From Jones v. Florida Dep’t of Health, adjudicated by Florida Court of Appeal judges Joseph Lewis, Ross Bilbrey, and Thomas Winokur:
Jones held the position of Environmental Health Program Consultant within the Florida Department of Health’s Division of Disease Control and Health Protection. In March 2020, amid DOH’s response to the COVID-19 outbreak, Jones was assigned to work on the Department’s “COVID-19 Dashboard,” an interactive display intended to illustrate testing data for public view. The parties agree that Jones’s reporting line ran through her immediate supervisor, IT Director Craig Curry, with Division Director Dr. Carina Blackmore above him, and authority then extending to the former Deputy Secretary, Dr. Shamarial Roberson ….
[O]n or about April 9, 2020, Curry learned that Jones had posted Facebook messages identifying herself as the person responsible for maintaining DOH’s COVID-19 Dashboard and explaining the information shown on it. About twelve days later, Curry discovered that Jones had given an interview to DOH’s external geographic information system (GIS) vendor describing her role as the Dashboard manager.
Curry also learned of a blog Jones published in which she styled herself as the author of DOH’s COVID-19 Dashboard and posted charts derived from data she had created as part of her job duties. Curry worried that Jones had not secured permission from DOH’s Office of Communications before making public statements as a DOH representative about the Dashboard’s information.
In late April 2020, to support the State’s plan to reopen counties with lower newly reported infection rates, Jones was assigned to craft and present reopening criteria for inclusion on the Dashboard. Jones presented her work on this “county scorecard project,” including county-by-county positivity rates, to Deputy Secretary Roberson on April 26, 2020.
According to Jones, Roberson disapproved of her presentation because the COVID-19 figures exceeded target percentages for reopening many counties. {The truth of Jones’ allegations is not material to our decision.} Jones testified that Roberson instructed her to rework the data by lowering infection rates and to exempt counties with smaller populations from the scorecard materials.
Jones argued that she took this as a directive to falsify the data, and she refused to comply. Ultimately, the county scorecard data were not published. Although she disagreed with Roberson’s instructions, Jones did revise the COVID-19 Dashboard to reflect updated case positivity rates and other data supplied by DOH epidemiologists.
Jones continued to publish information to the public through DOH’s open data hub, including items not approved for publication by DOH. On May 5, 2020, she was instructed to temporarily take the data hub offline so the material could be vetted, but she openly resisted…. Jones was removed from her assignment on the COVID-19 Dashboard on May 6, 2020.
Jones acknowledged that on May 7, 2020, she altered the Dashboard files and removed several team members’ administrative software rights, preventing their access and hindering their ability to perform their duties. Curry ordered Jones to restore those privileges and told her not to impede her colleagues’ work on the Dashboard. However, she did not comply. Consequently, Curry had to contact the software vendor directly to reinstate the access rights.
The following week, on May 14, 2020, Jones texted Curry indicating that she was contemplating filing a whistleblower complaint about “how I’m being treated, the Dashboard mess, gross mismanagement.” … The next day, Jones sent an email to an outside GIS data discussion listserv informing recipients that she was no longer the Dashboard manager and that the new team operating the Dashboard was not expected to maintain the same level of accessibility and transparency as she had….
Jones was terminated on May 18, 2020, and filed suit on several grounds. The court rejected Jones’ whistle-blower claim:
[Jones] conceded, and the trial court found, that she did not present any evidence of whistleblower activity protected by the statute before her termination. It was undisputed that Jones did not report a violation of law or a prohibited act by DOH to any recipient listed in section 112.3187(6), nor did she submit any written and signed complaint under section 112.3187(7) prior to her termination. Accordingly, we agree with the trial court that Jones failed to establish a prima facie case of retaliation under section 112.3187.
The trial court rejected Jones’ argument that her termination prevented her from filing a written report. The court found she had ample opportunity to make a protected disclosure under the Florida Whistleblower Act if she had intended to do so after her alleged refusal to falsify the data on April 26, 2020. The record supports the trial court’s conclusion that neither DOH nor any supervisor obstructed her from satisfying the requirements of sections 112.3187(5), (6), and (7) before her May 18, 2020 termination….
Jones’ May 14 text stating she wanted to complain about “how I’m being treated” did not constitute a protected disclosure of a DOH law violation under section 112.3187(5). The court applied the correct principle that “personal complaints” are not protected disclosures under section 112.3187 (citing Pickford v. Taylor Cnty. Sch. Dist, Fla. App. 2020) and (Nazzal) v. Fla. Dep’t of Corrs., Fla. App. 2019 (holding that grievances about personal conflicts with a supervisor are not protected under section 112.3187)….
Jones did not contend with the trial court’s citations to her deposition and the depositions of other witnesses showing that shortly before she was terminated she interfered with other employees’ access to the COVID-19 Dashboard and refused to reinstate that access when directed. The trial court also cited deposition pages supporting its finding that before termination she sent messages to a broad external group disparaging the new Dashboard team after her reassignment.
The trial court’s determination that Jones’ firing was based on these acts of insubordination and breach of DOH policy, rather than retaliation for protected whistleblower disclosures as described in sections 112.3187(5), (6), and (7), was supported by competent, substantial evidence….
And the court rejected Jones’ First Amendment claim:
To prove that her communications qualified as protected speech, Jones had to show that she spoke as a private citizen, that the topic touched on a matter of public concern, and that her interest in publishing the statement outweighed the employer’s interest in regulating it.
Whether the speech is citizen speech or employee speech depends on whether it arose from the public employee’s professional duties. Jones testified she was tasked with creating and managing DOH’s COVID-19 Dashboard and that she was responsible for communicating with the public and the media on behalf of DOH about the Dashboard….
Jones agreed that in her blog post and Facebook post she identified herself as the DOH Dashboard manager speaking with authority derived from her job. Therefore, Jones’ public remarks about the Dashboard and her reassignment were made in her capacity as a DOH employee, not as a private citizen acting on her own behalf.
On appeal, Jones does not claim that her refusal to follow her supervisor’s directives (to refrain from disseminating data publicly until it had been vetted, to adjust the data for a new purpose, and to restore access to the Dashboard for colleagues after removing it) constituted protected First Amendment activity. Likewise, she does not contend that her public criticism of the Dashboard team in her replacement status was protected citizen speech.
As the Supreme Court has recognized, the government in its capacity as an employer possesses broader powers than when acting as the sovereign, and many core tenets of First Amendment jurisprudence cannot be straightforwardly applied to speech by government workers. Consequently, Jones could not show that her termination was retaliation for protected speech as defined by the First Amendment….
Miriam R. Coles and Dawn M. McMahon (Henry Buchanan, P.A.) along with C. Alan Lawson, Jason Gonzalez, Jessica Slatten, and Taylor Greene (Lawson Huck Gonzalez, PLLC) represented the defendants.
