Harris v. Dist. Bd. Trustees of Polk Community College, 96-2008-Civ-T-17-A.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtKovachevich
Citation9 F.Supp.2d 1319
PartiesMichael HARRIS and Charles Pottinger, Plaintiffs, v. The DISTRICT BOARD OF TRUSTEES OF POLK COMMUNITY COLLEGE; David Buckley, Individually and Officially as Director, Division of Career and Special Programs, Polk Community College; Don Shattler, Individually and Officially as Manager, Criminal Justice Program, Polk Community College; Marilyn Vanleer Peck, Individually and Officially as President, Polk Community College, Defendants.
Docket NumberNo. 96-2008-Civ-T-17-A.,96-2008-Civ-T-17-A.
Decision Date18 June 1998
9 F.Supp.2d 1319
Michael HARRIS and Charles Pottinger, Plaintiffs,
v.
The DISTRICT BOARD OF TRUSTEES OF POLK COMMUNITY COLLEGE; David Buckley, Individually and Officially as Director, Division of Career and Special Programs, Polk Community College; Don Shattler, Individually and Officially as Manager, Criminal Justice Program, Polk Community College; Marilyn Vanleer Peck, Individually and Officially as President, Polk Community College, Defendants.
No. 96-2008-Civ-T-17-A.
United States District Court, M.D. Florida, Tampa Division.
June 18, 1998.

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COPYRIGHT MATERIAL OMITTED

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Mark Frederick Kelly, Kelly & McKee, P.A., Tampa, FL, for Michael Harris, Charles Pottinger.

Mark E. Levitt, Thomas R. Brice, Jr., Allen, Norton & Blue, P.A., Tampa, FL, for District Board of Trustees of Polk Community College, David Buckley, Don Shattler.

Thomas R. Brice, Jr., Allen, Norton & Blue, P.A., Tampa, FL, for Maryly Vanleer Peck.

ORDER ON DEFENDANTS' MOTION TO DISMISS COUNT I OF THE THIRD AMENDED COMPLAINT AS TO PRESIDENT PECK, AND COUNTS II AND III OF THE THIRD AMENDED COMPLAINT AS TO ALL NAMED DEFENDANTS AND ORDER ON PLAINTIFFS' MOTION TO AMEND THIRD AMENDED COMPLAINT

KOVACHEVICH, District Judge.


This cause is before the Court on Defendants' Motion to Dismiss Count I of Plaintiffs' Third Amended Complaint as to President Peck and Counts II and III as to All Named Defendants (Docket No. 23), Defendants' Memorandum of Law in Support of Defendants' Motion to Dismiss Plaintiffs' Third Amended Complaint (Docket No. 24), Plaintiffs' Memorandum in Opposition to Motion to Dismiss Third Amended Complaint (Docket No. 28), Plaintiffs' Motion to Amend Third Amended Complaint (Docket No. 29), and Defendants' Memorandum in Opposition to Plaintiffs' Motion to Amend Third Amended Complaint (Docket No. 30).

Page 1322

DEFENDANTS' MOTION TO DISMISS COUNT I OF THE THIRD AMENDED COMPLAINT AS TO PRESIDENT PECK, AND COUNTS II AND III OF THE THIRD AMENDED COMPLAINT AS TO ALL NAMED DEFENDANTS

POSTURE OF THE CASE

The Third Amended Complaint in this action was filed on November 25, 1997. The relevant facts, as pled and accepted as true for the purposes of this motion only, are summarized as follows:

Defendant, District Board of Trustees of Polk Community College ("College") employed Plaintiffs, Michael Harris ("Harris") and Charles Pottinger ("Pottinger") as coordinators in the Criminal Justice Program. At all material times, Defendant Maryly Vanleer Peck ("Peck") was President of Polk Community College, Defendant David Shattler ("Shattler") was the College's Criminal Justice Manager, and David Buckley ("Buckley") was the College's Director of the Division of Career and Special Programs.

Plaintiffs allege that from January, 1994 to March, 1995, they made repeated yet unsuccessful attempts to prompt Defendants Buckley and Shattler to address the alleged irregularities and deviations from established law and policy occurring within the College's Criminal Justice Training Program ("Program"). On or about March 22, 1995, Plaintiffs, together with a third Coordinator, Frank Sypnewski, jointly presented a memorandum to Shattler reporting the alleged violations of Florida statutes and regulations, and their allegedly unsuccessful attempts to rectify the problems.

Plaintiffs further allege that when Shattler took no action in response to the memorandum, plaintiffs issued the same memorandum to the Florida Department of Law Enforcement ("FDLE"). Plaintiffs allege that immediately after Defendant Buckley learned that FDLE received the memorandum Buckley held a meeting with Plaintiffs, Sypnewski, and Shattler; threatened to fire the Plaintiffs because of the memorandum; and stated: "I have fired a complete department before and I will do it again if this is not resolved."

After the complaints were lodged with the FDLE and during the alleged FDLE investigation of Defendant College's Program, Buckley discharged Plaintiff Harris from employment. Buckley explained to Harris that his position was eliminated for budgetary reasons. Plaintiffs allege, however, that subsequent newspaper accounts along with the filling of Harris' position at a higher rate of salary show that budgetary considerations were not the true reason for Harris' dismissal. Plaintiffs allege that the true reason for Harris' discharge was in retaliation for sending the FDLE memorandum.

Further, Plaintiffs allege that subsequent to the distribution of the memorandum, Buckley and Shattler subjected Plaintiff Pottinger to a series of retaliatory acts including unmerited criticism; verbal harassment; a search through Pottinger's personal papers and a diary without notice, permission, or cause; the denial of Pottinger's request for continuing education; and an unjustified negative performance evaluation that recommended Pottinger's termination.

The Court takes notice of an ambiguously worded sentence in the Third Amended Complaint referring to Pottinger's negative performance evaluation, the recommendation for termination, and the reference to the memorandum. (Docket No. 19, ¶ 13). Though vaguely worded, it appears to the Court that the Plaintiffs allege that Pottinger's negative performance evaluation directly referenced the memorandum as a cause for the recommendation of Pottinger's termination. In addition, Plaintiffs allege that Shattler told Pottinger that he (Pottinger) was placed on probation until August, 1995 because he authorized the memorandum that prompted an FDLE investigation.

On March 22, 1996, Buckley summoned Pottinger to his office and allegedly told Pottinger that he was going to be terminated because of the memorandum that prompted the FDLE investigation. Plaintiffs allege that Buckley gave Pottinger the opportunity to resign in exchange for a good recommendation and the opportunity to teach at the College as an adjunct. Further, Plaintiffs allege that Buckley threatened Pottinger with negative evaluations that would hinder Pottinger's ability to teach in his field if Pottinger did not resign, again referring to

Page 1323

the memorandum sent to FDLE. When Pottinger declined to resign, Plaintiffs allege that Buckley handed Pottinger the negative evaluation and terminated his employment.

Plaintiffs also allege that the third Coordinator, and joint author of the memorandum, Sypnewski, was subjected to the same harassment and interview with Buckley at which time he elected to resign. Plaintiffs allege that during Pottinger's exit interview, Defendant Peck alluded to the memorandum as a negative factor contributing to Pottinger's termination.

Finally, Plaintiffs allege that on or around May 6, 1996 and May 19, 1996, Defendant Buckley published false and defamatory statements in a local newspaper indicating that Harris and Pottinger were not only responsible for rule violations reported to the FDLE but that they were terminated as a result of the violations.

STANDARD OF REVIEW

Under Conley v. Gibson, a district court should not dismiss a complaint for "failure to state a claim unless it appears beyond a doubt the Plaintiff can prove no set of facts" that would entitle the Plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Bracewell v. Nicholson Air Services, Inc., 680 F.2d 103, 104 (11th Cir.1982). To survive a motion to dismiss, a Plaintiff may not merely "label" his or her claims. Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996). At a minimum the Federal Rules of Civil Procedure require a "short plain statement of the claim" that will "give the Defendant fair notice of what the Plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99 (quoting Fed.R.Civ.P. 8(a)(2)).

In deciding a motion to dismiss, a court can examine only the four (4) corners of the complaint. See Rickman v. Precisionaire, Inc., 902 F.Supp. 232 (M.D.Fla.1995). The threshold sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low. See Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted). Also, a court must accept a Plaintiff's well pled facts as true and construe the complaint in the light most favorable to the Plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Howry v. Nisus, Inc., 910 F.Supp. 576 (M.D.Fla.1995). However, when, on the basis of a dispositive issue of law, no construction of the factual allegations of a complaint will support the cause of action, dismissal of the complaint is appropriate. See Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991); see also Powell v. United States, 945 F.2d 374 (11th Cir.1991).

DISCUSSION

The Third Amended Complaint contains the following causes of action against the College, Peck, Shattler and Buckley: Count I — Civil Rights Action, violation of 42 U.S.C. § 1983; Count II — violation of Florida Statutes § 112.3187(4)(a) and (b) (1996); and Count III — Invasion of Privacy Article I, § 23 of the Florida Constitution. The Court will discuss the grounds for dismissal and other issues raised by the defendants in the order they appear in their memorandum.

Count I: Section 1983

A. Failure to State a Claim

Defendant Peck moves in her individual and official capacities to dismiss Count I for failure to state a claim. Three elements must be satisfied in order to state a prima facie case for a violation of plaintiffs' First Amendment rights: (1) defendant acted under the color of state law; (2) defendant deprived plaintiffs of their First Amendment rights; and (3) plaintiffs' rights were protected by the United States Constitution. Al Coletta v. The City of North Bay Village, 962 F.Supp. 1486 (S.D.Fla.1997) (citing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)).

This Court has previously held that a higher pleading standard is required for cases involving government officials. Andre v....

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  • Allocco v. City of Coral Gables, No. 99-2443-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • August 23, 2002
    ...their termination. In support of this position, the plaintiffs rely on Harris v. District Board of Trustees of Polk Community College, 9 F.Supp.2d 1319 (M.D.Fla.1998), where the court held that the 180-day period began to run when the terminated plaintiffs first learned that they may have b......
  • Bennett v. City of Holyoke, No. CIV.A. 99-30015-MAP.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 7, 2002
    ...(Tennessee statute does not ascribe liability to individual supervisors); Harris v. Dist. Bd. of Trusts. of Polk Cmty. Coll., 9 F.Supp.2d 1319 (M.D.Fla.1998) (Florida statute does not create individual liability); Fry v. McCall, 945 F.Supp. 655, 665-666 (New York statute does not apply to i......
  • Bennett v. City of Holyoke, Civil Action No. 99-30015-MAP (D. Mass. 11/7/2002), Civil Action No. 99-30015-MAP.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 7, 2002
    ...2002) (Tennessee statute does not ascribe liability to individual supervisors); Harris v. Dist. Bd. of Trusts. of Polk Cmty. Coll., 9 F. Supp.2d 1319 (M.D.Fla. 1998) (Florida statute does not create individual liability); Fry v. McCall, 945 F. Supp. 655, 665-666 (New York statute does not a......
  • Lane v. Mra Holdings, LLC, No. 6:01-CV-1493-Orl-22KRS.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • November 26, 2002
    ...of the publicized material and the false light in which it would be placed. See Harris v. Dist. Bd. of Trs. of Polk Cmty. College, 9 F.Supp.2d 1319, 1329 (M.D.Fla.1998); See also Section 652(e) of the Restatement (Second) of With regards to the first element, although a reasonable jury coul......
  • Request a trial to view additional results
7 cases
  • Allocco v. City of Coral Gables, No. 99-2443-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • August 23, 2002
    ...their termination. In support of this position, the plaintiffs rely on Harris v. District Board of Trustees of Polk Community College, 9 F.Supp.2d 1319 (M.D.Fla.1998), where the court held that the 180-day period began to run when the terminated plaintiffs first learned that they may have b......
  • Bennett v. City of Holyoke, No. CIV.A. 99-30015-MAP.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 7, 2002
    ...(Tennessee statute does not ascribe liability to individual supervisors); Harris v. Dist. Bd. of Trusts. of Polk Cmty. Coll., 9 F.Supp.2d 1319 (M.D.Fla.1998) (Florida statute does not create individual liability); Fry v. McCall, 945 F.Supp. 655, 665-666 (New York statute does not apply to i......
  • Bennett v. City of Holyoke, Civil Action No. 99-30015-MAP (D. Mass. 11/7/2002), Civil Action No. 99-30015-MAP.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 7, 2002
    ...2002) (Tennessee statute does not ascribe liability to individual supervisors); Harris v. Dist. Bd. of Trusts. of Polk Cmty. Coll., 9 F. Supp.2d 1319 (M.D.Fla. 1998) (Florida statute does not create individual liability); Fry v. McCall, 945 F. Supp. 655, 665-666 (New York statute does not a......
  • Lane v. Mra Holdings, LLC, No. 6:01-CV-1493-Orl-22KRS.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • November 26, 2002
    ...of the publicized material and the false light in which it would be placed. See Harris v. Dist. Bd. of Trs. of Polk Cmty. College, 9 F.Supp.2d 1319, 1329 (M.D.Fla.1998); See also Section 652(e) of the Restatement (Second) of With regards to the first element, although a reasonable jury coul......
  • Request a trial to view additional results

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