PER CURIAM.
Clare Caldwell appeals the dismissal of her complaint by the Florida Commission on Human Relations (Commission) based on its conclusion that it lacked statutory authority under the Whistle-blower's Act to investigate the complaint. Caldwell asserts that the Commission was not authorized to dismiss her complaint, but rather was obligated conduct the investigatory and fact-finding functions set forth in the Whistle-blower's Act, sections 112.3187-31895, Florida Statutes. For the reasons that follow, we affirm the Commission's dismissal of Caldwell's complaint.
Caldwell was employed by the Florida Department of Elder Affairs (Department). Her employment was terminated on September 2, 2011. On October 18, 2011, Caldwell filed a complaint with the Commission alleging that her termination violated the Whistle-blower's Act. Caldwell asserted that during an investigation of the Department by the Federal Administration on Aging, she "contact[ed] by telephone the Federal Investigator to alert him to the condition of the Ombudsman program and the gross misfeasance and malfeasance that were occurring within."
On December 2, 2011, by letter issued to Caldwell in care of her attorney, the Commission
The Commission informed Caldwell that she had the right to seek judicial review of this decision. Caldwell timely filed a notice of appeal.
Our review of the Commission's action begins "with the usual recognition of deference to an agency's interpretation of a statute it is charged to administer." Big Bend Hospice, Inc. v. Agency for Health Care Admin., 904 So.2d 610, 611 (Fla. 1st DCA 2005) (quoting Cone v. State, Dep't of Health, 886 So.2d 1007, 1009 (Fla. 1st DCA 2004)).
The Commission's authority to investigate whistle-blower complaints is set forth in section 112.31895, Florida Statutes. This section provides that the Commission shall receive any allegation of "personnel action prohibited by s. 112.3187 ... and conduct informal fact finding regarding any allegation under this section ...." § 112.31895(2)(a), Fla. Stat. (2011)(emphasis added). Section 112.3187, Florida Statutes, in turn, prohibits an employer from taking retaliatory action against an employee who discloses information of a specified nature and discloses that information in a specified manner. The Act protects information disclosed about "[a]ny act or suspected act of gross mismanagement, malfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor." § 112.3187(5)(b), Fla. Stat. (2011) (emphasis added). Moreover, a whistle-blower complaint is considered sufficient only if it "is sufficiently precise to identify the parties and to describe generally the action or practice complained of." Fla. Admin. Code R. 60Y-5.001(6)(b).
Contrary to the assertion in the dissent, Caldwell's complaint failed to meet the pleading requirements to trigger an investigation. In her complaint, Caldwell alleged that she contacted a federal investigator "to alert him to the condition of the Ombudsman program and the gross misfeasance and malfeasance that were occurring within." These conclusory allegations fail to describe any act or suspected act of misfeasance or malfeasance; thus, Caldwell failed to plead the prima facie elements necessary to initiate the operation of the Act.
In her Initial Brief, Caldwell twice states that she was never allowed to amend her claim to cure any deficiency. These two isolated references constitute Caldwell's entire argument that she should have been allowed an opportunity to amend her complaint before dismissal. These perfunctory statements are insufficient to present an argument for appellate review. See Shere v. State, 742 So.2d 215, 217 n. 6 (Fla.1999) (recognizing that an issue raised in a brief without argument is insufficiently presented for review); Coolen v. State, 696 So.2d 738, 742 n. 2 (Fla. 1997) (finding that raising an argument in a footnote without fully briefing the issue constituted waiver of that argument); Duest v. Dugger, 555 So.2d 849, 852 (Fla. 1990) ("The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues, and these claims are deemed to have been waived."); Stanton, ___ So.3d at ___, 38 Fla. L. Weekly at D325 (finding that a perfunctory argument without any supporting argument or authority will not be addressed on appeal); Hammond v. State, 34 So.3d 58, 59 (Fla. 4th DCA 2010) ("Claims for which an appellant has not presented an argument, or for which he provides only conclusory argument, are insufficiently presented for review and are waived."); Henderson v. State, 569 So.2d 925, 927 (Fla. 1st DCA 1990) ("In view of the perfunctory argument made by appellant and the state's justifiable lack of response, we decline to consider the constitutional validity of this new provision in the statute for the reason that it has not been properly preserved and presented for review on this appeal."). There mere fact that Caldwell further explained this argument in her Reply Brief does not revive this argument.
We, therefore, conclude that the Commission properly exercised its inherent authority to dismiss Caldwell's complaint. See Robinson v. Dep't of Health, 89 So.3d 1079, 1082-83 (Fla. 1st DCA 2012) (holding that the Commission had the inherent authority to dismiss an untimely whistle-blower's complaint because such authority was "necessarily incident to the power to review timely complaints").
AFFIRMED.
LEWIS and ROWE, JJ., concur; BENTON, C.J., dissents with opinion.
BENTON, C.J., dissenting.
Under governing statutes and rules, the Commission's role is to investigate public
The Legislature has authorized whistleblowers to sue in circuit court or to seek administrative relief in proceedings at the Public Employer Relations Commission (PERC), and has not given the Florida Commission on Human Relations (Commission or FCHR) the power to stop them from doing so:
Robinson v. Dep't of Health, 89 So.3d 1079, 1081 (Fla. 1st DCA 2012), review denied, No. SC12-1447, 2012 WL 6757547 (Fla. Dec. 28, 2012). Before a public employee may seek relief in either forum, the Legislature has directed that the FCHR investigate the matter and take appropriate action, including attempting to "conciliate a complaint." § 112.31895(3)(d), Fla. Stat. (2011). The complainant may then elect to pursue judicial remedies or file for relief with PERC.
The Commission's investigation is meant to be but the first step in the process. Only if the complaint is filed out of time or falls outside the Commission's investigatory jurisdiction
Our supreme court has been very clear that the public Whistle-blower's Act should be construed broadly so "protections of the Whistle-Blower's Act" are given full effect:
Irven v. Dep't of Health & Rehab. Servs., 790 So.2d 403, 406 (Fla.2001) (emphasis supplied). Today's decision construes the Act narrowly, and significantly diminishes its protections.
In the present case, Clare Caldwell filed with the FCHR a form Whistle-Blower Retaliation Charge of Discrimination in which she alleged that she was fired as an employee of the Florida Department of Elder Affairs (FDEA) for, among other things, cooperating with a federal investigation looking into (and ultimately critical of) FDEA by informing the federal investigator of gross misfeasance and malfeasance in the FDEA's ombudsman program.
In her initial brief, Ms. Caldwell paints a picture of wholesale dereliction in alleging that FCHR mishandled her complaint, arguing, among other things:
Initial Brief, 6, 15 (footnote omitted). She argues that FCHR's dismissal should be reversed, with directions to issue a notice of termination of investigation instead.
The public sector Whistle-blower Act is remedial in nature, a "`remedial statute designed to encourage the elimination of public corruption by protecting public employees who "blow the whistle." As a remedial act, the statute should be construed liberally in favor of granting access to the remedy.'" Irven, 790 So.2d at 405 (quoting Martin Cnty. v. Edenfield, 609 So.2d 27, 29 (Fla.1992)). FCHR's cryptic
The present case can be distinguished from Tillery v. Fla. Dep't of Juvenile Justice, 104 So.3d 1253, 1255 (Fla. 1st DCA 2013), where the complaint failed "to allege when or to whom [Tillery] made [alleged] whistle-blower disclosures," claimed as the bases for retaliation. Because "his complaint d[id] not meet the prima facie elements necessary to initiate operation of the Act," the court ruled
In the present case, Ms. Caldwell alleged she informed a federal investigator "[o]n approximately April 15, 2011," after the Federal Administration on Aging initiated an investigation of her employer FDEA, of "the condition of the [FDEA] Ombudsman program and the gross misfeasance and malfeasance that were occurring within," and was terminated as "a direct result." The majority opinion complains that "gross misfeasance and malfeasance" could have been identified with more specificity. But there is absolutely no reason on this record to conclude that the gross misfeasance and malfeasance that Ms. Caldwell alleged lie outside
FCHR's summary denial of Ms. Caldwell's rights to pursue her whistleblower claim took place despite the fact she had no opportunity to amend her complaint, even though Rule 60Y-5.001, Florida Administrative Code, provides:
Fla. Admin. Code R. 60Y-5.001(7)(a)-(b). FCHR's summary denial violated its own rules and the governing statute, and arbitrarily brought to an end Ms. Caldwell's efforts to obtain redress for the discharge she alleged was in retaliation for her cooperation with an official investigation into a state agency's gross misfeasance and malfeasance.
The majority opinion fails to address the fact that Ms. Caldwell was denied any opportunity to amend her complaint partly on grounds "it was not raised until the reply brief." Ante p. 1064 n. 2. The record in the present case belies this assertion. In her initial brief
Where public employees file timely, colorable claims that they were fired in violation of the Whistle-blower's Act, FCHR's function is to investigate these claims, take action on behalf of affected public employees where appropriate, "conciliate" cases where possible, and then terminate the investigation, after preparing reports containing findings of fact. Thereafter, whether the FCHR decides there is reasonable cause to suspect a violation or not, the public employee has the right under the statute to seek an adjudication of her claim, either at PERC or in circuit court, at her election. FCHR's summary truncation of the process, and today's decision upholding FCHR's still essentially unexplained
Mathis v. Florida Dep't of Corr., 726 So.2d 389, 393 (Fla. 1st DCA 1999). No rule or statute authorizes FCHR's dismissal in the present case. At this point in the proceedings, we should "remand and reverse this matter to the Florida Human Relations Commission (Commission) to make ... factual and legal determinations" and issue a notice of termination of investigation. Mena v. Lifemark Hospitals of Florida, Inc., 50 So.3d 759, 760-61 (Fla. 1st DCA 2010) (reversing FCHR investigatory determination where it was "not clear how the Commission reached this result").
We should at the very least certify a question of great public importance along the following lines:
WHETHER THE FLORIDA COMMISSION ON HUMAN RIGHTS IS AUTHORIZED TO DISMISS SUMMARILY A TIMELY WHISTLEBLOWER'S COMPLAINT FILED BY A PUBLIC EMPLOYEE WHERE IT DEEMS THE COMPLAINT "CONCLUSORY" OR LACKING IN SUFFICIENT DETAIL OR SPECIFICITY, ALTHOUGH THE WHISTLEBLOWER'S COMPLAINT ALLEGES THAT A STATE AGENCY DISMISSED HER AS THE DIRECT RESULT OF HER HAVING DISCLOSED A STATE AGENCY'S GROSS MISFEASANCE AND MALFEASANCE TO FEDERAL INVESTIGATORS?
Although FCHR can be said to have investigated (by making a single phone call to Ms. Caldwell), it never gave notice of termination of investigation, dismissing the complaint instead. Ms. Caldwell was obliged to appeal under Robinson and, by the time her appeal concludes, the 60- and 180-day time periods will have run. Only if the court reversed with directions that FCHR investigate and/or, having investigated, give notice of termination of investigation would the clock be restarted. It is too late to start over. An affected public employee "may file a complaint alleging a prohibited personnel action ... [with FCHR] no later than 60 days after the prohibited personnel action." § 112.31895(1)(a), Fla. Stat. (2011).
A complainant alleging discrimination in violation of Title VII is required to file a "charge of discrimination" with the EEOC which triggers the investigatory and conciliatory procedures of the EEOC. See Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998). The purpose of the notice requirement is to "initiate an investigation into the allegations and allow the EEOC to attempt informal means of resolving the dispute." Karnezis, supra. The Supreme Court has held that what constitutes such a charge must be liberally construed "to protect the employee's rights and statutory remedies." Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 406, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008). The Court laid down this commonsense functional standard for determining whether a filing qualifies as a "charge":
Id. at 402. The Court explained that "the filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes[.]" Id. The Court subsequently held that complainant's "Intake Questionnaire," together with an affidavit, constituted a "charge of discrimination" sufficient to trigger EEOC's investigative jurisdiction. Complainant's failure to fill out and submit "Form 5," labeled "Charge of Discrimination" was not fatal to her case. Id. at 405. In the present case, of course, Ms. Caldwell did fill out and submit a form charging discrimination.
In Butler v. Cleburne County Comm'n, No. 1:10-cv-2561-PWG, 2012 WL 2357740 (N.D.Ala. Jan. 17, 2012), approved, 2012 WL 2357741 (N.D.Ala. June 14, 2012), the court held that even where the Plaintiff did not file EEOC's official Form 5, "Charge of Discrimination," her letter to the EEOC sufficed as a charge. This letter stated in relevant part, "I wish to file a charge of discrimination against my former employers, the Cleburne County Water Authority and the Cleburne County Commission," and was accompanied by a letter from her counsel. Id. at *9. The court held
Id. at *12. In the present case, Ms. Caldwell filed a form entitled WHISTLE-BLOWER RETALIATION CHARGE OF DISCRIMINATION and thereby "request[ed] to be afforded full relief to which I am entitled."
In Holender v. Mut. Indus. N. Inc., 527 F.3d 352, 353 (3d Cir.2008), complainant filed a "charge" form but failed to check the box on the form next to the statement "I want this charge filed with both the EEOC and the State or local Agency, if any." Nor was the form notarized. The Third Circuit held this to be sufficient. Id. Nor was the Third Circuit troubled by the fact that complainant refused to respond to EEOC's requests for further information after the submission of his charge form. Id. at 354; 357. Similarly, in Crevier-Gerukos v. Eisai, Inc., CIV.A. H-11-0434, 2012 WL 681723 (S.D.Tex. Feb. 29, 2012), the court held that when complainant checked the box on an "intake questionnaire" that stated "I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above," an objective observer would interpret this as a request to file a charge, which therefore qualified as a "charge." The court noted that the intake questionnaire was unverified and unsigned. Id. at *7-9. See also Williams v. CSX Transp. Co., Inc., 643 F.3d 502, 509 (6th Cir. 2011) (holding that complainant's initial charge could be amended); Fava-Crockett v. Boehringer Ingelheim Pharm., Inc., 08CV0196, 2008 WL 1925099, at *1-3 (W.D.Pa. Apr. 29, 2008).
Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed.Cir.2008). See generally Dep't of Prof'l Regulation, Div. of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 717 (Fla. 1st DCA 1989) (holding that a state statute modeled after a federal statute "will take the same construction in the Florida courts as its prototype has been given in the federal courts, insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject").
Reply Brief, 3-5 (citations omitted).