Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Nos. 1D19-1924 1D19-2515 _____________________________ DONNIE L. PICKFORD, Appellant, v. TAYLOR COUNTY SCHOOL DISTRICT, Appellee. _____________________________ On appeal from the Circuit Court for Taylor County. Darren K. Jackson, Judge. June 29, 2020 NORDBY, J. Following his termination as a substitute teacher, Appellant Donnie Pickford sued the Taylor County School District alleging employment discrimination and whistleblower retaliation. The trial court entered summary final judgment for the District on both claims and awarded the District attorney’s fees and costs. Mr. Pickford appeals both the entry of summary final judgment and the fees award and, as a threshold ground for reversal, he challenges the trial court’s striking of his affidavit submitted in opposition to the District’s motion for summary judgment. Because the trial court erred in its blanket strike of Mr. Pickford’s affidavit, we reverse the trial court’s order striking the affidavit, we reverse the summary judgment entered on the employment discrimination claim, and we reverse the award of fees and costs. We affirm, however, the trial court’s grant of summary judgment on the whistleblower claim because Mr. Pickford failed to establish he made a disclosure protected under Florida’s Whistle-blower’s Act. I. FACTUAL AND PROCEDURAL BACKGROUND Donnie Pickford began working as a substitute teacher for the Taylor County School District during the 2014–2015 school year. Just before the start of the 2016–2017 school year, the District hired Mr. Pickford as a substitute teacher at Taylor County Elementary School to work in a special education classroom for students with disabilities. Mere weeks into the school year, the District terminated Mr. Pickford’s employment. He sued the District alleging two claims: employment discrimination on the basis of race, in violation of the Florida Civil Rights Act, and retaliation in violation of Florida’s Whistle-blower’s Act. The discrimination claim is based on allegations of racially hostile and discriminatory treatment. Mr. Pickford, an African- American, holds a Bachelor of Arts in Mathematics and a Master’s Degree in Business Administration. He maintains that he was singled out and ultimately terminated based on later-contrived pretextual reasons and the District replaced him with a less- experienced and less-qualified white male. The whistleblower retaliation claim centers on a letter Mr. Pickford sent to the principal at the elementary school about his salary. In it, Mr. Pickford explained that, based on his previous teaching assignment, his pay rate should be that of a full-time teacher rather than a substitute teacher. He requested that “this oversight be addressed as soon as possible” and asked the principal to notify the Superintendent about the pay issue. Mr. Pickford maintains that he provided this letter to the principal the very same day he was fired. The District moved for summary judgment on both claims. On the discrimination claim, the District argued Mr. Pickford had failed to identify a similarly situated employee, Mr. Pickford was not qualified for the position, and the District had legitimate, 2 nondiscriminatory reasons for terminating his employment. Summary judgment was appropriate on the whistleblower claim, the District argued, because Mr. Pickford did not send his letter until after his termination and the letter was not a disclosure protected under the statute. In support of his opposition to the District’s summary judgment motion, Mr. Pickford filed a 38-paragraph affidavit alleging factual details surrounding his hiring and firing by the District, as well as describing several incidents and conversations involving other District employees during his period of employment. In response, the District moved to strike the affidavit on various grounds. The trial court granted the request and struck the entire affidavit, relying on the principle that a party may not defeat summary judgment through an affidavit that contradicts earlier deposition testimony. The trial court’s brief order also contained a broad, catchall finding that the affidavit contained statements that were irrelevant, not based on personal knowledge, or referenced statements made by other District employees. In its order granting summary judgment, the trial court reiterated its basis for striking the affidavit, explaining in a footnote that Mr. Pickford’s affidavit was “self-serving and contradictory” to his deposition testimony. The trial court entered summary final judgment for the District on both the discrimination and whistleblower claims and awarded attorney’s fees and costs to the District under the “offer of judgment” provision in section 768.79, Florida Statutes. II. ANALYSIS We review a trial court’s grant of summary judgment de novo to determine whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Nazzal v. Fla. Dep’t of Corr., 267 So. 3d 1094, 1096 (Fla. 1st DCA 2019), review denied, No. SC19-793, 2019 WL 6248307 (Fla. Nov. 22, 2019). In assessing the existence of any disputed material facts, we view the evidence—and draw all inferences—in the light most favorable to Mr. Pickford as the non-moving party. Id. Applying this to the case before us, we affirm in part and reverse 3 in part the trial court’s grant of summary judgment for the District on the two claims. A. The Affidavit and Racial Discrimination Claim We begin by addressing Mr. Pickford’s challenge to the trial court’s striking of his affidavit. Because the admission and consideration of affidavits is an evidentiary matter within the sound discretion of the trial court, we review the trial court’s striking of Mr. Pickford’s affidavit for an abuse of that discretion. Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 579 (Fla. 1st DCA 2016). We conclude the trial court erred in striking the entire affidavit. In seeking to defeat summary judgment, a party may not create a factual dispute through an affidavit that “baldly repudiate[s]” the party’s earlier deposition testimony. Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954); but see Cary v. Keene Corp., 472 So. 2d 851, 853 (Fla. 1st DCA 1985) (noting an exception to this principle when the party offers a credible explanation for the discrepancy between the earlier and later statements). Problematic here is the trial court’s blanket strike of the entire 38- paragraph affidavit. The trial court’s primary reason for striking (noted both in the order striking and the order granting summary judgment) was that the affidavit was contradictory to Mr. Pickford’s earlier deposition testimony. But the District had moved to strike only two of the 38 paragraphs on the basis they contained allegations that contradicted Mr. Pickford’s deposition testimony. These two paragraphs (numbered 22 and 27) contained allegations relating only to the date on which Mr. Pickford first sent his letter to the principal for purposes of the whistleblower claim; they in no way related to his discrimination claim. We find the trial court abused its discretion in striking the entire affidavit based on these two paragraphs. In doing so, the trial court struck another 36 paragraphs not challenged as contradictory, many of which contained allegations relating to the discrimination claim. The District urges us to affirm the order striking the affidavit on other grounds because the affidavit contains “hearsay, flat-out misrepresentations, conjecture, assertions, and statements refuted by sworn testimony” of other District employees. We 4 decline to do so. On this point, we acknowledge the trial court’s order contained a catchall finding that the affidavit contained allegations that were irrelevant, not based on personal knowledge, or referenced statements made by other District employees. Having reviewed Mr. Pickford’s affidavit, we conclude neither the District’s arguments on appeal, nor the trial court’s broad, generalized conclusion, provide a sufficient basis for us to affirm the striking of the entire affidavit. Because the trial court abused its discretion, we reverse its order striking the entirety of the affidavit. We also conclude that reversal of summary judgment on the racial discrimination claim is required given our reversing the trial court’s strike of the affidavit. B. The Whistleblower Claim Next, we address Mr. Pickford’s challenge to the trial court’s ruling on his whistleblower claim, which is based on a letter Mr. Pickford sent to the elementary school principal disputing his pay rate. We affirm the trial court’s grant of summary judgment on this claim because Mr. Pickford failed to establish that he made a protected disclosure under Florida’s Whistle-blower’s Act. To state a claim under the Act, Mr. Pickford had to establish he made a protected disclosure before his termination. Nazzal, 267 So. 3d at 1096 (“To establish a prima facie case under the Whistle- blower’s Act, the plaintiff must show that (1) prior to her termination, she made a disclosure protected by the Act; (2) she suffered an adverse employment action; and (3) some causal connection exists between the first two elements.”). In setting forth what triggers whistleblower protection, the Act expressly provides that a disclosure “must include”: (a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public's health, safety, or welfare. 5 (b) Any act or suspected act of gross mismanagement, malfeasance, misfeasance, 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), Fla. Stat. (2016). We conclude Mr. Pickford’s letter does not rise to the level of a statutorily protected disclosure under the Act. The letter fails to identify any violation of law, rule, or policy that would present a “substantial and specific danger to the public’s health, safety, or welfare,” nor does it identify any act of misfeasance, malfeasance, or other gross conduct that would trigger the Act’s protections. Instead, the letter sets forth Mr. Pickford’s position that, under his understanding of the substitute teacher pay guidelines, he was entitled to a higher rate of pay based on his previous teaching assignment: “As I understand it, on this type of an assignment, after ten days of sub pay, teacher pay is applicable from that time forward. . . . I am requesting that this oversight be addressed as soon as possible.” Because the letter does not constitute a protected disclosure under section 112.3187(5), Florida Statutes, we affirm the trial court’s grant of summary judgment on the whistleblower claim. C. Attorney’s Fees and Costs Given our partial reversal of the trial court’s summary judgment rulings, we must also reverse the award of attorney’s fees and costs to the District based on the “offer of judgment” provision in section 768.79, Florida Statutes. Any potential award of attorney’s fees and costs to the District based on its proposal for settlement will need to be determined on remand following resolution of the discrimination claim and entry of final judgment. III. CONCLUSION For the above reasons, we reverse the trial court’s order striking Mr. Pickford’s affidavit, we reverse the grant of summary judgment on the discrimination claim, and we reverse the award 6 of attorney’s fees and costs to the District. We affirm, however, the grant of summary judgment on the whistleblower claim. AFFIRMED in part, REVERSED in part, and REMANDED. WOLF and MAKAR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Appellant. David M. Delaney and Natasha Mickens of Dell Graham, P.A., Gainesville, for Appellee. 7