DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BARBARA RUSTOWICZ,

Appellant,

v.

NORTH BROWARD HOSPITAL DISTRICT n/k/a BROWARD HEALTH,

Appellee.

No. 4D13-2059

[July 1, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Marina Garcia-Wood, Judge; L.T. Case No. 

CACE09044253.

Michael A. Pancier of Michael A. Pancier, P.A., Pembroke Pines, for 

appellant.

Julissa Rodriguez and Stephanie L. Varela of Greenberg Traurig, P.A., 

Miami, and Caran Rothchild and Kristina L. Ciaffi of Greenberg Traurig, 

P.A., Fort Lauderdale, for appellee.

CONNER, J.

Barbara Rustowicz appeals the trial court’s summary judgment in favor 

of North Broward Hospital District (“the employer”), a governmental entity 

supported by tax dollars. Rustowicz sued the employer alleging her 

employment as an audit associate was terminated in violation of Florida’s 

Whistleblower Act (“the Whistleblower Act”)1 and Florida’s Civil Rights Act 

(“the Civil Rights Act”).2 We affirm, without discussion, the summary 

judgment as to the two counts alleging violations of the Civil Rights Act. 

The trial court granted summary judgment on the Whistleblower count 

after determining there was no dispute of material fact that Rustowicz did 

not make protected disclosures (1) in a signed written complaint or (2) to

the appropriate official. As to the Whistleblower count, we determine the 

1 Sections 112.3187-112.31895, Florida Statutes (2013), is Florida’s Whistleblower’s Act. The section pertinent to this appeal is section 112.3187.

2 Sections 760.01-760.11 and 509.092, Florida Statutes (2013), are formally cited 

as the “Florida Civil Rights Act of 1992.” 
2

trial court erred in its application of the law and reverse for further 

proceedings.

Factual Background and Trial Court Proceedings

Events Leading Up to Discharge From Employment

The employer is a hospital created by special taxing district legislation. 

The hospital’s business affairs are managed by a board of commissioners 

(“the Board”) and a chief executive officer (“CEO”). The employer has an 

Internal Audit Department. The Internal Audit Department’s director

answers to the Board, not the CEO. There is also an Audit Committee 

composed of one of the Board members, two outside auditors chosen by 

the Board, and the Internal Audit Department director. It is the Internal 

Audit Department’s function to independently review, evaluate, and report 

to the Board on the accuracy of financial record keeping and compliance 

with applicable laws, rules, regulations, policies, and procedures. The 

Audit Committee was created to assist the Internal Audit Department and 

to act as liaison between the Board and the Internal Audit Department.

Rustowicz was an employee initially hired as an executive secretary 

working under a former Internal Audit Department director (“Director R”). 

Director R decided to eliminate the position of executive secretary and 

moved Rustowicz into a newly-created position entitled “audit associate.” 

As audit associate, Rustowicz performed many of the same tasks that she 

did as executive secretary. However, as a result of the creation of the new 

position, some secretarial tasks needed by the Internal Audit Department 

were shared with the legal department.

Before her employment with the hospital, Rustowicz suffered from 

depression and anxiety, which she treated with prescribed medication. 

After her employment, she was diagnosed with Crohn’s disease, a painful, 

chronic disorder of the digestive system. Stress causes Crohn’s disease to 

flare up. Rustowicz’s health issues caused her to take intermittent periods 

of medical leave. In addition to FMLA leave,3 the employer had a medical 

leave policy allowing for up to an additional three months of leave time.

In July 2006, the Board entered into a written employment agreement 

with a new CEO (“CEO L”). At the time, CEO L lived in Tallahassee. One 

of the Board members, without the knowledge of the other Board 

members, also negotiated a relocation side agreement with CEO L. 

Pursuant to the relocation agreement, CEO L received $35,000 to cover 

3 FMLA leave is medical leave from employment pursuant to the federal Family 

and Medical Leave Act. 29 U.S.C. § 2601 et seq.
3

the expenses of relocating from Tallahassee to Broward County. CEO L 

left the hospital for another job in January 2008. During his employment 

with the hospital, CEO L never relocated from Tallahassee.

In February 2008, Rustowicz discovered the $35,000 relocation 

payment to CEO L. She brought the matter, as well as other questionable 

expense items by CEO L, to the attention of Director R. Director R directed 

Rustowicz to investigate the expenditures further and to determine if there 

were additional irregularities.

Rustowicz found at least three significant violations of law, as well as 

the hospital’s code of conduct. She compiled a report (“the audit report”), 

which was submitted to Director R, and eventually the Audit Committee 

and the Board.

Using the normal audit investigation procedure, the Internal Audit 

Department would have sought a response from the person under 

investigation before an audit report was submitted to the Board. However, 

detailed information from the investigation was leaked to the press, 

creating a firestorm. The firestorm eventually caused the Board to 

discharge Director R. Director R was discharged three months after the 

audit report was delivered to the Board. Shortly thereafter, Director R 

sued the employer, keeping the firestorm going.

Tension within the Internal Audit Department was high, causing 

Rustowicz to fear losing her job. The stress caused her to take extensive 

amounts of medical leave during the five months between the discharge of 

Director R and hiring of the new director (“Director P”). During the interim, 

the employer’s general counsel served as the Internal Audit Department’s 

interim director (“Interim Director K”), even though he had no accounting 

experience. Interim Director K advised Rustowicz and all of the members 

of the Internal Audit Department that they would have to give depositions 

against Director R in the suit he filed against the employer.

Between September 2008 and March 2009, Rustowicz used all of her 

FMLA leave and the additional non-FMLA medical leave allowed for 

hospital employees. However, she began experiencing problems from the 

employer with using her medical leave and returning to work that she had 

not experienced before her submission of the audit report to the Board. 

For example, she was told she had to fill out medical forms in a more 

detailed manner to disclose medication she was taking. When Rustowicz 

wrote on the form the amount and time of day she was taking Xanax, she 

was told by the Employee Health Director that she was not able to return 

to work. This was despite the fact that Rustowicz alleged that Director R 
4

had known for years she was taking Xanax to reduce anxiety in order to 

avoid or reduce the flare-ups of Crohn’s disease.

Director P began working for the employer on December 29, 2008. 

Rustowicz was out on medical leave at that time and remained on leave 

until the end of February 2009. It was alleged that Director P signed off 

on two leave forms which extended Rustowicz’s leave until the end of 

February. When Rustowicz attempted to return to work on February 27, 

she was again advised by the Employee Health Director that she could not 

return to work and take Xanax medication at work. In response, 

Rustowicz advised she was going to call her attorney and left for lunch. In 

the meantime, the Employee Health Director contacted Rustowicz’s doctor, 

who faxed a statement that he had reviewed the job description for the 

audit associate and it was his opinion that she could take the prescribed 

doses of Xanax at work and safely perform her job, with no restrictions. 

The Employee Health Director later admitted, based on the statement from 

Rustowicz’s doctor, that he could not preclude Rustowicz from coming to 

work because of her Xanax use.

Upon Rustowicz’s return to work after lunch, she was immediately sent 

to a meeting with Director P and the Human Resources Director. At that 

time, she was advised the audit associate position had been eliminated 

due to a restructuring of the Internal Audit Department by Director P, and 

the former position of executive secretary had been restored, but the 

position was already filled by another person. Rustowicz was offered the 

opportunity to apply for other positions with the employer. She applied 

for four other positions, but was not hired for any of them because she did 

not meet the degree requirements.

Trial Court Proceedings and Summary Judgment

Rustowicz filed suit pursuing three counts. Count 1 alleged a violation 

of the Whistleblower Act. Counts 2 and 3 alleged violations of the Civil 

Rights Act.

The employer filed a motion for summary judgment as to all three 

counts. The parties engaged in discovery. Pertinent to the issues on 

appeal is an affidavit by Director P filed in support of the motion and the 

deposition testimony of Rustowicz and Interim Director K. The details of 

the pertinent summary judgment evidence are discussed in the appellate 

analysis below.

The trial court granted summary judgment as to all three counts. The 

basis for granting summary judgment of the Whistleblower count is 

discussed below.
5

Appellate Analysis

“The standard of review of an order granting summary judgment is de 

novo.” Patten v. Winderman, 965 So. 2d 1222, 1224 (Fla. 4th DCA 2007) 

(quoting Biggins v. Fantasma Prods., Inc. of Fla., 943 So. 2d 952, 955-56 

(Fla. 4th DCA 2006)). Summary judgment is proper only when “there is 

no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); see also 

Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006).

“[A summary] judgment should not be rendered . . . unless the facts are 

so crystallized that nothing remains but questions of law.” Villazon v. 

Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003) (quoting 

Shaffran v. Holness, 93 So. 2d 94, 97-98 (Fla. 1957)). “Where the record 

demonstrates the possibility of a disputed fact, summary judgment is 

improper.” Pep Boys-Manny, Moe & Jack, Inc. v. Four Seasons Commercial 

Maint. Inc., 891 So. 2d 1160, 1161 (Fla. 4th DCA 2005) (citing Albelo v. S. 

Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996)). “It is the burden of the 

moving party to show conclusively that a genuine issue of a material fact 

does not exist before a summary judgment should be entered, and it 

should be further shown that the moving party is entitled to judgment as 

a matter of law.” A.B.G. Inv., Inc. v. Selden, 336 So. 2d 444, 446 (Fla. 4th 

DCA 1967) (citing Holl v. Talcott, 191 So. 2d 40 (Fla. 1966)).

The legislature plainly stated its intent in enacting the Whistleblower 

Act: to prevent retaliatory action against employees and persons who 

disclose certain types of government wrongdoing to appropriate officials. 

See § 112.3187(2)-(7), Fla. Stat. (2009); Rice-Lamar v. City of Fort 

Lauderdale, 853 So. 2d 1125, 1131-32 (Fla. 4th DCA 2003). “The act is 

remedial in nature and should be construed liberally in favor of granting 

access to the remedy so as not to frustrate the legislative intent.” RiceLamar, 853 So. 2d at 1132 (citations omitted). 

The elements of a cause of action for retaliatory discharge under the 

Whistleblower Act are: (1) the plaintiff engaged in statutorily protected 

expression; (2) the plaintiff suffered an adverse employment action; and 

(3) there is some causal connection between the two events. Fla. Dep’t of 

Children & Families v. Shapiro, 68 So. 3d 298, 305-06 (Fla. 4th DCA 2011). 

The causal link element is construed broadly so that “a plaintiff merely 

has to prove that the protected activity and the negative employment 

action are not completely unrelated.” Rice-Lamar, 853 So. 2d at 1132-33 

(quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.1998)). 

Florida applies federal Title VII case law to the Whistleblower Act. Id. at 

1132.
6

Because Florida applies the Title VII analysis to retaliatory discharge 

under the Whistleblower Act, the burden shifting analysis of McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. 

Under the McDonnell Douglas framework, the plaintiff must 

first establish, by a preponderance of the evidence, a prima 

facie case of unlawful discrimination. McDonnell Douglas, 411 

U.S. at 802, 93 S.Ct. 1817. If the plaintiff successfully 

presents a prima facie case, the defendant employer has the 

burden of producing evidence of some “legitimate, 

nondiscriminatory reason” for the adverse employment action. 

Id. at 802, 93 S.Ct. 1817. If the defendant carries its burden 

of producing some legitimate nondiscriminatory reason for its 

employment action, the plaintiff has the opportunity to prove 

that the proffered reason was merely a pretext for the 

defendant’s actions. Id. at 804, 93 S.Ct. 1817. The ultimate 

burden of proving intentional discrimination against the 

plaintiff remains with the plaintiff at all times. See Texas Dep’t 

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 

67 L.Ed.2d 207 (1981).

Byrd v. BT Foods, Inc., 948 So. 2d 921, 927 (Fla. 4th DCA 2007).

The trial court granted summary judgment in favor of the employer on 

the Whistleblower count after concluding that there was no dispute of 

material fact that: (1) Rustowicz did not submit “written complaints” as 

defined under the Whistleblower Act; and (2) she did not make protected 

disclosures to “[the] chief executive officer or other appropriate local 

official.” In recognition that the stated reasoning of the trial court may not 

withstand appellate review, the employer makes alternative arguments as 

to why we should affirm summary judgment without directly asking that 

the tipsy coachman doctrine be applied.4 Using the McDonnell Douglas

framework, the employer argues Rustowicz failed to come forward with 

sufficient summary judgment evidence to establish: (1) the causal link 

between her disclosures and discharge, and (2) the employer’s stated 

reason for discharge was pretextual. For that reason, we first review the 

4 Although the employer does not explicitly request that we apply the tipsy 

coachman doctrine, we arguably could apply it because the order granting 

summary judgment could be broadly read to implicitly grant summary judgment 

as to the Whistleblower count because Rustowicz failed to make an evidentiary 

showing of a prima facie case and pretext. See Stark v. State Farm Fla. Ins. Co., 

95 So. 3d 285, 289 n.4 (Fla. 4th DCA 2012) (declining to apply the tipsy 

coachman doctrine in the summary judgment context when the alternative 

argument was not ruled upon by the trial court).
7

justifications stated by the trial court for granting summary judgment. We 

then address whether summary judgment should be affirmed based on the 

alternative arguments made by the employer.

The Written Complaint Requirement

Section 112.3187(7) of the Whistleblower Act states:

(7) Employees and persons protected.--This section protects 

employees and persons who disclose information on their own 

initiative in a written and signed complaint; who are requested 

to participate in an investigation, hearing, or other inquiry 

conducted by any agency or federal government entity; who 

refuse to participate in any adverse action prohibited by this 

section; or who initiate a complaint through the whistleblower’s hotline or the hotline of the Medicaid Fraud Control 

Unit of the Department of Legal Affairs; or employees who file 

any written complaint to their supervisory officials or 

employees who submit a complaint to the Chief Inspector 

General in the Executive Office of the Governor, to the 

employee designated as agency inspector general under s. 

112.3189(1), or to the Florida Commission on Human 

Relations. 

§ 112.3187(7), Fla. Stat. (2009). As can be seen, the statute extends 

protection to five categories of employees: those who (1) disclose 

information on their own initiative in a written and signed complaint; (2) 

are requested to participate in an investigation, hearing, or other inquiry 

conducted by any agency or federal government entity; (3) refuse to 

participate in any adverse action prohibited by the act; (4) initiate a 

complaint through the whistleblower's hotline or the hotline of the 

Medicaid Fraud Control Unit of the Department of Legal Affairs; and (5) 

file any written complaint to their supervisory officials or employees who 

submit a complaint to the Chief Inspector General in the Executive Office 

of the Governor, to the employee designated as agency inspector general 

under section 112.3189(1), or to the Florida Commission on Human 

Relations.

Rustowicz argued to the trial court, although not extensively, that she 

was protected because of her participation in the investigation of CEO L’s 

expenditures. The employer responded that even that category of

employees are required to disclose the protected information in writing. 

Most of the arguments to the trial court focused on the language of the 

statute regarding employees “who disclose information on their own 
8

initiative in a written and signed complaint.” The trial court agreed with 

the employer that protected disclosures had to be in writing and signed by 

the complainant and did not specifically address the category of employees 

who are requested to participate in an investigation. The employer’s 

argument that disclosures as to that category of employees has to be in 

writing and signed by the complainant is incorrect. 

The language of section 112.3187(7) makes it clear that the legislature 

intended Whistleblower protection to be extended to employees other than 

those who sign a written complaint. The statute specifically extends 

protection to:

employees “who are requested to participate in an 

investigation, hearing, or other inquiry conducted by any 

agency or federal government entity,” 

employees “who refuse to participate in any adverse action 

prohibited by this section,” and 

employees “who initiate a complaint through the whistleblower's hotline or the hotline of the Medicaid Fraud Control 

Unit of the Department of Legal Affairs.” 

If the legislature intended a writing requirement for those three categories 

of employees, it could have said so, as it did for the remaining two 

categories. It did not. Interpreting the statute to require a signed written 

complaint to obtain protection against retaliatory conduct toward 

employees who participate in an investigation would leave those employees 

who verbally disclose wrongdoing to investigators unprotected. We do not 

agree the legislature intended such a result, as it would create a chilling 

effect on investigations.

The employer cites to our analysis in Walker v. Florida Department of 

Veterans’ Affairs, 925 So. 2d 1149 (Fla. 4th DCA 2006), as support for the 

argument that employees who are requested to participate in an 

investigation must make their protected disclosures in writing. In Walker,

we wrote:

Under section 112.3187(7), as it applies to this case, a 

protected disclosure requires an employee’s “written and 

signed complaint,” or a “written complaint to [the employee’s] 

supervisory official[ ].”
9

Id. at 1150 (emphasis added). However, the employer overlooks our 

qualifying language “as it applies to this case.” Walker is factually 

distinguishable from this case. Walker dealt with an employee who 

asserted disclosure by way of a written complaint, rather than an employee 

who made a disclosure by participating in an investigation. Thus, our 

statement in Walker, discussing the requirement of a written and signed 

complaint, does not apply to the facts of this case.

Our research has revealed only one case which discusses disclosures 

by employees asked to participate in an investigation as protected 

Whistleblower activity: Burden v. City of Oka Locka, 2012 WL 4764592 

(S.D. Fla. Oct. 7, 2012). In Burden, one of the plaintiffs, Burden, the 

deputy chief of police for the Opa Locka police department, was asked to 

participate in a “Confidential Inquiry” of the department initiated by the 

city manager. Id. at *2. Burden’s participation consisted of making 

statements during a meeting with two people selected by the city manager 

to conduct the inquiry. Id. During Burden’s interviews, he expressed 

concerns that the department was disorganized, its procedures outdated, 

and discipline was inconsistently handled. Id. Burden attributed the 

problems to the police chief. Id. 

The federal trial court analyzed the “participation in an investigation” 

portion of section 112.3187(7), and ruled that “disclosures made pursuant 

to an investigation or inquiry need not be made via written and signed 

complaints or on the initiative of the one disclosing.” Id. at *14. Regarding 

the facts of the case, the court also ruled that summary judgment was 

inappropriate as to Burden’s Whistleblower claim, because 

a reasonable jury could draw the inference that Burden’s 

statements to the Confidential Inquiry were evidence of a 

pattern of managerial abuses that amounted to gross 

mismanagement by [the police chief]. Therefore, a triable 

issue of fact exists as to whether these statements amounted 

to a protected activity, and summary judgment would be 

inappropriate.

Id. at *15. 

We agree with the reasoning of the district court in Burden, and hold 

that, if an employee is requested to participate in an investigation, hearing, 

or other inquiry concerning governmental wrongdoing by an appropriate 

official or official entity, as discussed more fully below, and makes 

disclosures of wrongdoing as defined by the Whistleblower Act during or 

as a result of participation, the employee qualifies for protection under the 
10

Act, and the disclosures need not be by a signed complaint or on the 

initiative of the employee. We therefore determine that summary judgment 

in favor of the employer on the Whistleblower claim was inappropriate for 

the reason that Rustowicz failed to make written disclosures.5 Our 

supreme court, interpreting an earlier version of the Whistleblower Act, 

reached the same conclusion that a signed written complaint was not 

required for protection claimed by employees who participate in an 

investigation. Golf Channel v. Jenkins, 752 So. 2d 561 (Fla. 2000).

The Disclosure to an “Other Appropriate Local Official” Requirement

Section 112.3187(6), Florida Statutes (2009), defines the person to 

whom the information must be disclosed for Whistleblower protection:

(6) To whom information disclosed.--The information disclosed 

under this section must be disclosed to any agency or federal 

government entity having the authority to investigate, police, 

manage, or otherwise remedy the violation or act, including, 

but not limited to, the Office of the Chief Inspector General, 

an agency inspector general or the employee designated as 

agency inspector general under s. 112.3189(1) or inspectors 

general under s. 20.055, the Florida Commission on Human 

Relations, and the whistle-blower's hotline created under s. 

112.3189. However, for disclosures concerning a local 

governmental entity, including any regional, county, or 

municipal entity, special district, community college district, 

or school district or any political subdivision of any of the 

foregoing, the information must be disclosed to a chief executive 

5 An additional issue argued by the employer on appeal is that Rustowicz did not 

specifically plead that her Whistleblower claim was based on the “participation 

in an investigation” portion of the statute. However, Rustowicz also did not 

specifically plead that she disclosed the protected information via a written 

complaint. In her complaint, she generally alleged a disclosure, and did not 

specify the avenue by which she lodged her complaints. There is nothing in the 

record that the employer objected to this lack of clarity or raised the issue before 

the trial court. 

We also note that even if the trial court properly granted summary judgment in 

favor of the employer based on the fact that Rustowicz did not specifically state 

that she was traveling under the participation in an investigation theory, it 

should have granted the summary judgment with leave to amend. Rauch, 

Weaver, Millsaps & Co. v. Campbell-Dickey Mktg. Servs., Inc., 354 So. 2d 403 (Fla. 

4th DCA 1978) (“Where a summary judgment should be entered, yet the plaintiff 

may have a cause of action not pleaded, the proper procedure is to enter the 

summary judgment with leave to amend.”) (citing Hart Props., Inc. v. Slack, 159 

So. 2d 236 (Fla. 1963)).
11

officer as defined in s. 447.203(9) or other appropriate local 

official.

§ 112.3187(6), Fla. Stat. (2009) (emphasis added). The issue in this case 

is whether Rustowicz qualified for Whistleblower protection by disclosing 

information to an “other appropriate local official.”6 There are a few cases 

which discuss the application of the language “other appropriate local 

official,” but to date, no case has specifically defined the scope of the 

language. Official Opinions of the Florida Attorney General have offered 

some guidance.

In an early case discussing the language, Saunders v. Hunter, 980 F. 

Supp. 1236, 1239-40 (M.D. Fla. 1997), a corrections officer brought a 

cause of action against the sheriff’s office for violations of the 

Whistleblower Act after she reported to her supervisors incidences of 

sexual harassment while she was on the job. Regarding whether the 

corrections officer made her report to an “appropriate local official,” the 

court wrote:

Under Fla. Stat § 112.3187(6), an employee must report any 

incidents under this section to a “chief executive officer as 

defined in § 447.203(9) or other appropriate local official.” The 

plaintiff alleges she reported the incidents not to a chief 

executive officer but to her supervisors who are appropriate 

local officials. The Court finds, since the standard for 

dismissing a complaint at this stage in the case is extremely 

low, the plaintiff has alleged sufficient facts to withstand a 

Motion to Dismiss as to Count I.

Id. at 1246 (emphasis added).

In the more recent case of Quintini v. Panama City Housing Authority, 

102 So. 3d 688, 689 (Fla. 1st DCA 2012), the plaintiff, an employee of the 

housing agency for Panama City, made a report to the U.S. Department of 

6 Section 447.203(9), Florida Statutes (2009), states: “‘Chief executive officer’ for 

the state shall mean the Governor and for other public employers shall mean the 

person, whether elected or appointed, who is responsible to the legislative body 

of the public employer for the administration of the governmental affairs of the 

public employer.” Rustowicz argues Director R was “a chief executive officer as 

defined in s. 447.203(9)” because he answered directly to the Board, which 

Rustowicz contends was the “legislative body of the public employer.” Because it 

is not necessary to do so to resolve this appeal, we do not address the merits of 

this argument.
12

Housing and Urban Development that he was not being paid the same rate 

as other maintenance workers. The First District in Quintini noted that 

there had not been any district court decisions analyzing what constituted 

an “other appropriate local official,” so it looked to Attorney General 

Opinions for guidance. Id. The court provided a summary of the Attorney 

General Opinions:

However, the phrase has been the subject of several Attorney 

General Opinions. See Op. Att’y Gen. Fla.2012–20 (2012) 

(indicating that transit authority board of directors could be 

appropriate local official to receive and investigate whistleblower complaints); Op. Att’y Gen. Fla.2010–48 (2010) (noting 

that county designated inspector general and executive director 

of county ethics commission as appropriate local officials); Op. 

Att’y Gen. Fla. 99–07 (1999) (stating that county inspector 

general qualified as an appropriate local official); Op. Att’y 

Gen. Fla. 96–40 (1996) (finding city’s ethics commission was 

an appropriate local official under the statute because it could 

investigate [violations] and take corrective action). 

Id. (emphasis added). The court also noted that “[t]he common element in 

these opinions is that the person or entity deemed to be an ‘other 

appropriate local official’ was affiliated with the local government in some 

way.” Id. The court found that, since the plaintiff reported to a federal 

department, and his complaint was regarding a city’s housing authority, 

his disclosure was not made to an appropriate local official. Id. at 691. In 

reaching its decision, the First District alluded to a statement in Burden

that “appropriate local officials” include officials and entities who are 

empowered to investigate complaints and make reports or recommend 

corrective action. Id. at 689-90.

We find persuasive the description of an “other appropriate local 

official” stated in the Attorney General Opinions and relied upon in 

Quintini and Burden. As the court observed in Burden:

Significantly, the Attorney General has found individuals to 

be “appropriate local officials” where they are empowered to 

investigate complaints and make reports or recommend 

corrective action. 

Burden, 2012 WL 4764592, at *13 (emphasis added). We find particularly 

persuasive the Attorney General Opinion which opined that a town’s code 

of ethics commission would qualify as an “appropriate local official.” Op. 

Att’y Gen. Fla. 96-40 (1996). The Attorney General reasoned that because 
13

the town’s code of ethics commission “was created to administer the town’s 

code of ethics by conducting investigations and making public reports on 

all complaints concerning breaches of public trust by town officials and 

employees,” it qualified as an “appropriate local official” under the Act. Id. 

Adopting the reasoning of the Attorney General, as well as the 

reasoning by the courts in Quintini and Burden, we hold that for protection 

under the Whistleblower Act, disclosures of wrongdoing by a local 

government entity must be made to either: 

(1) a chief executive officer, as defined in s. 447.203(9), Florida 

Statutes (2009); or 

(2) an official or official entity who is affiliated with the 

violating governmental entity and has the authority to 

investigate, police, manage, or otherwise remedy the violation 

or act by the violating governmental entity.

We agree with the Attorney General that the protection does not require 

disclosure to a singular person or official; the protection extends to 

disclosures to members of boards, committees, departments, or divisions 

affiliated with the offending governmental entity, so long as the board, 

committee, department, or division has the authority to investigate, police, 

manage, or otherwise remedy the violation or act by the violating 

governmental entity.

In this case, the Internal Audit Department had the responsibility to 

monitor and investigate employee compliance with the company’s rules 

and policies regarding finances. According to the employer’s Code of 

Conduct, the Internal Audit Department “routinely conducts internal 

audits of issues that have regulatory or compliance implications. The 

organization also routinely seeks other means of ensuring or 

demonstrating compliance with the laws, regulations, and [the employer’s] 

policy.” As discussed in Quintini, Director R was a local official since he 

was also an employee of the employer. Additionally, as in Saunders, 

Director R was Rustowicz’s supervisor.7 The employer counters that it is 

the Corporate Compliance Office that investigates violations, not the 

Internal Audit Department. However, it seems that both departments play 

a role in investigating compliance issues, especially when you consider 

that the employer’s description of the function of the Internal Audit 

7 We note that the Fifth District has held that disclosing to a supervisor, alone, 

is not enough. See Kelder v. ACT Corp., 650 So. 2d 647, 649 (Fla. 5th DCA 1995). 

We do not determine Kelder to apply to this case because in Kelder the employer 

was not a governmental entity.
14

Department includes conducting audits that have compliance 

implications. 

Additionally, there is evidence in the record that Rustowicz made her 

disclosures directly to the Board as part of her participation in the 

investigation. Although not argued, it seems beyond debate that the Board 

has the authority to investigate, police, manage, or otherwise remedy a 

violation by an employee of the governmental entity.

Thus, we conclude the trial court erred in granting summary judgment 

on the Whistleblower count for the reason that Rustowicz did not make a 

protected disclosure to an appropriate local official.

The Employer’s Alternative Arguments for Affirming Summary Judgment

The employer argues two alternative grounds not addressed by the trial 

court in affirming summary judgment on the Whistleblower count. The 

employer argues Rustowicz failed to present sufficient summary judgment 

evidence to prove: (1) the causal link between her disclosures and 

discharge, and (2) the employer’s explanation for discharge was pretextual.

Causation may be proved by direct or circumstantial evidence. Smith 

v. Airtran Airways, Inc., 744 F. Supp. 2d 1274, 1278 (M.D. Fla. 2010) 

(holding that wrongful discharge under Title VII requires proof of causation 

by direct evidence or circumstantial evidence). It is unusual for the 

plaintiff to travel on direct proof of discrimination to show causation; the 

typical case relies upon circumstantial evidence of causation. Combs v. 

Plantation Patterns, 106 F.3d 1519, 1537 (11th Cir. 1997) (“Frequently, 

acts of discrimination may be hidden or subtle; an employer who 

intentionally discriminates is unlikely to leave a written record of his illegal 

motive, and may not tell anyone about it.”); Sheridan v. E.I. DuPont de 

Nemours & Co., 100 F.3d 1061, 1071 (3d Cir. 1996) (“The distinct method 

of proof in employment discrimination cases, relying on presumptions and 

shifting burdens of articulation and production, arose out of the Supreme 

Court’s recognition that direct evidence of an employer’s motivation will 

often be unavailable or difficult to acquire.”). In this case, Rustowicz relies 

on circumstantial evidence to establish the causal link.

Causation and Temporal Proximity

The causal link element for retaliatory discharge under the 

Whistleblower Act requires the plaintiff to prove the protected activity and 

discharge were not wholly unrelated. Shapiro, 68 So. 3d at 306. “Close 

temporal proximity between the protected activity and the adverse 

employment action can show that the two events were not wholly 
15

unrelated.” Id. (citation omitted). “If there is a substantial delay between 

the two events, the plaintiff must present other evidence tending to show 

causation.” Id. (citation omitted).

The employer argues that causation cannot be established because the 

length of time between Rustowicz’s disclosures of wrongdoing in the audit 

report and her discharge, ten months, does not meet the temporal 

proximity requirement. We are not persuaded by this argument. 

The argument focuses on the wrong time frame and ignores the federal 

case law that the causation element for retaliatory discharge can be 

satisfied by sufficient evidence that the decision-maker of the employer 

was actually aware of the protected conduct, and that there was a close 

temporal proximity between the decision maker’s awareness of the 

protected activity and the adverse employment action. Farley v. 

Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999) (“We have 

plainly held that a plaintiff satisfies this element if he provides sufficient 

evidence that the decision-maker became aware of the protected conduct, 

and that there was close temporal proximity between this awareness and 

the adverse employment action.”) (citation omitted); Gary v. Hale, 212 Fed. 

Appx. 952, 957 (11th Cir. 2007) (“[W]e have repeatedly indicated that a 

plaintiff may satisfy the causal link in a retaliation case by establishing 

that ‘the employer was actually aware of the protected expression at the 

time it took the adverse employment action.’ . . . That is, the causation 

threshold may be satisfied if it can be shown ‘that the person taking the 

adverse action was aware of the protected expression.’”) (internal citations

omitted). Moreover, “[s]uch awareness [referring to the decision maker] 

may be established either by direct evidence, or by circumstantial 

evidence, such as proximity in time.” Gary, 212 Fed. Appx. at 957 

(citations omitted). 

In this case, an affidavit by Director P was filed in support of the motion 

for summary judgment. In the affidavit, Director P stated that she was the 

sole decision-maker regarding the elimination of the audit associate 

position. She stated that she began working in the Internal Audit 

Department on December 29, 2008. The affidavit asserts Director P made 

the decision to eliminate the audit associate position and the employer’s 

chief executive officer signed off on documents eliminating the position on 

February 12, 2009. The affidavit states the premise of her reorganization 

plan was the Internal Audit Department would work most productively 

with an executive secretary and five auditors with degrees or certificates 

in accounting. She further affirmatively stated she was unaware of 

Rustowicz’s participation in the audit report concerning CEO L before her 

decision to eliminate the audit associate position.
16

In opposition to the motion for summary judgment, Rustowicz filed 

portions of the affidavit of Interim Director K in which he testified that on 

January 23, 2009, he emailed a copy of CEO L’s response to the audit to 

Director P. Although in the deposition he denied remembering why he 

sent CEO L’s response to the audit, he admitted he was sure there was 

some discussion about CEO L’s response before he emailed it to Director 

P. Moreover, Director P, in her deposition, did not deny receiving the email 

with CEO L’s response from Interim Director K on January 23, but she did 

not recall whether she read the email.

Rustowicz presented sufficient summary judgment evidence to 

circumstantially prove that the decision maker (Director P) was aware of 

Rustowicz’s protected disclosures at the time of the adverse employment 

action (elimination of the audit associate position), and the adverse action 

was sufficiently temporally close to the decision maker’s awareness (less 

than one month), to survive summary judgment. See Farley, 197 F.3d at 

1337 (holding that seven week delay between protected activity and 

adverse employment action was sufficient temporal proximity to make a 

prima facie showing of causation).

Pretext

Because the McDonnell Douglas burden-shifting analysis applies to 

Whistleblower claims, it is useful to examine federal case law under Title 

VII regarding causation and pretext in deciding if evidentiary standards 

have been met to survive summary judgment. 

Regarding pretext, the United States Supreme Court has observed:

Proof that the [employer’s] explanation is unworthy of 

credence is simply one form of circumstantial evidence that is 

probative of intentional discrimination, and it may be quite 

persuasive. See [St. Mary’s Honor Center v. Hicks, 509 U.S. 

517 (1993)] (“[P]roving the employer’s reason false becomes 

part of (and often considerably assists) the greater enterprise 

of proving that the real reason was intentional 

discrimination”). In appropriate circumstances, the trier of 

fact can reasonably infer from the falsity of the explanation 

that the employer is dissembling to cover up a discriminatory 

purpose. Such an inference is consistent with the general 

principle of evidence law that the factfinder is entitled to 

consider a party’s dishonesty about a material fact as 

“affirmative evidence of guilt.”. . . Thus, a plaintiff’s prima facie 

case, combined with sufficient evidence to find that the 
17

employer’s asserted justification is false, may permit the trier 

of fact to conclude that the employer unlawfully 

discriminated.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000)

(internal citations omitted). With regards to the sufficiency of the evidence 

to establish the employer’s asserted justification is false, the Eleventh 

Circuit has written that 

a plaintiff withstands summary adjudication by producing 

sufficient evidence to allow a reasonable finder of fact to 

conclude that the defendant’s articulated reasons for its

decision are not believable. In evaluating a summary 

judgment motion, “[t]he district court must evaluate whether 

the plaintiff has demonstrated such weaknesses, 

implausibilities, inconsistencies, incoherencies, or 

contradictions in the employer’s proffered legitimate reasons 

for its action that a reasonable factfinder could find them 

unworthy of credence.” 

Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th 

Cir. 2005) (internal citations omitted); see also Cleveland v. Home 

Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir. 2004) (reversing 

judgment as a matter of law in favor of the employer after determining the 

employee produced sufficient evidence that the employer’s explanation 

was unworthy of credence stating, “[o]nce [the employer’s decision 

maker’s] credibility is damaged, the jury could infer that he did not fire 

[the employee for the reason stated], but rather because of her disability”).

Applying the above principles articulated by the federal courts 

regarding the sufficiency of evidence to avoid summary judgment on the 

issue of pretext, we conclude that the trial court erred in granting 

summary judgment. Rustowicz produced the following evidence to attack 

the credibility of Director P’s assertion that the audit associate position 

was eliminated due to a legitimate restructuring of the Internal Audit 

Department that had nothing to do with Rustowicz’s participation in the 

audit report:

Despite Director P’s assertion she was unaware of the details 

of the audit report and Rustowicz’s involvement in the audit, 

Rustowicz presented direct evidence that Director P discussed 

CEO L’s response to the audit with the interim director and 

received a copy of CEO L’s response by email prior to 

Rustowicz’s discharge.
18

Despite Director P’s assertion she did not know Rustowicz 

suffered from anxiety, depression, and Crohn’s disease, it was 

alleged that Director P signed two continued leave approval 

slips after she became the director of the department.

Director P did not offer the newly restored executive secretary 

position to Rustowicz, even though Rustowicz had performed 

the job for several years prior to becoming an audit associate 

(performing the same tasks as the executive secretary), 

because she assumed Rustowicz would not want the pay cut.

We agree with Rustowicz that such summary judgment evidence could 

demonstrate to a reasonable juror there are “weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer’s 

proffered legitimate reasons for its action” to conclude the reasons are 

“unworthy of credence.” Jackson, 405 F.3d at 1289; Cleveland, 369 F.3d 

at 1194.8

Thus, we disagree with the employer’s alternative arguments that 

summary judgment should be affirmed as to the Whistleblower count.

Appellate Disposition

We affirm summary judgment as to counts 2 and 3 of the complaint. 

We reverse summary judgment as to count 1 and remand for further 

proceedings.

Affirmed in part; Reversed in part and remanded.

CIKLIN, C.J., and FORST, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

8 We note that the standard for granting summary judgment in Florida is more 

stringent than in the federal court system. Byrd v. BT Foods, Inc., 948 So. 2d 

921, 923-24 (Fla. 4th DCA 2007) (explaining that federal cases permit summary 

judgment by a different standard and are of limited precedential value in Florida).