Michele Vuolo v. MHM Health Professionals, LLC

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12059
Non-Argument Calendar
____________________
MICHELE VUOLO,
Plaintiff-Appellant,
versus
MHM HEALTH PROFESSIONALS, LLC,
d.b.a. Centurion Healthcare,
Defendant-Appellee,
___________________
Appeal from the United States District Court
for the Northern District of Florida
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2 Opinion of the Court 22-12059
D.C. Docket No. 4:21-cv-00473-AW-MAF
__________________
Before LAGOA, BRASHER and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Michele Vuolo appeals the district court’s order
dismissing with prejudice her second amended complaint alleging
that MHM Health (MHM), her employer, retaliated against her in
violation of the Florida Whistleblower Act, § 448.101, et seq.,
Florida Statutes (“FWA). Vuolo initially filed her complaint in
state circuit court and MHM removed the action to federal court
based on diversity jurisdiction. After MHM filed a motion to dis-
miss, Vuolo filed an amended complaint, and HMH filed another
motion to dismiss. The district court granted MHM’s motion to
dismiss Vuolo’s first amended complaint, without prejudice, but
allowed Vuolo 14 days to file a second amended complaint to cor-
rect the deficiencies in her amended complaint. Vuolo filed a sec-
ond amended complaint with similar allegations and HMH filed
another motion to dismiss. The district court granted the motion
to dismiss with prejudice, concluding that Vuolo failed to plead
protected activity under the FWA. Vuolo filed a timely appeal.
Having read the parties’ briefs and reviewed the record, we affirm
the district court’s order dismissing with prejudice Vuolo’s com-
plaint under the FWA.
I.
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22-12059 Opinion of the Court 3
We review de novo a district court’s order to dismiss a
complaint with prejudice, applying the same standards the district
court used. Doe #1 v. Red Roof Inns, Inc., 21 F.4th 714, 723 (11th
Cir. 2021). “To survive a 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, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks
omitted). A plaintiff does not have to provide detailed factual al-
legations, but she must provide more than “labels and conclu-
sions, and a formulaic recitation of the elements of a cause of ac-
tion.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 1965 (2007). The plaintiff must establish “facial plausibility”
by pleading “factual content that allows the court to draw the rea-
sonable inference that the defendant is liable for the conduct al-
leged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
II.
Vuolo contends on appeal that the district court erred in
dismissing with prejudice her second amended complaint alleging
a violation of the FWA. Vuolo asserts that MHM unlawfully ter-
minated her from her position of Advanced Registered Nurse
Practitioner/Site Medical Provider with a penal institution be-
cause she reported to her supervisor that one of her transgender
patients had been threatened with sexual assault and was at risk of
being raped. Vuolo claims that she was concerned about viola-
tions pursuant to the Prison Rape Elimination Act (“PREA”), 28
C.F.R. § 115.22 (stating policies to ensure referrals of allegations
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4 Opinion of the Court 22-12059
of sexual abuse and sexual harassment); 115.61 (providing that all
agency staff shall report any knowledge, suspicion or information
regarding a sexual abuse or sexual harassment situation); 115.62
(stating that when an agency learns that an inmate is subject to a
substantial risk of imminent sexual abuse, it shall take action to
protect the inmate). When HMH took no action to protect the
inmate in question, Vuolo asserts that her employment environ-
ment began to deteriorate, and she began to experience clear acts
of retaliation, mainly greater scrutiny in the form of microman-
agement.
Vuolo also references an audit by the regional nursing su-
pervisor, T. Thomas, who assessed one of Vuolo’s patients and
changed the antibiotic regimen Vuolo had prescribed. Nurse
Thomas did not notify Vuolo of the change until after she made
it. Vuolo claims that this action undermined Vuolo’s authority
and placed the patient in a compromising position. Vuolo also as-
serts that this action was in violation of the Nursing Practice Act,
§ 464, Florida Statute (NPA). Vuolo reported the incident to her
supervisor, but the supervisor took no remedial action. Soon
thereafter, her supervisor terminated her employment.
III.
The Florida Private Section Whistleblower’s Act, in Chap-
ter 448, Florida Statute provides that “[a]n employer cannot take
retaliatory personnel action against an employee because the em-
ployee has [d]isclosed or threatened to disclose, to any appropri-
ate governmental agency, . . . an activity, policy, or practice of the
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22-12059 Opinion of the Court 5
employer that is in violation of a law, rule, or regulation.” Fla.
Stat. § 448.102. As such, a valid action under the Act must allege
that (1) plaintiff engaged in a protected activity, (2) plaintiff suf-
fered a materially adverse employment action, and (3) the adverse
action was causally connected to the protected activity. Usher v.
Nipro Diabetes Sys., Inc., 184 So. 3d 1260, 1261-62 (Fla. DCA
2016); Aery v. Wallace Lincoln-Mercury, LLC., 118 So. 3d 904,
916 (Fla. DCA 2013).
Protected activity is objecting to or refusing to participate
in an employer’s activity, policy, or practice that violates a “law,
rule or regulation.” See § 448.102(3). Also, a law, rule or regula-
tion means “any statute or ordinance or any rule or regulation . . .
applicable to the employer and pertaining to the business.”
§ 448.101(4). Vuolo alleges two protected activities in which she
engaged: (1) reporting to her supervisor her concerns about the
safety of a transgender inmate, and (2) objecting to another
nurse’s change in a patient’s antibiotic regimen. She attempts to
connect these protected activities to MHM’s violations of the
PREA and the Florida NPA. We conclude that the record demon-
strates that the district court did not abuse its discretion in dis-
missing Vuolo’s complaint with prejudice because she failed to al-
lege protected activity under the PREA and the NPA.
The provisions of the NPA she relies upon do not actually
implicate or prohibit any conduct, including any conduct by
MHM. Section 464.002 of the NPA recites its legislative purpose,
and section 464.0095(17) merely provides the definition for the
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6 Opinion of the Court 22-12059
term “state practice laws.” Neither section contains language pro-
hibiting a violation by any person or entity, nor does either sec-
tion contain language prohibiting a nurse from changing a pa-
tient’s medication orders. Because neither of the NPA provisions
upon which Vuolo relies could serve as the basis for an alleged
protected complaint under the FWA, the district court’s order of
dismissal was proper.
Vuolo also claims that she engaged in protected expression
by reporting MHM’s purported failure to respond to a report she
made concerning the risk of sexual assault to a transgender in-
mate/patient. She asserts that MHM’s failure to react violated
numerous different regulations implementing the PREA. How-
ever, none of the provisions of the PREA that Vuolo identifies as
the grounds of her protected expression under the FWA are appli-
able to MHM. Four of the PREA regulations do not cover the
conduct she described, and several of the regulations apply only
to “practitioners” and Vuolo did not allege any facts in her second
amended complaint indicating that MHM was a “practitioner”
with a duty under 28 C.F.R. § 115.61(c). Several other provisions
on which Vuolo relies do not apply to MHM and, if they did, re-
late only to MHM’s failure to satisfy after-reporting duties.
Moreover, the two other PREA provisions Vuolo relies
upon to form the basis of her FWA claim, 28 C.F.R. §§ 115.22(a)
and 115.62, only place obligations on an “agency” within the
PREA. Vuolo had to allege facts showing that MHM is an agency
to plausibly state a claim based upon violations of these sections
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22-12059 Opinion of the Court 7
of the PREA, and she failed to do so. In her complaint, Vuolo
stated that MHM is organized under Florida law and employed
her. She did not allege that is an “agency,” that has “direct re-
sponsibility for the operation of any facility that confines in-
mates.” 28 C.F.R. § 115.5. Vuolo also asserted that MHM pro-
vides healthcare at certain Florida Department of Corrections fa-
cilities under contract, and this contract somehow obligates
MHM to comply with the PREA. The PREA defines “agency”
and “contractor” separately, and Vuolo cited no provision con-
cerning contractors to support her assertion. Thus, we conclude
from the record that the district court did not abuse its discretion
in dismissing her second amended complaint because Vuolo failed
to state a plausible claim for relief as to her allegation that she en-
gaged in activity protected by the PREA.
Accordingly, based on the aforementioned reasons, we af-
firm the district court’s order dismissing Vuolo’s second amended
complaint with prejudice. 1
AFFIRMED
1 We decline to address Vuolo’s argument that the district court should have
granted her leave to amend her second amended complaint. The district court
granted her leave to amend once, giving her specific guidance on what she
needed to correct the deficiencies in her first amended complaint. By the time
Vuolo filed her second amended complaint, she had three attempts to state a
single FWA claim and yet still failed to state a plausible claim. Thus, there was
no reason the district court would believe Vuolo could state a claim if given a
fourth opportunity. That does not constitute reversible error.