Bemis v. State Farm Fire and Casualty Company

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State: Illinois

Court: 1st District Appellate

Docket No: 1-08-0284 Rel

Case Date: 02/27/2009

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA TEREATHA ROBINSON, Appellant, v. DEPARTMENT OF HEALTH, STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed June 8, 2012. An appeal from the Circuit Court for Leon County. James O. Shelfer, Judge. Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Appellant. Linda Bond Edwards and Matthew J. Carson of Rumberger, Kirk & Caldwell, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D11-4139

RAY, J. Tereatha Robinson, Appellant, appeals an adverse final summary judgment of her civil complaint under the Whistle-blower's Act, sections 112.3187-.31895, Florida Statutes (2008). The final summary judgment was premised on Appellant's failure to exhaust the available administrative remedies by appealing the dismissal

of her initial whistle-blower complaint by the Florida Commission on Human Relations (FCHR). Appellant argues that she was not required to appeal the dismissal and that, even if a complainant is ordinarily required to appeal such a dismissal, it was not necessary for her to do so because FCHR issued the dismissal after the time frame within which FCHR was required to act. Contrary to Appellant's arguments, the circuit court correctly concluded that Appellant's failure to appeal the dismissal foreclosed her right to file suit in circuit court under the Whistle-blower's Act. Appellant's claim arose out of the termination of her employment with the Department of Health (DOH). After the termination of her employment, Appellant filed a whistle-blower complaint with FCHR, which dismissed the complaint as untimely 188 days later. The notice of dismissal advised Appellant of her right to seek review of FCHR's decision in this Court within thirty days. Appellant did not appeal. Instead, 107 days after the dismissal, she filed a whistle-blower complaint against DOH in circuit court. DOH moved for summary judgment on the ground that Appellant failed to exhaust her administrative remedies. The circuit court granted the motion and entered final judgment in favor of DOH. A court may grant summary judgment when "there is no genuine dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law." Lomack v. Mowery, 14 So. 3d 1090, 1091 (Fla. 1st DCA 2009). 2

The determination that this standard has been met is subject to de novo review. Smith v. New Hampshire Indem. Co., 60 So. 3d 429, 431 (Fla. 1st DCA 2011). To maintain a civil action under the Whistle-blower's Act, a public employee must first exhaust the administrative remedies provided therein. City of Miami v. Del Rio, 723 So. 2d 299, 300 (Fla. 3d DCA 1998). As a general rule, exhaustion of administrative remedies includes pursuing an appeal from an administrative ruling where a method of appeal is available. Fla. High School Athletic Ass'n v. Melbourne Cent. Catholic High School, 867 So. 2d 1281, 1288 (Fla. 5th DCA 2004); see State, Dep't of Transp. v. Hendry Corp., 500 So. 2d 218, 221 (Fla. 1st DCA 1986); Sawyer v. Wainwright, 422 So. 2d 1027, 1028 (Fla. 1st DCA 1982). The Whistle-blower's Act provides a statutory cause of action for employees of state agencies, among others, who face adverse personnel action as a result of certain protected activities.

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