CopyCited 10 times | Published | District Court, M.D. Florida | 2002 U.S. Dist. LEXIS 5275, 2002 WL 480903
...nd the Florida Civil Rights Act; that Plaintiff's speech was not a matter of public concern and, therefore, not protected under the First Amendment; that the Pension Board hearing was not a "judicial proceeding" for the purposes of Florida Statutes, Section 92.57; that Plaintiff has no evidence to support her claims under the FMLA; and that the Court does not have jurisdiction to enter a declaratory judgment against Defendant in this instance....
...gnation was appropriate. Therefore, the Court finds that Defendant did not deny Plaintiff "reinstatement" on the basis that she was eligible under the FMLA, and Defendant is entitled to judgment as a matter of law as to Count VI. B. Florida Statutes Section 92.57 Section 92.57 provides: A person who testifies in a judicial proceeding in response to a subpoena may not be dismissed from employment because of the nature of the person's testimony or because of absences from employment resulting from compliance with the subpoena. Fla. Stat. § 92.57....
...Based on the foregoing discussion that Plaintiff voluntarily resigned *1304 and was not constructively discharged, the Court finds that Plaintiff was not dismissed as a result of her testimony. Therefore, Plaintiff cannot assert a cause of action under Section 92.57, and Defendant is entitled to judgment as a matter of law for Count VII....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1993 WL 538231
...yment was retaliatory in nature. Appellant further alleged that the termination occurred because appellant provided testimony adverse to Southern in an unemployment compensation hearing involving appellant's sister and that such termination violated section 92.57, Florida Statutes (1991)....
...rgument and then granted with prejudice. Subsequently, the trial court entered an "explanatory" order that dismissed the complaint with prejudice. In the latter order, the trial court stated that (1) appellant could not state a cause of action under section 92.57, as that statute limits the right of action for wrongful termination to those individuals who testify pursuant to a subpoena; and, (2) appellant could not state a common law cause of action either, because she was an employee at will....
...Appellee then filed a *1024 motion for attorney's fees under section
57.105, Florida Statutes, which the court denied. Appellant argues that the trial court's dismissal of her complaint with prejudice violates public policy as reflected by the legislature's enactment of section
92.57, Florida Statutes (1991). Section
92.57, "Termination of employment of witnesses prohibited.-" provides: A person who testifies in a judicial proceeding in response to a subpoena may not be dismissed from employment because of the nature of the person's testimony or because of absences from employment resulting from compliance with the subpoena....
...In any civil action arising out of a violation of this section, the court may award attorney's fees and punitive damages to the person unlawfully dismissed, in addition to actual damages suffered by such person. Appellant asks this court to engage in a "reasonable construction" of section 92.57; she contends that this court should construe section 92.57 as an attempt by the legislature to encourage truthful testimony, whether compelled or uncompelled. Appellee responds that section 92.57 does not afford appellant relief for two reasons: First, appellant is precluded from recovery under the section because she testified in an unemployment compensation hearing, as opposed to a trial or judicial hearing....
...Further, if requested to do so, an appeals referee must issue a subpoena, where the witness is concerned that his testimony may result in a retaliatory employment termination. See O'Blenis v. Florida Dept. of Labor and Employment Security,
388 So.2d 1099 (Fla. 4th DCA 1980). [1] We hold that for purposes of section
92.57, an unemployment compensation hearing is a judicial proceeding. Although appellant testified at a judicial proceeding, she does not dispute that she testified voluntarily on her sister's behalf; she did not testify under subpoena. Under the plain language of section
92.57, appellant is not entitled to relief....
...request the appeals referee to issue a subpoena to a witness who would otherwise testify voluntarily. Furthermore, as in the instant case, the fact that the claimant is represented by counsel does not guarantee that a witness will be protected under section 92.57. A claimant's attorney owes no duty to the claimant's witnesses to advise them of potential retaliation from their employers and to secure subpoenas for them for their protection. Thus, for all practical purposes, section 92.57, as currently written, protects only those persons who are aware of its existence, which most frequently will be a witness himself represented by counsel. [4] As a result, we would encourage the legislature to revisit this issue to determine whether the requirement of a subpoena is necessary to effect the legislative intent behind section 92.57....
...HERSEY and PARIENTE, JJ., concur. NOTES [1] We agree with appellee's assertion that appellant had the option to request that the appeals referee issue a subpoena to her prior to her appearance at the hearing. This simple procedural tactic would have afforded her section 92.57 protection....
...[2] We agree that there is a public policy interest to secure truthful testimony in all judicial proceedings. Ideally, no one should have to fear retaliatory employment termination as the result of their testimony. We note, however, that prior to the legislature's enactment of section 92.57 in 1990, there was no law in Florida to protect individuals who testified against their employer's interests, whether or not their testimony was obtained by subpoena. As such, section 92.57 takes a step in the right direction....
...[3] We can certainly recognize that one who testifies under subpoena must be protected from retaliatory employment termination, because they are (presumably) coming to the claimant's aid involuntarily. As a result, it can ultimately only assist triers of fact in their truth-seeking endeavors to have section 92.57....
...HCA Allied Clinical Lab.,
552 So.2d 241 (Fla. 4th DCA 1989), wherein it held that because Jarvinen was an employee at will, she had no recourse against HCA after HCA fired her for adversely testifying against its interests. Indeed, had Jarvinen been decided after the enactment of section
92.57, the result therein would have been different, because Ms. Jarvinen testified under subpoena. Appellant claims that section
92.57 repudiates this court's decision in Jarvinen v....
...testify under subpoena. Its enactment still does not address appellant's plight. For all we know, Judge Glickstein's concurring opinion in that case, while addressed to the supreme court, may have been the catalyst for the legislature's enactment of section 92.57.
CopyPublished | Florida 4th District Court of Appeal
...LEVINE, C.J.
An employee was subpoenaed to appear for deposition. After giving
unfavorable testimony about his employer at the deposition, the employer
terminated that employee. The employee filed a complaint alleging, in part,
a cause of action under section 92.57, Florida Statutes (2017), which
states that “[a] person who testifies in a judicial proceeding in response to
a subpoena may not be dismissed from employment because of the nature
of the person’s testimony ....
...Ten days after his
subpoenaed deposition testimony, the employer terminated the employee.
The employee filed an action against the employer as guardian for
retaliation in violation of Florida’s whistleblower statute (count 1) and
against the employer, both in her individual capacity and as guardian, for
violation of section 92.57, Florida Statutes (2017) (count 2). The employer
moved to dismiss the complaint. As to count 2, the employer argued that
dismissal was warranted for failure to state a cause of action because a
deposition is not a judicial proceeding under section 92.57....
...text when it is clear and unambiguous. However, there is a
potential harm.
Schoeff v. R.J. Reynolds Tobacco Co.,
232 So. 3d 294, 313-14 (Fla. 2017)
(Lawson, J., concurring) (citations omitted). Thus, the text of the statute
is our primary concern.
The statute at issue, section
92.57, Florida Statutes (2017), states as
follows:
92.57....
...The question for our review is whether a deposition is a judicial
proceeding. Initially, the statute applies only to a “person who testifies in
a judicial proceeding in response to a subpoena . . . .” Id. Where a person
does not testify pursuant to a subpoena, section 92.57 would not apply.
Wiggins v....
...1958) (stating that “judicial proceeding” “includes any
proceeding determinable by a court”).
In dismissing count 2, the trial court relied on Speights, which is the
only case that has interpreted the term judicial proceeding in the context
of section
92.57. In Speights, an employee sued an employer after he was
discharged from his employment because he missed work to testify at a
deposition pursuant to a subpoena.
1993 WL 632265, at *1. The Speights
court dismissed the cause of action under section
92.57, finding that a
deposition was not a judicial proceeding....
...Depositions are generally understood to mean a legal
proceeding outside the courtroom, without the presence of a judge.
Judicial proceedings, however, are commonly understood to be
proceedings in the presence of a judge or a judicial officer.
Further, since section 92.57 does not define judicial proceedings, under
the imputed common law canon of construction, when a statute “uses a
common-law term, without defining it,” the statute then “adopts its
common-law meaning.” Scalia & Garner, Reading Law at 320....
...the common law status of employees at will, it would have done so.
The employee makes several arguments that do not persuade. The
employee argues that depositions are judicial proceedings for purposes of
litigation privilege and therefore must also be judicial proceedings under
section 92.57....
...That
statute defines the term “official proceeding” to include a judicial
proceeding or a deposition. It does not define a judicial proceeding to
include a deposition. Nor, of course, is a judicial proceeding the same
thing as an official proceeding.
The employee further argues that section 92.57 is a remedial statute
that should be liberally construed....
...A liberal construction would not overcome the fact that a deposition
is not encompassed within the term judicial proceeding.
In conclusion, common sense and the plain language of the statute
dictate that a deposition is not in any sense a judicial proceeding for
purposes of section 92.57....
