NEW WORLD COMMUNICATION OF TAMPA, INC. v. Akre

Citations: 866 So. 2d 1231; 2003 WL 327505Docket: 2D01-529

Court: District Court of Appeal of Florida; February 13, 2003; Florida; State Appellate Court

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New World Communications of Tampa, Inc. d/b/a WTVT-TV appealed a judgment against it for violating Florida's private sector whistle-blower statute (section 448.102, Florida Statutes). The case involved Jane Akre and her husband, Steve Wilson, who were hired as an investigative reporting team and began work on a story regarding the use of synthetic bovine growth hormone (BGH) in Florida dairy cattle. Their reporting led to significant disagreements with WTVT's management over the story's content, with accusations of the station attempting to distort the reporting to favor BGH manufacturers. In September 1997, WTVT terminated their employment contracts. Akre and Wilson threatened to file a complaint with the FCC, alleging that WTVT had illegally edited their report. They later sued WTVT, claiming retaliation under the whistle-blower statute for resisting the station’s attempts to alter the story and for threatening to report these actions. After a four-week trial, the jury found against Wilson on all claims but awarded Akre $425,000 for retaliation based on her FCC threat. WTVT raised multiple challenges to the judgment, but the court found that Akre failed to state a valid claim under the whistle-blower statute, leading to a reversal of the judgment.

The whistle-blower's statute prohibits retaliation against employees who disclose or threaten to disclose employer conduct violating any law, rule, or regulation, as defined by Florida Statutes 448.102(1)(3) and 448.101(4). The statute specifically limits the definition of a 'rule' to those that have been formally adopted. The FCC's policy on news distortion, while established through the adjudicatory process, does not qualify as an 'adopted' rule under Florida law since it has never been published as a definitive regulation. The origins of this policy date back to 1949, with its structure evolving through FCC decisions from 1969 to 1973 in response to complaints referred by Congress. Akre's argument that this policy qualifies as a 'rule' under section 120.52(15) is countered by the statute's explicit limitation to 'adopted' rules, which serves to ensure that employers are only liable for violations of which they have had clear notice. Consequently, the FCC's news distortion policy lacks the formal adoption required to impose liability under the whistle-blower statute.

Federal law distinguishes between rulemaking and adjudication, as established in Bowen v. Georgetown Univ. Hosp. Moreover, under Florida law, state agencies have limited discretion to create policy through adjudication, as the Florida Legislature mandates formal adoption of agency statements that qualify as 'rules' under section 120.52. This legislative intent aims to restrict the liability of employers under the whistle-blower statute. Therefore, recognizing an informal agency policy as equivalent to a formally adopted rule would contradict this framework and potentially broaden employer liability beyond legislative intent. The court found that the FCC's news distortion policy does not qualify as a 'law, rule, or regulation' under section 448.102, leading to the conclusion that Akre did not present a valid claim under the whistle-blower statute. Consequently, the court reversed the judgment in Akre's favor and remanded for judgment in favor of WTVT. 

Additionally, the court addressed Akre's motions for rehearing and clarification regarding the appellate attorney's fees awarded to WTVT. While Akre sought to apply the standard from Christiansburg Garment Co. v. EEOC for determining attorney's fees for prevailing defendants under section 448.104, the court noted that the statute does not specify criteria for awarding fees to plaintiffs versus defendants. The Christiansburg decision indicated that prevailing plaintiffs should generally receive fees unless special circumstances arise, whereas prevailing defendants should only receive fees if the plaintiff's case is deemed frivolous, unreasonable, or baseless. The court ultimately granted Akre's requests for rehearing and clarification but denied her requests for rehearing en banc and certification of a question of great public importance.

The court rejects Akre's argument for applying the Christiansburg standard to Florida's whistle-blower statute, section 448.103, noting that other courts also found the Christiansburg standard inapplicable to fee awards under section 448.104. While section 448.104 allows for discretion in awarding attorney's fees, the court determines that WTVT is not entitled to appellate attorney's fees. Akre, as the appellee, successfully defended a jury verdict in her favor, and the court believes it is inappropriate to compel her to abandon her favorable verdict on appeal or risk fees if the judgment is reversed, despite the whistle-blower claim lacking legal merit. The presumption of correctness for final judgments makes the appeal not frivolous. The court emphasizes that its discretion regarding appellate fees is separate from the trial court’s potential decision on trial attorney's fees, where WTVT need not prove that Akre's suit was frivolous to be awarded fees. The court will not entertain further motions for rehearing. Additionally, the court acknowledges the Fourth District's decision in Forum v. Boca Burger, Inc. but finds it irrelevant to this case as it does not alter the principle that defending a judgment on appeal is not frivolous. The decision in Forum relates specifically to the interpretation of a statutory amendment affecting fee awards.