INITIAL BRIEF OF THE APPELLANT

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Statutes

F.S. 448.08…………………………………………………………………12, 14, 15

F.S. 112.3187………………………………………………………………………10

ISSUES ON APPEAL

Issue One The Trial Court committed reversible error when it found that the e-mail that was sent on October 4, 2013 didn’t constitute a complaint because that is an issue of fact for the jury

Issue Two The Trial Court committed reversible error when it found that nonpayment of wages to Mrs. [PLAINTIFF] failed to constitute malfeasance, misfeasance, or gross mismanagement on the part of the Defendant because this is an issue of fact left to the jury

Issue Three The Trial Court committed reversible error when it applied the Werthman, case to Mrs. [PLAINTIFF]’s request for attorney fees for representation in her grievance because Greene, is controlling and F.S. 448.08 is a remedial statute

STATEMENT OF THE CASE

Plaintiff, XXX [PLAINTIFF], was a teacher employed by the Indian River County School Board. [R. 1]; [R. 11 ¶ 3 Answer]. Mrs. [PLAINTIFF] worked for the Indian River County School Board for a period of time from August 15, 2013 until September 10, 2013 for which she was not compensated. [R. 2]; [R. 131 – 132 Sec. B Stipulated Facts].

The terms and conditions of Mrs. [PLAINTIFF] employment with the Defendant are enumerated in a collective bargaining agreement hereinafter referred to as the CBA. [R. 169].

The CBA contains a grievance procedure Art. XVII the purpose if which is to:

[T]o secure the lowest possible administrative level, equitable solutions to the problems which may arise affecting the health, welfare, or working conditions of members of this bargaining unit. Both parties agree that these procedures will be kept as informal and confidential as may be appropriate at any level.

[R. 169].

The CBA contains provisions regarding compensation for work performed in Article III Working Conditions and Appendix B1 Salary Schedules. [R. 146, 179 – 182].

Mrs. [PLAINTIFF] is permitted to grieve, “a controversy, dispute, disagreement, or violation of any kind of character exists out of or in any way involving, interpretation or application of the terms of [the CBA].” [R. 169].

If Mrs. [PLAINTIFF] wants to grieve a violation of any kind or character she is instructed to have an informal discussion with her principal then file a written complaint with her principal. [1] [R. 170].

Mrs. [PLAINTIFF] complained on October 4, 2014 in an email to Principal Ramon Echeverria, (“Mr. E”), that she was not paid for working August 15 – September 10. [R. 139, 141]. The email discussed many topics but also complained about unpaid wages. [Id.].

The complaint stated, “I received my first paycheck and was shocked. There were many problems, wrong insurance deduction, wrong step, and the salary was really low.” [R. 141]. “I did not realize that I was not going to be paid from Aug. 28th – Sept. 10th. After speaking with Sue she said that if I was here, then I should and could be paid for that time, but it would be something that would be done by both of you.” [Id.].

Mrs. [PLAINTIFF] was informed by her union and the school that if she complained about her unpaid wages that she would be retaliated against. [R. 139]. At the end of the school year the Defendant terminated Mrs. [PLAINTIFF]’s employment contract without explanation. [R. 139]. The Defendant did not proffer to the lower court a legitimate and legal reason for Mrs. [PLAINTIFF]’s termination. [R. 11 – 15].

The Defendant did not give Mrs. [PLAINTIFF] her unpaid wages. [R. 139]. Because of the threats and actual retaliation Mrs. [PLAINTIFF] hired the undersigned to recoup her unpaid wages. [R. 139].

Mrs. [PLAINTIFF] through the undersigned filed a grievance against the Defendant. [R. 139 – 140]. The Defendant conceded during the grievance and paid Mrs. [PLAINTIFF] for August and September but refused to pay her attorney fees in connection with the representation. [Id.].

Mrs. [PLAINTIFF] then filed a complaint against Indian River County School Board to recover her attorney fees and damages for her unlawful termination. [R. 1 – 4].

The Defendant moved for Summary Judgment. [R. 22 – 55]. The Defendant could not proffer a legitimate factual reason to justify their decision to fire Mrs. [PLAINTIFF] in its motion. [Id.].

The trial court granted summary judgment in error by making the following factual determinations against Mrs. [PLAINTIFF]: (1) that Mrs. [PLAINTIFF]’s email was not a complaint; (2) that violations of wage and hour laws do not constitute a specific danger to public health, safety, or welfare; (3) that violations of wage and hour laws are not an act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty. [Hearing Transcript p. 50 – 51].

The trial court erred by denying Mrs. [PLAINTIFF]’s claim for attorney’s fees. [Hearing Transcript p. 52]. The trial court failed to liberally construe the plain meaning of F.S. 448.08, a remedial wage and hour attorney fees statute, and instead applied the Werthman, case to deny Mrs. [PLAINTIFF]’s demand for attorney fees. [Id.].

Notice of Appeal was timely filed on April 6, 2016. [R. 198].

STANDARD OF REVIEW

A ruling on summary judgment is subject to de novo review. The Florida Bar v. Greene, 926 So.2d 1195, 1200 (Fla. 2006).

The summary judgment standard applicable in Florida courts is that if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied. Jones v. Directors Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991).

“A Whistle-blower’s Act plaintiff is entitled to a jury trial so long as the plaintiff requests the legal relief provided for under the Act. The right to a trial by jury is a fundamental right under both the United States and Florida constitutions.” Fox v. City of Pompano Beach, 984 So.2d 664, 668 (Fla. 4th DCA 2008).

Florida has a long standing policy favoring jury trials and determinations on the merits rather than resolving cases on motions for judgment as a matter of law. Speedway v. Dupont, 933 So.2d 75, 79 (5^th DCA 2006); Villanueva v. REYNOLDS, SMITH AND HILLS, INC., 159 So.3d 200, 203 (Fla. 5th DCA 2015).

SUMMARY OF THE ARGUMENT

The trial court committed reversible error when it determined that Mrs. [PLAINTIFF]’s unpaid wage complaint emailed to her principal was not a protected complaint under Florida Statute 112.3187. Whether or not the email was a complaint under the statute is a question of fact that is left to the jury.

The trial court committed reversible error when it determined that the unpaid wage complaint made by Mrs. [PLAINTIFF] failed to raise issues of gross mismanagement, malfeasance, or misfeasance under Florida Statute 112.3187.

Multiple courts have found that unpaid wage complaints and working condition complaints are protected under Florida Statute 112.3187. Whether or not the complaints sufficiently raise issues of gross mismanagement, malfeasance, or misfeasance is an issue of fact left to the jury.

The trial court incorrectly resolved these questions of fact in the Defendant’s favor and granted summary judgment.

The trial court committed reversible error when it applied the Werthman, case to Mrs. [PLAINTIFF]’s claim for fees. The trial court should have applied the Greene, case and construed Florida Statute 448.08 liberally because it is a remedial statute. Mrs. [PLAINTIFF] should be entitled to attorney fees and costs for winning her grievance for unpaid wages which is mandated by the CBA.

ARGUMENT

Issue One The Trial Court committed reversible error when it found that the e-mail that was sent on October 4, 2013 didn’t constitute a complaint because that is an issue of fact for the jury

The public whistle blower rule articulated by the Fourth District Court of Appeals in Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125, 1133 (Fla. 4th DCA 2003) is whether the plaintiff makes the required disclosure, whether the disclosure was a protected disclosure, and whether the notice requirements are complied with are issues of fact that preclude summary judgment.

The written and signed email stated, “I received my first paycheck and was shocked. There were many problems, wrong insurance deduction, wrong step, and the salary was really low.” [R. 141]. “I did not realize that I was not going to be paid from Aug. 28th – Sept. 10th. After speaking with Sue she said that if I was here, then I should and could be paid for that time, but it would be something that would be done by both of you.” [Id.].

The email is a complaint that brings up the following: (1) the practice complained of nonpayment of wages for work performed; (2) it identifies the complainer as Mrs. [PLAINTIFF]; and (3) identifies the principal Mr. E. who is responsible for correcting the issue under the CBA.

The complaint is sufficient because it adequately identifies the issue complained about and the parties subject to the complaint. Hutchison v. Prudential Ins. Co. of America, Inc., 645 So.2d 1047, 1050 (Fla. 3d DCA 1994); King v. State of Florida, 650 F. Supp.2d 1157, 1163 (N.D. Fla. 2009) (A potential complainant is not required to use formal legalistic language in order to lodge a complaint that invokes whistle-blower protection.); See Also Rustowicz v. North Broward Hosp. Dist., 174 So.3d 414, 424 – 25 (Fla. 4th DCA 2015) (Supervisor charged with taking corrective action is appropriate local official to receive notice under (6)); and [R. 170 Grievance Procedure] (Designating principal to receive and correct teacher complaints.).

The trial court incorrectly focuses on the politeness of the language in the email and questions posed by Mrs. [PLAINTIFF] in the email to bar her access to a jury trial. [Hearing Transcript p. 51]. The Public whistleblower statute should be construed liberally in favor of granting access to the remedy. Martin County v. Edenfield, 609 So.2d 27, 29 (Fla. 1992)

The trial court makes assumptions which are not based on facts and draws inferences in favor of the Defendant which is impermissible fact finding. Jones, 584 So.2d at 1059. “In my view there’s no way that an employer would recognize this is a complaint.” [Hearing Transcript p. 51].

In Rosa v. Department of Children & Families, 915 So.2d 210, 212 (Fla. 1st DCA 2005), the plaintiff argued that the written document he sent was a written complaint while defendant argued that the plaintiff was just ranting and what he had filed was not a complaint.

The court held that the letter for summary judgment purposes is a complaint; even if it could possibly be construed as something else such a scenario creates a question of fact that precludes summary judgment in public whistle blower cases. Rosa, 915 So.2d at 212.

It is not appropriate or fair for the Defendant to invite Mrs. [PLAINTIFF] to complain about her pay issues in an informal way with her principal through the CBA, fire her for retaliation after she complains in writing, then complain to the lower court that the complaint was not proper or formal enough to constitute a complaint in its motion for summary judgment.

Therefore this court should find that the lower court committed reversible error and remand the case for trial.

Issue Two The Trial Court committed reversible error when it found that nonpayment of wages to Mrs. [PLAINTIFF] failed to constitute malfeasance, misfeasance, or gross mismanagement on the part of the Defendant because this is an issue of fact left to the jury

The rule articulated by F.S. 112.3187(5) is that the activity Mrs. [PLAINTIFF] complains about must be:

(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.

“Misfeasance is defined as the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do at all.” Irven v. Department of Health and Rehabilitative Services, 790 So.2d 403 fn.3 (Fla. 2001); See Also Kimmons v. Crawford, 109 So. 585, 587 (Fla. 1926) (“Misfeasance is performing an act in an injurious manner.”).

Mrs. [PLAINTIFF] is complaining about working and not being paid wages for work performed. The nonpayment of wages in accordance with the CBA salary scale is a breach of the CBA which is the Defendant’s own pay scale policy.

Not paying Mrs. [PLAINTIFF] for the weeks she worked is improper, injurious, and unlawful, and the Florida Legislature and Florida Courts recognize a cause of action to recover damages for such conduct. See James W. Gardner Corp. v. Twomey, 496 So.2d 946, 946 (Fla. 2d DCA 1986) and F.S. 448.08.

Florida and Federal Courts have all recognized that unpaid wages or violations of employment policies are misfeasance, malfeasance, and gross mismanagements and therefore complaints about them are protected public whistleblower activity. Rosa, 915 So.2d at 211(Complaint about allocation of work duties and responsibilities constitutes a complaint about misfeasance and malfeasance.); Hussey v. City of Marianna, 2011 U.S. Dist. LEXIS 84218 (N.D. Fla. Aug. 1, 2011) (Violations of employer’s policy is gross mismanagement by taking wrongful and capricious actions therefore complaints are protected activity.); Saunders v. Hunter, 980 F. Supp. 1236, 1245 (M.D. Fla. 1997) (Plaintiff complained she was not properly paid overtime wages and sexually harassed. This Court finds the complaints sufficiently alleged complaints of misfeasance; malfeasance, and gross mismanagement.).

At best the Defendant could articulate that the parties disagree over what constitutes gross mismanagement, misfeasance, or malfeasance.

The issues of whether or not the conduct was misfeasance, etc are a question of fact that a jury must determine. Rosa, 915 So.2d at 212; Irven, 790 So.2d at 407.

By concluding that the acts complained of were not gross mismanagement, misfeasance, and malfeasance the trial court made an improper factual determination. Id.

Therefore this court should find that the lower court committed reversible error and remand the case for trial.

Issue Three The Trial Court committed reversible error when it applied the Werthman, case to Mrs. [PLAINTIFF]’s request for attorney fees for representation in her grievance because Greene, is controlling and F.S. 448.08 is a remedial statute

The rule is that as a remedial act, a statute should be construed liberally in favor of granting access to the remedy. Amos v. Conkling, 126 So. 283 (1930). A remedial statute is one that improves or facilitates remedies already existing for enforcement of rights and redress of injuries. Black’s Law Dictionary (6th ed. 1990).

The trial court erred because it followed Werthman v. School Board of Seminole County, 599 So.2d 220 (Fla. 5th DCA 1992), and construed the statute narrowly.

Werthman, does not apply to grievances for unpaid wages it only applies to administrative claims for wrong termination and back pay. Joseph v. COMMONWEALTH LAND TITLE INS., 707 So.2d 376 (Fla. 5th DCA 1998).

In Greene v. School Bd. of Hamilton County, 501 So.2d 50 (Fla. 1st DCA 1987), the plaintiff was awarded fees and costs for successfully pursuing an unpaid wage claim in administrative proceedings.

Mrs. [PLAINTIFF] through the undersigned filed a grievance against the Defendant. [R. 139 – 140]. The Defendant conceded during a grievance and paid Mrs. [PLAINTIFF] for August and September but refused to pay her attorney fees in connection with the representation. [Id.].

Pursuant to the CBA the Plaintiff must first initiate a grievance before initiating an action under the CBA. Kaufman v. Machiedo, 357 So.2d 739, 740 (Fla. 3rd DCA 1978); Canete v. Florida Dept. of Corrections, 967 So.2d 412, 415 (Fla. 1st DCA 2007).

Unpaid wage claims are a breach of contract action for earned but unpaid wages. James W. Gardner Corp., 496 So.2d at 946. Florida Statute 448.08 improves the existing breach of contract action for unpaid wages by awarding Mrs. [PLAINTIFF] with attorney fees and costs therefore the statute is remedial in nature.

Florida Statute 448.08 improves and facilitates unpaid wage cases because if hypothetically an employee was to pay an attorney $30,000.00 in fees and costs to successfully prosecute a $4,000.00 unpaid wage case the cause of action essentially becomes meaningless to the employee.

On the other side without F.S. 448.08 no attorney would take a wage hour case on a contingency fee basis. Without adequate representation employers would be emboldened to engage in wage theft and retaliate against their employees. E.g. Nall v. Mal Motels, 723 F.3d 1304 (11th Cir. 2013); Brooklyn Savings Bank v. O’Neil, 324 US 697, 706 (1945); Lynn’s Food Stores, Inc. v. UNITED STATES, ETC., 679 F. 2d 1350, 1355 (11th Cir. 1982).

It is important to note that Mrs. [PLAINTIFF] was told that she would be retaliated against if she pursued her unpaid wages.

Under a liberal construction of F.S. 448.08 a grievance procedure would be considered an action under the CBA because you have to initiate the grievance action in order to obtain the relief of unpaid wages.

If the employer relents during pre-filing the employee should still be entitled to fees and costs because if the employer agrees only to pay the wages the employee is not being made whole because she must take money she was already rightfully entitled to and pass it on to her attorney.

That is why F.S. 448.08 should be construed liberally and why the lower court committed error by applying Werthman, and construing the case narrowly.

Therefore this court should find that the lower court committed reversible error and remand the case for trial.

CONCLUSION

For the above stated reasons the Plaintiff requests that this Court find that the lower court committed reversible error and remand the case for trial.

/Stephen Biggie

Stephen Biggie, Esq.

Fla. Bar: 0084035

Attorney for Defendant

2815 W. New Haven #304

Melbourne, Florida 32904

Phone 321-953-5998

[1] Nonrenewal of a yearly employment contract, the termination, which is the adverse action in this case is not covered by the CBA.