Fifth DCA Confirms Whistle-blowers Must Follow Statutory Requirements

In University of Central Florida Board of Trustees v. Turkiewicz, Florida’s Fifth District Court of Appeal quashed a trial court order that departed from the essential requirements of law. Turkiewicz was employed by UCF for a number of years, first as Director of Safety and Security and later as Director of Police and Public Safety.

Beginning in late 2005 or early 2006, Turkiewicz disclosed to his supervisor, UCF’s Vice President for Administration and Finance, what he believed were regulatory violations and/or acts of gross malfeasance and waste of public funds by UCF. On November 8, 2006, Turkiewicz’s supervisor suggested that he consider a change in employment, and later that month, UCF notified Turkiewicz in writing that his contract would not be renewed the following year.

Turkiewicz initiated a grievance against UCF pursuant to the university’s regulations. His grievance alleged 12 violations of university rules or Florida Statutes. UCF’s audit office and a grievance panel deemed the allegations unsubstantiated and denied the grievance. A step two hearing before a UCF vice-president affirmed Turkiewicz’s non-reappointment, and the university’s president ultimately affirmed the decision. Tukiewicz then filed suit for violation of Florida’s public whistle-blower’s statute.

UCF filed a motion to dismiss Turkiewicz’s lawsuit, asserting that he failed to comply with the whistle-blower’s statute’s requirement that administrative remedies be exhausted before a lawsuit is filed. Because Turkiewicz failed to file a complaint with the Florida Commission on Human Relations before suing, UCF contended the lawsuit had to be dismissed.

The trial court deemed the statute unclear and denied UCF’s motion to dismiss. The Court of Appeal, however, deemed the trial court’s order to be a departure from essential requirements of law that irreparably harmed the university.

Because we agree that the Act requires that Turkiewicz seek relief from the Florida Commission on Human Relations [“FCHR”] before filing a civil action, and there is no dispute that Turkiewicz failed to seek relief from the FCHR, we grant the writ and quash the order.

In short, the Court of Appeal held that a state employee’s filing an internal complaint or grievance is not sufficient to preserve a claim under the public whistle-blower’s statute. Instead, a timely complaint must be filed with the Florida Commission on Human Relations. As the Fifth District Court of Appeal observed, “there is easily a distinction between UCF’s internal grievance process and the detailed administrative procedure outlined in section 112.31895, which is designed to give the state an opportunity to identify and expeditiously resolve meritorious claims.”

On a final note, reader’s of this blog post should note that the Turkiewicz case involved a claim by a state employee. The procedures that govern whistle-blower claims by public employees of local governments are a bit different. Employees of cities, counties, and other forms of local government should review the Public Whistle-blower’s Act or consult an attorney to ensure that their claims are timely and properly filed in strict compliance with the Act’s requirements.

Reminder to Small Business: Understand Contract Before Signing

A decision released by Florida’s Fifth District Court of Appeal on October 2, 2009, provides an opportunity to remind small business owners of the unintended consequences that may result from the use of forms or signing of contracts that are not fully understood.

The Fifth District’s decision addresses the limited circumstances in which a trial court can overturn an arbitrator’s ruling, even if the arbitrator’s ruling is legally wrong. Arbitration is one form of Alternative Dispute Resolution (ADR). Many parties to disputes, especially businesses, have turned to ADR over the past three decades as a means of achieving a final outcome faster and less expensively than litigation in courts whose dockets are backlogged and whose procedures are time consuming and expensive to navigate. Mediation, a form of negotiation facilitated by a neutral third party, is another form of ADR.

Because mediation requires the agreement of all parties before an outcome becomes binding, it provides fewer opportunities for dissatisfied parties. Arbitration, on the other hand, usually yields a winner and a loser, and as the Fifth District’s opinion highlights, the loser may be the party who required arbitration by including an arbitration clause in its contract. Parties who agree in a written contract to resolve their cases through arbitration are bound by that agreement if one of the parties requests the trial court to send the case to arbitration. Such was the case in Commercial Interiors Corporation of Boca Raton v. Pinkerton & Laws, Inc.

Commercial Interiors arose from subcontracts for interior painting and other work on a Hampton Inn hotel being constructed by P&L in Pinellas County. P&L drafted the subcontracts on its own form, a form that contained an arbitration provision requiring arbitration in the event of a dispute. P&L failed to pay $51,209, and Commercial Interiors filed suit. P&L filed a motion to compel arbitration as the contracts required, so the case moved to arbitration. P&L then moved to have the case dismiss, but the arbitrator denied P&L’s motion. P&L thought the arbitrator had misapplied the law and, therefore, asked the trial court to overturn the arbitrator’s decision and dismiss the case, which the trial court did.

Commercial Interiors appealed the trial court’s decision, and the Fifth District agreed with Commercial Interiors and reversed the trial court’s order. The Fifth District framed the issue as “what standard the trial court should use if asked to review the arbitrator’s ruling on illegality.” The court of appeals then looked to section 682.13, Florida Statutes, which addresses the circumstances in which a trial court may vacate an arbitration award. As the appellate court wrote:

That statute dictates that a court shall vacate an award when: (a) the award was procured by corruption, fraud or other undue means; (b) there was evident partiality by the arbitrator appointed, corruption in any of the arbitrators or umpire, or misconduct prejudicing the rights of any party; (c) the arbitrators or the umpire in the course of exercising jurisdiction exceeded their powers; (d) the arbitrators or the umpire in the course of her or his jurisdiction refused to postpone the hearing upon sufficient cause being shown or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 682.06, as to prejudice substantially the rights of a party; (e) there was no agreement or provision for arbitration subject to this law, unless the matter was determined in a proceeding under section 682.03, and unless the party participated in the arbitration hearing without raising the objection.

The Fifth District noted that it had decided in an earlier case that parties desiring to overturn an arbitrator’s decision must establish one of the five grounds described in section 682.13. Accordingly, the court reaffirmed that “‘neither a circuit court nor a district court of appeal has the authority to overturn the award,’” if a party fails to establish a statutory basis for doing so. This is so even if a judge disagrees with the arbitrator’s application of law to the facts of the case, as occurred in P&L’s case. Quoting the Florida Supreme Court, the district court of appeal said, “An award of arbitration may not be reversed on the ground that the arbitrator made an error of law.”

One can argue that the rule followed by the court of appeals is harsh. On the other hand, any other rule would undermine the basic principle of contract law that parties should get what they bargain for – in this case, the decision of an arbitrator instead of the decision of a judge.

The moral of the story is simply this: Be careful what you ask for (or agree to) because you might get it.

Reminder to Employers: Mishandling Complaints of Discrimination Can Be As Costly As Discrimination Itself

A divided panel of the United States Court of Appeals for the Ninth Circuit recently affirmed a jury verdict in favor of Muslim man of Moroccan national origin who accused his employer, internet company Go Daddy Software, Inc., of discrimination and retaliation. The jury concluded Go Daddy did not discriminate against the man but that it did retaliate against him after he complained of activity he reasonably believed was discriminatory.

The decision affirmed a trial court ruling upholding the verdict, even though the trial court reduced the amount of the verdict and declined to order that the employee be reinstated to a job at Go Daddy. The Ninth Circuit’s decision provides an opportunity to remind employers that mishandling employee complaints of discrimination can be as costly as discrimination itself.

The outcome in EEOC v. Go Daddy Software, Inc. can largely be attributed to technical legal rules that prevent parties from raising arguments for the first time on appeal and that prohibit appellate judges from making credibility determinations and weighing evidence.

The Ninth Circuit recognized the general rule that offhand comments, and isolated incidents, “unless extremely serious,” do not constitute discrimination, and it further recognized that a complaint about an isolated incident is not protected under anti-retaliation laws unless a “reasonable person” would believe that the isolated incident violated anti-discrimination laws. Determining what a reasonable person would believe requires “[l]ooking at all the circumstances, including the frequency of the discriminatory conduct[] [and] its severity.”

“All the circumstances,” the Ninth Circuit said, includes consideration of all hostile comments, including comments an employee may not have reported.

[I]f a person has been subjected to more than one comment, and if those comments, taken together, would be considered by a reasonable person to violate Title VII, that person need not complain specifically about all of the comments to which he or she has been subjected. Unreported comments, in other words, are relevant to the inquiry concerning the reasonableness of the belief that a violation has occurred. In such circumstances, a complaint about one or more of these comments is protected behavior.

Because the terminated employee had complained about discriminatory conduct only days before his termination, a “jury reasonably could have found that both Mr. Franklin and Ms. Slezak were aware of the protected activity [the complaint] and that their termination of Mr. Bouamama was in response to that activity.” Thus, Go Daddy ended up paying more than $200,000 to the former employee, as well as the substantial attorneys’ fees it incurred in defending the lawsuit. The trial court also has the authority to order Go Daddy to pay the attorneys’ fees of its former employee.

Lilly Ledbetter Saves the Day (Again)

Appellate courts (Supreme Courts and Courts of Appeals) rarely rehear a case once a decision has been made. The rules for obtaining a rehearing are strict, and courts generally have the discretion to deny a timely request for rehearing, even if the request has merit. Even rarer than rehearing are instances in which a court changes its opinion as the result of rehearing. So, when a court grants rehearing and changes its opinion about a particular case, the decision is noteworthy. Mikula v. Allegheny County of Pennsylvania is such a case.

Decided September 10, 2009, Mikula gives full effect to Congress’s intent to overturn the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 500 U.S. 618 (2007). Following Ledbetter, in which Justice Ruth Bader Ginsburg dissented and beseeched Congress to act, Congress passed the Lilly Ledbetter Fair Pay Act of 2009. The purpose of the Act was to reinstate the law regarding the timeliness of compensation claims as it was before the Ledbetter decision was handed down by the Supreme Court. Accordingly, the Act is retroactively applied to all cases pending on and after May 28, 2007, the date the Supreme Court issued its decision.

Ms. Mikula’s case was pending in the district court when the Supreme Court decided Ledbetter, so the trial judge dismissed Mikula’s pay discrimination claim on the basis of the Supreme Court’s decision. Ms. Mikula appealed, and the Third Circuit Court of Appeals affirmed that portion of the district court’s order (Mikula also asserted claims under the Equal Pay Act, a claim the Third Circuit initially sent back to the district court despite affirming dismissal of the discrimination claim). Although the Third Circuit’s original decision was made after Congress passed the Act, it initially believed that Mikula’s discrimination claim was still untimely because, it said, an unanswered request for a pay raise was not equal to “adoption of a discriminatory compensation decision.”

In a remarkable about-face, the Third Circuit wrote:

Despite our earlier decision, we now hold that the failure to answer a request for a raise qualifies as a compensation decision because the result is the same as if the request had been explicitly denied.

The court reaffirmed, however, that an employer’s report following an investigation of a discrimination claim is not a “compensation decision.” The court justified its decision in this regard by observing that making an investigation report an adverse employment action “would have the unfortunate effect of encouraging employers to ignore such complaints [of discrimination].”

The Third Circuit’s decision does not represent a complete victory for Ms. Mikula; rather, it simply means that she will have an opportunity to go forward with her case. She still must prove that the employer’s decision to deny her request for a raise was motivated by her gender.

The Lilly Ledbetter Fair Pay Act of 2009 helps Ms. Mikula because it permits her to recover for discriminatory pay practices that resulted from the denial of her request for a raise. The employer’s denials of Mikula’s requests occurred outside the applicable limitations period; therefore, without the Act, Mikula’s discrimination claim would have been time-barred. After reviewing the law of pay discrimination as it stood immediately before the Supreme Court’s Ledbetter decision, which is what the Act reinstated, the Third Circuit concluded:

Mikula’s Title VII pay discrimination claim is timely as to paychecks that she received after June 20, 2006 (300 days before she filed her EEOC charge) if they reflect a “periodic implementation” of a previously made intentionally discriminatory employment decision or “other practice.”

Gay Man Entitled to Trial on Claims of Sex Stereotyping and Retaliation

On August 28, 2009, the Third Circuit Court of Appeals released an important opinion in Prowel v. Wise Business Forms, Inc., which determined that a gay employee was entitled to a jury trial on his claims of sex discrimination based on his claim of sex stereotyping and concomitant retaliation. The case is significant because federal anti-discrimination laws do not prohibit discrimination on the basis of one’s sexual orientation; yet, in Prowel, a gay man was able to assert a sex discrimination claim because he had been stereotyped “based on his sex.” The U.S. Supreme Court first recognized claims for gender stereotyping in a case involving a woman who was denied partnership in an accounting firm. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There, the woman was denied partnership because she used profanity, was not charming, and did not walk, talk, or dress in a feminine manner. A plurality of the Supreme Court concluded that, in prohibiting discrimination based on sex, Congress intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” 490 U.S. at 251.

The Prowel court relied on Price Waterhouse to conclude that, although employers can legally discriminate against gays and lesbians based on their orientation, “once a plaintiff shows that harassment is motivated by sex, it is no defense that it may also have been motivated by anti-gay animus. [Citation omitted.] In sum, ‘[w]hatever the sexual orientation of a plaintiff bringing a same-sex sexual harassment claim, that plaintiff is required to demonstrate that the harassment was directed at him or her because of his or her sex.’” An employee meets this burden when they demonstrate that “‘the[ir] harasser was acting to punish [their] noncompliance with gender stereotypes.’”

Mr. Prowel’s testimony, coupled with the fact he was laid off before typical male employees with worse performance records, was sufficient, the court said, to create an issue of fact for a jury.

The case is unintentionally humorous because the outcome results, at least in part, from outdated stereotypes. Testimony described the “typical” straight male employee as:

[B]lue jeans, t-shirt, blue collar worker, very rough around the edges. Most of the guys there hunted. Most of the guys there fished. If they drank, they drank beer, they didn’t drink gin and tonic. Just you know, all into football, sports, all that kind of stuff, everything I wasn’t.

According to the Third Circuit, Prowel was not typical:

In stark contrast to the other men at Wise, Prowel testified that he had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot “the way a woman would sit”; walked and carried himself in an effeminate manner; drove a clean car; had a rainbow decal on the trunk of his car; talked about things like art, music, interior design, and decor; and pushed the buttons on the nale encoder with “pizzazz.”

In summary, employers may not argue that because an employee is homosexual, they are precluded from bringing a gender stereotyping claim.

There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not. As long as the employee — regardless of his or her sexual orientation — marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred “because of sex,” the case is not appropriate for summary judgment. For the reasons we have articulated, Prowel has adduced sufficient evidence to submit this claim to a jury.

County Faces Trial for Alleged Reverse Discrimination

Earlier this summer, the 11th Circuit Court of Appeals, the federal appellate court that resolves appeals from U.S. District Courts in Florida, Alabama, and Georgia, affirmed the trial court’s order finding that DeKalb County, Georgia CEO, Vernon Jones, and other DeKalb County employees were not immune from liability for reverse discrimination. In Bryant v. CEO DeKalb Co. Vernon Jones, the court of appeals concluded that Jones’s policy of promoting a “darker administration” to reflect “the new DeKalb County,” if proven to be the motivating factor behind adverse employment actions, would constitute violations of clearly established statutory or constitutional rights. Government officials are sheltered from liability for civil damages resulting from performance of their discretionary functions only if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The policy behind the doctrine of qualified immunity is the product of balancing the need to hold officials accountable when they act irresponsibly against the need to protect officials from harassment and distraction when they perform their duties reasonably. To receive immunity, an official must establish that s/he was engaged in a “discretionary function” at the time they committed the allegedly unlawful act. If that burden is met, the plaintiff must then establish that the official is not entitled to immunity. To do this, the plaintiff must show that the official violated a constitutional or statutory right and that the right was clearly established at the time of the alleged wrongful act. Courts must view all evidence and inferences from the evidence in the light most favorable to the plaintiff in deciding whether the plaintiff has met her burden.

The 11th Circuit’s opinion explores in detail what an employee must show to establish a hostile work environment claim. One of the elements – that the harassment “was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment” – requires that the harassment be considered hostile and abusive by both a “reasonable person” and by the victim. Thus, a sensitive victim has no recourse if a reasonable person would not find the environment hostile and abusive. In determining what a reasonable person would perceive, the court looks to (1) the frequency of the discriminatory conduct, (2) the severity of the discriminatory conduct, (3) whether the conduct is physically threatening or humiliating or is merely offensive, and (4) whether the conduct unreasonably interferes with the employee’s work performance.

Because one of the plaintiffs in Bryant had voluntarily quit, the 11th Circuit also reviewed the legal requirements for establishing a “constructive discharge” claim. The court did not establish new law in this regard; rather, it simply reaffirmed that “the plaintiff must show ‘the work environment and conditions of employment were so unbearable that a reasonable person in that person’s position would be compelled to resign.’” The Court reiterated, “[e]stablishing a constructive discharge claim is a more onerous task than establishing a hostile work environment claim.” Employers may defeat a constructive discharge claim, if the plaintiff has not quit in reasonable response to adverse action, by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints, and (2) that the plaintiff unreasonably failed to avail herself of the employer-related remedial apparatus.

Upon reviewing these well-established rules, the court of appeals wrote that it was “careful not to gild the lily” but that the plaintiffs had produced “shocking evidence” of an “overt and unabashed pattern of discrimination.” Because the question is not whether an official “actually knew, or should have known” that their actions were unlawful, but, instead, is “whether reasonable officials occupying their positions would have known that their actions were unlawful,” the court concluded that reasonable officials would have known that race discrimination is unlawful.

The opinion also contains discussion of retaliation (a black employee suffered retaliation for not participating in the discrimination) and the doctrine of “legislative immunity.”

Florida Whistle-Blower’s Act Prohibits Retaliation Against Employees

Florida and federal law do not protect employees from all unfair treatment by their employer. “The law,” sadly, does not provide a right for every wrong. Thus, when an employee experiences an adverse employment action, such as termination or demotion, the employer’s motivation for taking the action must be scrutinized. Only when a prohibited factor motivated the employer’s action is the employer liable to the employee for reinstatement, monetary damages, or other relief.

Florida law offers employees fewer protections than the law of several other states, but one Florida law, the Florida Whistle-Blower’s Act, section 448.102, Florida Statutes, is broader than the name implies and may provide relief to employees who, at first glance, appear to be without a remedy.

An example of such a case appeared today in the Ocala Star-Banner’s online edition. That employee alleges that she was terminated in retaliation for providing information to a governmental agency investigating the deaths of 21 polo horses.

The Act specifically prohibits employers from taking any retaliatory personnel action against an employee because the employee has:

(1) Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice.

(2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.

(3) 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.

Employers who violate the Whistle-Blower’s Act may be liable for the employee’s attorneys fees, and a court may award the employee:

a) An injunction restraining continued violation of the Act;

(b) Reinstatement to the same position held before the retaliatory personnel action, or to an equivalent position;

(c) Reinstatement of full fringe benefits and seniority rights;

(d) Compensation for lost wages, benefits, and other remuneration; and

(e) Any other compensatory damages allowable at law.

FLORIDA AND FEDERAL MINIMUM WAGE RAISED TODAY

The federal minimum wage increases to $7.25 per hour today. Because the Florida minimum wage is currently $7.21 per hour, Florida minimum wage will also increase by four cents, to $7.25 per hour. Governing law requires that employers pay the higher of the minimum wage mandated by state law or federal law.

In 2004, Florida voters approved a state constitutional amendment (Art. X, Sec. 24, Fla. Const.) that increased the Florida minimum wage. Under the state constitution and implementing statutory law, the Florida Agency for Workforce Innovation must calculate a new minimum wage each year on September 30, based on the Consumer Price Index. If that calculation is higher than the federal rate, the state’s rate takes effect the following January.

The minimum wage is different for tipped employees. The current Florida rate of $4.19 per hour plus tips also increases today to $4.23 per hour as a result of the federal increase.

Employees who are not paid the required minimum wage may bring a civil lawsuit against their employer. Federal law also permits many employees to sue employers who fail to pay required overtime compensation. Because legal protections do not extend to all employees, one must verify whether minimum wage and overtime laws apply to their given jobs.

Home Depot Must Explain Terminations

By a 2-1 vote, a panel of the U.S. Court of Appeals for the Eleventh Circuit last week concluded that sexually suggestive behavior of a Home Depot regional human resources manager toward two Home Depot store managers did not create a sufficiently pervasive or severe work environment as to be actionable.

The dissenting judge felt that that the sexually-charged behavior and comments should be viewed in context. “Certainly there is a difference between a coworker cheerfully stating, “Hey, I really like your pants,” and a coworker stating, “I really like how you look in those pants….” The dissent also suggested, while avoiding use of the controversial term “activist,” that the majority overstepped its role by deciding fact issues that should be left for the jury.

Notwithstanding its resistance to the store managers’ harassment claims, the court unanimously agreed that the store managers should have their day in court on the question of whether Home Depot terminated them in retaliation for complaining about the harassment. Even though the store managers could not identify the individual who made the ultimate decision to terminate their employment, the court held “evidence that a biased employee with retaliatory motives influenced or participated in the decision to terminate an employee raises a genuine issue of material fact whether there is a causal connection between the employee’s protected conduct and his termination.” The managers were terminated 25 days after formally complaining, and they presented other evidence that Home Depot’s purported reason for the terminations was a sham.

The case is Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir. July 10, 2009), and the opinion is available online HERE.