Rebekah Jones, Claimed 2020 Florida Health Department COVID-19 Whistle-Blower, Loses Lawsuit Over Firing

From Jones v. Florida Dep’t of Health, decided by Florida Court of Appeal Judges Joseph Lewis, Ross Bilbrey, and Thomas Winokur:

Jones was … the Environmental Health Program Consultant in the [Florida Department of Health] Division of Disease Control and Health Protection. In March 2020, as part of DOH’s response to the COVID-19 pandemic, Jones was assigned to work on the Department’s “COVID-19 Dashboard” to provide an interactive illustration of COVID-19 testing data to the public. The parties agreed that Jones’ chain of command began with her immediate supervisor, IT Director Craig Curry. Their Division Director was Dr. Carina Blackmore. Authority proceeded to then-Deputy Secretary Dr. Shamarial Roberson ….

[O]n or about April 9, 2020, Curry learned that Jones had posted Facebook messages identifying herself as the person who maintained DOH’s COVID-19 Dashboard and explaining the information displayed on the Dashboard. About twelve days later, Curry discovered that Jones had given an interview to DOH’s outside geographic information system (GIS) vendor describing her work as the Dashboard manager.

Curry also found out about a blog Jones published, representing herself as the author of DOH’s COVID-19 Dashboard and posting charts of DOH data she had created stemming from her job duties. Curry was concerned that Jones had not obtained permission from DOH’s Office of Communications before making these public statements as a DOH representative about the Dashboard information.

In late April 2020, to facilitate the State’s plan to reopen counties with lower rates of new COVID-19 infections, Jones was tasked with creating and presenting reopening criteria to include on the Dashboard. Jones presented her work on this “county scorecard project,” including positivity rates for each county, to Deputy Secretary Roberson on April 26, 2020.

According to Jones, Roberson disapproved of Jones’ presentation because her COVID-19 figures exceeded the target percentage rates for reopening many counties. {The veracity of Jones’ allegations is immaterial to our disposition.} Jones testified that Roberson instructed her to reconfigure the data by lowering the infection rates and exempt counties with smaller populations from the “scorecard” materials.

Jones alleged that she considered this a directive to falsify the data, and she refused to do so. Jones added that ultimately, the county scorecard data was not published. Although she disagreed with instructions given by Roberson, Jones did amend the COVID-19 Dashboard to reflect new case positivity rates and other data provided by DOH epidemiologists.

Jones continued to publish data to the public through DOH’s open data hub, including data not approved for publication by DOH. On May 5, 2020, Jones was instructed to take the data hub offline temporarily so the information could be vetted, but she was openly defiant…. Jones was removed from her assignment on the COVID-19 Dashboard on May 6, 2020.

Jones admitted that on May 7, 2020, she altered the Dashboard files and removed several team members’ administrative software rights, preventing their access and hindering their ability to do their jobs. Curry instructed Jones to restore the administrative privileges for her colleagues and directed her not to impede their work with the Dashboard. But Jones never complied. Instead, Curry had to contact the software vendor directly to get the access privileges reinstated.

The following week, on May 14, 2020, Jones texted Curry that she was considering filing a whistleblower complaint about “how I’m being treated, the Dashboard mess, gross mismanagement.” … The next day, Jones emailed an outside GIS COVID data listserve group informing the recipients that she was no longer the manager of the COVID-19 Dashboard and that the new team running the Dashboard was not expected to “continue the same level of accessibility and transparency” as she had….

Jones was fired on May 18, 2020, and sued on various grounds. The court rejected Jones’ whistle-blower claim:

[Jones] admitted, and the trial court found, that she presented no evidence that she engaged in whistleblower activity protected by the statute before her employment was terminated. It was undisputed that Jones made no report of a violation of law or prohibited act by DOH, as defined by section 112.3187(5), to a recipient listed in section 112.3187(6), and submitted no written and signed complaint under section 112.3187(7) before her termination. Thus, we agree with the trial court that Jones failed to establish a prima facie case of retaliation under section 112.3187.

The trial court rejected Jones’ argument that she was prevented from filing a written report by her termination. The court found that Jones “had ample opportunity to make a protected disclosure under the FWA … if she intended to do so after her alleged refusal to falsify data on April 26, 2020.” The record supports the trial court’s finding that Jones was not prevented by DOH or any supervisor from meeting the requirements of section 112.3187(5), (6) and (7) before her employment was terminated on May 18, 2020….

Jones’ text on May 14, 2020 … stating she wanted to complain about “how I’m being treated” was not a protected disclosure of a law violation by DOH under section 112.3187(5). The court applied the correct rule that “personal complaints” are not protected disclosures under section 112.3187. Pickford v. Taylor Cnty. Sch. Dist. (Fla. App. 2020) (holding complaint about salary not protected); Nazzal v. Fla. Dep’t of Corrs. (Fla. App. 2019) (holding that complaints about personal conflict with supervisor not protected under section 112.3187)….

Jones does not contest the trial court’s citations to her deposition and the depositions of the other witnesses to establish that shortly before she was terminated, she interfered with other employees’ access to the COVID-19 Dashboard and refused to reinstate this access when directed to do so. The trial court also cited deposition pages supporting its finding that before Jones’ termination, she messaged a large group of people outside DOH disparaging the new Dashboard team after she was reassigned.

The trial court’s finding that Jones’ termination of employment was based on these instances of insubordination and violation of DOH policy, and not retaliation for protected whistleblower reports as defined by section 112.3187(5), (6), and (7), was supported by competent, substantial evidence….

And the court rejected Jones’ First Amendment claim:

To show that her communications were protected speech under the First Amendment, Jones was required to demonstrate she (1) spoke as a private citizen; (2) on a matter of public concern; and (3) her interest in publishing the speech outweighed the employer’s interest in regulating the speech.

The character of speech as a citizen and not as an employee depends on whether the speech “owes its existence to a public employee’s professional responsibilities.” … Jones testified that she was assigned to create and manage DOH’s COVID-19 Dashboard and that she was responsible for communicating with the public and the media on DOH’s behalf about the Dashboard….

Jones agreed that in her personal blog post and Facebook post she identified herself as the DOH Dashboard manager speaking with authority derived from her employment. Thus, Jones’ public-facing comments about the Dashboard and her reassignment away from that duty were made as a DOH employee, not as a citizen on her own behalf.

On appeal, Jones does not argue that her refusal to comply with her supervisor’s directives (to refrain from public dissemination of data until they were vetted by DOH personnel, to reconfigure COVID-19 data for a new purpose, and to reinstate access to the Dashboard for fellow DOH employees after she removed it) were protected by the First Amendment. Likewise, Jones does not argue that her public criticism of the DOH team assigned to the Dashboard in her place was protected citizen speech.

As the Supreme Court has recognized, “the government as employer indeed has far broader powers than does the government as sovereign.” And “even many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees.” … Jones could not demonstrate that her employment was terminated in retaliation for her exercise of speech protected by the First Amendment….

Miriam R. Coles and Dawn M. McMahon (Henry Buchanan, P.A.) and C. Alan Lawson, Jason Gonzalez, Jessica Slatten, and Taylor Greene (Lawson Huck Gonzalez, PLLC) represent defendants.

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