Sch. Bd. of Palm Beach Cnty. v. Groover

• Decision Date: 13 April 2022
• Docket Number: 4D20-1547, No. 4D20-2276
• Citation: 337 So.3d 799
• Parties: SCHOOL BOARD OF PALM BEACH COUNTY, Appellant, v. Gary GROOVER, Appellee. Gary Groover, Appellant, v. School Board of Palm Beach County, Appellee.
• Court: Florida District Court of Appeals

337 So.3d 799

SCHOOL BOARD OF PALM BEACH COUNTY, Appellant,

v.Gary GROOVER, Appellee.

Gary Groover, Appellant,

v.School Board of Palm Beach County, Appellee.

No. 4D20-1547

No. 4D20-2276

District Court of Appeal of Florida, Fourth District.

[April 13, 2022]

Sean Fahey of Office of General Counsel, School Board of Palm Beach County, West Palm Beach, for School Board of Palm Beach County.

Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A., Jupiter, and Isidro M. Garcia of Garcia Law Firm, P.A., West Palm Beach, for Gary Groover.

Gross, J.

The School Board of Palm Beach County appeals a final judgment entered after a jury verdict in favor of Gary Groover in his action under Florida's whistleblower statute. In a consolidated case, Groover appeals a post-trial order denying his motion for equitable relief where he sought reinstatement to his prior position or, in the alternative, five years of front pay and other benefits.

We affirm the final judgment against the School Board. In Groover's appeal, we reverse in part and remand for a new hearing on the issue of front pay.

Introduction

Groover brought a one-count complaint against the School Board under the Florida Public Sector Whistleblower's Act. See §§ 112.3187 – 112.31895, Fla. Stat. (2014). He alleged that he was demoted from his position as an assistant principal to a teaching position by the principal of Boynton Beach High School in retaliation for his participation in an investigation by the School Board's Office of Inspector General ("IG").

The IG investigation concerned (1) a semi-pro basketball team's lease of the school's gym for basketball games at a reduced rate by using the non-profit certificate of an unrelated entity and (2) the team's use of the gym without a lease.

The case proceeded to a six-day jury trial. Groover presented two witnesses in his case: himself and the IG investigator.

The School Board called four witnesses: (1) a former principal of the high school; (2) the principal who demoted Groover; (3) a witness who conducted a review of the evening programs supervised by Groover; and (4) the School Board's regional superintendent at the time of demotion.

The School Board's evidence painted Groover as a non-performing employee whose demotion had nothing to do with his participation in the IG investigation. The principal testified that the demotion "was based on the performance issues that we had noted throughout the year and the fact that he was on an annual contract."

The School Board took the position that well before the IG investigation the principal did not intend to reappoint Groover as an assistant principal at the end of the school year. Much of that intent was not documented in writing.¹

Groover's position was that the principal falsely accused him to cover up his own neglect, that the principal made him a scapegoat, and that he was punished for telling the truth in the IG investigation.

The jury's verdict found that the School Board demoted Groover because he participated in the IG investigation on January 15, 2015.² The jury awarded him $140,000 for lost wages and $30,000 for mental anguish. In a thoughtful ruling, the trial court denied the School Board's post-trial motion for a directed verdict, or in the alternative, for a new trial.

Viewing the Facts in the Light Most Favorable to Groover, the Jury Verdict was Supported by the Evidence at Trial

Florida applies the procedure established by federal Title VII case law to the Whistleblower Act. Rustowicz v. N. Broward Hosp. Dist. , 174 So. 3d 414, 419 (Fla. 4th DCA 2015).

The trial judge denied the School District's motion for directed verdict at the close of Groover's case. The burden then shifted to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. City of Hollywood v. Hogan , 986 So. 2d 634, 641 (Fla. 4th DCA 2008). Once the defendant offers such evidence, the McDonnell Douglas³ burden-shifting framework disappears and the "sole remaining issue [is] discrimination vel non ." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 142–43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks omitted).

As the United States Supreme Court observed in United States Postal Service Board of Governors v. Aikens ,

[W]hen the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff's proof by offering evidence of the reason for the plaintiff's rejection, the fact finder must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption "drops from the case," and the "the factual inquiry proceeds to a new level of specificity."

460 U.S. 711, 714–15, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (internal footnote and citations omitted).

"The plaintiff retains the burden of persuasion." Texas Dep't of Cmty. Affs. v. Burdine , 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff must "have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. at 253, 101 S.Ct. 1089. "This burden now merges with the ultimate burden of persuading the [factfinder] that [he] has been the victim of intentional discrimination." Id. at 256, 101 S.Ct. 1089.

"Pretext is established either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Kogan v. Israel , 211 So. 3d 101, 109 (Fla. 4th DCA 2017) (internal quotation marks omitted). "[T]o show that the employer's reasons were pretextual, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence." Id. (internal quotation marks omitted).

"[T]he pretext inquiry focuses on the employer's beliefs and whether the employer was dissatisfied with the employee for nondiscriminatory reasons, ‘even if mistakenly or unfairly so.’ " Elver v. Hendry Cnty. Sheriff's Off. , 791 F. App'x. 56, 58 (11th Cir. 2019) (quoting Alvarez v. Royal Atl. Devs., Inc. , 610 F.3d 1253, 1266 (11th Cir. 2010) ). If "the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason." Chapman v. AI Transp. , 229 F.3d 1012, 1030 (11th Cir. 2000).

One way to demonstrate pretext is to show that the employer gave "different and arguably inconsistent explanations" for taking the adverse employment action. McDonough v. City of Quincy , 452 F.3d 8, 18 (1st Cir. 2006). And pretext can be established with proof that the employer failed to follow its own policies and protocols in connection with an adverse employment action. See Kogan , 211 So. 3d at 109.

"Disbelieving a witness's testimony about one of the material facts in a case can justify the trier of fact in disbelieving the witness's contested testimony on other material facts." Pryor v. Seyfarth, Shaw, Fairweather & Geraldson , 212 F.3d 976, 979 (7th Cir. 2000). An adverse credibility determination as to the ultimate decision maker can provide further support for a finding of discrimination. See Holland v. Gee , 677 F.3d 1047, 1063 (11th Cir. 2012) ("Third and finally, we note that the credibility of Chief Deputy Docobo, the ultimate decisionmaker, was heavily challenged at trial, well apart from the fact that there was evidence to rebut his proffered reasons for terminating Ms. Holland.... All of this could have been the basis for the jury to make an adverse credibility determination as to Chief Deputy Docobo and thus further supported the finding of discrimination."); see also Cleveland v. Home Shopping Network, Inc. , 369 F.3d 1189, 1194 (11th Cir. 2004).

Viewing the facts in the light most favorable to Groover, we conclude that the jury verdict was supported by the evidence and reasonable inferences that could be drawn from the evidence. This case turned heavily on the credibility of the witnesses, and the jury could have been persuaded that a retaliatory intent more likely motivated the principal's decision or that the principal's proffered explanation was unworthy of credence. For example, the jury could have concluded that the performance issues in certain write-up memos either were rebutted by Groover or would not have motivated a reasonable employer to demote him.

Significantly, the jury could have found that an alleged October 2014 conversation between the principal and the regional superintendent did not happen. The regional superintendent testified that the non-reappointment decision was made in October 2014. The jury could have determined that it was improbable that the non-reappointment decision was made nine months before the end of the fiscal school year. There was no contemporaneous documentation of any October 2014 decision not to reappoint Groover, which the jury could have found unusual in a bureaucracy like the School Board, where so much is documented. The principal's testimony that he "may have sent" an email about the purported decision was significantly impeached on cross-examination.

The jury could have found that if Groover's performance were as bad as the School Board portrayed it, he would have been fired before the IG investigation began. Groover's Annual Contract suggests that he could have been fired in October 2014 without cause. In any event, the "performance issues" claimed by the School Board, if genuine, would have supported a termination for cause.

Finally, the jury could have found that the principal's credibility was damaged on material issues. There were inconsistencies between his deposition and trial testimony....