Public Whistle-Blower’s Act: The Fourth District Court of Appeal Continues to Follow Trend in Expanding Scope of Retaliation Claims
A recent decision from the Fourth District Court of Appeal continues the existing trend of courts broadly interpreting provisions in anti-retaliation laws, particularly with respect to whom and in what manner a disclosure under the Public Sector Whistle-Blower’s Act may be made.1 After a brief overview of the act’s requirements, this article addresses a recent decision of the Fourth District Court of Appeal and its practical application.
The act was enacted with the intent to prevent retaliatory action against employees and persons who make certain disclosures to an appropriate agency.2 Unlike other anti-retaliation statutes, such as Florida’s Private Sector Whistle-Blower’s Act or Title VII, the act specifically limits what type of information constitutes a protected disclosure, and not every disclosure will be protected by the act.3 To be covered by the act, an employee must disclose actual or suspected violations of law on the part of a public employer or independent contractor that create a substantial and specific danger to the public’s health, safety, or welfare; or acts or suspected acts 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 the agency.4
• Basic Requirements of the Act — The act sets forth several specific requirements regarding the types of disclosures protected, to whom those disclosures must be made, and the manner in which a remedy must be sought.5 Under Florida law, before a public-sector employee6 can file a lawsuit claiming a violation of the act, that employee must first exhaust all available administrative remedies.7 If a plaintiff complies with the exhaustion requirements, the inquiry then proceeds to the substance of the claims. The elements for a cause of action for retaliatory discharge under the act are: 1) The plaintiff engaged in statutorily protected disclosure; 2) the plaintiff suffered an adverse employment action; and 3) there is some causal connection between the two events.8 Because Florida applies a Title VII analysis to retaliatory discharge claims under this statute, the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies.9
• To Whom Information Must Be Disclosed — In order to constitute a protected disclosure under the act, an employee must disclose certain information to a particular entity or agency.10 For disclosures concerning a local governmental entity,11 a focal point of this article and of a recent opinion by the Fourth District Court of Appeal, the information must be disclosed to a “chief executive officer” as defined in §447.203(9)12 or “other appropriate local official.”13 For all disclosures other than those involving a local governmental entity, the information must be disclosed to any agency or federal governmental entity having the authority to investigate, police, manage, or otherwise remedy the violation or act.14
While few courts have addressed who may be considered an appropriate local official to whom protected disclosures concerning local governmental entities may be made, the Florida Attorney General’s Office has issued a number of advisory opinions concerning this provision of the act. The advisory opinions of the attorney general determined that a transit authority’s board of directors, a county’s inspector general, and a town’s ethics commission qualified as “other appropriate local official[s]” under the statute.15 The common element in these opinions is that the person or entity deemed to be an “appropriate local official” was affiliated with the local government in some way.16 Significantly, the Florida attorney general found individuals to be appropriate local officials when they were empowered to investigate complaints and make reports or recommend corrective action.17
The federal district courts that have been presented with this issue have, similar to the Florida attorney general’s opinions, afforded a liberal construction as to who may be considered an appropriate local official under the act.18 One case out of the Southern District of Florida, which discusses whether an employee’s disclosure was made to an appropriate local official under the act, is Burden v. City of Opa Locka, 2012 WL 4764592 (S.D. Fla. 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.19 When interviewed as part of the inquiry, Burden expressed concerns that the department was disorganized, its procedures outdated, and discipline was inconsistently handled, attributing the problems to the police chief.20 Analyzing the “participation in an investigation” portion of §112.3187(7), the federal trial court 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.21
Until a recent decision from the Fourth District Court of Appeal in July 2015, only a handful of Florida’s appellate courts had discussed, but not specifically defined, who is considered an appropriate local official as provided for in §112.3187(6).22 In discussing whether the federal Department of Housing and Urban Development (HUD) was an “other appropriate local official” under the statute, the First District Court of Appeal analyzed the opinions of Florida’s attorney general and noted “[t]he common element in these opinions is that the person or entity deemed to be an ‘appropriate local official’ was affiliated with the local government in some way.”23 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.24 If the employee had complained to a state or local agency that was empowered to investigate the plaintiff’s complaint or recommend corrective action, however, the outcome may have been different.25 When presented with a case under the act involving an alleged protected disclosure to an appropriate local official, the Fifth District Court of Appeal summarily concluded that the personnel to whom the disclosures were made did not fall within the scope of the statute without identifying who those individuals were or analyzing the individuals’ positions under the act.26
Recent Opinion of the Fourth District Court of Appeal
In Rustowicz v. North Broward Hospital District, 2015 WL 3996953 (Fla. 4th DCA July 1, 2015),27 the plaintiff employee filed suit against her employer, a hospital created by special taxing district legislation, alleging her employment as an audit associate was terminated in violation of the act.28 In this case, the employer’s business affairs are managed by a board of commissioners and chief executive officer. An internal audit department independently reviews, evaluates, and reports to the board on the accuracy of financial recordkeeping and compliance with applicable laws, rules, regulations, policies, and procedures.29 The employer also has an audit committee composed of one of the board members, two outside auditors selected by the board, and the internal audit department director who answers to the board.30
The plaintiff, who suffered from various health issues, was initially hired as an executive secretary. She later moved into a newly created position entitled “audit associate” upon the elimination of the secretary position. In both positions, plaintiff worked under a former internal audit department director (director R).31 During plaintiff’s employment, the board entered into an employment agreement with a new CEO (CEO L), with whom one board member negotiated, unbeknownst to the other board members, a side relocation agreement providing CEO L with $35,000 to relocate from his current residence in Tallahassee to Broward County, where the hospital was located. Despite this payment, CEO L never relocated and left the hospital for another job after a year and a half.32
Following the departure of CEO L, plaintiff discovered the relocation payment. She brought the payment, as well as other questionable expense items by CEO L, to the attention of director R, who directed her to investigate the expenditures further and determine if there were additional irregularities. Plaintiff compiled an audit report finding at least three significant violations of law, as well as the hospital’s code of conduct, which was submitted to director R and eventually to the audit committee and the board. After information from the internal audit department’s investigation leaked to the press, director R was discharged. During the interim period before a new director was hired, the employer’s general counsel served as the internal audit department’s interim director (interim director K).33
Plaintiff exhausted all of her available medical leave during the five months between the discharge of director R and hiring of a new director (director P). Upon returning to work, plaintiff was told she had to fill out medical forms to disclose medications she was taking, something she had not been required to do when returning from medical leave before her submission of the audit report to the board. When plaintiff wrote on the form that she was taking Xanax, the employer’s health director told her she was not able to return to work, despite plaintiff’s contention that director R had known for years she took this medication to reduce anxiety to avoid flare-ups of Crohn’s disease.34
Director P began working for the employer when plaintiff was out on medical leave and it was alleged that he signed off on two forms extending plaintiff’s leave. When plaintiff attempted to return to work, she was again advised by the health director that she could not return to work and take Xanax medication at work, although plaintiff’s doctor provided a statement that plaintiff could take the prescribed doses of Xanax and safely perform her job without any restrictions.35 When plaintiff returned from lunch one day, she was advised that her position had been eliminated as a result of a restructuring of the internal audit department by director P. While her former position of executive secretary had been restored, it had already been filled. Plaintiff was offered the opportunity to apply for other positions with the employer, and although she applied for four, she was not hired for any because she did not meet the degree requirements.36
The employer moved for summary judgment on various grounds, including failure to state a cause of action under the act.37 The trial court granted summary judgment in favor of the employer after concluding that plaintiff did not submit written complaints as defined by the act and that she did not make protected disclosures to the CEO or other appropriate local official as required by §112.3187(6).38
• Disclosures Made During an Investigation — During trial, plaintiff argued, although not extensively, that she engaged in statutorily protected expression under the statute because of her participation in the investigation of CEO L’s expenditures.39 The employer argued that even those employees claiming protection under the act by virtue of their participation in an investigation are required to disclose the protected information in writing. The trial court agreed with the employer and did not specifically address the category of employees who are requested to participate in an investigation.40
Analyzing the plain language of §112.3187(7) of the act and applying the reasoning of a federal district court case, Burden, interpreting the “participation in an investigation” portion of §112.3187(7), the Fourth District Court of Appeal rejected the trial court’s conclusion that summary judgment in favor of the employer was appropriate for the reason that plaintiff failed to make written disclosures.41 As noted by this court, the statute specifically includes a written complaint requirement for certain categories of employees, but it also extends protection to employees other than those who sign a written complaint, including those “who are requested to participate in an investigation.”42 If the statute was interpreted to require a signed written complaint to obtain protection against retaliatory conduct toward employees who participate in an investigation, it would leave those employees who verbally disclose wrongdoing to investigators without protection and create a chilling effect on investigations.43
Accordingly, the court held 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, and if he or she makes disclosures of wrongdoing as defined by the act during or as a result of participation, the employee qualifies for protection under the act. Under such circumstances, the disclosures need not be by signed complaint or on the initiative of the employee.44
• Determining Whether Disclosure Was Made to “Appropriate Local Official” — The court proceeded to address the trial court’s conclusion that plaintiff did not make protected disclosures of wrongdoing by a local government entity to an “appropriate local official” pursuant to §112.3187(6).45 Noting that while a handful of cases discuss the application of the language “other appropriate local official,” no case has specifically defined the scope of the language, the court agreed with the guidance offered by opinions of the Florida attorney general that the protection does not require disclosure to a singular person or official.
Finding persuasive the description of “other appropriate local official” in the attorney general opinions, Quintini and Burden, that these are individuals empowered to investigate complaints and make reports or recommend corrective action, the court held that for protection under the act, disclosures of wrongdoing by a local government entity must be made to either 1) a chief executive officer, as defined in §447.203(9); 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.46 The court then applied this principle to the facts at hand. In Rustowicz, the internal audit department had the responsibility to monitor and investigate employee compliance with the company’s rules and policies regarding finances. Based upon plaintiff’s disclosures to her supervisor, as well as to the board, during the investigation into CEO L’s expenditures, the court concluded that the trial court erred in granting summary judgment on the basis that plaintiff did not make a protected disclosure to an appropriate government official.47
The court, applying caselaw interpreting Title VII, also concluded that the employee presented sufficient evidence to circumstantially prove that the decisionmaker (director P) was aware of her protected disclosures at the time of the adverse employment action (elimination of the audit associate position), and the adverse action was sufficiently close in time to the decisionmaker’s awareness (less than one month), to survive summary judgment.48 Similarly, the court examined federal caselaw under Title VII and rejected the employer’s argument regarding pretext.49 The court concluded that sufficient summary judgment evidence existed that could demonstrate to a reasonable juror that 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.”50
Precedential Value of the Opinion in Rustowicz
The Fourth District Court of Appeal denied the employer’s motion for rehearingin Rustowicz.51 Given a lack of appellate decisions defining an “appropriate local official,” Florida’s trial courts, even if functioning in an appellate capacity, are bound by the Fourth District Court of Appeal’s interpretation of the statute’s language absent a contrary ruling from its district court of appeal or the Florida Supreme Court.52 In the event another district court of appeal addresses this issue, Rustowicz is merely persuasive. In the event of a split between the circuits, there is the potential for the Florida Supreme Court to address this provision of the act.53
Moreover, absent an alternative ruling by the Florida Supreme Court, federal courts applying provisions of the act must interpret an “appropriate local official” consistent with the definition in Rustowicz.54 Given the lack of caselaw defining who may be considered an appropriate local official, federal courts applying the act have a fairly expansive definition under which individuals or entities may be determined to be 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” to whom disclosures may be made concerning local governmental entities.
Practical Guidance for Public Sector Entities: Concluding Thoughts About Rustowicz
In a murky area of statutory interpretation, Rustowicz provides some clarity — and invites more questions.55 Because an employee may claim protection under the act based upon statements made during investigations, hearings, or other inquiries conducted by any agency or federal government entity, employers covered by the act should exercise caution when conducting such investigations or inquiries. If an employee makes a statement or complaint during such an investigation that could potentially be construed as a disclosure protected by the act, the employer may want to treat that statement as a distinct complaint and initiate a separate investigation. Failing to properly investigate an employee’s complaint might destroy valuable defenses and increase potential liability. Rather, the employer should endeavor to provide sufficient training to those who conduct investigations so that he or she can recognize witness statements that might qualify as disclosures protected by the act, and investigate such matters fully regardless of the context in which they come up.
If an employee makes a disclosure that may be protected by the act, any subsequent adverse employment action should be well founded. Maintaining adequate documentation of disciplinary and termination decisions, particularly for those individuals who have participated in an investigation, hearing, or inquiry by an agency or federal government entity, is imperative for employers to be able to shift the burden back to the plaintiff to prove that the proffered legitimate, nonretaliatory reason for the adverse employment action was pretextual. For disclosures concerning a local government entity, employers covered by the act should also be particularly cautious with respect to who may qualify as an appropriate local official given the decision in Rustowicz and the cases interpreting this section of the act upon which it relies.
Given Rustowicz’s expansion of the provisions of the act regarding the manner in which and to whom a disclosure protected by the act may be made, the Fourth District Court of Appeal continues the recent trend of courts interpreting retaliation claims more broadly. Although it is unclear as to whether this is the result that the legislature intended, it is apparent that the scope of retaliation claims is expanding in the current legal climate. Fortunately, with respect to the act, not every statement will constitute a protected disclosure because of the limiting language in the statute.
1 See, e.g., Crawford v. Metropolitan Gov’t of Nashville and Davison County, Tennessee, 555 U.S. 271 (2009) (holding that the protection of the opposition clause of the anti-retaliation provision of Title VII extended to an employee who spoke out about sexual harassment, not on her own initiative, but in answering questions during employer’s investigation of co-workers complaints).
2 As defined by the act, an agency is any state, regional, county, local, or municipal government entity, whether executive, judicial, or legislative, and any official, officer, department, division, bureau, commission, authority, or political subdivision therein. Fla. Stat. §112.3187(3) (2013).
3 See, e.g., Whiddon v. Dep’t of Ins., 27 FPER ¶32223 (PERC 2001) (employee’s complaint that his supervisor sent a false email about the employee was not protected by the act); Laskey v. Fla. Bd. of Regents, 22 FPER ¶27107 (PERC G.C. Summary Dismissal 1996) (complaint that another faculty member was engaged in dual employment in violation of Florida law was not protected by the act); Casanova v. Dep’t of Corrections, 23 FPER ¶28246 (PERC G.C. Summary Dismissal 1997) (employee’s complaint regarding supervisors attitude and demeanor not protected by the act).
4 Fla. Stat. §112.3187(2); see also Irven v. Dep’t of Health and Rehabilitative Servs., 790 So. 2d 403, 406 (Fla. 2001); Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992).
5 Fla. Stat. §§112.3187(5), 112.3187(6), 112.3187(7).
6 “Employee” means a person who performs services for, and under the control and direction of, or contracts with, an agency or independent contractor for wages or other remuneration. Fla. Stat. §112.3187(3)(b).
7 Fla. Stat. §112.3187(8) (describing the administrative process for employees of state agencies and local public employees).
8 Fla. Dep’t of Children & Families v. Shapiro, 68 So. 3d 298, 305-06 (Fla. 4th DCA 2011).
9 Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125, 1132-1133 (Fla. 4th DCA 2003). Under McDonnell Douglas, 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 (1973). If the plaintiff successfully presents a prime facie case, the burden shifts to the employer to prove some “legitimate, nondiscriminatory reason” for the adverse employment action. Id. at 802. If the defendant carries this burden, the plaintiff then has the opportunity to prove that the proffered reason was merely a pretext for the defendant’s actions. Id. at 804.
10 Fla. Stat. §112.3187(6).
11 A “local governmental entity” includes any regional, county, or municipal entity, special district, community college district, or school district, or any political subdivision of any of the foregoing. Fla. Stat. §112.3187(6).
12 Fla. Stat. §447.203(9) (2009).
13 Fla. Stat. §112.3187(6).
14 Fla. Stat. §112.3187(6).
15 See AGO 2012-20 (Fla. 2012) (indicating that transit authority board of directors could be appropriate local official to receive and investigate whistleblower complaints); AGO 2010-48 (Fla. 2010) (noting that county designated inspector general and executive director of county ethics commission as appropriate local officials); AGO 99-07 (Fla. 1999) (stating that county inspector general qualified as an appropriate local official); AGO. 96-40 (Fla. 1996) (finding city’s ethics commission was an appropriate local official under the statute because it could investigate violations and take corrective action). See also Burden v. City of Opa Locka, 2012 WL 4764592 at *13 (S.D. Fla. 2012) (citingAGO 2012-20; AGO 99-07; AGO 96-40).
16 Quintini v. Panama City Hous. Auth., 102 So. 3d 688, 689 (Fla. 1st DCA 2012), rev. den., 116 So. 3d 383.
17 Burden, 2012 WL 4764592 at *13(citing AGO 99-07).
18 Saunders v. Hunter, 980 F. Supp. 1236, 1246 (M.D. Fla. 1997) (holding that plaintiff alleged sufficient facts to withstand a motion to dismiss when she alleged she complained to her supervisor at the sheriff’s office, who are appropriate local officials, rather than to the sheriff); Burden, 2012 WL 4764592 at *13 (finding complaints to the city’s human resources director and an assistant city manager were protected as they are appropriate local officials to whom protected disclosures can be directed).
19 Burden, 2012 WL 4764592at *2.
21 Id. at *14.
22 Quintini,102 So. 3d at 689; Cummins v. Lake County Bd. of County Comm.’s, 671 So. 2d 893 (Fla. 5th DCA 1996) (affirmed trial court’s holding that the county personnel to whom plaintiff expressed concerns were not within the scope of persons to whom disclosure is protected by the act); Stanton v. Fla. Dept. of Health, 129 So. 3d. 1083, 1084 (Fla. 1st DCA 2013) (holding that complaint did not demonstrate that the supervisor to whom plaintiff made a disclosure possessed the necessary authority to investigate the matter); Tillery v. Fla. Dept. of Juvenile Justice, 104 So. 3d 1253, 1255 (Fla. 1st DCA 2013) (holding that plaintiff failed to allege to whom he made the alleged whistleblower disclosures and, therefore, did not meet the prima facie elements necessary to state a cause of action under the act).
23 See, e.g., Campbell v. Lee Cty, 2015 WL 1220329 (M.D. Fla. Mar. 17, 2015), citing Quintini, 102 So. 3d at 689. The plaintiff in Campbell did not allege who his superiors were, nor that they have the authority to investigate his complaints or recommend corrective action and, accordingly, the court concluded that the plaintiff failed to allege his disclosures qualified for protection under the act.
24 Quintini, 102 So. 3d at 689-691(referencing Burden’s holding that “appropriate local officials” include officials and entities who are empowered to investigate complaints and make reports or recommend corrective action).
25 See Harris v. Dist. Bd. of Trustees of Polk Comm’y College, 9 F. Supp. 2d 1319, 1328 (M.D. Fla. 1998) (holding that an employee of a criminal justice program at a community college met the act’s requirement of reporting to an “appropriate local official” when he disclosed problems to the Florida Department of Law Enforcement (FDLE) because, pursuant to Florida statutes, the FDLE is responsible for certifying schools that provide criminal justice training courses); cf. Castro v. Sch. Bd. of Manatee Cty, Fla., 903 F. Supp. 2d 1290, 1303 (M.D. Fla. 2012) (holding that email did not constitute protected disclosure under the act because it was addressed to an official with the U.S. Department of Education, rather than a local school board official).
26 See Cummins, 671 So. 2d at 893 (Fla. 5th DCA 1996).
27 Rustowicz v. North Broward Hospital Dist., 2015 WL 3996953, No. 4D13-2059 (Fla. 4th DCA July 1, 2015) (remanded to trial court on whistleblower count).
28 The plaintiff in Rustowicz also alleged claims under the Florida Civil Rights Act (FCRA), Fla. Stat. Ch. 760. The appellate court affirmed summary judgment in favor of employer as to both counts under the FCRA. Plaintiff’s whistleblower claim is the primary focus of this discussion.
29 Rustowicz, 2015 WL 3996953 at *1.
31 For ease of reference, the court assigns abbreviated titles to the individuals discussed in the opinion. These same designations are utilized in this article to maintain consistency with the court’s discussion.
32 Rustowicz, 2015 WL 3996953at *1.
33 Id. at *2.
36 Id. at *3.
37 As noted by the court in Rustowicz, 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).
38 Rustowicz, 2015 WL 3996953at *1.
39 Id. at *5. The court also notes that director R was a local official that there was evidence in the record that plaintiff made her disclosures directly to the board as part of her participation in the investigation. However, the court does not separately analyze complaints to the director or to the board, but rather focuses on plaintiff’s participation in an investigation. It also bears mentioning that in plaintiff’s capacity as an audit associate, she essentially conducted the preliminary investigation, and the court’s analysis does not address whether there is a distinction between being an individual whose job responsibility is to undertake such investigations and participating in an investigation.
41 Burden, 2012 WL 4764592.
42 Rustowicz, 2015 WL 3996953 at *5-6.
43 Id. at *6.
44 Rustowicz, 2015 WL 3996953 at *7. A Florida Supreme Court case interpreting an earlier version of the statute reached the same holding. Golf Channel v. Jenkins, 752 So. 2d 561 (Fla. 2000) (interpreting earlier version of statute and reaching same holding that a signed written complaint was not required for protection claimed by employees who participate in an investigation).
45 Rustowicz, 2015 WL 3996953 at *8-10.
46 Id. at *9.
48 Rustowicz, 2015 WL 3996953 at *12, citing Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999) (holding that seven-week delay between protected activity and adverse employment action was sufficient temporal proximity to make a prima facie showing of causation).
49 Rustowicz, 2015 WL 3996953 at *4.
50 Rustowicz, 2015 WL 3996953 at *12, citing Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (finding that a plaintiff withstands summary judgment by producing sufficient evidence to allow a reasonable finder of fact to conclude that the defendant’s articulated reason for its decision are not believable).
51 Order Denying Appellee’s Mot. for Reh’g (Sept. 9, 2015).
52 Decisions of district courts of appeal represent the law of Florida unless and until they are overruled by the Florida Supreme Court. Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (“The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision.”); see also Nader v. Fla. Dept. of Highway Safety and Motor Vehicles, 87 So. 3d 712, 724 (Fla. 2012) (“[A] circuit court…is bound to apply existing precedent from another district if its district has not yet spoken on the issue.”).
53 Fla. Const. art. V, §3(b)(3).
54 A federal court applying state law is “bound to adhere to decisions of the state’s intermediate appellate courts absent some persuasive indication that the state’s highest court would decide the issue otherwise.” Hernandez v. Publix Super Markets, Inc., 11 F. Supp. 3d 1177, 1183 (S.D. Fla. 2014), citing Winn–Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1021 (11th Cir. 2014) (internal quotation marks omitted) (quoting Provau v. State Farm Mut. Auto. Ins. Co., 772 F.2d 817, 820 (11th Cir. 1985)).
55 Notably, the court does not address whether the disclosure must be within the scope of the matter being investigated, nor whether the employee’s job responsibilities to audit finances affected her status as a whistleblower.
Lindsey L. Dunn is an associate in the law firm of Kunkel Miller & Hament. She has a B.A. with honors from the University of Florida and a J.D. from Florida State University School of Law. She is a member of The Florida Bar and is admitted to practice before the U.S. District Courts for the Northern, Middle, and Southern Districts of Florida. Dunn advises public and private sector employers in labor and employment law matters and represents those entities in labor and employment litigation in administrative, state, and federal court proceedings.
This column is submitted on behalf of the Labor and Employment Law Section, Frank E. Brown, chair, and Robert Eschenfelder, editor.