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FHP Trooper Faces Hostile Discrimination Over Time Away on Military Service. Court Rules He Can’t Sue.

October 13, 2020 | FlaglerLive | 4 Comments

fhp hostile work environment
The vest might not be enough. (© FlaglerLive)

In what could be a first-of-its-kind decision, an appeals court has said a state agency is shielded from a lawsuit filed by a Florida Highway Patrol trooper who contended he faced job discrimination because of his service in the U.S. Navy Reserve.

A three-judge panel of the 1st District Court of Appeal ruled Friday that sovereign immunity protects the Florida Department of Highway Safety and Motor Vehicles from the lawsuit filed in 2014 by James Hightower, who alleged he faced a “hostile work environment” at the highway patrol because of leave he took for military duties.




Broadly, sovereign immunity is designed to shield government agencies from costly lawsuits. Hightower’s lawsuit pointed to state and federal laws aimed at preventing discrimination against service members, but the appeals court said the Legislature did not create a sovereign-immunity waiver that would allow him to pursue the case.

The 13-page opinion, written by Judge M. Kemmerly Thomas and joined by Judge Clay Roberts and Associate Judge J. Scott Duncan, said the “Legislature is well-aware of how to explicitly waive state immunity in enactment of new law.” But it did not do so in the state law known as the Florida Uniformed Servicemembers Protection Act. Also, Thomas wrote that claims against states under the federal law, the Uniformed Services Employment and Reemployment Rights Act of 1994, must be filed in state courts “in accord with the laws of that state.”

“Hightower’s argument that Florida waived sovereign immunity is based on speculation as to the Legislature’s purpose in enacting the statute and not the plain meaning of the text,” the opinion said.

The appeals court overturned a December 2018 ruling by Leon County Circuit Judge Charles Dodson, who said the Department of Highway Safety and Motor Vehicles, which includes the highway patrol, was not entitled to sovereign immunity. Friday’s opinion also described the Hightower lawsuit as a “case of first impression” — or first of its kind — on the issue of whether sovereign immunity applies in such disputes.

The lawsuit said Hightower, a Jefferson County resident, enlisted in the Navy in 1986 and began working as a state law-enforcement officer in 1998. It said he was deployed in 2012, 2013 and 2014 and also volunteered to participate in funeral honor details.

It alleged that Hightower was harassed at the highway patrol because of time spent on military duty and received a low annual performance score in 2013 as retaliation for notifying his superiors about compliance with the Uniformed Services Employment and Reemployment Rights Act. The lawsuit said, in part, that Hightower was denied a bonus because of the low score. It also alleged that he did not receive a potential promotion in 2014 because of the low score and a pending deployment.




“Plaintiff Hightower has been continuously harassed based on his service to the United States Navy Reserve, specifically regarding leave time he used to serve on funeral honor details and other military duties,” said an amended version of the lawsuit filed in 2018.

But in addition to arguing that the lawsuit should be blocked because of sovereign immunity, attorneys for the state disputed Hightower’s allegations. They argued in a 2015 court document that “there are insufficient facts to show that the plaintiff’s protected status was a motivating factor in any employment decision regarding plaintiff; and that there are insufficient facts to show that plaintiff sustained any damage for which he is entitled to recovery.”

–Jim Turner, News Service of Florida

Hightower v. DMV

Click to access hightower-v-fhp.pdf

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Reader Interactions

Comments

  1. Steve says

    October 13, 2020 at 12:38 pm

    Theres always two sides to the story and not privy to all the details but seems lately the Florida Supreme Court in its rulings on this Suit and more recently the Molestation Statute of Limitations verdict invokes a one sided Court in favor of the System and not in the best interests of We the People.Vote Accordingly. Interested to see if others interpret those Decisions the same.

    Reply
  2. Jimbo99 says

    October 13, 2020 at 3:49 pm

    Pretty sad for all involved. He was working military service Federally with State of FL employment. Pensions eventually for both. At onetime it was 20 years military service at rank for the Federal side being a Reservist or whatever that is ? Not really sure what the FHP career & pension requirements are ? But the higher the rank, look at what the Broward County School Officer retired at after Parkland was 30+ years of service, that was $ 100K-ish for a ballpark pension. I recall my youth, had just graduated college back in the under Reagan. College degree was touted as Officer Training Candidacy. All I was ever offered was Enlisted status walking thru the door. You were taken to Orlando, took their battery of tests for the day, the recruiter fed you a road side hot dog lunch from a street vendor and the Federal Government wasn’t looking for leaders, just cheap soldiers under Reagan. Nothing really changes ith any employer. I suspect had I been a Bush or Biden, things would’ve been a little different for the welcome aboard military career ?

    Reply
    • Resident says

      October 14, 2020 at 11:20 am

      FYI…retirement for FHP is 25 years. Also, FHP troopers recieve the lowest law enforcement pay in the state. It sounds like there may be more to this story, however I know for a fact no state agency likes anyone taking time away from the job.

      Reply
  3. Wendy says

    October 14, 2020 at 6:34 pm

    As a retired military reservists, I have taken my fair share of military leave to deploy. At my local county law enforcement agency, the have the utmost respect for those who serve the military. At no time was I penalized by my agency for meeting my military obligations. This includes after using all my military leave. It’s a shame he has been treated so unfairly. The judges in this state suck! Keep pushing for your legal rights. Best of luck. Get the Department of Military Affairs and the VA involved if you haven’t done so.

    Reply
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