Lee County Whistle-blowers' re-instatement

7/24/2019 Lee County Whistle-blowers' re-instatement

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IN T H E C I R C U I T C O U R T O F T H E T W E N T I E T H J U D I C I A L C I R C U I T

IN A N D F O R L E E C O U N T Y , F L O R ID A

CIVIL DIVISION

D O N N A W A R D a n d G L E N N

J O H N S O N

Plaintiffs

V .

CA SE NO : 14-CA-3368

L E E C O U N T Y ,

Defendant

/

O R D E R

ON P L A I N T I F F S MOT ON F O R T E M P O R A R Y

R E I N S T A TEME NT

THIS CAUSE having come before th i s Court for hear ing on September 24 and

October 26, 2015 on the Plainti ffs' Motion for Temporary Reinstatement and the Court

having reserved rul ing and being advised of the premises, i t i s ORDERED and

A D J U D G E D a s fo l l o w s :

1. This Case came before this Court on the Plainti ff' s Motion for Tem pora ry

Reinsta teme nt (hereafter referred to as the Mo tion to Reinstate ) , f i led on 12/8/14.

While this Motion was f i led in connection with the original Complaint that the

Plainti ffs f i led on 11/24/14 which was subsequently partial ly dismissed by the Court

with leave for the Plainti ff to amend, the Plainti ffs did f i le an Amended Complaint on

8/21/15 that requested reinstatement and therefore this Court considers the Motion

to Reinstate to be viable . No objections were raised to proceeding on this Motion as

fi led on 12/8/14.

2. This Court takes jud icial notice of criminal Case number 14-M M -745 including the

fol lowing fi l ings therein: the Information fi led on 5/13/14 and the Notice of Nol le

Prosequi f i led on 6/13/14. This i s the criminal case against Robin Speronis for one

count of f irst degree misdemeanor Cruelty to Animals concerning one of Ms.

Speronis' dogs that had been taken into custody by Lee County's Animal Control

Office (also referred to herein as ACQ ) in the Spring of 201 4. This criminal case i s

the subject of a majori ty of the Plainti ffs' disclosures .

3 . The Ca se at Bar previously cam e before the Court on Defend ant's M otion to Dismiss

al leging that the disclosures at i ssue are not of the nature that are protected by

Florida's Whistle-Blower Statute and that they were not sent to the correct recipients

as required by the Statute . The Court granted the Motion in part based on Plainti ffs

fai lure to properly al lege that the disclosures at i ssue addressed violations or

1



suspected violations of law. The Court denied the Motion to Dismiss based on the

Defendant 's a l legat ions that the wri t ings were not s igned beacause most were sent

via email , and that the Lee County Board of Commissioners does not qualify as the

type of recipient required by the Statute. (See Court's Order f i led on 8/14/15)

4.

This Case cam e before the Court for hearing on the Motion to Reinstate spann ing

two days: Se ptem ber 24 and October 26 , 2015 . At the conc lus ion o f the hear ing , the

Court reserved ruling and allowed the Parties' attorneys to submit addit ional

memoranda with in the week . Both Counse l submit ted addit iona l Memorandum f i led

in the cour t f i le on 10/30/1 5.

5. This M otion to R einstate p resents the Court with a very narrow set of issues to

consider as set forth below.

A. The Court must determine (1 ) whe ther the employee-P la int i f f s have com pla ined

of being discharged in retaliation for a disclosure protected by Florida's

Whistle-

Blower

sXatuXe;

and (2) wh ether the disclosures w ere ma de in bad faith or for a

wrongful purpose, or occurred after an employer init iation of a personnel action.^

B. Tw o criteria must be met in order for the

l/ l 7/sf/e-S/ower

Statute to apply: (1) the

employee must have disclosed a certain type of information and (2) i t must have

been disclosed to recipients designated by the act .^ The subject matter of the

information disclosed must be: ' . . .any violation or suspected violation of any

state , federal or local law, rule or regulation committed my an employee. . . that

creates and presents a substantial and specif ic danger to the public's health,

safety or welfare. . . ; ' and/or ' . . .any act or suspected act of gross

mismanagement , malfeasance , mis feasance , gross waste o f publ ic funds or

gross neglect of duty committed by an employee. . . . '^

C. Ca se law indicates that a court's determ ination s in tem por ary reinstatem ent

proceedings including the nature of the disclosures at issue and whether the

disclosures were made to the appropriate recipients is s imilar to that used in

consid ering m otions to dism iss . Th e First District Cou rt of Ap pea ls implies in

Department of Transportation v. Florida Commission on Human

Relation

temporary re instatement dec is ion could be made on ly on the p leadings without a

hearing if one is not requ ested by the parties .^ W histle-B low er c ase law including

case law addre ssing reinstatem ent pr oceedin gs provid es that the Statute is to be

construed l iberally so as not to frustrate its purpose^ and that the ult imate issue

^ F la .S ta t .§112 .3187(9 ) ( f ) (2014)

^FIa .S ta t .§112 .3187(6 ) (2014)

^ F la .S ta t .§112 .3187{5) (2014)

842 So.2d 253 (Fla. l ' ' DCA 200 3)

^ I d . at 256

^ Hutchison

V

Prudential Insurance Company of America inc. 645

S o . 2 d 1 0 4 7 , 1 0 4 9

(Fla. 3d DCA

1994

V

City

of Belleair Bluffs 113 So.3d 92, 93 (Fla. 2 d DCA 201 3); Lindamood v Office of the State Att

Judicial

Circuit

of

Florida

731 So.2d 829, 8 3 3 (Fla. 5* ̂DCA 1999)

2



of the nature of the protected disclosures are mixed questions of law and fact to

be dete rm ined by a j u r y / C onseq uently, this Cour t concludes that at this stage of

the proceedings in this Case, that i t does not have the authori ty to delve too

deeply into the circumstances al leged in the disclosures at i ssue or the nexus

between said disclosures and the Plainti ffs' termination.

6. The re are not ma ny cases directly addre ssing the circum stanc es of temp orary

reinstatement in cases f i led in circuit court, but what does exist supports

reinstatem ent of the Plainti ffs in this Ca se. In

Lindamood v. Office of the

State

Attorney, the Fifth District Court of Ap pea ls reversed the trial court's denial of

temporary reinstatement and remanded the case for the plainti ff-employee to be

temporari ly re instated . Ms. L indamood ' s emp loyment wi th the State Attorney' s

Office had been terminated shortly after she had complained via emai ls regarding

certain office pol icies including disproportionate distribution of work and salary

dispari ties based on gender and age. She sent emai ls to the EEOC, the Florida

Commission on Human Relations, the Office of Publ ic Counsel and Governor Chi les.

The Fifth District Court ruled that the Whistle-Blower statute mandates reinstatement

i f the statutory re quire men ts of Section 112.3187 are met.

The statutory language of

§112.3187 is not ambiguous and the plain meaning of the statute must p

Lindamood,

the District Cou rt fou nd :

i

...all of the statutory requirements of §112.3187,

which trigger its operation and require

Lindamood's

reinstatement

have been met. Lindamood was an

employee of a state

agency

covered under this

section.

Prior to her termination, she made

disclosures of the type protected by the statute, to the

Office

of the

Public

Counsel...

. She was

subsequently

terminated... . Lindamood's disclosures

were

not in bad

f ith

or for a wrongful purpose, and

...they

were

made prior to her termination.^

It i s noteworthy that the Appel late Court does not appear to have analyzed whether

the circumstances al leged by Ms. Lindamood in her disclosures actual ly existed or

occurred, but rather only i f the subject matter, recipients and timing qual i f ied under

the Whist l e -Blower Statute .

7. It i s und isputed tha t the Plainti ffs were emp loyees of a local gove rnm enta l enti ty

covered by the W hist l e -Blower Statute .

^ Guess

V

City ofMaramar 8 8 9 So.2d

8 4 0 ,

84 5

(Fla. 4 *^

DCA

2 0 0 5 ) ;

Rosa

v

Department of

Children

F

S o . 3d 2 1 0 , 2 1 2 ( F l a . l D CA 2 0 0 5 )

^ l / n d o / n o o d 7 3 1 S o .2 d a t 8 3 3

' Id.

at 832

3



8. This Court f inds that for the purp oses of the reinstatem ent proc eeding s, the subject

matter of the disclosures at i ssue are the type that are protected by Florida's

Whistle lower

Statute.

A. The disclosu res that the Plaintiffs al lege to be protecte d by W histle-Blow er

Statute are as fol lows:

F R O M G

L E N N

JOH N SON ^°

EXHIBIT

No

11

D A T E

FORM

TO A LLEG A T IONS

C ompla int about C B ' ' '

-CB made dec ision not to pursue

Speronis-case without suff ic ient

information

-GJ ordered to return both dogs while

S AO ^ ^

sti l l had cr iminal case pending

and after GJ directed to hold large dog

as evidence

-CB berated GJ and accused him of

wrong-doing because he didn't return

dog-evidence per direct ions of SAO

-CB had fai led to address ACQ

operations issues inc luding pay grades &

staff increases

P. Ex. 6 4/2 5/1 4

11:32 AM

email County

M anage r R oge r

Desjar lais

P Ex 7 4/29/14

m e m o

C ounty

M anage r R oge r

Desjar lais

Same as above

P Ex 10

6/27/14

17:27

email County

C ommiss ione r s

C ompla int about C B & R D ^

-C ompla ints about C B same as above

plus:

-she hadn't thoroughly reviewed

Fie ld Operations Report &

addr e sse d ne e ds o f A C O^^

-put ACO under media ban that

l imited ACO's abi l i ty to safeguard

c o m m u n i t y

-C ompla ints v s . R D :

-had not read Fie ld Operations Report

re :

A C O n e e ds

-doesn't consider ACO services

valuable

Glen J o hnso n re fe rred to in a bo v e ta bl e a s GJ

E x h i b it s a d m i t t e d i n R e i n s t a t e m e n t - h e a r i n g

Ass i s ta nt Co u nty Ma n a g er Chr is t in e Bra dy re fe rred to in a bo v e ta ble as CB

S t a t e A t t o r n e y ' s O f f i c e r e f e r r e d t o as S A O

Co un ty Ma n a g er Ro g er Des ja r la i s i s r e fe rred to in the a bo v e Ta ble a s RD

An im a l Co n tro l Of f ice Is r e fe rred to in the a bo v e Ta ble a s AC O

4



FROM

DONNA

WARD

EXHIBIT

N o

DATE

FORM

TO

ALLEGATIONS

P.

Ex.

1 8

4/25/14

11:21 AM

e m a i l C o u n t y M a n a g e r

Roger Desjar lais

-Complaints vs. CB & requests

ACO be assigned a different

A ss i s t a n t C o u n t y M a n a g e r a s

supervisor

-CB made dec ision not to pursue

Speronis-case without suff ic ient

information

-GJ ordered to return both dogs

while SAO^® still had criminal case

pending and after GJ directed to

hold large dog as evidence

-CB subjected GJ & DW to

aggressive and host i le

quest ioning because GJ didn't

return dog-evidence per direct ions

o f S A O

P Ex 19

5/2/14 M e m o C o u n t y M a n a g e r

Roger Desjar lais

Offic ia l Complaint vs. CB

-CB met w/ County attorneys and

made dec isions re: animals be ing

held by ACO without input or

i n f o r m a t i o n f r o m A C O

-CB has been host i le towar ds DW

& her staff specifically in connection

with the ir holding dog-evidence

P.E x.2 T^ 5/13/14 Me mo Glen Salyer , Assist .

C o u n t y M a n a g e r ^

-Alleges v io lat ions of Lee County

Employee Pol ic ies & Procedures by

CB inc luding:

- use of l ies , dishones ty , an d/or

misrepresentation in the

w o r k p l a c e

-CB obstructing just ice by her

al legations vs. GJ re: Speronis

C a se

P.

E x .2 2

6/14/14

9:37 AM

e m a i l C o u n t y M a n a g e r

Roger Desjar lais

C o m p l a i n t a b o u t C B

-CB acting in hostile and

u n p r o f e ss i o n a l m a n n e r t o w a r d s

DW's staff

-media ban imposed by CB

detr imental to AC Q S ability to

protect animals

P Ex 23

6/18/14

14:50

e m a i l C o u n t y

C o m m i ss i o n e r s

-Alleges host i le work environmen t/

retal iat ion perpetrated by CB & RD

-media ban inhibit ing ACO's abi l i ty

to care for Lee County's animals

D o n n a W a r d r e f e r r e d t o in a b o v e T a b l e a s D W

E x h i b i t s a d m i t t e d in R e i n s t a t e m e n t - h e a r i n g

S t a t e A t t o r n e y ' s O f f i c e r e f e r r e d t o as S A O

T h i s I n t e r - O f f l c e m e m o o f 5 / 1 3 / 1 4 t o G l e n S a ly e r w a s n o t a t t a c h e d t o t h e C o m p l a i n t o r A m e n d e d C o m p l a i n t , b u t

w a s a d m i t t e d a s e v i d e n c e I n t h e r e i n s t a t e m e n t p r o c e e d i n g s .

^ ° T e s t im o ny o f C o un t y M a na g e r D e s j a r lai s t ha t he a s s ig ne d A s s i s t a nt C o u nt y M a na g e r Sa ly e r t o I nv e s t ig a t e

c o m p l a i n t s o f D o n n a W a r d a n d / o r G l e n n J o h n s o n ve r s u s A s s i s ta n t C o u n t y M a n a g e r B r a d y

5



-C B ac c use d D W & A C O o f no t

handl ing Speronis-Case correct ly ,

but AC O actual ly did

-CB ignored DW's choice of inter im

A C O d ir e c tor

-CB has created such a host i le work

e nv ir onme nt tha t c ause d D W he a l th

pr ob le ms

-CB treated DW differently when

DW on FMLA leave than other

e mploye e s : c omple te ly t e r minate d

DW's access to off ice

-CB not addressing ACO staff

needs

B. Th e disclosu re-su bject matter can be constru ed to al lege violations or suspec ted

violations of federal , state or local law, rules or regulations committed by Lee

County employee Christine Brady, which could create and present a substantial

and speci f ic danger to the publ ic's heal th, safety or welfare.

(1) The disclosures al leging that Assistant County Manager Brady berated and/or

was host i l e and aggress ive towards Glenn Johnson and Donna Ward

regarding M r. John son' s com mun icat ing wi th the State Attorney ' s Off ice

regarding an on-going Speronis-case that was about to be f i led and retaining

the large Speronis-dog per instructions from Assistant State Attorney Justham

could possibly be construed as obstructing justice or tampering with a witness

or evidence regarding that case. The disclosures also al leged violations of

Lee County's Employee Pol icies and Procedures.

(2) Such actions could be found to endanger publ ic heal th, safety or welfare,

including that a wel l -functioning ACO is necessary to the protection of the

publ ic's animals and protecting the publ ic's animals protects the publ ic's

health, safety or welfare. That the ACO exists reflects i ts importance to the

publ ic's heal th, safety and welfare.

C. The disclosures regarding Assistant County Manager Brady's actions individual ly

and/or together regarding the ACO , the Speroni s Case and towards Glenn

Johnson and Donna Ward regarding the Speroni s Case could be construed to

al lege acts or suspected acts of gross mismanagement, malfeasance,

misfeasance or gross neglect of duty by Lee County employee Assistant County

Manager Christine Brady. These disclosures state or imply that Ms. Brady

al legedly:

(1) Made decisions about the welfare of animals without complete information;

P l a i n t i f f s E x h i b i t 2 1



(2 )

Made decisions that involved an on-going criminal case in the State

Attorney's Office without complete information, including that there was an

on-going case;

(3) Berated a potential witness in a criminal case, Glenn Johnson, for acting

within the scop e of his job in com mu nicating w ith the State Attorney 's Office

regarding th e dogs in AC O's cu stody that he knew wer e the subject of

possible criminal case;

(4) Imposing a media ban on the ACO's office which al legedly inhibi ted their

abi l i ty to communicate with the publ ic regarding the safety of Lee County's

animals; and

(5) Fai l ing to adequately staff the ACO's office so that there would be enough

investigators to ensure the safety of Lee County's animal population and

therefore i t s hum an populat ion .

D. Th e recipients of the disclosur es at issue do quali fy under the

Whistle Blower

statute as the type required by the Statute, as previously ruled by the Court.

9. The disclosu res at i ssue we re not mad e in bad fai th or for a wro ngfu l purpose, nor

did they occur after an employer ini t iation of a personnel action.

A. The re doesn 't appea r to be any evidence or even any al legations that the

Plainti ffs made the disclosures in bad fai th.

B. Both Plainti ffs had been emplo yed by Lee Coun ty A CO for several years. D onna

W ard had b een d irector of AC O s ince March 13 , 2008 and G lenn Johnson was

AC O's op erat ions m anager . No ev idence was presented that there were any

personnel actions pending or that had ever been ini t iated involving the Plainti ffs

prior to or even after their disclosures. Donna Ward's annual performance

evaluation that was completed in March of 2014 reflects that she was found to

meet expectations. ^^

10 . The Plainti ffs' emp loym ent w ith Lee County wa s terminate d on or about 7/8/14 via

letters of tha t date .̂ ^ Th is wa s within two we ek s of Plaintiffs' send ing em ails to the

Lee County Commissioners and approximately two months from the Plainti ffs' ini t ial

disclosures. Further consideration of nexus between Plainti ffs' disclosures and

termination should be done by a jury.

11. Defen dant's de fens e to Plainti ffs' Motion to Reinstate does not convinc e the Court to

do other than grant the Plainti ffs' Motion. In i ts Case Management Order of 7/24/15,

the Court al lowed the Defendant to present defenses to the Plainti ffs' temporary

reinstatement pursuant to Section 112.3187(10) , that the Plainti ffs were terminated

Plaintiff Ex. 14

Plaintiff Ex. 12 & 24



for reasons other than their protected disclosures. However, the Defendants fai led to

respond to discovery requests in detai l regarding these defenses and as such, the

Court al lowed Defendant to propound only the defense set forth in the

interrogatories to which i t responded. Despite the Court s prior rul ing, i t has some

doubts as to whether al lowing any such defenses i s contemplated by the Statute in

temporary reinstatement proceedings based on the shal low scrutiny that seems to

be al lowed in these proceedings pursuant to case law. However, even i f al lowed, the

defense submitted by Defendant does not affect the Court s decision.

12. Plaintiffs M otion for Tem por arv Reinsta teme nt f i led on 12/08/14 which rel ief is also

requested in P la inti f fs 8 /21 /15-Am ended Com pla int is hereby GR AN TE D. The

Court s f indings of fact should not be construed to extend beyond this Motion.

D O N E a nd O R D E R E D t h i s / ^ d a y o f N o v em b e r , 2 0 1 5 .

Honorable El izabeth V. Krier

Circuit Court Judge, 20 ^ Circuit

Conformed copies to :

B r i a n C a l c i a n o , a t t o r n e y f o r P l a i n t i ff s a t b r i a n ( S ) f l e m p l o v m e n t l a w . c o m

A n a s t a s i a J a s t e r, a t t o r n e y f o r P l a i n t i f f s a t a c i a s t e r ( a ) t h e m i s l a w l l p . c o m

S a ch a D y s o n , a t t o r n e y f o r D e f e n d a n t a t s d v s o n @ t s R h l a w . c o m

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Lee County Whistle-blowers' re-instatement

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