EMS “˜Whistleblower’ Fights Workplace Retaliation

Medflight pilot Mark Holmes says his boss retaliated against him after he sent county officials a December 2007 email to report safety violations, maintenance issues, gross mismanagement and racial bigotry at Collier County Emergency Medical Services.

The 52-year-old paramedic maintains he was fired after a bogus charge of flying low over the Great Dock Canoe Races in May 2008, a charge the FAA cleared him of. He appealed and won – but only after he sued the Collier County Commission.

Still, he wasn’t returned to flight status because he was in “limbo” awaiting a required flight-safety training course county officials hadn’t formulated.

“Mr. Holmes was relegated to warehouse duty and cleaning toilets and he was forced to take a psychiatric exam and nothing was found to be wrong with Mr. Holmes,” Holmes’ attorney, Sam Gold of Naples, told a federal jury Tuesday. “Mr. Holmes paid a price for blowing the whistle.”

Holmes still didn’t return to flying until October 2009, Gold said, because county officials delayed providing training they required.

County officials, however, say his boss, EMS Chief Jeff Page, doesn’t even remember the email reporting Holmes’ internal “gripes,” which were investigated and deemed unfounded. They say there was no whistleblowing or retaliation, and Holmes was fired for the unsafe-flying incident and lying about it.

“This is an important day for Collier County,” the county’s attorney, Mark E. Levitt of Winter Park, told jurors as Page sat in uniform at the defense table. “This is the day Collier County can clear its name.”

“Their claim to adverse action is it took too long to make him a pilot again,” Levitt added, noting Holmes caused part of the delay.

Those were the two sides presented to jurors Tuesday as a trial involving Holmes’ whistleblowing lawsuit began before U.S. District Court Judge Charlene Honeywell in Fort Myers. It’s expected to last three or four days.

Jurors will be asked to determine if Holmes, who took two months off after his reinstatement, was protected under the Family Medical Leave Act; if he suffered adverse employment action, such as retaliation; and if there’s a connection between the protected activity and the adverse action.

If so, jurors will be asked to award damages for lost wages, which Gold placed at $17,162.96, in addition to at least $55,000 yearly he lost since September 2008 for a secondary pool services job he lost.

Holmes’ May 2009 lawsuit, originally filed in Collier Circuit Court and amended twice, sought reinstatement to his job of 10 years.

The lawsuit contends county officials failed to adhere to an August 2008 directive by then-Deputy County Manager Leo Ochs, who ordered him returned to his job in six months, with a condition he complete a flight-safety course and psychiatric testing. The lawsuit alleges the mandates caused unreasonable delays.

In July 2007, Holmes contested his firing for flying a helicopter too low over the Great Dock Canoe Race and creating a public safety hazard. Ochs reinstated him, but suspended him for four weeks.

The lawsuit calls the psychiatric exam a “farce” to delay reinstatement and contends word of the exam was leaked to harass Holmes and thwart Ochs’ ruling.

County officials also fabricated allegations that a staff member refused to fly with him, the lawsuit says, and he was suspended without pay for a day for protesting that.

The lawsuit alleges county officials deprived him of his constitutional right to due process, violated the Florida Whistleblower Act and the federal Family Medical Leave Act.

“The evidence will show that Mr. Page … had a near obsession in attempting to destroy Mark Holmes’ career,” a pretrial statement says.

Through three witnesses, Gold showed Page asked three employees in December 2008 to write a summary about what they observed May 10, 2008, but none mentioned Holmes flew dangerously low over the Gordon River.

Paramedic John Yates, who worked with Holmes for 10 years, said he was on the boat with Page when Holmes flew 1½ to two passes over the races in a banked turn, prompting people to exclaim and look up.

Paramedic Joe Cook, also on that boat, saw the helicopter turn sharply and circle twice. Cook, who has flight training, didn’t consider it dangerous.

Lt. Scott Wernert, a paramedic, testified he’d asked Holmes if he could take photos of the races as they flew to North Collier Hospital to pick up a pregnant woman to fly to another hospital, but they didn’t lose time or deviate much from the flight pattern.

On cross-examination, he admitted it could have delayed their arrival 10 to 30 seconds and he apologized to county officials, saying it was “inexcusable and would not happen again.”