UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MATHEW SELOVER,

Plaintiff,

v. Case No. 3:20cv4698-TKW-HTC

ESCAMBIA COUNTY BOARD OF

COMMISSIONERS and RAYME

EDLER,

Defendants.

_______________________________/

ORDER ON MOTIONS TO DISMISS

This case is before on the Court on Defendants’ motions to dismiss (Docs. 31, 

32) and Plaintiff’s responses in opposition (Docs. 36, 37). Upon due consideration 

of these filings, the Court finds that the motions are due to be granted in part and 

denied in part for the reasons that follow.

Facts (as Alleged in the Amended Complaint)

Plaintiff worked as a paramedic for Defendant Escambia County’s emergency 

medical services (EMS) department from 2012 until April 2020 when he was 

“forced” to resign. Plaintiff was a Shift Captain for the last three and a half years of 

his employment, and aside from the events complained of in this case, he had never 

been disciplined for inappropriate work misconduct.

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Defendant Rayme Edler started working as the County’s Medical Director 

around April 2018. As Medical Director, Dr. Edler is responsible for the medical 

performance of all the County’s emergency medical technicians (EMTs) and 

paramedics.

In March 2019, Plaintiff reported several instances of misconduct by other 

County EMS employees to his superiors. First, he reported that Glenda Owens (a 

close friend of Dr. Edler’s) and Amanda Frando had called in a “false delay” so they 

could take a smoke break; second, he reported that Shawn Hoopaugh made 

inappropriate sexual comments towards another employee; and third, he reported 

Hoopaugh again after Hoopaugh angrily confronted him a few days after he reported 

the inappropriate comments.

On April 23, 2019, County EMS Commander James Maddrey told Plaintiff 

that he was required to attend a quality assurance (QA) meeting called by Dr. Edler 

that was going to start in about fifteen minutes. Maddrey did not tell Plaintiff the 

meeting’s purpose or the topics for discussion.

Immediately upon learning of the meeting, Plaintiff voiced his concerns to the 

County’s human resources (HR) department about having received no prior notice 

of the meeting and no explanation of the meeting’s purpose. At first, an HR 

representative told Plaintiff not to attend the meeting, but later, HR Director Eric 

Kleinert told Plaintiff that he should attend and that the meeting was non-disciplinary 

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in nature. Plaintiff attended the meeting and brought a union representative as a 

witness.

When Plaintiff arrived at the meeting, he saw that the QA board was 

comprised of Dr. Edler, Maddrey (who only stayed for part of the meeting), Captain 

Craig Ammons, Hoopaugh, and Bill Hopkins. Plaintiff’s reports of Hoopaugh’s 

misconduct were still open and unresolved at the time of the QA meeting, and 

Hopkins was previously Plaintiff’s subordinate and was Dr. Edler’s close friend and 

confidant.

At the start of the meeting, Dr. Edler announced that the meeting was nondisciplinary in nature. At the end of the meeting, the QA board made no 

recommendations for remediation, retraining, or performance improvement.

On May 1, 2019, Plaintiff filed a complaint against Dr. Edler with HR. The 

complaint expressed five concerns Plaintiff had about the QA meeting: (1) he did 

not have sufficient prior notice of the meeting, (2) the QA board was not impartial 

toward him, (3) Dr. Edler brought up issues that were almost a year old or that had 

already been resolved, (4) the QA board was not made up of the representatives who 

usually sit on the board, and (5) the meeting was retaliatory against him for his 

reporting Owens and Frando.

Plaintiff kept working for the County as a paramedic with no restrictions on 

his employment for several weeks after the QA meeting.

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On May 13, 2019, during a meeting with HR (also attended by EMS Chief 

Leon Salter and Interim Public Safety Director John Dosh), Dr. Edler learned that 

Plaintiff had filed a complaint against her and she “suddenly decided” that Plaintiff 

needed to be disciplined for the issues discussed at the QA meeting and that he could 

not work a paramedic under her license. Dosh told Dr. Edler that her conduct 

appeared to be retaliatory, but she kept pushing for disciplinary action to be taken 

against Plaintiff.

On May 15, 2019, Dr. Edler placed Plaintiff on administrative duty, meaning 

that he could not work as a paramedic and he also could not work overtime. Plaintiff 

received no prior notice of this proposed discipline and no proper opportunity to 

defend against it.

The day after Dr. Edler placed Plaintiff on administrative duty, she filed a 

complaint against him with the Florida Department of Health (DOH), in which she 

referred to issues not previously reported and nearly a year old. A third-party 

physician with emergency-medicine experience found Dr. Edler’s allegations 

against Plaintiff to be unfounded, and DOH took no action against Plaintiff based on 

Dr. Edler’s complaint.

Following the May 13 meeting, Interim County Administrator Matt Coughlin 

told Dosh that a performance improvement plan (PIP) needed to be completed to get 

Plaintiff back to his full position as a paramedic. Dosh requested a PIP from Dr. 

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Edler, but instead of providing a PIP, she responded with the suggestions that 

Plaintiff be demoted (from Shift Chief to EMT) or terminated. 

Dosh and Coughlin had due process concerns regarding the situation, so 

Coughlin asked Deputy County Attorney Charles V. Peppler for a legal opinion as 

to the extent of Dr. Edler’s authority to discipline Plaintiff. Peppler opined in a legal 

memorandum that Dr. Edler had no authority to demote, terminate, or otherwise 

discipline Plaintiff. This, however, did not deter Dr. Edler from continuing to restrict 

Plaintiff’s duties.

After Plaintiff was restricted to administrative duties, he complained to 

County HR Representative Edward Spainhower that he was being improperly 

disciplined. Spainhower investigated the complaint and issued a report in June 2019 

in which he (1) concluded that Dr. Edler may have engaged in unlawful harassment 

of Plaintiff, (2) expressed his own due process concerns regarding the situation, and 

(3) recommended that Plaintiff be returned to “operational status” (rather being than 

restricted to administrative duties) as soon as possible. 

Neither Dr. Edler nor the County implemented Spainhower’s 

recommendations, and even though Plaintiff called HR about every three weeks to 

check the status of his complaint, he did not learn about Spainhower’s report (or its 

recommendation that he be promptly returned to operational status) until November 

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2019 when he requested a copy of his personnel file from the County Attorney’s 

office.

In July 2019, Salter prepared—and Dosh signed off on—a PIP for Plaintiff 

because Dr. Edler had not prepared one. The PIP was not implemented until August 

2019.

The PIP required Plaintiff to work under the supervision of a Field Training 

Officer (FTO) for 90 days. Plaintiff worked more than 90 days under a FTO and 

met all of the PIP’s conditions with a satisfactory performance, but he was still not 

returned to operational status because Dr. Edler and the County did not to follow the 

PIP.

In August 2019, Plaintiff started working a few shifts for the lifeguard 

ambulance service in the Santa Rosa County EMS department. When Dr. Edler 

learned of this, she contacted the Santa Rosa County Medical Director and expressed 

her opinion that Plaintiff was not qualified to work as a paramedic. The Santa Rosa 

County Medical Director investigated Plaintiff and came to the opposite conclusion.

On December 12, 2019, the County’s new HR Director, Jana Still, issued a 

report finding—without “adequate explanation or analysis” and contrary to 

Spainhower’s report—that Dr. Edler had not committed retaliation and that Plaintiff 

should continue to work under the supervision of an FTO. Five days later, Plaintiff 

sought to appeal Still’s report, but he was told by HR—and the County Attorney’s 

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office confirmed—that he had no further internal appeal rights and that his only 

remedy was with the courts.

In April 2020, after being told by Maddery that he could no longer attend 

supervisor meetings because of his work restrictions, Plaintiff resigned from his 

position with the County. He claims that he was “forced” to do so because, as a 

result of Defendants’ “refus[al] to act, and provide appropriate due process, [he] . . . 

languish[ed] in a demoted position for more than ten (10) months.”

Dr. Edler faced no negative consequences for her handling of Plaintiff’s 

situation.

This is not the first time that Dr. Edler has been the subject a complaint by a 

County EMS employee, and just like this case, Dr. Edler filed complaints with DOH 

against the other complainants and the County “effectively buried the[ir] 

complaints” against Dr. Edler.

Procedural History

In January 2020, Plaintiff sued Dr. Elder (in her official and individual 

capacities) and the County in state court, alleging Fourteenth Amendment due 

process and First Amendment retaliation claims under 42 U.S.C. §1983 and a 

whistleblower claim under §448.102, Fla. Stat. Defendants thereafter removed the 

case to this Court based on federal question (and supplemental) jurisdiction.

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The County responded to the complaint with a motion to dismiss under Fed. 

R. Civ. P. 12(b)(6). The motion argued that §448.102 did not apply to public 

employers such as the County and that Plaintiff failed to allege sufficient facts to 

establish municipal liability under §1983. Dr. Edler also filed a Rule 12(b)(6) 

motion to dismiss in which she joined the County’s arguments with respect to the 

claims against her in her official capacity and asserted qualified immunity with 

respect to the claims against her in her individual capacity.1

The motions to dismiss were denied as moot after Plaintiff was granted leave 

to file an amended complaint. The amended complaint (Doc. 20) added allegations 

about Plaintiff’s “forced resignation” in April 2020 (among other things) and 

asserted seven counts: procedural due process (Counts I and II), substantive due 

process (Counts III and IV), and First Amendment retaliation (Counts V and VI)

under §1983; and retaliation under Florida’s Public Sector Whistleblower Act 

(PWA)2(Count VII). Counts I, III, V, and VII are against both Dr. Edler in her 

official capacity and the County, and Counts II, IV and VI are only against Dr. Edler 

in her individual capacity.

1

 Dr. Edler unsuccessfully sought a stay of discovery pending disposition of her claim of 

qualified immunity. See Doc. 33.

2

 §§112.3187 - .31895, Fla. Stat.

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The County and Dr. Edler responded to the amended complaint with separate 

motions to dismiss under Rule 12(b)(6). Plaintiff conceded in his responses to the 

motions that the substantive due process and First Amendment retaliation claims in 

Counts III through VI should be dismissed. Accordingly, the Court only needs to 

consider whether the procedural due process claims in Counts I and II and the PWA

claim in Count VII are adequately pled.

Rule 12(b)(6) Standard

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). The “plausibility standard” requires a showing 

of “more than a sheer possibility” that the defendants are liable on the claim. Id. at 

678. Legal “labels and conclusions,” unsupported by factual allegations, will not 

suffice. Id. (quoting Twombly, 550 U.S. at 555). In deciding on motions to dismiss, 

the Court considers only the complaint, though this includes any exhibits attached 

to the complaint and any documents incorporated into it by reference. Thaeter v. 

Palm Beach Cty. Sheriff’s Office, 449 F.3d 1342, 1352 & n.7 (11th Cir. 2006). The 

Court accepts the complaint’s well-pleaded factual allegations as true and construes 

them, along with the reasonable inferences they create, in the light most favorable 

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to the plaintiff. Iqbal, 556 U.S. at 679; Crespo v. Coldwell Banker Mortg., 599 F. 

App’x 868, 874 (11th Cir. 2014).

Analysis

The remaining claims are those in Counts I, II and VII. As noted above, 

Counts I and VII are against both Dr. Edler (in her official capacity) and the County, 

and Count II is only against Dr. Edler in her individual capacity. 

It is well-established “when an [public official] is sued under Section 1983 in 

his or her official capacity, the suit is simply ‘another way of pleading an action 

against an entity of which [the official] is an agent.’” Busby v. City of Orlando, 931 

F.2d 764, 776 (11th Cir. 1991) (quoting Kentucky v. Graham, 473 U.S. 159, 165 

(1985)). Accordingly, the official capacity claim against Dr. Edler in Count I is due 

to be dismissed as “duplicative and superfluous.” Brown v. Neumann, 188 F.3d 

1289, 1290 n.1 (11th Cir. 1999). Likewise, because the PWA prevents “agencies” 

from taking retaliatory actions against public employees who report violations of the

law by their employers, see §112.3187(2), (4), Fla. Stat., the PWA claim in Count 

VII against Dr. Elder in her official capacity is also due to be dismissed as 

duplicative and superfluous. 

Accordingly, the only remaining claims are the procedural due process claims 

against the County (Count I) and Dr. Edler in her individual capacity (Count II) and 

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the PWA claim against the County (Count VII). Each claim will be discussed in 

turn.

Count I

The County argues that Count I should be dismissed because (1) the amended 

complaint fails to establish municipal liability under Monell v. Department of Social 

Services, 436 U.S. 658 (1978), by identifying an unlawful policy, practice, or custom 

that was the moving force behind Plaintiff’s constitutional injury, and (2) no 

constitutional violation occurred because the County’s HR policies and the 

collective bargaining agreement (CBA) provide Plaintiff a post-deprivation means 

to redress the alleged due process violations. In response, Plaintiff argues that he 

plausibly alleged that (1) the County had a custom and practice of allowing Dr. Edler 

to violate employees’ due process rights or that it ratified her due process violations 

through inaction and the adoption of Still’s report, and (2) procedural due process 

violations occurred because, contrary to the County policies and the CBA, he was 

not provided a meaningful opportunity to be heard before or after the actions taken 

by Dr. Edler. The Court agrees with Plaintiff. 

On the first point, municipal liability can be established in a variety of ways: 

A municipality can be liable for an official policy enacted by its 

legislative body (e.g., an ordinance or resolution passed by a city 

council). Municipal liability may also attach if final policymakers have 

acquiesced in a longstanding practice that constitutes the entity’s 

standard operating procedure. And a municipality can be held liable on 

the basis of ratification when a subordinate public official makes an 

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unconstitutional decision and when that decision is then adopted by 

someone who does have final policymaking authority.

Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016) (citations and 

internal quotation marks omitted). Here, Plaintiff has plausibly alleged that the 

County—through high-ranking officials3—ratified the due process violations 

allegedly committed by Dr. Edler because it did not reverse her actions despite 

having good reason to do so based on Peppler’s legal memorandum and 

Spainhower’s report. Moreover, the amended complaint plausibly alleged that the 

County’s ratification of Dr. Edler’s conduct was the moving force behind the

violations of Plaintiff’s procedural due process rights because had the County 

followed Peppler’s legal memorandum or Spainhower’s report, Plaintiff would have 

been promptly returned to operational status.

On the second point, “[t]o state a claim for a violation of procedural due 

process under §1983, a claimant must allege three elements: (1) that he was deprived 

of a constitutionally-protected liberty or property interest, (2) through state action, 

(3) as a result of constitutionally-inadequate process.” Evans v. Rhodes, 735 F. 

3

 The Court has not overlooked the County’s argument that Plaintiff failed to specifically 

identify the final policymaker who allegedly ratified unconstitutional action, but that is not 

necessary to withstand a motion to dismiss. See Hoefling, 811 F.3d at 1280. Moreover, contrary 

to the County’s argument, the amended complaint plausibly alleges that Dr. Edler’s actions were 

ratified by persons who could be considered final policymakers—namely, the HR director (Still), 

the interim county administrator (Couglin), and the individual in the County Attorney’s office who 

told Plaintiff that he had no right of internal appeal.

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App’x 986, 988 (11th Cir. 2018) (citing Grayden v. Rhodes, 345 F.3d 1225, 1232 

(11th Cir. 2003)). Here, the County only argues that the amended complaint fails to 

adequately allege the third element. 

The County’s argument that any deprivation suffered by Plaintiff was not the 

result of constitutionally-inadequate process rests largely on the premise that the HR 

policies and CBA attached to the complaint contradict Plaintiff’s allegations that he 

was denied proper means of redress, as well as on the unsupported—and 

unpersuasive—assertion that he needed to attach the writing that he alleges informed 

him he could not file an internal appeal. The Court rejects this argument because 

Plaintiff clearly—and plausibly—alleges that although HR policies and CBA 

provisions existed to protect his due process rights, they were not followed. The 

County’s arguments on this point are better suited for the summary judgment stage 

of the case, not the motion to dismiss stage.

Accordingly, the County’s motion to dismiss Count I is due to be denied.

Count II

Dr. Edler argues that Count II should be dismissed because (1) she is entitled 

to qualified immunity, and (2) as argued by the County,4 no procedural due process 

4

 Although Dr. Edler adopted the County’s argument in its motion to dismiss Count I, she 

also made the separate arguments that no due process violation occurred because (1) Plaintiff was 

entitled to a hearing at DOH on the complaint she filed after the QA meeting and (2) she was not 

responsible for providing due process protections. The Court rejects these arguments because they 

were raised in a perfunctory manner and are beyond the proper scope of a motion to dismiss in any 

event.

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violation occurred. The second point is rejected for the reasons stated above, and 

the first point is rejected for the reasons that follow.

“Qualified immunity protects government officials performing discretionary 

functions from suits in their individual capacities unless their conduct violates 

clearly established statutory or constitutional rights of which a reasonable person 

would have known.” Santana v. Miami-Dade County, 688 F. App’x 763, 767 (11th 

Cir. 2017) (quoting Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003)) (internal 

quotation marks omitted). The party asserting qualified immunity (here, Dr. Edler) 

has the burden to establish that the allegedly unconstitutional conduct occurred while 

she was acting within her discretionary authority. Harbert Int’l, Inc. v. James, 157 

F.3d 1271, 1281 (11th Cir. 1998).

“To establish that the challenged actions were within the scope of his 

discretionary authority, a defendant must show that those actions were (1) 

undertaken pursuant to the performance of his duties, and (2) within the scope of his 

authority.” Id. “A government official proves that he acted within the purview of 

his discretionary authority by showing objective circumstances which would compel 

the conclusion that his actions were undertaken pursuant to the performance of his 

duties and within the scope of his authority.” Sims v. Metro. Dade Cty., 972 F.2d 

1230, 1236 (11th Cir. 1992) (internal quotations omitted); see also Holloman ex rel. 

Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004) (“Instead of focusing 

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on whether the acts in question involved the exercise of actual discretion, we assess 

whether they are of a type that fell within the employee’s job responsibilities. Our 

inquiry is two-fold. We ask whether the government employee was (a) performing 

a legitimate job-related function (that is, pursuing a job-related goal), (b) through 

means that were within his power to utilize.”).

Under Florida law, a county medical director is required to “supervise and 

assume direct responsibility for the medical performance of the [EMTs] and 

paramedics operating for that [EMS] system.” §401.265(1), Fla. Stat. The medical 

director’s duties include “advising, consulting, training, counseling, and overseeing 

of services, including appropriate quality assurance,” but they do not include 

“administrative and managerial functions.” Id. Additionally, a medical director is 

authorized to establish a QA committee to assess the medical performance of the 

EMTs and paramedics under her supervision and to document and report any 

disciplinary concerns about them to DOH. §401.265(2), Fla. Stat.; see also Fla. 

Admin. Code R. 64J-1.004(3)(b) (providing that the medical director’s duties and 

responsibilities include “[d]evelop[ing] and implement[ing] a patient care quality 

assurance system to assess the medical performance of paramedics and EMTs”).

It is clear from these statutes that Florida law draws clear lines between 

“appropriate quality assurance” (within the medical director’s discretionary 

authority) and “administrative and managerial functions” (beyond that authority) 

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and between bringing paramedics potentially in need of disciplinary action to the 

DOH’s attention (the medical director’s role) and taking disciplinary action against 

such paramedics (DOH’s role). Here, although the amended complaint refers to the 

short notice on which the QA meeting was called and the makeup of the QA 

committee (which are matters that likely fall within Dr. Edler’s discretionary 

authority), the claims asserted by Plaintiff arise from the restrictions Dr. Edler 

imposed upon Plaintiff’s employment weeks later in retaliation for his HR complaint 

about her and the subsequent actions she took contrary to County policy and the 

CBA to maintain these restrictions over the course of months. These latter actions 

are—as Peppler opined—administrative and managerial functions that are not within 

Dr. Edler’s authority to take.

The Court did not overlook the 2007 declaratory statement5cited by Dr. Edler 

in which DOH opined that medical directors have the authority to “condition, limit, 

5

 The purpose of a declaratory statement is “‘to enable members of the public to definitively 

resolve ambiguities of law arising in the conduct of their daily affairs or in the planning of their 

future affairs’ and ‘to enable the public to secure definitive binding advice as to the applicability 

of agency-enforced law to a particular set of facts.’” Dep’t. of Bus. & Prof’l. Reg. v. of Pari–

Mutuel Wagering v. Inv. Corp. of Palm Beach, 747 So.2d 374, 382 (Fla.1999) (quoting Patricia A. 

Dore, Access to Florida Administrative Proceedings, 13 Fla. St. U. L. Rev. 965, 1052 (1986)). 

Declaratory statements are precedential in the sense that “the reasoning employed by the agency 

in support of a declaratory statement may offer useful guidance to others who are likely to interact 

with the agency in similar circumstances” and “[a]nother party can expect the agency to apply the 

rationale for its declaratory statement consistently, or to explain why a different application is 

required.” Chiles v. Dep’t of State, 711 So. 2d 151, 154–55 (Fla. 1st DCA 1998). However, 

declaratory statements cannot be used by an agency in lieu of rulemaking to announce “a broad 

agency policy.” Lennar Homes, Inc. v. Dep't of Bus. & Prof’l Reg., 888 So. 2d 50, 54 (Fla. 1st 

DCA 2004).

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modify[,] or suspend the Certificate holder’s [EMTs and paramedics] medical 

performance while operating for the licensee consistent with the Medical Director’s 

direct responsibility for the medical performance of all Certificate holders operating 

for the licensee.” Doc. 32-1, at 4. Putting aside the fact that the declaratory 

statement is outside of the four corners of the complaint, the Court is not persuaded 

that it is a correct statement of Florida law because it did not even mention the 

language in section 401.265(1), which expressly states that the medical director’s

duties do not include “administrative and managerial functions.”

The Court understands that this declaratory statement has been on the books 

for more than a decade and that DOH is more versed in the regulation of medical 

directors than is the Court, but that does not mean that the Court is required to defer 

to DOH’s interpretation of the law if the interpretation is erroneous. Indeed, putting 

aside the question of whether courts should ever defer to administrative agencies 

when construing the law,6there is no reason to do so here because the Court’s task 

when deciding an unresolved issue of state law is to try to determine how the issue 

would be decided by the Florida Supreme Court and the Florida Constitution 

expressly prohibits Florida courts from deferring to agency interpretations. See art. 

V, §21, Fla. Const. (“In interpreting a state statute or rule, a state court. . . may not 

6

 See, e.g., Michigan v. EPA, 135 S.Ct. 2699, 2712 (2015) (Thomas, J., concurring); City of 

Arlington v. FCC, 569 U.S. 290, 312 (2013) (Roberts, J., dissenting); Gutierrez-Brizula v. Lynch, 

834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring).

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defer to an administrative agency’s interpretation of such statute or rule, and must 

instead interpret such statute or rule de novo.”). Thus, when deciding whether a 

medical director has the statutory authority to restrict the activities or otherwise 

discipline an EMT or paramedic, the Court gives no deference to the declaratory 

statement and instead reviews the scope of the medical director’s statutory authority 

de novo.

The Florida Supreme Court has held that when the language of the statute is

clear and unambiguous, the proper interpretation of the statute begins—and ends—

with the plain language of the statute. See Lieupo v. Simon’s Trucking, Inc., 286 So. 

3d 143, 145 (Fla. 2019) (“A court’s determination of the meaning of a statute begins 

with the language of the statute. If that language is clear, the statute is given its plain 

meaning, and the court does not look behind the statute’s plain language for 

legislative intent or resort to rules of statutory construction.”) (citations and internal 

quotations omitted). Here, §401.265(1), Fla. Stat., lists the duties of the medical 

director and then clearly and unambiguously provides that those duties do “not 

includ[e] administrative and managerial functions.” The plain meaning and 

common understanding of the phrase “administrative and managerial functions” 

encompasses actions such as hiring, firing, and disciplining employees, and because 

the restriction or suspension of the medical performance of an EMT or paramedic 

appears to be a disciplinary action, the medical director does not have the statutory 

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authority to take that action. Cf. Sims, 972 F.2d at 1236 (holding that supervisors 

whose duties included the administration of discipline were acting within their 

discretionary authority when they imposed a three-day suspension even though the 

suspension was allegedly imposed to punish the employee for exercising his First 

Amendment rights).

In sum, because Dr. Edler’s job duties did not include the imposition of 

discipline on EMTs and paramedics, she was not acting within her discretionary 

authority when she restricted Plaintiff to administrative duty and when she refused 

to lift those restrictions even after Plaintiff complied with the PIP. Based on this 

conclusion, the Court need not consider whether Dr. Edler’s conduct violated any 

clearly established law. See Harbert, 157 F. 3d at 1281 (“If, and only if, the 

defendant [establishes that the allegedly unconstitutional conduct occurred while he 

was acting within the scope of his discretionary authority] will the burden shift to 

the plaintiff to establish that the defendant violated clearly established law.”).

Accordingly, because Dr. Edler is not entitled to qualified immunity (at least 

not at this stage of the case7), her motion to dismiss Count II of the amended 

complaint is due to be denied.

7

 The Court does not foreclose the possibility that discovery may lead to evidence 

establishing that restricting a paramedic’s job duties is not tantamount to discipline or that 

imposing disciplinary action on paramedics is part of Dr. Edler’s job duties under the County’s 

ordinances or some other provision of state law.

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Count VII

To state a claim for a violation of the PWA, the plaintiff must allege “(1) he 

engaged in statutorily protected expression; (2) he suffered a materially adverse 

action of a type that would dissuade a reasonable employee from engaging in 

statutorily protected activity; and (3) there was some causal relation between the 

events.” Batz v. City of Sebring, 794 F. App’x 889, 901 (11th Cir. 2019). Here, the 

County only argues that the amended complaint fails to adequately allege the first 

element. 

Specifically, the County argues that the amended complaint failed to plausibly 

allege (1) that Plaintiff reported the County’s purported violations to an appropriate 

individual, (2) that the purported violations affect the general public welfare (rather 

than just Plaintiff personally), and (3) that Plaintiff made the report through a written 

and signed complaint. Plaintiff responds that (1) the amended complaint creates the 

reasonable inference that he reported the violations to Spainhower and Coughlin, 

who are appropriate individuals under the PWA, (2) the violations he reported affect 

the general public welfare because they concern the operation of the County EMS 

department, and (3) he specifically alleged that he “filed a written complaint against 

Defendant Edler on or about May 1, 2019, objecting to the inappropriate QA 

meeting, and the resulting due process violations” (emphasis added). The Court 

agrees with Plaintiff.

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“[T]he Florida Supreme Court has instructed [that] the [PWA] be liberally 

construed.” Id. at 902 (citing Irven v. Dep’t of Health and Rehab. Servs., 790 So. 2d 

403, 405 (Fla. 2001)). Where, as here, the disclosure concerns a county or other 

local governmental entity, the plaintiff must allege that he or she made the disclosure 

to “a chief executive officer as defined in §447.203(9) or other appropriate local 

official.” §112.3187(6), Fla. Stat. The PWA does not define “other appropriate 

local official,” but in the spirit of liberal construction, Florida courts have defined 

the term “to include a variety of governmental entities ‘empowered to investigate 

complaints and make reports or recommend corrective action.’” Wagner v. Lee 

County, 678 F. App’x 913, 922 (11th Cir. 2017) (quoting Rustowicz v. N. Broward 

Hosp. Dist., 174 So. 3d 414, 424 (Fla. 4th DCA 2015)); see also King v. Bd. of Cty. 

Comm’rs, 2017 U.S. Dist. LEXIS 41941, at *34 (M.D. Fla. Mar. 23, 2017) (citing 

Igwe v. City of Miami, 208 So. 3d 150, 154 (Fla. 3d DCA 2016)). The HR 

department to which Plaintiff allegedly complained qualifies as such an entity and 

is thus an “appropriate local official” for purposes of the PWA.

Additionally, to satisfy the requirements of the PWA, the plaintiff must have 

disclosed a specific type of information, including a violation of law that “creates 

and presents a substantial and specific danger to the public’s health, safety, or 

welfare.” §112.3187(5)(a), Fla. Stat. The amended complaint plausibly alleges

violations of the law because it alleges that Dr. Edler has made personnel decisions 

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regarding emergency responders based on personal animus, and because the nature 

and purpose of the EMS department is to protect the public, the violations present a 

substantial and specific danger to the public health, safety, and welfare. See, e.g.,

King v. Florida, 650 F. Supp. 2d 1157, 1164 (N.D. Fla. 2009) (holding that a 

plaintiff’s disclosure satisfied the PWA’s “substantial and specific danger” 

requirement when it alleged that a supervisor’s bias affected hiring decisions 

regarding law enforcement officers because the officers’ positions directly impacted 

public safety).

Finally, at this stage of the case, the Court is required to accept as true 

Plaintiff’s allegation that his complaint was in writing. Although the allegation does 

not expressly state that the complaint was signed, that does not compel dismissal of 

the PWA claim because the amended complaint plausibly alleges that the purpose 

of the signed writing requirement in §112.3187(7), Fla. Stat., was met under the 

circumstances.8 See Hutchinson v. Prudential Ins. Co. of America, Inc., 645 So. 2d 

1047, 1050 (Fla. 3d DCA 1994) (explaining that “the purpose of requiring a signed 

8

 Additionally, although outside the four corners of the complaint and not a basis for the 

Court’s ruling, it appears that the E-mail pursuant to which Plaintiff made his complaint to HR 

(Doc. 36-2, at 7) contains what likely would be considered a signature under Florida law. See

§§668.003(4), 668.004, Fla. Stat. Additionally, it is noteworthy—and potentially legally 

significant, see Hutchinson, 645 So. 2d at 1050 (rejecting defendant’s argument that letter 

submitted by plaintiff did not meet the requirements of §112.3187(7) because, among other 

reasons, a letter was the requested form of communication)—that the formal complaint form (Doc. 

36-2, at 1) that HR apparently asked Plaintiff to fill out after his E-mail did not include a place for 

his signature.

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writing is to document what the employee disclosed, and to whom the employee 

disclosed it”).

Accordingly, because Plaintiff has sufficiently alleged a violation of the 

PWA, the County’s motion to dismiss Count VII of the amended complaint is due 

to be denied.

Conclusion

In sum, for the reasons explained above, it is ORDERED that:

1. Defendants’ motions to dismiss (Docs. 31, 32) are GRANTED as to 

Counts III, IV, V, and VI of the amended complaint; GRANTED in part

as to Counts I and VII; and DENIED in all other respects.

2. Counts III, IV, V, and VI of the amended complaint are DISMISSED, as 

are the official capacity claims against Dr. Edler in Counts I and VII.

3. Defendants shall have 14 days from the date of this Order to answer the 

amended complaint. See Fed. R. Civ. P. 12(a)(4)(A).

DONE and ORDERED this 19th day of June, 2020.

T. Kent Wetherell, II 

T. KENT WETHERELL, II

UNITED STATES DISTRICT JUDGE

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