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Filing # 64819548 E-Filed 11/30/2017 06:47:25 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT


IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION

STEPHANIE WOODFORD,

Plaintiff,
Case No.: 2017-CA-009522
vs. Division I

THE SCHOOL BOARD OF


HILLSBOROUGH COUNTY, FLORIDA, and
DR. ALBERTO VAZQUEZ MATOS,

Defendants.
________________________________________/

DEFENDANT THE SCHOOL BOARD OF HILLSBOROUGH COUNTY, FLORIDA’S


MOTION TO DISMISS THE COMPLAINT

Defendant The School Board of Hillsborough County, Florida (“School Board”), by its

undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.140(b), moves to dismiss

the Complaint filed by Plaintiff, Stephanie Woodford (“Plaintiff”), and states:

1. Plaintiff sues the School Board for: (1) whistle-blower retaliation in violation of

section 112.3187, Florida Statutes; and (2) defamation.

2. Although the School Board recognizes that the Court must accept all pleaded

allegations as true for the purposes of a motion to dismiss, the School Board strenuously denies

the truth of Plaintiff’s claims. Indeed, the majority of the foundational allegations of those

claims are disprovable through incontrovertible documentary evidence, which will be presented

by way of a separate motion.

3. The claims, nevertheless, fail, even as pleaded, as a matter of law.

4. Specifically, the School Board is entitled to a dismissal, with prejudice, pursuant

to Florida Rule of Civil Procedure 1.140(b)(1), of Plaintiff’s statutory whistle-blower claim

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(Count I), because Plaintiff failed to exhaust her administrative remedies before bringing suit as

required by section 112.3187, Florida Statutes (2017) (the “Whistle-blower Act”).

5. Further, the School Board is entitled to a dismissal under Florida Rule of Civil

Procedure 1.140(b)(6) of Plaintiff’s defamation claim (Count II) on sovereign immunity grounds.

MEMORANDUM OF LAW

I. PLAINTIFF’S WHISTLE-BLOWER CLAIM FAILS BECAUSE SHE DID NOT


EXHAUST HER ADMINISTRATIVE REMEDIES.

A. Administrative Exhaustion is Required.

The Whistle-blower Act mandates that where a local governmental authority – such as a

school district – has contracted with the Division of Administrative Hearings (“DOAH”) under

section 120.65, an employee must exhaust her administrative remedies by filing a complaint

with the local governmental authority within sixty (60) days of the action prohibited by the

Whistle-blower Act before proceeding with litigation:

(8) Remedies:

****

(b) Within 60 days after the action prohibited by this section, any local public
employee protected by this section may file a complaint with the appropriate
local governmental authority, if that authority has established by ordinance an
administrative procedure for handling such complaints or has contracted with
the Division of Administrative Hearings under s. 120.65 to conduct hearings
under this section. The administrative procedure created by ordinance must
provide for the complaint to be heard by a panel of impartial persons appointed by
the appropriate local governmental authority. Upon hearing the complaint, the
panel must make findings of fact and conclusions of law for a final decision by
the local governmental authority. Within 180 days after entry of a final
decision by the local governmental authority, the public employee who filed
the complaint may bring a civil action in any court of competent jurisdiction.
If the local government authority has not established an administrative
procedure by ordinance or contract, a local public employee may, within 180
days after the action prohibited by this section, bring a civil action in a court
of competent jurisdiction. For the purpose of this paragraph, the term “local
governmental authority” includes any regional, county, or municipal entity,

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special district, community college district, or school district or any political
subdivision of any of the foregoing.

§ 112.3187(8)(b), Fla. Stat. (emphasis added).

Administrative exhaustion is not a burden placed upon Plaintiff by the School Board, but

rather is a statutory prerequisite to this Court’s jurisdiction over Plaintiff’s whistle-blower claim,

which is imposed by the Florida Legislature in the Act itself. See e.g. Browne v. City of Miami,

948 So. 2d 792, 793 (Fla. 3d DCA 2006) (noting that failure of party to demonstrate exhaustion

of available administrative remedies under the Whistle-blower Act prior to filing suit would

deprive the trial court of jurisdiction); Dinehart v. Town of Palm Beach, 728 So. 2d 360, 362

(Fla. 4th DCA 1999) (affirming circuit court determination that it lacked jurisdiction over

Whistle-blower Act claims because administrative remedies had not been exhausted).

Indeed, this prerequisite is so fundamental to the maintenance of a Whistle-blower Act

claim, in the first instance, that the issue is subject to immediate certiorari review even at the

motion to dismiss stage. See Univ. of Cent. Fla. Bd. of Trs. v. Turkiewicz, 21 So. 3d 141, 145

(Fla. 5th DCA 2009) (exercising certiorari jurisdiction to review and quash order denying motion

to dismiss Whistle-blower Act claim for failure to exhaust administrative remedies because

“statutes requiring pre-suit notice and screening cannot be meaningfully enforced post-judgment

because the purpose of the pre-suit screening is to avoid the filing of the lawsuit in the first

instance.”).

B. The School Board Has Contracted with DOAH under Section 120.65 to
Conduct Administrative Hearings.

Section 120.65(6), Florida Statutes, provides: “[DOAH] is authorized to provide

administrative law judges on a contract basis to any governmental entity to conduct any hearing

not covered by this section.” Bradshaw v. Bott, 205 So. 3d 815, 819 (Fla. 4th DCA 2016). In

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Bradshaw, the Fourth District Court of Appeal concluded that the plaintiff was not required to

exhaust administrative remedies under the Whistleblower Act because, in that case, the

defendant Sheriff “did not contract with the DOAH to conduct hearings.” Id. Here, in contrast,

the School Board has indisputably contracted with DOAH, pursuant to section 120.65, to

conduct hearings in the adjudication of administrative disputes. See Affidavit of Gretchen

Saunders, attached hereto as Exhibit “A,” at ¶ 4, Ex. 1. Accordingly, the administrative

remedies provisions of the Whistle-blower Act apply and Plaintiff was required to exhaust those

remedies prior to filing this action. See § 112.3187(8)(b), Fla. Stat.

C. Plaintiff Has Not Pleaded Exhaustion, and Has Not, In Fact, Exhausted Her
Administrative Remedies.

The Complaint does not allege that Plaintiff exhausted her administrative remedies with

respect to her Whistle-blower Act claim and it is subject to dismissal on this basis alone. See

McGregor v. Bd. of Comm'rs, 674 F. Supp. 858, 861 (S.D. Fla. 1987) (dismissing Whistle-

blower claim on the basis that the complaint failed to allege that the plaintiff exhausted all

available administrative remedies prior to filing suit as required by section 112.3187(8)).

Although plaintiffs are ordinarily entitled leave to amend upon the dismissal of their first attempt

at pleading, in this case, the dismissal should be with prejudice because Plaintiff did not in fact

file the administrative complaint required by section 112.3187(8). See Exhibit A, at ¶ 6.

As a result, Plaintiff’s Whistle-blower Act claim is not properly before this Court and,

thus, fails as a matter of law. See Julian v. Bay Cnty. Dist. Sch. Bd., 189 So. 3d 310, 311−12

(Fla. 1st DCA 2016) (affirming summary judgment against the plaintiff for failing to exhaust

administrative remedies under the Whistle-blower Act); Univ. of Cent. Fla. Bd. of Trs. v.

Turkiewicz, 21 So. 3d 141, 142 (Fla. 5th DCA 2009) (quashing trial court’s order denying the

defendant’s motion to dismiss complaint filed under Whistle-blower Act where there was no

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dispute that the plaintiff failed to comply with statutory conditions precedent set forth in section

112.3187(8) before filing suit); Schultz v. Sch. Bd. of Miami-Dade Cty., No. 00-3496-CIV-

MORE, 2002 U.S. Dist. LEXIS 27869, at *28 (S.D. Fla. Sep. 19, 2002) (entering summary

judgment in favor of defendant school board were plaintiffs failed to file a written complaint

within sixty (60) days of the adverse action as mandated by section 112.3187(8)(b)); Dinehart v.

Town of Palm Beach, 728 So. 2d 360, 362 (Fla. 4th DCA 1999) (affirming summary judgment

for failure to exhaust administrative remedies under the Whistle-blower Act); City of Miami v.

Del Rio, 723 So. 2d 299, 300 (Fla. 3d DCA 1998) (reversing jury verdict in favor of the plaintiff

on the basis that the plaintiff failed to exhaust his administrative remedy under section

112.3187(8)(b) before filing suit). Count I must be dismissed, with prejudice.

II. PLAINTIFF’S DEFAMATION CLAIM AGAINST THE SCHOOL BOARD IS


BARRED BY SOVEREIGN IMMUNITY.

Plaintiff’s defamation claim arises out of her allegation that School Board employee Dr.

Alberto Vazquez Matos (“Dr. Vazquez”) falsely told the Tampa Bay Times that Plaintiff was

fired for violations of School Board policy covering standards of ethical conduct. (Compl. at ¶¶

42, 53). Plaintiff further alleges that “[w]hen Vazquez caused to be published the false

statements he did so knowingly and intentionally, with the primary motive of gratifying ill

will, hostility, and a desire to harm Woodford.” (Compl. at ¶ 56) (emphasis added). Although

from the state of the pleading it is unclear as to whether Plaintiff is attempting to bring the

defamation claim against Dr. Vazquez and the School Board jointly, just Dr. Vazquez, or just the

School Board, to the extent she is suing the School Board for defamation, her claim is barred on

sovereign immunity grounds.

Specifically, section 768.28(9)(a), Florida Statutes provides:

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The state or its subdivisions shall not be liable in tort for the acts or
omissions of an officer, employee, or agent committed while acting outside the
course and scope of her or his employment or committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property.

The School Board, thus, could not be liable for defamation based on the Plaintiff’s own, albeit

specious, allegation that Dr. Vazquez acted in bad faith and with a malicious purpose to harm

Plaintiff. See Rudloe v. Karl, 899 So. 2d 1161, 1164 n.2 (Fla. 1st DCA 2005) (finding that

sovereign immunity barred recovery against defendant FSU for defamation claim that asserted

malice on the part of a university employee); Kirker v. Orange Cty., 519 So. 2d 682, 684−85

(Fla. 5th DCA 1988), citing § 768.28(9)(a), Fla. Stat. (stating that “[t]he very need to allege and

prove willful, wanton or malicious conduct to sustain an action against [an employee] makes the

case non-actionable against the county because of the statute which continues to surround

governmental units with the shield of sovereign immunity in the face of such conduct.”).

Accordingly, to the extent Plaintiff is attempting to bring a defamation claim against the

School Board in the Complaint, it must be dismissed on sovereign immunity grounds.

WHEREFORE, Defendant The School Board of Hillsborough County, Florida

respectfully requests that this Court grant its Motion to Dismiss the Complaint and order such

other relief as this Court deems just and proper.

/s/ Deborah H. Oliver


Deborah H. Oliver, Esq.
Florida Bar No. 485111
Primary: Deborah.Oliver@arlaw.com
Secondary: Madeline.Algarin@arlaw.com

Chelsea C. Harrison, Esq.


Florida Bar No. 98536
Primary: Chelsea.Harrison@arlaw.com
Secondary: Lisa.Stallard@arlaw.com

ADAMS AND REESE LLP

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101 East Kennedy Boulevard, Suite 4000
Tampa, FL 33602
(813) 402-2880 (Telephone)
(813) 402-2887 (Facsimile)
Attorneys for Defendant The School Board of
Hillsborough County, Florida

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 30th day of November, 2017, a copy of the foregoing

has been electronically filed with the Clerk of Court through the Florida Courts E-Filing Portal,

which will send a Notice of Electronic Filing to all parties of record.

/s/ Deborah H. Oliver


Attorney

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