Pinder v. Bahamasair Holdings Limited, Inc., No. 1:2008cv22548 - Document 68 (S.D. Fla. 2009)
Court Description: ORDER denying 42 Motion for Summary Judgment; rejecting 63 Report and Recommendations.; granting 33 Motion for Summary Judgment. Signed by Senior Judge James Lawrence King on 10/9/2009. (jw)
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Pinder v. Bahamasair Holdings Limited, Inc. Doc. 68 IN THE UNITED STATES DISTRICT (Y.)URT FOR THE SOUTHERN DISTRICT OF F1I1~l3RIDA MIAMI DIVISION CASE NO. 08-CV-22548-KIN(i/BALND$;l:'M DEBORAH PINDER, Plaintiff, BAHAMASAIR HOLDINGS LIMITED, INC., a foreign corporation, Defendant. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMIh!l,ARYJUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMA,RYJUDGMENT THIS CAUSE comes before the Court upon cross motions for summary judgment on liability (DE #33 & 42), which were referred to Magistrate Jutll~eTed E. Bandstra. Judge Bandstra issued a Report and Recommendation (DE #63) recomrr~endingthat Plaintiffs Motion for Summary Judgment be denied and Defendant's Motion fbr S nnmary Judgment be granted. However, after careful consideration and a de novo review, the (:lclurt rejects Judge Bandstra's recommendation. For the reasons detailed below, the Court detex~ninesthat Plaintiffs Motion should be GRANTED and Defendant's Motion should be DENIED, I. Factual Background Plaintiff Deborah Pinder has been an employee: of Defendant Bahamasair for approximately 25 years. On April 15, 2008, Plaintiff observed ;rnother Bahamasair employee commit a violation of federal airline regulations. The next day, she sent a letter (entitled Dockets.Justia.com "Incident Report of APIS Breach") to the Bahamasair M i m i St,%tionmanager, detailing the events that she witnessed. She simultaneously sent a copy to John Devine, a Transportation Safety Administration (TSA) officer. The letter stated the fclllowing: Plaintiff observed Bahamasair Manager Ms. Sharon Jones process a passenger by the name of Randolph McClain for Bahamasair flight #230. Ms. Jones allowed Mr. MeClain to board the plane without an eticket, under a false name, and without entering McC1ain"sinformiltion into the flight's manifest. This was a violation of federal airline regulations, inclulding the 11irline Passenger Information System (APIS). After realizing that the violation had oocurred, al'~tc,rthe flight departed another Bahamasair employee entered the computer system, deleted tlhe fa Ise name, and replaced it with McClain's name. On May 13, 2008, Plaintiff was informed that she was being fired because she sent a copy of the letter to TSA. Thereafter, she commenced this action under the Florida Whistleblower Act ("FWA or the Act"), and the case was re~novtrclto this Court on September 15,2008. 11. Summary Judgment Standard Summary judgment is appropriate where the pleadings and s~kpportingmaterials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celstex (Zorp ?.I Catrett, 477 U.S. 317, 322 (1986). If the record as a whole could not lead a rational fact-fintler to find for the nonmoving party, there is no genuine issue of fact for trial. See Matsushita El t v :Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,587 (1986). The moving party bears the burden of pointing to the part of the record that shows the absence of a genuine issue of material fact. See Adickes r7. S.H. Krial:s & Co., 398 U.S. 144, 157 (1970); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (1 lth Cir. 1997). Once the moving party establishes the absence of a genuine issue of material fact, the blurden shifts to the nonmoving party to go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see also Chanel, Inc, v. Iidz,rianActivewear of Fla., Inc., 931 F.2d 1472, 1477 (1 lth Cir. 1991) (holding that, to meet its burden, the nonmoving party must "come forward with significant, probative evidence demonstriding the existence of a triable issue of fact."). On a motion for summary judgment, the court must view the evidence and resolve all inferences in the light most favorable to the nonmoving party. Set?Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, a mere scintilla of evidence in support of the nonmoving party's position is insufficient to defeat a motion for surimary judgment. See id. at 252. If the evidence offered by the nonmoving party is merely colorable or is not significantly probative, summary judgment is proper. See id. at 249-50. 111. Analysis The dispute in this case surrounds subsection 3 of the l:"WA, which provides: "An employer may not take any retaliatory personnel action against an employee because the employee has: . . . (3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulatiori." ];'I,$.Stat. fj 448.102(3). The FWA was enacted "to protect private employees who report or ref.~seto assist employers who violate laws enacted to protect the public," Golf Channel v. Jenkin,;, 752 So. 2d 561, 562 (Fla. 2000), and is "to be construed liberally in favor of granting access r t the ~ ~ remedy." Molenda v. Hoechst Celanese Corp., 60 F.Supp. 2d 1294, 1299 (S.D. Fla.1999); Schzrltz v. Tampa Elec. Co., 704 So. 2d 605, 606 (Fla. 2d DCA 1997) (courts are "requil-ed to corlsi.rue the whistle blower act liberally because it is a remedial statute."). Although there are few Florida cases construing the FWA, I he Eleventh Circuit has held that "the summary judgment analysis for a Title VII retaliation claim should be applied to a claim for retaliatory discharge under the Florida Whistleblower ~'ict." Rutledge v. SunTrust Bank, 262 Fed. App'x 956, 958 (1 lth Cir. 2008) (citations oniitted), Thus, to establish a prima facie case under the FWA, the plaintiff must show that (I.) that thm: was a statutorily protected expression; (2) that an adverse employment action occurred; and (3) that there was a causal link between the participation and the adverse employment action. See Padron v. BellSouth Telecornms., Inc., 196 F. Supp. 2d 1250, 1256 (S.D. Fla. 2002), af;l at 62 Fed. App'x 317 (1 lth Cir. 2003). Defendant has conceded that the second arid third I:br.ongs are satisfied-that is, Defendant admits that Plaintiff was fired because she reported the v~olationto TSA. However, Defendant disputes that Plaintiff engaged in statutorily protected expr sssion. To show that she engaged in a statutorily protecl.ed a.ctiviij under the FWA, Plaintiff must show that she "objected to or refused to participate in (i) an illegal activity, policy, or practice of an employer, (ii) illegal activity of anyone acting within tlze legitimate scope of their employment, or (iii) illegal activity of an employee that has bee11 ratified by the employer." Mclntyre v. Delhaize Am., Inc. 2009 WL 1039557, *3 (M.D. 177a. :?009) (citing Sussan v. Nova Se. Univ., 723 So.2d 933,934 (Fla. 4th DCA 1999)). Defendant makes two arguments for why Plaintiff's letter \\l;:rsnot statutorily protected expression. The first argument is that Plaintiffs letter did not conuititute an "objection" to a Bahamasair policy or practice. The Court fully agrees with Judgc.: Bandstra's opinion that, consistent with the Court's mandate of liberal construction iin famx of granting a remedy, Molenda, 60 F.Supp. 2d. at 1299, Plaintiffs letter did in fact coristitu I[(.$ an "objection" within the meaning of the statute. See Padron, 196 F.Supp. 2d. at 155-56 ('"I'lle signing and sending of [a] letter detailing legal abuses by [Defendant] satisfies this first p"c1ng."). Therefore, no fbrther discussion is required on that point. Defendant's second argument is that Plaintiff did not c;omplilin of an illegal action by an "employer," but rather only complained of an illegal action by an employee. Judge Bandstra agreed with Defendant on this point; however, the Court. disagreeUs.To construe the actions in this case as not those of an "employer" would be an overly restricti v e reading of the statute. The termination, but to purpose of the FWA is not only to protect employet:~ from ~m~lawfbl encourage employers to abide by the various regulations that gov1,:rn them. This is especially important when those regulations are designed to protect the public during air travel. A corporation can only act through its employees, and accordingly ; u ~employer can only violate regulations through the actions of its employees. To say tlhat tlu;: actions of Ms. Jones, the Bahamasair manager who allowed a passenger to board under a fa]?;(,@ name, were not the actions of Bahamasair would contravene the intent of the statute to /protect workers and ensure compliance with safety regulations. Under Defendant's theory, an employee could never, without fear of retaliation, report any regulatory violatiorl by any oiiher employee unless it was committed by a senior corporate executive. Aside from the: fact that il is unclear just how high up the corporate ladder such an executive would have to be to qualify at; an "employer," there is no indication that the FWA was designed only to protect against violalii~nsthat come directly from the top. Rather, a more logical reading of the statute is that it was intended to encourage the reporting from within of violations by any employee within the campany. Furthermore, it is undisputed that Bahamasair actually violated TSA regulations on the date referenced in Plaintiffs letter and also on numerous other occasions' (DE #33-2. pp. 100-103; DE # 33-3, p. 30-34). Defendant could not and did not argue that it should not IN: fined by the TSA for those violations because they were not committed by Bahamasair, but ~~aiher by one of Bahamasair's employees. Hence, Defendant has acknowledged that it (Bahanasair, not its employee) violated the TSA regulation, and therefore by implication Plaintiff was complaining about a violation committed by Bahamasair itself. Defendant cannot avoid the r(:lipirements of the FWA by shifting the blame for its unlawfbl acts to its employees. The case of Taylor v. Melrz'l Health Systems, 770 So. I d 752 (Fla. 5th DCA 2000) supports this conclusion. In Taylor, the plaintiff, a hospital ewployee, complained to the Department of Business and Professional Regulation that anolf~er hospital employee was violating various Florida statutes forbidding sexual misconduct in i.he practice of medicine, as well as hospital policies requiring the presence of third parties durng examinations. Id. at 754. The court reversed the grant of summary judgment in favor of th~:defendant hospital, holding that the plaintiff had stated aprima facie case under the FWA. Thus.,even in spite of a company policy that forbade the conduct complained of, Florida courts are willing to hold employers liable for FWA violations when one employee complains about the c:crnduct of another employee. Conversely, Defendant has not identified any case that suj:q.~ortsits argument, and the cases it has cited are inapposite. For instance, in Sussan, 723 So. :lc at 934, the court affirmed the grant of summary judgment for an employer under the FWA. 1-[swever,the facts of Sussan are distinguishable from those of the instant case. In Sus,san, the plaintiff accused other 1 Although not specifically articulated, Defendants obliquely reference the argunle nt that it may not have violated TSA regulations, because there is a 24-hour period within which airlines may "CLU :"this violation. However, not only is that assertion unsupported by any record evidence, it is belied by the 1aq;uage of the regulation. See 19 C.F.R. 12.75a(b)(2) (requiring the transmission of the flight manifest "no later t k ~ n the securing of the aircraft.") and 19 C.F.R. 122.49a(a) (defining "securing the aircraft" as "the moment .Ihc alrcrafi's doors are closed"). Defendants do not dispute that the flight manrfest was not transmitted before the doo .s were closed. employees of stealing from the company, which the plaintiff admitled was not within the scope of their employment. Id. Thus, Sussan merely stands forathe propo!;ition that stealingfrom your employer cannot be deemed an act of the employer. Thus, it ha!; 110application to the instant case. Similarly, Ruiz v. Aerorep Group Corp., 941 So. 2d 505 (Na. 3d DCA 2006), is also distinguishable because it involved an employee committing an inientional battery against the plaintiff, which was not committed within the course arid scope o f employment and with the purpose of benefitting the interests of the employer. Id. at 50'7 ("t'rl though an employer may be responsible for the actions of an employee under certain circurr slances, those circumstances have not been alleged in the instant case."). Defendant's oth~ercirtt.:d cases are unreported and suffer from the same flaw. See McIntyre v. Delhaize Am., Inc., 2009 WL 1039557 (M.D. Fla. 2009) (employee's conduct of stealing narcotics from a phamiacy mas outside legitimate scope of employment); Kelleher v. Pall Aeropower Corp., 2001 WL, 4821 119, *6 -7 (M.D. Fla. 2001) (employee's threats and harassment occurred outside the workplace, were unrelated to employment, and were therefore outside legitimate scope lof ernplo yrnent); Douberley v. Burger King Corp., 2007 WL 1175757 (M.D. Fla. 2007) (sexual harassment outside legitimate scope of employment). Additionally, these cases are not applicable for another. reamn. Pursuant to the statute, the activity complained of must be in violation of a "law, ntle, or reg u lation," which is defined as "any statute or ordinance or any rule or regulation adopted pursuant tc: any federal, state, or local statute or ordinance applicable to the employer and pertaining to !Ale business." Fla. Stat. ยงยง 448.101-102 (emphasis added). The last phrase of the definitior ndicates that the conduct complained of must be in violation of a law, rule or regulation that is somehow more specifically applicable to the business, as opposed to the public at large. The TSA, regulations at issue in the instant case, for example, are specifically applicable to airlines. (In other hand, laws against theft, battery, threats, and sexual harassment are generally applicable laws. Thus, an employee could not state a claim under the FWA for reporting that t,ype of be tli:lvior. Although concluding that Plaintiff has objected to am ille!gal activity of an employer would normally end the inquiry in Plaintiffs favor, the Col,~,st,following the analytical framework set forth in Sussan and McIntyre, will now datermine vvllether Plaintiff has objected to illegal activity of anyone acting within the legitimate scope of I lhcir employment. The Court concludes that she has. "Under Florida law, an employele acts; within the scope of his employment 'if his act is of the kind he is employed to perforni, it occurs substantially within the time and space limits of employment and it is activated at least in 1.1at-t by a purpose to serve the master."' Nadler v. Mann, 95 1 F.2d 301, 305 (11th Cir. 1992) (quoting Kane Furniture Corp. v. Miranda, 506 So.2d 1061, 1067 (Fla. 2d DCA1987)). The undispu1i:cI facts demonstrate that Ms. Jones's act of checking in a passenger was an act she was hired to perform, it occurred at work and during work hours, and it was motivated by a purpoa: to serve her employer. Thus, for the additional reason that Plaintiff objected to an illegal activity of arl employee acting within the legitimate scope of her employment, Plaintiff has stated aprirnt;~ facie claim under the FWA. IV, Conclusion Accordingly, after careful consideration and the Court being otherwise fully advised, it is ORDERED, ADJUDGED, and DECREED that: 1. Judge Ted E. Bandstra's Report and Recommendation (DE #63) is hereby REJECTED. 2. Plaintiffs Motion for Summary Judgment as to Liability (DE #33) is hereby GRANTED. 3. Defendant's Motion for Summary Judgment as to 1:iability (DE #42) is hereby DENIED. 4. A new Scheduling Order on the issue of dimages u,il!lbe set by separate Order of this Court. DONE AND ORDERED in Chambers, at Miami, Miimi-1:):ide County, Florida, this 9th day of October, 2009. Cc: Magistrate Judge Ted E. Bandstra Counsel for Plaintiff Matthew S. Sarelson Sarelson Law Firm, P.A. 1401 Brickell Avenue Suite 5 10 Miami, FL 33131 3053790305 Fax: 8004219954 Email: msarelson@sarelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Adam Shafir Broad and Cassel One Biscayne Tower 2 South Biscayne Boulevard Suite 2100 Miami, FL 33131 305-373-9448 Fax: 305-995-6409 Email: mshafir@broadandcassel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Counsel for Defendants v Stuart Arthur Goldstein 9350 S Dixie Highway Miami ,FL 33 156 305-670-1222 Fax: 670-7065 Email: sgoldst2 19@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Blanca Rosa Sordo Martinez & Sordo, P.A. 9350 S Dixie Highway 10th Floor Miami, FL 33156 305-671-1307 Fax: 670-7065 Email: blanca@martinezsordolaw.com ATTORNEY TO BE NOTICED
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