Sovereign immunity and Ben Kruibdos’s claim for wrongful termination

Tuesday, October 8, 2013

Good morning:

This is my 701st post on this blog.

As most of you probably know, Ben Kruidbos, the former head of IT services in Angela Corey’s office has sued her for $5 million alleging wrongful termination of employment. Kruidbos claims that he was fired in retaliation for blowing the whistle on Corey and Bernie de la Rionda for withholding exculpatory evidence from defense counsel in the George Zimmerman case. The evidence consisted of photographs and text messages on Trayvon Martin’s cell phone that were irrelevant and inadmissible at trial and, as it turned out, the defense had already obtained the information from its own experts.

Kruidbos is represented by Wesley White, a former Assistant State Attorney who was fired by Corey for unsatisfactory work.

Corey claims she cannot be sued because of the legal doctrine of sovereign immunity, so let’s take a look at the doctrine and see if we agree or disagree with her claim.

Sovereign immunity is an ancient legal doctrine that the sovereign, or an agent acting on behalf of the sovereign, cannot be sued unless the sovereign consents to being sued. An excellent example of sovereign consent to be sued is the Federal Tort Claims Act, which permits people to sue the United States for injuries inflicted by its agents.

The individual states were sovereign in their affairs when they joined the union and they have retained their sovereignty. See Alden v. Maine, 527 U.S. 706 (1999). Therefore, the State of Florida retained its sovereignty when it joined the union and Angela Corey, the elected State Attorney for the judicial district in which Jacksonville is located, may assert the defense of sovereign immunity, unless the state has consented to be sued by former state employees seeking compensation for wrongful termination.

I suspect that the State of Florida may have consented to be sued by former employees alleging wrongful termination of employment. I imagine that state employees have certain statutory procedural rights depending on whether they have passed a probationary period. Unless he were a terminable at will employee or still on probationary status, the existence of such a framework would defeat a defense of sovereign immunity.

Let us assume for the sake of argument that it did not.

In Alden v. Maine, probation officers employed by the State of Maine sued the state seeking compensation for unpaid overtime. In a 5-4 decision written by Justice Anthony Kennedy, the Supreme Court of the United States (SCOTUS) held that the doctrine of sovereign immunity barred the lawsuit.

There is a significant exception, however, involving legislation enacted by Congress to protect activities protected by the 14th Amendment.

The 14th Amendment provides in pertinent part,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Therefore, the issue is whether a suit for alleged wrongful termination of employment survives a defense of sovereign immunity when it is based on a claim that employment was terminated in retaliation for the employee disclosing evidence he believed to be favorable to the accused in a criminal case (i.e., a violation of the Due Process Clause of the 14th Amendment).

I believe it does and for that reason I would be inclined to deny Corey’s motion to dismiss based on sovereign immunity.

Now let’s take a look at the merits of the claim.

I doubt the evidence was favorable, despite what Kruidbos may have believed, and I think the young man was used by his lawyer, Wesley White, who wanted to retaliate against Corey for firing him. The evidence certainly was not admissible and the defense already had it, so it suffered no harm.

Therefore, I would be inclined to deny Kruibdos’s claim for wrongful termination.

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33 Responses to Sovereign immunity and Ben Kruibdos’s claim for wrongful termination

  1. Trained Observer says:

    @Linda Andersen — It takes a lot to ruffle my feathers or send me into spasms. While you failed in that regard, you were correct in declaring “I am sure that I’m not the only one here who has concerns.”

    We do.

    Here’s how I see it: Faux McCoy was correct classifying portions of your commentary as harsh. HamRadio had it right in saying “times are hard,” and MDH was dead-on right in stating it “would be nice” for this site to have sponsors. More than nice, it seems imperative.

    After receiving a couple of private e-mails, I’d like to make a few points:

    1) While exceptions exist, blogs are not cash cows — not even with ads, sponsors, or pay per click (PPC) support. Expectations otherwise are unrealistic. A viable plan for self-support should not depend on a blog, not even a worthy one with a loyal following, and especially not when composed of folks mostly with limited incomes.

    2) Creativity, no matter how excellent, along with $1 and a coupon gets coffee at a drive-thru. People pay for services — dog-walking to car waxing –.or they’ll pay dearly against all odds to gamble on lottery tickets. But they won’t pay for poetry.

    3) Social Security and Medicare benefits for eligible recipients of full retirement age have not been reduced by the sequester. Or the shutdown. For recipients 66 and older, there are no reductions in benefits because of earnings exceeding the cap for recipients still in the workforce. Can Social Security income be garnished by the IRS, the state or other entities? I don’t know.

    But I do know people like to get the straight skinny, and are disappointed when hit with anything less.

    • bettykath says:

      The IRS does take from Social Security checks. Happened to me. I spent quite a bit of energy trying to find out why I owed the IRS money. Since they got their pound of flesh by taking it from my SS I never did find out. Hundreds of dollars later, they stopped and I still don’t know why they took it.

  2. Xena says:

    White said the lawsuit against Corey, which was filed on Thursday, cited a statute that makes it illegal to fire someone for their testimony when it is given under subpoena. Kruidbos was subpoenaed by the Zimmerman defense team.

    “I cannot find a single other case of that statute being litigated,” said White.

    Well, I did. It’s WIGGINS v. SOUTHERN MANAGEMENT CORP., however the employee was not an employee of the state government. That in fact, it appears that the statute does not apply to employees of State government agencies because they are covered under Florida’s Whistle Blowing Statute, 112.3187.

    White brings Kruidbos’ complaint under Florida statute 92.57 and alleges;
    “The nature of Plaintiff’s testimony related to the suspected violation by the State Attorney’s Office of its reciprocal discovery obligations under the Florida Rules of Criminal Procedure, and under Florida and federal law. “

    The posturing of Kruidbos’ testimony is whistle blowing, and that requires that the protected employee disclose the suspected violation and file a complaint with the Florida Commission on Human Relations. Only after>/strong> the Florida Commission of Human Relations terminates its investigation can the complainant elect to pursue a civil action and must do so within 180 days after receipt of notice.

    I looked at the caption of the complaint several times, blinking to make sure I was reading it correctly because, White did not include the State of Florida as a defendant but only Corey in her official capacity. I was wondering why White brought suit against Florida in a Florida court. Those actions are filed in federal court. So, now I know that he did not name the State of Florida as a defendant. Suing in official capacity connects the party to the government agency and requires that the government agency also be named as a defendant. To overcome sovereign immunity claims, the officer must be named in their official AND personal capacity.

    Under Florida’s Waiver of Sovereign Immunity statute, the “exclusive” remedy for injury or damage suffered as a result of an act, event, or omission of an officer of the state, or constitutional officers, shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer works under.

    White should have named the State as a defendant. White did not, and may have intentionally not named the State of Florida as a defendant in attempt to circumvent Florida’s Waiver of Sovereign Immunity statute, 768.28. That statute limits actions in tort to injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office as if a private person would be liable. It caps awards at $200,000 and does not provide for punitive damages.

    If White and Kruidbos does not want Angela Corey’s sovereign immunity to get in their way, they should have sued in her personal capacity, with sufficient allegations to meet the requirements set forth in the following:
    “768.28 (9)(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”

    In KECK v. EMINISOR, the Florida Supreme Court decided that section 768.28(9)(a) specifies that an employee of the State shall not be “named as a party defendant” in a lawsuit unless the employee acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard.

    In order to overcome Angela Corey’s claim of sovereign immunity, the problem attorney White faces is to prove that terminating an employee for testifying in a judicial hearing when that employee was subpoenaed, meets the aforementioned standards in which to hold an officer of the State individually or personally liable. In my opinion, he might have missed his chance of doing that by not naming Angela Corey as a defendant in her individual or personal capacity. If he is able to cure that, we then ask which is White going to choose? That Angela Corey terminated Kruidbos in bad faith? Or with a malicious purpose? Or in a manner exhibiting wanton and willful disregard for human rights? Was his termination an act in disregard for his safety or property?

    Okay Professor. Take over and explain this to us, please. 🙂

    • Great job researching the thicket of laws.

      In a nutshell, I believe White should have filed a complaint on behalf of Kruidbos with the Florida Commission on Human Relations to pursue his whistle blowing claim first and his failure to do that probably is fatal to the lawsuit.

      • Linda Andersen says:

        I just wanted to apologize for my post the other day which sent everyone into spasms of anger and negativity. I asked a question which had been gnawing at me for some time, forgetting that a blog is not a public forum. It is privately owned and I felt as if I had ventured into a “by invitation only chat room.”

        The Professor was kind enough to email me directly and give me a chance to express my concerns. For that I am grateful. I will not be posting here again and am sorry for any feathers I may have ruffled.

        • bettykath says:

          Linda, Your post indicated that you didn’t understand why the request for funds was necessary and appropriate. I hope you now understand and will stick around if you find the topics helpful. I found your post to be unnecessarily judgmental, but I sometimes jump into that box and have to apologize for it. Repetition of bad behavior doesn’t seem to get a pass here, but an apology for one time does.

      • Xena says:

        @Professor.

        In a nutshell, I believe White should have filed a complaint on behalf of Kruidbos with the Florida Commission on Human Relations to pursue his whistle blowing claim first and his failure to do that probably is fatal to the lawsuit.

        Yes. That’s exactly what it sounds like based on the Whistle Blower statute. It looks as if Florida patterned procedures after EEOC procedures which requires an administrative agency to first investigate and if the matter is not resolved, then giving the complainant right to sue in a court of jurisdiction.

        • Yep. Yet another example of bad lawyering apparently.

          • Xena says:

            @Professor. I anxiously await to see where the case goes.

            Has anyone heard anything about the security firm’s lawsuit against the Zimmermans and O’Mara?

            Also, O’Mara was filing a motion for the State to pay costs of GZ’s case. That was what — more than a month ago? He hasn’t filed anything. I also wonder if Dr. Bao’s claims might have any effect on O’Mara’s motion for costs?

            West was going to schedule the sanction motions for hearings but again, silence.

          • With the exception of O’Mara’s claim for costs, haven’t heard anything either.

            I vaguely recall him requesting $200,000. I don’t believe that request would have been filed in the legal file. Instead, I think it would have been filed with the administrative office of the courts that processes and pays those claims.

            I don’t believe Dr. Bao’s lawsuit will have any impact on the defense claim for costs because he was a state’s witness. On the other hand, Dr. DiMaio was a defense witness and his bill will be included in the defense request.

  3. looneydoone says:

    If I remember correctly, Ben Krubidos had already been reprimanded, and stripped of some authority for policy violations before he met with Wesley White and followed up on his advice to contact O’Mara directly about the images he discovered. That is sufficient grounds to support his termination after he again violated dept policy by going to O’Mara. Unlike Dr Bao, I don’t feel Krubidos has a leg to stand on…..guess it all depends on the presiding Judge, eh ?

  4. kllypyn says:

    there was nothing exculpatory and he knows it

  5. According to Mother Jones, South Park will be featuring a George-Zimmerman type character in the next show.

    Might be worth a few chuckles.

    • bettykath says:

      Never watched South Park. My nephew selected South Park videos at the rental when he was very young. Cartoon, so no prob. Uh….what’s that language? That’s adult humor, not for youngsters. Back to the store. I didn’t have TV then (or now) so didn’t know any better. Hope someone posts it here or on youtube. I’m older than dirt so it’s too late to save my delicate ears or mind.

  6. Yes, you’re right. I stand corrected. He chose not to renew a contract that he had good reason to believe would not be renewed.

  7. bettykath says:

    I think the timing of the finding of the information on the phone is important. According to the defense, they expended great time and effort to find the information that the prosecution had found months previous. So if the state had the information 2-3 months before the defense found it, then the state did withhold information and this was before it was found to be inadmissible and otherwise available to poison the jury pool [intentional snark].

    White actually “retired” in that he chose not to renew his contract. Possibly/probably b/c Corey wasn’t going to offer him a new one.

    I didn’t see much in the way of good ethics by any of the lawyers, Mantei excepted. I might consider Guy but would have to see how many, if any, objectionable questions he let pass when he was in “the chair”.

    • Dave says:

      Guy preaches a pretty good sermon but he utterly failed to challenge Dr. DiMaio, probably the defense’s most important witness. To me, this was one of the greatest WTF moments of the whole trial –on a par with de la Rionda’s dissing of Dr. Bao and Rachel Jeantel. I can’t find fault with Rich Mantei, though.

      • Malisha says:

        I can’t find fault with Mantei either. The other two, and Corey, were obviously intent on throwing the trial so they did. No surprise there.

      • Rachael says:

        Here is where it is really hard for me. I think we could all see the potential for the prosecution to be excellent. It isn’t like they don’t have it in them – and we could see it. But at some point, they stopped using it. Where did it go? And why? Certainly was NOT because of a brilliant defense strategy.

        Very very sad.

      • bettykath says:

        Thanks, Dave. I couldn’t remember exactly which witnesses Guy was responsible for. You’re right, the cross-examination of DiMaio was extremely weak. In Guy’s case, I don’t know if it was corruption or lack of competence. DiMaio is an extremely experienced whore-witness. Could be that Guy was just out of his league.

      • Two sides to a story says:

        Mantei was always prepared with the right questions and responses.

      • peni4yothot says:

        Hi Dave, I don’t post often but lurk a whole lot.
        I thought BDLR did the cross questioning of DiMayo? The reason I mentioned it was, he sugar coated and didn’t emphasize his expertise in Drew Peterson, Phil Spector and Darlie Rotier (all found guilty and one on death row)
        I may have it confused though. Maybe it was BDLR mentioning it “slightly” during his closing argument. I really thought the state, if anything; would drill home a version defending Trayvon. Not!

  8. Two sides to a story says:

    I’d be surprised if this suit went anywhere, considering all the circumstances. Then again, this is FL, so there could be a bizarre outcome.

  9. racerrodig says:

    I smelled O’ Mara when this first reared it’s ugly head. When the information came out that White had been fired this became a no – brainer. On top of that, he knew this evidence had been ruled as not admissible and irrelevant. Once that happened, he had no business even mentioning it let alone getting involved with the defense team.

    I’d bet the farm that if we delve far enough into this O’ Mara or West dug this up and prompted Kruibdos to make it known.

    Snakes, one and all.

    What has the defense withheld that is relevant and would have been admissible. They withheld the MMA training, it was the prosecution who found that out and introduced it. That’s just a start.

  10. Trained Observer says:

    i doubt Angela Corey loses sleep over this. Sovereign immunity aside, it’s nearly impossible to prevail with wrongful termination suits against private employers in Florida, much less the state. The whole point of such a suit is to air dirty laundry. It’s all over but the shouting.

  11. racerrodig says:

    Uno !! I would deny it as well. His job is probably NOT to help the defense.

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