DISTRICT COURT OF APPEAL FIFTH DISTRICT OF FLORIDA CASE NO. 5D LARRY M SAPP Appellant v. PUTNAM COUNTY SHERIFFS OFFICE Appellee.

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1 DISTRICT COURT OF APPEAL FIFTH DISTRICT OF FLORIDA RECEIVED, 3/15/2017 5:06 PM, Joanne P. Simmons, Fifth District Court of Appeal CASE NO. 5D LARRY M SAPP Appellant v. PUTNAM COUNTY SHERIFFS OFFICE Appellee. ON APPEAL FROM THE CIRCUIT COURT FOR THE SEVENTH JUDICIAL CIRCUIT IN AND FOR PUTNAM COUNTY, FLORIDA APPELLANTS INITIAL BRIEF COQUINA LAW GROUP, PA 24 CATHEDRAL PLACE, SUITE 502 ST. AUGUSTINE, FL 32084

2 TABLE OF CONTENTS TABLE OF CITATIONS 2 PRELIMINARY STATEMENT 4 STATEMENT OF THE CASE AND FACTS 4 SUMMARY OF ARGUMENT 8 ARGUMENT 9 I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHERE THE RECORD EVIDENCE FAILED TO SATISFY THE HEAVY BURDEN FOR SUMMARY JUDGMENT AND THE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW 9 CONCLUSION 18 CERTIFICATE OF SERVICE 19 CERTIFICATE OF COMPLIANCE 20 2

3 TABLE OF CITATIONS Florida Whistleblower Act , Fla. Stat Volusia Cty. v. Aberdeen at Ormond Beach, L.P., So. 2d 126, 130 (Fla. 2000) Menendez v. Palms W. Condo. Ass'n, So. 2d 58, 60 (Fla. 1st DCA 1999) Sierra v. Shevin, So. 2d 524, 525 (Fla. 3d DCA 2000) Walsingham v. Dockery, So. 2d 166, 172 (Fla. 1st DCA 1996) Hancock v. Dep't of Corr., So. 2d 1068, (Fla. 1st DCA 1991) Hernandez v. United Auto. Ins. Co., Inc., So. 2d 344, (Fla. 3d DCA 1999) Skelton v. Real Estate Solutions Home Sellers, LLC, So. 3d 960, 961 (Fla. 5th DCA 2016) Rice-Lamar v. City of Fort Lauderdale, So. 2d 1125, (Fla. 4th DCA 2003) Fla. Dep't of Children & Families v. Shapiro, So. 3d 298, (Fla. 4th DCA 2011) Olmsted v. Taco Bell Corp., F.3d 1457, 1460 (11th Cir.1998) Irven v. Dept. of Health and Rehabilitative Services, So.2d 403,405 (Fla. 2001) 2

4 Burlington Northern & Santa Fe Railway Company v. White S.Ct. 2405, 165 L.Ed. 2d 345 (2006) Donovan v. Broward County Board of Commissioners, S0.2d 458 (Fla. 4 th DCA 2008) Rutledge v. SunTrust Bank, Fed Appx. 956, (11 th Cir. Jan ) Smith v. AirTran Airways, Inc., F. Supp. 2d 1274, 1278 (M.D. Fla. 2010) Combs v. Plantation Patterns, F.3d 1519, 1537 (11th Cir. 1997) Sheridan v. E.I. DuPont de Nemours & Co., F.3d 1061, 1071 (3d Cir. 1996) 3

5 PRELIMINARY STATEMENT In this Initial Brief, Appellant/Plaintiff, Larry Sapp, will be referred to as "Appellant", "Plaintiff", "Sapp", or a combination thereof. Appellee/Defendant, Jeff Hardy, in his official capacity as Sheriff of Putnam County, Florida, will be referred to as "Appellee", "Defendant, "Sheriff", or a combination thereof. Citations to the record on appeal will be made by the Letter R and the appropriate page number(s). The Appellant has prepared and filed simultaneously an Appendix, and citations to the Appendix will be made by the letter "A" and the appropriate page number(s). STATEMENT OF THE CASE AND FACTS This is an appeal from a final summary judgment entered on November 3, 2016 (R; ), after a hearing conducted on September 30, The trial court reserved ruling and requested and received a proposed judgment and order from Plaintiff's/Appellant s (A;1-12) and Defendant's/Appellee's (A;14-30) counsel respectively. The final summary judgment granted Defendant's Motion for Summary Judgment, after incorrectly inferring facts most favorable to the moving party. The Plaintiff, a former deputy, sued the Defendant, the Sheriff, for a violation of the Florida Whistleblower Act , Fla. Stat. ( FWA ). Plaintiff alleged that the he made several protected disclosures regarding the conduct of officials 4

6 within the Putnam County Sheriff s Office, and the Sheriff, through his staff, retaliated against the Plaintiff. Prior to the September 30, 2016 hearing, the Plaintiff filed a motion to continue the hearing to allow additional time to obtain an affidavit from David Brown, an Agent with the Federal Bureau of Investigation, who was a key witness for the Plaintiff (R; ). The Court heard this motion on September 30, 2016, and denied the request for a continuance. The Court however did allow the Plaintiff 10 additional days to submit an affidavit to the Court from Agent Brown. Plaintiff was unable to obtain an affidavit within that period of time, and therefore the Court went forward with ruling on the Motion (R;526) (See courts order). The only evidence before the Court at the hearing on Motion for Summary Judgment was the Deposition testimony of the Plaintiff (R; ) and an affidavit filed by the Plaintiff in support of the argument (R; ). Plaintiff was a detective with the Putnam County Sheriff s Office. He began working for the agency in 2006, and worked his way up from the road to detective in Plaintiff, by all accounts was a model deputy, who only had acknowledgements of a job well done in his personnel file. In late 2013, Plaintiff was involved in a burglary investigation involving two prominent local individuals involved. The Sheriff s office administration squashed the investigation, and forbid Plaintiff from continuing the investigation. Shortly after the burglary incident, in 5

7 December of 2013 (R;165:8-13), Plaintiff spoke with an FBI Agent regarding the Sheriff s office conduct in the investigation. After speaking with the FBI, Plaintiff s direct supervisor, Lieutenant Chris Stallings began to harass Plaintiff regarding his job performance (R;228:1-25; 229:1-25; 220: 1-25; 221:1-22). Plaintiff has maintained that his job performance was always adequate. This harassment by Lieutenant Stallings continued through the early parts of February On February 1 st, 2014, the Plaintiff was a witness to an incident involving a fellow officer, Sgt. David Roe, who was accused of engaging in sexual intercourse with an intoxicated female while in uniform in his agency vehicle. This disclosure was done in the course of an internal investigation at the request of the Plaintiff s superiors. After this disclosure, Lieutenant Stallings harassment of the Plaintiff escalated (R;240:18-25). In February 2014, Lt. Stallings met with Plaintiff under the pretense of reviewing a case that Plaintiff was investigating. (R;184: 2 R;190: 6). During that conversation, Lt. Stallings threatened to transfer Plaintiff into town so that Stallings could keep an eye on Plaintiff, that Stallings would write up Plaintiff for anything, and that Stallings would make Plaintiff either resign or be terminated. The constant harassment forced Plaintiff to request a transfer to the bailiff s division, a position that paid less, and had less prestige. Plaintiff subsequently had a conversation with Major Bowling, the Director of Law Enforcement with the 6

8 Sheriff s office. Plaintiff complained about the harassment by Lt. Stallings. During this conversation, Major Bowling also recognized tangentially that the FBI investigation existed and through his questioning implied that he knew that Plaintiff was providing confidential information to the FBI. Plaintiff then transferred to the bailiff s division. Plaintiff was subsequently a witness in another internal investigation, and continued to show a propensity to blow the whistle at the wrongdoings within the Sheriff s office. Because of this, Plaintiff was eventually accused of misconduct, and was terminated from the Sheriff s office. The pretextual basis for the termination was that the Plaintiff lied in an investigation regarding whether he was hunting. The Sheriff s office took the position that Plaintiff lied by omission, and terminated the Plaintiff for gross misconduct. On August 18, 2016, Defendant filed his Motion for Summary Judgment. Defendant alleged that the Plaintiff could not establish a prima facie case of whistleblower retaliation because: 1. Plaintiff did not engage in protected activity; 2. There is no causation between Plaintiff s FBI interview and his termination; 3. There is no causation between Plaintiff s verbal complaint about Captain Stallings and his transfer or termination ; 4. Plaintiff s participation in the Roe investigation was not protected, and there is no causation between his participation and his 7

9 termination; and that the Defendant terminated Plaintiff for a Legitimate, nonretaliatory reason. From these arguments, and upon weighing the evidence in favor of the Defendant the Court granted the Defendant s motion for summary judgment on the following grounds, that there was: 1. No Causal Connection between conversation with FBI Agent Brown and any Adverse Action; 2. No Causal Connection between complaints to Major Bowling about Lt. Stallings Threats and any adverse Action; 3. No Causal Connection between participation in the Roe Investigation and any adverse Action; and 4. That Harassment by Lt. Stallings Is not an Adverse Action. SUMMARY OF THE ARGUMENT The trial Court committed reversible error by granting the Defendant s Motion for Summary Judgment by failing to hold the Defendant to his heavy burden of establishing that the Defendant was entitled to judgment as a matter of law. In coming to its conclusion, the trial court went beyond the summary judgment proceedings to weigh the evidence and make factual determinations. The Court also misapplied the law to the facts, and thus came to its errant conclusion that the Defendant was entitlement to Summary Judgment. 8

10 ARGUMENT A. Standard of Review De Novo "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. Palms W. Condo. Ass'n, 736 So. 2d 58, 60 (Fla. 1st DCA 1999)). "The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party." Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) (citing Walsingham v. Dockery, 671 So. 2d 166, 172 (Fla. 1st DCA 1996)). "If the 'slightest doubt' exists, then summary judgment must be reversed." Id. (citing Hancock v. Dep't of Corr., 585 So. 2d 1068, (Fla. 1st DCA 1991)). "In ruling on a motion for summary judgment, the court may neither adjudicate the credibility of the witnesses nor weigh the evidence." Id. (citing Hernandez v. United Auto. Ins. Co., Inc., 730 So. 2d 344, (Fla. 3d DCA 1999)). See Skelton v. Real Estate Solutions Home Sellers, LLC, 202 So. 3d 960, 961 (Fla. 5th DCA 2016) I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHERE THE RECORD EVIDENCE FAILED TO SATISFY THE HEAVY BURDEN FOR SUMMARY JUDGMENT AND THE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW 9

11 The Plaintiff filed suit for a violation of the Florida Whistle Blower Act. The Act protects those employees who disclose certain types of information, to certain entities, under certain circumstances. The Florida Legislature plainly stated its intent in enacting the Whistleblower Act: to prevent retaliatory action against employees and persons who disclose certain types of government wrongdoing to appropriate officials. See (2)-(7), Fla. Stat. (2009); Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125, (Fla. 4th DCA 2003). "The act is remedial in nature and should be construed liberally in favor of granting access to the remedy so as not to frustrate the legislative intent." Rice-Lamar, 853 So. 2d at The elements of a cause of action for retaliatory discharge under the Whistleblower Act are: (1) the plaintiff engaged in statutorily protected expression; (2) the plaintiff suffered an adverse employment action; and (3) there is some causal connection between the two events. Fla. Dep't of Children & Families v. Shapiro, 68 So. 3d 298, (Fla. 4th DCA 2011). The causal link element is construed broadly so that "a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated." Rice-Lamar, 853 So. 2d at (quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.1998)). Florida applies federal Title VII case law to the Whistleblower Act. Id. at The FWA, as a remedial statute, should be liberally construed in favor of granting access to the remedy. See, Hutchinson v. Prudential Ins. Co., 645 So.2d 10

12 1047,1049 (Fla. 3d DCA 1994); See also, Irven v. Dept. of Health and Rehabilitative Services, 790 So.2d 403,405 (Fla. 2001). In this case, the Court didn t contest that the Plaintiff had engaged in protected activity, rather, the Court found that the actions by Lt. Stallings against Sapp didn t amount to harassment, and that there was not a Causal Link between the protected activity and adverse employment activity. a. Plaintiff Engaged in Statutorily Protected Expression. In the instant case, Sapp engaged in protected activity no less than three times. In order to avoid summary judgment on the issue of protected activity, Plaintiff need only prove that one of his disclosures qualifies as protected. The evidence presented for summary judgment established that Sapp, In November or December, 2013, provided information to the FBI regarding wrongdoing by the Sheriff s Office in connection with a burglary where two females with political connections were let go, even though there was suspicion regarding their involvement in the burglary, as well as involvement in possible illegal possession of a substance. Next, Sapp made a protected disclosure when he participated in, at the end of February and beginning of March, 2014, and offered evidence, in an investigation into Sgt. David Roe, who was alleged to have engaged in sexual conduct with an intoxicated female in his marked police vehicle. Finally, Sapp engaged in additional protected activity when in March 2014, Sapp disclosed to Major Bowling continued harassment at the hands 11

13 of his direct supervisor, Lieutenant Stallings. Sapp was further prepared to offer testimony and evidence in June and July of 2014, in support of another deputy who was the target of a pretextual internal investigation. However, Sapp was never called as a witness, and was instead subjected to his own internal investigation and ultimate termination from the Putnam County Sheriff s Office. Clearly these disclosures each meet the requirements of the FWA, and are not at issue. b. Plaintiff Suffered an Adverse Employment Action. The Second element the Plaintiff must prove to show a violation of the Florida Whistleblower Act is that the Plaintiff suffered an adverse employment action. The evidence submitted for summary judgement established that Sapp suffered adverse employment action in the form of harassment from his direct supervisor, and ultimately an internal investigation and his termination of employment from the Sheriff s Office. The Trial Court seems to acknowledge that the internal investigation and subsequent termination constitute an adverse employment action. However, the Trial Court specifically found that the harassment that was alleged to have occurred did not constitute an adverse employment action. The Trial Court seemed to struggle with the concept of adverse employment action, as well as its role in determining the Defendants motion for summary 12

14 judgement. At the end of page 8, beginning of page 9, of the Court s order, the court states: (R;528) Even considering all the evidence in the light most favorable to Plaintiff Sapp, the Court finds no discrete examples of harassment by Lt. Stallings besides the one conversation that took place in March Further, although Plaintiff states in his deposition that he could not discern why Lt. Stallings would threaten him, Plaintiff admitted that the conversation took place in the context of LT. Stallings criticizing Plaintiff s job performance Even after finding that this conversation constituted a discrete example of harassment the Court went onto find, on page 11 of the Order, that the alleged harassment and transfer do not constitute an adverse employment action. The Public Florida Whistleblower Act defines adverse employment action as: the discharge, suspension, transfer or demotion of any employee or the withholding of bonuses, the reduction of salary or benefits, or any other adverse action taken against an employee within the terms and conditions of employment by an agency or independent contractor. Fl. St (3)(c). In determining what constitutes an adverse personnel action in claims of retaliation, Florida s anti-retaliation statutes have adopted as applicable, the standards set forth by the United States Supreme Court in Burlington Northern & Santa Fe Railway Company v. White 126 S.Ct. 2405, 165 L.Ed. 2d 345 (2006). See, Donovan v. Broward County Board of Commissioners, 974 S0.2d 458 (Fla. 4 th DCA 2008). In Donovan, the court adopted the standard in Burlington for a Florida Civil 13

15 Rights Retaliation Claim. See also, Rutledge v. SunTrust Bank, 262 Fed Appx. 956, (11 th Cir. Jan ). The United States Supreme Court, in Burlington, clarified the many inconsistencies among the Circuit Courts of Appeal concerning what constitutes an adverse employment action under Title VII retaliation cases. The Court in Burlington held that: 1) The anti-retaliation provision under Title VII covers those (and only those) employer actions that would have been materially adverse to a reasonable worker or job applicant; and 2) This means that the employer s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington at 2409, 2411, In addition, the Court rejected the standard that limited actionable retaliation to so called ultimate employment decisions (Id. at 2414). In Burlington, The U.S. Supreme Court Justices rejected the employer s claim that a reassignment of duties could not constitute retaliatory discrimination where both the former and present job duties fell within the same job description and salary. Id. at The Majority opined whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff s position considering all the circumstances. Id. at

16 In this case, Plaintiff Sapp has alleged a series of adverse actions in addition to termination. Sapp alleged that he was threatened with termination. Sapp alleged that he was threatened with demotion from detective to road patrol. Sapp accepted a demotion to bailiff in order to avoid Stallings and to make it more difficult for Stallings to carry out his threats. These actions clearly establish an adverse action for the purposes of the FWA. The Trial Court s efforts to characterize the interaction between Lt. Stallings and Sapp as a job performance critic misses the point of the protections provided under FWA. Further this characterization is in direct conflict with the Court s obligation to make every reasonable inference in favor of the non-moving party, as required in proceedings on summary judgment. c. There is some Causal Connection between the two events. Finally, The Trial Court found that there is a lack of evidence of causation. In coming to this conclusion, the Trial Court misconstrued the law on this subject, and seemed to require that the Plaintiff in a Whistleblower case prove that the bad actor had knowledge of the protected activity by the Whistleblower. Causation may be proved by direct or circumstantial evidence. Smith v. AirTran Airways, Inc., 744 F. Supp. 2d 1274, 1278 (M.D. Fla. 2010) (holding that wrongful discharge under Title VII requires proof of causation by direct evidence or circumstantial evidence). It is unusual for the plaintiff to travel on direct proof of 15

17 discrimination to show causation, because the typical case relies upon circumstantial evidence of causation. Combs v. Plantation Patterns, 106 F.3d 1519, 1537 (11th Cir. 1997) ("Frequently, acts of discrimination may be hidden or subtle; an employer who intentionally discriminates is unlikely to leave a written record of his illegal motive, and may not tell anyone about it."); Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1071 (3d Cir. 1996) ("The distinct method of proof in employment discrimination cases, relying on presumptions and shifting burdens of articulation and production, arose out of the Supreme Court's recognition that direct evidence of an employer's motivation will often be unavailable or difficult to acquire."). In spite of this well-established principal, the Trial Court repeatedly points to the lack of direct evidence from the Plaintiff to prove that the Defendant knew of the protected disclosures made by the Plaintiff. The Plaintiff never presented, nor did Plaintiff argue, that it possessed direct evidence of knowledge on the part of the Defendant of the various protected disclosures. On Page 9 of its order, the Trial Court states that At oral argument, Plaintiff claimed that the mere fact that Plaintiff was disciplined was circumstantial evidence that the Sheriff s Office knew that he spoke with the FBI. This is circular logic that puts the cart before the horse and is not competent evidence to avoid summary 16

18 judgment or have the cause go to a jury. This statement highlights the trial courts error, and as it is contrary to the law that circumstantial evidence is sufficient. The Plaintiff alleged three individual instances of protected activity, as well as several instances of adverse employment activity. The Plaintiff made a protected disclosure to FBI Agent Brown, in December After that disclosure, the Plaintiff was the subject of repeated harassment by his direct supervisor. The Plaintiff made a protected disclosure at the beginning of February 2014, by providing information that another member of the Agency had been involved in sexual misconduct. After that disclosure, the Plaintiff was subject to repeated harassment, culminating in a meeting in late February 2014 with Lt. Stallings, whereby the Plaintiff was threatened with a transfer, demotion and termination. The Plaintiff made a third protected disclosure to Major Bowling, regarding Lt. Stallings harassment, in early March 2014, and subsequently transferred to the Bailiffs division, a position with less prestige. Admittedly, the Plaintiff has not shown direct evidence that the adverse employment activities he suffered were the result of a conscious effort by the Defendant to squash protected speech. The Defendant, and his employees, did not leave a paper trial or chain delineating their intent to target the Plaintiff for his repeated efforts to shine a light upon the underbelly of this corrupt agency. Florida law does not require such proof from those who seek the protection of the Florida 17

19 Whistleblower Act. The FWA simply requires the Plaintiff to show that he made a protected disclosure, he suffered an adverse employment action, and that the two aren t wholly unrelated. The manner in which that causal relationship can be shown may be completely circumstantial, and only requires a temporal proximity. At the very least, the evidence relied upon in the hearing on summary judgment established that the February disclosure of Sergeant Roe s sexual escapades, followed by the harassment and eventual transfer that occurred later that month satisfies all of the elements of the Florida Whistleblower Act. Accordingly, the Court erred when it granted Summary Judgment in favor of the Defendant. CONCLUSION Wherefore, based on the foregoing arguments, the citations to case law authority and rules, and the documents contained in the record, it is clear that the Defendant did not meet his burden to show that there are no material factual disputes and that the Defendant was entitled to judgment as a matter of law. Appellant respectfully requests that this Honorable Court reverse the trial court s granting of Defendants Motion for Summary Judgment and remand to the trial court for a trial on all issues so triable. 18

20 DATED this 15 day of March, Submitted by: (1/ Jerniah Jeremiah Mulligan Fla.BarNo.: Coquina Law Group 24 Cathedral Place, Suite 502 St. Augustine, Florida Phone: (904) Facsimile: (904) Primary Secondary CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 15tI th day of March 2017, the foregoing was filed with the Court through the Florida Courts E-filing Portal, which will send a Notice of Electronic Filing to all parties of record. /) Attney Attorney 19

21 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the size and style font used in Appellants Initial Brief is Times New Roman 14-Point font and that this computer-generated brief complies with the requirements of Rule 9.210, Fla. R. App. P (a)(2). Dated this 15t11 th day of March, 2017, Attorney A 20