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A former affirmative action coordinator for the city of Fort Lauderdale, Fla., who says she was fired because she criticized the city’s hiring and promotion practices can pursue her whistleblower claim in Broward Circuit Court even though a suit she brought in federal court was dismissed, the 4th District Court of Appeal ruled Wednesday. The 4th District Court of Appeal rejected the city’s argument that because Deborah Rice-Lamar already had sued the city in federal court and lost, she was prevented from pursing her claims in state court based on collateral estoppel. Under that doctrine, plaintiffs aren’t allowed to relitigate issues that already have been decided. The three-judge panel found that the doctrine was not applicable in this case because the issues litigated in federal court were different from those in the state action. As a result, the panel reversed and remanded the case to Broward Circuit Court for further proceedings. Rice-Lamar, who is black, worked as the city’s affirmative action specialist from 1988 to 1996, at which time she was fired from her $58,000 a year job for what city officials claim was incompetent performance. Prior to 1995, however, Rice-Lamar’s employment record had been unblemished and her performance was deemed “above average,” according to court documents. In 1995, Rice-Lamar prepared a report indicating that the city needed to take a new direction “to end the systematic discrimination within city government.” The report included her own conclusions, which her supervisors told her to take out. When she submitted her final draft, the report still contained her personal views. A five-day suspension was recommended. A year later, a black city employee shot and killed five white co-workers and then committed suicide. He left a note saying his attack was to punish his former co-workers for unfair and racist treatment he had received. In her 1996 report, which included details of the suicide, Rice-Lamar again included her own editorial comments, saying, “We are still a city plagued with racism, glass ceilings for women and brick walls for people of color.” Her supervisors expressed concern about the report; she was asked to resign. She refused and was fired in October 1996. Rice-Lamar filed a 12-count federal lawsuit against the city and her former supervisors, alleging discrimination and violations of her First Amendment rights; she claimed the city retaliated against her for exercising free speech. A federal district judge, and later the 11th U.S. Circuit Court of Appeals, found that her termination was due not to racial or sexual discrimination but to her insistence on including her own conclusions in the report, against her supervisors’ wishes. Rice-Lamar refiled her claim in Broward Circuit Court, alleging violation of Florida’s Whistleblower Act. The city filed a motion for summary judgment, contending that she was prohibited from relitigating her case. A Broward Circuit judge granted the city’s motion for summary judgment based on the claim of collateral estoppel. But the 4th District Court of Appeal found that Rice-Lamar’s state whistleblower claim is “separate and distinct” from either her discrimination claim or her First Amendment protected speech claim in federal court. “Although the facts giving rise to her claim are the same, the issues are entirely different,” the appellate court wrote. Gordon Rogers, a partner at Muller Mintz in Miami who represented the city, says the appellate court’s reasoning was “flawed” and that he will ask for a rehearing. “If the woman was fired for insubordination, she was fired for insubordination,” he says. “I don’t see how you can get past that. She was not fired because she spoke out as a whistleblower.” Rice-Lamar’s attorney did not return calls for comment by deadline.

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