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3d DCA Watch -- A Community College Is Not A University

Hi kids, let's dive straight into 3d DCA world:

Del Pino vs. FIU:

This one is a headscratcher, an appeal over a whistleblower suit in which the main issue is whether or not the underlying suit by the plaintiff, a former FIU employee, was untimely or not.

From what I can gather, the alleged whistleblower filed a complaint with the Florida Commission on Human Relations, which found a prima facia case of retaliation by FIU. The Commission was unable to resolve the complaint, and issued an 180 day right-to-sue notice. The plaintiff then sued within that period.

But then FIU's lawyers got real clever. They argued that she was late because the Commission lacked jurisdiction to hear her complaint, and that she should have filed the complaint within 180 days of the adverse personnel action. GOTCHA! Judge Gordon ruled in FIU's favor on summary judgment.

Not so fast, says Judge Cope. The Commission properly had jurisdiction over the complaint because the plaintiff was an employee of a "state agency" under the remedies section of Florida's Whistle-Blower's Act. FIU is a "state agency" because state universities submit their budget requests to the Board of Regents (then) and the State Board of Education (now), which in turn submit budget requests under chapter 216 on behalf of their component state universities.

Got that? No, me either.

Judge Cope then distinguishes a 4th DCA opinion that held that community colleges are not "state agencies" under the remedies section, and here is his analysis:

After reviewing the applicable statutes, the Fourth District concluded that a community college is a political subdivision of the state, but does not satisfy the definition of ?state agency? contained within paragraph (8)(a). Caldwell, 858 So. 2d at 1200-01. Caldwell has no application here, for FIU is not a community college.

Ok, FIU is not a community college, that's true. But do community colleges likewise submit budget requests to the State Board of Education, like FIU does? Isn't that the primary reason FIU was held to be a "state agency"?

Maybe the answer is apparent, but the opinion does not answer this question.

Full post as published by South Florida Lawyers on May 28, 2008 (boomark / email).