Three employees claimed that they began expressing their disapproval of the employer’s improper and discriminatory practices, and that their complaints culminated in an April audit of the employer’s programs by the Lee County Clerk of Courts. All three of the employees participated in the audit, and each was terminated a short time after the audit’s official release.
The employees sued the employer, alleging, among other things, claims under Florida’s Public Whistleblower Act (“PWA”), Fla. Stat. § 112.3187. This Whistleblower law prohibits an employer from taking a retaliatory action against an employee who “reports to an appropriate agency violations of law on the part of a public employer . . . that create a substantial and specific danger to the public's health, safety, or welfare.”
In order for an employee to establish a prima facie case of retaliation under this Florida Whistleblower law, an employee must show that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between the two events.
Two of the employees’ immediate supervisor asked all three of the employees to serve as the employer’s contacts for the auditors and provide the information they requested. One of the employee testified that the supervisor told the entire team to “cooperate in any way [they could].
The U. S. District Court for the Middle District of Florida determined that the employees each established the first element of their prima facie case. The employer argued that the employees were not covered by Florida’s Public Whistleblower law because the employees did not officially submit a complaint in writing. The District Court rejected this argument, explaining that an employee may be entitled to Florida’s Public Whistleblower Act protection even if he did not disclose the improper acts by way of a written and signed statement. This is because Florida’s Public Whistleblower law also protects employees who have been “requested to participate in an investigation,” hearing, or other inquiry concerning governmental wrongdoing by an appropriate official or official entity,” and who then make disclosures of wrongdoing as defined by the Whistleblower law during or as a result of participation.
As such, in that situation, disclosures need not be by a signed complaint or on the initiative of the employee.
Because the employees were terminated, the District Court ruled that they established the second element of their prima facie case. Further, the District Court concluded that “[t]he evidence similarly shows that there was a causal connection between [the employees’] participation in the audit and their termination.” To establish a causal connection, employees need only show that the protected activity and the adverse action were “not wholly unrelated.”
Is an employee protected as a Whistleblower in Florida if she does not complain in writing?
The Court ruled that the employees may establish causation by showing that the employer knew of the employees’ participation in the audit and the adverse employment actions commenced shortly thereafter. In this case, the evidence showed that the audit report’s findings became known in June, and in July the Supervisor proposed terminating five of the six employees who had participated in the audit. The employees were terminated in September and October. The District Court for the Middle District of Florida ruled that “[t]his temporal proximity and the fact that [the Supervisor] allegedly knew the identity of the employees who participated in the audit together satisfy the third element of [the employees’] prima facie case."
The District Court rejected the employer’s Motion for Summary Judgment and the matter went to an eight-day trial, after which the jury came back with an award of almost $1.3 million. The jury also ordered the employer to pay the legal fees of the employees. The three employees agreed to cut the awards in half rather than face a separate trial on damages.
The employer unsuccessfully attempted to separate the three employees into three different lawsuits, and appealed the lower court’s ruling, to the 11th Circuit Court of Appeals (controlling in Florida).
During oral argument, on judge interrupted the employer’s lawyer with dismissive comments about the employer’s defense that the employees had not proven their case, calling it a “hell of a coincidence” that the employees who spoke out were fired.
The Judge said, “OK, odds are you’re going to fire one out of the five if you just fire non-discriminatorily; two, that’s a coincidence; three, that’s a hell of a coincidence; four that’s compelling proof…Come on, why could a reasonable jury not look at that and say ‘of course they fired them because they talked.’”
The federal appeals court panel recently upheld the verdict of the District Court for the Middle District of Florida that the three former employees were illegally fired for cooperating in an investigation. Schuman v. Lee Cty. Bd. of Cty. Comm’rs, No. 16-15325, 2017 U.S. App. LEXIS 11638 (11th Cir. June 29, 2017)
The appellate ruling stated, “For the reasons we discussed at length with the attorneys during oral argument, the evidence was more than sufficient to support the jury's verdict on each claim. The sufficiency of evidence issue is not close.”
The employer prevailed on one point in the appeal, relating to the size of the award to one employee and the trial judge was directed to recalculate that employee’s award for lost retirement benefits.
The employer is currently in the process of reviewing whether to appeal the 11th Circuit decision.
If you need any assistance in determining in addressing a possible whistleblower or retaliation issue concerning your Florida business or if you need guidance in any employment policies, please email or call the Law Office of David Miklas, P.A. at 1-772-465-5111.
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