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David v. Baycare Health System, Inc.

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

December 16, 2019

MARIE DAVID, Plaintiff,



         This matter is before the Court on Defendant, BayCare Health Systems, Inc.'s, “Motion to Dismiss Plaintiff's Amended Complaint” filed on September 10, 2019. (Doc. # 6). Plaintiff, Marie David, filed a response in opposition on October 1, 2019. (Doc. # 10). Defendant filed a reply on November 12, 2019. (Doc. # 19). On review of the motion, response, reply, court file, and record, the Court finds as follows:

         Background [1]

         Plaintiff was employed by Defendant as a Registered Nurse at St. Joseph's Hospital in Tampa, Florida for five years. In August 2018, Plaintiff met with the St. Joseph's Emergency Room Manager (the “ER Manager”) and told her that she believed the ER night shift was understaffed because it had only two triage nurses, rather than three like the day shift.

         Following her objection to understaffing concerns, Plaintiff claims she was subjected to retaliatory conduct including: (1) she was passed over for a promotion; (2) her shifts were reduced; (3) she was given a verbal warning; and (4) she was placed on an “action plan” that included requirements for her to take classes and submit assignments.

         Plaintiff additionally alleges that - at some point - there was “a seminal event” in the ER waiting room. As a result of the incident, Plaintiff and other nurses anonymously reported the incident. While Plaintiff claims Defendant sought to find out who made the report, there is no allegation that Defendant ever discovered that Plaintiff was one of the complainants.

         In May 2019, seeing no improvement and feeling that Defendant had closed any opportunities for her advancement, Plaintiff resigned. On July 5, 2019, Plaintiff filed her complaint in the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. On August 12, 2019, Defendant filed a motion to dismiss Plaintiff's complaint. On August 21, 2019, Plaintiff filed an amended complaint. On August 26, 2019, Defendant removed the case to this Court.

         Legal Standard

         Motions to dismiss are designed to test the sufficiency of a plaintiff's complaint. At a minimum, a complaint must include “a short and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a). To do so, a plaintiff must explain the grounds for relief with sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010). The Court may only consider the facial sufficiency of the complaint, must accept all well-pleaded factual allegations as true, and is required to interpret the complaint “in the light most favorable to the [p]laintiff.” See Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D. Fla. 1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). While a plaintiff need not provide a substantively detailed analysis of the allegations, to survive dismissal, a complaint must include more than “the-defendant-unlawfully-harmed-me” allegations that are simply a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).


         Plaintiff claims are brought under: (1) the Florida Whistleblower Act (“FWA”), (2) the Emergency Medical Treatment and Active Labor Act (“EMTALA”), and (3) the False Claims Act (“FCA”). Defendant alleges that Plaintiff has failed to state a claim as to any of the three counts.

         Count I - Florida Whistleblower Act

         Under the FWA, “[a]n employer may not take any retaliatory personnel action against any employee because the employee has … [o]bjected to or refused to participate in, any activity, policy, or practice of the employer which is a violation of a law, rule, or regulation.” § 448.102(3), Florida Statutes. To state a claim under the FWA, a plaintiff must prove that (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) the adverse employment action was causally linked to the statutorily protected activity. Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000); Bell v. Georgia-Pacific Corp., 390 F.Supp.2d 1182, 1187-88 (M.D. Fla. 2005).

         Florida courts disagree on the scope of statutory protections under the FWA. Florida's Fourth District Court of Appeal states that an employee engages in statutorily protected activity so long as she had a good faith, objectively reasonable basis to believe that she objected to “(i) an illegal activity, policy, or practice of an employer, (ii) illegal activity of anyone acting within the legitimate scope of their employment, or (iii) illegal activity of an employee that has been ratified by the employer.” Aery v. Wallace Lincoln-Mercury LLC, 118 So.3d 904, 916 (Fla. 4th DCA 2013) (quoting Pinder v. Bahamasair Holdings Ltd.m Inc., 661 F.Supp.2d 1348, 1351 (S.D. Fla. 2009)); see Canalejo v. ADG, LLC, No. 8:14-cv-00017-T-MAP, 2015 WL 4992000, at *2 (M.D. Fla. Aug. 19, 2015). Conversely, the Second District Court of Appeal limits the FWA's protections to employees who object to actual violations of a law, rule, or regulation. See Kearns v. Farmer Acquisition Co., 157 So.3d 458, 468 (Fla. 2d DCA 2015); see Gonzalez v. GEO Group, Inc., No. 0:17-cv-62186-WPD, 2018 WL 7144484, at *2 (S.D. Fla. Dec. 21, 2018) (stating that “the majority of courts [require] … that the activity, policy or practice objected to is, in fact, in violation of a law, rule or regulation, not merely that the ...

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