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STEPHANIE WOODFORD,
Plaintiff,
Case No.: 2017-CA-009522
vs. Division I
Defendants.
________________________________________/
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
1. Plaintiff sues the School Board for: (1) whistle-blower retaliation in violation of
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
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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
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
(8) Remedies:
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(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,
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).
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.
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
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
remedies provisions of the Whistle-blower Act apply and Plaintiff was required to exhaust those
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
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
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
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
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
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
respectfully requests that this Court grant its Motion to Dismiss the Complaint and order such
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,