HENEREY v. REPUBLIC PARKING SYSTEM INC
Filing
32
ORDER granting 26 Motion for Summary Judgment. Signed by JUDGE ROBERT L HINKLE on 11/12/15. (RH)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
COLLEEN HENEREY
Plaintiff,
v.
CASE NO. 4:15cv128-RH/CAS
REPUBLIC PARKING SYSTEM, INC.,
Defendant.
____________________________________/
ORDER GRANTING SUMMARY JUDGMENT
This is a private whistleblower case. The defendant has filed a second
motion for summary judgment. This order grants the motion because the record
shows that the plaintiff objected only to mismanagement and unlawful conduct of
her supervisor; the plaintiff did not object to any unlawful conduct “of the
employer,” as required under the whistleblower statute.
I
The plaintiff Colleen Henerey was the assistant general manager of the
Tallahassee operation of the defendant Republic Parking System, Inc. Republic
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manages parking lots for the City of Tallahassee. Ms. Henerey’s immediate
supervisor was the Tallahassee general manager Phyllis DePriest. Ms. DePriest in
turn reported to the district manager James Wallace Bice III.
Ms. Henerey complained orally to a district human-resources officer about
Ms. DePriest’s poor performance. One allegation was that Ms. DePriest stole
company funds. The human-resources officer asked Ms. Henerey to put her
complaints in writing, and she did. Her written memorandum again included
various allegations. One was that Ms. DePriest’s “mishandling of company funds”
was well known. ECF No. 13-5 at 1. More specifically, Ms. Henerey said Ms.
DePriest mishandled petty cash and “Hamilton” funds—funds apparently used to
stock machines that made change for parking customers. Ms. Henerey also said
Ms. DePriest once came into possession of $300 in special-event proceeds but put
only $99 in the Hamilton fund.
Just 12 days after Ms. Henerey communicated her objections, Mr. Bice
drafted a termination letter to Ms. Henerey, labeling her actions “inappropriate and
insubordinate.” But Mr. Bice thought better of it and did not deliver the
termination letter. Ms. Henerey stayed on, though only briefly.
Just over two months later—less than three months after Ms. Henerey
communicated her objections to Ms. DePriest’s theft of funds and other
Case No. 4:15cv128-RH/CAS
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mismanagement—Mr. Bice terminated Ms. Henerey, effective immediately. The
explanation was that Mr. Bice was making “operational changes” in Tallahassee,
eliminating the assistant-general-manager position. No other position in
Tallahassee or elsewhere was eliminated.
II
Ms. Henerey originally asserted claims under Florida’s public and private
whistleblower statutes, but she withdrew the public-whistleblower claim.
The private whistleblower statute prohibits an employer from taking
retaliatory action against an employee “because the employee has . . . [o]bjected to
. . . any activity, policy, or practice of the employer which is in violation of a law,
rule, or regulation.” Fla. Stat. § 448.102(3). Here a jury could easily find that Mr.
Bice terminated Ms. Henerey because she objected to Ms. DePriest’s
mismanagement of the Tallahassee office. An objection about mismanagement,
without more, is not protected. But one of the objections was that Ms. DePriest
committed theft—a violation of law.
This record presents genuine factual disputes over whether Ms. DePriest
actually stole funds and whether Ms. Henerey’s objection to any theft affected the
termination decision—that is, whether Ms. Henerey would have been terminated
for the other objections or for other reasons, even without regard to the theft
Case No. 4:15cv128-RH/CAS
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objection. Republic’s first summary-judgment motion, which asserted the
contrary, was denied.
III
Republic now has filed a second summary-judgment motion, correctly
noting that Ms. Henerey can recover only if she was terminated because she
objected to unlawful conduct “of the employer.” Fla. Stat. § 448.102(3) (emphasis
added). Republic says, again correctly, that Ms. DePriest was not Ms. Henerey’s
employer; Republic was. Ms. Henerey’s objection to Ms. DePriest’s theft qualifies
under § 448.102(3) only if Ms. DePriest’s theft can be attributed to Republic.
Theft could be attributed to an employer if the employee acted within the scope of
employment or perhaps even if the employer authorized or ratified the theft after
the fact. One would be hard-pressed to find, and Ms. Henerey does not argue, that
any theft by Ms. DePriest was within the scope of her employment.
If Ms. DePriest took Republic’s money with Republic’s consent, it was not
theft; Ms. Henerey’s objection thus was not protected by § 448.102(3). If Ms.
DePriest took Republic’s money without Republic’s consent, it may have been
theft, but it was theft from, not by, the employer, and again Ms. Henerey’s
objection was not protected by § 448.102(3).
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Ms. Henerey now says, though, that the funds at issue were not Republic’s
but those of Republic’s client the City of Tallahassee, and that by allowing Ms.
DePriest to steal those funds, or ratifying her theft, Republic violated the law.
This assertion fails because it is unsupported by the record. Ms. Henerey
testified that Ms. DePriest took petty cash, but nothing in the record suggests the
petty cash belonged to the City. Quite the contrary. Ms. Henerey testified that
when petty cash was replenished, the funds came from Republic, “never from the
City.” Henerey Dep., ECF No. 13-1 at 10. As Ms. Henerey said in her original
objection to Ms. DePriest’s conduct, and as Ms. Henerey confirmed in her own
declaration, she objected to Ms. DePriest’s mishandling of “company funds.” ECF
No. 13-5 at 1; Henerey Decl., ECF No. 17-1 at 4. When asked whether the City
ever lost money from Ms. DePriest’s actions, Ms. Henerey was emphatic:
“Absolutely not.” Henerey Dep. 13-1 at 13-14.
To be sure, Ms. Henerey now has tendered the declaration of another former
employee averring that “the money we collected was the property of the City of
Tallahassee.” Almaguer Decl., ECF No. 27-1 at 3. That apparently is a reference
to parking proceeds, not to petty cash or Hamilton funds. The employee did not
assert that Ms. DePriest stole parking proceeds, nor did Ms. Henerey so assert in
her original objection to Ms. DePriest’s conduct. Instead, the employee said, as
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Ms. Henerey said in her original objection, that Ms. DePriest took money from
petty cash and from the Hamilton fund. The employee said that when Ms.
DePriest’s employment ended, she had not repaid the amounts she took.
This does not help Ms. Henerey. First, a plaintiff cannot avoid summary
judgment by contradicting her own deposition testimony, unless there is an
explanation. If the new declaration is somehow read to suggest that the petty cash
or Hamilton fund belonged to the City, it would run afoul of this principle.
More importantly, what matters in the first instance is not what Ms. DePriest
did, but what Ms. Henerey objected to. It is the objection, not the misconduct
itself, that triggers an employee’s protection against adverse action. Here Ms.
Henerey objected to Ms. DePriest’s theft from petty cash and from the Hamilton
fund, never suggesting that these were funds of the City. The entire thrust of Ms.
Henerey’s objection was that Ms. DePriest was doing her job poorly, violating her
duty to Republic, not that she was stealing from the City.
The only statement in Ms. Henerey’s initial objection that could be read as
an assertion that Ms. DePriest stole from the City—stole funds that, in the
language of the new declaration, were “money we collected”—was the assertion
that Ms. DePriest found $300 in her desk drawer from a special event and put only
$99 in the Hamilton fund. The new declaration could perhaps be cited as evidence
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that this $300 belonged to the City. But Ms. Henerey, through her attorney,
asserted at Mr. Bice’s deposition that the $300 was irrelevant, and Republic
promptly accepted the assertion, withdrawing a question about it. Bice Dep., ECF
No. 13-2 at 32. Having blocked discovery on the ground that the $300 was
irrelevant, thus indicating either that she asserted no claim based on her objection
to the handling of the $300 or had abandoned any such claim, Ms. Henerey cannot
now sustain her claim based only on any objection to the handling of that $300.
IV
In sum, Ms. Henerey communicated her objections about Ms. DePriest’s
mismanagement to Republic officials. Ms. Henerey may have been fired as a
result. But Florida’s private whistleblower statute does not protect an employee
who objects only to mismanagement. The statute protects an employee who
objects to an activity, policy, or practice “of the employer” that violates a law, rule,
or regulation. Ms. Henerey complained that Ms. DePriest took petty cash and
Hamilton funds, but the record contains no evidence that those funds belonged to
anyone other than Republic. If Ms. DePriest took the funds with Republic’s
consent, it wasn’t theft. If she took the funds without Republic’s consent, it may
have been theft, but it was theft from, not by, the employer. Either way, Ms.
Henerey did not object to unlawful conduct “of the employer.”
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Terminating Ms. Henerey may have been unwarranted, unjust, and a failure
of management. But Florida is an employment-at-will state in which termination
decisions are reviewable in court only under specific statutes. As juries are
routinely instructed, an employer can terminate an employee for a reason that is
good or bad, fair or unfair, or for no reason at all; the employee cannot recover
unless the employer has violated a specific statute. Here Republic did not violate
the private whistleblower statute—the only statute on which Ms. Henerey relies.
Republic is entitled to summary judgment.
For these reasons,
IT IS ORDERED:
1. Republic’s second summary-judgment motion, ECF No. 26, is granted.
2. The clerk must enter judgment stating, “This action was resolved on a
motion for summary judgment. It is ordered that the plaintiff Colleen Henerey
recover nothing. The claims against Republic Parking System, Inc., are dismissed
on the merits.”
3. The clerk must close the file.
SO ORDERED on November 13, 2015.
s/Robert L. Hinkle
United States District Judge
Case No. 4:15cv128-RH/CAS
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