FCHR CORRUPTION
Michelle Wilson v. The Florida Commission on Human Relations
Chapter 2: First Appeal

All Pertinent Documents

ITEM 201 | NOTICE OF APPEAL

FLORIDA COMMISSION ON HUMAN RELATIONS
MICHELLE WILSON Appellant, v. FLORIDA COMMISSION ON HUMAN RELATIONS, Appellee.	) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )	FCHR INTAKE NO. 202128179

NOTICE OF APPEAL

PLEASE TAKE NOTICE that an appeal is being taken to the First District Court of Appeal from the final agency action of the Florida Commission on Human Relations on October 1, 2021, entitled “Notice of Dismissal,” a copy of which is attached hereto. This final agency action disposes of all issues raised before the administrative tribunal. This appeal is the only relief that the administrative tribunal has identified, as set forth in the “Notice of Dismissal” to redress the dismissal of Petitioner’s claims.

PLEASE GOVERN YOURSELF ACCORDINGLY.

Respectfully submitted,

/s/ Richard E. Johnson
Richard E. Johnson
Florida Bar No. 858323
Law Office of Richard E. Johnson
314 West Jefferson Street
Tallahassee, Florida 32301
850/ 425-1997
rick@rej-law.com

Counsel for Appellee

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Appeal with a copy of the document referenced above have been furnished to the following by email this 29th day of October, 2021: Tammy Barton, Clerk, Florida Commission on Human Relations, tammy.barton@fchr.myflorida.com and to Cheyanne Costilla, Executive Director, Florida Commission on Human Relations, Cheyanne.Costilla@fchr.myflorida.com

Wilson v FCHR, et al
© December 2020

Plaintiff	Defendants
Michelle Wilson, FCHR Director (2011 - 2020)	• Florida Commission on Human Relations, The • Florida Department of Financial Services, The • Cheyanne Costilla, FCHR Director (2020 - now)

ITEM 202 | INITIAL BRIEF

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L.T. No.: 202128179
Case No.: 1D21-3417
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IN THE DISTRICT COURT OF APPEAL
STATE OF FLORIDA
FIRST DISTRICT

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***********************************

MICHELLE WILSON
Appellant,

v.

FLORIDA COMMISSION ON HUMAN RELATIONS,
Appellee.

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Appeal of a Final Order of the Florida Commission on Human Relations

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APPELLANT’S INITIAL BRIEF

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Richard E. Johnson
Florida Bar No. 858323
Law Offices of Richard E. Johnson
314 West Jefferson Street
Tallahassee, Florida 32301
(850) 425-1997
rick@rej-law.com

TABLE OF AUTHORITIES

CASES
Aldana v. Holub,381 So. 2d 231 (Fla. 1980)		30,31,32
Broward County v. La Rosa,505 So.3d 422 (Fla. 1987)		10,27,28,29
Caldwell v. Florida Dept. Of Elder Affairs,121 So.3d 1062, 1063 (Fla. 1st DCA 2013)		14 and passim
Chevron U.S.A.,Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)		20,30
Chiles v. State Employees Attorneys Guild,734 So.2d 1030, 1033 (Fla.1999)		10
Irven v. Dep't of Health and Rehabilitative Servs.,790 So.2d 403, 406 (Fla.2001)		23
Kluger v. White,281 So.2d 1, 4 (Fla.1973)		32
Martin County v. Edenfield,609 So.2d 27, 29 (Fla.1992)		23
McGuire v. Peabody Hotel Group,99 So. 3d 984 (Fla. 1st DCA 2012)		10
Mena v. Lifemark Hospitals of Florida,Inc., 50 So.3d 759,761 (Fla. 1st DCA 2010)		21
Mitchell v. Palm Beach County School Board,127 So. 3d 707 (Fla. 4th DCA 2013)		21
O’Neal v. Florida A & M University,989 So.2d 6 (Fla. 1st DCA 2008)		29
Rice-Lamar v. City of Ft. Lauderdale,853 So. 2d 1125, 1132-33 (Fla. 4th DCA 2003)		22
Robinson v. Dep't of Health,89 So.3d 1079, 1081 (Fla. 1st DCA 2012), rev. den., 108 So.3d 656 (Fla. 2012)		12 and passim
Roth v. Board of Regents,408 U.S. 564, 577 (1972)		32
Schnebly v. G4S Youth Services,LLC, 98 So.3d 1270 (Fla. 1st DCA 2012)		21
Tillery v. Fla. Dep't of Juvenile Justice,104 So.3d 1253, 1255 (Fla. 1st DCA 2013)		13 and passim
Stanton v. Florida Department of Health,129 So.3d 1083, 1084 (Fla. 1st DCA 2013)		14 and passim

Constitution and Statutes (2000 unless otherwise indicated)
Art. I, § 9, Fla. Const.		30
Art. I, § 21, Fla. Const		30,32
Art. I, § 22, Fla. Const.		29
Art. II, § 3, Fla. Const		27
112.311-313		24
112.3187		1, n.1,24
112.3187–31895		11
112.3187(8)(a)		12
112.31895(1)(a)		1, n1,24
112.31895(3)(d)		12
112.31895(4(a)		12
216.011		1, n.1,24
760.11		28,n.4,32

Other Authorities
60Y-5.002		25
32		32

STATEMENT OF THE CASE

Appellant Michelle Wilson worked for seventeen years at the Florida Commission on Human Relations (FCHR). After starting in a low-ranking position, she worked her way up to Executive Director, the agency’s chief executive position, serving in that capacity for the last nine years of her tenure. The Commission fired her on October 15, 2020.

Ms. Wilson filed a formal whistleblower charge on December 14, 2020, taking care to address it to both FCHR and the Office of the Chief Inspector General (OIG). R-3. The pertinent statute gives both agencies equal jurisdiction over receiving and processing whistleblower charges, though the OIG is mentioned first.¹ In the cover email transmitting the charge, undersigned counsel, pointed out the conflict of interest in FCHR adjudicating its own conduct in firing Ms. Wilson:

Because of Ms. Wilson’s former position, I do not believe FCHR will be able to process or investigate the case. The statute identifies FCHR and the office of the Chief Inspector General as the two places that may receive these charges. I am sending this to both in an abundance of caution...

Nevertheless, FCHR kept the charge. Though the fact is not in this record, OIG rejects the statutory language that enables it as well as FCHR to process whistleblower complaints.

Appellant had no communication from FCHR for 144 days. Then, attached to a cover email dated May 7, 2021, from FCHR lawyer John Scotese (R-13), came an undated document titled “Notice of Right to Amend.” R-7. The gist of the message was this, “The information you submitted in the complaint is insufficient for the Commission to begin its investigation for the reason stated below.” Id. The “reason stated below” is “Your complaint does not contain a sufficiently clear and concise statement of the facts, including pertinent dates, constituting retaliation under the Whistle-blower’s Act.” Id. (Emphasis in original.) This was passing strange because the retaliation was the firing and the charge covered the date and all else surrounding that.

Ms. Wilson’s charging document had some 1420 words of facts and analysis, starting with a recitation of the three elements of the whistleblower cause of action and proceeding through a detailed explanation of the persons, events, offenses, and dates that met each element. Ms. Wilson and her counsel were baffled by FCHR’s demand for an amended charge.

Responding in an email of May 13, 2021, undersigned counsel noted the dates already stated and asked what others might be missing. He noted that the information sought seemed to be what FCHR is supposed to seek in an investigation, not the initial charge.² There followed some technical questions about the rules Mr. Scotese had cited. R-12.

Mr. Scotese answered the technical questions in an email of May 21, 2021. R-11.

Ms. Wilson had, until her firing, run the agency for years and had determined what an adequate charge was. She knew the agency standards, perhaps better than anyone on earth. Her counsel was a board-certified employment lawyer of 30 years experience who had previously been hired by FCHR as its own expert on these statutes and had litigated the statutes many times. Her counsel had written the questions on the public whistleblower statute for the Florida Bar Labor and Employment board certification exam and was part of the group that graded those papers.

Counsel expressed his confusion in an email to Mr. Scotese on May 21, 2021, seeking what defect FCHR perceived in the original charge so corrections could be made. R-10-11.

Mr. Scotese replied, on May25, 2021, stating that “the alleged protected activity is not clear from the complaint” and asking for “a clear and concise statement that contains a description of the alleged protected activity, including the pertinent date.” R-10. This differed from the original communication which faulted alleged omissions on retaliation, not the protected conduct that caused the retaliation.

Ms. Wilson provided an amended charge on May 28,2021. She provided a detailed description of being ordered to violate the Florida statute and the administrative rule that require charges of discrimination to be investigated. Commission members, including one, Jay Pichard, who was himself the Respondent in a number of discrimination charges involving a company he owned, directed Ms. Wilson to dismiss such charges at the outset without investigation. She was fired for her refusal to violate the law. R-8-9. She gave the dates and details of other protected conduct. Id.

After another 126 days of silence, FCHR issued a “Notice of Dismissal,” stating that, “the information contained within your complaint was insufficient for the Commission to begin its investigation.“ And that, “Considering all information received, the Commission does not have authority to investigate, and the complaint will be dismissed.” R-14.

This timely appeal followed.

SUMMARY OF ARGUMENT

The Legislature ordered FCHR to investigate every whistleblower claim it receives and to make a determination on it. At that point, regardless of whether FCHR’s determination is positive or negative, the claim may proceed to either circuit court or the Public Employee Relations Commission (PERC). However, FCHR arrogated to itself the power select certain charges, with no stated criteria, for annihilation. FCHR simply refuses to investigate these charges or make determinations on them. FCHR merely “dismisses” them. These claimants do not get a trial in an alternative forum as do the claimants in discrimination cases for whom FCHR finds “no cause.” That class of discrimination claimants are denied access to circuit court, but get the alternative remedy of a full-dress bench trial before DOAH. By contrast, the disfavored whistleblower claimants get nothing. Their claims are simply extinguished.

This Court’s handling of appeals from these annihilations evolved over four cases in 2012-2013. At the beginning, the Court took a very stringent view of the latitude FCHR had to deviate from the statutory mandate. The Court allowed a pre-investigation dismissal of a claim that fell outside the statute of limitations. By the fourth case, however, the Court had adopted a highly deferential standard that allowed the agency to annihilate the claims of a charging party who had failed to plead her proof on a charge form designed to be filled out by pro se charging parties who might be, for example, grounds keepers at state buildings with limited education. The instant Appellant, however, filed a charge that meets even the most exacting standards. She is a former Executive Director of FCHR and is represented by a seasoned counsel with expertise in the field. FCHR could not explain where her charge fell short.

Though the terminology is different in the administrative process under discussion, FCHR was both the defendant and the judge in this case below. FCHR fired Michelle Wilson. She brought this proceeding to challenge that firing. The pertinent statute allows office of the chief inspector general to process these whistleblower charges instead of FCHR. The pertinent F.A.C. rule allows FCHR to outsource the processing, usually to the office of the Florida Attorney General. Appellant dual filed with OIG and in a cover email pointed out FCHR’s conflict of interest. Yet FCHR kept the charge and annihilated it instead of processing it so it could go to court.

Whatever FCHR staff worked on Appellant’s charge did so under the authority of the officials who did the firing at issue. If they allowed Appellant to go to court, the statutory set of remedies allow reinstatement so Appellant might once again be their boss. The conflict of interest could not be more flagrant and gross.

Because the Legislature created a claim for unliquidated damages in the whistleblower act, controlling law holds that only a court may make the final disposition of that claim. FCHR trespassed on the prerogatives of the judicial branch in making the final determination on that cause of action. FCHR trespassed on the prerogatives of the legislative branch in functionally amending the whistleblower statute to allow itself to ignore the ironclad legislative mandate to investigate charges and make a determination on them. That is a double-barreled violation of the separation of powers mandated by the Florida constitution.

Claimants under the whistleblower statute have a right to trial by jury. By extinguishing Appellant’s case before it could go to court, FCHR violated that right. FCHR violated Appellant’s rights to access to courts and due process by extinguishing her case on grounds that are both capricious and without discernable standards. There are no written guidelines nor even any set of oral traditions on the exercise of pre-investigation dismissal. Whatever happens to move the decision-maker at any given moment is the standard. That has created a system that is discriminatory and irrational. Moreover, another aspect of the florida constitutional right of access to courts is the requirement to substitute an alternative porcess and remedy whenever government takes away an existing cause of action. FCHR provides no alternative when it extinguishes a whistleblower’s statutory rights.

STANDARD OF REVIEW

This Court reviews claims by the Florida Commission on Human Relations that it lacks jurisdiction under a de novo standard of review. McGuire v. Peabody Hotel Group, 99 So. 3d 984 (Fla. 1st DCA 2012). The violations of constitutional rights to due, process, access to courts, and trial by jury are subject to a “strict scrutiny” standard of review, which requires that the State prove that the offending action furthers a compelling state interest through the least intrusive means. Chiles v. State Employees Attorneys Guild, 734 So.2d 1030, 1033 (Fla.1999). Separation of powers issues are reviewed de novo. Broward County v. La Rosa, 505 So.3d 422 (Fla. 1987).

ARGUMENT
I. FCHR Had A Duty to Investigate the Charge and Make a Determination

The Florida Public Whistleblower’s Act, §§ 112.3187–31895, Florida Statutes (hereinafter “the Act”), requires FCHR to investigate public whistleblowers’ complaints, to make a determination on the validity of those claims, to conciliate them, and to advocate for the claimants in meritorious cases. FCHR violated its statutory mandate in this case by dismissing on jurisdictional grounds a charge that was both thorough and well within FCHR’s subject matter jurisdiction.

The Legislature has designated FCHR as an intermediary agency that a whistleblower must pass through on the way to circuit court or the Public Employer Relations Commission (PERC). The law makes no allowance for FCHR to kill a whistleblower’s complaint before that complaint advances to the next stage.

The Act provides a full-blown statutory cause of action for state employees such as Appellant who face adverse job action as a result of protected activities. §§ 112.3187(8)(a); 112.31895(4(a). Employees of state agencies may seek the relief provided under the Act through either circuit court or the Public Employees Relations Commission (PERC). §§ 112.3187(8)(a); 112.31895(4)(a). However, the Act provides certain prerequisites to the filing of an action in either circuit court or with PERC. §§ 112.3187; 112.31895. Robinson v. Dep't of Health, 89 So.3d 1079, 1081 (Fla. 1st DCA 2012), rev. den., 108 So.3d 656 (Fla. 2012). Before a public employee may seek relief in either forum, the Legislature has directed that the FCHR investigate the matter and take appropriate action, including attempting to “conciliate a complaint.” §112.31895(3)(d), Florida Statutes (2020). The complainant may then elect to pursue judicial remedies or file for relief with PERC.

Nothing in the statues contemplates FCHR refusing to investigate a case and make a determination on it. For most of the life of the statute, charging parties, respondents, and the agency itself (headed by Appellant and others) operated on the assumption that an inadequate charge would simply earn a “no cause” determination. There was no such category as “not worth investigating” or “insufficient detail to qualify as a charge.” However, an informal and unwritten practice came together as a sort of agency-created “nojurisdiction” basis for dismissal of a charge without investigation or determination.

The practice reached its crucible in 2013 when this Court handed down three cases treating the practice. In the first case, Tillery v. Fla. Dep't of Juvenile Justice, 104 So.3d 1253, 1255 (Fla. 1st DCA 2013), this Court excused FCHR’s failure to process the charge on the ground that the claim was insufficiently pled because there was no allegation as to when or to whom the complainant made the whistler-blower disclosures. Next, this Court upheld the “dismissal-without-processing” practice in Stanton v. Florida Department of Health, 129 So.3d 1083, 1084 (Fla. 1st DCA 2013), finding the complaint was insufficiently pled because the allegations of retaliation were “conclusory” and it was unclear that the disclosure was made to a proper party. In the third case, Caldwell v. Florida Dept. Of Elder Affairs, 121 So.3d 1062, 1063 (Fla. 1st DCA 2013), this Court found the charge inadequate to trigger investigation because it lacked sufficient detail of any act or suspected act of malfeasance or misfeasance that the charging party identified and suffered retaliation for reporting.

Caldwell drew a cogent dissent from Judge Benton that, though prescient in some respects, still failed to grapple with the underlying reason these “jurisdictional” dismissals were happening in the first place. One must wonder why FCHR did not just make the statutorily mandated determination of “no cause” on a case that had no merit. After all, that is how the Legislature set up the system and any reader of the statute can see that is how the situation was to be handled. There is no good reason to re-write the statute to invent a way to get rid of a charge without processing it.

But there are two bad reasons. The first is that FCHR has always been notoriously lacking in staff and budget to handle its volume. The agency simply lacks the resources to fulfill its statutory mandate to investigate all the cases it receives and make determinations on them, even though the investigation in many of the less meritorious cases might be minimal. Second, each investigation ends with a determination that, whether it be positive or negative, creates a right to bring a suit in circuit court. Some of these charges are of a politically explosive nature that draws a media frenzy. FCHR has felt a need to abort some of these lest they come to life and wreak political havoc. Hence the “jurisdictional” dismissal that functionally amends the Act to keep from coming to court the cases that would cause political upheaval in high places..

The law would recognize application of the concept of a dismissal for lack of subject matter jurisdiction if FCHR threw out a request to dissolve a marriage or release a prison inmate. Such things are clearly outside the agency’s jurisdiction. But when FCHR receives a complaint from a former state employee that certain named and otherwise identified officials fired her on a certain date for carefully described protected conduct occurring on specified dates in violation of clearly identified statutes and rules, that description is so squarely within the exact mission of FCHR that no reasonable person could say that it is outside the agency’s jurisdiction or that it is too conclusory to investigate or that it fails to meet any prima facie test. That is where the instant case parts company with the trilogy of 2013 cases discussed above. For those cases, FCHR and the reviewing court had at least a plausible rationale for applying the stated test, even if it were the wrong test. On these facts, that is not even theoretically possible because the allegations of the charge are not arguably conclusory and could not credibly be claimed to fall short of a prima facie case. The charge recites the elements of the offense and discusses in detail how each element is met, including names, dates, incidents, laws and rules violated, etc.

FCHR’s next maneuver is to make the agency’s “jurisdictional” dismissal unreviewable by formulation of an “inherent power” to dismiss the charge without the legislatively mandated investigation. A charge is not conclusory simply because FCHR says so. The review mechanism established by the Legislature was to move on to circuit court or PERC to challenge what FCHR determines. But the 2013 trilogy of cases in this Court nullified that corrective mechanism by reference to the agency’s “inherent power” to keep cases from going on to court by killing them off at the pre-investigation stage. It is useful to take a look at the development of this “inherent power” as it has evolved in this court’s jurisprudence.

The notion of FCHR’s “inherent power” to refuse to investigate a charge found its first mention in Robinson v. Department of Health, 89 So.3d 1079, 1082–83 (Fla. 1st DCA 2012), where this Court grappled with FCHR’s power to dismiss a charge filed outside the statute of limitations. Noting that there must be a statutory basis for the dismissal authority and finding none, this Court found a legislative grant of power to review timely complaints and from that inferred a power to decline to review untimely complaints. Notably, this timeliness issue had nothing to do with any subjective determination or any assessment of the merits of the charge. It is a neutral rule that rains on friend and foe alike. Next, however, the Tillery court, 104 So.3d @ 1255, cited the inherent authority discussed in Robinson to find an inherent power to refuse investigation of a charge in which the claimant alleged retaliation for his disclosure of lying and covering up racial comments in the workplace because the complaint failed to name those who had received the internal complaints. This stretched beyond Robinson. The missing name in Tillery, depending on the fact scenario, could be the sort of thing the investigation is supposed to uncover, not something that prevents the investigation. An employee complaining on a toll-free phone to human resources might not know the name of the person who received her complaint. This is a step beyond dismissing a charge for being outside the statute of limitations. It is substantive and merits-based. Next this Court in Stanton, 129 So.3d @1084, cited the result in Tillery as a basis for moving substantially beyond it to find a charge properly dismissed a charge because it “fails to demonstrate that the ‘supervisor,’ to whom appellant disclosed the alleged unlawful behavior, possessed the necessary authority to investigate the matter....” So the needle has moved beyond the mere failure to name the pertinent official receiving the complaint. One must also “demonstrate” that person’s authority to investigate the matter. This “demonstration” is a matter of not just allegation, but proof. Finally, this Court’s opinion in Caldwell, 121 So.2d @ 1063-1064, cites Robinson, Tillery, and Stanton, in the course of finding that the whistleblower’s charge was too “conclusory” to warrant investigation. The charge said the claimant contacted a federal investigator “to alert him to the condition of the Ombudsman program and the gross misfeasance and malfeasance that were occurring within.” The failure to describe any act of malfeasance or misfeasance was fatal to the claim.

This evolution shows a remarkable drift over the course of a single year. The over-riding concern in Robinson was that the Legislature had ordered FCHR to investigate every case. One might imply from the provision imposing a duty to investigate those arriving at the office in 60 days, an implied duty not to investigate those arriving outside that time. That is a very small and tightly granted exception to the legislative mandate, based on a plausible sort of logic. The exception also rests on an objective criterion – one may easily count 60 days. But this is hardly a basis for the Caldwell result. The analysis evolved from a duty of tight conformance to legislative mandate in Robinson to “the usual recognition of deference to an agency's interpretation of a statute it is charged to administer.” Caldwell, 121 So.3d @1063. Thus there was a shift from a grudging grant of an inch of deference in Robinson, based on statutory text, to a country mile of deference in Caldwell, based on a theory of plenary deference to an agency’s interpretation of a statute it is charged to administer.

This is a drift in the opposite direction of recent federal practice where courts from SCOTUS on down are cutting back on the deference granted to executive agencies in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In this era of “textualist” theories of legal interpretation and “plain meaning” doctrines regarding reading statutes, this Court’s trend is against the wind, at least in this one area.

This Court had previously given short shrift to a similar effort by FCHR, in the public accommodations context, to abort its investigative duties prematurely. Mena v. Lifemark Hospitals of Florida, Inc., 50 So.3d 759,761 (Fla. 1st DCA 2010). A sister court rejected FCHR’s claim of a lack of subject matter jurisdiction in the discrimination context in Mitchell v. Palm Beach County School Board, 127 So. 3d 707 (Fla. 4th DCA 2013). This Court also rejected FCHR’s premature claim of lack of subject matter jurisdiction when the agency assumed with investigation that an employer was not covered under the Act at issue here. Schnebly v. G4S Youth Services, LLC, 98 So.3d 1270 (Fla. 1st DCA 2012).

Appellant wishes to stress, however, that this Court’s holdings in Tillery, Stanton, and Caldwell are binding precedent that no panel can overturn on the narrow issue of an “inherent power.”³ Reversal of these cases on that ground is not what Appellant needs to win this appeal. This court should not extend its deference to FCHR any further. That is what this case turns on because Appellant satisfies everything that doomed the appellants who came before her. Appellant’s charge, supplemented by her amended charge, in this case is not even arguably “conclusory” or lacking in any element of a prima face case. One states a prima facie case under the Act by showing that (1) she engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3) that the protected expression and the adverse action are not completely unrelated. Rice-Lamar v. City of Ft. Lauderdale, 853 So. 2d 1125, 1132-33 (Fla. 4th DCA 2003). Appellant was fired. That is undeniably an adverse action. She repeatedly stated her refusal to violate both a statute and an administrative rule requiring her agency to investigate allegations of employment discrimination. The agency has not even attempted to state a non-retaliatory reason for the firing. There is no doubt about the prima facie case. The charge states the details and dates of the protected conduct and the names and positions of the offenders and the dates and nature of the events making up the adverse actions.

The Court must not allow FCHR to rewrite a statute under the guise of “deference.”

Finally, the Legislature requires that any issue concerning a claimant’s access to the remedy, if at all reasonable, must be decided in favor of granting access. This is the doctrine of liberal construction. 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. Irven v. Dep't of Health and Rehabilitative Servs., 790 So.2d 403, 406 (Fla.2001)(“The statute could not have been more broadly worded); Martin County v. Edenfield, 609 So.2d 27, 29 (Fla.1992).

II. FCHR Had an Unwaivable Duty of Disqualification

FCHR is in an awkward position when its own fired employee brings a charge against the agency for that firing. The agency has an obvious conflict of interest. A win by the employee will harm the agency’s already spare budget, generate unfavorable publicity that may endanger the roles of the agency’s leadership, and, perhaps, cause reinstatement of the fired employee to a position of authority over those who aided in the unlawful firing. Florida’s conflict of interest laws speak only obliquely and indirectly of conflict of interest by the agency itself as an institution. The main statutes, §§ 112.311-313, primarily address conflicts of individual state employees.

FCHR did not even respect the disqualification requirements relating to the individual employees involved in the disputed firing, let alone the entire agency. Nobody was disqualified, despite Appellant’s notice at submission of the charge that FCHR was in conflict of interest.

Both the Legislature and FCHR anticipated the difficulties that would arise when FCHR must play an adjudicatory role in a case in which it is also a respondent. It is basic due process that one cannot be a judge in one’s own case. Accordingly, the legislature provided for the Chief Inspector General to serve as an alternative processing agency for claims.

If a disclosure under s. 112.3187 includes or results in alleged retaliation by an employer, the employee or former employee of, or applicant for employment with, a state agency, as defined in s. 216.011, that is so affected may file a complaint alleging a prohibited personnel action, which complaint must be made by filing a written complaint with the Office of the Chief Inspector General in the Executive Office of the Governor or the Florida Commission on Human Relations, no later than 60 days after the prohibited personnel action.

§112.31895(1)(a), Florida Statutes (2020) (emphasis added). Appellant took the trouble to file with both the Chief Inspector General and FCHR to avoid any chance of suffering forfeiture by omitting either. Appellant’s counsel explained this dual filing in a cover email, explaining the conflict, “Because of Ms. Wilson’s former position, I do not believe FCHR will be able to process or investigate the case.” Nevertheless, FCHR took the case itself.

There was still another alternative available. FCHR had anticipated years earlier the need to outsource complaints presenting conflict of interest, such as complaints by its own employees and former employees. Accordingly, the agency adopted and codified in the Florida Administrative Code, Rule 60Y-5.002 “Agreements of Referral of Complaints.” The Rule provides details of which charges may be outsourced and how it is to be done. Through this Rule, FCHR outsourced investigation of complaints to the office of the Attorney General. The record is void of any effort by FCHR to refer this case to the Attorney General, any of the state attorneys in Florida, the OIG, or any other agency with the investigative resources to handle the conflict overflow.

Instead, FCHR kept the case and processed it in the most biased and unlawful fashion imaginable, killing the charge with no plausible explanation. Investigating the charge and making a determination on it (positive or negative)would have allowed the case to go to court and resulted in discovery exposing a leading commissioner’s numerous charges of discrimination against his businesses and his machinations to get Appellant fired; the processing misconduct of the agency; the bogus excuses for firing Appellant; the derelictions of replacement staff; and much more. The agency would have had to pay damages and possibly undergo reinstatement of Appellant. FCHR had every reason to contrive an excuse to kill Michelle Wilson’s charge without letting it mature. And it did.

FCHR had no authority to keep the charge and, other than the instant appeal, Appellant had no means of divesting FCHR of jurisdiction based on conflict. On remand, FCHR should be compelled to issue a prompt determination, allowing the case to proceed to circuit court.

III. FCHR’s Dismissal Violates Constitutional Separation of Powers

Art. II, § 3, Fla. Const., provides that “[t]he powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

The Florida Supreme Court, in Broward County v. La Rosa, 505 So. 2d 422 (Fla. 1987), found a violation of this provision when a county administrative agency presumed to trespass into the judicial function by awarding unliquidated damages to a housing discrimination plaintiff. The court held that only the judicial branch may pass upon such damages and that the parties have a right to a trial by jury on such a question. In the instant case, the Legislature has created, in the public whistleblower act, a cause of action for, among other things, unliquidated damages. In doing so, the Legislature created a role for FCHR to take certain actions before passing the case on to circuit court. The Legislature never granted, and under the Supreme Court’s analysis in La Rosa, never could have granted, FCHR the authority to dispose completely of a case under the whistleblower act. Only a court has jurisdiction to make a final determination of whether a claimant is entitled to the liquidated damages remedy the statute grants.

Thus FCHR trespassed on the power of the Legislature in effectively amending the language of a statute to arrogate to itself the power to annihilate administratively cases which the statute allowed to go to circuit court.⁴ FCHR also trespassed on the power of the courts to make the determination of whether a claimant/plaintiff will get unliquidated damages. Critically, the regimen FCHR has created for itself is subject only to the limited review of the District Court of Appeal, where no evidence may be received, no credibility determinations made, no inferences drawn, no jury seated. That is no substitute. As we see in Tillery, Stanton, and Caldwell, supra, the DCA’s deferential review of FCHR’s “jurisdictional” determination is not especially searching and in no case satisfies the separation of powers amendment.

Finally, plaintiffs under the whistleblower act are entitled to a trial by jury. O’Neal v. Florida A & M University, 989 So.2d 6 (Fla. 1st DCA 2008). Under La Rosa, no administrative agency such as FCHR can make the final determination of entitlement to that right. In acting to prevent that jury trial from ever happening, FCHR has also violated Art. I, § 22, Fla. Const., which states, “The right of trial by jury shall be secure to all and remain inviolate.”

IV. FCHR’s Failure to Issue a Determination Violates Appellant’s Rights of Due Process, Access to Courts, and Trial by Jury

FCHR’s violation of Appellant’s right to trial by jury is covered at the end of the immediately preceding section and need not be repeated here.

The rights of access to courts (Art. I, § 21, Fla. Const.) and due process (Art. I, § 9, Fla. Const.) Protect Appellant from what FCHR did here. The intersection of these two rights was the occasion of landmark holding of the Florida Supreme Court in Aldana v. Holub, 381 So. 2d 231 (Fla. 1980). That case concerned the allowable limits on pre-litigation burdens imposed on those seeking to bring cases to court. The Aldana court grappled with how many pre-suit steps and how long a delay the state could impose on a medical malpractice plaintiff before getting to court. The principles apply to this case with much stronger reason because in the instant case, the claimant NEVER gets the due process to exercise its constitutional right of access to courts.

The deprivation of due process and the right of access to courts in this case is capricious and without discernable standards. All we have is a sort of Chevron deference to the “inherent power” of FCHR to kill off whistleblower charges by refusing to investigate them or make the determinations that the Legislature has required FCHR to make. The essential due process violation that the statute the court invalidated in Aldana shares with the statute at issue here is the randomness with which persons would either get through the system or be obstructed by it. The statute thus proves to be "intrinsically unfair and arbitrary and capricious in [its] application." Aldana, 381 So. 2d at 236. Neither FCHR in taking its actions nor this Court in reviewing has articulated any discernable standard under which a charging party might surely frame her charge to assure it will be investigated and be the subject of a determination. There is no list or other set of criteria that justify refusal to process a charge. FCHR’s discretion is unlimited and apparently exercised according to who the charging party is, who her counsel is⁵, which official might be embarrassed or disadvantaged by processing the charge, and how overloaded the staff happen to be at the time. The loss of Appellant’s statutory right of access to court is based on nothing more than bad luck.

It simply offends due process to countenance a law which confers a valuable legal right, but then permits that right to be capriciously swept away on the wings of luck and happenstance.

Id. at 236, citing, Roth v. Board of Regents, 408 U.S. 564, 577 (1972) (valuable property interests conferred by state law must not be "arbitrarily undermined"). In that sense, the conduct of FCHR in this case also violates Appellant’s Fourteenth Amendment due process rights under the U.S. Constitution.

Moreover, the Florida right of access to courts (Art. I, § 21, Florida Constitution) holds as one of its central principles that no right to litigate may be abrogated without creating a replacement right. Kluger v. White, 281 So.2d 1, 4 (Fla.1973). The Kluger court cited the example of the replacement of the right to sue one’s employer for work-related injuries with the system of worker’s compensation law. That is also perhaps the saving grace for the anti-discrimination statute at §760.11, Florida Statutes. When FCHR issues a “no cause” determination that cuts off the right to sue in circuit court, the statute allows a bench trial at DOAH that may eventually lead to a jury trial in circuit court. But when FCHR annihilates a perfectly good whistleblower charge with a “no jurisdiction” refusal to process, there is no alternative offered. As Judge Benton pointed out in his Caldwell dissent, FCHR is “judge, jury, and executioner.” Caldwell, 121 So.3d @ 1065. To be sure, there is an appeal such as this one, but that is far from an alternative proceeding on the merits such as a hearing before Judge of Compensation Claims (JCC) or a DOAH Administrative Law Judge (ALJ).

The law does not allow a bureaucrat at FCHR to kill a cause of action created by the Legislature for decision by a circuit court.

CONCLUSION

The Court should reverse the decision below and remand with instructions to enter a determination. The Court need not reverse any of its prior cases or rehear them en banc. The Court should simply decline to extend its deferential review of FCHR’s “jurisdictional” determinations any further. Extending that deference to this case would stretch the deference beyond all reason. The court is perfectly free to find that it would have decided its prior cases differently had the parties in those cases raised the constitutional issues of separation of powers and the rights of due process, trial by jury, and access to courts in those cases. Indeed, the Court may and should find that FCHR is strictly bound by the statutory language to investigate and make a determination in every case when the question is considered from a constitutional angle that has never arisen in prior cases. The Court had no duty in the old cases to raise or consider sua sponte the constitutional issues the parties in those cases chose not to present.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Brief was served to all counsel of record this 9th day of March, 2022, through the Court’s e-service system.

	/s/ Richard E. Johnson
	Richard E. Johnson

CERTIFICATE OF COMPLIANCE

Pursuant to Fla.R.App.P. 9.210(a)(2), I hereby certify that this brief was prepared using proportionately spaced Bookman Old Style, 14 point font.

	/s/ Richard E. Johnson
	Richard E. Johnson

Wilson v FCHR, et al
© December 2020

Plaintiff	Defendants
Michelle Wilson, FCHR Director (2011 - 2020)	• Florida Commission on Human Relations, The • Florida Department of Financial Services, The • Cheyanne Costilla, FCHR Director (2020 - now)

¹ §112.31895(1)(a), Florida Statutes, provides

“If a disclosure under s. 112.3187 includes or results in alleged retaliation by an employer, the employee or former employee of, or applicant for employment with, a state agency, as defined in s. 216.011, that is so affected may file a complaint alleging a prohibited personnel action, which complaint must be made by filing a written complaint with the Office of the Chief Inspector General in the Executive Office of the Governor or the Florida Commission on Human Relations, no later than 60 days after the prohibited personnel action.”

(Emphasis added.)

² The discrimination and whistleblower charges FCHR investigates are designed to be initiated by unrepresented charging parties who may have limited literacy skills. Charges are meant to be bare-bones documents, sometimes co-authored by agency staff, and fleshed out by investigation.

³ This Court’s prior jurisprudence has not considered the constitutional issues discussed infra. Thus the Court may reach on opposite result on those bases without running afoul of the prior panel rule.

⁴ Notably, in discrimination cases as opposed to whistleblower cases, the worst FCHR can do is relegate a party to a bench trial before the Division of Administrative Hearings (DOAH), a process that can eventually lead to a jury trial in circuit court. See § 760.11, Florida Statutes, setting out the DOAH process. By contrast, in whistleblower cases, FCHR, with its “jurisdictional” magic can strangle the whole case in its infancy.

⁵ In all of the pertinent cases in which FCHR’s refusal to investigate a whistleblower claim was at issue – Robinson, Tillery, Stanton, and Caldwell, Tallahassee attorney Marie Mattox is listed as counsel for the charging party. A simple Westlaw search shows the many times Ms. Mattox has sued FCHR for offenses against its own employees. She is not a favorite of FCHR.

ITEM 203 | ANSWER BRIEF

********************************
L.T. No.: 202128179
Case No.: 1D21-3417
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********************************
IN THE DISTRICT COURT OF APPEAL
STATE OF FLORIDA
FIRST DISTRICT

********************************

***********************************

MICHELLE WILSON
Appellant,

v.

FLORIDA COMMISSION ON HUMAN RELATIONS,
Appellee.

***********************************

ON APPEAL FROM A FINAL ORDER OF THE FLORIDA COMMISSION ON HUMAN RELATIONS

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APPELLEE’S ANSWER BRIEF

********************************

JAMIE ITO
Florida Bar No. 13553
Ito Law, PLLC
411 Wilson Ave.
Tallahassee, FL 32303
Jamie@itolaw.net

Counsel for Appellee

TABLE OF CONTENTS		i
TABLE OF CITATIONS		iii
STATEMENT OF THE CASE AND FACTS
I. COURSE OF PROCEEDINGS AND DISPOSITION BELOW		1
II. STATEMENT OF FACTS		1
A. December 14, 2020, Charge		2
B. May 7, 2021, Notice of Right to Amend		4
C. May 28, 2021, Amended Charge		4
D. Notice of Dismissal		5
SUMMARY OF ARGUMENT		6
STANDARD OF REVIEW		7
ARGUMENT		8
I. FCHR PROPERLY DISMISSED WILSON’S CHARGE BECAUSE IT DID NOT INVOLE THE AGENCY’S INVESTIGATIVE AUTHORITY UNDER THE WBA		8
A. The WBA sets forth a pleading requirement for WBA charges		8
B. The FCHR is authorized to dismiss a charge that does not describe a disclosure of the nature set out in §112.3187, Fla. Stat.		9
C. The FCHR properly dismissed Wilson’s Charge		10
II. THE FCHR DID NOT HAVE AN UNWAIVABLE DUTY OF DISQUALIFICATION BECAUSE IT IS THE ONLY ENTITY AUTHORIZED BY THE WBA TO INVESTIGATE WHETHER A PROHIBITED PERSONNEL ACTION HAS OCCURRED IN RETALIATION FOR A PROTECTED DISCLOSURE		14
III. THE FCHR’S DISMISSAL OF WILSON’S CHARGE DID NOT VIOLATE THE CONSTITUTIONAL SEPARATION OF POWERS BECAUSE IT PROPERLY EXERCISED A QUASIJUDICIAL POWER DELEGATED TO IT BY THE FLORIDA LEGISLTURE		18
IV. THE FCHR’S DISMISSAL OF WILSON’S CHARGE DID NOT VIOLATE WILSON’S RIGHTS OF DUE PROCESS, ACCESS TO COURTS, OR TRIAL BY JURY		19
A. Wilson was afforded due process		19
B. Wilson was not unlawfully denied access to court		21
C. Wilson was not unlawfully denied a jury trial		22
CONCLUSION		23
CERTIFICATE OF SERVICE		24
CERTIFICATE OF COMPLIANCE		24

TABLE OF AUTHORITIES

CASES
Aldana v. Holub,381 So. 2d 231 (Fla. 1980)		30,31,32
Broward County v. La Rosa,505 So.3d 422 (Fla. 1987)		10,27,28,29
Caldwell v. Florida Dept. Of Elder Affairs,121 So.3d 1062, 1063 (Fla. 1st DCA 2013)		14 and passim
Jackson v. Hartford Life & Acc. Ins. Co.,543 Fed. Appx. 977 (11th Cir. 2013)		22
Johnson v. Florida Dept. of Corr.,190 So. 3d 259 (Fla. 1st DCA 2016)		9
Kluger v. White,281 So.2d 1, 4 (Fla.1973)		32
Nazzal v. Florida Dep’t of Corr.,267 So. 3d 1094 (Fla. 1st DCA 2019)		11
Pickford v. Taylor County Sch. Dist.,298 So. 3d 707 (Fla. 1st DCA 2020)		12
Simms v. State,Dept. of Health & Rehab. Services, 641 So. 2d 957 (Fla. 3d DCA 1994)		19
Stanton v. Florida Department of Health,129 So.3d 1083, 1084 (Fla. 1st DCA 2013)		14 and passim
Tillery v. Fla. Dep't of Juvenile Justice,104 So.3d 1253, 1255 (Fla. 1st DCA 2013)		13 and passim
Washington v. Florida Dep’t of Revenue,2022 WL 1101346 (Fla. 1st DCA Apr. 13, 2022)		13
Yeyille v. Miami Dade Cnty. Pub. Sch.,643 Fed. Appx. 882 (11th Cir. 2016)		23

Constitution and Statutes (2000 unless otherwise indicated)
112.3187		8,9,11,13
112.3189		15,16
112.31895		8,15,16

STATEMENT OF THE CASE
I. COURSE OF PROCEEDINGS AND DISPOSITION BELOW

This is an appeal of the dismissal of a Whistle-blower’s Act (“WBA”) Charge by the Florida Commission on Human Relations (“FCHR”). On December 14, 2020, Appellant Michelle Wilson submitted a WBA Charge to the FCHR. [R. 3-6]. On May 7, 2021, the FCHR issued Wilsona Notice of Right to Amend the Charge. [R. 6]. On May 28, 2021, Wilson submitted an Amended Charge. [R. 8]. On October 1, 2021, FCHR issued a Notice of Dismissal. [R. 14]. Wilson filed a Notice of Appeal on October 29, 2021.

II. STATEMENT OF FACTS

Wilson was employed as the Executive Director of the FCHRuntil October 15, 2020, when her employment was terminated. [R. 4]. On December 14, 2020, Wilson submitted a WBA Charge of Discrimination (“Charge”) to the FCHR. In her Charge, Wilson alleged that she was subjected to “adverse actions” by FCHR after engaging in “protected conduct” and that the adverse actions were causally related to her protected conduct. [R. 4-6].

A. December 14, 2020, Charge

In her December 14, 2020, Charge, Wilson alleged that she engaged in protected conduct and as a result suffered “numerous cognizable adverse actions” including termination of her employment. [R. 4].

Wilson's Charge included a narrative describing disagreements she had with two FCHR Commissioners: Jay Pichard and Latanya Peterson. [R. 4].

In her Charge Wilson wrote that Pichard “was antagonistic because his business had been the target of charges of discrimination to FCHR that he thought should have been processed differently.” [R. 4]. Wilson explained that Pichard believed the FCHR should dismiss certain “frivolous” charges and that she “explained that the procedural changes would require the legislature amending the statute and, following that, the agency amending the pertinent sections of the Florida Administrative Code.” [R. 5]. Wilson further wrote that Pichard sought information from FCHR’s Human Resources Director that he “could spin in support of his objective of firing Ms. Wilson” and that she objected to that conduct. [R. 5].

Wilson further alleged in her Charge that the United States Department of Housing and Urban Development (HUD) issued FCHR a Performance Improvement Plan that it could not meet because of a lack of staff, and that the FCHR was unsuccessful in efforts to obtain additional legislative funding to create new positions. [R. 5]. According to Wilson, Pichard invited the HUD Region IV Director, who had proposed suspending FCHR’s HUD funding, to attend an FCHR committee meeting without notifying her, and the HUD Director stated he wanted Wilson and two other FCHR staff removed. Wilson wrote that a panel of the Commission voted “no confidence” in her and then at the September 2020 Commission meeting sought to have the full Commission affirm the vote but was unsuccessful. At that meeting, the Commission, which had not evaluated Wilson in three years despite her requests, adopted standards for evaluating Wilson. [R. 6]. A “no confidence” vote was then taken at the October 2020 meeting, even though it was not on the agenda, and Wilson’s employment was terminated. [R. 6].

According to her Charge, Wilson engaged in protected conduct when she “objected” to Mr. Prichard seeking information about her from a subordinate; when she “protested” not being evaluated; and when she “objected” to commissioners having conversations about agency business against the advice of counsel, to commissioners giving directions to staff, to a commissioner calling for an employee to be fired, and to being retaliated against for taking FMLA leave. [R. 6].

B. May 7, 2021, Notice of Right to Amend

On May 7, 2021, FCHR issued Wilson a Notice of Right to Amend because her “complaint [did] not contain a sufficiently clear and concise statement of the facts, including pertinent dates, constituting retaliation under the Whistle-blower’s Act.” [R. 7, 13].

On May 13 and 21, 2021, Wilson asked for clarification of the Notice of Right to Amend [R. 10-12], and on May 25, 2021, FCHR responded “the alleged protected activity is not clear from the complaint. Please provide a clear and concise statement that contains a description of the alleged protected activity, including the pertinent date.” [R. 10].

C. May 28, 2021, Amended Charge

Wilson submitted an Amended Charge on May 28, 2021. [R. 8-9]. Wilson wrote that during an August 18, 2020, Commission panel meeting she engaged in protected conduct when she told the panel “she believed it was unfair to expect staff to meet performance measures without having the necessary staff and resources” and she “would not direct the staff to close an investigation prematurely just for the sake of meeting a 180-day standard.” [R. 8]. Wilson wrote that “other protected conduct occurred on July 20, 2020,” when she “called for compliance with the Governance Policy which called for establishment of performance measures.” [R. 9].

D. Notice of Dismissal

On October 1, 2021, FCHR issued a Notice of Dismissal explaining that it “previously notified [Wilson] that the information contained within [her] complaint was insufficient for the Commission to begin its investigation,” that “[she was] provided an opportunity to address the insufficiencies within 60 days,” and that “the Commission does not have authority to investigate, and the complaint will be dismissed.” [R. 14]. This appeal followed.

SUMMARY OF ARGUMENT

The FCHR has been delegated a gate-keeping function by the legislature which includes determining whether a claimant can sufficiently state a claim under the Florida Whistle-blower’s Act (WBA). The WBA sets out what constitutes a protected disclosure and the FCHR permissibly requires a protected disclosure to be described in a charge in order to open an investigation. Florida law supports the ability of the FCHR to dismiss charges that do not include such a description. In this case, Wilson did not describe a protected disclosure, despite being given an opportunity to amend, and on appeal she has not shown that her Charge or Amended Charge sufficiently described any report or disclosure that met the requirements of the WBA.

The law did not require FCHR to disqualify itself from handling Wilson’s Charge, and Wilson’s due process rights were met because she was afforded the opportunity to amend her Charge to clearly identify a protected disclosure, and this appellate process to explain how the FCHR overlooked her description of a protected disclosure in her Amended Charge. Because the FCHR properly handled and dismissed Wilson’s Charge, her arguments that she was denied due process, access to court, and to a jury trial are unavailing.

The FCHR’s dismissal of Wilson’s Charge should be affirmed.

STANDARD OF REVIEW

The standard of review when a court reviews an administrative action is de novo. Art. V, 21, Fla. Const.

ARGUMENT
I. FCHR PROPERLY DISMISSED WILSON’S CHARGE BECAUSE IT DID NOT INVOKE THE AGENCY’S INVESTIGATIVE AUTHORITY UNDER THE WBA

A. The WBA sets forth a pleading requirement for WBA charges

Florida law provides that employees and former employees who have been subjected to retaliation by an employer after making a disclosure protected by the WBA may “file a complaint alleging a prohibit personnel action” ... with “the Office of the Chief Inspector General in the Executive Office of the Governor or the Florida Commission on Human Relations.” § 112.31895(1)(a), Fla. Stat.

The form that a disclosure must take to invoke WBA protection is governed by section 112.3187(7), Florida Statutes. This section states that in order to be protected, a disclosure must be written and signed, unless it is in the form of participating in an agency investigation; refusing to participate in an adverse action pursuant to the WBA; submitting a report through the Medicaid Whistleblower’s hotline; or made to the Chief Inspector General, an agency inspector general, or the FCHR.

The substance requirement for a WBA disclosure is set forth at section 112.3187(5), Florida Statutes, which provides that protected disclosures include reports of

(a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public’s health, safety, or welfare[, or]

(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.

When the FCHR finds that a charge does not adequately describe either a protected disclosure or a prohibited personnel action, it “should expressly address a complainant's right to amend,” and provide the complainant “a chance to remedy any technical deficiencies in their otherwise potentially valid complaints.” Johnson v. Florida Dept. of Corr., 190 So. 3d 259, 261 (Fla. 1st DCA 2016).

B. The FCHR is authorized to dismiss a charge that does not describe a disclosure of the nature set out in § 112.3187(5), Fla. Stat.

This Court has repeatedly held that the FCHR has no statutory authority to investigate and may dismiss a charge if it “does not meet the prima facie elements necessary to initiate the operation of the Act.” Stanton v. Florida Dept. of Health, 129 So. 3d 1083, 1084 (Fla. 1st DCA 2013) (affirming FCHR’s dismissal of a Charge because it did not describe a disclosure that would trigger the protection of the WBA); Tillery v. Florida Dept. of Juvenile Justice, 104 So. 3d 1253, 1255 (Fla. 1st DCA 2013) (affirming FCHR’s dismissal of a charge because it did not assert “when or to whom” a disclosure was made); Caldwell v. Florida Dept. of Elder Affairs, 121 So. 3d 1062, 1063 (Fla. 1st DCA 2013) (affirming dismissal of charge by FCHR because allegations in the charge that the complainant contacted a federal investigator “to alert him to the condition of the Ombudsman program and the gross misfeasance and malfeasance that were occurring within” were conclusory and did not describe any act or suspected act of misfeasance or malfeasance”).

It is well settled that FCHR may dismiss, and is not required to investigate, a charge that does not describe a protected disclosure as defined by the WBA.

C. The FCHR properly dismissed Wilson’s Charge

Wilson argues that “FCHR violated its statutory mandate in this case by dismissing on jurisdictional grounds a charge that was both thorough and well within FCHR’s subject matter jurisdiction.” [Initial Brief, p 11]. Wilson further suggests that her charge “carefully described protected conduct occurring on specified dates in violation of clearly identified statutes and rules,” unlike those in the “trilogy of 2013 cases discussed above.” [Initial Brief, p. 16].

The FCHR disagrees. Wilson in her Initial Brief did not identify this “carefully described protected conduct.” Indeed, the Charge offers little more than a rambling backstory of the conflicts between Wilson and the Commissioners, troubles within the agency, and Wilson’s disagreements with the actions and votes of the Commissioners. Her references to policy violations were vague, and her purported whistle-blower disclosures were merely “requests” for a performance evaluation and “objections” to Commissioner actions, which do not amount to disclosures or reports as defined in Florida Statutes section 112.3187(7).

This Court has recently examined what a protected disclosure looks like under the WBA. For example, in Nazzal v. Florida Dep’t of Corr., 267 So. 3d 1094, 1097 (Fla. 1st DCA 2019), review denied, 2019 WL 6248307 (Fla. Nov. 22, 2019) this Court reiterated that to be protected under the WBA, a report or disclosure must demonstrate that a law, rule, or regulation has been violated, presenting a substantial and specific danger to the public’s health, safety, or welfare; or describe an action of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty by an agency employee or independent contractor. In Nazzal, an employee’s alleged protected disclosure was an incident report identifying three acts of unprofessional conduct by her supervisor and claiming that she was discriminated against in violation of the Civil Rights Act, but not elaborating on how or by whom she was treated disparately. This Court found the report in Nazzal insufficient to invoke the protection of the WBA.

Similarly, in Pickford v. Taylor County Sch. Dist., 298 So. 3d 707, 711 (Fla. 1st DCA 2020), this Court found that a substitute teacher’s letter to his principal asserting that his pay should be that of a fulltime teacher was insufficient to invoke the protection of the WBA because it did not identify any violation of law, rule, or policy that would present a “substantial and specific danger to the public’s health, safety, or welfare,” or identify any act of misfeasance, malfeasance, or other gross conduct.

Even more recently, this Court found that an employee’s written rebuttal to a disciplinary action did not invoke the protection of the WBA because it did not identify any violations of any law or policy or any incident of misfeasance, malfeasance, or gross misconduct. Washington v. Florida Dep’t of Revenue, 2022 WL 1101346, at *6 (Fla. 1st DCA Apr. 13, 2022).

That Nazzal, Pickford, and Washington were appeals of summary judgments does not change the analysis. The trial court in those cases applied sections 112.3187(5) and (7) to the Plaintiffs’ disclosures and found they did not identify a violation of law, rule, or regulation creating a substantial and specific danger to the public’s health, safety, or welfare; or any incident of misfeasance, malfeasance, or gross misconduct. While Nazzal, Pickford, and Washington each submitted some type of written report or complaint, the information therein did not meet the substantive requirements of the WBA.

As in the authorities cited above, Wilson’s Charge did not describe a protected disclosure. She was given the opportunity to amend her Charge, and she did. Yet notwithstanding FCHR’s explanation that her original Charge did not clearly describe protected activity, her Amended Charge offered little more, alleging only that she “declared” the unfairness of expecting staff to meet performance measures without inadequate staffing, “made it clear” she would not direct staff to close investigations prematurely in order to meet FCHR’s 180-day standard, and “called for” establishment of performance measures in compliance with the Governance Policy. Wilson did not, in her Amended Charge, identify a single violation of law, rule, or regulation that created a substantial and specific danger to the public’s health, safety, or welfare. Nor did she identify any incident of misfeasance, malfeasance, or gross misconduct. Wilson has pointed to no legal authority to suggest that the statements she described in her Charge or Amended Charge met the WBA’s definition of protected disclosure.

Accordingly, FCHR’s dismissal of Wilson’s Charge was proper, and the decision below should be affirmed.

II. THE FCHR DID NOT HAVE AN UNWAIVABLE DUTY OF DISQUALIFICATION BECAUSE IT IS THE ONLY ENTITY AUTHORIZED BY THE WBA TO INVESTIGATE WHETHER A PROHIBITED PERSONNEL ACTION HAS OCCURRED IN RETALIATION FOR A PROTECTED DISCLOSURE

Wilson next argues that “FCHR had no authority to keep the charge” and was required to “refer this case to the Attorney General, any of the state attorneys in Florida, the OIG, or any other agency with the investigative resources to handle the conflict overflow. [Initial Brief, p. 26]. Wilson is mistaken.

The WBA accords investigative power to the FCHR “to determine whether reasonable grounds exist to believe that a prohibited action or a pattern of prohibited action has occurred, is occurring, or is to be taken.” § 112.31895(2)(a), Fla. Stat. The statute does not grant this power to any other entity or agency.

While Wilson argues that the Office of the Chief Inspector General (CIG) is “an alternative processing agency for claims,” she is mistaken. Florida Statutes section 112.3189 describes what the CIG or an agency inspector general (IG) is required to do in response to receiving a whistle-blower report. They must determine (1) whether the conduct described is a violation of law, rule, or regulation or an act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty; (2) whether the whistle-blower is an employee of a state agency, and (3) whether the report demonstrates reasonable cause that the agency employee actually “violated any federal, state, or local law, rule, or regulation, thereby creating and presenting a substantial and specific danger to the public’s health, safety, or welfare, or has committed an act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty.” § 112.3189(3), Fla. Stat. If the answer to any of these three inquiries is no, the CIG or IG must notify the complainant. § 112.3189(4), Fla. Stat. If the answer to all three inquiries is yes, the CIG or IG must conduct an investigation, unless otherwise unnecessary based on a list of factors recited in the statute. § 112.3189(5), Fla. Stat.

However, section 112.3189 does not provide that the CIG or an IG is to investigate whether a prohibited personnel action has taken place in retaliation for making a protected disclosure. That authority is reserved to the FCHR as provided in Florida Statutes section 112.31895, which provides that a report of a retaliatory action in violation of the WBA may be made to either the FCHR or the CIG, but that the fact finding, or investigation, shall be conducted by the FCHR. § 112.31895, Fla. Stat. This statute does not give the CIG, or any entity other than the FCHR, any authority to investigate whether a prohibited personnel action has occurred in retaliation for a protected disclosure.

In other words, while the CIG or an IG may investigate the underlying disclosure that is described in a whistle-blower charge, only FCHR has the authority to investigate the alleged prohibited personnel action taken in retaliation for making the disclosure.

Wilson cites no authority in support of her argument that another entity should have investigated her Charge. Moreover, the authority to investigate a charge, or forward it elsewhere for investigation, presupposes that a charge adequately describes a prohibited personnel action taken in retaliation for a protected report. As described above, Wilson’s Charge did not. The FCHR is not required to investigate a charge that does not sufficiently describe protected activity and is likewise not required to forward it elsewhere for investigation. Moreover, though not a part of the record, FCHR did hire outside counsel to review Wilson’s Charge and provide a legal analysis of its sufficiency.

Accordingly, FCHR did not have an unwaivable duty to disqualify itself and the decision below should be affirmed.

III. THE FCHR’S DISMISSAL OF WILSON’S CHARGE DID NOT VIOLATE THE CONSTITUTIONAL SEPARATION OF POWERS BECAUSE IT PROPERTLY EXERCISED A QUASIJUDICIAL POWER DELEGATED TO IT BY THE FLORIDA LEGISLATURE

Wilson next argues on appeal that FCHR does not have “the authority to dispose completely of a case under the whistleblower act.” [Initial Brief, p. 28].

In support of her separation of powers argument, Wilson relies upon Broward Cnty. v. La Rosa, 505 So. 2d 422 (Fla. 1987). Broward is inapposite. The question there was whether “a county ordinance may constitutionally empower a local administrative agency to award actual damages, including compensation for humiliation and embarrassment, to victims of race discrimination.” Id. at 422. The question was not whether administrative agencies can serve any gate-keeping function at all. Or even whether an administrative agency can award “quantifiable damages” like back pay. Id. at fn5. The issue was narrow, and the holding of Broward does not apply to this case.

Moreover, though Wilson argues that FCHR has “trespassed on the power of the courts” [Initial Brief, p. 28], the “separation of powers does not mean that every governmental activity is classified as belonging exclusively to a single branch of government.” Simms v. State, Dept. of Health & Rehab. Services, 641 So. 2d 957, 960 (Fla. 3d DCA 1994). Indeed, the Florida Constitution explicitly provides that “[c]ommissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices.” Art. V, § 1, Fla. Const. The Florida Supreme Court in Broward explained that “the legislature can create administrative agencies with quasi-judicial powers,” so long as they do not “exercise powers that are fundamentally judicial in nature.” Broward, 505 So. 2d at 423.

In dismissing Wilson’s Charge, FCHR exercised only those powers that have been delegated to it by the Florida Legislature and the decision below should be affirmed.

IV. FCHR’S DISMISSAL OF WILSON’S CHARGE DID NOT VIOLATE WILSON’S RIGHTS OF DUE PROCESS, ACCESS TO COURTS, OR TRIAL BY JURY

A. Wilson was afforded due process

Wilson argues that FCHR’s ability to dismiss a charge and prevent an employee from filing a WBA claim in state court violates her rights of due process. [Initial Brief, p. 30].

In support of her due process argument, Wilson relies upon Aldana v. Holub, 381 So. 2d 231 (Fla. 1980), in which the medical mediation act was held unconstitutional. However, the holding in Aldana was not based on the mere fact that the act served as a gatekeeper to a civil action, but “because application of its rigid jurisdictional periods has proven arbitrary and capricious in operation, yet the act cannot be remedied by enlarging the jurisdictional periods or permitting continuances or extensions of time, for to do so would constitute a denial of access to the courts.” Aldana, 381 So. 2d at 238.

Wilson did not explain how requiring a claimant to factually describe both a protected disclosure and a prohibited personnel action in a charge is arbitrary or capricious. Moreover, the deficiency in Wilson’s Charge was explained and she was given the opportunity to amend. If Wilson indeed disclosed a violation of law, rule, or regulation in accordance with the WBA, she should have identified in her Charge what law, rule, or regulation was at issue, explained how it was violated, and described how she disclosed it. She did not. Instead, she wrote that she told the Commission that its performance measures were unfair, asked for the establishment of performance measures, and asked for an explanation of her evaluation process.

Though she argues repeatedly that FCHR “killed,” “annihilated,” and “strangled” her case, Wilson was afforded this appellate review process as yet another chance to explain how her Charge or Amended Charge were sufficient. She has not. Wilson was afforded due process and the decision below should be affirmed.

B. Wilson was not unlawfully denied access to court

Wilson similarly argues that the ability of FCHR to dismiss a Charge and prevent an employee from filing a WBA claim in court violates her right to access the courts. She relies on Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973), in which the Florida Supreme Court held unconstitutional a law abolishing tort actions for property damage claims arising from auto accidents and requiring injured persons to seek compensation from their auto insurer.

Here, though, Wilson’s right to sue FCHR for her dismissal was not abolished. Other causes of action were available to her, for example she could have filed a § 1983 claim for First Amendment retaliation, a claim which has no administrative prerequisite. And to the extent that she obliquely referenced FMLA retaliation in her Charge, Wilson could have filed a retaliation claim under the Family Medical Leave Act.

Wilson was given an opportunity to amend her Charge and she nevertheless failed to sufficiently describe protected activity. Though her Charge was dismissed, she still had other avenues to court. Accordingly, FCHR’s dismissal of Wilson’s Charge did not unlawfully deprive her of access to court and the decision below should be affirmed.

C. The right to a jury trial is not absolute

Wilson next argues that because the Florida Constitution provides “the right of trial by jury,” FCHR’s dismissal of her Charge violated her Constitutional rights. [Initial Brief, p. 29-33].

By Wilson’s logic, every trial court that dismisses a complaint that fails to plead a WBA claim, and every judge who grants summary judgment for an employer because an employee fails to show a prima facie case of retaliation, violates a litigant’s Constitutional right to a jury trial. But The Eleventh Circuit has held that the grant of summary judgment is not a deprivation of the right to a jury trial. See Jackson v. Hartford Life & Acc. Ins. Co., 543 Fed. Appx. 977, 979 (11th Cir. 2013). Likewise, the dismissal of an action before trial does not usurp the role of a jury. Yeyille v. Miami Dade Cnty. Pub. Sch., 643 Fed. Appx. 882, 885 (11th Cir. 2016).

Wilson’s Charge was properly dismissed because it did not state a claim and the decision below should be affirmed.

CONCLUSION

The FCHR properly found that Wilson’s charge did not adequately describe a protected disclosure. FCHR then properly exercised its authority to dismiss the charge after affording Wilson an opportunity to amend. Wilson has not identified any error in FCHR’s action. Accordingly, this Court should affirm the FCHR’s dismissal of Wilson’s Charge.

Respectfully submitted,

/s/ Jamie Ito
Jamie Ito
Florida Bar No. 13553
Ito Law, PLLC
411 Wilson Ave.
Tallahassee, FL 32303
Jamie@itolaw.net

Counsel for Appellee

CERTIFICATE OF COMPLIANCE

I certify that this brief is prepared in Bookman Old Style 14- point font and contains 4,764 words.

CERTIFICATE OF SERVICE

I certify that a copy of this brief was filed with the Florida Courts E-Portal which furnished a copy to all parties of record on June 3, 2022.

	/s/ Jamie Ito
	Jamie Ito

Wilson v FCHR, et al
© December 2020

Plaintiff	Defendants
Michelle Wilson, FCHR Director (2011 - 2020)	• Florida Commission on Human Relations, The • Florida Department of Financial Services, The • Cheyanne Costilla, FCHR Director (2020 - now)

ITEM 204 | REPLY BRIEF

********************************
L.T. No.: 202128179
Case No.: 1D21-3417
********************************

********************************
IN THE DISTRICT COURT OF APPEAL
STATE OF FLORIDA
FIRST DISTRICT

********************************

***********************************

MICHELLE WILSON
Appellant,

v.

FLORIDA COMMISSION ON HUMAN RELATIONS,
Appellee.

***********************************

Appeal of a Final Order of the Florida Commission on Human Relations

********************************

APPELLANT’S REPLY BRIEF

********************************

Richard E. Johnson
Florida Bar No. 858323
Law Offices of Richard E. Johnson
314 West Jefferson Street
Tallahassee, Florida 32301
(850) 425-1997
rick@rej-law.com

TABLE OF AUTHORITIES

CASES
Abadi v. Walt Disney World Parks & Resorts,-- So.3d ---- , 2022 WL 1652782 (Fla. 1st DCA 2022)		5
Aldana v. Holub,381 So. 2d 231 (Fla. 1980)		30,31,32
Caldwell v. Florida Dept. Of Elder Affairs,121 So.3d 1062, 1063 (Fla. 1st DCA 2013)		14 and passim
Holly v. Auld,450 So. 2d 217, 219 (Fla. 1984)		8
Johnson v. Florida Dept. of Corrections,190 So.3d 259 (Fla. 1st DCA 2016)		2
Mena v. Lifemark Hospitals of Florida,Inc., 50 So.3d 759,761 (Fla. 1st DCA 2010)		21
Mitchell v. Palm Beach County School Board,127 So. 3d 707 (Fla. 4th DCA 2013)		21
O’Neal v. Florida A & M University,989 So.2d 6 (Fla. 1st DCA 2008)		29
Schnebly v. G4S Youth Services,LLC, 98 So.3d 1270 (Fla. 1st DCA 2012)		21
Smith v. Lockheed-Martin,644 F.3d 1321, 1328 (11th Cir.2011)		5
Swierkiewicz v. Sorema NA,534 US 506 (2002)		5
Tillery v. Fla. Dep't of Juvenile Justice,104 So.3d 1253, 1255 (Fla. 1st DCA 2013)		13 and passim
Stanton v. Florida Department of Health,129 So.3d 1083, 1084 (Fla. 1st DCA 2013)		14 and passim

Constitution and Statutes (2021 unless otherwise indicated)
112.3187		8
112.3187–31895		3
112.3187(8)(a)		8
112.31895(1)(a)		8
216.011		8
760.11		1

Other Authorities
60Y-5.002		9
60Y-5.001(6)(b)		6
60Y-11.005		6

STATEMENT OF THE CASE

The principal reason FCHR fired Michelle Wilson was her refusal to violate § 760.11(3), Florida Statutes, which requires that, "the Commission shall investigate the allegations in the complaint," and that, "the Commission shall determine if there is reasonable cause to believe that discriminatory practice has occurred...." FCHR twists and turns every way to pretend that is not in the charge, though it is the first thing in the charge after some introductory language. This was also the centerpiece of the Amended Charge, along with Wilson’s complaints of other violations that would also qualify. She disobeyed illegal instructions to dismiss charges without investigation. That cost her job.

As shown in the Initial Brief, at 5, FCHR could not decide quite why the original charge needed to be amended. FCHR’s first email said the charge lacked something on retaliation, while the next explanation faulted the charge for an omission on protected conduct. Efforts to pin FCHR down on what was lacking in the charge were fruitless. The agency just seemed to be looking for an excuse not to investigate. This Court, in Johnson v. Florida Dept. of Corrections, 190 So.3d 259 (Fla. 1st DCA 2016), faulted FCHR for a dismissal notice that “fails to provide a specific reason for dismissing Appellant's complaint; instead it vaguely states ‘[c]onsidering all information received, the Commission does not have authority to investigate.’” Id., 262. Given the complete finality of this refusal to investigate, due process demands a clear and detailed explanation of what is missing that would suffice. That is absent here.

ARGUMENT
I. FCHR Had A Duty to Investigate the Charge and Make a Determination

II. FCHR Had an Unwaivable Duty of Disqualification

FCHR failed to address the two alternative tribunals that could have processed Wilson’s charge. First, the legislature provided for the Chief Inspector General to serve as an alternative processing agency for claims.

If a disclosure under s. 112.3187 includes or results in alleged retaliation by an employer, the employee or former employee of, or applicant for employment with, a state agency, as defined in s. 216.011, that is so affected may file a complaint alleging a prohibited personnel action, which complaint must be made by filing a written complaint with the Office of the Chief Inspector General in the Executive Office of the Governor or the Florida Commission on Human Relations, no later than 60 days after the prohibited personnel action.

§112.31895(1)(a), Florida Statutes (2020) (emphasis added). FCHR in its answer Brief left that statutory provision unaddressed, opting instead on a tortuous excursion through other statutes, extracting questionable conclusions to the effect that the legislature did not really mean what it said when the Office of the Chief Inspector General could process whistleblower complaints. But the statute, quoted immediately above, is not ambiguous in the least and thus must be obeyed without efforts at interpretation. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (“Courts of this state are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.”).

FCHR did not even mention the reliance of the Initial Brief on Florida Administrative Code, Rule 60Y-5.002, “Agreements of Referral of Complaints.” The Rule provides details of which charges may be outsourced and how it is to be done. Through this Rule, FCHR outsourced investigation of complaints to the office of the Attorney General.

FCHR had no authority to keep the charge and, other than the instant appeal, Appellant had no means of divesting FCHR of jurisdiction based on conflict. On remand, FCHR should be compelled to issue a prompt determination, allowing the case to proceed to circuit court.

III. FCHR’s Dismissal Violates Constitutional Separation of Powers

The Initial Brief showed that the Legislature never granted, and never could have granted, FCHR the authority to dispose completely of a case under the whistleblower act. Only a court has jurisdiction to make a final determination of whether a claimant is entitled to the liquidated damages remedy the statute grants.

Thus FCHR trespassed on the power of the Legislature in effectively amending the language of a statute to arrogate to itself the power to annihilate administratively cases which the statute allowed to go to circuit court. FCHR also trespassed on the power of the courts to make the determination of whether a claimant/plaintiff will get unliquidated damages.

One searches the Answer Brief in vain for something that fairly meets or engages either of these separation-of-powers trespasses.

IV. FCHR’s Failure to Issue a Determination Violates Appellant’s Rights of Due Process, Access to Courts, and Trial by Jury

FCHR distinguishes the facts of Aldana v. Holub, 381 So. 2d 231 (Fla. 1980), from the facts of this case. But the differences are not material. Appellant cited the case for the legal principles it articulates, not its facts. FCHR completely ignores the principles. These principles are the constitutional bar on onerous pre-suit procedures that impair access to court and the due process bar on a randomness and lack of standards that is intrinsically unfair and arbitrary and capricious in its application,

Also, plaintiffs under the whistleblower act are entitled to a trial by jury. O’Neal v. Florida A & M University, 989 So.2d 6 (Fla. 1st DCA 2008). FCHR may not prevent a case from getting to a court that has the power to conduct a jury trial. It is irrelevant that the circuit court might not let a case get to a jury. The point is that, unlike FCHR, the circuit court has the power to conduct a jury trial and the power to dismiss a case before it goes to a jury – facts known to the Legislature when it passed the law allowing liquidated damages to whistleblower plaintiffs.

CONCLUSION

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Brief was served to all counsel of record this 5th day of July, 2022, through the Court’s e-service system.

	/s/ Richard E. Johnson
	Richard E. Johnson

CERTIFICATE OF COMPLIANCE

Pursuant to Fla.R.App.P. 9.210(a)(2), I hereby certify that this brief was prepared using proportionately spaced Bookman Old Style, 14 point font.

	/s/ Richard E. Johnson
	Richard E. Johnson

Plaintiff	Defendants
Michelle Wilson, FCHR Director (2011 - 2020)	• Florida Commission on Human Relations, The • Florida Department of Financial Services, The • Cheyanne Costilla, FCHR Director (2020 - now)

¹ This is the Rule for discrimination cases, but It is specifically adopted for whistleblower cases as well by Fla. Admin. Code 60Y-11.005.

ITEM 205 | OPINION (PCA)

IN THE DISTRICT COURT OF APPEAL STATE OF FLORIDA FIRST DISTRICT
MICHELLE WILSON Appellant, v. FLORIDA COMMISSION ON HUMAN RELATIONS, Appellee.	) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )	L.T. No.: 202128179 Case No.: 1D21-3417

Richard E. Johnson of Law Offices of Richard E. Johnson, Tallahassee,
for Appellant.
Jamie Ito of Ito Law, PLLC, Tallahassee,
for Appellee.

Per Curiam
AFFIRMED.

See Stanton v. Fla. Dep’t of Health, 129 So. 3d 1083 (Fla. 1st DCA 2013) (reaffirming that when a whistle-blower complaint does not meet the prima facie elements necessary to initiate operation of the Whistle-blower’s Act, the Florida Commission on Human Relations has no authority to proceed with a fact-finding investigation); Washington v Fla. Dep’t of Revenue, 337 So.3d 502 (Fla. 1st DCA 2022) (holding that a protected disclosure must be a written and signed complaint in order to trigger the protections of the Whistle-blower’s Act when a complainant has not claimed to have participated in an investigation or to have made a complaint through a hot-line).

Osterhaus, Bilbrey, and Nordby, JJ., concur.

Plaintiff	Defendants
Michelle Wilson, FCHR Director (2011 - 2020)	• Florida Commission on Human Relations, The • Florida Department of Financial Services, The • Cheyanne Costilla, FCHR Director (2020 - now)

ITEM 206 | MOTION FOR REHEARING

********************************
L.T. No.: 202128179
Case No.: 1D21-3417
********************************

********************************
IN THE DISTRICT COURT OF APPEAL
STATE OF FLORIDA
FIRST DISTRICT

********************************

***********************************

MICHELLE WILSON
Appellant,

v.

FLORIDA COMMISSION ON HUMAN RELATIONS,
Appellee.

***********************************

Appeal of a Final Order of the Florida Commission on Human Relations

********************************

APPELLANT’S MOTION FOR REHEARING OR CLARIFICATION, FOR CERTIFICATION, AND FOR REHEARING EN BANC

********************************

Richard E. Johnson
Florida Bar No. 858323
Law Offices of Richard E. Johnson
314 West Jefferson Street
Tallahassee, Florida 32301
(850) 425-1997
rick@rej-law.com

APPELLANT’S MOTION FOR REHEARING OR CLARIFICATION, FOR CERTIFICATION, AND FOR REHEARING EN BANC

Appellant MICHELLE WILSON, by and through undersigned counsel and pursuant to Fla.R.App.P. 9.330 and 9.331, respectfully moves for rehearing or clarification, for certification, and for rehearing en banc.

In submitting these motions, Appellant is cognizant that such motions are not intended for routine use.

MOTION FOR REHEARING OR CLARIFICATION

This Court relied upon Stanton v. Florida Department of Health, 129 So.3d 1083 (Fla. 1st DCA 2013), one of a line of cases that appellant distinguished by pointing out that the parties in those cases had not raised, and therefore the Court had not decided, a number of constitutional issues that would have, or at least should have, mandated a different outcome had they been raised. The Court simply ignored those constitutional issues as though they had not been raised. That is a court’s prerogative, but in the slightly different context of an unwritten opinion, Fla.R.App.P. 9.330(a) speaks of a request for the Court to address an issue in writing to provide a basis for seeking Supreme Court review. Even a few words on these unaddressed issues would provide a basis for such review on a number of questions including the following:

• Separation of powers violations arise from the Florida Commission on Human Relations (FCHR) arrogating to itself the legislative power to change the words of a statute to excuse itself from the legislative mandate to investigate and issue a determination in every whistleblower case and arrogating to itself the judicial power to make final disposition of a case involving a right to a jury trial and a possibility of unliquidated damages;

• Federal and state due process violations arise from FCHR’s breach of the long-standing constitutional principle that, “No man is allowed to be a judge in his own cause,” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009), when FCHR undertook review of its own conduct in a firing it had performed, despite Appellant’s objection to that conflict of interest.

• Further due process violations arise from the fact that FCHR’s refusal to obey its statutory mandate to investigate and make a determination on every case is capricious and without any rules, policies, or standards at all. Whatever moves the agency at the moment or reduces its workload is the practice.

• Right-to-trial-by-jury violations arise from FCHR’s final and dispositive determination administratively of a cause of action on which Appellant has a right to trial by jury.

• Federal and state access-to-court violations arise from FCHR imposing insuperable burdens on a person seeking to work through the statutory pre-requisites to litigation, such that access to any remedy is extinguished with no grant of an alternate remedy.

An additional due-process concern is embedded in the Catch-22 arising from the Court’s citation to Washington v. Florida Department of Revenue, 337 So.3d 502 (Fla 1st DCA 2022), concerning a requirement for a written and signed complaint. Like most persons fired from state employment, Appellant was not allowed to gather documents to take home. Hence, she was unable to collect her many documents that fit the stated description. She had no idea that Appellee, who had all these documents, would cite her failure to cite those papers as one of the excuses not to conduct the investigation that would force production of the disputed documents. Appellant’s whistleblower charge document and her amended charge are laden with references to her numerous complaints and the context unmistakably shows that many of them had to be written, even if that word is not used. Appellant had no idea that she would be denied the mandatory investigation that would yield the documents and then be faulted for not having the documents handy to assist in writing the charge. One does not prepare for a stratagem of this sort. In any case, this Court is required to draw inferences in favor of the charging party, including the inference that a complaint lacking express description of its written or oral status is assumed to be written. FCHR identified no such alleged defect in its call for amendment.

WHEREFORE Appellant respectfully moves for rehearing and clarification.

II. MOTION FOR CERTIFICATION
Question of Great Public Importance

This case deals with a question of great public importance. The Florida Supreme Court has noted the intent of the legislature to give the whistleblower statute the broadest scope to accomplish its remedial purpose to combat waste, fraud, and corruption in government. Irven v. Dep't of Health & Rehab. Servs., 790 So.2d 403, 406 (Fla.2001) (“The statute could not have been more broadly worded.”) No Florida court has ever considered the “inherent” power of FCHR to dispose of a whistleblower charge without investigation or determination in light of the constitutional implications of that “inherent” power. Appellant therefore respectfully moves for certification of the following question:

WHETHER THE PROVISIONS OF THE CONSTITUTIONS OF THE U.S. AND FLORIDA REGARDING SEPARATION OF POWERS, DUE PROCESS, ACCESS TO COURTS, AND TRIAL BY JURY PERMIT THE FLORIDA COMMISSION ON HUMAN RELATIONS TO EXERCISE AN “INHERENT” POWER TO MAKE EXCEPTIONS TO THE STATUTORY MANDATE THAT FCHR INVESTIGATE AND MAKE A DETERMINATION IN EVERY CASE.

WHEREFORE Appellant respectfully requests that this Court certify to the Supreme Court as a question of great public importance the issue stated above.

III. MOTION FOR REHEARING EN BANC
Issue of Great Public Importance

As Florida experiences decades of one-party rule, accountability to citizens and taxpayers becomes more attenuated and difficult as checks and balances shrink. The whistleblower statute is a key mechanism the legislature provided those citizens and taxpayers to preserve and protect government accountability, without regard to which party is in power. The statute relies on government employees, those necessarily in a position to observe wrongdoing, to come forward and to be protected from retaliation. That legislative purpose is undermined when the very government the whistleblower law seeks to hold accountable can convert its ministerial processing role into an adjudicative role that usurps the functions of both the legislature and the courts by killing in utero whistleblower complaints that the legislature has destined for court adjudication. This is a question of great public importance.

Maintenance of Uniformity

The panel opinion cannot be reconciled with this Court’s holding in Johnson v. Florida Dept. of Corrections, 190 So.3d 259 (Fla. 1st DCA 2016), a whistleblower case in which this Court faulted FCHR for a dismissal notice that “fails to provide a specific reason for dismissing Appellant's complaint; instead it vaguely states ‘[c]onsidering all information received, the Commission does not have authority to investigate.’” Id., 262. As shown in the Initial Brief, at 5, FCHR could not decide quite why the original charge needed to be amended. FCHR’s first email said the charge lacked something on retaliation, while the next explanation faulted the charge for an omission on protected conduct, with neither excuse specified. Efforts to pin FCHR down on what was lacking in the charge were fruitless. The agency just seemed to be looking for an excuse not to investigate. The panel opinion took no cognizance of this in the course of citing a failure to specify that Appellant’s complaints were written – something that could have easily been included in the amendment if needed. The notice of right to amend should not be a game of “hide the ball” in which the charging party must guess at what is lacking. FCHR never said a thing at the pre-suit stage about a failure to assert a written complaint. The uniformity of the Court’s opinions demands that Appellant go forward with her case.

A second conflict of decision with the panel opinion comes from Abadi v. Walt Disney World Parks & Resorts, 338 So.3d 1101 (Fla. 1st DCA 2022). That case disclaims the need for a prima facie case at the FCHR stage. “We simply note that a plaintiff is not required to establish a prima facie case of discrimination in the complaint, but must plead sufficient facts in the complaint to set forth a plausible claim.” Id., 1105. The panel opinion ad litem required the prima facie case that Abadi abjures. True, Abadi is a public accommodation case, not a whistleblower case. But that is not a material distinction. Abadi grounds its authority in a few generic federal cases that embody the standard sorts of due process protections that take cognizance of rights to save merits determinations for, at least, a post-court-filing time and, usually until summary judgment – certainly not at pre-suit or even at the motion-to-dismiss stage in court. See, e.g., Swierkiewicz v. Sorema NA, 534 US 506 (2002). Lack of a prima facie case becomes a ground for dismissal only at the summary judgment stage, and even then not where there is otherwise a “convincing mosaic” of evidence of liability. Smith v. Lockheed-Martin, 644 F.3d 1321, 1328 (11th Cir.2011).¹

Mena v. Lifemark Hospitals of Florida, Inc., 50 So.3d 759,761 (Fla. 1st DCA 2010), is a third case that conflicts with the panel opinion, in that it demands that FCHR do enough investigation to determine whether the subject Respondent was actually a public accommodation, i.e., perfom the duty to investigate that is the same in whistleblower claims as it is in all other claims FCHR processes.

In a fourth conflict case, Schnebly v. G4S Youth Services, LLC, 98 So.3d 1270 (Fla. 1st DCA 2012), arising under this same whistleblower statute, this Court reversed FCHR’s summary dismissal of a charge, with no investigation or determination, on the basis that a private contractor could not be covered, though the statute provides coverage in certain circumstances.²

Two of these four cases arose under the whistleblower act.

Standing in apparent conflict with the four cases discussed above is a trilogy of cases, Tillery v. Fla. Dep't of Juvenile Justice, 104 So.3d 1253, 1255 (Fla. 1st DCA 2013); Stanton v. Florida Department of Health, 129 So.3d 1083, 1084 (Fla. 1st DCA 2013); and Caldwell v. Florida Dept. Of Elder Affairs, 121 So.3d 1062, 1063 (Fla. 1st DCA 2013), that give FCHR plenipotentiary power to dispose of whistleblower claims as it sees fit, with or without investigation of determination. The wings of luck, happenstance, and whim determine the outcome a whistleblower gets in this Court after FCHR unlawfully declines to investigate her case or make a determination in it. It is past time to resolve the disparity.

The principle is the same whether FCHR is refusing to investigate a whistleblower case or an employment discrimination case or a public accommodations case or a housing discrimination case. The conflict has even worse impact where the charges are meant to be filed pro se by persons of limited education. The dereliction is most cruel in the whistleblower context, because in all other contexts, the charging party can go forward despite the inaction of FCHR. In the whistleblower context, FCHR’s dereliction works a forfeiture and aborts the whole case before it emerges from the womb of FCHR and enters its life in litigation.

WHEREFORE Appellant respectfully moves that this Court rehear en banc the matters identified above.

STATEMENT OF COUNSEL

I express a belief, based on a reasoned and studied professional judgment, that the panel decision is of exceptional importance.

I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decisions of this Court and that a consideration by the full court is necessary to maintain the uniformity of decisions in this Court: Johnson v. Florida Dept. of Corrections, 190 So.3d 259 (Fla. 1st DCA 2016); Abadi v. Walt Disney World Parks & Resorts, 338 So.3d 1101 , 2022 WL 1652782 (Fla. 1st DCA 2022); Mena v. Lifemark Hospitals of Florida, Inc., 50 So.3d 759,761 (Fla. 1st DCA 2010); Schnebly v. G4S Youth Services, LLC, 98 So.3d 1270 (Fla. 1st DCA 2012).

RELIEF SOUGHT

The Court should grant rehearing or clarification, should reverse FCHR, and mandate entry of a determination so Appellant can proceed to circuit court. Alternatively or additionally, the Court should certify the question stated to the Florida Supreme Court as a question of great public importance. Failing that, the Court should grant rehearing en banc.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Brief was served to all counsel of record, this 10th day of November, 2021, through the Court’s e-service system.

	/s/ Richard E. Johnson
	Richard E. Johnson

CERTIFICATE OF COMPLIANCE

Pursuant to Fla.R.App.P. 9.210(a)(2), I hereby certify that this brief was prepared using proportionately spaced Bookman Old Style, 14 point font.

	/s/ Richard E. Johnson
	Richard E. Johnson

Plaintiff	Defendants
Michelle Wilson, FCHR Director (2011 - 2020)	• Florida Commission on Human Relations, The • Florida Department of Financial Services, The • Cheyanne Costilla, FCHR Director (2020 - now)

¹ Florida courts adopted the Title VII retaliation prima facie case for the Florida Public Whistleblower Act:

“(1) [she] engaged in statutorily protected expression; (2) [she] suffered an adverse employment action; and (3) there is some causal relation between the two events.”

Rice-Lamar v. City of Ft. Lauderdale, 853 So.2d 1125, 1132-3 (Fla. 4th DCA 2003). A plethora of Florida courts in every circuit have used that exact language or something close to it to define a prima facie case under the Act. Not a one has included a word about a requirement that protected expression be written. Where that comes up it is after discovery and certainly not at the pre-suit stage. FCHR did not make such a claim in its dismissal, but the panel opinion apparently assumes it must have been in the mind of the FCHR actors back then. It is error, whatever its provenance.

² Though not on point for en banc maintenance of uniformity, a sister court rejected FCHR's refusal to investigate in the discrimination context in Mitchell v. Palm Beach County School Board, 127 So. 3d 707 (Fla. 4th DCA 2013).

Congratulations! You're now booked up on this chapter's court filings which reveal the FCHR's corruptions (by (i) pressuring staff for predetermined outcomes; (ii) adjudicating itself; (iii) obtructing cases; and much more)!

Keep this in mind while you litigate your civil rights case in Florida. Also, keep in mind the FCHR's statutory ability to accept bribes.

Plus - at all times - keep the 7th Amendment of the US Constitution (your right to a trial-by-jury) in mind.

As always, please get the justice you deserve.

Sincerely,

www.TextBookDiscrimination.com

	A Judge's Perjury
	A Judge's Perjury
	Audio: Drop the Steal
	Breakdown: Drop the Steal
	Citations
	Glossary: Administrative Agency
	How-To: Adjudicate §1983
	How-To: Appeal
	How-To: Constitutionality
	How-To: Cover Sheet (FL)
	How-To: File Suit (Federal)
	How-To: Opening Brief
	How-To: Reply Brief
	How-To: Dismiss (Response)
	Info: FCHR Bribery
	Info: FCHR Process
	Info: FCHR Discrimination
	Info: FCHR Obstructions
	Survey
	Template: Complaint Form (WBL)

TABLE OF CONTENTS		i
TABLE OF CITATIONS		ii
STATEMENT OF CASE AND FACTS		1
SUMMARY OF ARGUMENT		6
STANDARD OF REVIEW		9
ARGUMENT		11
I. FCHR Had A Duty to Investigate the Charge and Make a Determination		11
II. FCHR Had an Unwaivable Duty of Disqualification		23
III. FCHR's Dismissal Violates Constitutional Separation of Powers		27
IV. FCHR's Failure to Issue a Determination Violates Appellant's Rights of Due Process, Access to Courts, and Trial by Jury		29
CONCLUSION		33
CERTIFICATE OF SERVICE		35
CERTIFICATE OF COMPLIANCE		35

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FCHR CORRUPTIONMichelle Wilson v. The Florida Commission on Human RelationsChapter 2: First Appeal

All Pertinent Documents

ITEM 201 | NOTICE OF APPEAL

NOTICE OF APPEAL

CERTIFICATE OF SERVICE

ITEM 202 | INITIAL BRIEF

Appeal of a Final Order of the Florida Commission on Human Relations

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

STANDARD OF REVIEW

ARGUMENTI. FCHR Had A Duty to Investigate the Charge and Make a Determination

II. FCHR Had an Unwaivable Duty of Disqualification

III. FCHR’s Dismissal Violates Constitutional Separation of Powers

IV. FCHR’s Failure to Issue a Determination Violates Appellant’s Rights of Due Process, Access to Courts, and Trial by Jury

CONCLUSION

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

ITEM 203 | ANSWER BRIEF

ON APPEAL FROM A FINAL ORDER OF THE FLORIDA COMMISSION ON HUMAN RELATIONS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASEI. COURSE OF PROCEEDINGS AND DISPOSITION BELOW

II. STATEMENT OF FACTS

A. December 14, 2020, Charge

B. May 7, 2021, Notice of Right to Amend

C. May 28, 2021, Amended Charge

D. Notice of Dismissal

SUMMARY OF ARGUMENT

STANDARD OF REVIEW

ARGUMENTI. FCHR PROPERLY DISMISSED WILSON’S CHARGE BECAUSE IT DID NOT INVOKE THE AGENCY’S INVESTIGATIVE AUTHORITY UNDER THE WBA

A. The WBA sets forth a pleading requirement for WBA charges

B. The FCHR is authorized to dismiss a charge that does not describe a disclosure of the nature set out in § 112.3187(5), Fla. Stat.

C. The FCHR properly dismissed Wilson’s Charge

II. THE FCHR DID NOT HAVE AN UNWAIVABLE DUTY OF DISQUALIFICATION BECAUSE IT IS THE ONLY ENTITY AUTHORIZED BY THE WBA TO INVESTIGATE WHETHER A PROHIBITED PERSONNEL ACTION HAS OCCURRED IN RETALIATION FOR A PROTECTED DISCLOSURE

III. THE FCHR’S DISMISSAL OF WILSON’S CHARGE DID NOT VIOLATE THE CONSTITUTIONAL SEPARATION OF POWERS BECAUSE IT PROPERTLY EXERCISED A QUASIJUDICIAL POWER DELEGATED TO IT BY THE FLORIDA LEGISLATURE

IV. FCHR’S DISMISSAL OF WILSON’S CHARGE DID NOT VIOLATE WILSON’S RIGHTS OF DUE PROCESS, ACCESS TO COURTS, OR TRIAL BY JURY

A. Wilson was afforded due process

B. Wilson was not unlawfully denied access to court

C. The right to a jury trial is not absolute

CONCLUSION

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ITEM 204 | REPLY BRIEF

Appeal of a Final Order of the Florida Commission on Human Relations

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

ARGUMENTI. FCHR Had A Duty to Investigate the Charge and Make a Determination

II. FCHR Had an Unwaivable Duty of Disqualification

III. FCHR’s Dismissal Violates Constitutional Separation of Powers

IV. FCHR’s Failure to Issue a Determination Violates Appellant’s Rights of Due Process, Access to Courts, and Trial by Jury

CONCLUSION

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ITEM 205 | OPINION (PCA)

Richard E. Johnson of Law Offices of Richard E. Johnson, Tallahassee, for Appellant. Jamie Ito of Ito Law, PLLC, Tallahassee, for Appellee.

Per CuriamAFFIRMED.

ITEM 206 | MOTION FOR REHEARING

Appeal of a Final Order of the Florida Commission on Human Relations

APPELLANT’S MOTION FOR REHEARING OR CLARIFICATION, FOR CERTIFICATION, AND FOR REHEARING EN BANC

MOTION FOR REHEARING OR CLARIFICATION

II. MOTION FOR CERTIFICATIONQuestion of Great Public Importance

III. MOTION FOR REHEARING EN BANCIssue of Great Public Importance

Maintenance of Uniformity

STATEMENT OF COUNSEL

RELIEF SOUGHT

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CERTIFICATE OF COMPLIANCE

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