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Hall v. Marion County Board of County Commissioners

Florida Court of Appeals, Fifth District

January 19, 2018

SHARI HALL, Appellant,
v.
MARION COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Marion County, Lisa D. Herndon, Judge.

          Edwin A. Green, Ill. of Blanchard, Merriam Adel & Kirland, PA, Ocala, for Appellant.

          Matthew G. Minter, of Marion County Attorney's Office, Ocala, and Marcia K. Lippincott, of Marcia K Lippincott, P.A., Lake Mary, for Appellee.

          EDWARDS, J.

         Shari Hall ("Appellant") appeals the entry of final summary judgment in favor of the Marion County Board of County Commissioners ("Marion County"). Appellant argues that the trial court erred in granting summary judgment on her separate claims for gender discrimination and retaliation. We reverse the final summary judgment because, although the trial court did not err in entering the summary judgment on her claim for gender discrimination, we find that the trial court erred regarding her retaliation claim.

         Initially, Appellant filed a one-count complaint against Marion County asserting that the county unlawfully discriminated against her in violation of the Florida Civil Rights Act when it selected Paul Nevels instead of her as the Marion County Fire Rescue Chief.

         Pursuant to section 2-48(12) of the Marion County Code, the county administrator has the power and duty to employ all personnel and fill all vacancies in positions of employment under the jurisdiction of the board of county commissioners except for those involving the county attorney's office. At the time of the selection and appointment process for the fire chief position, the acting county administrator was Mounir Bouyounes. When Appellant asked for specific reasons why Nevels got the job instead of her, Mr. Bouyounes sent Appellant a letter stating in pertinent part:

[Nevels] has management experience at a director level and possesses knowledge in dealing with developmental plans and resolving issues arising through this process in addition to advanced experience within the fire department.

         In her deposition, Appellant testified that she believed Mr. Bouyounes' letter and similar oral statements he had made were his true reasons for deciding to appoint Nevels as the fire chief.

         During the pendency of the litigation, Appellant filed her first amended complaint, which contained the same Count One gender discrimination claim as her initial complaint and added a second count in which she asserted that Marion County unlawfully retaliated by giving her unjustified and inaccurate low employment evaluations or reviews because she sued the county for gender discrimination. Marion County filed a motion for summary judgment that addressed the first amended complaint. After Marion County filed the motion, but prior to the summary judgment hearing, Appellant filed her second amended complaint which contained the same Count One gender discrimination claim and a revised Count Two, a retaliation claim asserting that she had been improperly passed over for the position of deputy fire chief because she sued Marion County.

         Because Appellant filed the second amended complaint shortly before the summary judgment hearing, Marion County had not yet responded to it when the summary judgment hearing was held.[1] No motion for summary judgment had been filed regarding Count Two of the second amended complaint. Thus, the parties only presented argument regarding Marion County's motion attacking Count One, the gender discrimination claim, of Appellant's amended complaint. Both parties confirmed to the trial court at the commencement of the hearing that neither side was going to address Count Two, the retaliation claim, and neither did.

         Following the hearing, the trial court filed its written order granting Marion County's motion for final summary judgment. The judgment was entered in favor of Marion County "on all of Plaintiff, Shari Hall's, claims in this action." The final summary judgment only discussed issues and made findings relevant to the gender discrimination claim and did not mention the retaliation claim at all. Appellant did not file a motion for rehearing or reconsideration but did timely appeal.

         GENDER ...


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