Opinion
Case No. 5D18-3494
03-27-2020
ORANGE COUNTY, Florida, Appellant, v. Stacy MCLEAN, Appellee.
Kristie Hatcher-Bolin, of Gray Robinson, P.A., Lakeland, and Sarah P. L. Reiner and Theodore L. Shinkle, of Gray Robinson, P.A., Orlando, for Appellant. Jerry Girley, of The Girley Law Firm, P.A., Orlando, for Appellee.
Kristie Hatcher-Bolin, of Gray Robinson, P.A., Lakeland, and Sarah P. L. Reiner and Theodore L. Shinkle, of Gray Robinson, P.A., Orlando, for Appellant.
Jerry Girley, of The Girley Law Firm, P.A., Orlando, for Appellee.
LAMBERT, J.
Orange County, Florida ("the County"), appeals the final judgment entered following a jury trial awarding damages in the sum of $36,663 to the appellee, Stacy McLean, on his claim for retaliation brought under the Florida Civil Rights Act ("FCRA"). As explained below, we agree with the County that the trial court erred in failing to grant two of its separate motions for directed verdict. Accordingly, we reverse the final judgment in favor of McLean and remand with directions for the trial court to enter a final judgment in favor of the County.1060 BACKGROUND
McLean began working as a firefighter with the Orange County Fire Rescue Department ("Fire Rescue") in 1989, eventually rising to the rank of lieutenant. He was working in the Training Division of Fire Rescue in November 2013 when an investigation was instituted by the County regarding a number of its employees, including McLean, concerning allegations that these employees were misusing County property and improperly reporting or recording the number of hours that they had been working. Of the fifty-six employees disciplined as a result of this investigation, the County only terminated the employment of McLean and two other African-American males.
McLean sued the County in 2015 for discrimination under the FCRA. McLean contended that this disparate treatment in being terminated from employment for committing the same or similar acts as the other investigated employees whose employment was not terminated was due to both his race and sex.
In June 2016, McLean and the County settled this first lawsuit. In exchange for McLean executing a release of any and all of his claims and dismissing the suit with prejudice, the County agreed to set aside its termination of McLean's employment and to replace it with a written warning letter. McLean would be reinstated to his previous status as a lieutenant in Fire Rescue. The County also agreed to pay McLean what was referred to in the settlement agreement as his Florida Retirement System ("FRS") back wages, together with his non-FRS back wages. It also agreed to pay a specified sum of money to McLean for compensatory damages and for attorney's fees and costs. Lastly, the County agreed to provide McLean with personal and sick leave benefits that he would have accrued during the twenty-seven-month period from when his employment was first terminated by the County until he was reinstated.
PRESENT LAWSUIT
After the first suit concluded, McLean went back to work as a lieutenant with Fire Rescue. However, he was not returned to the Training Division of Fire Rescue. The settlement agreement did not require that McLean be returned to the Training Division; and, at the time of his reinstatement, there were no vacancies in that division. As discussed below, whether the County should have transferred one of its then-present similarly ranked employees out of the Training Division to allow McLean to work again as a lieutenant in the Training Division, and its motive for not doing so, would become one of two material issues in the second lawsuit.
The other issue that arose concerned McLean's withdrawal of monies that he had accumulated in his retirement account with the FRS as a result of his employment with the County. Sometime after the County terminated his employment in 2014, McLean withdrew funds from his FRS retirement account to pay for some of his living expenses. McLean also transferred monies from his FRS retirement account into another qualified retirement account.
McLean's withdrawal of these funds came to the attention of the Florida State Board of Administration ("SBA"), which is an agency that administers the retirement accounts for government employees in Florida, including the County's employees. The SBA posited that as a result of the parties’ settlement of the earlier case, McLean had no actual break in his employment with the County. The SBA notified McLean that due to certain Internal Revenue Service guidelines that require an employee be retired before taking any disbursements from this type of retirement account, it considered McLean's withdrawal from his FRS retirement account to have been an improper, in-service distribution of these funds. McLean challenged the SBA's position in an administrative proceeding, but he did not prevail at the hearing held before an administrative law judge on this issue. The SBA adopted the administrative law judge's proposed order, and it ordered that McLean repay the previously-withdrawn money back to his FRS account within thirty days. Otherwise, the SBA wrote that McLean "must be declared a retiree and ineligible for future participation in the FRS" and "be immediately terminated from his employment [with the County] for at least six calendar months." The County was notified that, absent McLean's repayment of these sums or the termination of McLean's employment, it faced being ejected from further participation in the FRS program.
McLean's in-service withdrawal of funds from his FRS retirement account was not part of the settlement negotiations or agreement that resolved the parties’ first lawsuit. Nevertheless, to comply with and facilitate the reimbursement requirement being imposed upon him by the SBA, McLean requested that the County now repay on his behalf the additional sums of money that he withdrew from his FRS account. The County declined, but it did propose a remedy, acceptable to the SBA, that would have allowed McLean to remain employed by Fire Rescue without having to repay or reimburse his FRS retirement account. McLean rejected the County's offer. Because McLean did not thereafter repay the withdrawn funds back to the FRS, his employment with the County ended.
McLean's present suit averred that the County unlawfully retaliated against him for engaging in what he described as a "protected activity" under the FCRA. Pertinent here, section 760.10(7), Florida Statutes, provides, in part:
It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
McLean alleged that the protected activity he engaged in was the filing of his lawsuit against the County in 2015 for racial discrimination.
He contended that the County retaliated against him for doing so in two significant ways. McLean asserted that the County's first act of retaliation occurred in 2016 when the County did not place him back in the Training Division following the settlement of the prior lawsuit. Second, McLean alleged that the County essentially forced him into retirement in 2017 when it would not assist him in reimbursing his FRS retirement account by paying him the additional money needed.
THE TRIAL AND THE COUNTY'S MOTIONS FOR DIRECTED VERDICT
The case proceeded to trial in 2018. At the close of McLean's case-in-chief and then after all the evidence had been presented, the County made various motions for directed verdict on the retaliation claim, which it maintains here were all erroneously denied by the trial court.
McLean also pleaded a second cause of action for breach of the 2015 settlement agreement. The trial court granted a directed verdict in favor of the County on this count at trial, which has not been challenged on appeal.
The County's first argument on appeal is that it was entitled to a directed verdict because McLean failed to show that he had exhausted his administrative remedies prior to bringing suit. See Woodham v. Blue Cross & Blue Shield of Fla., Inc. , 829 So. 2d 891, 894 (Fla. 2002) ("As a prerequisite to bringing a civil action based upon an alleged violation of the FCRA, the claimant is required to file a complaint with the FCHR [Florida Commission on Human Relations] within 365 days of the alleged violation." (citing § 760.11(1), Fla. Stat. (1999) )); accord Sheridan v. State , Dep't of Health , 182 So. 3d 787, 789 (Fla. 1st DCA 2016) ("Prior to filing a civil action alleging discrimination in violation of the FCRA, the individual seeking relief must ... exhaust the administrative remedies provided by the FCRA." (citing § 760.11(1), (4), Fla. Stat. (2012) )).
In addressing this argument, we first differentiate between the instant suit and the one brought by McLean against the County in 2015 for discrimination. McLean did exhaust his administrative remedies before bringing the prior lawsuit against the County. That, however, is neither significant nor relevant here because McLean's retaliation claim is based on separate, discrete acts, making it an entirely separate cause of action from McLean's original discrimination claim. See Buade v. Terra Grp., LLC , 259 So. 3d 219, 222 (Fla. 3d DCA 2018) (holding that a retaliation claim brought under the FCRA is an entirely separate cause of action from a discrimination claim); City of W. Palm Beach v. McCray , 91 So. 3d 165, 172 (Fla. 4th DCA 2012) ("[E]ach discrete discriminatory act starts a new clock for filing charges alleging that act."). Therefore, McLean had to first file an administrative complaint with either the FCHR or the United States Equal Employment Opportunity Commission ("EEOC") prior to bringing the instant civil action for retaliation against the County.
See Sheridan , 182 So. 3d at 789–90 (explaining that "[u]nder a worksharing arrangement between the [FCHR] and the [EEOC], each agency has authorized the other to accept discrimination charges or complaints on the other's behalf").
The presuit filing of an administrative complaint with the FCHR is a condition precedent that must be pled when filing the civil action. Maynard v. Taco Bell of Am. , Inc. , 117 So. 3d 1159, 1161 (Fla. 2d DCA 2013) ; Martinez v. Abraham Chevrolet-Tampa, Inc. , 891 So. 2d 579, 581 (Fla. 2d DCA 2004). McLean pled that he had complied with all conditions precedent before bringing suit. The County specifically denied that McLean had complied with all conditions precedent because he had not filed a complaint for retaliation with the FCHR or the EEOC. It further answered that McLean's failure to do so meant that he had not exhausted his administrative remedies, thus barring his retaliation claim. The burden, therefore, was on McLean at trial to prove that he had complied with this condition precedent of exhausting his administrative remedies. See Myers v. Cent. Fla. Invs., Inc. , 592 F.3d 1201, 1224–25 (11th Cir. 2010). In its first motion for directed verdict, the County argued that McLean failed to meet this burden.
"A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party." Goolsby v. Qazi , 847 So. 2d 1001, 1002 (Fla. 5th DCA 2003). Our standard of review of the denial of a motion for directed verdict is de novo. Hollywood Med. Ctr., Inc. v. Alfred , 82 So. 3d 122, 125 (Fla. 4th DCA 2012).
We agree with the County that McLean failed to present competent evidence that he filed an administrative complaint with the FCHR or the EEOC. No copy of an administrative complaint actually filed by McLean with either agency was admitted into evidence at trial. McLean produced no receipt or other document from either the FCHR or the EEOC acknowledging that it had received his complaint. McLean testified that he personally did not file the administrative complaint. He also presented no evidence at trial that any employee or representative of the County had ever received a copy of an administrative complaint or been notified by the FCHR or the EEOC about McLean's filing of the complaint for retaliation. Accordingly, because there was no disputed issue for the jury to resolve regarding whether McLean complied with the condition precedent of exhausting his administrative remedies under the FCRA, the trial court should have granted the County's motion for directed verdict.
The County also argues that the trial court erred in not granting its separate motion for directed verdict when McLean failed to prove that the County's reasons were pretextual for not placing McLean back in the Training Division after reinstatement and in later requiring him to retire after it declined to pay additional money so that he could reimburse his FRS retirement account for his earlier, in-service withdrawals. We again agree with the County.
Although we have just determined that the trial court erred in not directing a verdict in favor of the County based on McLean's failure to exhaust his administrative remedies, we nevertheless have elected to address the merits of the County's second argument. See Parsons v. Fed. Realty Corp. , 105 Fla. 105, 143 So. 912, 920 (1932) ("Two or more questions properly arising in a case under the pleadings and proof may be determined, even though either one would dispose of the entire case upon its merits, and neither holding is a dictum, so long as it is properly raised, considered, and determined.").
In a retaliation claim filed under the FCRA, once a plaintiff has established a prima facie case that he or she has engaged in a protected activity under the Act, and, as a result, has suffered a negative or adverse employment action, "the burden then shifts to the defendant to proffer a legitimate reason for the adverse employment action." Russell v. KSL Hotel Corp. , 887 So. 2d 372, 379–80 (Fla. 3d DCA 2004) (citing Sierminski v. Transouth Fin. Corp. , 216 F.3d 945, 950 (11th Cir. 2000) ). If the defendant proffers a legitimate reason for the adverse employment action, then the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the employer's "legitimate reason" was merely a pretext for the prohibited retaliatory conduct. Id. (citing Sierminski , 216 F.3d at 950 ); accord St. Louis v. Fla. Int'l Univ. , 60 So. 3d 455, 460 (Fla. 3d DCA 2011) (describing the shifting burdens of proof in a retaliation claim).
Applying this three-step, burden-shifting analysis here, McLean arguably presented a prima facie case of an adverse employment action. At that point, the burden shifted to the County, under what has been described as an "exceedingly light ... burden of production, not persuasion," Valenzuela v. GlobeGround N. Am. , LLC , 18 So. 3d 17, 24 (Fla. 3d DCA 2009), to show that it had legitimate, non-discriminatory reasons for its actions in 2016 in not placing McLean back in the Training Division upon reinstatement and then, in 2017, requiring that McLean retire after it declined to pay additional, significant monies that were not part of the earlier settlement agreement, so that McLean could reimburse his FRS retirement account.
Here, the trial evidence established that the County met its burden. The County showed that it had a legitimate reason to comply with the SBA's order when it required McLean to retire after he failed to reimburse his FRS account so as to not jeopardize its own continued participation in the FRS. Second, the County demonstrated that there were no vacancies or openings in the Training Division at the time McLean was reinstated.
Thus, the burden shifted back to McLean to establish by a preponderance of the evidence that the County's reasons were pretextual. Put differently, McLean had to show that the County's stated reasons for its actions taken were false, and that its real reason behind these actions was to retaliate or discriminate against McLean. See St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (holding that to demonstrate pretext, a plaintiff must show "both that the [stated] reason was false, and that discrimination was the real reason").
Simply stated, McLean provided no competent evidence at trial to allow the issue to go to the jury as to whether he had shown that either action taken by the County was pretextual. McLean was well aware of the SBA's order mandating that he either reimburse the withdrawn funds to his FRS account or the County would be required to declare him to be retired and that he be immediately terminated from employment for at least six calendar months. McLean provided no argument here why the County's compliance with the SBA's order to retire him when he did not reimburse his FRS account was not legitimate or why the County should have gratuitously paid additional, significant monies that were not part of the negotiated settlement agreement to facilitate his reimbursement.
Next, McLean presented, at best, conclusory allegations in response to the testimony from at least three of the County's employees that there were no vacancies in the Training Division and that McLean's request to transfer into the Training Division based on his seniority did not apply to administrative positions in the Training Division. McLean's explanation that he expected to return to the Training Division, despite the County having no obligation under the settlement agreement to do so, without more, did not rise to an evidentiary level to allow the jury to decide whether the County's reason here was pretextual. See Furcron v. Mail Ctrs. Plus, LLC , 843 F.3d 1295, 1313 (11th Cir. 2016) (holding that conclusory allegations, without more, are insufficient to establish pretext).
The final judgment in favor of McLean is reversed. The case is remanded for the trial court to enter a final judgment for the County.
The County also argued that it should be granted a new trial based upon improper comments made by McLean's counsel during closing arguments. While our decision here renders this argument moot, we do agree with the County that McLean's counsel made improper remarks, including asking the jury by their verdict to "send a message" to the County, expressing a personal opinion of his client's credibility, and commenting on the relative financial wealth of the County. The collective nature of these comments would have otherwise merited a reversal for a new trial. In accordance with Canon 3(D)(2) of the Code of Judicial Conduct, we are taking appropriate action to address the inappropriate remarks and argument of McLean's trial counsel. Such conduct will not be tolerated.
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REVERSED and REMANDED with directions.
COHEN and EDWARDS, JJ., concur.