Rustowicz v. N. Broward Hosp. Dist.

• Decision Date: 01 July 2015
• Docket Number: No. 4D13–2059.,4D13–2059.
• Citation: 174 So.3d 414
• Parties: Barbara RUSTOWICZ, Appellant, v. NORTH BROWARD HOSPITAL DISTRICT n/k/a Broward Health, Appellee.
• Court: Florida District Court of Appeals

174 So.3d 414

Barbara RUSTOWICZ, Appellant

v.NORTH BROWARD HOSPITAL DISTRICT n/k/a Broward Health, Appellee.

No. 4D13–2059.

District Court of Appeal of Florida, Fourth District.

July 1, 2015.

Rehearing Denied Sept. 9, 2015.

Michael A. Pancier of Michael A. Pancier, P.A., Pembroke Pines, for appellant.

Julissa Rodriguez and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, and Caran Rothchild and Kristina L. Ciaffi of Greenberg Traurig, P.A., Fort Lauderdale, for appellee.

Opinion

CONNER, J.

Barbara Rustowicz appeals the trial court's summary judgment in favor of North Broward Hospital District (“the employer”), a governmental entity supported by tax dollars. Rustowicz sued the employer alleging her employment as an audit associate was terminated in violation of Florida's Whistleblower Act (“the Whistleblower Act”)¹ and Florida's Civil Rights Act (“the Civil Rights Act”).² We affirm, without discussion, the summary judgment as to the two counts alleging violations of the Civil Rights Act. The trial court granted summary judgment on the Whistleblower count after determining there was no dispute of material fact that Rustowicz did not make protected disclosures (1) in a signed written complaint or (2) to the appropriate official. As to the Whistleblower count, we determine the trial court erred in its application of the law and reverse for further proceedings.

Factual Background and Trial Court Proceedings

Events Leading Up to Discharge From Employment

The employer is a hospital created by special taxing district legislation. The hospital's business affairs are managed by a board of commissioners (“the Board”) and a chief executive officer (“CEO”). The employer has an Internal Audit Department. The Internal Audit Department's director answers to the Board, not the CEO. There is also an Audit Committee composed of one of the Board members, two outside auditors chosen by the Board, and the Internal Audit Department director. It is the Internal Audit Department's function to independently review, evaluate, and report to the Board on the accuracy of financial record keeping and compliance with applicable laws, rules, regulations, policies, and procedures. The Audit Committee was created to assist the Internal Audit Department and to act as liaison between the Board and the Internal Audit Department.

Rustowicz was an employee initially hired as an executive secretary working under a former Internal Audit Department director (“Director R”). Director R decided to eliminate the position of executive secretary and moved Rustowicz into a newly-created position entitled “audit associate.” As audit associate, Rustowicz performed many of the same tasks that she did as executive secretary. However, as a result of the creation of the new position, some secretarial tasks needed by the Internal Audit Department were shared with the legal department.

Before her employment with the hospital, Rustowicz suffered from depression and anxiety, which she treated with prescribed medication. After her employment, she was diagnosed with Crohn's disease, a painful, chronic disorder of the digestive system. Stress causes Crohn's disease to flare up. Rustowicz's health issues caused her to take intermittent periods of medical leave. In addition to FMLA leave,³ the employer had a medical leave policy allowing for up to an additional three months of leave time.

In July 2006, the Board entered into a written employment agreement with a new CEO (“CEO L”). At the time, CEO L lived in Tallahassee. One of the Board members, without the knowledge of the other Board members, also negotiated a relocation side agreement with CEO L. Pursuant to the relocation agreement, CEO L received $35,000 to cover the expenses of relocating from Tallahassee to Broward County. CEO L left the hospital for another job in January 2008. During his employment with the hospital, CEO L never relocated from Tallahassee.

In February 2008, Rustowicz discovered the $35,000 relocation payment to CEO L. She brought the matter, as well as other questionable expense items by CEO L, to the attention of Director R. Director R directed Rustowicz to investigate the expenditures further and to determine if there were additional irregularities.

Rustowicz found at least three significant violations of law, as well as the hospital's code of conduct. She compiled a report (“the audit report”), which was submitted to Director R, and eventually the Audit Committee and the Board.

Using the normal audit investigation procedure, the Internal Audit Department would have sought a response from the person under investigation before an audit report was submitted to the Board. However, detailed information from the investigation was leaked to the press, creating a firestorm. The firestorm eventually caused the Board to discharge Director R. Director R was discharged three months after the audit report was delivered to the Board. Shortly thereafter, Director R sued the employer, keeping the firestorm going.

Tension within the Internal Audit Department was high, causing Rustowicz to fear losing her job. The stress caused her to take extensive amounts of medical leave during the five months between the discharge of Director R and hiring of the new director (“Director P”). During the interim, the employer's general counsel served as the Internal Audit Department's interim director (“Interim Director K”), even though he had no accounting experience. Interim Director K advised Rustowicz and all of the members of the Internal Audit Department that they would have to give depositions against Director R in the suit he filed against the employer.

Between September 2008 and March 2009, Rustowicz used all of her FMLA leave and the additional non-FMLA medical leave allowed for hospital employees. However, she began experiencing problems from the employer with using her medical leave and returning to work that she had not experienced before her submission of the audit report to the Board. For example, she was told she had to fill out medical forms in a more detailed manner to disclose medication she was taking. When Rustowicz wrote on the form the amount and time of day she was taking Xanax, she was told by the Employee Health Director that she was not able to return to work. This was despite the fact that Rustowicz alleged that Director R had known for years she was taking Xanax to reduce anxiety in order to avoid or reduce the flare-ups of Crohn's disease.

Director P began working for the employer on December 29, 2008. Rustowicz was out on medical leave at that time and remained on leave until the end of February 2009. It was alleged that Director P signed off on two leave forms which extended Rustowicz's leave until the end of February. When Rustowicz attempted to return to work on February 27, she was again advised by the Employee Health Director that she could not return to work and take Xanax medication at work. In response, Rustowicz advised she was going to call her attorney and left for lunch. In the meantime, the Employee Health Director contacted Rustowicz's doctor, who faxed a statement that he had reviewed the job description for the audit associate and it was his opinion that she could take the prescribed doses of Xanax at work and safely perform her job, with no restrictions. The Employee Health Director later admitted, based on the statement from Rustowicz's doctor, that he could not preclude Rustowicz from coming to work because of her Xanax use.

Upon Rustowicz's return to work after lunch, she was immediately sent to a meeting with Director P and the Human Resources Director. At that time, she was advised the audit associate position had been eliminated due to a restructuring of the Internal Audit Department by Director P, and the former position of executive secretary had been restored, but the position was already filled by another person. Rustowicz was offered the opportunity to apply for other positions with the employer. She applied for four other positions, but was not hired for any of them because she did not meet the degree requirements.

Trial Court Proceedings and Summary Judgment

Rustowicz filed suit pursuing three counts. Count 1 alleged a violation of the Whistleblower Act. Counts 2 and 3 alleged violations of the Civil Rights Act.

The employer filed a motion for summary judgment as to all three counts. The parties engaged in discovery. Pertinent to the issues on appeal is an affidavit by Director P filed in support of the motion and the deposition testimony of Rustowicz and Interim Director K. The details of the pertinent summary judgment evidence are discussed in the appellate analysis below.

The trial court granted summary judgment as to all three counts. The basis for granting summary judgment of the Whistleblower count is discussed below.

Appellate Analysis

“The standard of review of an order granting summary judgment is de novo.” Patten v. Winderman, 965 So.2d 1222, 1224 (Fla. 4th DCA 2007) (quoting Biggins v. Fantasma Prods., Inc. of Fla., 943 So.2d 952, 955–56 (Fla. 4th DCA 2006) ). Summary judgment is proper only when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c) ; see also Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006).

“[A summary] judgment should not be rendered ... unless the facts are so crystallized that nothing remains but questions of law.” Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla.2003) (quoting Shaffran v. Holness, 93 So.2d 94, 97–98 (Fla.1957) ). “Where the record demonstrates the possibility of a disputed fact, summary judgment is improper.” Pep Boys–Manny, Moe & Jack, Inc. v. Four Seasons Commercial Maint. Inc., 891 So.2d 1160, 1161 (Fla. 4th DCA 2005) (citing Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996) ). “It is the burden of the moving party to show conclusively that a genuine issue of a material fact does not exist before a...