Filing # 147853850 E-Filed 04/18/2022 01:33:00 PM

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY

STEPHEN M. DAVIS

Case No.

Plaintiff,

v.

ORANGE COUNTY

Defendant.

COMPLAINT

COMES NOW, Plaintiff Stephen M. Davis, by and through undersigned counsel, and petitions

this Court for redress and damages against Defendant for violating his rights under Florida's

Whistleblower Act Fl. Stat. § 112.3187, alleging as follows:

INTRODUCTION

1. Stephen M. Davis was a Battalion Chief for Orange County Battalion 4, until his unlawful

termination on October 19, 2021. As Battalion Chief, it was his responsibility to run the

battalion according to outlined principles, and to discipline and issue written reprimands to

his subordinates who were in violation of required standards. Moreover, as Battalion Chief, it

was his duty to lead the firefighters under his command and protect their best interests. Chief

Davis led with his decades of experience and protected those under his command by

following the law and standards of conduct for his department. For abiding by federal and

state law and following union procedures to disclose and report his employer's violations of

law and negligence, Chief Davis was illegally terminated from his position.
2. Due to the covid-19 Pandemic, Defendant, through Mayor Demings announced a vaccinate

or terminate policy ("vaccine mandate") on July 28, 2021. Under impact negotiations in light

of the vaccine mandate, the Orange County Fire Fighters Association, specifically I.A.F.F.,

Local 2057 (the "Unioe), asserted that it reached an agreement with Defendant that, in lieu

of vaccinations, employees were allowed to submit exemption requests or vaccination

certification by September 30, 2021. Those who did not submit a request or vaccination

certification on time were subjected to a written reprimand, but with no further disciplinary

action to be taken nor any evaluation weight be given to the written reprimand. All

unvaccinated employees were to be subject to weekly mandatory covid-19 testing.

3. On October 5, 2021, Chief Davis received a general order to give written reprimands for

alleged violations of the vaccine mandate deadline. He knew the list of employees under his

command to receive written reprimand against the vaccination mandate violated the union

agreement, and because reprimands were to be given to those seeking exemption, violated

both state and federal laws. Chief Davis properly brought this error to his supervisor and

withheld discipline against those under his command until the list could be verified, but his

supervisors up his chain of command refused to verify the list.

4. Instead of looking into the clear procedural and legal violations raised by Chief Davis, or

even making a call to Human Resources to make a quick verification of the reprimand list,

his superiors gave him a direct order to issue the improper written reprimands. When he

refused, Chief Davis was immediately relieved of duty and charged with multiple counts of

wrong-doing.

5. It is precisely this situation that Florida law prohibits, where an ethical employee is

terminated for properly disclosing information and reporting to his chain of command
 violations of law, abuse, and gross neglect of duty by a public agency, and this malfeasance

must be remedied for the victimized employee. Defendant is the wrong-doer. Defendant

violated state and local laws and violated a negotiated agreement. Chief Davis should not be

punished for Defendant's wrong-doing. Defendant must not be allowed to retaliate and

punish conscientious employees like Chief Davis.

PARTIES
6. Plaintiff Stephen Davis resides in Mount Dora, Florida and at all times pertinent to this

complaint, was an employee within Orange County Fire and Rescue, reporting to the Orange

County Fire Chief. Plaintiff worked within Field Operations as a lieutenant and then battalion

chief. Plaintiff had been employed by OCFR for nearly fifteen years before being unlawfully

terminated on October 19, 2021.

7. Defendant Orange County employed Plaintiff within the county Fire and Rescue department.

Its legislative branch is comprised of the County Board of County Commissioners; and

county Mayor Jeny L. Demings is both chair of the BCC and the head of the executive

branch of the Orange County government. Pursuant to Fla. Stat. 48.111, Mayor Demings is

the agent for service of process against Defendant.

JURISDICTION

8. Jurisdiction is proper in the Circuit Court under Fla. Stat. § 26.012 and pursuant to Fla. Stat.

§ 112.3187(8)(c) of the "Whistle-blower's Acfunder which Chief Davis brings his claim.

9. As this matter involves the Orange County government and a former public employee of

Orange County, this matter is properly brought before the Circuit Court in and for Orange

County.
10. All conditions precedent to this action have occurred, have been performed, or have been

waived.

BACKGROUND FACTS

Plaintiff Battalion Chief Stephen Davis was an Exemplary Employee

11. Plaintiff faithfully served the people of Orange County under Orange County Fire and

Rescue (OCFR") for almost fifteen years, three of those years as Battalion Chief, until his

unlawful termination in October 2021.

12. Chief Davis during his years of service received commendations for several Unit Citations

for Service in saving lives of children and adults in perilous conditions in 2009, 2010, 2012,

and 2019. He has received several Life Saving Awards, including in 2014 and 2016. OCFR

has declared in honoring Chief Davis for his service that he "demonstrated OCFR's values of

duty, respect, and integrity to the fullest extent."

13. He was also trained and approved to act as Assistant Chief; and having interviewed for the

position, he was on the current and active promotional list for Assistant Chief prior to his

request for religious accommodation in lieu of obtaining covid-19 vaccination. Prior to

serving with OCFR, Chief Davis had years of experience as a medic, including with the

military. He has completed many special operations trainings in multiple disciplines: Dive

Instructor, Critical Care Paramedic, and Preceptor. He holds a Masters degree in Emergency

Disaster Management, a Bachelors degree in Fire Emergency Services, and an Associates

degree in EMS. Given his experience and training, Chief Davis also pioneered and

developed the current OCFR Paramedic evaluation and assessment system. Prior to his

termination, Chief Davis also oversaw and managed the Community Assessment Response

Team (CART) during local disasters for OCFR.

14. In his role as Battalion Chief, Plaintiff was responsible to oversee and manage the employees

of six stations within the county, representing over 50 employees. Among other management

and supervisory responsibilities, a Battalion Chief is the officer that issues discipline in

OCFR. He is well versed in the standards of conduct and the disciplinary matrix, including

standard progressive discipline and where discretion is available in a given circumstance.

However, any discipline above a written reprimand is handled at a higher level by the

Assistant Chief in the employee's chain of command.

Defendant Orange County's Vaccine Mandate

15. On July 28, 2021, Mayor Demings announced a local state of emergency due to covid-19,

and in conjunction therewith, Defendant instituted a vaccine "requiremenr for all Orange

County employees, as announced by the mayor on the same day. All employees were

required to submit certifications of the Johnson & Johnson vaccine or the first dose of the

two-dose Pfizer and Moderna shots by August 31, 2021. As the deadline approached,

Defendant pushed back the deadline to September 30, 2021. Defendant's written

announcement of the vaccine mandate declared that the county would engage in impact

negotiations over the change in employment terms with labor unions, and employees were

instructed that religious or medical exemptions must be submitted by September 30, 2021.

16. On behalf of firefighters employed by Defendant, their Union initiated discussions in

advance of the September vaccination deadline and asserted a negotiated Memorandum of

Understanding ("MOU") was reached on

September 30, 2021. Exhibit A.

17. The MOU reiterated the extended deadlines imposed by Defendant for the vaccine mandate,

but also provided that those who met the deadline to certify their vaccination by August 31

would receive money incentives; that those who requested timely exemptions and were
 approved or those who obtained no exemption and remained unvaccinated would be subject

to mandatory weekly covid-19 testing; and those who did not certify vaccination nor request

exemption by September 30 would receive one written discipline in their employee file with

"no further disciplinary actioe under the mandate. It further specified that, should an

employee receive written discipline, the reprimand would "not be considered or used in the

bargaining unit member's performance evaluation." However, if any employee who did not

comply with the vaccine mandate further refused weekly testing, additional discipline would

apply, including beyond written reprimand. Exhibit A.

18. Weekly testing protocol with written reprimands where applicable under the MOU began in

OCFR on October 4, 2021. Chief Davis was informed of the testing and discipline protocol

(G0-21-016) under the MOU as an officer in charge of issuing discipline under the MOU.

Battalion Chiefs would receive a written list of employees who were to be issued discipline

and a list of employees who were required to test on the first shift of the week under the

MOU.

Defendant Demanded that Chief Davis Comply with Unlawful Orders, and
He Reported the Unlawful Orders Through Chain of Command

19. On October 5, 2021, Chief Davis began his shift and received a list from Defendant's

Centralized Staffing Unit ("CSU") through Assistant Chief Buffkin including every

employee in C shift for all battalions who were to receive written reprimand and be subject to

covid-19 testing. Twelve of the nearly 100 names on the list were in Chief DavisBattalion.

Chief Davis reviewed the names, and based on his personal knowledge of the employees

under his charge, he was aware that certain of the individuals listed had actually timely

requested exemption from the mandate, and according to the MOU terms as well as state and
 federal civil rights law prohibiting adverse employment action for protected conduct, should

not have been listed for discipline. He was also familiar with the circumstances for

employees under other Battalions and knew the error was widespread. Still others were

vaccinated but were nonetheless listed for reprimand.

20. Chief Davis knew that issuing discipline to an individual for compliance when that

individual had lawfully requested exemption was a violation of state and federal laws, and a

further violation of the MOU with Defendant, constituting violations of the fundamental

rights of OCFR employees, malfeasance, misfeasance, abuse, and gross neglect of duty on

the part of Defendant.

21. OCFR Department Rules 33 and 35 govern the department and provide as follows:

R.33 Unlawful Orders

Employees shall not knowingly issue any order that is in violation of laws,
statutes, ordinances, rules and regulations, or SOPs.

R.35 Disobedience to Unlawful Orders

No employee is expected to, or shall obey any order, that he/she knows to be
contrary to federal or state law or County ordinance. At the time an unlawful
order is issued, the employee shall:
• Advise the issuing authority of its illegality.
• Should that authority persist in demanding compliance, an employee of
superior rank or status to all parties involved should be summoned to
decide the controversy.
•
Responsibility for refusal to obey rests with the employee, and he/she shall
be required to justify his/her actions. He/she shall, prior to the conclusion
of the tour of duty in which the order was given, report the facts in writing
to the Division Chief or Deputy Chief/Manager through official channels.

Exhibit B —
material sections of OCFR Rules, SOP, and EOP

22. Chief Davis is subject to the OCFR Rules and Regulations by specific reference of Article 9

of Unit B IAFF collective bargaining agreement (CBA") with Defendant. Also under the

CBA Unit B, Article 10, Defendant through OCFR leadership may only discipline employees
 "for just cause." Additionally, the only provisions for discipline and grievance and appeal

procedures applicable to Chief Davisemployment are those within the CBA.

23. In accordance with OCFR Rule 35, Chief Davis expressed his concern regarding the

unlawful order to issue discipline to the twelve employees on his list. He provided details by

telephone to his superior Assistant Chief Buffkin regarding the laws he believed would be

violated if he were to issue discipline to all twelve individuals on his list, and he emailed AC

Buffkin that evening regarding his concerns in enforcing the written reprimands and testing

protocol. Exhibit C. He would not comply with the order to issue discipline unless and until

all names were verified through Human Resources for compliance with federal and state law.

Defendant Terminates Chief Davis for Reporting Unlawful Orders, Then

Defendant Admits the Orders Issued Were Unlawful.

24. During the shift on October 5, Chief Davis then met with AC Buffkin to express his valid

concerns regarding the accuracy of the list of twelve employees to receive a written

reprimand. Another battalion chief Sherrill was present at the meeting as representative of

the union (steware). Chief Buffkin disregarded Chief Davis' concerns, failed to follow

OCFR Rule 35 and call a ranking officer in chain of command to resolve the dispute, and

instead gave a direct order to Chief Davis to issue the reprimands, without acknowledging or

verifying if his concerns were correct. Chief Davis refused. Chief Davis was then

immediately relieved of duty by AC Buffkin.

25. BC Sherrill heard Plaintiff s concerns in the meeting with AC Buffkin on October 5 and

brought them forward to Human Resources the next day. BC Sherrill was one of many

employees on a disciplinary list to receive reprimands, but he had complied with the vaccine
 mandate by sending his documentation timely. In his email, he questioned the lawfulness of

his receiving discipline.

26. Because of the steward's inquiry, that same day, October 6, 2021, Defendant, through OCFR

HR, acknowledged the erroneous disciplinary lists. HR responded to BC Sherrill that, "the

department has been asked to first verify" with employees their status and whether they filed

exemption requests, and "after that verification is done, you would ultimately not receive any

discipline if you submitted on or before Sept 30th", even if the employee name were initially

included in a disciplinary list. Exhibit D. Division Chief Wadja was copied in the email

thread with HR and BC Sherrill regarding the unverified and erroneous discipline lists.

27. Indeed, even AC Buffkin acknowledged Defendant's error. Despite having issued Chief

Davis a direct order to issue discipline to individuals whose status was unverified on his list

the day before, early on October 6, she emailed Battalion Chiefs under her supervision

reminding them to complete written reprimands under the vaccine mandate and MOU. She

also told them, "Remember if anyone has received the vaccine or believe their status is

incorrect, have them email 3 people at HR: Charles Welch, Kathy Mora AND Latarsha

Gibson and include any supporting documentation they have such as emails, etc." Exhibit

D.

28. AC Buffkin on October 6 advised her officers to complete the same verification with HR

prior to issuing written reprimands that she refused to complete at the request of Chief Davis

on October 5 before he issued reprimands. Rather than even contact HR or her superior

officer regarding the dispute, she suspended Chief Davis for requesting verification. Based

on AC Buffkin's actions, Chief Davis was terminated in retaliation by Defendant for his

disclosure of protected information under Florida's Whistle-blower's Act.

29. Public records requests show that eleven reprimands were subsequently issued to Chief

Davisbattalion employees from his original list of twelve names —

five on October 8, 2021,

and the remaining six issued over a month later.

30. All eleven issued written reprimands show an October 2021 issue date but no HR

representative signature, which is required for processing and official filing of the reprimand

in employee files, per county policy.

31. In addition to Defendant's admitted error in submitting employee lists for disciplinary action,

Defendant further violated the MOU and federal and state law through the language of the

reprimand itself. The written reprimands stated in capitalized type: "CONSEQUENCES OF

INSUFFICIENT IMPROVEMENT OR RECURRENCE MAY RESULT IN FUTURE

DISCIPLINARY ACTION UP TO AND INCLUDING TERMINATION."

32. Chief Davis was subjected to a Predetermination Hearing on October 13, 2021, pertaining to

his refusal to follow the direct order given on October 5. He was charged with violation of

his "performance of duty", "unbecoming conduct", "insubordinatioe, and violation of

"adhering to and reporting improper orders," under OCFR rules 5, 24, 32, and 36, as well as

violating a direct order and the procedures for grievance and his managerial responsibilities.

Defendant found that Chief Davis engaged in "conduct in a work or non-work environment

which discredits the County Government, public officials, fellow employee(s), or

themselves." It was determined from that hearing, in a letter dated October 18, 2021, that

Plaintiff would be terminated at on October 19, 2021. Exhibit E.

33. Despite Chief Davis' properly expressing his concern under Rule 35 in disobeying an

unlawful order, and despite Assistant Chief Buffkin's violation of Rule 35, as well as
 Defendant's own admission of its legal error in issuing written discipline, Defendant failed to

address these material facts regarding Chief Davisconduct at any time.

34. The legally and factually erroneous termination letter painting Chief Davis in a light as an

insubordinate employee worthy of summary termination was copied to nine individuals

within OCFR and other departments within Defendant's administration.

35. Chief Davis provided written notice of the unlawful termination and retaliation to Mayor

Demings on October 19, 2021.

36. After his termination, Chief Davis submitted a Public Records Request for the discipline

records of the twelve individuals under his command. The records provided in response in

March 2022, showed none of the twelve individuals ever had written reprimands processed

and signed by HR.

37. Upon information and belief, none of the employees to which Chief Davis was to issue

written reprimand have had those reprimands finalized by HR and entered into their

employee files. Effectively, as a result of Chief Davis' reporting of legal violations to

Defendant through his chain of command, Defendant has internally admitted its violations of

law and attempted to retract and cover-up its unlawful and reckless actions, albeit with

additional unlawful mishandling and disposition of public records. However, Defendant

refuses to reinstate Chief Davis or clear his name of the myriad erroneous charges it leveled

against him.

38. One reprimand was never completed at all. Another duplicate set of reprimands exist for an

employee who properly submitted his request for religious exemption to HR on September

30, 2021, and received a reply from HR, confirming the request received. However, of the

two reprimands in the records for this employee: one had blacked out the capitalized font
 language contrary to the terms of the MOU and was signed on October 20, 2021, two weeks

after Chief Davis received the employee's name for reprimand and the day after Defendant

terminated Chief Davis. The other reprimand version appeared to be the original, signed

only by the employee with a date of October 7 (a replica matching signature and date are on

the redacted second reprimand), and including without redaction the language contrary to

MOU terms.

39. On March 9, 2022, Chief Davis emailed Director Banks and Director Torres of the OCFR to

highlight public record inconsistencies and violations by Defendant regarding the written

reprimands issued under the vaccine mandate. Director Banks, the next morning, replied

stating, "I do not believe the information you were provided in response to your PRR was

accurate. But I will ensure someone follows up with you promptly." Thereafter, Chief Davis

received public records of the written reprimands for his battalion.

40. On March 12, 2022, Chief Davis replied to Director Banks detailing what he believed to be

"extreme ethical misconduct" within the department. And that "[t]his misconduct has led to

county employees working hours upon hours to correct these unethical mistakes and

negligence, which is funded directly by the taxpayers of Orange County."

41. To date, Chief Davis has not received any response in explanation, exoneration, apology, or

reinstatement as a result of proof of Defendant's misconduct, malfeasance, misfeasance,

abuse, gross neglect of duty, probable mishandling or destruction of public records, and other

legal and regulatory violations by Defendant related to its unlawful termination of Chief

Davis.

COUNT I
Violation of Florida Whistle-blower's Act Fl. Stat. § 112.3187.
42. Paragraphs 1-41 are incorporated by reference herein.
43. The Florida Whistle-blower's Act prohibits an agency "from taking retaliatory action against

an employee who reports to an appropriate agency violations of law." Fl. Stat. §

112.3187(2). An agency "shall not dismiss, discipline, or take any other adverse personnel

action... [nor] take any adverse action that affects the rights or interest of a person in

retaliation for the person's disclosure of informatioe identified in the Act. Id. at (4)(a)-(b).

44. The Act covers disclosure of information that includes:

a. Any violation or suspected violation of any federal, state, or local law, rule, or

regulation committed by an employee of an agency which creates and presents a

substantial and specific danger to the public's health, safety, or welfare.

b. Any act or
suspected act of gross mismanagement, malfeasance, misfeasance,

gross waste of public funds...or gross neglect of duty committed by an employee

or agent of an agency.

Fl. Stat. § 112.3187(5).

45. The employee's disclosure of protected information concerning a local governmental entity,

including a county entity, such as Orange County government, must be to the mayor, as a

chief executive officer (Fl. Stat. § 447.203(9)) or other appropriate local officials. Fl. Stat. §

112.3187(6). The "other appropriate local officials," for OCFR include supervisors and upper

management in Chief Davisline of command.

46. The Act protects employees "who refuse to participate in any adverse action prohibited by

this sectioe and "file any written complaint to their supervisory officials." Fl. Stat. §

112.3187(7).
47. Chief Davis was a public employee protected under the Whistleblower statute. At all

relevant times to this complaint, Chief Davis was an employee in the supervisory position of

Battalion Chief within Defendant Orange County's Fire and Rescue Department.

48. When he accurately suspected he was being ordered to violate federal and state law to issue

written reprimands to firefighters who had timely filed for exemptions and accommodation,

he initiated the proper complaint to his commanding officer, AC Buffkin, in accordance with

OCFR Rule 35 and his collective bargaining agreement.

49. Specifically, Chief Davis suspected violations of federal and state civil rights laws,

implicating his employeesfundamental rights, if he were to discipline individuals who were

timely requesting accommodation through exemption to the vaccine mandate. Such

violations are abusive and a gross neglect of duty by Defendant toward its employees and

would subject Defendant to liability and waste public resources in correcting the legal

violation.

50. Indeed, evidence, including Defendant's own communications through OCFR and HR public

records obtained from Defendant, vindicate Chief Davis' suspicion that Defendant was

issuing orders contrary to law. Defendant has, in fact, never formally processed the twelve

written reprimands it commanded Chief Davis to issue to employees under his command.

51. Because Chief Davis challenged unlawful orders to his superior officer and reported his

concerns in writing through official channels, without backing down from his conviction of

their illegality, Defendant unlawfully terminated him, in violation of Fl. Stat. § 112.3187, on

October 19, 2021.

52. As a direct consequence of Defendant's unlawful termination, Chief Davis has suffered

damages through lost wages, loss of his accrued benefits and time off pay, other employment
 benefits and pension, denigration of his character and impeccable employment record, and

costs in seeking future employment.

WHEREFORE, Plaintiff Stephen Davis respectfully requests that this Court enter

judgment for Plaintiff and against Defendant; and order Defendant to reinstate Plaintiff to the

same position held before his termination, or to an equivalent position and remove the unlawful

termination from his employee file; to reinstate full fringe benefits and seniority rights; to

compensate Plaintiff for lost wages, benefits, and other remuneration as proper; and enter an

award for reasonable attorney's fees and costs to Plaintiff together with any other relief the court

deems just and proper.

JURY DEMAND
Plaintiff hereby demands a trial by jury on all issues so triable.

Dated this 18th day of April, 2022.

Respectfully Submitted,
/s/ Rachel Rodriguez
VIRES LAW GROUP, PLLC
Rachel Rodriguez, FL Bar # 110425
515 N. Flagler Dr., Suite P300
West Palm Beach, Florida 33401
561-370-7383 (phone/fax)
rrodriguez@vireslaw.group (email)

Counsel for Plaintiff