please the court my name is hello sandridge and i represent leak county with me today is victoria also from our firm the critical issue that this court must address is whether florida's public whistleblower act requires discharged employees to establish causation through proof that the decision maker terminated the employee because he or she disclosed gross mismanagement the pla ahead and make sure that i leave time to deal with that you're on so the plaintiff pled in below that causation under the i call it the p w a the public whistleblower act is satisfied by proof that the decision maker terminated the employee for participation in an audit however the p w a requires more causation relates to terminations for making disclosures not terminations for participation you talk to one out of five ok odds are you're going to fire one out of five if you just are nondiscriminatory only two that's a coincidence three that's a hell of a coincidence for that's compelling proof i mean come on why could a reasonable jury not look at that insight of course they fired them because they talk to the odd so i am sure that's exactly what happened in this case it's what would have happened had i been on the jury and i would say that if you made that decision based solely on that inference that is not an it's not an inference it's a fact it is a fact but but here is think this is very important and this is been misunderstood before you go i thought so you testified at first he didn't know who talked to then he changed his testimony and said i assume everybody talked to him and then he changed his testimon third and then a fourth time am i wrong about that i think it's i think it's a little bit different than that he didn't say it exactly like that but i think at first he said that he did not know and later he said well i think i may have his demeanor and we're not challenging that let's you are let me know you are challenging that if the jury can find that he lied when he said i didn't know who talked to the auditor if the jury could find he knew to talk to the on thursday and then he fires four out of five saving only his good friend the you know they don't have to prove anything else do your honor and  me go back to the statute again so the statute is it's intitled adverse action against employee for disclosing information the p w a unlike some of the other retaliations statutes is not for discharging for participating in an audit the prohibited activity actions prohibited are defined i know where you're going with as the audit report came out and was very critical was not it was and these people talked to the auditor they did and then the all the report that their protests a patient led to was very critical what kind of i'm sorry why does it take a genius to figure out that if the audit report that was a result that resulted from them talking to them was very credible they must have said very critical thanks so so here is the way they tried the case and why our severance motion which was denied was important what they collectively did is they lump this all together as though you could show that simply because they were fired altogether one thing no no they they were they were fired separately one was reorganization were fired because of the doubt two things number one it's up to the jury decide why they were fired and number two even if they were fired as part of a reorganization are as part of the downsizing the question is were they selected because of their participation in that audit in which they made critical remarks in your honor that's not what we believe the issue is the issue is whether they were terminated and i'm going to go back to the statute it says that the action prohibited is not terminating someone because they participated in an audit it is an agency or independent contractor sh dismiss and i'm paraphrasing an employee for disclosing information which i mismanage where else would they have gotten the critical information they auditors so there's no question about this the evidence showed in all of the plaintiffs admitted that the critical information could have come from other employees other than themselves or public information and so what and by the way but but but it also could have come from them it could've been they didn't other employees there are other employees that were fired within the county not i think in line in the media correct so it was just blind luck the decision maker happened to fire the people who actually gave the derogatory information i don't think it was blind luck i think that they were all part of this dysfunctional organization and i only dysfunctional people doctors and and i'm not suggesting that that what i'm saying is that i think that the trier of fact i'm sorry the decision maker and i think he testified to this wanted to clean house and i don't think there's any question about right and that's what you argued to the jury and you didn't object to any of the jury instruction to relating to this issue of causation as i recall data so well here's what happened with the jury unstrung now did you object to any of the jury instructions we owned this issue of causation so yes and no so the way the jury instructions worked in this case is we provide a jury instructions and they provide a jury instructions and in ours we did not specifically ask for the language that the judge gave which the plaintiffs asked for they asked for the language you object to the plaintiff's line so so no because what happened is we gave the information and the judge didn't have i thought this was an unusual procedure a charge conference and so the way he let us know what instruction he was choosing you could have objected after the instructions were given yes if you had no opportunity to do so before and so the jury was instructed without objection on the causation element and there's all these facts you argue one way there's all the facts supplants argue the other way and the jury the doctors of doubt decided which way the dow money and it resulted according to the jury instruct yes and again i do not disagree that that's what they did but here is the problem and then i'd like to turn to the damages i was i was the hearing you're frittering it away very well and the reason i say what i say is because this jury couldn't have found what it did because they didn't try the case that they needed to try i'd like to move to the damages issue used so no we requested a specific element of damages that we remitted where up on that but you didn't ask for a fifty aiyana you didn't ask for fifty being on it you raised it for the first time in the renewed fifty b after verdict we've said you can't inject new issues at that time then you raised shows is that has your opponent complained that it was belated you know no one's ever complained it was belated and what it showed is that two hundred thousand dollars was awarded to no eight based upon her testimony a future action she would have taken and there's no evidence how she had actually taken the action of filling out the papers according to the unrefuted testimony sure and that's an easy one to take but what's more difficult is paying coming up with and paying sixty thousand dollars in the future and she was kept on for some period to allow her to do this right and she didn't do it she didn't do it in so our point why she told that she was being kept on to allow her to bond that time yes yes there it was the evidence in the record clear that she could have bought it during that period are not specifically the reason she was kept and she didn't do it and so i think that and when you tell me  specifically the reason she was kept that doesn't answer my question is is the record evidence show that she had been approved and could have purchased it during that two month period she doesn't contend other i don't i don't think that anyone put any evidence into the contrary i do know that that was the reason that she was kept she asked for it and she could have done it and there's nothing to show that she couldn't do it she just didn't do it i can see my time is up thank you she had asked to stay on a bit longer because quote she was working on something retirement related and that's in the record one forty nine page eighty eight there is nothing that she could have with  that i'm aware of stating that she had the opportunity to do this and in fact it's actually contrary what was testified to was miss no testify that she was in the process of buying back five years of service she explained how she had been a government employee for seventeen years and that she was in the process of getting them to sign off on my years of service with them she said i submitted that form finally to the state of florida and i wanted to buy back five years so that would have given me approximately thirty one years in the retirement system she said that's not clear either what is clear from her testimony that she submitted the forms and then she was told no you can't do this because you are no longer heard what other evidence and where is it in the record about her being kept on in order to make that payment and about whether she could have made the paper the paper i'm sorry i meant the paperwork  been approved before she was finally let go where is they have other evidence there it isn't there is there is nothing in the record other than mr sale or testifying that she was working on something work related to indicate that she was allowed to stay on for that purpose and the inference is being made is that she was allowed to stay on for that purpose and she failed to do so i do not believe that is in the record what is in the record is her testimony that when she discussing her damages she explains i was going to do this i was in the process of doing this i was then told i could not do it because i was terminated this is what that benefit would have been to me now there was no he said one hundred  fifty two hundred thousand dollars doesn't adenovirus how much it would have cost she did not specific identify how much would it cost however i will know that this testimony i was going to do this i was in the process of doing it which does not make it speculative to the point where it was  improper she said this is the benefit i could have gotten as an employee government employee this is how long i've been working this is what it would have been i was in a process of thank you lation though is i mean it would have cost something and her and what the amount she testifies to is one hundred fifty to  hundred would have been the bend the retirement benefit and judge by what there was never any cross examination as to that point certainly if there was an issue with well can you afford that then that's something that should have been brought up on cross examination burden the burden to prove damages you had a scratch on her and when you say i could have ball back but back some time she's talking about five years in the p s a and you don't say how much it would  you proven your net damages i believe you have your honor because the presumption is or she's saying i would have done this i was in the process of doing this implicit in that is you can't do it if you can't afford to do it i'm talking about the amount of the damages suppose you was a washed in cash we still don't know how much it would have cost to buy back those years they're not free and you don't get them for a dollar a year right but she also didn't testify that part of that two hundred thousand she was trying to recoup back sixty that it would have cost her to buy she was saying if i purchase if i had purchased this the result would have been an extra one fifty to two hundred thousand dollars in retired now she doesn't say extra this is what she actually said on the record you're talking about page forty of two away line not tain i wanted to buy back five years so that would give me a proxy thirty one years of florida retirement system so that would have amounted to probably about an additional one hundred fifty to two hundred thousand to my retirement it sounds like it would have increased our time retirement hundred fifty to two hundred thousand putting aside the fact that's a fifty thousand dollars gap and specification she still doesn't say how much it would have cost her to add that to retirement they don't deduct it at least in the state i'm familiar with they don't deduct it from your future retirement you buy it  now is that not the way florida we don't know how far does that's all that's what we have your autograph that is my understanding how you supposed to calculate the amount of net damages if you don't know how much it would have cost her to get an extra said under the statute this amount is this percentage and it's easy to calculate the jury i don't believe insurance russians was given that information but certainly they were aware she said i'm buying back they knew that there was an element of something that she was having to buy for this the argument that's been made is that they gave the two hundred thousand basically they gave it to hundred thousand that shot which we know is inaccurate because it doesn't reflect the amount it would have cost her but it reflects the amount that she would have had in retirement benefits had she not been terminated yes but it doesn't reflect the amount it would have cost her let's say it would have cost her to take an extreme hypothetical that would have cost her two hundred one thousand she's not in title but any damage award had she in that circumstance in that circumstance no ok if it would have cost her fifty grand and it would have increased over the life expectancy of the retirement two hundred thousand dollars she's not entitle to two hundred thousand is she she's entitled to one fifty but she got two hundred she got it cost free is wanted to mount through the jury and that's just you know again i you know she she discussed that she had to buy it back it was a one fifty to two hundred was what she estimated it would cost in her retirement to me this let's say you tear ok we've got to do something about what would you say if you even if you've lost the point that it's fair what do you think we have to do that well if it's error then i think that the proper thing would be that the jury awarded two hundred thousand and  that do we vacated remanded to the district court to redo it i don't see the whole thing to be redone i think if anything there may be a remitted or for that amount that she would have had to pay are we supposed to determine that amount will counsel determine you have no quarrel with it with your opponent's calculation it's a statutory framework around him is based on statute so it's except he's got that interest it's a percentage it's a percentage so i mean it's a it's a mathematical twelve grand a year i get right problem but i think that if there is a remain and i guess my point which is that it should be limited to because i mean there there has been you know they're seeking kind of a whole judgment in their favor and a whole redo and and i think that if this limited issue you know needs to be remanded then it is not even i would argue that because again the point is that she testified i would have gained this benefit i understand the court's concern that that wasn't offset by the cost that she would have had expended to purchase it but that does not negate the say they lose on that ok so what i'm saying is if there was an issue with the lack of accountability for the amount that it would have cost to to purchase this then i think that is what the limits were minuter has to be limited to because issue the we're here primarily with the heart of the first issue because these three lee county employees were asked to participate in an audit an audit that was extremely critical of the economic development office whistleblower statute is intended to protect employees just like miss no they participated the testimony in was that in fact mr saylor as judge barnes pointed out initially it was why didn't know that's why there was significant argument below about his knowledge because he was saying he didn't know so of course that was something that had to be established so there was significant testimony and argument on the summary judgment hearings and things like that to establish yes sailor knew because he was saying he didn't know well then we get to trial and there's sort of this shifting of sands well yes i did know that that they participated so then the causation question shifts and becomes as as the county has stated well you know what does he have to know and the notion that mr saylor had to know specifically you disclosed this specific piece of information i mean is not supported by the case i would have a devastating chilling effect on the whistleblower act the courts have stated repeatedly that the intention of the act is for it to be applied broadly and to  provide protection to employees here we have the standard even in cases cited by the county is that the plaintiff must generally show that the decision maker was aware of the protected activity now yes under the statute the protected activity is impropriety within the there in fact is testimony that we've cited in our brief where miss schumann for example specifically testifies that she was the only want to knew about the fiscal that was what she did and she points to items in the audit that are things that she specifically talked about are there some items that throughout all their testimony they said well you know anybody maybe would have known that sure but that doesn't negate the fact that there was specific items that they each had personal knowledge of you have for example mr sa  that was something he states that that was something that he thought was not well known well you know we really weren't sure that that was i mean that was not well known by everyone and that only certain people were aware of that information well now inference enough no probably not but when you have that combined with the audit itself the testimony from each of the plaintiffs as to what they disclosed what information they had what they had knowledge of again and the audit itself states we interviewed six employees the auditor interviewed six employees who expressed concern with organizational changes and then it goes on to say discussed during the interviews included and then it goes on the laundry list twelve items just now again this audit report was part of the record would have had those problems before they didn't resolve them reorganization and lay and lay off and i'm glad right you are correct that part i'm glad you got to that point as i actually was something i wanted to mention was that in fact just to answer  o that they had never had a reorganization and they despite her they had these kind of problems they might cut travel there are a lot of things that they would do but not not this that is correct and in fact eileen sherman testified that she often was the one responsible for sort of doing a preliminary budget cut when these things came about and that in fact in this particular year she had done that as she always had she had found approximately seventy five thousand dollars worth of reductions and as she testified  oddly mr moore came in and said no no stop what you're doing i'm going to do it and she explained that was extremely out of the ordinary and again one of the factors that could be looked at for a pretext which a lot of into this crossing kind of goes to is in fact when you're doing something out of what is normal so you know the jury certainly there was enough evidence to go to the jury to consider whether this claim to reorganization was pretext based on what we've discussed and the fact that in fact they hired additional people thank you thank you your honor what you just heard was the argument that they didn't make to the jury and this is our point our point is throughout this entire case they believe that they had to show participation  argument is they have to show disclosure and what they are asking this court to do is to basically act as the jury and say that that jury could have found this on this evidence and our point is that no authority permits a court to affirm a jury verdict on evidence that the jury was never asked to consider on an element that they never asked the jury to decide and with respect to the damages issue i wanted to refer this court to the case that i cited in our brief brow versus imperial sterling in our point at the beginning is that damages cannot stand because there was a failure of proof so the entire damage award remember this was an issue that went to the jury the jury had to look at the evidence and decide whether or not she was entitle to these retirement benefits in our point is that that the plaintiff just no he didn't put in a for example that would have given them the opportunity in the trial judge the discretion to allow them to supply the missing element and yet didn't do it instead you wait until they have the jury's discharge and they have no more opportunity to do that and then you raise it and  can be taken care of but to say that they lose the entire claim because you didn't and a timely fashion raised the problem when you had the procedural power to do so is is i think a step too far i hear what you're saying your honor and i believe that the difference here is she is entitle to some damages we're just challenging a portion of it and so we did bring this up once the jury verdict came  portion that we're challenging is the retirement and so we had no basis i believe to move forward directed verdict during their case in chief because she was entitled to some damages and if the question was if she didn't prove that component of the damages you certainly had they had thought the procedural basis our vehicle for asking the jury to exclude that element and direct the jury not consider yeah and he got counsel got up in closing argument and said and that she had testified there was one hundred thousand dollars in damages which the jury realized was his slip up mistake and you didn't object to that i think what i'm trying to do is just make sure that the court knows that we have two arguments number one is that she didn't prove or damages all and number two that there is an amount that can be set off whatever it might be that she did not completely prove the exact amount