The Florida Bar
www.floridabar.org
The Florida Bar Journal
June, 2009 Volume 83, No. 6
Distinguishing Chicken Little from Bona Fide Whistleblowers

by Nathan A. Adams IV

Page 100

Whistleblowers play a critical role in ensuring accountability in public and private entities. On the one hand, they should be protected from reprisal to ensure that mismanagement, corruption, and fraud come to light. On the other hand, protection should not be so inflexible that public and private entities cannot take legitimate adverse employment action against counterfeit whistleblowers who pose an obstacle to achieving their missions. The purpose of this article is to explore those rules most likely to distinguish bona fide whistleblowers meriting protection from frivolous ones.

The primary general purpose protection available to whistleblowers under state law is the Florida Whistleblower’s Act.1 We explore this law in comparison to the First Amendment anti-retaliation and select federal statutes offering whistleblower protection to public or private employees such as the federal Whistleblower Protection Act and the Sarbanes-Oxley Act. This article does not offer an exhaustive examination of federal statutory whistleblower protections. Instead, it discusses key federal principles as a comparison to state law and recommends select legislative changes.

Florida Whistleblower’s Act
Private employees must prove six elements to state a claim under the Florida Whistleblower’s Act: that the employee 1) disclosed or threatened to disclose to an agency under oath and in writing; 2) an activity, policy, or practice of his or her employer; 3) that was in violation of law, rule, or regulation; 4) that the employer retaliated against his or her because of the disclosure or threat to disclose; and 5) he or she had given written notice to the employer of its activity, policy, or practice; 6) thereby giving the employer reasonable opportunity to correct the activity, policy, or practice.2

Federal courts have interpreted the purposes of the private and public Florida Whistleblower’s Act the same and applied the Title VII burden-shifting framework to both.3 Florida state courts have not always done likewise and identified more permissive elements of a claim by public employees.4 In particular, protected disclosures under the public Florida Whistleblower’s act include written notices of “[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” and “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.”5

Under a plain reading of the statute, this means that a public employee may state a claim under the act for disclosing conduct that is, in fact, legal and proper management, as long as the plaintiff suspects otherwise; by contrast, a private sector employee is required to prove conduct is illegal under the act and federal law.6 While rule violations must present a danger to the public’s health, safety, or welfare and be “substantial and specific,” the statute does not on its face impose an objective standard of reasonableness on the employee to conduct an investigation into the validity of the facts alleged in the notice or to determine the legality of the action alleged. Consequently, some trial courts have not dismissed claims on this basis.

Furthermore, either malfeasance or misfeasance is grounds for a claim by a public employee under the Florida Whistleblower’s Act, but only malfeasance for a claim by a private employee. The reason for this difference is unclear. The term “gross” clearly modifies mismanagement as the only actionable type of disclosure relating to management qualifying a public employee for protection. But the First District has impliedly held that “gross” does not necessarily modify misfeasance or malfeasance in general by holding that a public employee’s protected disclosures may concern simple “negligent acts committed by an employee of an agency.”7

Another important difference between the public and private Florida Whistleblower’s Act is the required form and recipient of the complaint. A private employee’s whistleblower notice must be under oath, whereas a public employee’s whistleblower notice can be in any form, as long as it is written and signed, documents the nature of the employee’s protected disclosure, and states to whom the disclosure is made.8 Trial courts have found cursory emails sufficient. To whom the disclosure must be made under the public act is, according to at least one court, “no model of clarity.”9 There is a split of authority whether it may be made to, besides various agencies with the authority to investigate, police, manage or remedy the violation or suspected violation, an employee’s supervisor.10 The private act requires both; the private employee must give the employer the chance to correct the activity prior to reporting it to a relevant agency.11

The First Amendment
The First Amendment now provides less protection for public employees than Florida’s Whistleblower Protection Act. The Supreme Court originally developed a three-part framework for assessing First Amendment retaliation claims by public employees: 1) that the employee must have engaged in speech on a matter of public concern; 2) the employee suffered an adverse employment action; and 3) that the speech was a substantial or motivating factor in the decision to take action against the employee.12 The Title VII burden shifting analysis applies once this prima facie case is met; however, the Supreme Court has since refined the test multiple times.13

In Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court required the employee first to show that his or her speech addressed a matter of public concern or public importance. In Pickering v. Bd. of Educ., 391 U.S. 563 (1968), the court required lower courts to balance whether the employee’s free speech rights outweighed the government’s interest in an efficient, undisrupted workplace. In Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410 (1979), the Supreme Court held that private conversations can sometimes involve matters of public concern.14 In Waters v. Churchill, 511 U.S. 661 (1994), the court held that a public employee can be dismissed, as long as the public employer conducts the same type of reasonable investigation required of a private employer and determines (even erroneously) that the content of the employee’s speech is unprotected.15 In City of San Diego v. Roe, 543 U.S. 77 (2004), the court held that sexually explicit public employee speech during nonwork hours is not a matter of public concern.16

Most recently, in Garcetii v. Ceballos, 547 U.S. 410 (2006), a bare majority of the court further narrowed potential First Amendment claims by holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”17 The facts of this case are instructive. Richard Ceballos, a Los Angeles deputy district attorney, submitted memos to his supervisor recommending dismissal of a case because of alleged misrepresentations in a deputy sheriff’s affidavit used to obtain a search warrant.

After listening to Ceballos’ concerns, his superiors chose to prosecute the case anyway and won notwithstanding the defense’s arguments premised upon Ceballos’ testimony. Afterwards, Ceballos claimed he was subjected to retaliation. The district court granted defendant’s motion for summary judgment on the grounds that Ceballos wrote his memo pursuant to his employment duties and, thus, was not entitled to First Amendment protection. The Ninth Circuit reversed,18 but the U.S. Supreme Court agreed with the district court, observing that the First Amendment does not “’constitutionalize the employee grievance.’”19

Federal Statutory Protections
The notion that disclosures made pursuant to an employees’ duties do not qualify for whistleblower protection also finds support in several federal statutory protections, such as the Whistleblower Protection Act (WPA) and the Sarbanes-Oxley Act. t Although federal employees are protected by a number of federal statutes,21 the WPA is the most general. It protects, “any disclosure of information by an employee, former employee, or application for employment which … [the employee] reasonably believes evidences 1) a violation of any law, rule or regulation or 2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”22 The standard under the WPA and several other federal whistleblower protections is objective.23 In addition, disclosures of only genuine violations of law that are more than de minimis qualify for protection.24 According to federal courts interpreting the WPA, protecting minor or trivial disclosures would make it too easy for employees to retaliate against managers who give “honest appraisals” and would not satisfy the reasonable belief test.25

The same is true for most of the federal protections available to private employees.26 For example, under the Sarbanes-Oxley Act,27 which prohibits publicly traded companies from retaliating against certain whistleblowers,28 whistleblowers are protected if they provide information that they subjectively and “reasonably believe” violates enumerated criminal statutes,29 any SEC rule or regulation, or any federal law relating to shareholder fraud;30 or participate in a related investigatory proceeding.31 More relevant than what the plaintiff actually believed is what a person with the plaintiff’s expertise and knowledge would have reasonably believed.32

To establish a reasonable belief, the employee is expected to have done some fact-finding. Mere “general inquiries” and claims about an employer’s accounting practices, rather than specific concerns, “speculative and unsubstantiated” assertions, and conduct an employee knows is legal are grounds for summary judgment.33 Furthermore, the disclosures must be “material” to a company’s bottom line.34 Last, they must be reported to a federal regulatory or law enforcement official, a member of Congress or any congressional committee, or a person with “supervisory authority over the employee” or a “person working for the employer who has the authority to investigate, discover, or terminate misconduct.”35

Critiques
State and federal law relating to whistleblowers reveal common ground around core principles,36 but vindicate these principles in different ways, the effects of which bear closer scrutiny. Beginning with the Garcetti doctrine, the dissent in that case bitterly disagreed that a categorical test premised upon an employee’s official duty should be dispositive of First Amendment whistleblower protection.37 Critics point to a number of cases since which they say illustrate the dissent’s point.38

One case close to home is Vila v. Padrón, 484 F.3d 1334 (11th Cir. 2007), where Adis M. Vila, former vice-president of external affairs for Miami-Dade Community College and a lawyer, alleged that college officials refused to renew her employment contract because she objected via e-mail and letter to, inter alia, the college entering into a contract with an advertising company that was not subjected to competitive bidding, to the use of other than private funds for state matching in the purchase of a building, and to the use of college funds to illustrate the poetry book of a trustee’s daughter. The 11th Circuit held that her objections related to her official job duties and were, therefore, not protected by the First Amendment.39

Had Vila brought her claim under the Florida Whistleblower’s Act by the limitations deadline, she would more readily have stated a claim. In fact, when another public employee made intradepartmental complaints relative to the handling of dependency proceedings by the Department of Health and Rehabilitative Services, the Florida Supreme Court held that she stated a claim under the Florida Whistleblower’s Act.40 Reversing the court of appeal, the Florida Supreme Court rejected the court of appeal’s view that to protect her complaint “would turn ‘every disagreement by an agency employee with the handling of a matter subject to judicial supervision and control’ into a whistle-blower action.”41

Public agencies are commonly of the view that this is happening. Consider Rosa, where the court said it was for the jury to decide whether a letter qualified an employee for protection where it “could be construed as an employee ‘ranting’ about personal conflicts with another employee.”42 In Edenfield, the Florida Supreme Court held that a material issue of fact precluded summary judgment against a public employee who participated in corrupt acts.43 Federal precedent has weeded-out these claims and others involving employees who merely disliked or disagreed with their supervisors or had policy disagreements with an agency.44 But in state courts, the threat of an award of attorneys’ fees has given the public employee with even the least reasonable and material claim of wrongdoing powerful leverage.45

Toward Reconciliation
What can we learn from the advantages and disadvantages of the state and federal approaches to whistleblowing protection? Critics of federal law contend available whistleblower protection is not broad enough. They say bona fide whistleblowers are slipping through the cracks. On the other hand, immunizing Chicken Little from adverse employment action under state law for sounding an alarm, even if the sky is falling or the cause of the sky falling is perfectly legal, when a person of his or her training could have discovered otherwise after a reasonable inquiry, is hard to square with the purpose of whistleblower protection, as is immunizing Chicken Little if he or she participated in a corrupt act causing the sky to fall.

Requiring Chicken Little to observe clear-cut notification formalities and reporting requirements first to his or her agency should also benefit the state by giving agencies a chance to correct the problem before needless litigation ensues. Furthermore, raising the standard for disclosures relating to de minimis rule violations, claims of misfeasance, and Chicken Little’s job responsibilities would minimize problems associated with protecting employee grievances while not excluding altogether a category of bona fide whistleblowers.

Conclusion
A comparison of state and federal whistleblower protections for public and private employees reveals important differences such as whether protected disclosures must 1) be outside the scope of an employee’s duties; 2) concern only actual violations of law, instead of both actual and suspected violations; 3) be material; 4) satisfy an objective reasonableness standard; 5) concern malfeasance or gross misfeasance in lieu of simple negligence; and 6) be formally reported to clearly identified individuals at both the entity concerned and an enforcement agency. To restore balance to the protection available under the Florida Whistleblower Protection Act, this author recommends modifying and interpreting the law at least to require the last four.


1 Fla. Stat. §§112.3187-112.31895 (public employees and government contactors); 448.102-448.105 (private employees).

2 Taylor v. Mem’l Health Sys., Inc., 770 So. 2d 752, 754 (Fla. 5th D.C.A. 2000).

3 See Allocco v. City of Coral Gables, 221 F. Supp. 2d 1317, 1367-68 (S.D. Fla. 2002) (“in analyzing Florida private and public sector whistleblower actions, courts apply the same standard that is used for Title VII retaliation claims”); Bell v. Ga.-Pac. Corp., 390 F. Supp. 2d 1182, 1187 (M.D. Fla. 2005), aff’d, 153 Fed. Appx. 701 (11th Cir. 2005) (retaliation claims under the private Florida Whistleblower Act are analyzed in the same manner as Title VII retaliation claims). To state a prima facie case of retaliation under Title VII, the plaintiff must establish that 1) he or she engaged in statutorily protected activity; 2) he or she suffered an adverse action; and 3) a causal connection exists between the protected activity and the adverse action. See Collins, 334 F. Supp. 2d at 1381. The burden then shifts to the employer to produce a legitimate reason for the adverse action. Id. If the employer meets its burden of production, the plaintiff must prove that defendant’s proffered reason is pretextual. Id.

4 See Walker v. Fla. Dep’t of Veterans’ Affairs, 925 So. 2d 1149 (Fla. 4th D.C.A. 2006) (citing, Dep’t of Transp. v. Fla. Comm’n on Human Relations, 842 So. 2d 253, 255 (Fla. 1st D.C.A. 2003) (plaintiff must prove 1) prior to termination the employee made a disclosure protected by the statute; 2) the employee was discharged; and 3) the disclosure was not made in bad faith or for a wrongful purpose and did not occur after an agency’s personnel action against the employee).

5 Fla. Stat. §112.3187(5).

6 See White v. Purdue Pharm., Inc., 369 F. Supp. 2d 1335, 1337 (M.D. Fla. 2005) (employee had to prove that activity, policy, or practice objected to was, in fact, in violation of law, rule, or regulation; no qualification was provided to permit shelter for employee who reasonably believed she was being asked to engage in illegal activity or conduct that was against public policy); U.S. ex rel. Vargas v. Lackmann Food Serv., Inc., 510 F. Supp. 2d 957, 968 (M.D. Fla. 2007) (with respect to a whistleblower retaliation claim under the Florida Whistleblower Act, the plaintiff must prove an actual violation of a law, rule, or regulation occurred in order to establish a prima facie case).

7 Rosa v. Dep’t of Children & Families, 915 So. 2d 210, 212 (Fla. 1st D.C.A. 2005).

8 See Walker, 925 So. 2d at 1150 (“[A] protected disclosure requires an employee’s ‘written and signed complaint,’ or a ‘written complaint to [the employee’s] supervisory official.’” Said disclosure excluded mere repair invoices.). Crouch v. Public Serv. Comm’n, 913 So. 2d 111 (Fla. 1st D.C.A. 2005) (verbal complaint did not satisfy the requirements of the Whistleblower Act, notwithstanding that supervisor relayed the complaints to an employee designated as agency inspector general); Hutchison, 645 So. 2d at 1050 (signed letter sufficed as “written and signed complaint” within the meaning of the act).

9 Kelder v. Act Corp., 650 So. 2d 647, 649 (Fla. 5th D.C.A. 1995).

10 Compare Kelder, 650 So. 2d at 649 (“[r]eporting wrongdoing to an agency is mandated by the legislature’s use of the word ‘must’ in subsection (6)) with Saunders v. Hunter, 980 F. Supp. 1236 (M.D. Fla. 1997) (plaintiff stated a claim for reporting act to supervisor). Section 112.3187(6) is entitled “to whom information disclosed,” but subsection (7), entitled “employees and persons protected” also appears to identify proper parties to receive the information including whistleblower hotlines (see Fla. Stat. §17.325) or supervisory officials.

11 Fla. Stat. §448.102(1) (protection not available 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”); accord Judd v. Englewood Community Hosp., 739 So. 2d 627, 628 (Fla. 2d D.C.A. 1999) (per curiam).

12 Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 285-87 (1977).

13 If the plaintiff makes a prima facie case of retaliation, the burden of proof shifts to the defendant to establish either that another legitimate reason was the grounds for the adverse action or there was a valid governmental reason for the adverse action, even if it was retaliatory in nature. Id. at 287.

14 Givhan, 439 U.S. at 415-16 (1979) (private expression by a school teacher critical of school desegregation efforts was constitutionally protected notwithstanding that the communication was made privately to the principal).

15 Waters, 511 U.S. at 680 (1994) (investigation undertaken by government employer as to what employee had said was reasonable, so that employee could be discharged based on employer’s determination of what she said, where supervisors interviewed the person to whom the comments were made and interviewed the person who overheard them three times and made the decision based on statements of two trusted employees, the endorsement of those employees’ reliability by three managers, and the benefits of a face-to-face meeting with the employee who was discharged).

16 Roe, 543 U.S. at 83-84 (2004) (police officer’s offering home-made, sexually explicit videos for sale on an online auction site, though outside the workplace and not related to his employment, had injurious effect on mission of his employer and were not entitled to First Amendment protection).

17 Garcetii , 547 U.S. at 421 (2006).

18 Ceballos v. Garcetti, 361 F.3d 1168 (9th Cir. 2004).

19 Garcetti, 547 U.S. at 420 (2006).

20 See Langer, 265 F.3d at 1267 (disclosures not protected “because they were required as part of Langer’s normal job function”); Grant v. Dominion E. Ohio Gas, 2004-SOX-63 at 40, 45 n.46 (A.L.J. Mar. 10, 2005) (reporting not protected in part because it was complainant’s responsibility to raise questions regarding accounting and assure compliance with regulations); Robinson v. Morgan Stanley, 2005-SOX-44 at 3, 115-16, 118 n.15 (A.L.J. Mar. 26, 2007) (senior internal auditor’s discovery of bankruptcy reporting problem and presentation of her findings to audit management was not a protected activity because she was merely discharging her auditor duties; however, the complainant engaged in protected activity when she went beyond her assigned duties by presenting the bankruptcy issue in a memorandum to the president and CFO based on her belief that the issue was not getting sufficient attention); cf. Richards v. Lexmark Int’l, Inc., 2004-SOX-49 at 14 (A.L.J. Oct. 1, 2004) (complainant’s report of inventory misrepresentations, which was made pursuant to his duty to investigate inventory problems, was protected).

21 See, e.g., 5 U.S.C. §2303 (FBI employees); 10 U.S.C. §1587 (civilian employees of the armed forces); 46 U.S.C. §2114 (Coast Guard whistleblower protection); and 10 U.S.C. §1034 (Military Whistleblower Protection Act). Some laws provide protection to both public and private employees. See, e.g., Asbestos Hazard Emergency Response Act of 1986, 15 U.S.C. §2651; Asbestos School Hazard Detection & Control Act, 20 U.S.C. §3608; Atomic Energy and Energy Reorganization Act, 42 U.S.C. §5851; Clean Air Act, 42 U.S.C. §7622.

22 5 U.S.C. §1213(a)(1) (2005).

23 See, e.g., Herman v. DOJ, 193 F.3d 1375, 1378-79 (Fed. Cir. 1999) (“petitioner must show … he disclosed information that he reasonably believed evidenced ‘a violation of law, rule, or regulation’”; “a reasonable person would not believe that the situation violated the SPP Directive”) (emphasis original, quotation omitted); Frederick v. DOJ, 73 F.3d 349, 352 (Fed. Cir. 1996) (similar). For other objective whistleblower protections, see, e.g., 5 U.S.C. §2303 (disclosure of information by the employee to the attorney general (the employee or applicant must “reasonably believe” there has been a rule violation or gross mismanagement)); 10 U.S.C. §1587 (similar); Military Whistleblower Protection Act, 10 U.S.C. §1034 (similar); 46 U.S.C. §2114 (seaman must report in good faith a violation of law or have a “reasonable apprehension or expectation” that performing his duties would result in serious injury).

24 See Herman, 193 F.3d at 1379, 1381 (hospital’s failure to provide a required “suicide watch room” and the hospital’s improper copying of privileged telephone records were “trivial or de minimis matters”; “the WPA was enacted to protect employees who report genuine violations of law, not to encourage employees to report minor or inadvertent miscues”); Frederick, 73 F.3d at 353 (Congress only intended the WPA to encourage disclosures of major wrongdoing, not “arguably minor” transgressions such as illegal border crossings by border patrols); Langer v. Dep’t of Treasury, 265 F.3d 1259, 1267 (Fed. Cir. 2001) (disclosures concerning unauthorized opening of “pink envelope” communications that might have contained confidential grand jury information were de minimis and not protected).

25 See Frederick, 73 F.3d at 353.

26 See, e.g., 10 U.S.C. §2409 (contractor employees of the armed forces). Within this category, some would include antiretaliation measures for violation of employment laws such as the Occupational Safety and Health Act, 29 U.S.C. §660(c) or Fair Labor Standards Act, 29 U.S.C. §215(a)(3); however, these are outside the scope of this article.

27 18 U.S.C. §1514A(a). A prima facie case requires the plaintiff to show that 1) the employee engaged in protected activity; 2) the employer knew of the protected activity; 3) the employer took some adverse action against the employee; and 4) the evidence is sufficient to permit an inference that the protected activity was the likely reason for the adverse action. Collins v. Beazer Homes USA, Inc., 334 F. Supp. 2d 1365, 1380 (N.D. Ga. 2004).

28 The limitation has been extended since to non-publicly traded subsidiaries. See, e.g., Platone v. Atl. Coast Airlines, 2003-SOX-27 (A.L.J. Apr. 30, 2004), rev’d on other grounds, 04-ARB-154 at 20 (A.R.B. Sept. 29, 2006) (publicly traded holding company of a non-publicly traded subsidiary for which the complainant worked held an employer).

29 The enumerated criminal statutes are mail fraud, wire fraud, bank fraud, and securities fraud. See 18 U.S.C. §1341, 18 U.S.C. §1343, 18 U.S.C. §1344, and 18 U.S.C. §1348.

30 18 U.S.C. §1514A(a)(1).

31 18 U.S.C. §1514A(a)(2); see also Lerbs v. Buca Di Beppo, Inc., 2004-SOX-8 at 13 (A.L.J. Jun. 15, 2004) (“complainant’s belief ‘must be scrutinized under both subjective and objective standards; i.e., he must have actually believed that the employer was in violation of [the relevant laws or regulations] and that belief must be reasonable’”).

32 See Welch v. Cardinal Bankshares Corp., A.R.B. Case No. 05-064, A.L.J. Case No. 2003-SOX-15 at 10 (A.R.B. May 31, 2007).

33 See Lerbs, 2004-SOX-8 at 14, 16.

34 Compare Henrich v. Ecolab, Inc., 2004-SOX-51 at 8-9 (A.L.J. Nov. 23, 2004), aff’d on other grounds, A.R.B. Case No. 05-030 (A.R.B. June. 29, 2006) (holding that the complainant’s report of an alleged improper accounting of an amount less than .008 percent of the company’s annual sales revenue was protected) with Harvey v. Safeway, Inc., 2004-SOX-21 at 4, 31 (A.L.J. Feb. 11, 2005) (holding that an individual’s complaint of wage underpayment was not protected because it was not material and did not affect the financial condition of the company).

35 18 U.S.C. §1514A(a)(1).

36 See Garcetti, 547 U.S. at 435 (Souter, Stevens, Ginsburg, JJ., dissenting) (would protect work-related speech when it exposes “official dishonesty, deliberately unconstitutional action, other serious wrongdoing or threats to health and safety”); Edenfield, 609 So. 2d at 30 (“[W]e do not imply that employees or other persons protected by the act can render themselves immune from being penalized on the job for their participation in misconduct simply by being the first to blow the whistle. So long as the employer takes adverse action based solely on the misconduct or some other neutral and nonpretextual reason, the whistle-blowing employee would have no cause of action as a matter of law and a motion for summary judgment would be appropriately granted.”).

37 Garcetti, 547 U.S. at 427 (Stevens, J. dissenting) (“The notion that there is a categorical difference between speaking as a citizen and speaking the course of one’s employment is quite wrong…. [I]t is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.”). In particular, the dissent feared that the majority’s decision would altogether undermine academic freedom, causing the majority to carve out higher education.

38 See, e.g., D’Angelo v. Sch. Bd. of Polk County, 497 F.3d 1203 (11th Cir. 2007) (former high school principal who alleged that the board violated the First Amendment when it terminated him in retaliation for his efforts to convert his school to a charter school failed to state a claim because his efforts were made pursuant to his official duties); Gilder-Lucas v. Elmore County Bd. of Educ., 185 Fed. Appx. 885, 2006 WL 1736833 at *2 (11th Cir. 2006) (teacher who contended her contract was not renewed because she questioned the fairness of cheerleading try-outs failed to state a claim under the First Amendment); Andrew v. Clark, 472 F. Supp. 2d 659 (D. Md. 2007) (dismissing complaint by a policy officer who wrote an internal memorandum critical of police procedures allegedly leading to the shooting of an elderly man barricaded in his apartment); Mayer v. Monroe County Comm. Sch. Corp., 474 F.3d 477, 480 (7th Cir. 2007), cert. denied, 128 S.Ct. 160 (2007) (teacher’s expression of negative views during current events lesson about the Iraq War were not protected speech).

39 Vila v. Padrón, 484 F.3d at 1339-40 (11th Cir. 2007).

40 Irven v. Dep’t of Health & Rehabilitative Servs., 790 So. 2d 403, 406 (Fla. 2001).

41 Id. at 405.

42 Rosa, 915 So. 2d at 212.

43 Martin County v. Edenfield, 609 So. 2d 27, 30 (Fla. 1992).

44 See, e.g., Thampi v. Collier County Bd. of Comm’rs, 510 F. Supp. 2d 838, 850-852 (M.D. Fla. 2007), aff’d, 273 Fed. Appx. 836 (Fla. 11th Cir., Apr 14, 2008) (main thrust of memorandum was pursuant to his duties as the project manager, his defense of handling various projects, differences with the personality and management style of his superiors, and how superiors were out to discredit him).

45 Fla. Stat. §§112.3187(9)(d) (attorneys’ fees and costs to a “substantially prevailing” public employee “or to the prevailing employer if the employee filed a frivolous action in bad faith”); Fla. Stat. §448.104 (attorneys’ fees and costs for private employees who are prevailing parties). The fees available to employers under §112.3187(9)(d) are generally not granted.


Nathan A. Adams IV received his B.A. from Wheaton College, M.A. and Ph.D. from the University of Florida, and J.D. from the University of Texas School of Law. He is a lawyer with the law firm of Holland & Knight, LLP. Dr. Adams formerly served as counsel in the Florida Department of Education and Office of the Governor.

This column is submitted on behalf of the Labor and Employment Law Section, Alan O. Forst, chair, and Frank E. Brown, editor.

[Revised: 02-10-2012]