the content, form,
and context of a given statement, as revealed by the whole
record.”). The Court proceeded to ...