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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

BEVERLY NICHOLS,

Plaintiff,

vs. CASE NO. 5:10cv169/RS-GRJ

INTERMOUNTAIN MANAGEMENT,

LLC, and IMM-ICH LLC, 

Defendants.

_________________________________________/

ORDER

Before me is Defendants‟ motion for partial summary judgment (Doc. 34). 

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is 

“whether the evidence presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail as a matter of law.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). 

The moving party has the burden of showing the absence of a genuine issue as to 

any material fact, and in deciding whether the movant has met this burden, the 

court must view the movant‟s evidence and all factual inferences arising from it in 

the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 

U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). 

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Thus, if reasonable minds could differ on the inferences arising from undisputed 

facts, then a court should deny summary judgment. Miranda v. B & B Cash 

Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank 

& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere „scintilla‟ of evidence supporting the nonmoving party's position will not 

suffice; there must be enough of a showing that the jury could reasonably find for 

that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing

Anderson, 477 U.S. at 251). 

II. BACKGROUND

I accept the facts in the light most favorable to Plaintiff. See Galvez v. 

Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d 

1340, 1343 n.1 (11th Cir. 2002)). “„All reasonable doubts about the facts should 

be resolved in favor of the non-movant.‟” Id. (quoting Burton v. City of Belle 

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684 

F.2d 1365, 1368-69 (11th Cir. 1982). 

Plaintiff was employed by Defendant at a Fairfield Inn in Marianna, Florida. 

The kitchen of the hotel and the food within it was riddled with bugs to the extent

that it violated Florida health code regulations. Plaintiff experienced bugs 

crawling on her as she worked. In violation of Florida law, retail insecticide was 

used to spray the kitchen when the hotel could not obtain commercial pest control 

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service. Plaintiff complained about the bug infestation numerous times to 

supervisors and other employees, and claims she was fired as a result of her 

complaints. Plaintiff now brings three claims against Defendants: (1) violation of 

the Florida Whistleblower‟s Act, (2) age discrimination, and (3) gender 

discrimination. Defendants have moved for summary judgment on count one of 

Plaintiffs complaint, the Florida whistleblower claim. 

III. ANALYSIS

 FLA. STAT. § 448.102 provides that an employer may not take any 

retaliatory personnel action against an employee because the employee has 

“objected to, or refused to participate in, any activity, policy, or practice of the 

employer which is in violation of a law, rule, or regulation.” Defendants argue that 

they are entitled to summary judgment on Plaintiff‟s Florida Whistleblower claim 

because Plaintiff “did not object to, or refuse to participate in, any activity, policy, 

or practice of IMM.” However, Plaintiff complained to the management about its 

continued failure to control the infestation of bugs in the hotel. Although the 

wording of Plaintiff‟s complaints did not mirror the precise language of the 

whistleblower statute, her complaints were clearly an objection to Defendant‟s 

policy and practice of not properly controlling the bug infestation in the hotel. 

Therefore, summary judgment is not warranted on this ground.

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Defendants also argue that that they are entitled to summary judgment 

because the presence of bugs was not itself a violation of law, rule, or regulation. 

However, Defendants admit that FLA. STAT. § 509.221(7) applies to the hotel. 

Section 509.221(7) states:

The operator of any establishment licensed under this chapter shall 

take effective measures to protect the establishment against the 

entrance and the breeding on the premises of all vermin. Any room in 

such establishment infested with such vermin shall be fumigated, 

disinfected, renovated, or other corrective action taken until the 

vermin are exterminated. 

Plaintiff has described an uncontrolled infestation in the hotel for several months

that Defendant failed to effectively remedy. This is an obvious violation of §

509.221(7)‟s requirement that the hotel “take effective measures to protect the 

establishment against the entrance . . . of all vermin” and its requirement that, in 

the case of an infestation, the hotel take corrective action until the vermin is 

exterminated. Furthermore, there are numerous other administrative code 

regulations that Defendants appear to have violated by failing to properly respond 

to the infestation in the hotel. See Plaintiff‟s Response (Doc. 39 at 20-21). 

Therefore, summary judgment is not warranted on these grounds either. 

Finally, Defendants essentially re-argue their second point and state that they 

are entitled to summary judgment because Plaintiff‟s belief that Defendants were 

in violation of the law was incorrect. Under Plaintiff‟s version of the facts, it

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appears Defendants were actually in violation of numerous health code regulations

and her belief was correct. Therefore, summary judgment is not appropriate. 

IV. Conclusion

Defendants‟ motion for summary judgment (Doc. 34) is denied. 

ORDERED on June 23, 2011.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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