John Aery timely appeals a final summary judgment entered in favor of Wallace Lineoln-Mercury, LLC d/b/a Maroone Lincoln Mercury of Lake Park, the defendant below, based upon three grounds: (1) that Aery lacked standing to pursue his claim under Florida’s Whistleblower Act since he filed for Chapter 18 bankruptcy while his suit was pending; (2) that Aery was judicially estopped from claiming lost wages since he successfully demonstrated total disability to recover social security disability benefits; and (3) that Aery was otherwise barred from recovering lost wages since he failed to mitigate his damages. We reverse, holding that (1) as a Chapter 13 debtor, Aery retained the power to bring suit on behalf of his estate; (2) judicial estoppel does not preclude recovery of lost wages because Aery raised the factual issue that the retaliatory firing was the cause of his disability; and (3) in the light most favorable to Aery, issues of fact remain as to whether he failed to mitigate his damages.
Factual Background
We state the facts in the light most favorable to Aery, the non-moving party who lost the summary judgment below. See Winn-Dixie Stores, Inc. v. Dolgencorp, Inc.,
Beginning on March 11, 2003, Aery worked as the automobile parts manager for Maroone. Aery soon took issue with the conduct of the body shop manager, who had both the access and authority to submit orders for parts. Aery alleged that the body shop manager was engaging in purportedly illegal acts. Specifically, Aery claimed that when a customer would bring an automobile to the body shop for repair, the body shop manager would order new parts from a parts vendor, while also purchasing corresponding, and far cheaper, used parts from a separate dealer. The body shop manager would then install the used part in the customer’s car and return the new part to the original vendor for credit. Thereafter, he would send an invoice to the insurance company to receive reimbursement for the amount of the new part.
Aery informed his general manager of the part-switching scheme in May 2003. Later that month, he and the general manager had a sit-down meeting to discuss the issue, during which Aery informed him that such practice “was not only against industry standards” but “against the law.” The general manager assured Aery that he would straighten everything out. However, as the months went by, no action was taken.
For the next several months, Aery continued to report the dishonest practices to
With the issue still lingering, Aery, in late 2003, reported the matter directly to Maroone’s corporate headquarters. In response, headquarters attempted to set up a meeting with Aery and his general manager, but the meeting never took place. Aery tried again to bring the issue to headquarters’ attention in January 2004, but he was ignored. Eventually, on March 1, 2004, with the part-switching practices continuing, the general manager fired Aery, citing a necessary “reduction in the workforce.” No one else was fired, although several others resigned shortly thereafter.
After his firing, Aery began to suffer bouts of depression. Nevertheless, he entered the job market and eventually found a job as a sales associate at a Ford dealership in May 2004; however, he resigned from that position just three days after starting since “they didn’t have it set up properly” and he “couldn’t make money the way they had it set up.” Thereafter, in October 2004, Aery landed another job in Leesburg, Florida. By May 2005, he was once again terminated for reasons Aery deemed to be unfair. At age 62, Aery found that, given the unjust nature of his last two firings, he was “unable mentally to continue to look for work.” He eventually applied for, and received, Social Security Disability Benefits.
Procedural Posture
In April 2006, Aery brought suit against Maroone in the circuit court. In July 2007, Aery filed his third amended complaint, in which he alleged one violation of section 448.101-105, Florida Statutes (2005), also known as Florida’s Whistle-blower Act. As grounds for his complaint, Aery alleged that Maroone fired him for reporting the practices of the body shop manager, which implicated the following statutes:
a. Section 817.413 F.S. — Sale of Used Motor Vehicle Goods as New, a third degree felony;
b. Section 817.29 F.S. — Cheat, also a third degree felony;
c. Section 812.017 — Use of a fraudulently obtained or false receipt, a [misdemeanor] of the second degree; and,
d. Section 812.014 — Theft, a felony of varying degrees.
As his prayer for relief, Aery tracked the language of Section 448.103(2), and requested, among other things, “[c]ompensation for lost wages, benefits, and other remuneration; and ... [s]uch other and further relief as allowed at law.”
Bankruptcy Proceedings
In December 2007, while the circuit court suit was pending, Aery filed for Chapter 13 bankruptcy. Four months later, the bankruptcy court confirmed Aery’s Chapter 13 Plan, which included a Schedule “B” form listing the “[e]mployment lawsuit against AutoNation”
Upon learning of the bankruptcy proceedings, the trial court, on November 6, 2009, conducted a status conference to determine whether Aery’s act of filing for bankruptcy divested himself of standing to pursue his wrongful firing claim. After reviewing each party’s memorandum, the trial court entered an order finding that
Summary Judgment
Following the completion of discovery, on January 5, 2012, Maroone moved for summary judgment, stating four grounds: (1) that “Aery [wa]s judicially estopped from pursing his damage claim for lost wages by virtue of his contradictory assertions made to the Social Security Administration that he is disabled and unable to work”; (2) that Aery “failed to mitigate his damages” since he had retired and was not seeking “substantially equivalent employment”; (3) that Aery lacked standing to bring his suit “since the claims are property of his bankruptcy estate”; and (4) that Aery failed to state a cause of action since the statutory violations he had listed in his complaint were materially different than the violations asserted in his original complaint. To support its argument as to Aery’s entitlement to damages, Maroone relied upon Aery’s response to a question during interrogatories, in which he indicated that he “fe[lt] that if he got his job back he would be able to work at Autonation.”
In a responsive memorandum, Aery claimed, based upon the trial court’s previous decision, that he maintained standing to pursue his suit individually since he had filed for bankruptcy under Chapter 13, as opposed to Chapter 7. Concerning his claim for damages, Aery said that he was entitled to lost wages and other compensatory damages since he had acted with due diligence to attain equal employment, but such efforts were stunted by the total disability brought about by his firing. To support the notion that his unlawful firing was the cause of his disability, Aery relied in part on the following snippets from his deposition testimony:
Q. Okay. And is it your position that you’ve been totally disabled and unable to work since May 2005?
A. Yes.
Q. And why do you believe you’ve been unable to work since May of 2005?
A. Well, I suffer from PTSD from an injury in the military and I’ve worked through it all my years without it affecting my ability to work or perform at all. But after what happened to me in the last two jobs, it increased my — they call it stress, you know, level and depression. So that’s what that caused. And after that, I — I just had a hard time — it would be hard for me to try to go in and try to get a job. I — I’m just not mentally there. And — and, of course, I — I—for the last almost two years now, I’ve been laid up with three major surgeries on my stomach, so that — that’s chilled me for the last two years from doing anything.
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Q. And it was only after you were terminated from [Maroone] that you became unable to work?
A. Yeah, I just — I chose not to work anymore. I just didn’t have it in me anymore.
Trial Court’s Order
Following a hearing, the trial court entered an order granting summary judgment in favor of Maroone upon several grounds. First, relying upon the doctrines of judicial estoppel and failure to mitigate damages, the court ruled that Aery was precluded from recovering the lost wages that had accrued since May 26, 2005, because, on that date, Aery had “successfully asserted before the Social Security Administration that he has been unable to work,” and he had otherwise retired and not sought further employment. In addition, the trial court found that Aery lacked
With the trial court’s finding on the standing issue effectively bringing litigation to a close, Aery moved for rehearing and clarification, again making reference to the trial court’s earlier ruling that he had standing to bring suit as a Chapter 13 debtor. The trial court denied Aery’s motion and entered a final judgment.
Standard of Review
“A circuit court’s order granting summary judgment is reviewed de novo.” Cong. Park Office Condos II, LLC v. First-Citizens Bank & Trust Co.,
Standing for Bankruptcy Debtors
As a Chapter 13 debtor, Aery had standing to bring this case in the circuit court.
“The issue of standing is a threshold inquiry which must be made at the outset of the case before addressing whether the case is properly maintainable.... ” Ferreiro v. Philadelphia Indem. Ins. Co.,
When an individual files for bankruptcy, the “[clauses of action which belong to the debtor, including employment discrimination claims,” become part of the estate property. Richardson v. United Parcel Serv.,
Whether a bankruptcy debtor may pursue a lawsuit in another court depends on the chapter under which the debtor filed bankruptcy. In this regard, “Chapter 7 and Chapter 13 provide two distinct methods for an individual to cure ... indebtedness.” Wilson v. Dollar Gen. Corp.,
Chapter 13, on the other hand, has been characterized as a “hybrid” of Chapter 7’s liquidation process and Chapter ll’s reorganization plan for business debtors. In re Griner,
available to individuals who earn a regular income. Debtors propose a plan by which they will repay some or all of their debts through regular payments to a chapter 13 trustee. The trustee pays the sums collected to creditors according to the plan for a period of up to five years. The trustee is not involved in the daily lives of the debtors. He or she does not take possession of debtors’ nonexempt assets or monitor ordinary course usage of assets. The trustee does not receive any of the debtors’ earnings except what is paid to him or her as prescribed by the chapter 13 plan.
Id.
These differences between the degree of control given to a debtor under Chapter 7 and Chapter 13 are crucial because “an essential feature of a chapter 13 case is that the debtor retains possession of and may use all the property of his estate, including his prepetition causes of action.” Maritime Elec. Co. v. United Jersey Bank,
Since the Chapter 13 debtor therefore “steps into the role of trustee and exercises concurrent authority to sue ... on behalf of the estate,” Cable,
The trial court’s ruling that Aery lacked standing was based on two decisions that relied on Chapter 7 cases to conclude that a debtor did not have standing to pursue a pre-petition lawsuit. In Smith v. Cumulus Broadcasting, LLC, C.A., No. 4:09-cv-02885-JMC,
Likewise, in Hadden v. State Farm Fire & Casualty Co.,
“The failure of a party to disclose a cause of action as an asset in a prior bankruptcy proceeding, which the party knew or should have known existed at the time of that proceeding, deprives him or her of ‘the legal capacity to sue subsequently on that cause of action.’ ” Potruch & Daab, LLC v. Abraham,
Damages Under Florida’s Whistleblower Act
As codified in section 448.102, Florida’s Whistleblower Act (“FWA”) is an exception to Florida’s at-will employment doctrine, Schultz v. Tampa Elec. Co.,
When a plaintiff prevails on a private-sector FWA claim, “the court may order relief’ in the form of, inter alia, “[c]ompensation for lost wages, benefits, and other remuneration” and “[a]ny other compensatory damages allowable at law.” § 448.103(2)(d)-(e), Fla. Stat. (2005). The plain and unambiguous language of section 448.103(2)(e) “authorizes the court to award compensatory damages” without limitation to mere “economic damages,” since any other interpretation “would render the catch-all provision of subsection (e) meaningless.” Wood v. Cellco P’ship, No. 8:06-CV-687-T-27TBM,
Judicial Estoppel
In ruling upon Maroone’s motion for summary judgment, the trial court found Aery to be judicially estopped from recovering the lost wages that accrued after May 25, 2005, since, on that date, he successfully attained social security benefits on the strength of his statements affirming his total disability. Assuming that the obtaining of social security disability benefits could be a basis for judicial estop-pel in this case,
As this Court has previously explained, Florida’s general rule of judicial estoppel can be stated as follows:
A claim or position successfully maintained in a former action or judicial proceeding bars a party from making a completely inconsistent claim or taking a clearly conflicting position in a subsequent action or judicial proceeding, to the prejudice of the adverse party, where the parties are the same in both actions, subject to the “special fairness*914 and policy considerations” exception to the mutuality of parties requirement.
Grau v. Provident Life & Accident Ins. Co.,
By way of illustration, in Blumberg v. USAA Casualty Insurance Co.,
Here, unlike the plaintiff in Blumberg, Aery has not taken a position in this case that entirely conflicts with the position he took to obtain social security disability benefits. The gravamen of Aery’s claim for future lost wages is based not on his ability to work, but on the allegation that Maroone’s alleged violation of FWA caused his total disability, forcing him to receive less pay than he would have received had the violation not occurred. Nothing about this contention conflicts with his position in the social security proceeding that he was totally disabled. While the causal link between the firing and the alleged disability is tenuous, there is an issue of fact sufficient to avoid partial summary judgment.
Duty to Mitigate
As a separate ground for granting summary judgment, the trial court found that Aery would not be entitled to lost wages after May 25, 2005, the date he applied for disability benefits, since he failed to mitigate his damages by retiring and not seeking equivalent employment. If Maroone’s alleged FWA violation caused Aery’s disability and resulting inability to work, Aery’s duty to mitigate damages by finding other employment would be discharged.
A court’s purpose in awarding lost wages is to “make the plaintiff ‘whole,’ to restore the plaintiff to the economic position the plaintiff would have occupied but for the illegal [acts] of the employer.” Castle v. Sangamo Weston, Inc.,
In awarding back pay, “the trial court must determine what the employee would have earned had she not been the victim ..., and must subtract from th[at] figure the amount of actual interim earnings.” E.E.O.C. v. Joe’s Stone Crab, Inc.,
In seeking back or front pay, the plaintiff “must mitigate her damages by seeking employment ‘substantially equivalent’ to the position [from which] she was” terminated. Reiner v. Family Ford, Inc.,
Under this doctrine, “[c]ourts have generally excluded periods of unavailability, such as periods of disability, from computation of [front or] back pay awards,” since holding otherwise would provide the plaintiff with a windfall. Sowers v. Kemira, Inc.,
In this case, despite struggling through a period of depression, Aery obtained similar employment in Leesburg, Florida. After he was fired for what he believed to be another unjustified reason, Aery contends that he lost the ability to work and sought the only form of income he could acquire — disability benefits.
Failure to State a Cause of Action
Although not addressed in the trial court’s order, Maroone argues on appeal that the third amended complaint failed to state a cause of action under the FWA since Aery did not specifically tell his supervisor what laws the body shop manager allegedly was breaking.
To establish a prima facie case under the FWA, Aery was required to show “1) that [ ]he objected to or refused to participate in any illegal activity, policy or practice of [Maroone]; 2)[ ]he suffered an adverse employment action; and 3) the adverse employment action was causally linked to h[is] objection or refusal.” Gleason v. Roche Labs., Inc.,
To satisfy the first prong of the above-mentioned standard, Aery was required to show that he ‘“objected to or refused to participate in (i) an illegal activity, policy, or practice of an employer, (ii) illegal activity of anyone acting within the legitimate scope of their employment, or (iii) illegal activity of an employee that has been ratified by the employer.’ ” Pinder v. Bahamasair Holdings Ltd., Inc.,
We do not address the “temporal proximity”/causation issue raised by Maroone because it was not raised in the circuit court.
Reversed and remanded.
Notes
. Maroone is now AutoNation.
. Neither party has briefed the issue of whether a claim for disability benefits constitutes a "former action or judicial proceeding” for the purposes of judicial estoppel. We therefore do not address the merits of the issue. See Hagood v. Wells Fargo N.A.,