Employment & Labor Law
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Rivera v. Torfino Enterprises, Inc.
2005 Fla. App. LEXIS 18803
In Rivera, the plaintiff sued for retaliatory discharge under Florida's Whistleblower statute. Specifically, the plaintiff alleged that in June of 2002, she reported and objected to sexual harassment. Afterwards, she says her boss was unhappy about this and yelled at her for complaining, and he also threatened her job. Nine days after this incident, the plaintiff was fired.
The trial court dismissed the complaint citing only unreported federal district court cases which held "the Florida Civil Rights Act is the exclusive remedy for retaliatory discharges based on underlying discrimination complaints." Rivera at 2 Citing Gusler v. Pro Direct Response Corp., 1998 WL 1803344 (M.D. Fla. 1998).
The Appellate Court reversed this decision. It reasoned that both the FCRA and the Whistleblower's act has prohibitions against "retaliatory firing as its central purpose." Rivera at 7.
The court further added "Florida's more specific statute is the Whistleblower's Act. IN any event, we see no reason why these two statutes cannot be harmonized to give effect to both. It appears that these statutes were intended to provide dual remedies in "overlap" cases, and that they should be so construed." Id.
The defendant had argued that the more specific statute should control. Citing Texas Case law on the matter, the defendant argued that the Human Rights Act (similar to our FCRA) controlled because it "provided exclusively for the relief of discrimination," whereas the Whistleblower's Act "specifically provided recourse for retaliatory firing." Rivera at 6.
The court reasoned that in this case, the plaintiff did not allege sexual discrimination; Retaliation was the main aspect of the case, and the Whistleblower's Act, retaliatory firing was its main concern. Rivera at 7.
Additionally, the plaintiff tried to argue that under Title VII and the FCRA, they needed 15 or more employees for the sexual harassment to be illegal and since they did not have 15 or more, then the actions were not illegal, and if the actions were not illegal, then there could be no retaliatory discharge. Rivera at 8.
However, the court denied this argument stating that this was raised on appeal for the first time, and that it was not properly before the court on its motion to dismiss.
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