IN THE SUPREME COURT OF FLORIDA. Petitioner, v. CASE NO. DCA NO. 1D ON REVIEW FROM THE FIRST DISTRICT COURT OF APPEAL

Transcription

1 TEREATHA ROBINSON, IN THE SUPREME COURT OF FLORIDA Petitioner, v. CASE NO. DCA NO. 1D DEPARTMENT OF HEALTH, STATE OF FLORIDA, Respondent. ON REVIEW FROM THE FIRST DISTRICT COURT OF APPEAL PETITIONER'S BRIEF ON JURISDICTION/FOR DISCRETIONARY REVIEW Marie A. Mattox Marie A. Mattox, P.A. Fla. Bar No East Bradford St. Tallahassee, Florida (850) ATTORNEY FOR PETITIONER

2 TABLE OF CONTENTS Page TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 5 JURISDICTIONAL STATEMENT... 6 I. Conflict With Rulings of This Court on the Same Issue of Law... 6 II. Conflict With This Court's Constitutional Jury Trial Jurisprudence... 6 III. Conflict With This Court's Access-to-Courts and Due Process Holdings IV. Decision Below Affects a Class of Constitutional Officers... 7 ARGUMENT... 8 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPE APPENDIX

3 Table of Citations CASE PAGE Aldana v. Holub, 381 So. 2d 231 (Fla. 1980)... 7 Hollywood, Inc. v. City of Hollywood, 321 So.2d 65 (Fla.1975)... 6 Irven v. Department of Health and Rehabilitative Services, 790 So. 2d 403 (Fla. 2001)... 9 Martin County v. Edenfield, 609 So. 2d 27 (Fla. 1992)... 9 O=Neal v. Florida A&M, 989 So.2d 6 (Fla. 1 st DCA 2008)... 6 Robinson v. Dept. of Health, Case No. 1D , 2012 WL (Fla. 1st DCA 2012)... 1 Woodham v. Blue Cross and Blue Shield of Florida, Inc., 829 So.2d 891 (Fla. 2002)... 9, 10 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)... 8 STATUTES AND CONSTITUTION (8), Fla.Stat , Fla.Stat.... 1, 2, 3, 5, 8, , Fla.Stat , 3, 4, 5, 10 Article V, (3)(b)(3), Fla.Const... 6 iii

4 Statement of Case and Facts Petitioner seeks review of a decision of the First District Court of Appeal, Robinson v. Dept. of Health, Case No. 1D , 2012 WL (Fla. 1st DCA 2012), affirming the trial court's ruling against Petitioner. The trial court had found that Petitioner was required to appeal the dismissal of her Whistle-blower charge of retaliation by the Florida Commission on Human Relations (FCHR) to the First District Court of Appeal rather than filing suit in circuit court even though FCHR acted outside its statutory deadline for investigating and terminating the investigation of her claims. The District Court held that Petitioner Robinson should not have filed suit in circuit court under the Whistle-blower's Act ( , Fla.Stat.), despite the fact that FCHR dismissed her charge outside the 150 time period that it had to investigate her charge and advised her to appeal. She never received notice of her right to file suit in circuit court. Robinson was employed with Respondent, Department of Health (DOH) for more than ten years before her termination in She claimed in her lawsuit filed in the lower court that she was fired abruptly around one month after blowing the whistle during her employment with DOH.

5 After her termination on April 27, 2009, in accordance with her exhaustion requirements under , Florida Statutes, on June 17, 2009, 51 days after she was notified that her termination was final, Robinson filed a whistleblower charge with FCHR. She alleged in that charge that she was terminated in retaliation for whistle-blowing activities protected under Section is a specific statutory exhaustion law that contains detailed steps that FCHR must (not may) follow upon receipt of a whistle-blower charge. Specifically, within three working days of receipt of the charge, under (1)(b), Florida Statutes, FCHR "shall acknowledge receipt of the complaint and provides copies... to each of the other parties...." (Emphasis added). Under (2), upon receipt of a whistle-blower charge, FCHR shall conduct informal fact finding regarding any allegation to determine if reasonable grounds exist to believe a violation of the Whistle-blower Act occurred and "[w]ithin 90 days after receiving the complaint, provide the agency head and the complainant with a fact-finding report that may include recommendations to the parties or proposed resolution of the complaint." (2).' 1 Under (3)(a), FCHR is empowered to take certain specified actions upon receipt of a whistle-blower complaint but dismissal is not 2

6 Following the 90-day investigative period, FCHR has 60 days to conciliate the complaint, otherwise it "shall terminate the investigation." (3)(d), Florida Statutes; Rule 60Y (5), Florida Administrative Code. Upon termination of the investigation, FCHR is required to notify the complainant and the agency head of the termination, providing a summary of relevant facts found during its investigation and the reasons for terminating the investigation. See (3)(d), Florida Statutes. Under (8), entitled "Remedies," the only option that FCHR has in response to a whistle-blower charge is to issue a notice of termination of investigation giving a claimant notice that she may elect to pursue the administrative remedy available under s or bring a civil action within 180 days after receipt of the notice." (8)(a), Florida Statutes (emphasis added). In this case, FCHR (1) failed to conduct the fact finding investigation required under (2), (2) failed to attempt to conciliate within 60 days as required under (3)(d), (3) failed to timely notify Robinson of her option to file a civil suit or an administrative appeal as required under (8). one of the actions that it is authorized to take. 3

7 Instead, it dismissed her complaint more than 150 days after it was filed which is outside the statutory period given to FCHR under to investigate a Whistle-blower charge. On December 22, 2009, 188 days after she filed her charge, FCHR issued a notice to Robinson which was titled on the first page "Notice of Administrative Dismissal." On the second page of the Notice, however, it was titled "Notice of Termination of Investigation." The Notice stated: The jurisdiction of the Commission to investigation allegations of whistleblower retaliation is limited to complaints filed within 60 days of the most recent date of harm. Complainant received a Notice of Intent to Dismiss [from employment] on April 14, 2009, and the complaint was filed with the Commission on June 17, The Notice included a statement on the second page that Robinson had the right to seek judicial review of its decision by filing a Notice of Appeal with the appropriate District Court of Appeal within 30 days of the Notice. Believing that FCHR had no authority to reject her claim as being untimely as she filed within the required 60 day period, and also believing that FCHR had issued a "Notice of Termination of Investigation in accordance with , Robinson did not 4

8 appeal FCHR's action and instead filed suit in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida on April 8, DOH filed a Motion for Final Summary Judgment arguing, in part, that Robinson's lawsuit should be dismissed because she did not file a judicial appeal based on FCHR telling Robinson in its December 22, 2009 Notice that she needed to appeal its decision. DOH contended that Robinson had no ability to file a civil suit because she failed to appeal FCHR's dismissal of her charge to this Court. The First District Court of Appeal held that Robinson was required to appeal the dismissal of her charge rather than filing suit in circuit court regardless of whether FCHR exceeded the time for investigation under This timely Jurisdictional brief follows a timely Notice to Invoke Discretionary Jurisdiction. Summary of the Argument Discretionary jurisdiction exists because the holding below expressly and directly conflicts with rulings of this court. The district court erred in holding that FCHR can dismiss an administrative charge of Whistle-blower retaliation outside 5

9 the time period within which it is required to act and require that Petitioner appeal the dismissal rather than filing a civil action. Jurisdictional Statement I. Conflict With Rulings of This Court on the Same Issue of Law Discretionary jurisdiction lies in this case to review decisions of the district court that expressly and directly conflict with rulings of the Florida Supreme Court on the same issue of law. Article V, (3)(b)(3), Fla.Const. II. Conflict With This Court's Constitutional Jury Trial Jurisprudence This Court has held that the right to trial by jury is not to be narrowly construed. See Hollywood, Inc. v. City of Hollywood, 321 So.2d 65 (Fla.1975). That jurisprudence includes the right to a jury trial in cases under this statute. O'Neal v. Florida A&M, 989 So.2d 6 (Fla. 1 s' DCA 2008). The right to a jury trial is meaningless without the ability to get into court. Under the opinion below, FCHR, through machination and subterfuge, can make the process of getting to court so costly and time-consuming that few fired employees can negotiate the process. 6

10 III. Conflict With This Court's Access-to-Courts and Due Process Holdings In Aldana v. Holub, 381 So. 2d 231 (Fla. 1980), this Court found both due process and access-to-court violations in certain mandatory pre-litigation procedures that (a) could require a plaintiff to go through a burdensome sequence of hurdles before getting to a jury, and (b) could delay trial for damages by as much as sixteen months. The burden imposed by the decision below is comparable. The statutory burden is one of exhaustion, but FCHR, with approval of the court below, has made the burden one of prevailing rather than exhausting. The statute makes FCHR a pass-through on the way to court. The decision below in effect makes FCHR judge and jury, dismissing claims on whimsy and requiring a trip to an appellate court with no meaningful record before being able to go to a trial court. IV. Decision Below Affects A Class of Constitutional Officers Under the regimen approved below, cases dismissed by FCHR go to the district court of appeal rather than the circuit court. The judges of both courts are constitutional officers. By shifting the workload of these cases from one court to another in a reversal of the sequence contemplated by statute, the ruling affects a 7

11 class of constitutional officers. Argument FCHR dismissed this claim on the alleged "jurisdictional" ground of untimeliness, adopting the theory that the clock runs when an employee first learns she might be fired, rather than when the actual decision is made. But it is a wellsettled principle in employment law that timeliness of this sort is not a "jurisdictional" bar. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). FCHR can not use the word "jurisdiction" as a catch-all excuse to shirk the duty of processing cases. If a claim falls even colorably within the auspices of the law, jurisdictional dismissal is not an option.' See e.g (5). The "auspices" of this statute have been determined by the Florida Supreme Court and the Florida Legislature to be extremely broad. If an employee files a whistle blower charge with FCHR about an adverse employment action allegedly stemming from 2 Obviously, if Robinson asked FCHR, through an administrative charge of retaliation, to collect money owed, FCHR would rightfully refuse and tell her to "take your contract claims to court." If she sought a divorce or a bankruptcy through FCHR, it could refuse to act. That is what is meant by subject matter jurisdiction. It does not mean a whistle blower case that meets one theory of timeliness but not another. 8

12 protected conduct, there can be no dispute about "jurisdiction." The Whistle- Blower Act is a "remedial statute designed to encourage the elimination of public corruption by protecting public employees who 'blow the whistle'. As a remedial act, the statute should be construed liberally in favor of granting access to the remedy." Irven v. Department of Health and Rehabilitative Services, 790 So. 2d 403, (Fla. 2001)(quoting Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992)). The District Court's opinion is in direct conflict with this Court's decision in Woodham v. Blue Cross and Blue Shield of Florida, 829 So. 2d 891 (Fla. 2002). In Woodham, this Court considered the issue of the legal effect of an untimely notice under a related statute, Chapter 760, Florida Statutes. This Court found that "[w]hen FCHR failed to act within 180 days, subsection (8) applies, allowing the claimant to proceed under subsection (4) and file a lawsuit as if the FCHR determined that there was reasonable cause." Id. at 898. FCHR failed to timely act in this case. The District Court distinguished Woodham by holding that "[u]nlike the Florida Civil Rights Act, the Whistle-blower's Act contains no provision allowing 9

13 a complainant to bypass the administrative process due to a delay by FCHR." Robinson v. DOH, 2012 WL , *3 (Fla. 1St DCA 2012). 3 But whether have the same "bypass" as Chapter 760 is inconsequential when FCHR failed to timely act thereunder. This failure effected Robinson's legal rights and she, like Woodham, is entitled to proceed with her civil action. See Woodham, 829 So. 2d at 897 ("Without having received a proper "no cause" determination, Woodham was not required to make the subsection (7) request for an administrative hearing within 35 days). Conclusion For the foregoing reasons, the Court should exercise its jurisdiction to review this case. 3 The District Court's reliance on the fact that (8) which allows a claimant to proceed to court if the FCHR fails to act within 180 days, (8)(a) requires FCHR to provide a notice of termination within 150 days of the option to proceed administratively or file a civil action. This notice was never given and the District Court's holding on this and the untimeliness of the FCHR determination are in direct conflict with this Court's holding in Woodham. 10

14 Respectfully submitted, Marie A. Mattox [FBN ] MARIE A. MATTOX, P.A. 310 East Bradford Road Tallahassee, FL (850) (telephone) (850) (facsimile) ATTORNEYS FOR APPELLANT CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to the attorney identified below by United States Mail this 18 th day of July, 2012: Matthew Carson, Esq. RUMBERGER KIRK & CALDWELL 215 South Monroe Street Suite 130 Tallahassee, FL Marie A. Mattox 11

15 CERTIFICATE OF TYPE This brief was typed in Times New Roman, 14 font. 12