Dismissal of Complaint (Action under Florida’s Public Whistleblower Act) for Failure to State Cause of Action
A trial court’s dismissal of a complaint for failure to state a cause of action is reviewed under a de novo standard. Henley v. City of North Miami, 46 Fla.L.Weekly D2296c (Fla. 3d DCA 2021).
An example of a trial court dismissing a complaint for the failure of the plaintiff to state a cause of action can be found in Henley where the trial court dismissed with prejudice the plaintiff’s claim under Florida’s Public Whistleblower Act per Florida Statute s. 112.3187. In this case, a public employee (plaintiff) alleged that he was terminated after sending emails and texts to the City Manager and Deputy City Manager regarding the City’s budget. The trial court dismissed the complaint finding that the plaintiff failed to state to a cause of action for retaliation under Florida’s Public Whistleblower Act because his alleged disclosures did NOT constitute protected disclosures under the statute.
The plaintiff needed to sufficiently allege: “(1) the plaintiff engaged in a protected activity (i.e., a protected disclosure); (2) the plaintiff suffered an adverse employment action; and (2) the two events are not wholly unrelated.” Henley, supra(quotation and citation omitted). The trial court, as affirmed on appeal, found the plaintiff failed to property plead and support the first element.
Section 112.3817(5) provides:
NATURE OF INFORMATION DISCLOSED.—The information disclosed under this section must include:
(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.
Further, section 112.3187(7) provides, that “This section protects employees and persons who disclose information on their own initiative in a written and signed complaint….”
The plaintiff’s complaint, here, did “not identify any violation of law or any act of suspected gross mismanagement, misfeasance, etc.” Henley, supra. In other words, the plaintiff did not allege any disclosure protected under Florida’s Public Whistleblower Act and the plaintiff was required to sufficiently plead he engaged in a protected disclosure. Henley, supra.
The plaintiff’s complaint also alleged oral disclosures; however, “[t]hese non-written disclosures cannot be considered when determining whether [plaintiff] engaged in protected activity.” Henley, supra.
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