O'Neal v. Florida a & M University

• Decision Date: 05 June 2008
• Docket Number: No. 1D07-2466.,1D07-2466.
• Citation: 989 So.2d 6
• Parties: Dedra B. Azonobi O'NEAL, Appellant, v. FLORIDA A & M UNIVERSITY, by and through the BOARD OF TRUSTEES FOR FLORIDA A & M UNIVERSITY, Appellee.
• Court: Florida District Court of Appeals

989 So.2d 6

Dedra B. Azonobi O'NEAL, Appellant, v. FLORIDA A & M UNIVERSITY, by and through the BOARD OF TRUSTEES FOR FLORIDA A & M UNIVERSITY, Appellee.

No. 1D07-2466.

District Court of Appeal of Florida, First District.

June 5, 2008.

Marie A. Mattox, Tallahassee and Richard E. Johnson, Tallahassee, for Appellant.

Carl R. Peterson, Jr., of Skelding, Labasky, Corry, Eastman, Hauser, & Jolly, Tallahassee, for Appellee.

BENTON, J.

We hold that a right to compensation for wages lost on account of wrongful termination of employment is a right "of the sort traditionally enforceable in an action at law," reverse the judgment below, which was entered after a non-jury trial, and remand with directions to reinstate the plaintiff's demand for trial by jury. King Mountain Condo. Ass'n, Inc. v. Gundlach, 425 So.2d 569, 571 (Fla. 4th DCA 1982). See Fox v. City of Pompano Beach, 33 Fla. L. Weekly D795, D796 (Fla. 4th DCA Mar. 19, 2008) ("[S]ection 112.3187(9)(c) of the Whistle-blower's Act permits a plaintiff to recover `[c]ompensation, if appropriate, for lost wages, benefits, or other lost remuneration caused by the adverse action.' Unquestionably, this compensatory remedy consists of money damages, which are legal rather than equitable in nature.").

I.

Dedra B. Azonobi O'Neal appeals the final judgment entered in favor of Florida Agricultural & Mechanical University in the action she brought under the Florida Whistle-blower's Act, sections 112.3187-112.31895, Florida Statutes (2003) (the Act). According to her complaint, she was working for the University under an annual contract of employment when she made oral reports to the administration, alleging irregularities in the University's scholarship accounts; an ensuing internal investigation failed to substantiate at least some of her claims; and, in 2003, the University declined to renew her annual contract, a decision that effectively terminated her employment.

Ms. O'Neal filed suit against the University under the Act, alleging that her employment had been terminated in retaliation for the disclosures she had made about the scholarship funds. She filed a demand for jury trial along with her complaint, which the University moved to strike, contending that the action was not triable by a jury as a matter of right. The trial court granted the motion, heard the case in a bench trial,¹ and ruled for the University.

II.

The Act does not in terms provide for trial by jury. See Cerrito v. Kovitch, 457 So.2d 1021, 1022 (Fla.1984). Accordingly, we ask first whether the action Ms. O'Neal brought under the Act was triable by a jury under the common law existing at the time the Florida Constitution was adopted; and then, because we conclude such actions were unknown at that time, whether she is seeking legal or only equitable relief. See Tull v. United States, 481 U.S. 412, 421, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987); Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 565, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990); Mitchell v. Consol. Freightways Corp. of Del., 747 F.Supp. 1446, 1449 (M.D.Fla.1990).

A.

As the University convincingly demonstrates, the Act created a cause of action that did not exist at common law at the time the Florida Constitution was adopted in 1845. See generally In re Forfeiture of 1978 Chevrolet Van, 493 So.2d 433, 434 (Fla.1986). Before the Act, a public employee fired in retaliation for whistleblowing could not sue either for breach of contract or for any tort based on retaliatory discharge. See Smith v. Piezo Tech. & Prof'l Adm'rs, 427 So.2d 182, 184 (Fla. 1983); Hartley v. Ocean Reef Club, Inc., 476 So.2d 1327, 1328-30 (Fla. 3d DCA 1985). Not until 1986 did the Act create "a `stand-alone statutory scheme' designed to provide an aggrieved party with a remedy against the state or its agencies or subdivisions under certain, specified conditions." Dep't of Ed. v. Garrison, 954 So.2d 84, 86 (Fla. 1st DCA 2007).

B.

The mere fact that adoption of the Constitution antedated the Act is not determinative. See Wiggins v. Williams, 36 Fla. 637, 653, 18 So. 859, 864 (1896) ("it is not the time when the violated right first had its existence, nor whether the statute which gives rise to it was adopted before or after the constitution, that we are to regard as the criterion").

The constitutional right to a trial by jury is not to be narrowly construed. See Hollywood, Inc. v. City of Hollywood, 321 So.2d 65 (Fla.1975). This right is not limited strictly to those specific proceedings in which it existed before the adoption of our constitution, but should be extended to proceedings of like nature as they may arise. Wiggins v. Williams, 36 Fla. 637, 18 So. 859 (1896).

In re Forfeiture, 493 So.2d at 435. The phrase "proceedings of like nature" means cases of the kind that would have been triable—had they been maintainable anywhere—in courts of law, when law courts existed independently of chancery and admiralty, with their own separate jurisdiction and an identity "in contradistinction to equity ... and admiralty...." Id. (quoting Parsons v. Bedford, Breedlove & Robeson, 28 U.S. (3 Pet.) 433, 446, 7 L.Ed. 732 (1830)).

C.

As a former employee making a claim under the Act, Ms. O'Neal asserted a right to "[c]ompensation ... for lost wages, benefits, or other lost remuneration caused by" her allegedly retaliatory discharge. § 112.3187(9)(c), Fla. Stat. (2004). While any substantive right she has to back pay is statutory, as a party seeking "to invoke rights and remedies of the sort traditionally enforceable in an action at law," she had a concomitant right to trial by jury, as a matter of Florida constitutional law. Gundlach, 425 So.2d at 571. See Art. I, § 22, Fla. Const. ("The right of trial by jury shall be secure to all and remain inviolate.").

The general rule is that "where an action is simply ... for the recovery of a money judgment, the action is one at law." Pernell v. Southall Realty, 416 U.S. 363, 370, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974) (quoting Whitehead v. Shattuck, 138 U.S. 146, 151, 11 S.Ct. 276, 34 L.Ed. 873 (1891)). See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002); Waldrop v. S. Co. Servs., Inc., 24 F.3d 152, 157 (11th Cir. 1994); see also Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (holding that the Seventh Amendment confers the right to trial by jury in a case based on a statute if the "statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law"). Because she sought legal relief in the form of money damages as compensation for lost wages, Ms. O'Neal was entitled to a jury trial. See Fox, 33 Fla. L. Weekly at D796.

III.

The Supreme Court has characterized a claim for back pay and benefits as a legal remedy triggering the right to a jury trial. See Terry, 494 U.S. at 570, 110 S.Ct. 1339. The Court has never held that back pay was an equitable remedy under Title VII of the Civil Rights Act of 1964, another statute designed to protect workers against, inter alia, retaliatory discharge. See Knudson, 534 U.S. at 218 n. 4, 122 S.Ct. 708 (observing that Congress treated back pay as equitable in the Title VII context "only in the narrow sense that it allowed back pay to be awarded together with equitable relief"); Terry, 494 U.S. at 572, 110 S.Ct. 1339 (discussing back pay in Title VII context, but declining to decide that no right to a jury exists arising out of a claim for lost wages in those cases); Curtis, 415 U.S. at 196-97, 94 S.Ct. 1005 (expressing no view on the right to a jury trial in actions for reinstatement and back pay in Title VII cases).

The United States Supreme Court draws a distinction between restitution at law ("legal restitution") and restitution in equity ("equitable restitution"), as it recently explained in a case where the distinction was determinative:

[N]ot all relief falling under the rubric of restitution is available in equity. In the days of the divided bench, restitution was available in certain cases at law, and in certain others in equity. See, e.g., 1 Dobbs § 1.2, at 11; id., § 4.1(1), at 556; id., § 4.1(3), at 564-565; id., §§ 4.2-4.3, at 570-624; 5 Corbin § 1102, at 550; Muir, ERISA Remedies: Chimera or Congressional Compromise?, 81 Iowa L.Rev. 1, 36-37 (1995); Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making, 70 Nw. U.L.Rev. 486, 528 (1975). Thus, "restitution is a legal remedy when ordered in a case at law and an equitable remedy ... when ordered in an equity case," and whether it is legal or equitable depends on "the basis for [the plaintiff's] claim" and the nature of the underlying remedies sought. Reich v. Continental Casualty Co., 33 F.3d 754, 756 (C.A.7 1994) (Posner, J.).

In cases in which the plaintiff "could not assert title or right to possession of particular property, but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him," the plaintiff had a right to restitution at law through an action derived from the common-law writ of assumpsit. 1 Dobbs § 4.2(1), at 571. See also Muir, supra, at 37. In such cases, the plaintiff's claim was considered legal because he sought "to obtain a judgment imposing a merely personal liability upon the defendant to pay a sum of money." Restatement of Restitution § 160, Comment a, pp. 641-642 (1936). Such claims were viewed essentially as actions at law for breach of contract (whether the contract was actual or implied).

In contrast, a plaintiff could seek restitution in equity, ordinarily in the form of a constructive trust or an equitable lien, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession. See 1 Dobbs § 4.3(1), at 587-588; Restatement of...