City of Hallandale Beach v. Rosemond

388 So.3d 826

CITY OF HALLANDALE BEACH, Florida, Appellant,

v.Daniel ROSEMOND, Appellee.

No. 4D2022-2642

District Court of Appeal of Florida, Fourth District.

[June 5, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case No. 17-1355 CAGE.

Christopher J. Stearns and Jonathan H. Railey of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellant.

Rebecca A. O’Hara and Kraig A. Conn of Florida League of Cities, Inc., Tallahassee, amicus curiae in support of appellant.

Brian L. Lerner, Robert C.L. Vaughan, and Anisha C. Atchanah of Kim Vaughan Lerner LLP, Fort Lauderdale, for appellee.

Gerber, J.

The city appeals from the circuit court’s final judgment in favor of a former employee who prevailed on his claims against the city for whistleblower retaliation and breach of contract. The city argues the circuit court erred in two primary re- spects: (1) denying the city’s directed verdict motions on both claims; and (2) providing incorrect jury instructions on the whistleblower retaliation claim.

On the city’s first argument, we conclude the circuit court erred in denying the city’s directed verdict motion as to the former employee’s whistleblower retaliation claim. Our conclusion on the city’s first argument moots the city’s second argument. Thus, we reverse the final judgment on the whistleblower retaliation claim, and remand for entry of final judgment in the city’s favor on that claim. We affirm the final judgment in the former employee’s favor on his breach of contract claim.

Our opinion will focus primarily on the whistleblower retaliation claim. We will present this opinion in five sections:

1. The former employee’s trial evidence;

2. The city’s directed verdict motion;

3. The jury’s verdict, the city’s post-verdict motions, and the circuit court’s final judgment;

4. The parties’ arguments on appeal; and

5. Our review.

1. The Former Employee’s Trial Evidence

We present the former employee’s trial evidence in the light most favorable to him as the non-moving party on the city’s directed verdict motions. See Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 247, 250 (Fla. 4th DCA 2009) ("When an appellate court reviews the grant of a directed verdict, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party.") (citation omitted). As the former employee was employed by the city at all times material to this appeal, we shall refer to him from this point forward as "the employee."

In February 2015, when the employee was serving as deputy city manager, the city attorney filed an internal racial discrimination complaint on her own behalf against then-City Commissioner Keith London. The city retained an outside law firm to investigate the city attorney’s complaint.

When the investigators interviewed the employee in April 2015, he stated that Commissioner London, in a separate situation, allegedly had committed a Sunshine Law violation and had violated a city rule prohibiting commissioners from directing employees’ actions, rather than through the city manager. When the investigators interviewed Commissioner London, they made him aware of the employee’s statements regarding the alleged violations.

Over the next several months, Commissioner London did not show any animosity toward the employee. However, in October 2015, when the city manager resigned, and the five-member city commission voted 3-2 to appoint the employee to serve as city manager effective January 1, 2016, Commissioner London was one of the two votes against the employee’s promotion. The other commissioner voting against the employee’s promotion was Commissioner Michele Lazarow.

In February 2016, that is, one month into the employee’s service as city manager, the investigators provided the employee with their report regarding the city attorney’s internal racial discrimination complaint against Commissioner London. The report stated the investigators had been unable to conclude Commissioner London had discriminated against the city attorney. The investigators’ report also mentioned the employee’s statements regarding Commissioner London’s other alleged violations. The employee forwarded the investigators’ report to the city commission.

Months later, in November 2016, city voters elected a new City Commissioner, Annabelle Lima-Taub, for whom Commissioner London had served as campaign manager. The day after Commissioner Lima-Taub had been sworn in and the city commission had selected Commissioner London to serve as vice mayor, now-Vice Mayor London requested a special city commission meeting be held to discuss the employee’s contract.

At that special meeting, which occurred later in November 2016, Vice Mayor London discussed three incidents which he said required terminating the employee for cause. Vice Mayor London’s description of those incidents were incomplete in some respects and false in others.

After Vice Mayor London’s presentation, he moved to suspend the employee as city manager, appoint the deputy city manager as interim city manager, and commence the procedure for terminating the employee’s contract. The motion passed 3-2, with Vice Mayor London and Commissioners Lazarow and Lima-Taub in the majority.

The city charter required a "special hearing to allow the manager to defend whatever reasons for the termination being put forth." That special hearing occurred in late December 2016. Vice Mayor London requested a motion to terminate the employee, and stated the termination and its reasons should be made a "permanent record" so prospective employers could see such record. Commissioner Lazarow moved to adopt such a resolution, and added the resolution should reflect the employee was terminated "with cause." The motion passed 3-2, with Vice Mayor London and Commissioners Lazarow and Lima-Taub in the majority.

The employee then sued the city on two claims: (1) whistleblower retaliation; and (2) breach of contract.

The employee’s whistleblower retaliation claim alleged the city commission’s termination of his employment violated Florida’s Whistleblower’s Act, section 112.3187(4)(a)-(b), Florida Statutes (2016) (a government entity "shall not dismiss, discipline, or take any other adverse personnel action against an employee for disclosing information pursuant to the provisions of this section" and "shall not take any adverse action that affects the rights or interests of a person in retaliation for the person’s disclosure of information under this section"). According to the employee, his 2015 allegations about then-Commissioner London had caused now-Vice Mayor London in November 2016 to create the three pretextual reasons for the employee’s termination. The employee summarized his allegations as follows:

It was Vice Mayor London who initiated and coordinated the efforts to suspend and then terminate … [the employee]. This included, among other things, alleging the three stated bases for removal, putting together and choosing to omit documents pertaining to the removal, presenting the case for the removal, spearheading the process that would be used to conduct the public hearing, . and being the person to make the point of how important it was to make the termination part of the permanent record.

The employee’s breach of contract claim alleged the city commission’s termination of his employment breached his employment agreement. Pertinent to this appeal, the employee specifically alleged his employment agreement provided that being terminated "with cause" required him to have committed "misconduct" as defined by section 443.036(29), Florida Statutes (2016), and he had not committed any "misconduct."

During the employee’s trial testimony, he provided additional facts to clarify or refute the three reasons upon which Vice Mayor London had relied to support the employee’s suspension and termination. The employee testified Vice Mayor London had not fully stated some facts, and had misrepresented other facts, during the city commission’s November and December 2016 special meetings which had led to the employee’s suspension and termination.

Vice Mayor London testified that the employee’s 2015 statements to the investigators had not motivated either his October 2015 vote against promoting the employee to become city manager or his November and December 2016 votes to suspend and terminate the employee.

Commissioner Lazarow testified the employee’s 2015 statements to the investigators had not motivated either her October 2015 vote against promoting the employee to become city manager or her November and December 2016 votes to suspend and terminate the employee. Commissioner Lazarow further testified the November 2016 special meeting was the first time she had become aware that Vice Mayor London wanted to suspend and terminate the employee. She testified she had not "blindly followed" Vice Mayor London’s recommendation to suspend and terminate the employee. Rather, during the November and December 2016 special meetings, she had considered Vice Mayor London’s reasons, reviewed the documents which he had presented, and asked questions.

Commissioner Lima-Taub testified that because she had not been a city commissioner before the November 2016 election, she was unaware of the employee’s 2015 statements to the investigators when she voted to suspend and terminate the employee in November and December 2016. Commissioner Lima-Taub also testified she had voted to suspend and terminate the employee based on Vice Mayor London’s presentation.

2. The City’s Directed Verdict Motion as to The Employee’s Whistleblower Retaliation Claim

After the employee rested, the city’s trial counsel moved for a directed verdict as to both the employee’s whistleblower retaliation claim and his breach of contract claim.

Pertinent to the whistleblower retaliation claim, the city’s trial counsel argued: "A plaintiff cannot prove an improper...