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Fla. L. Weekly D248aTop of Form
Fla. L. Weekly D248aTop of Form
Public
employees — Whistle-blowers — Law enforcement officer alleging he was demoted
from homicide detective to road patrol deputy after he reported instance of
possible excessive use of force by police department and assisted with ensuing
investigation — New trial — Jurors — Concealment of information —
Materiality — Trial court did not abuse its discretion when it granted
defendant’s motion for new trial based on juror’s failure to disclose that son
had been arrested despite specific question about family arrest history on
juror questionnaire — Judgment notwithstanding verdict — Trial court did not
err in denying defendant’s JNOV in which employer asserted that employee did
not prove he participated in statutorily protected activity, as he did not
“blow the whistle on his employer” — Public Whistle-blower’s Act does not require
that disclosed information concern the disclosing party’s employer — Evidence
of close temporal proximity between employee’s protected activity and adverse
employment action supported jury’s finding that causal connection existed
between employee’s participation in investigation and his transfer — Employee
presented sufficient evidence to permit jury to find that defendant’s proffered
reason for transfer was pretext
employees — Whistle-blowers — Law enforcement officer alleging he was demoted
from homicide detective to road patrol deputy after he reported instance of
possible excessive use of force by police department and assisted with ensuing
investigation — New trial — Jurors — Concealment of information —
Materiality — Trial court did not abuse its discretion when it granted
defendant’s motion for new trial based on juror’s failure to disclose that son
had been arrested despite specific question about family arrest history on
juror questionnaire — Judgment notwithstanding verdict — Trial court did not
err in denying defendant’s JNOV in which employer asserted that employee did
not prove he participated in statutorily protected activity, as he did not
“blow the whistle on his employer” — Public Whistle-blower’s Act does not require
that disclosed information concern the disclosing party’s employer — Evidence
of close temporal proximity between employee’s protected activity and adverse
employment action supported jury’s finding that causal connection existed
between employee’s participation in investigation and his transfer — Employee
presented sufficient evidence to permit jury to find that defendant’s proffered
reason for transfer was pretext
JEFFREY
KOGAN, Appellant, v. SCOTT ISRAEL, as Sheriff of Broward County, Florida, Appellee.
4th District. Case No. 4D15-1848. January 25, 2017. Appeal and cross-appeal
from the Circuit Court for the Seventeenth Judicial Circuit, Broward County;
Sandra Perlman, Judge; L.T. Case No. 13-016762CACE(04). Counsel: Tonja Haddad
Coleman of Tonja Haddad, PA, Fort Lauderdale, for appellant. Alexis Fields,
Jonathan M. Streisfeld and David L. Ferguson of Kopelowitz Ostrow Ferguson
Weiselberg Gilbert, Fort Lauderdale, for appellee.
KOGAN, Appellant, v. SCOTT ISRAEL, as Sheriff of Broward County, Florida, Appellee.
4th District. Case No. 4D15-1848. January 25, 2017. Appeal and cross-appeal
from the Circuit Court for the Seventeenth Judicial Circuit, Broward County;
Sandra Perlman, Judge; L.T. Case No. 13-016762CACE(04). Counsel: Tonja Haddad
Coleman of Tonja Haddad, PA, Fort Lauderdale, for appellant. Alexis Fields,
Jonathan M. Streisfeld and David L. Ferguson of Kopelowitz Ostrow Ferguson
Weiselberg Gilbert, Fort Lauderdale, for appellee.
(ARTAU,
EDWARD L., Associate Judge.) Jeffery Kogan, a law enforcement officer, sued his
employer, Scott Israel as Sheriff of Broward County (“BSO”), under section
112.3187, Florida Statutes (2013) (the “public Whistle-blower’s Act”). In his
complaint, Kogan alleged that he was demoted from a homicide detective to a
road patrol deputy after he reported an instance of possible excessive use of
force by the Fort Lauderdale Police Department (“FLPD”) and assisted with the
ensuing investigation. The matter proceeded to trial and the jury found in
Kogan’s favor. Following the verdict, BSO moved for a new trial claiming juror
misconduct. The court granted BSO’s motion, and Kogan appeals. BSO
cross-appeals, challenging the sufficiency of the evidence supporting the
jury’s verdict. We affirm in all respects.
EDWARD L., Associate Judge.) Jeffery Kogan, a law enforcement officer, sued his
employer, Scott Israel as Sheriff of Broward County (“BSO”), under section
112.3187, Florida Statutes (2013) (the “public Whistle-blower’s Act”). In his
complaint, Kogan alleged that he was demoted from a homicide detective to a
road patrol deputy after he reported an instance of possible excessive use of
force by the Fort Lauderdale Police Department (“FLPD”) and assisted with the
ensuing investigation. The matter proceeded to trial and the jury found in
Kogan’s favor. Following the verdict, BSO moved for a new trial claiming juror
misconduct. The court granted BSO’s motion, and Kogan appeals. BSO
cross-appeals, challenging the sufficiency of the evidence supporting the
jury’s verdict. We affirm in all respects.
Background
The
evidence at trial established that Kogan witnessed a FLPD officer release a
canine on a suspect during a joint apprehension effort involving BSO and FLPD.
At the time the canine was released, the suspect was sitting with his hands
behind his back. Kogan could not tell if the suspect was handcuffed, but due to
the suspect’s position, was concerned that the canine deployment may have been
inappropriate. Kogan expressed his concerns to his immediate supervisor on the
scene pursuant to BSO’s chain of command policy, but felt that the issue got
shrugged-off. His supervisor, on the other hand, testified that Kogan did not
adequately convey his concerns and instead only expressed frustration over the
fact that the dog bite caused the suspect to go to the hospital instead of to
the police station for an interview.
evidence at trial established that Kogan witnessed a FLPD officer release a
canine on a suspect during a joint apprehension effort involving BSO and FLPD.
At the time the canine was released, the suspect was sitting with his hands
behind his back. Kogan could not tell if the suspect was handcuffed, but due to
the suspect’s position, was concerned that the canine deployment may have been
inappropriate. Kogan expressed his concerns to his immediate supervisor on the
scene pursuant to BSO’s chain of command policy, but felt that the issue got
shrugged-off. His supervisor, on the other hand, testified that Kogan did not
adequately convey his concerns and instead only expressed frustration over the
fact that the dog bite caused the suspect to go to the hospital instead of to
the police station for an interview.
A
few days after the suspect was arrested, Kogan ran into the state attorney
assigned to the case. Kogan expressed his concern over the use of the canine to
the state attorney, who in turn, contacted the state’s special prosecutions
unit. Eventually, special prosecutions contacted the Florida Department of Law
Enforcement (“FDLE”) which began investigating the matter. As part of its
investigation, FDLE called Kogan and asked him to come in for a recorded
statement. Kogan called his supervisor and informed him of FDLE’s request. The
next day, Kogan’s supervisor summoned Kogan to a meeting with the homicide
command staff.
few days after the suspect was arrested, Kogan ran into the state attorney
assigned to the case. Kogan expressed his concern over the use of the canine to
the state attorney, who in turn, contacted the state’s special prosecutions
unit. Eventually, special prosecutions contacted the Florida Department of Law
Enforcement (“FDLE”) which began investigating the matter. As part of its
investigation, FDLE called Kogan and asked him to come in for a recorded
statement. Kogan called his supervisor and informed him of FDLE’s request. The
next day, Kogan’s supervisor summoned Kogan to a meeting with the homicide
command staff.
At
that meeting, Kogan’s command staff asked Kogan to fill them in on the events
leading up to the FDLE investigation. Kogan reiterated his concerns, his
communications with the supervisor at the scene, and his encounter with the
state attorney. Kogan’s captain testified that he made the decision to transfer
Kogan at that meeting. However, Kogan was not immediately notified of this
decision and instead, was told that he would be removed from the homicide
rotation until things “cooled down.” Kogan gave a statement to FDLE. A few
weeks later, he was summoned by FDLE to provide a second statement. The day he
provided the second statement, Kogan received an email notifying him that he
was being transferred out of homicide to road patrol. Kogan was given four
days’ notice of the transfer and was not debriefed pursuant to the procedure
set forth in BSO’s policy manual. The only explanation Kogan was given for the
transfer was that the homicide department “was going in a different direction.”
that meeting, Kogan’s command staff asked Kogan to fill them in on the events
leading up to the FDLE investigation. Kogan reiterated his concerns, his
communications with the supervisor at the scene, and his encounter with the
state attorney. Kogan’s captain testified that he made the decision to transfer
Kogan at that meeting. However, Kogan was not immediately notified of this
decision and instead, was told that he would be removed from the homicide
rotation until things “cooled down.” Kogan gave a statement to FDLE. A few
weeks later, he was summoned by FDLE to provide a second statement. The day he
provided the second statement, Kogan received an email notifying him that he
was being transferred out of homicide to road patrol. Kogan was given four
days’ notice of the transfer and was not debriefed pursuant to the procedure
set forth in BSO’s policy manual. The only explanation Kogan was given for the
transfer was that the homicide department “was going in a different direction.”
Prior
to Kogan’s statement to FDLE, he had nothing but positive performance
evaluations. He also was selected to represent his department in a national TV
show which documented the homicide investigation process. Kogan continued to
work on the TV show after he was removed from the homicide rotation. After
Kogan filed his lawsuit, BSO asserted that Kogan was transferred because Kogan
did not properly document the canine incident causing the homicide command
staff to “lose faith” in him.
to Kogan’s statement to FDLE, he had nothing but positive performance
evaluations. He also was selected to represent his department in a national TV
show which documented the homicide investigation process. Kogan continued to
work on the TV show after he was removed from the homicide rotation. After
Kogan filed his lawsuit, BSO asserted that Kogan was transferred because Kogan
did not properly document the canine incident causing the homicide command
staff to “lose faith” in him.
The
jury found that Kogan proved by the greater weight of the evidence that his
disclosure and/or participation in the FDLE investigation was “the substantial
motivating cause that made a difference in BSO’s decision to demote/transfer
Kogan from a homicide detective to a deputy road patrol.” It further found that
BSO offered a legitimate, non-retaliatory reason for demoting/transferring
Kogan, but that Kogan proved by the greater weight of the evidence that BSO’s
stated reason was a pretext for retaliation.
jury found that Kogan proved by the greater weight of the evidence that his
disclosure and/or participation in the FDLE investigation was “the substantial
motivating cause that made a difference in BSO’s decision to demote/transfer
Kogan from a homicide detective to a deputy road patrol.” It further found that
BSO offered a legitimate, non-retaliatory reason for demoting/transferring
Kogan, but that Kogan proved by the greater weight of the evidence that BSO’s
stated reason was a pretext for retaliation.
BSO
then moved for a new trial and a judgment notwithstanding the verdict (“JNOV”).
As grounds for a new trial, BSO asserted that after the jury rendered its
verdict, it learned that one of the jurors, Juror 3, failed to disclose that
her son had been arrested despite being asked about her family’s arrest history
on the juror questionnaire. As grounds for a JNOV, BSO argued that Kogan did
not prove he participated in a protected activity as he did not “blow the
whistle on his employer.” Additionally, BSO argued that Kogan failed to offer
evidence establishing a causal connection between the protected activity and
his transfer, or proving that BSO’s legitimate, non-retaliatory reason for
transferring Kogan was a pretext.
then moved for a new trial and a judgment notwithstanding the verdict (“JNOV”).
As grounds for a new trial, BSO asserted that after the jury rendered its
verdict, it learned that one of the jurors, Juror 3, failed to disclose that
her son had been arrested despite being asked about her family’s arrest history
on the juror questionnaire. As grounds for a JNOV, BSO argued that Kogan did
not prove he participated in a protected activity as he did not “blow the
whistle on his employer.” Additionally, BSO argued that Kogan failed to offer
evidence establishing a causal connection between the protected activity and
his transfer, or proving that BSO’s legitimate, non-retaliatory reason for
transferring Kogan was a pretext.
The
court conducted an evidentiary hearing on the juror misconduct issue where it
examined the voir dire transcript and interviewed Juror 3. Following the
hearing, the court granted BSO’s motion for a new trial. It later entered an
order denying BSO’s motion for JNOV.
court conducted an evidentiary hearing on the juror misconduct issue where it
examined the voir dire transcript and interviewed Juror 3. Following the
hearing, the court granted BSO’s motion for a new trial. It later entered an
order denying BSO’s motion for JNOV.
Analysis
a)
Order Granting New Trial
Order Granting New Trial
“The
standard of review of a trial court’s order granting a new trial because of
juror concealment of information is abuse of discretion. If reasonable people
could differ as to the propriety of the court’s ruling, then the abuse of
discretion standard has not been met.” Hoang Dinh Duong v. Ziadie, 125
So. 3d 225, 227 (Fla. 4th DCA 2013) (quotations omitted).
standard of review of a trial court’s order granting a new trial because of
juror concealment of information is abuse of discretion. If reasonable people
could differ as to the propriety of the court’s ruling, then the abuse of
discretion standard has not been met.” Hoang Dinh Duong v. Ziadie, 125
So. 3d 225, 227 (Fla. 4th DCA 2013) (quotations omitted).
The
Florida Supreme Court has outlined a three part test for determining whether a
juror’s nondisclosure of information during voir dire warrants a new trial. De
La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995). “First, the
complaining party must establish that the information is relevant and material
to jury service in the case. Second, that the juror concealed the information
during questioning. Lastly, that the failure to disclose the information was
not attributable to the complaining party’s lack of diligence.” Id.
Florida Supreme Court has outlined a three part test for determining whether a
juror’s nondisclosure of information during voir dire warrants a new trial. De
La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995). “First, the
complaining party must establish that the information is relevant and material
to jury service in the case. Second, that the juror concealed the information
during questioning. Lastly, that the failure to disclose the information was
not attributable to the complaining party’s lack of diligence.” Id.
“Courts
evaluate materiality based on the ‘circumstances of each case’ using the
following test: ‘Nondisclosure is considered material if it is substantial and
important so that if the facts were known, the [moving party] may have been
influenced to peremptorily challenge the juror from the jury.’ ” Pembroke
Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 428 (Fla. 4th DCA 2014)
(quoting Roberts ex rel. Estate of Roberts v. Tejada, 814 So. 2d 334,
341 (Fla. 2002)).
evaluate materiality based on the ‘circumstances of each case’ using the
following test: ‘Nondisclosure is considered material if it is substantial and
important so that if the facts were known, the [moving party] may have been
influenced to peremptorily challenge the juror from the jury.’ ” Pembroke
Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 428 (Fla. 4th DCA 2014)
(quoting Roberts ex rel. Estate of Roberts v. Tejada, 814 So. 2d 334,
341 (Fla. 2002)).
Kogan
argues that BSO was not entitled to a new trial because it failed to establish
that Juror 3’s nondisclosure was material to her jury service. Kogan’s position
is based on the fact that four of the six jurors selected indicated either they
or a family member had been arrested, two of whom were not asked questions by
either side about their answers. Kogan maintains that if the arrest information
was indeed material, BSO would have used its peremptory strikes on these
jurors, or at the very least, made sure to question each of them about their
answer. Kogan’s argument is reasonable. However, we must affirm if a reasonable
person could also take the view adopted by the court.
argues that BSO was not entitled to a new trial because it failed to establish
that Juror 3’s nondisclosure was material to her jury service. Kogan’s position
is based on the fact that four of the six jurors selected indicated either they
or a family member had been arrested, two of whom were not asked questions by
either side about their answers. Kogan maintains that if the arrest information
was indeed material, BSO would have used its peremptory strikes on these
jurors, or at the very least, made sure to question each of them about their
answer. Kogan’s argument is reasonable. However, we must affirm if a reasonable
person could also take the view adopted by the court.
The
court ruled that Juror 3’s nondisclosure was material because:
court ruled that Juror 3’s nondisclosure was material because:
The record reveals that the
[BSO’s] focus during voir dire was to inquire into and learn of the prospective
jurors’ feelings toward law enforcement. Specifically, [BSO] sought to obtain
information regarding any bad experiences the prospective jurors may have had
with law enforcement, including: (1) arrests; (2) whether any were a victim of
a crime; and (3) whether any had friends or family members who were or are
employed in law enforcement. Juror No. 3’s failure to disclose her son’s
arrests prevented [BSO] from inquiring into the circumstances of the arrests
and her feelings towards law enforcement as a result of these arrests. In fact,
Juror No. 3’s nondisclosure led [BSO] to believe that Juror No. 3 harbored no
negative feelings toward law enforcement. The court finds that Juror No. 3’s
nondisclosure was further compounded by her disclosure that two of her children
are employed by BSO, and that they are happy with their assignments within the
agency.
[BSO’s] focus during voir dire was to inquire into and learn of the prospective
jurors’ feelings toward law enforcement. Specifically, [BSO] sought to obtain
information regarding any bad experiences the prospective jurors may have had
with law enforcement, including: (1) arrests; (2) whether any were a victim of
a crime; and (3) whether any had friends or family members who were or are
employed in law enforcement. Juror No. 3’s failure to disclose her son’s
arrests prevented [BSO] from inquiring into the circumstances of the arrests
and her feelings towards law enforcement as a result of these arrests. In fact,
Juror No. 3’s nondisclosure led [BSO] to believe that Juror No. 3 harbored no
negative feelings toward law enforcement. The court finds that Juror No. 3’s
nondisclosure was further compounded by her disclosure that two of her children
are employed by BSO, and that they are happy with their assignments within the
agency.
Second, the fact that Juror
No. 3 sat through approximately three (3) hours of voir dire while both sides
asked questions as to whether any prospective jurors had any bad experiences
with law enforcement (e.g, employment related, friends or family of law
enforcement, victims of crimes, arrests), without saying a word, raising her
hand, or disclosing that her son had been arrested twice, does not sit well
with this Court.
No. 3 sat through approximately three (3) hours of voir dire while both sides
asked questions as to whether any prospective jurors had any bad experiences
with law enforcement (e.g, employment related, friends or family of law
enforcement, victims of crimes, arrests), without saying a word, raising her
hand, or disclosing that her son had been arrested twice, does not sit well
with this Court.
The
court’s findings are supported by the record, which establishes that almost
every question posed during voir dire by either side concerned law enforcement
in some shape or form. When viewed in its entirety, it is clear that the
parties’ main goal during voir dire was to decipher whether any of the panel
members held biases towards law enforcement. Under these circumstances, a
reasonable person could certainly take the view that Juror 3 failed to disclose
material information. Accordingly, we find that the court did not abuse its
discretion in granting a new trial.
court’s findings are supported by the record, which establishes that almost
every question posed during voir dire by either side concerned law enforcement
in some shape or form. When viewed in its entirety, it is clear that the
parties’ main goal during voir dire was to decipher whether any of the panel
members held biases towards law enforcement. Under these circumstances, a
reasonable person could certainly take the view that Juror 3 failed to disclose
material information. Accordingly, we find that the court did not abuse its
discretion in granting a new trial.
b)
Denial of BSO’s Motion for JNOV
Denial of BSO’s Motion for JNOV
A
trial court’s ruling on a motion for JNOV is reviewed de novo. Kurnow v.
Abbott, 114 So. 3d 1099, 1101 (Fla. 1st DCA 2013). “A JNOV is appropriate
only in situations where there is no evidence upon which a jury could rely in
finding for the non-movant. A jury verdict must be sustained if it is supported
by competent substantial evidence.” Hancock v. Schorr, 941 So. 2d 409,
412 (Fla. 4th DCA 2006) (internal citation omitted).
trial court’s ruling on a motion for JNOV is reviewed de novo. Kurnow v.
Abbott, 114 So. 3d 1099, 1101 (Fla. 1st DCA 2013). “A JNOV is appropriate
only in situations where there is no evidence upon which a jury could rely in
finding for the non-movant. A jury verdict must be sustained if it is supported
by competent substantial evidence.” Hancock v. Schorr, 941 So. 2d 409,
412 (Fla. 4th DCA 2006) (internal citation omitted).
Florida’s
public Whistle-blower’s Act prevents retaliatory action against employees and
persons who disclose certain types of government wrongdoing to appropriate
officials. See § 112.3187(2)-(7), Fla. Stat. (2013). To establish a
prima facie case for retaliation under the public Whistle-blower’s Act, a
plaintiff must demonstrate that: “(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.” Rustowicz
v. N. Broward Hosp. Dist., 174 So. 3d 414, 419 (Fla. 4th DCA 2015).
public Whistle-blower’s Act prevents retaliatory action against employees and
persons who disclose certain types of government wrongdoing to appropriate
officials. See § 112.3187(2)-(7), Fla. Stat. (2013). To establish a
prima facie case for retaliation under the public Whistle-blower’s Act, a
plaintiff must demonstrate that: “(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.” Rustowicz
v. N. Broward Hosp. Dist., 174 So. 3d 414, 419 (Fla. 4th DCA 2015).
As
grounds for a JNOV, BSO argued that Kogan did not prove he participated in a
statutorily protected activity as he did not “blow the whistle on his
employer.” Additionally, BSO argued that Kogan failed to offer evidence
establishing a causal connection between the protected activity and his
transfer, or proving that BSO’s legitimate, non-retaliatory reason for
transferring Kogan was a pretext.
grounds for a JNOV, BSO argued that Kogan did not prove he participated in a
statutorily protected activity as he did not “blow the whistle on his
employer.” Additionally, BSO argued that Kogan failed to offer evidence
establishing a causal connection between the protected activity and his
transfer, or proving that BSO’s legitimate, non-retaliatory reason for
transferring Kogan was a pretext.
i) Textual Interpretation of the Statute and its
Applicability
Applicability
The
public Whistle-blower’s Act prohibits an agency or independent contractor from
either dismissing, disciplining, or taking any adverse personnel action against
an employee, or taking adverse action that affects the rights or interests of a
person for the employee’s or person’s disclosure of certain information. §
112.3187(4)(a)-(b), Fla. Stat. (2013). The “information” disclosed must
concern:
public Whistle-blower’s Act prohibits an agency or independent contractor from
either dismissing, disciplining, or taking any adverse personnel action against
an employee, or taking adverse action that affects the rights or interests of a
person for the employee’s or person’s disclosure of certain information. §
112.3187(4)(a)-(b), Fla. Stat. (2013). The “information” disclosed must
concern:
(a) Any violation or
suspected violation of any federal, state, or local law, rule, or regulation
committed by an employee or agent of an agency or independent contractor which
creates and presents a substantial and specific danger to the public’s health, safety,
or welfare.
suspected violation of any federal, state, or local law, rule, or regulation
committed by an employee or agent of an agency or independent contractor 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,
suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed
by an employee or agent of an agency or independent contractor.
of gross mismanagement, malfeasance, misfeasance, gross waste of public funds,
suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed
by an employee or agent of an agency or independent contractor.
§
112.3187(5), Fla. Stat. (2013).
112.3187(5), Fla. Stat. (2013).
Pertinent
to this case, “employees and persons . . . who are requested to participate in
an investigation, hearing, or other inquiry conducted by any agency or federal
government entity” are protected under the public Whistle-blower’s Act. §
112.3187(7), Fla. Stat. (2013).
to this case, “employees and persons . . . who are requested to participate in
an investigation, hearing, or other inquiry conducted by any agency or federal
government entity” are protected under the public Whistle-blower’s Act. §
112.3187(7), Fla. Stat. (2013).
Although
there is no dispute that Kogan was requested to participate in an FDLE
investigation and, as part of that investigation, disclosed a “suspected
violation” of a law which may have created a danger to the public’s health,
safety, or welfare, BSO maintains that Kogan’s activity was not protected
because the disclosed information did not pertain to his employer, BSO. As
Justice Canady aptly explained, courts must look to the plain language of a
statute when construing it. State v. Hackley, 95 So. 3d 92, 93 (Fla.
2012). Here, the court need only look to the text of the public
Whistle-blower’s Act in rejecting BSO’s argument.
there is no dispute that Kogan was requested to participate in an FDLE
investigation and, as part of that investigation, disclosed a “suspected
violation” of a law which may have created a danger to the public’s health,
safety, or welfare, BSO maintains that Kogan’s activity was not protected
because the disclosed information did not pertain to his employer, BSO. As
Justice Canady aptly explained, courts must look to the plain language of a
statute when construing it. State v. Hackley, 95 So. 3d 92, 93 (Fla.
2012). Here, the court need only look to the text of the public
Whistle-blower’s Act in rejecting BSO’s argument.
The
public Whistle-blower’s Act does not require that the disclosed information
concern the disclosing party’s employer. The text provides, in part, that the
nature of the information disclosed must include “[a]ny violation or suspected
violation of any federal, state, or local law, rule, or regulation committed by
an employee or agent of an agency or independent contractor which
creates and presents a substantial and specific danger to the public’s health,
safety, or welfare.” § 112.3187(5)(a), Fla. Stat. (2013) (emphasis added).
There is nothing in the text which limits the nature of the disclosed
information to information concerning the discloser’s own agency. Instead,
“agency” is specifically defined in the text of the statute as “any state,
regional, county, local, or municipal government entity, whether executive,
judicial, or legislative; any official, officer, department, division, bureau,
commission, authority, or political subdivision therein; or any public school,
community college, or state university.” § 112.3187(3)(a), Fla. Stat. (2013)
(emphasis added). Clearly, this includes the full spectrum of Florida state and
local government and is not limited to the particular agency that employs the
Whistle-blower. If it were so, the legislature would have told us when they
defined what they meant by an “agency”, or otherwise in the text of the
statute.
public Whistle-blower’s Act does not require that the disclosed information
concern the disclosing party’s employer. The text provides, in part, that the
nature of the information disclosed must include “[a]ny violation or suspected
violation of any federal, state, or local law, rule, or regulation committed by
an employee or agent of an agency or independent contractor which
creates and presents a substantial and specific danger to the public’s health,
safety, or welfare.” § 112.3187(5)(a), Fla. Stat. (2013) (emphasis added).
There is nothing in the text which limits the nature of the disclosed
information to information concerning the discloser’s own agency. Instead,
“agency” is specifically defined in the text of the statute as “any state,
regional, county, local, or municipal government entity, whether executive,
judicial, or legislative; any official, officer, department, division, bureau,
commission, authority, or political subdivision therein; or any public school,
community college, or state university.” § 112.3187(3)(a), Fla. Stat. (2013)
(emphasis added). Clearly, this includes the full spectrum of Florida state and
local government and is not limited to the particular agency that employs the
Whistle-blower. If it were so, the legislature would have told us when they
defined what they meant by an “agency”, or otherwise in the text of the
statute.
BSO
cites Castro v. School Board of Manatee County, for the proposition
that: “[t]he FWA [public Whistle-blower’s Act] does not protect an employee who
is complaining about the actions of another agency or third party.” 903
F.Supp.2d 1290, 1303 (M.D. Fla. 2012). As a federal trial court order, it is
not binding on this court. Moreover, it is in conflict with the text of the
public Whistle-blower’s Act. In support of its reasoning, the Middle District
cited to a Third District case, Juarez v. New Branch Corp., 67 So. 3d
1159 (Fla. 3d DCA 2011). However, Juarez interpreted Florida’s
private Whistle-blower’s Act. Id. at 1160. The private Whistle-blower’s
Act differs from the public Whistle-blower’s Act and plainly limits its
protection to an “employee” who has disclosed, objected to, refused to
participate in or provided information in connection with an investigation
about “an activity, policy, or practice of the employer that is in
violation of a law, rule, or regulation.” § 448.102, Fla. Stat. (2013)
(emphasis added). As discussed in greater detail above, unlike the private
Whistle-blower’s Act, the public Whistle-blower’s Act expands its coverage to
disclosures and investigations involving an agency as defined in the statute;
not just that of the employing agency. The legislature could have likewise
limited the application of the public Whistle-blower’s Act to that of the
employing agency. It chose not to do so. It is axiomatic that the text of a
statute governs its applicability. Accordingly, we reject BSO’s argument and
decline to follow Castro.
cites Castro v. School Board of Manatee County, for the proposition
that: “[t]he FWA [public Whistle-blower’s Act] does not protect an employee who
is complaining about the actions of another agency or third party.” 903
F.Supp.2d 1290, 1303 (M.D. Fla. 2012). As a federal trial court order, it is
not binding on this court. Moreover, it is in conflict with the text of the
public Whistle-blower’s Act. In support of its reasoning, the Middle District
cited to a Third District case, Juarez v. New Branch Corp., 67 So. 3d
1159 (Fla. 3d DCA 2011). However, Juarez interpreted Florida’s
private Whistle-blower’s Act. Id. at 1160. The private Whistle-blower’s
Act differs from the public Whistle-blower’s Act and plainly limits its
protection to an “employee” who has disclosed, objected to, refused to
participate in or provided information in connection with an investigation
about “an activity, policy, or practice of the employer that is in
violation of a law, rule, or regulation.” § 448.102, Fla. Stat. (2013)
(emphasis added). As discussed in greater detail above, unlike the private
Whistle-blower’s Act, the public Whistle-blower’s Act expands its coverage to
disclosures and investigations involving an agency as defined in the statute;
not just that of the employing agency. The legislature could have likewise
limited the application of the public Whistle-blower’s Act to that of the
employing agency. It chose not to do so. It is axiomatic that the text of a
statute governs its applicability. Accordingly, we reject BSO’s argument and
decline to follow Castro.
ii)
Causal Connection
Causal Connection
In
addition to its statutory argument, BSO maintains that Kogan failed to meet the
causal connection element for a Whistle-blower cause of action. “Causation may
be proved by direct or circumstantial evidence.” Rustowicz, 174 So. 3d
at 425. “[T]he typical [Whistle-blower’s] case relies upon circumstantial
evidence of causation.” Id. “Close temporal proximity between the
protected activity and the adverse employment action can show that the two
events were not wholly unrelated”. Fla. Dep’t of Children & Families v.
Shapiro, 68 So. 3d 298, 306 (Fla. 4th DCA 2011).
addition to its statutory argument, BSO maintains that Kogan failed to meet the
causal connection element for a Whistle-blower cause of action. “Causation may
be proved by direct or circumstantial evidence.” Rustowicz, 174 So. 3d
at 425. “[T]he typical [Whistle-blower’s] case relies upon circumstantial
evidence of causation.” Id. “Close temporal proximity between the
protected activity and the adverse employment action can show that the two
events were not wholly unrelated”. Fla. Dep’t of Children & Families v.
Shapiro, 68 So. 3d 298, 306 (Fla. 4th DCA 2011).
There
was evidence before the jury that the morning after Kogan notified his
supervisor that he was summoned to give a statement to the FDLE, his supervisor
asked Kogan to report to the station to meet with the homicide command staff.
During that meeting, Kogan was asked to outline what he saw during the arrest.
Kogan’s captain admitted on the stand that as a result of that meeting, he made
a decision to transfer Kogan. Kogan was notified of his transfer on the same
day he was summoned to provide a second statement to FDLE. Taken in the light
most favorable to Kogan, this evidence supports the jury’s finding that a
causal connection existed between Kogan’s participation in the FDLE
investigation and his transfer. See Kearns v. Farmer Acquisition Co.,
157 So. 3d 458, 467 (Fla. 2d DCA 2015) (reversing directed verdict entered in
favor of employer in private Whistle-blower’s claim because employee who was
terminated the day after he provided protected information presented sufficient
evidence of a causal connection to send the issue to the jury).
was evidence before the jury that the morning after Kogan notified his
supervisor that he was summoned to give a statement to the FDLE, his supervisor
asked Kogan to report to the station to meet with the homicide command staff.
During that meeting, Kogan was asked to outline what he saw during the arrest.
Kogan’s captain admitted on the stand that as a result of that meeting, he made
a decision to transfer Kogan. Kogan was notified of his transfer on the same
day he was summoned to provide a second statement to FDLE. Taken in the light
most favorable to Kogan, this evidence supports the jury’s finding that a
causal connection existed between Kogan’s participation in the FDLE
investigation and his transfer. See Kearns v. Farmer Acquisition Co.,
157 So. 3d 458, 467 (Fla. 2d DCA 2015) (reversing directed verdict entered in
favor of employer in private Whistle-blower’s claim because employee who was
terminated the day after he provided protected information presented sufficient
evidence of a causal connection to send the issue to the jury).
iii)
Pretext
Pretext
Next,
BSO argues that Kogan failed to prove that BSO’s reason for transferring Kogan
was a pretext. BSO presented evidence establishing that BSO’s proffered reason
for transferring Kogan was that his command staff “lost faith in him” due to
his failure to properly document and report what he perceived to be a possible
crime. Thus, the burden shifted to Kogan to prove that BSO’s proffered reason
was a pretext. See Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d
1125, 1133 (Fla. 4th DCA 2003) (once the employer has proffered a legitimate,
non-retaliatory reason for the adverse employment action, the burden shifts to
the plaintiff to prove “by a preponderance of the evidence that the reason
provided by the employer is a pretext for prohibited, retaliatory conduct.”
(quotation omitted)).
BSO argues that Kogan failed to prove that BSO’s reason for transferring Kogan
was a pretext. BSO presented evidence establishing that BSO’s proffered reason
for transferring Kogan was that his command staff “lost faith in him” due to
his failure to properly document and report what he perceived to be a possible
crime. Thus, the burden shifted to Kogan to prove that BSO’s proffered reason
was a pretext. See Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d
1125, 1133 (Fla. 4th DCA 2003) (once the employer has proffered a legitimate,
non-retaliatory reason for the adverse employment action, the burden shifts to
the plaintiff to prove “by a preponderance of the evidence that the reason
provided by the employer is a pretext for prohibited, retaliatory conduct.”
(quotation omitted)).
“Pretext
is established ‘either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.’ ” Valenzuela v.
GlobeGround N. Am., LLC, 18 So. 3d 17, 25 (Fla. 3d DCA 2009)1 (quoting Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981)). “[T]o show that the
employer’s reasons were pretextual, the plaintiff must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a reasonable
fact finder could find them unworthy of credence.” Id. (quotations
omitted).
is established ‘either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.’ ” Valenzuela v.
GlobeGround N. Am., LLC, 18 So. 3d 17, 25 (Fla. 3d DCA 2009)1 (quoting Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981)). “[T]o show that the
employer’s reasons were pretextual, the plaintiff must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a reasonable
fact finder could find them unworthy of credence.” Id. (quotations
omitted).
“When
the employer’s reasons are shown to be false, this provides circumstantial
evidence probative of intentional discrimination.” City of Hollywood v. Hogan,
986 So. 2d 634, 645 (Fla. 4th DCA 2008).2 Even when the employer’s proffered
reason is not completely false, however, the plaintiff’s case does not
necessarily fail. Id. at 645-46. “[T]he lack of falsity [does not]
demand a verdict in favor of the employer where other evidence could persuade
the trier of fact of discriminatory intent.” Id. at 646.
the employer’s reasons are shown to be false, this provides circumstantial
evidence probative of intentional discrimination.” City of Hollywood v. Hogan,
986 So. 2d 634, 645 (Fla. 4th DCA 2008).2 Even when the employer’s proffered
reason is not completely false, however, the plaintiff’s case does not
necessarily fail. Id. at 645-46. “[T]he lack of falsity [does not]
demand a verdict in favor of the employer where other evidence could persuade
the trier of fact of discriminatory intent.” Id. at 646.
Kogan
presented sufficient evidence to adequately call the credence of BSO’s
proffered reason for his transfer into question. Specifically, he established
that BSO did not follow its own protocol for poor performance, thus calling
into question whether BSO truly believed Kogan failed to properly report the
incident. For example, Kogan presented evidence that his failure to report the
incident was not raised in his annual evaluation. Indeed, by all accounts his
evaluations were all positive. Kogan further presented evidence that he was
permitted to represent BSO as a homicide detective in a national television
show after his captain allegedly “lost faith in him.” Additionally, BSO’s
transfer policy delineated that “[t]ransfer will be made with appropriate
notification, evaluation and debriefing. Employees may only transfer to the
same classification.” However, Kogan was only given four days’ notice of his
transfer and was not debriefed. Kogan’s captain admitted that he did not
discuss the transfer with Kogan in any degree of detail and simply told him
that “the agency was moving in a different direction.” When asked why he failed
to discuss or memorialize any part of his decision, Kogan’s captain simply
stated that he “chose not to.” Based on the foregoing, there was sufficient evidence
for the jury to find that BSO’s proffered reason for transferring Kogan was a
pretext. Accordingly, the court did not err in denying BSO’s motion for JNOV.
presented sufficient evidence to adequately call the credence of BSO’s
proffered reason for his transfer into question. Specifically, he established
that BSO did not follow its own protocol for poor performance, thus calling
into question whether BSO truly believed Kogan failed to properly report the
incident. For example, Kogan presented evidence that his failure to report the
incident was not raised in his annual evaluation. Indeed, by all accounts his
evaluations were all positive. Kogan further presented evidence that he was
permitted to represent BSO as a homicide detective in a national television
show after his captain allegedly “lost faith in him.” Additionally, BSO’s
transfer policy delineated that “[t]ransfer will be made with appropriate
notification, evaluation and debriefing. Employees may only transfer to the
same classification.” However, Kogan was only given four days’ notice of his
transfer and was not debriefed. Kogan’s captain admitted that he did not
discuss the transfer with Kogan in any degree of detail and simply told him
that “the agency was moving in a different direction.” When asked why he failed
to discuss or memorialize any part of his decision, Kogan’s captain simply
stated that he “chose not to.” Based on the foregoing, there was sufficient evidence
for the jury to find that BSO’s proffered reason for transferring Kogan was a
pretext. Accordingly, the court did not err in denying BSO’s motion for JNOV.
Affirmed.
(WARNER
and MAY, JJ., concur.)
(WARNER
and MAY, JJ., concur.)
__________________
1Although
Valenzuela, 18 So. 3d at 25, was an age discrimination case, it employed
a Title VII analysis. See Rustowicz, 174 So. 3d at 419 (explaining that
Florida courts apply Title VII analysis to Whistle-blower’s Act cases).
Valenzuela, 18 So. 3d at 25, was an age discrimination case, it employed
a Title VII analysis. See Rustowicz, 174 So. 3d at 419 (explaining that
Florida courts apply Title VII analysis to Whistle-blower’s Act cases).
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