            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                   _____________________________

                           No. 1D18-1103
                   _____________________________

JANETTE NAZZAL,

    Appellant,

    v.

FLORIDA DEPARTMENT OF
CORRECTIONS,

    Appellee.
                   _____________________________


On appeal from the Circuit Court for Leon County.
John C. Cooper, Judge.


                             April 9, 2019


WETHERELL, J.

     In this Whistle-blower’s Act 1 case, the trial court entered a
final summary judgment in favor of the Department of Corrections
because Appellant failed to establish that she made disclosures
protected under the Act. We find no error in this ruling and
accordingly affirm the final summary judgment.




    1    §§ 112.3187 – 112.31895, Fla. Stat. (2013).
                              Facts

    Appellant was re-hired 2 by the Department as a correctional
probation officer in October 2013. She and her supervisor, Pamela
McCoy, did not get along from the start, and Appellant claimed
that Ms. McCoy created a “hostile work environment” by
constantly harassing and demeaning her.

     On January 7, 2014, Appellant submitted an Incident Report
to Ms. McCoy’s supervisor in which she identified three separate
incidents in November and December 2013 in which she claimed
that Ms. McCoy acted unprofessionally towards her. In the first
incident, Ms. McCoy refused to approve a probation violation
recommended by Appellant and “stammered away angrily” when
Appellant tried to explain her recommendation. In the second
incident, Ms. McCoy told Appellant to change another probation
violation recommendation and got “agitated” when Appellant did
not start working on it immediately. In the third incident, Ms.
McCoy came into Appellant’s office, “got in her face,” and told her
that she was cancelling Appellant’s vacation because Appellant did
not turn in her schedule on time, and then, on the way out of the
office, Ms. McCoy turned off the lights leaving Appellant in the
dark. The Incident Report also included a conclusory assertion
that Appellant “has been subjected to disparate treatment which
is in direct violation of the 1964 civil rights act[].”

     Ms. McCoy also submitted an Incident Report to her
supervisor documenting her interactions with Appellant. The
report, which predated the Incident Report submitted by
Appellant, discussed the three incidents documented by Appellant,
as well as several other incidents in which Ms. McCoy had to speak
to Appellant about her work product, policy violations, and
complaints that Ms. McCoy received about Appellant’s
disrespectful and unprofessional treatment of probationers.

    Appellant was fired on March 6, 2014. According to the
Department official who made the decision to fire Appellant, the
reasons for her firing included her “fail[ure] to complete assigned

    2  Appellant previously worked for the Department from
October 2003 to March 2013.

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work correctly and on time” and her “lack of cooperation with her
supervisor.”

     In December 2014, Appellant filed a complaint against the
Department alleging national origin discrimination under 42
U.S.C. § 2000e, retaliation, and violation of the Whistle-blower’s
Act. The Department removed the case to federal court, and in
March 2016, the federal court granted summary judgment in favor
of the Department on the federal discrimination and retaliation
claims. The court declined to exercise supplemental jurisdiction
over the state Whistle-blower’s Act claim and remanded that claim
back to the trial court. Thereafter, the Department filed a motion
for summary judgment on the Whistle-blower’s Act claim and
Appellant filed a response in opposition to the motion.

     In February 2018, after a hearing and a review of the evidence
filed in support of and in opposition to the Department’s motion for
summary judgment, the trial court entered a final summary
judgment in favor of the Department. The court determined that
(1) Appellant did not establish a prima facie case under the
Whistle-blower’s Act because the undisputed evidence failed to
establish that she made any statutorily-protected disclosures, and
(2) even if Appellant had established a prima facie case, the
undisputed evidence established that the Department had
legitimate reasons for firing Appellant that were not pretextual.

    This appeal followed.

                             Analysis

    We review the final summary judgment under the de novo
standard of review. See Futch v. Walmart Stores, Inc., 988 So. 2d
687, 690 (Fla. 1st DCA 2008). Summary judgment is appropriate
when there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Id. In
determining whether material facts are in dispute, the court must
view the evidence and draw all inferences in the light most
favorable to the non-moving party. Id.

     The Whistle-blower’s Act prohibits state agencies from taking
retaliatory action against employees who report violations of law
or disclose information alleging certain conduct on the part of an
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agency, public officer, or employee. § 112.3187(4), Fla. Stat. The
Act authorizes an employee who suffers an adverse employment
action as a result of making a protected disclosure to file a civil
action against the agency. § 112.3187(8), Fla. Stat. The Act is
remedial in nature and should be given a liberal construction.
Irvin v. Dep’t of Health & Rehab. Servs., 790 So. 2d 403, 405 (Fla.
2001)

      To establish a prima facie case under the Whistle-blower’s
Act, the plaintiff must show that (1) prior to her termination, she
made a disclosure protected by the Act; (2) she suffered an adverse
employment action; and (3) some causal connection exists between
the first two elements. See Dep’t of Transp. v. Fla. Comm’n on
Human Relations, 842 So. 2d 253, 255 (Fla. 1st DCA 2003). Here,
it is undisputed that the second and third elements were met; the
only issue is whether Appellant made a statutorily-protected
disclosure.

      The Whistle-blower’s Act protects disclosures 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.

      (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.

§ 112.3187(5), Fla. Stat.

     The only disclosures at issue in this case are those contained
in the Incident Report submitted by Appellant in January 2014.
Those disclosures—even when viewed in the light most favorable
to Appellant as required—do not show that Ms. McCoy violated
any law, rule, or policy. Indeed, Appellant admitted in her
deposition testimony that Ms. McCoy did not violate any law, rule,

                                 4
or Department policy when she rejected Appellant’s probation
violation recommendations. Nor do the disclosures reflect any
malfeasance or misfeasance, as those terms have been defined. See
Irvin, 790 So. 2d at 407 n.3 (“Misfeasance is defined as the
‘improper doing of an act which a person might lawfully do; and
‘malfeasance’ is the doing of an act which a person ought not to do
at all.”) (quoting Black’s Law Dictionary 1000 (6th ed. 1990)).
Indeed, contrary to Appellant’s argument in her briefs that Ms.
McCoy’s conduct “bordered on assault,” Appellant admitted in her
deposition testimony that Ms. McCoy never raised her voice or
used any inappropriate language when speaking to her.

     Appellant’s reliance on Rosa v. Department of Children and
Families, 915 So. 2d 210 (Fla. 1st DCA 2010), is misplaced. That
case does not, as Appellant argues in her briefs, stand for the broad
proposition that any letter to a supervisor complaining about
personal conflicts with another employee or the allocation of duties
and responsibilities within the agency is sufficient to create a
triable issue of misfeasance. Rather, the opinion merely held that
the specific letter in that case was susceptible to raising a claim of
misfeasance because it described an “another [agency] employee
acting negligently.” Id. at 212. Here, by contrast, the Incident
Report submitted by Appellant did not allege any negligent acts by
Ms. McCoy (or any other Department employee) and merely
expressed Appellant’s displeasure with Ms. McCoy’s management
style and interpersonal skills.

     Finally, we have not overlooked Appellant’s argument that
her statement in the Incident Report that she was “subjected to
disparate treatment which is in direct violation of the 1964 civil
rights act[]” was a statutorily-protected disclosure. We reject this
argument because Appellant did not elaborate on how (or by
whom) she was treated disparately or how any such disparate
treatment was based on a protected characteristic such as her
national origin. Appellant did not mention her national origin in
the Incident Report, and seemingly in conflict with her claim of
disparate treatment, she asserted that she “is also aware of other
[unprofessional] encounters with other officers that [Ms.] McCoy
has had trouble with in the past.” Accordingly, under these
circumstances, the single conclusory statement in the Incident
Report about “disparate treatment” was not sufficient to qualify as

                                  5
a protected disclosure. See Stanton v. Fla. Dep’t of Health, 129 So.
3d 1083, 1084 (Fla. 1st DCA 2013); Caldwell v. Fla. Dep’t of Elder
Affairs, 121 So. 3d 1062, 1064 (Fla. 1st DCA 2013).

                           Conclusion

     In sum, because the undisputed evidence failed to establish
that Appellant made a disclosure protected under the Whistle-
blower’s Act, the trial court properly entered summary judgment
in favor of the Department. 3 Accordingly, we affirm the final
summary judgment.

    AFFIRMED.

LEWIS and WINOKUR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for
Appellant.

Brian C. Keri, Tallahassee, for Appellee.




    3   Based on this conclusion, we need not address the trial
court’s alternative determination that summary judgment in favor
of the Department was also warranted because the undisputed
evidence showed that the Department’s reasons for firing
Appellant were legitimate and not pretextual. See § 112.3187(10),
Fla Stat. (“It shall be an affirmative defense to any action brought
pursuant to this section that the adverse action was predicated
upon grounds other than, and would have been taken absent, the
employee’s . . . exercise of rights protected by this section.”).

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