Legal Writing and Research

Fall 1999
Sample Discussion Sections: Memos Involving Questions of Statutory
Interpretation

The following two discussion sections are taken from a closed memorandum analyzing ambiguous
language in the Private Sector Whistle-Blowers Act, 448.101-.105, Fla. Stat. (1999). The
ambiguous language related to an employees responsibility to give written notice to an employer
before whistle-blowing as a condition for protection under the Act. The first example takes the
position that written notice is required of all whistle-blowers under the Act; the second example
takes the position that only certain types of whistle-blowers are required to give written notice.

The client in this assignment was named Marty Harris. Ms. Harris was discharged after
objecting to business practices she felt were unethical or illegal. She brought suit under the Act,
claiming that she had been fired in violation of the Acts prohibition on retaliatory termination of
employees who object to, or refuses to participate in, an activity that violates a law, rule, or
regulation.

The facts of this assignment were loosely based on the facts in Jenkins v. Golf Channel, 714 So. 2d
558 (Fla. 5th DCA 1998), which certified conflict with Potomac Systems Engineering, Inc. v. Deering,
683 So. 2d 180 (Fla. 2d DCA 1996) regarding the Acts notice provisions. The Florida Supreme
Court eventually resolved the conflict in favor of the approach taken in Jenkins. See Golf Channel v.
Jenkins, 752 So. 2d 561 (Fla. 2000).

Neither of these examples is perfect, but both are good examples of appropriate tone,
organization, and content.
First Example: Notice is Required Under All Sections of the Act

The first paragraph, an Marty Harris is likely to have her claim of retaliatory
umbrella paragraph, discharge against The North Florida Channel (TNFC) dismissed for
starts with a prediction lack of written notice. Ms. Harris has sued TNFC for retaliatory
about the outcome, discharge as a whistle-blower under the Private Sector Whistle-
identifies the applicable Blowers Act, Sec. 448.101-.105, Fla. Stat. (1999) (the Act).
rule of law, explains the Her claim arises under subsection (3) of the Prohibitions section
source of the of the Act. See 448.102(3). That section has three subsections
disagreement, and prohibiting retaliatory discharge of an employee. Section
gives the reader a
448.102(1) mentions a written notice requirement, while sections
general overview of the
448.102(2) and (3) do not. However, the Remedies provisions of
reasons for the writers
prediction. the Act have been read to create an ambiguity in the Act because
they arguably do not limit written notice to section 448.102(1). See
448.103(1)(c). Because of this ambiguity, courts have interpreted
the Private Sector Whistle-Blowers Act in conflicting ways.
Compare Potomac Sys. Engg, Inc. v. Deering, 683 So. 2d 180, 182
(Fla. 2d DCA 1996) (holding that all whistle-blowers have to give
written notice) with Baiton v. Carnival Cruise Lines, Inc., 661 So.
2d 313, 316 (Fla. 3d DCA 1995) (holding that whistle-blowers
whose claims arise under subsection (3) do not have to give written
notice). Based on the policy of encouraging prior notice to
employers, fairness concerns, and judicial conservatism, the court
will likely dismiss Ms. Harris complaint for retaliatory discharge.
Section 448.102 prohibits retaliatory discharge of an
employee by an employer under three circumstances. Section
The discussion begins
with an analysis of the 448.102(1) prohibits retaliation when an employee discloses or
language of the statute. threatens to disclose to a governmental agency, in writing, any
activity of the employers that violates the law. The employee must
give the employer written notice of the activity and allow sufficient
time for correction of the allegedly illegal practices. See id. Section
448.102(2) prohibits retaliation when an employee testifies before,
or provides information to, an agency that is investigating the
employer for alleged violations of the law. Section 448.102(3), on
which Ms. Harris bases her claim, prohibits retaliation when an

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 employee objects to or refuses to participate in an employers
activity that violates a law, rule, or regulation.
This continues the Although section 448.102, read by itself, might imply that
discussion of the only some employees are required to give their employers written
statutes terms and notice, the Remedies section of the Act contains a more general
points out which notice requirement:
specific provisions An employee may not recover in any action brought
support the writers pursuant to this subsection if he or she failed to notify the
conclusion. employer about the illegal activity, policy, or practice as
required by s. 448.102(1) or if the retaliatory personnel
action was predicated on a ground other than the employees
exercise of a right protected under this act.

448.103(1)(c) (emphasis added). Thus, although subsections (2)

and (3) of section 448.102 do not mention written notice, it is
possible to construe the Act as requiring written notice from all
whistle-blowers as a prerequisite to having a remedy.
The Second District Court of Appeal has held that an
The first case employee who seeks damages from an employer based on the Act
discussed is the case
that directly supports must have given written notice of the illegal activity to the
the writers conclusion. employer, regardless of the subsection on which the employee bases
Although this memo is her claim. See Potomac, 683 So. 2d at 182. The employee in
addressing a legal
Potomac orally objected to and refused to participate in acts of
issue rather than
applying settled law to mischarging, misreporting, and using government equipment
new facts, a short without authorization. After being terminated, the employee sought
description of the facts recovery for retaliatory discharge under section 448.102(3). See
is included as a preface
683 So. 2d at 180. The employer argued that it was not liable
to explaining the courts
reasoning. because the employee had not given written notice of his
objections. The court agreed, holding that an employee who brings
a retaliatory discharge claim under any section of the Act must give
written notice to the employer. See id. at 182.
The court reached this holding by comparing section
448.103(1)(c) with section 448.102. It noted that section

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 448.103(1)(c) specifically reincorporates the notice requirement
from section 448.l02(1). See 683 So. 2d at 182. The court
reasoned that allowing an employee to recover damages for
retaliatory discharge under sections 448.102(2) and (3) without
written notice would render meaningless the notice language in
section 448.103(1)(c). See 683 So. 2d at 181. The Remedies
provisions in section 448.103(1)(c), thus, control all three of the
Prohibitions provisions of section 448.102. See 683 So. 2d at
182.
This paragraph Moreover, the court took policy and fairness concerns into
continues the account to support its decision that written notice was required. It
explanation of the noted that written notice would serve a curative function and allow
courts reasoning.
the employer to avoid the burden of preparing for litigation. See id.
Next, the court considered the relative burdens of employee and
employer. It noted that the employers burden of undergoing
investigation and preparing for a trial is probably greater than the
burden imposed by requiring written notice. Thus, a written notice
requirement was not unfair to the employee. See id. Finally, the
court demonstrated judicial conservatism in its reluctance to render
section 448.103(1)(c) meaningless. See 683 So. 2d at 181.

After fully describing the A few months before the Potomac decision, a federal
case that supports the district court had rejected an argument that the Act has a clear
writers prediction, the meaning requiring written notice. See Park v. First Union
writer acknowledges Brokerage Servs., Inc., 926 F. Supp. 1085, 1089 (M.D. Fla. 1996).
contrary authority.
In Park, an employer discharged an employee after the employee
objected to the employers sales practices. Id. at 1085. On appeal
from an arbitration award for the employee, the employer argued
that the arbitrators had disregarded the law because they had not
required the employee to give written notice. The court affirmed
the arbitrators decision and found the written notice requirement to
be ambiguous; because the Act supported two contradictory

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 readings, the court reasoned, the arbitrators had not disregarded the
law by allowing the employee to proceed with her claim. See id.
The Park court based its reasoning, in part, on an earlier
The preceding case decision from the Third District Court of Appeal holding that
merely acknowledged written notice is not required for whistle-blowers whose claims arise
a difference of opinion under section 448.102(3). See 926 F. Supp. at 1088 (citing Baiton
on the issue. This
paragraph begins the v. Carnival Cruise Lines, 661 So. 2d 313, 316 (Fla. 3d DCA 1995)).
explanation of the The employee in Baiton had been terminated after he refused to
directly adverse commit perjury in a case brought against his employer by a fellow
authority. The writer
employee. See id. at 313. The court reached its decision by
explains the reasoning
in the adverse decision considering the text of the Act itself. It decided that when the
and suggests possible legislature reincorporated the notice requirement of section
rationales for that 448.102(1) into section 448.103(1)(c), it meant for that requirement
decision as a prelude
to apply only to employees who seek a remedy under section
to minimizing its
persuasive effect. 448.102(1). The court emphasized that the other subsections of the
Prohibitions section, section 448.102, did not specifically
mention written notice. See 661 So. 2d at 316.
In addition to considering the text of the Act, the court in
Baiton may have taken policy considerations into account. In
discussing the terminated employees accompanying claim for
retaliation under the Jones Act, the court had suggested that
employers who terminate employees for refusing to do something
that strikes at the heart of the adjudicatory process are abusing
their right to hire and fire at will. See 661 So. 2d at 315. The
Baiton court did not discuss other policy concerns specific to
whistle-blowers, however, and did not discuss whether a written
notice requirement furthered or hindered the overall purposes of the
Act. See id. at 316.
Here, the court will most likely dismiss Ms. Harris
complaint for retaliatory discharge. The factual similarities between
Ms. Harris situation and the facts of Potomac support taking a

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This memo does not similar approach to written notice. Like the employee in Potomac,
follow a CREAC, CRAC who objected to questionable business practices of his employer,
or IRAC paradigm in the Ms. Harris objected to commercial practices she felt were
sense of explaining
what the law is and potentially illegal. However, the activities involved here do not
then applying the law to implicate the judicial process, and thus the underlying concern that
a set of facts. In this was present in Baiton is not present here.
part of the discussion, The court will probably be reluctant to read the Act as the
however, the writer has
moved from explaining Baiton court did because doing so, in effect, would be holding that
the two approaches to the second reference to written notice is merely repetition and has
the legal issue into no meaning of its own. The way to give effect to both references to
predicting which
written notice, TNFC can argue, is to construe the reference in the
approach a court will
take in this case. Prohibitions section as meaning that an employee is required to
give written notice before affirmatively disclosing an employers
violations of the law to an appropriate agency, as described in
section 448.102(1). The reason written notice is specifically
mentioned in that subsection, but not the others, is that the other
subsections describe situations where the employee is reacting to
outside circumstances rather than taking the initiative to disclose
information herself. See 448.102(2)-(3). The written notice
requirement in the Remedies section was placed there deliberately
to limit recovery in any action and expresses the legislatures
determination that employers should have an opportunity to correct
potentially illegal situations before being dragged into court to
defend themselves. See 448.103(1)(c).
Finally, the underlying policy concerns expressed in
Potomac tend to weigh against Ms. Harris here. In the context of
Ms. Harris complaints, which took place over a period of months,
the court will probably conclude that Ms. Harris had ample time to
put TNFC on notice that her supervisor was making what she
believed to be inappropriate requests. The burden to TNFC of

6
 investigating claims months after the fact is heavier than the burden
of requiring Ms. Harris to put her concerns in writing.
Ms. Harris can argue, on the other hand, that Acts general
Here the writer purpose of protecting employees from retaliation is weakened by
acknowledges a requiring written notice. See Potomac, 683 So. 2d at 182 (noting
potential counter- that Acts purpose is protecting employees from retaliation). It is
argument.
possible that a written notice requirement for sections 448.102(2)
and (3) would have a chilling effect on employer-employee
relations, as employees would hesitate to object to their employers
business practices for fear of suffering retaliation without having a
remedy. If Ms. Harris had given written notice of all her
complaints, she might have created an adversarial atmosphere at her
place of work. Ms. Harris can also argue that it is unfair to require
an employee who is terminated immediately after refusing a
supervisors order to give written notice to the company that has
just fired the employee before having a remedy. Finally, Ms. Harris
can argue that the written notice language in section 448.103(1)(c)
is not rendered meaningless by limiting it to employees who
disclose violations to government agencies under section
448.102(1). As used in section 448.102(1), the language means that
an employer is not prohibited from terminating an employee who
discloses information to an agency without first giving the employer
notice and time to cure the condition. As used in section
448.103(1)(c), the language reveals the legislative intent to preclude
recovery for employees who did not comply with the notice
requirement, if it applied to them, or who were fired for other
reasons. In other words, section 448.103(1)(c) is a statement of
legislative intent about the limitations on recovery under the Act,
but should not be read to create requirements beyond those
imposed in section 448.102.

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The conclusion of the A court is more likely to hold that written notice is required,
discussion refutes the however, because that holding preserves the general purpose of the
counter-argument and Act while furthering the other important policy of encouraging
reinforces the writers
original prediction. employers to remedy illegal conditions in the workplace before
litigation develops. Requiring employees to give written notice is
not fundamentally unfair or burdensome compared to the risk of
subjecting employers to expensive litigation. Requiring written
notice may also decrease the potential for frivolous lawsuits that
would impose costs on the judicial system. Finally, requiring
written notice gives effect to all of the terms of the statute. For all
these reasons, a court will likely hold that Ms. Harris was required
to give written notice of her objections to TNFC, and will dismiss
her complaint.

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Second Example: Additional Notice is Not Required When Employees Object to an
Employers Business Practices

To state a cause of action for wrongful termination, Ms.

This is another example Harris must establish that a retaliatory personnel action occurred
of an umbrella section. under the Private Sector Whistle-Blowers Act, codified at sections
As in the previous 448.101-.105, Florida Statutes (1999) (the Act). The Act is a
example, the writer has remedial statute, see Arrow Air v. Walsh, 645 So. 2d 422, 424 (Fla.
described the dispute 1994), which prohibits retaliation against employees who believe
and identified the their employers are violating the law. Ms. Harris claim falls under
applicable rule of law. section 448.102(3), which states that an employer may not take
This writer has also
retaliatory action against an employee who has objected to her
emphasized the
employers business practices. While another subsection of that
remedial nature of the
section of the Act explicitly states that employees who disclose
statute as a prelude to
an argument that the their employers violations of the law to government agencies must
statute should be first put their complaints in writing, see 448.102(1), subsections
construed in favor of the (2) and (3) of that section do not mention any form of notice to the
employee. The employer. Courts have disagreed on whether the notice
umbrella ends with a requirement in section 448.102(1) actually applies to subsections
prediction and a short (2) and (3). See Park v. First Union Brokerage Servs., Inc., 926 F.
overview of the Supp. 1085, 1089 (M.D. Fla. 1996) (noting conflicting state and
justification for that federal court decisions about written notice requirement). Here, the
prediction. court will probably interpret the Act as not requiring written notice
under sections 448.102(2) and (3). See Baiton v. Carnival Cruise
Lines, Inc., 661 So. 2d 313, 316 (Fla. 3d DCA 1995). This
interpretation best facilitates the policy of encouraging employees
to come forward and report their employers questionable business
practices. Therefore, the court will probably not dismiss Ms. Harris
case against TNFC.
Like the previous Section 448.102 of the Act, entitled Prohibitions, outlines
example, this
three areas under which an employee can state a claim for
discussion begins with
retaliation. First, an employer cannot retaliate against an employee
the disputed statutory
because the employee has disclosed or threatened to disclose to a
terms.
government agency any practice of the employers that violates the
law. See 448.102(1). Also, an employer cannot retaliate against
an employee who has provided information or testimony to an

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 agency investigating allegations of illegal activity on the employers
part. See 448.102(2). Finally, an employer cannot retaliate
against an employee who has objected to, or refused to participate
in, any practice of the employers that is in violation of the law. See
448.102(3). The statute also contains two references to a written
notice requirement. First, section 448.102(1) explicitly does not
apply to employees who fail to give their employers written notice
of the alleged illegal activities and a reasonable time to correct the
activities. Second, the Act states that an employee may not recover
in a civil action against an employer if he or she failed to notify the
employer about the illegal activity, policy, or practice as required by
s. 448.102(1).... 448.103(1)(c). The written notice requirement
is ambiguous because sections 448.102(2) and (3) do not explicitly
state that written notice to the employer is required, but section
448.103(1)(c) seems to indicate that any employee seeking recovery
under the Act needs to have provided written notice to the
employer. See id.; see also Park, 926 F. Supp. at 1089 (noting the
language of the statute could support two directly contradictory
readings regarding written notice).
The first Florida appellate court to address this ambiguity
The first case held that an employee is not required to provide the employer with
discussed here is the written notice when the employee refuses to participate in an illegal
case that supports the activity. See Baiton, 661 So. 2d at 313. In Baiton, an employee
writers prediction. was terminated because he refused to give a false statement in the
Thus, the order of trial of a fellow employee. The employer sought dismissal of his
authorities is different claim for wrongful discharge, arguing that he had never given the
from the order of the employer written notice of his objections. The court found the
authorities in the
employee had a claim under section 448.102(3). See 661 So. 2d at
previous memo. The
313.
cases are described
The courts reasoning was based primarily on the terms of
similarly, however, in
terms of summarizing the Act itself. It pointed out that section 448.102(1), which
the facts and reasoning contains the written notice requirement, also contains language
from the decisions. limiting scope of the requirement: However, this subsection does
not apply unless the employee has, in writing, brought the activity,
policy, or practice to the attention of a supervisor or the
employer.... The court stated that the phrase this subsection

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 means subsection 448.102(1), and thus that the written notice
requirement could not be imposed on subsections 448.102(2) and
(3). In its reasoning, the court referred to the hierarchy of statutory
numbering, emphasizing that 448.102(1) is a subdivision of section
448.102. See Baiton, 661 So. 2d at 316 n.5.
Similarly, in Park, a federal district court upheld an
arbitration panels interpretation that the Act does not require
written notice under section 448.102(3). See 926 F. Supp. at 1089.
In that case, the panel had allowed an employee to recover damages
for wrongful termination pursuant to the Act, even though she had
not given written notice of her objections to her employers
deceptive sales practices. The court determined that because the
statute supported conflicting readings and had been interpreted
differently, the panel did not depart from the law by allowing her
claim to proceed. Id.
A description of the The Second District Court of Appeal, however, requires
adverse authority written notice from any employee who seeks to recover under the
begins here. Act. See Potomac Sys. Engg, Inc. v. Deering, 683 So. 2d 180, 182
(Fla. 2d DCA 1996). In Potomac, an employee sued for wrongful
termination, claiming he was fired for resisting alleged illegal
activities of his employer. In contrast to the Baiton and Park
courts, the Potomac court held that the Acts plain meaning
required written notice of all whistle-blowers. It decided that the
reference in section 448.103(1)(c) to notice, as required by s.
448.102, meant that any employee was precluded from recovering
in a civil action if she had not notified the employer of her
objections in writing. See 683 So. 2d at 182.
While acknowledging that the Act was designed to protect
employees from retaliation, the Potomac court emphasized that the
Act was also designed to encourage employers to correct potential
violations of the law. See id. The court reasoned that requiring
written notice of all potential whistle-blowers would allow
employers to avoid the burden of an investigation and the risk of
damage to their reputations. It added that requiring employees to
give written notice was not unduly burdensome. Id.

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Having fully explained The court in this case is likely to agree with the Baiton court
the supporting and and find that Ms. Harris has stated a claim under section
adverse decisions, the 448.102(3). The court is likely to interpret section 448.102(3) as
writer proceeds to not requiring written notice because that section does not explicitly
explain the predicted contain language requiring the employee to do anything before
outcome in this case. being protected from retaliation. The language in section
The writer demonstrates 448.103(1)(c) can be read as simply repeating the notice
that both statutory requirement for whistle-blowers whose claims arise under section
language and
448.102(1), thus preserving its effect without changing the way the
underlying policy
legislature wrote section 448.102.
concerns support the
This interpretation would further the Acts purpose in
predicted outcome.
several ways. By not restricting the protection of the Act to
employees who can put their objections in writing, it would reflect
the Acts purpose as a remedial statute. It would also further the
more specific purpose of protecting employees from retaliation. See
Potomac, 683 So. 2d at 182. Protecting only those employees who
can give written notice of their objections, for various reasons, will
result in fewer employees being able to invoke the Acts provisions.
Moreover, it would better reflect the distinction the legislature drew
between different types of whistle-blowers. The action protected
under subsection (1), which has the specific written notice
requirement, is action that an employee takes upon herself. In that
situation, it is fair to require the employee to give the employer
advance notice of a condition the employee believes is in violation
of the law. See 448.102(1) (protecting employee who discloses
information to government agency). In subsections (2) and (3), the
employee does not have the same control over the timing of the
disclosure; in subsection (2) the employee is responding to an
investigation that someone else has initiated, and in subsection (3)
the employee is responding directly to the supervisor or employer.
The omission of a written notice requirement from those
subsections makes sense because in those situations, requiring the
employee to give written notice of the practices she finds
objectionable would be impractical or impossible.
Requiring notice may seem like a reasonable step to protect
employers who make honest mistakes, but places burdens on the

12
 employee that the Potomac court did not recognize. Under the
Potomac rule, employees must decide for themselves when an
objection or concern is important enough to put in writing; if they
do not do so in advance, they cannot be protected later. Moreover,
even if an employee who files written notice does not suffer
immediate termination, she may suffer more subtle forms of
retaliation within her workplace or the industry in general. The
timing of the written notice is also a problem. An employee who
responds to an investigators questions and is terminated as soon as
the employer learns of the employees participation in the
investigation may not have time to file written notice, but would
still lose any protection section 448.102(2) seems to offer. An
employee who, like Ms. Harris, was fired by a supervisor for
objecting to that supervisors instructions, would not have any
recourse, even if the termination occurred so quickly that written
notice was impossible. Ms. Harris can argue that a better policy
would be to interpret the statute broadly so as to encourage
employees to come forward.
TNFC will argue that if written notice were not required of
The counter-argument all whistle-blowers, the legislature could simply have left out the
(or counter-analysis reference to section 448.102 that currently appears in section
begins here. 448.103(1)(c). In that case, it would be clear that written notice
only applies to section 448.102(1). The fact that the legislature
repeated the notice requirement must mean that written notice is
required to have a remedy under the Act. TNFC can also argue that
if written notice were not required of all whistle-blowers, employers
would be subjected to litigation after any adverse personnel action,
with people claiming months or years after the fact that some
violation of the law had been involved. See 448.103(1)(a)
(allowing claims under Act for two years from the date of discovery
of an alleged retaliatory personnel action). It will point out that Ms.
Harris had months, in this case, to inform someone at TNFC other
than her direct supervisor that she thought her supervisor was
asking her to commit illegal acts, and that she did nothing. Finally,
TNFC can argue that the Act itself preserves the existing rights of
employees and employers, see 448.105 (This act does not

13
 diminish the rights, privileges, or remedies of an employee or
employer under any other law or rule . . .), and thus that it should
be interpreted in a way that minimizes its effect on the employers
right to fire at will.
The memo concludes A narrow interpretation of the statute is more beneficial to
by explaining why the employers than to employees. The purpose of the Act, however, is
counter-argument is a to encourage employees to report certain violations without fear of
less preferable reprisal. Potomac, 683 So. 2d at 182. Protecting employees from
approach, and by reprisals necessarily limits the employers right to fire employees.
reinforcing the writers Resolving the ambiguity in favor of allowing more employees to be
original prediction. protected serves the overall purpose of the Act and respects the
legislatures placement of written notice only in section 448.102(1).
Therefore, it is probable that a court will find Ms. Harris has stated
a claim under the Act, and decline to dismiss her complaint.

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