Herrera v. Jarden Corp.

334 So.3d 637

Odalys HERRERA, Appellant,

v.JARDEN CORPORATION, Tonya Jarvis, and John Capps, Appellees.

No. 4D20-1545

District Court of Appeal of Florida, Fourth District.

[February 23, 2022]

Chris Kleppin of The Kleppin Firm, P.A., Plantation, for appellant.

Paul B. Ranis of Greenberg Traurig, P.A., Fort Lauderdale, and Brigid F. Cech Samole and Katherine M. Clemente of Greenberg Traurig, P.A., Miami, for appellees.

Gross, J.

Odalys Herrera appeals a final judgment entered after a three-week trial where the jury returned a defense verdict on her claims alleging violation of the Florida Civil Rights Act, intentional infliction of emotional distress, and defamation. We affirm the final judgment in all respects.

We write primarily to address two issues: (1) whether the trial court erred in dismissing a whistleblower claim for being time-barred, and (2) whether the trial court erred in precluding Plaintiff's counsel from questioning Jarden's in-house litigation attorney at trial.

Introduction

Herrera ("Plaintiff") was the Director of Internal Audits of appellee Jarden Corporation. Appellee John Capps was Jarden's Executive Vice President and General Counsel. Appellee Tonya Jarvis was Jarden's Vice President of Human Resources.

Plaintiff sued Jarden, Jarvis, and Capps after her termination from Jarden. She claimed that she was wrongfully terminated from Jarden based on disability discrimination in violation of the Florida Civil Rights Act ("FCRA"), and alleged four disabilities. Plaintiff also alleged claims of intentional infliction of emotional distress against Jarvis and Capps and a defamation claim against Capps, all arising from her termination.

The Defendants responded that Plaintiff was terminated after it was discovered that she had disclosed Jarden's confidential business and financial information to an unauthorized person outside of the corporation, J.J. Havekotte ("Havekotte"), so that he could complete audit work Plaintiff was required to perform as part of her job at Jarden and for which she paid him.

At trial, Plaintiff argued that Jarden's non-discriminatory reason for her firing was pretextual because (1) the reason given for her termination and the identity of the decision maker changed during the litigation, (2) she did not violate company policy, and (3) other employees were not terminated for their violations of company policy.

While the specific company policies Plaintiff was alleged to have violated varied throughout the litigation, the underlying misconduct for those policy violations—Plaintiff providing Jarden's internal information to Havekotte and paying him to complete her work—remained constant and the witness testimony and evidence made clear that Plaintiff was terminated because of such misconduct.

The case went to the jury, which heard the testimony of multiple witnesses. The verdict form asked, in relevant part, "Did Plaintiff prove by the greater weight of the evidence that Jarden Corporation terminated Plaintiff's employment because of her disability?" The jury answered "No" to this question and ultimately found for the Defendants on all counts. The trial court entered a final judgment on the jury's verdict.

The Trial Court Properly Dismissed the Claim Under the Florida Whistleblower Act Because It Was Time-Barred

In 2015, Plaintiff obtained leave to file a second amended complaint. That complaint added a claim for violation of Florida's private sector Whistleblower Act ("the FWA claim").

Jarden moved to dismiss the FWA claim in the second amended complaint. Jarden argued that the FWA claim was time-barred and did not relate back to the filing of the original complaint in 2013. Jarden asserted that the FWA claim rested on new facts, alleged for the first time in the second amended complaint, which included:

• Plaintiff once complained about business units violating the Foreign Corrupt Practices Act;

• Plaintiff had a meeting in the 2009 timeframe in China when a local business unit manager purportedly stated that a business unit had been bribing local government officials with petty cash;

• Jarden executives allegedly "did not care" about the information Plaintiff provided them at a meeting in China in 2009;

• This single meeting is the basis for Herrera to claim she "blew the whistle" on such conduct;

• Plaintiff was fired more than two years later in retaliation for "her opposition to illegal activity";

• Jarden "retaliated against her" more than two years later for "complaints about illegal activity in violation of the Foreign Corrupt Practices Act";

• Plaintiff "refused to participate in an unlawful activity"; and

• Plaintiff's termination in August 2011 was a "direct and proximate cause" of her complaining about a violation of the Foreign Corrupt Practices Act in 2009.

Following a hearing, the trial court granted Jarden's motion to dismiss the FWA claim as being time-barred by the statute of limitations, finding that the claim did not relate back to the filing of the 2013 complaint.

Plaintiff argues that the trial court erred by dismissing the FWA claim with prejudice as being time-barred. She contends that the FWA claim was an alternative theory for why she was terminated, and therefore related back to the filing of the original complaint, wherein she asserted her FCRA claim for wrongful termination based on disability discrimination.

Plaintiff's argument incorrectly focuses on the fact of termination as the central event in the relation back analysis. A proper application of the relation back doctrine hones in on the conduct giving rise to the termination, not the termination itself.

In the second amended complaint, Plaintiff added a claim for violation of Florida's private sector Whistleblower Act under section 448.102, Florida Statutes (2013). Section 448.103(1)(a) provides that an employee subjected to a retaliatory personnel action in violation of this act may bring a civil action "within two years after discovering that the alleged retaliatory personnel action was taken, or within four years after the personnel action was taken, whichever is earlier ." § 448.103(1)(a), Florida Statutes (2013) (emphasis added).

In this case, the alleged retaliatory personnel action (Plaintiff's termination) occurred in August 2011, but Plaintiff did not add the FWA claim until March 2015, after the statute of limitations had expired. The key issue is whether the FWA claim related back to the timely filing of the original complaint (February 2013), such that it fell within the statute of limitations.

"An amended complaint raising claims for which the statute of limitations has expired can survive a motion to dismiss if the claims relate back to the timely filed initial pleading." Palm Beach Cnty. Sch. Bd. v. Doe , 210 So. 3d 41, 43–44 (Fla. 2017) (citation omitted). Under Florida Rule of Civil Procedure 1.190(c), "[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading." Fla. R. Civ. P. 1.190(c). "[A]n amendment which merely makes more specific what has already been alleged generally, or which changes the legal theory of the action, will relate back even though the statute of limitations has run in the interim." Holley v. Innovative Tech. of Destin, Inc. , 803 So. 2d 749, 750 (Fla. 1st DCA 2001) (quoting Kiehl v. Brown , 546 So. 2d 18, 19 (Fla. 3d DCA 1989) ). "The relation back doctrine should be liberally applied." Id.

"[T]he proper test of relation back of amendments is not whether the cause of action stated in the amended pleading is identical to that stated in the original ... but whether the pleading as amended is based upon the same specific conduct, transaction, or occurrence between the parties upon which the plaintiff tried to enforce his original claim." Associated Television & Commc'ns, Inc. v. Dutch Vill. Mobile Homes of Melbourne, Ltd. , 347 So. 2d 746, 748 (Fla. 4th DCA 1977) (citation omitted). "If the amendment shows the same general factual situation as that alleged in the original pleading, then the amendment relates back even though there is a change in the precise legal description of the rights sought to be enforced, or a change in the legal theory upon which the action is brought." Id. (citation omitted). "The test is whether ‘the original pleading gives fair notice of the general fact situation out of which the claim or defense arises.’ "

Kalmanowitz v. Amerada Hess Corp. , 125 So. 3d 836, 840 (Fla. 4th DCA 2013) (quoting Flores v. Riscomp Indus., Inc. , 35 So. 3d 146, 148 (Fla. 3d DCA 2010) ); see also Janie Doe 1 ex rel. Miranda v. Sinrod , 117 So. 3d 786, 789 (Fla. 4th DCA 2013) (stating that "a new cause of action—and even a new legal theory—can relate back to the original pleading so long as the new claim is not based on different facts , such that the defendant would not have ‘fair notice of the general factual situation’ ") (citation omitted) (emphasis added).

In this case, Plaintiff contends that the FWA claim relates back to the original complaint because it was merely an "alternative theory" for why she was terminated. But the FWA claim was based on different facts wholly unrelated to her original complaint.

The original complaint detailed Plaintiff's various disabilities that supported her claim for discrimination under the FCRA. The FWA claim involved a meeting in China during the 2009-2010 timeframe where Plaintiff learned of the company's alleged bribery of local government officials. Plaintiff contended that she blew the whistle on this unlawful activity and was fired as a result.

None of the whistleblower facts were pled in the earlier complaints. The FWA claim did not arise out of the same conduct, transaction, or occurrence set forth in the earlier complaints. The rationale of Rule 1.190(c) is fair notice to the defendant about the facts giving rise to liability. The earlier...