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King v. Board of County Commissioners

United States District Court, M.D. Florida, Tampa Division

January 23, 2018

NANCY KING, THE OCCUPATIONAL HEALTH CENTER, INC., and WORK LOSS MANAGEMENT, INC., Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS, POLK COUNTY, FLORIDA, KANDIS BAKER-BUFORD, individually, LEA ANN THOMAS, individually, and JIM FREEMAN, individually, Defendants.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background

         A 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 14-16).

         Later, 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.

         II. Legal Standard

         Under 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).

         III. Analysis

         Plaintiffs 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 qualified immunity.

         A. King's Speech was Not Citizen Speech on a Matter of Public Concern

         Reconsideration 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).

         Plaintiffs 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).

         Second, 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.”).

         In its 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 ...


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