Barbara Rustowicz v. North Broward Hospital District n/k/a Broward Health

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BARBARA RUSTOWICZ,
Appellant,
v.
NORTH BROWARD HOSPITAL DISTRICT n/k/a BROWARD HEALTH,
Appellee.
No. 4D13-2059
[July 1, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Marina Garcia-Wood, Judge; L.T. Case No.
CACE09044253.
Michael A. Pancier of Michael A. Pancier, P.A., Pembroke Pines, for
appellant.
Julissa Rodriguez and Stephanie L. Varela of Greenberg Traurig, P.A.,
Miami, and Caran Rothchild and Kristina L. Ciaffi of Greenberg Traurig,
P.A., Fort Lauderdale, for appellee.
CONNER, J.
Barbara Rustowicz appeals the trial court’s summary judgment in favor
of North Broward Hospital District (“the employer”), a governmental entity
supported by tax dollars. Rustowicz sued the employer alleging her
employment as an audit associate was terminated in violation of Florida’s
Whistleblower Act (“the Whistleblower Act”)1 and Florida’s Civil Rights Act
(“the Civil Rights Act”).2 We affirm, without discussion, the summary
judgment as to the two counts alleging violations of the Civil Rights Act.
The trial court granted summary judgment on the Whistleblower count
after determining there was no dispute of material fact that Rustowicz did
not make protected disclosures (1) in a signed written complaint or (2) to
the appropriate official. As to the Whistleblower count, we determine the
1 Sections 112.3187-112.31895, Florida Statutes (2013), is Florida’s Whistle-
blower’s Act. The section pertinent to this appeal is section 112.3187.
2 Sections 760.01-760.11 and 509.092, Florida Statutes (2013), are formally cited
as the “Florida Civil Rights Act of 1992.”
trial court erred in its application of the law and reverse for further
proceedings.
Factual Background and Trial Court Proceedings
Events Leading Up to Discharge From Employment
The employer is a hospital created by special taxing district legislation.
The hospital’s business affairs are managed by a board of commissioners
(“the Board”) and a chief executive officer (“CEO”). The employer has an
Internal Audit Department. The Internal Audit Department’s director
answers to the Board, not the CEO. There is also an Audit Committee
composed of one of the Board members, two outside auditors chosen by
the Board, and the Internal Audit Department director. It is the Internal
Audit Department’s function to independently review, evaluate, and report
to the Board on the accuracy of financial record keeping and compliance
with applicable laws, rules, regulations, policies, and procedures. The
Audit Committee was created to assist the Internal Audit Department and
to act as liaison between the Board and the Internal Audit Department.
Rustowicz was an employee initially hired as an executive secretary
working under a former Internal Audit Department director (“Director R”).
Director R decided to eliminate the position of executive secretary and
moved Rustowicz into a newly-created position entitled “audit associate.”
As audit associate, Rustowicz performed many of the same tasks that she
did as executive secretary. However, as a result of the creation of the new
position, some secretarial tasks needed by the Internal Audit Department
were shared with the legal department.
Before her employment with the hospital, Rustowicz suffered from
depression and anxiety, which she treated with prescribed medication.
After her employment, she was diagnosed with Crohn’s disease, a painful,
chronic disorder of the digestive system. Stress causes Crohn’s disease to
flare up. Rustowicz’s health issues caused her to take intermittent periods
of medical leave. In addition to FMLA leave,3 the employer had a medical
leave policy allowing for up to an additional three months of leave time.
In July 2006, the Board entered into a written employment agreement
with a new CEO (“CEO L”). At the time, CEO L lived in Tallahassee. One
of the Board members, without the knowledge of the other Board
members, also negotiated a relocation side agreement with CEO L.
Pursuant to the relocation agreement, CEO L received $35,000 to cover
3FMLA leave is medical leave from employment pursuant to the federal Family
and Medical Leave Act. 29 U.S.C. § 2601 et seq.
2
the expenses of relocating from Tallahassee to Broward County. CEO L
left the hospital for another job in January 2008. During his employment
with the hospital, CEO L never relocated from Tallahassee.
In February 2008, Rustowicz discovered the $35,000 relocation
payment to CEO L. She brought the matter, as well as other questionable
expense items by CEO L, to the attention of Director R. Director R directed
Rustowicz to investigate the expenditures further and to determine if there
were additional irregularities.
Rustowicz found at least three significant violations of law, as well as
the hospital’s code of conduct. She compiled a report (“the audit report”),
which was submitted to Director R, and eventually the Audit Committee
and the Board.
Using the normal audit investigation procedure, the Internal Audit
Department would have sought a response from the person under
investigation before an audit report was submitted to the Board. However,
detailed information from the investigation was leaked to the press,
creating a firestorm. The firestorm eventually caused the Board to
discharge Director R. Director R was discharged three months after the
audit report was delivered to the Board. Shortly thereafter, Director R
sued the employer, keeping the firestorm going.
Tension within the Internal Audit Department was high, causing
Rustowicz to fear losing her job. The stress caused her to take extensive
amounts of medical leave during the five months between the discharge of
Director R and hiring of the new director (“Director P”). During the interim,
the employer’s general counsel served as the Internal Audit Department’s
interim director (“Interim Director K”), even though he had no accounting
experience. Interim Director K advised Rustowicz and all of the members
of the Internal Audit Department that they would have to give depositions
against Director R in the suit he filed against the employer.
Between September 2008 and March 2009, Rustowicz used all of her
FMLA leave and the additional non-FMLA medical leave allowed for
hospital employees. However, she began experiencing problems from the
employer with using her medical leave and returning to work that she had
not experienced before her submission of the audit report to the Board.
For example, she was told she had to fill out medical forms in a more
detailed manner to disclose medication she was taking. When Rustowicz
wrote on the form the amount and time of day she was taking Xanax, she
was told by the Employee Health Director that she was not able to return
to work. This was despite the fact that Rustowicz alleged that Director R
3
had known for years she was taking Xanax to reduce anxiety in order to
avoid or reduce the flare-ups of Crohn’s disease.
Director P began working for the employer on December 29, 2008.
Rustowicz was out on medical leave at that time and remained on leave
until the end of February 2009. It was alleged that Director P signed off
on two leave forms which extended Rustowicz’s leave until the end of
February. When Rustowicz attempted to return to work on February 27,
she was again advised by the Employee Health Director that she could not
return to work and take Xanax medication at work. In response,
Rustowicz advised she was going to call her attorney and left for lunch. In
the meantime, the Employee Health Director contacted Rustowicz’s doctor,
who faxed a statement that he had reviewed the job description for the
audit associate and it was his opinion that she could take the prescribed
doses of Xanax at work and safely perform her job, with no restrictions.
The Employee Health Director later admitted, based on the statement from
Rustowicz’s doctor, that he could not preclude Rustowicz from coming to
work because of her Xanax use.
Upon Rustowicz’s return to work after lunch, she was immediately sent
to a meeting with Director P and the Human Resources Director. At that
time, she was advised the audit associate position had been eliminated
due to a restructuring of the Internal Audit Department by Director P, and
the former position of executive secretary had been restored, but the
position was already filled by another person. Rustowicz was offered the
opportunity to apply for other positions with the employer. She applied
for four other positions, but was not hired for any of them because she did
not meet the degree requirements.
Trial Court Proceedings and Summary Judgment
Rustowicz filed suit pursuing three counts. Count 1 alleged a violation
of the Whistleblower Act. Counts 2 and 3 alleged violations of the Civil
Rights Act.
The employer filed a motion for summary judgment as to all three
counts. The parties engaged in discovery. Pertinent to the issues on
appeal is an affidavit by Director P filed in support of the motion and the
deposition testimony of Rustowicz and Interim Director K. The details of
the pertinent summary judgment evidence are discussed in the appellate
analysis below.
The trial court granted summary judgment as to all three counts. The
basis for granting summary judgment of the Whistleblower count is
discussed below.
4
Appellate Analysis
“The standard of review of an order granting summary judgment is de
novo.” Patten v. Winderman, 965 So. 2d 1222, 1224 (Fla. 4th DCA 2007)
(quoting Biggins v. Fantasma Prods., Inc. of Fla., 943 So. 2d 952, 955-56
(Fla. 4th DCA 2006)). Summary judgment is proper only when “there is
no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); see also
Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006).
“[A summary] judgment should not be rendered . . . unless the facts are
so crystallized that nothing remains but questions of law.” Villazon v.
Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003) (quoting
Shaffran v. Holness, 93 So. 2d 94, 97-98 (Fla. 1957)). “Where the record
demonstrates the possibility of a disputed fact, summary judgment is
improper.” Pep Boys-Manny, Moe & Jack, Inc. v. Four Seasons Commercial
Maint. Inc., 891 So. 2d 1160, 1161 (Fla. 4th DCA 2005) (citing Albelo v. S.
Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996)). “It is the burden of the
moving party to show conclusively that a genuine issue of a material fact
does not exist before a summary judgment should be entered, and it
should be further shown that the moving party is entitled to judgment as
a matter of law.” A.B.G. Inv., Inc. v. Selden, 336 So. 2d 444, 446 (Fla. 4th
DCA 1967) (citing Holl v. Talcott, 191 So. 2d 40 (Fla. 1966)).
The legislature plainly stated its intent in enacting the Whistleblower
Act: to prevent retaliatory action against employees and persons who
disclose certain types of government wrongdoing to appropriate officials.
See § 112.3187(2)-(7), Fla. Stat. (2009); Rice-Lamar v. City of Fort
Lauderdale, 853 So. 2d 1125, 1131-32 (Fla. 4th DCA 2003). “The act is
remedial in nature and should be construed liberally in favor of granting
access to the remedy so as not to frustrate the legislative intent.” Rice-
Lamar, 853 So. 2d at 1132 (citations omitted).
The elements of a cause of action for retaliatory discharge under the
Whistleblower Act are: (1) the plaintiff engaged in statutorily protected
expression; (2) the plaintiff suffered an adverse employment action; and
(3) there is some causal connection between the two events. Fla. Dep’t of
Children & Families v. Shapiro, 68 So. 3d 298, 305-06 (Fla. 4th DCA 2011).
The causal link element is construed broadly so that “a plaintiff merely
has to prove that the protected activity and the negative employment
action are not completely unrelated.” Rice-Lamar, 853 So. 2d at 1132-33(quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.1998)).
Florida applies federal Title VII case law to the Whistleblower Act. Id. at
1132.
5
Because Florida applies the Title VII analysis to retaliatory discharge
under the Whistleblower Act, the burden shifting analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), applies.
Under the McDonnell Douglas framework, the plaintiff must
first establish, by a preponderance of the evidence, a prima
facie case of unlawful discrimination. McDonnell Douglas, 411
U.S. at 802, 93 S.Ct. 1817. If the plaintiff successfully
presents a prima facie case, the defendant employer has the
burden of producing evidence of some “legitimate,
nondiscriminatory reason” for the adverse employment action.
Id. at 802, 93 S.Ct. 1817. If the defendant carries its burden
of producing some legitimate nondiscriminatory reason for its
employment action, the plaintiff has the opportunity to prove
that the proffered reason was merely a pretext for the
defendant’s actions. Id. at 804, 93 S.Ct. 1817. The ultimate
burden of proving intentional discrimination against the
plaintiff remains with the plaintiff at all times. See Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089,
67 L.Ed.2d 207 (1981).
Byrd v. BT Foods, Inc., 948 So. 2d 921, 927 (Fla. 4th DCA 2007).
The trial court granted summary judgment in favor of the employer on
the Whistleblower count after concluding that there was no dispute of
material fact that: (1) Rustowicz did not submit “written complaints” as
defined under the Whistleblower Act; and (2) she did not make protected
disclosures to “[the] chief executive officer or other appropriate local
official.” In recognition that the stated reasoning of the trial court may not
withstand appellate review, the employer makes alternative arguments as
to why we should affirm summary judgment without directly asking that
the tipsy coachman doctrine be applied.4 Using the McDonnell Douglas
framework, the employer argues Rustowicz failed to come forward with
sufficient summary judgment evidence to establish: (1) the causal link
between her disclosures and discharge, and (2) the employer’s stated
reason for discharge was pretextual. For that reason, we first review the
4 Although the employer does not explicitly request that we apply the tipsy
coachman doctrine, we arguably could apply it because the order granting
summary judgment could be broadly read to implicitly grant summary judgment
as to the Whistleblower count because Rustowicz failed to make an evidentiary
showing of a prima facie case and pretext. See Stark v. State Farm Fla. Ins. Co.,
95 So. 3d 285, 289 n.4 (Fla. 4th DCA 2012) (declining to apply the tipsy
coachman doctrine in the summary judgment context when the alternative
argument was not ruled upon by the trial court).
6
justifications stated by the trial court for granting summary judgment. We
then address whether summary judgment should be affirmed based on the
alternative arguments made by the employer.
The Written Complaint Requirement
Section 112.3187(7) of the Whistleblower Act states:
(7) Employees and persons protected.--This section protects
employees and persons who disclose information on their own
initiative in a written and signed complaint; who are requested
to participate in an investigation, hearing, or other inquiry
conducted by any agency or federal government entity; who
refuse to participate in any adverse action prohibited by this
section; or who initiate a complaint through the whistle-
blower’s hotline or the hotline of the Medicaid Fraud Control
Unit of the Department of Legal Affairs; or employees who file
any written complaint to their supervisory officials or
employees who submit a complaint to the Chief Inspector
General in the Executive Office of the Governor, to the
employee designated as agency inspector general under s.
112.3189(1), or to the Florida Commission on Human
Relations.
§ 112.3187(7), Fla. Stat. (2009). As can be seen, the statute extends
protection to five categories of employees: those who (1) disclose
information on their own initiative in a written and signed complaint; (2)
are requested to participate in an investigation, hearing, or other inquiry
conducted by any agency or federal government entity; (3) refuse to
participate in any adverse action prohibited by the act; (4) initiate a
complaint through the whistleblower's hotline or the hotline of the
Medicaid Fraud Control Unit of the Department of Legal Affairs; and (5)
file any written complaint to their supervisory officials or employees who
submit a complaint to the Chief Inspector General in the Executive Office
of the Governor, to the employee designated as agency inspector general
under section 112.3189(1), or to the Florida Commission on Human
Relations.
Rustowicz argued to the trial court, although not extensively, that she
was protected because of her participation in the investigation of CEO L’s
expenditures. The employer responded that even that category of
employees are required to disclose the protected information in writing.
Most of the arguments to the trial court focused on the language of the
statute regarding employees “who disclose information on their own
7
initiative in a written and signed complaint.” The trial court agreed with
the employer that protected disclosures had to be in writing and signed by
the complainant and did not specifically address the category of employees
who are requested to participate in an investigation. The employer’s
argument that disclosures as to that category of employees has to be in
writing and signed by the complainant is incorrect.
The language of section 112.3187(7) makes it clear that the legislature
intended Whistleblower protection to be extended to employees other than
those who sign a written complaint. The statute specifically extends
protection to:
employees “who are requested to participate in an
investigation, hearing, or other inquiry conducted by any
agency or federal government entity,”
employees “who refuse to participate in any adverse action
prohibited by this section,” and
employees “who initiate a complaint through the whistle-
blower's hotline or the hotline of the Medicaid Fraud Control
Unit of the Department of Legal Affairs.”
If the legislature intended a writing requirement for those three categories
of employees, it could have said so, as it did for the remaining two
categories. It did not. Interpreting the statute to require a signed written
complaint to obtain protection against retaliatory conduct toward
employees who participate in an investigation would leave those employees
who verbally disclose wrongdoing to investigators unprotected. We do not
agree the legislature intended such a result, as it would create a chilling
effect on investigations.
The employer cites to our analysis in Walker v. Florida Department of
Veterans’ Affairs, 925 So. 2d 1149 (Fla. 4th DCA 2006), as support for the
argument that employees who are requested to participate in an
investigation must make their protected disclosures in writing. In Walker,
we wrote:
Under section 112.3187(7), as it applies to this case, a
protected disclosure requires an employee’s “written and
signed complaint,” or a “written complaint to [the employee’s]
supervisory official[ ].”
8
Id. at 1150 (emphasis added). However, the employer overlooks our
qualifying language “as it applies to this case.” Walker is factually
distinguishable from this case. Walker dealt with an employee who
asserted disclosure by way of a written complaint, rather than an employee
who made a disclosure by participating in an investigation. Thus, our
statement in Walker, discussing the requirement of a written and signed
complaint, does not apply to the facts of this case.
Our research has revealed only one case which discusses disclosures
by employees asked to participate in an investigation as protected
Whistleblower activity: Burden v. City of Oka Locka, 2012 WL 4764592(S.D. Fla. Oct. 7, 2012). In Burden, one of the plaintiffs, Burden, the
deputy chief of police for the Opa Locka police department, was asked to
participate in a “Confidential Inquiry” of the department initiated by the
city manager. Id. at *2. Burden’s participation consisted of making
statements during a meeting with two people selected by the city manager
to conduct the inquiry. Id. During Burden’s interviews, he expressed
concerns that the department was disorganized, its procedures outdated,
and discipline was inconsistently handled. Id. Burden attributed the
problems to the police chief. Id.The federal trial court analyzed the “participation in an investigation”
portion of section 112.3187(7), and ruled that “disclosures made pursuant
to an investigation or inquiry need not be made via written and signed
complaints or on the initiative of the one disclosing.” Id. at *14. Regarding
the facts of the case, the court also ruled that summary judgment was
inappropriate as to Burden’s Whistleblower claim, because
a reasonable jury could draw the inference that Burden’s
statements to the Confidential Inquiry were evidence of a
pattern of managerial abuses that amounted to gross
mismanagement by [the police chief]. Therefore, a triable
issue of fact exists as to whether these statements amounted
to a protected activity, and summary judgment would be
inappropriate.
Id. at *15.
We agree with the reasoning of the district court in Burden, and hold
that, if an employee is requested to participate in an investigation, hearing,
or other inquiry concerning governmental wrongdoing by an appropriate
official or official entity, as discussed more fully below, and makes
disclosures of wrongdoing as defined by the Whistleblower Act during or
as a result of participation, the employee qualifies for protection under the
9
Act, and the disclosures need not be by a signed complaint or on the
initiative of the employee. We therefore determine that summary judgment
in favor of the employer on the Whistleblower claim was inappropriate for
the reason that Rustowicz failed to make written disclosures.5 Our
supreme court, interpreting an earlier version of the Whistleblower Act,
reached the same conclusion that a signed written complaint was not
required for protection claimed by employees who participate in an
investigation. Golf Channel v. Jenkins, 752 So. 2d 561 (Fla. 2000).
The Disclosure to an “Other Appropriate Local Official” Requirement
Section 112.3187(6), Florida Statutes (2009), defines the person to
whom the information must be disclosed for Whistleblower protection:
(6) To whom information disclosed.--The information disclosed
under this section must be disclosed to any agency or federal
government entity having the authority to investigate, police,
manage, or otherwise remedy the violation or act, including,
but not limited to, the Office of the Chief Inspector General,
an agency inspector general or the employee designated as
agency inspector general under s. 112.3189(1) or inspectors
general under s. 20.055, the Florida Commission on Human
Relations, and the whistle-blower's hotline created under s.
112.3189. However, for disclosures concerning a local
governmental entity, including any regional, county, or
municipal entity, special district, community college district,
or school district or any political subdivision of any of the
foregoing, the information must be disclosed to a chief executive
5 An additional issue argued by the employer on appeal is that Rustowicz did not
specifically plead that her Whistleblower claim was based on the “participation
in an investigation” portion of the statute. However, Rustowicz also did not
specifically plead that she disclosed the protected information via a written
complaint. In her complaint, she generally alleged a disclosure, and did not
specify the avenue by which she lodged her complaints. There is nothing in the
record that the employer objected to this lack of clarity or raised the issue before
the trial court.
We also note that even if the trial court properly granted summary judgment in
favor of the employer based on the fact that Rustowicz did not specifically state
that she was traveling under the participation in an investigation theory, it
should have granted the summary judgment with leave to amend. Rauch,
Weaver, Millsaps & Co. v. Campbell-Dickey Mktg. Servs., Inc., 354 So. 2d 403 (Fla.
4th DCA 1978) (“Where a summary judgment should be entered, yet the plaintiff
may have a cause of action not pleaded, the proper procedure is to enter the
summary judgment with leave to amend.”) (citing Hart Props., Inc. v. Slack, 159
So. 2d 236 (Fla. 1963)).
10
officer as defined in s. 447.203(9) or other appropriate local
official.
§ 112.3187(6), Fla. Stat. (2009) (emphasis added). The issue in this case
is whether Rustowicz qualified for Whistleblower protection by disclosing
information to an “other appropriate local official.”6 There are a few cases
which discuss the application of the language “other appropriate local
official,” but to date, no case has specifically defined the scope of the
language. Official Opinions of the Florida Attorney General have offered
some guidance.
In an early case discussing the language, Saunders v. Hunter, 980 F.
Supp. 1236, 1239-40 (M.D. Fla. 1997), a corrections officer brought a
cause of action against the sheriff’s office for violations of the
Whistleblower Act after she reported to her supervisors incidences of
sexual harassment while she was on the job. Regarding whether the
corrections officer made her report to an “appropriate local official,” the
court wrote:
Under Fla. Stat § 112.3187(6), an employee must report any
incidents under this section to a “chief executive officer as
defined in § 447.203(9) or other appropriate local official.” The
plaintiff alleges she reported the incidents not to a chief
executive officer but to her supervisors who are appropriate
local officials. The Court finds, since the standard for
dismissing a complaint at this stage in the case is extremely
low, the plaintiff has alleged sufficient facts to withstand a
Motion to Dismiss as to Count I.
Id. at 1246 (emphasis added).
In the more recent case of Quintini v. Panama City Housing Authority,
102 So. 3d 688, 689 (Fla. 1st DCA 2012), the plaintiff, an employee of the
housing agency for Panama City, made a report to the U.S. Department of
6 Section 447.203(9), Florida Statutes (2009), states: “‘Chief executive officer’ for
the state shall mean the Governor and for other public employers shall mean the
person, whether elected or appointed, who is responsible to the legislative body
of the public employer for the administration of the governmental affairs of the
public employer.” Rustowicz argues Director R was “a chief executive officer as
defined in s. 447.203(9)” because he answered directly to the Board, which
Rustowicz contends was the “legislative body of the public employer.” Because it
is not necessary to do so to resolve this appeal, we do not address the merits of
this argument.
11
Housing and Urban Development that he was not being paid the same rate
as other maintenance workers. The First District in Quintini noted that
there had not been any district court decisions analyzing what constituted
an “other appropriate local official,” so it looked to Attorney General
Opinions for guidance. Id. The court provided a summary of the Attorney
General Opinions:
However, the phrase has been the subject of several Attorney
General Opinions. See Op. Att’y Gen. Fla.2012–20 (2012)
(indicating that transit authority board of directors could be
appropriate local official to receive and investigate whistle-
blower complaints); Op. Att’y Gen. Fla.2010–48 (2010) (noting
that county designated inspector general and executive director
of county ethics commission as appropriate local officials); Op.
Att’y Gen. Fla. 99–07 (1999) (stating that county inspector
general qualified as an appropriate local official); Op. Att’y
Gen. Fla. 96–40 (1996) (finding city’s ethics commission was
an appropriate local official under the statute because it could
investigate [violations] and take corrective action).
Id. (emphasis added). The court also noted that “[t]he common element in
these opinions is that the person or entity deemed to be an ‘other
appropriate local official’ was affiliated with the local government in some
way.” Id. The court found that, since the plaintiff reported to a federal
department, and his complaint was regarding a city’s housing authority,
his disclosure was not made to an appropriate local official. Id. at 691. In
reaching its decision, the First District alluded to a statement in Burden
that “appropriate local officials” include officials and entities who are
empowered to investigate complaints and make reports or recommend
corrective action. Id. at 689-90.
We find persuasive the description of an “other appropriate local
official” stated in the Attorney General Opinions and relied upon in
Quintini and Burden. As the court observed in Burden:
Significantly, the Attorney General has found individuals to
be “appropriate local officials” where they are empowered to
investigate complaints and make reports or recommend
corrective action.
Burden, 2012 WL 4764592, at *13 (emphasis added). We find particularly
persuasive the Attorney General Opinion which opined that a town’s code
of ethics commission would qualify as an “appropriate local official.” Op.
Att’y Gen. Fla. 96-40 (1996). The Attorney General reasoned that because
12
the town’s code of ethics commission “was created to administer the town’s
code of ethics by conducting investigations and making public reports on
all complaints concerning breaches of public trust by town officials and
employees,” it qualified as an “appropriate local official” under the Act. Id.Adopting the reasoning of the Attorney General, as well as the
reasoning by the courts in Quintini and Burden, we hold that for protection
under the Whistleblower Act, disclosures of wrongdoing by a local
government entity must be made to either:
(1) a chief executive officer, as defined in s. 447.203(9), Florida
Statutes (2009); or
(2) an official or official entity who is affiliated with the
violating governmental entity and has the authority to
investigate, police, manage, or otherwise remedy the violation
or act by the violating governmental entity.
We agree with the Attorney General that the protection does not require
disclosure to a singular person or official; the protection extends to
disclosures to members of boards, committees, departments, or divisions
affiliated with the offending governmental entity, so long as the board,
committee, department, or division has the authority to investigate, police,
manage, or otherwise remedy the violation or act by the violating
governmental entity.
In this case, the Internal Audit Department had the responsibility to
monitor and investigate employee compliance with the company’s rules
and policies regarding finances. According to the employer’s Code of
Conduct, the Internal Audit Department “routinely conducts internal
audits of issues that have regulatory or compliance implications. The
organization also routinely seeks other means of ensuring or
demonstrating compliance with the laws, regulations, and [the employer’s]
policy.” As discussed in Quintini, Director R was a local official since he
was also an employee of the employer. Additionally, as in Saunders,
Director R was Rustowicz’s supervisor.7 The employer counters that it is
the Corporate Compliance Office that investigates violations, not the
Internal Audit Department. However, it seems that both departments play
a role in investigating compliance issues, especially when you consider
that the employer’s description of the function of the Internal Audit
7 We note that the Fifth District has held that disclosing to a supervisor, alone,
is not enough. See Kelder v. ACT Corp., 650 So. 2d 647, 649 (Fla. 5th DCA 1995).
We do not determine Kelder to apply to this case because in Kelder the employer
was not a governmental entity.
13
Department includes conducting audits that have compliance
implications.
Additionally, there is evidence in the record that Rustowicz made her
disclosures directly to the Board as part of her participation in the
investigation. Although not argued, it seems beyond debate that the Board
has the authority to investigate, police, manage, or otherwise remedy a
violation by an employee of the governmental entity.
Thus, we conclude the trial court erred in granting summary judgment
on the Whistleblower count for the reason that Rustowicz did not make a
protected disclosure to an appropriate local official.
The Employer’s Alternative Arguments for Affirming Summary Judgment
The employer argues two alternative grounds not addressed by the trial
court in affirming summary judgment on the Whistleblower count. The
employer argues Rustowicz failed to present sufficient summary judgment
evidence to prove: (1) the causal link between her disclosures and
discharge, and (2) the employer’s explanation for discharge was pretextual.
Causation may be proved by direct or circumstantial evidence. Smith
v. Airtran Airways, Inc., 744 F. Supp. 2d 1274, 1278 (M.D. Fla. 2010)
(holding that wrongful discharge under Title VII requires proof of causation
by direct evidence or circumstantial evidence). It is unusual for the
plaintiff to travel on direct proof of discrimination to show causation; the
typical case relies upon circumstantial evidence of causation. Combs v.
Plantation Patterns, 106 F.3d 1519, 1537 (11th Cir. 1997) (“Frequently,
acts of discrimination may be hidden or subtle; an employer who
intentionally discriminates is unlikely to leave a written record of his illegal
motive, and may not tell anyone about it.”); Sheridan v. E.I. DuPont de
Nemours & Co., 100 F.3d 1061, 1071 (3d Cir. 1996) (“The distinct method
of proof in employment discrimination cases, relying on presumptions and
shifting burdens of articulation and production, arose out of the Supreme
Court’s recognition that direct evidence of an employer’s motivation will
often be unavailable or difficult to acquire.”). In this case, Rustowicz relies
on circumstantial evidence to establish the causal link.
Causation and Temporal Proximity
The causal link element for retaliatory discharge under the
Whistleblower Act requires the plaintiff to prove the protected activity and
discharge were not wholly unrelated. Shapiro, 68 So. 3d at 306. “Close
temporal proximity between the protected activity and the adverse
employment action can show that the two events were not wholly
14
unrelated.” Id. (citation omitted). “If there is a substantial delay between
the two events, the plaintiff must present other evidence tending to show
causation.” Id. (citation omitted).
The employer argues that causation cannot be established because the
length of time between Rustowicz’s disclosures of wrongdoing in the audit
report and her discharge, ten months, does not meet the temporal
proximity requirement. We are not persuaded by this argument.
The argument focuses on the wrong time frame and ignores the federal
case law that the causation element for retaliatory discharge can be
satisfied by sufficient evidence that the decision-maker of the employer
was actually aware of the protected conduct, and that there was a close
temporal proximity between the decision maker’s awareness of the
protected activity and the adverse employment action. Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999) (“We have
plainly held that a plaintiff satisfies this element if he provides sufficient
evidence that the decision-maker became aware of the protected conduct,
and that there was close temporal proximity between this awareness and
the adverse employment action.”) (citation omitted); Gary v. Hale, 212 Fed.
Appx. 952, 957 (11th Cir. 2007) (“[W]e have repeatedly indicated that a
plaintiff may satisfy the causal link in a retaliation case by establishing
that ‘the employer was actually aware of the protected expression at the
time it took the adverse employment action.’ . . . That is, the causation
threshold may be satisfied if it can be shown ‘that the person taking the
adverse action was aware of the protected expression.’”) (internal citations
omitted). Moreover, “[s]uch awareness [referring to the decision maker]
may be established either by direct evidence, or by circumstantial
evidence, such as proximity in time.” Gary, 212 Fed. Appx. at 957
(citations omitted).
In this case, an affidavit by Director P was filed in support of the motion
for summary judgment. In the affidavit, Director P stated that she was the
sole decision-maker regarding the elimination of the audit associate
position. She stated that she began working in the Internal Audit
Department on December 29, 2008. The affidavit asserts Director P made
the decision to eliminate the audit associate position and the employer’s
chief executive officer signed off on documents eliminating the position on
February 12, 2009. The affidavit states the premise of her reorganization
plan was the Internal Audit Department would work most productively
with an executive secretary and five auditors with degrees or certificates
in accounting. She further affirmatively stated she was unaware of
Rustowicz’s participation in the audit report concerning CEO L before her
decision to eliminate the audit associate position.
15
In opposition to the motion for summary judgment, Rustowicz filed
portions of the affidavit of Interim Director K in which he testified that on
January 23, 2009, he emailed a copy of CEO L’s response to the audit to
Director P. Although in the deposition he denied remembering why he
sent CEO L’s response to the audit, he admitted he was sure there was
some discussion about CEO L’s response before he emailed it to Director
P. Moreover, Director P, in her deposition, did not deny receiving the email
with CEO L’s response from Interim Director K on January 23, but she did
not recall whether she read the email.
Rustowicz presented sufficient summary judgment evidence to
circumstantially prove that the decision maker (Director P) was aware of
Rustowicz’s protected disclosures at the time of the adverse employment
action (elimination of the audit associate position), and the adverse action
was sufficiently temporally close to the decision maker’s awareness (less
than one month), to survive summary judgment. See Farley, 197 F.3d at
1337 (holding that seven week delay between protected activity and
adverse employment action was sufficient temporal proximity to make a
prima facie showing of causation).
Pretext
Because the McDonnell Douglas burden-shifting analysis applies to
Whistleblower claims, it is useful to examine federal case law under Title
VII regarding causation and pretext in deciding if evidentiary standards
have been met to survive summary judgment.
Regarding pretext, the United States Supreme Court has observed:
Proof that the [employer’s] explanation is unworthy of
credence is simply one form of circumstantial evidence that is
probative of intentional discrimination, and it may be quite
persuasive. See [St. Mary’s Honor Center v. Hicks, 509 U.S.
517 (1993)] (“[P]roving the employer’s reason false becomes
part of (and often considerably assists) the greater enterprise
of proving that the real reason was intentional
discrimination”). In appropriate circumstances, the trier of
fact can reasonably infer from the falsity of the explanation
that the employer is dissembling to cover up a discriminatory
purpose. Such an inference is consistent with the general
principle of evidence law that the factfinder is entitled to
consider a party’s dishonesty about a material fact as
“affirmative evidence of guilt.”. . . Thus, a plaintiff’s prima facie
case, combined with sufficient evidence to find that the
16
employer’s asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully
discriminated.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000)
(internal citations omitted). With regards to the sufficiency of the evidence
to establish the employer’s asserted justification is false, the Eleventh
Circuit has written that
a plaintiff withstands summary adjudication by producing
sufficient evidence to allow a reasonable finder of fact to
conclude that the defendant’s articulated reasons for its
decision are not believable. In evaluating a summary
judgment motion, “[t]he district court must evaluate whether
the plaintiff has demonstrated such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could find them
unworthy of credence.”
Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th
Cir. 2005) (internal citations omitted); see also Cleveland v. Home
Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir. 2004) (reversing
judgment as a matter of law in favor of the employer after determining the
employee produced sufficient evidence that the employer’s explanation
was unworthy of credence stating, “[o]nce [the employer’s decision
maker’s] credibility is damaged, the jury could infer that he did not fire
[the employee for the reason stated], but rather because of her disability”).
Applying the above principles articulated by the federal courts
regarding the sufficiency of evidence to avoid summary judgment on the
issue of pretext, we conclude that the trial court erred in granting
summary judgment. Rustowicz produced the following evidence to attack
the credibility of Director P’s assertion that the audit associate position
was eliminated due to a legitimate restructuring of the Internal Audit
Department that had nothing to do with Rustowicz’s participation in the
audit report:
Despite Director P’s assertion she was unaware of the details
of the audit report and Rustowicz’s involvement in the audit,
Rustowicz presented direct evidence that Director P discussed
CEO L’s response to the audit with the interim director and
received a copy of CEO L’s response by email prior to
Rustowicz’s discharge.
17
Despite Director P’s assertion she did not know Rustowicz
suffered from anxiety, depression, and Crohn’s disease, it was
alleged that Director P signed two continued leave approval
slips after she became the director of the department.
Director P did not offer the newly restored executive secretary
position to Rustowicz, even though Rustowicz had performed
the job for several years prior to becoming an audit associate
(performing the same tasks as the executive secretary),
because she assumed Rustowicz would not want the pay cut.
We agree with Rustowicz that such summary judgment evidence could
demonstrate to a reasonable juror there are “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action” to conclude the reasons are
“unworthy of credence.” Jackson, 405 F.3d at 1289; Cleveland, 369 F.3d
at 1194.8
Thus, we disagree with the employer’s alternative arguments that
summary judgment should be affirmed as to the Whistleblower count.
Appellate Disposition
We affirm summary judgment as to counts 2 and 3 of the complaint.
We reverse summary judgment as to count 1 and remand for further
proceedings.
Affirmed in part; Reversed in part and remanded.
CIKLIN, C.J., and FORST, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
8 We note that the standard for granting summary judgment in Florida is more
stringent than in the federal court system. Byrd v. BT Foods, Inc., 948 So. 2d
921, 923-24 (Fla. 4th DCA 2007) (explaining that federal cases permit summary
judgment by a different standard and are of limited precedential value in Florida).
18