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Whistleblower Complaint - Michael J. Godwin v. Gatorland, Inc.
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Transcript of Whistleblower Complaint - Michael J. Godwin v. Gatorland, Inc.
IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT COURT IN AND FOR ORANGE COUNTY FLORIDA
CASE NO
MICHAEL J GODWIN
Plaintiff
v
GODWINS GATORLAND INC a Florida for profit corporation
Defendant
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff MICHAEL J GODWIN (Godwin) by and through his undersigned counsel
files this his Complaint and Demand for Jury Trial against the Defendant GODWINS
GATORLAND INC (Gatorland) and for his cause of action declares and avers as follows
Introduction
1 This is an action under the Florida Private Whistleblowers Protection Act
sect44801 et seq Fla Stat Plaintiff Godwin a shareholder and member of the Godwin family
that owns and operates Gatorland was employed by Gatorland to oversee the Rookery
Tours Department an eco-tourism initiative officially begun at the park in 2008 This
program was developed to increase attendance to the parks Breeding Marsh amp Bird
Rookery and was comprised of birding tours alligator night shine tours and extended
hours Photographer Program On June 27 2010 the President amp CEO of Gatorland Mark
McHugh terminated Godwins employment with Gatorland Godwins termination was a
direct result of his oral and written opposition to Gatorlands plans to build a zip-line
directly through sensitive wetland areas on the property where endangered wood storks
1
and other avian species of special concern nest and roost Plaintiff Godwin advised the
CEO and the Board that their zip-line master plan could result in the abandonment of active
nests and that the zip-line route through the Breeding Marsh amp Bird Rookery would place
visitors too close to the endangered wood stork and other avian species of special concern
nests resulting in the unlawful disturbance and harassment of these species and their
habitat in violation of the federal Endangered Species Act of 1973 16 USC sect 1531 et seq
and its state law companion the Florida Wildlife Code Chapter 68A of the Florida
Administrative Code Plaintiff Godwin who is currently the President of the Orange
County Audubon Society further provided the Defendant with alternative plans that would
allow it to build a zip-line elsewhere on its property where no disturbance to the
endangered wood storks or other species would occur Rather than follow and abide by
the applicable federal and state regulations the Defendant chose to immediately terminate
the Plaintiffs employment within weeks of his report to the members of the Board of
Directors advising them that the current zip-line route and planned night-time operation
through the Breeding Marsh amp Bird Rookery could potentially disturb federally endangered
wood storks and other protected species in violation of federal and Florida law Plaintiff
was also banned from attendance at future Board meetings notwithstanding his minority
shares in the corporation Accordingly Plaintiff seeks monetary and equitable relief under
the Florida Whistleblower Protection Act FS sectsect448101-448105
JURISDICTION AND VENUE
2 This is a claim in excess of $1500000 and thus jurisdiction is proper in this
Court
2
3 The unlawful employment practices occurred in Orange County and
therefore venue is properly in this Court
PARTIES
4 Plaintiff GODWIN is a citizen and resident of Orange County Florida over the
age of 18 years and otherwise sui juris
5 At all times material hereto Defendant GATORLAND was a foreign for profit
corporation engaged in the operation of a 110-acre theme park and wildlife preserve in
Orange County Florida located on the South Orange Blossom Trail 4501 South Orange
Blossom Trail in Orlando Florida
6 At all times material hereto Plaintiff GODWIN was an employee of the
Defendant GATORLAND within the meaning of sect448101(2) Fla Stat
7 At all times material hereto Defendant GATORLAND employed more than
ten persons including Plaintiff GODWIN Therefore at all times material hereto
GATORLAND was an employer within the meaning of sect448101(3) Fla Stat
STATEMENT OF FACTS
Background
8 Defendants website describes its facility as a llO-acre theme park and
wildlife preserve with thousands of alligators and crocodiles a breeding marsh with
boardwalk and observation tower one-of-a-kind reptilian shows aviary petting zoo
swamp walk educational programs and much much more
9 Located within Gatorlands breeding marsh is a plethora of nesting birds
including colonies of the endangered wood stork (Mycteria Americana)
3
10 The wood stork is a gregarious species which nests in colonies (rookeries)
and roosts and feeds in flocks often in association with other species of long-legged water
birds Storks that nest in the southeastern United States appear to represent a distinct
population All available evidence suggests that regional declines in wood stork numbers
have been largely due to the loss or degradation of essential wetland habitat This US
nesting population of wood storks was listed as endangered by the US Fish and Wildlife
Service on February 28 1984 (Federal Register 49(4)7332-7335) The wood stork will
return to the same colony site for many years so long as that site and surrounding feeding
habitat continue to supply the needs of the birds Storks require between 110 and 160 days
for the annual nesting cycle from the period of courtship until the nestlings become
independent In Central Florida nesting activity may begin between February and April
and may be active as late as July or August Colony sites may also be used for roosting by
storks during other times of the year
11 In addition to the irreversible impacts of drainage and destruction of nesting
habitat the greatest threats to colony sites are from human disturbance and predation
Nesting storks show some variation in the levels of human activity they will tolerate near a
colony In general nesting storks are more tolerant of low levels of human activity near a
colony when nests are high in trees than when they are low and when nests contain
partially or completely feathered young than during the period between nest construction
and the early nestling period (adults still brooding) When adult storks are forced to leave
their nests eggs or downy young may die quickly when exposed to direct sun or rain
12 The Endangered Species Act of 1973 as amended protects plant and animal
species that are listed as endangered or threatened A species is endangered if it is in
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danger of extinction throughout all or a significant portion of its range 16 UsC sect
1532(6) A species is threatened if it is likely to become an endangered species within
the foreseeable future throughout all or a significant portion of its range Id sect 1532(20)
13 The US breeding population of the wood stork is protected by the
Endangered Species Act of 1973 as amended Title 16 USc sect 1531 et seq prohibits
anyone including private persons and corporations from taking endangered wildlife The
definition of take includes to harass harm pursue hunt shoot wound kill trap capture
or collect or to attempt to engage in any such conduct 16 Usc sect 1532(19) A notable
component of this definition is the definition of harm Under the applicable implementing
federal regulations the term harm within the meaning of take means an act which kills
or injures protected wildlife Such acts may include significant habitat modification or
degradation which kills or injures wildlife by significantly impairing essential behavioral
patterns including breeding feeding or sheltering Harm can also result from habitat
destruction that prevents the recovery of the species by affecting essential behavioral
patterns 50 CFR sect 173 The regulations extend this to threatened animals such as the
wood stork See eg 50 CFR sectsect 1731 1721 These regulations also extend to the year
round protection of the wood stork habitat such as the wood stork rookeries and nesting
areas
14 Under the Act the term critical habitat for an endangered or threatened
species means
(i) the specific areas within the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations and protection and (ii) specific areas outside the geographic area occupied by the species at the time it is listed in
5
accordance with the provisions of section 1533 of this title upon a determination by the Secretary that such areas are essential for the conservation of the species 16 USC sect 1532(5)(A)
Pursuant to 16 usc sect 1538(a)(1)(G) of the Act it is unlawful for any person subject to
the jurisdiction of the United States to violate any regulation pertaining to any
threatened species of wildlife listed pursuant to section 1533 [of the Act] and
promulgated by the Secretary pursuant to authority provided by [the Act] Thus the
violation of any federal regulation enacted under the Act is itself a violation of the Act as a
matter of law
15 Florida law provides similar protections for species like the wood stork For
example Rule 39-4001 of the Florida Wildlife Code prohibits taking attempting to take
pursuing hunting molesting capturing or killing (collectively defined as taking)
transporting storing serving buying selling possessing or wantonly or willingly wasting
any wildlife or freshwater fish or their nests eggs young homes or dens except as
specifically provided for in other rules of Chapter 39 Florida Administrative Code
Likewise Rule 39-27011 of the Florida Wildlife Code prohibits killing attempting to kill
or wounding any endangered species
16 Additionally Rule 68A-27003 of the Florida Wildlife Code states the
following
68A-27003 Designation ofEndangered Species Prohibitions
(1) Federally-designated Endangered and Threatened species
(a) No person shall take possess or sell any of the endangered or threatened species included in this subsection or parts thereof or their nests or eggs except as allowed by
specific federal or state permit or authorization [emphasis added]
(b) The following Federally-designated Endangered and Threatened species shall be afforded the protection afforded under Commission rules and Florida Statutes and under the
6
Federal Endangered Species Act 16 Uscsect 1531 et seq and its implementing regulations Species classified as endangered are identified below by (E) and threatened as (T)
(f)(14) Wood Stork (Mycteria americana) (E)
Thus the Official Lists of Endangered and Potentially Endangered Fauna and Flora in
Florida includes the wood stork listed as endangered by the Florida Game and Fresh
Water Fish Commission
17 The Gatorland Wood Stork colony was formed in 2003 along the eastern
bank area of the Breeding Marsh and Bird Rookery In 2010 twenty-one nests were
recorded with the highest density of Wood Stork nests located in the tree tops at the
planned zip-line route For years these endangered birds could be observed safely by the
public via Gatorlands boardwalk and observation tower However these birds and their
habitat are in danger due to the Defendants recalcitrant decision to build a zip-line1
directly through the Wood Stork rookery in violation of the Endangered Species Act rather
than through another area of the park Plaintiff Godwin pointed out these possible
violations of law to the Defendant in an attempt to have them move the location of the zip-
line As a result Plaintiff was terminated
GENERAL ALLEGATIONS
18 Plaintiffs GODWIN grandfather started Gatorland in 1949 The business has
been family owned and operated to the present day
1 A zip-line consists of a pulley suspended on a cable mounted on an incline It is designed to enable a user propelled by gravity to traverse from the top to the bottom of the inclined cable usually made of stainless steel by holding on or attaching to the freely moving pulley
7
19 Being part of a family business started by Plaintiffs grandfather and run by
Plaintiffs father Godwin was raised at Gatorland and became officially employed by the
company in 1978 fulfilling a number of positions including Head Animal and Reptile
Curator Manager of Alligator Farming and creator of the world famous Gator Jumparoo
show Godwin left Gatorland in 1988 and was subsequently employed by Service
Merchandise and IBM
20 In or about 2003 Plaintiff returned to Gatorland as the IT Manager where
inter alia he was in charge of all technical aspects of the park from the computer phone
and POS systems to digital photography the online gift store and the parks website
21 In 2008 Gatorland instituted a birding and photography program to attract
eco-tourists As a result Gatorland created an eco-tourism program with the official name
of the Rookery Tours Department and made Plaintiff the Program Manager a position for
which he was qualified and the duties of which he performed with distinction In fact
Plaintiff was referred to as Gatorlands Official Birder and he handled all birding tours
and events One of the Plaintiffs duties was to act as Gatorlands official liaison to the
Florida Wildlife Commissions Great Florida Birding Trail of which Gatorland had been a
member of since 200l
22 During an April 30 2009 meeting of Gatorlands Park Operating Committee
Gatorland CEO McHugh advised the parks operating Directors that Plaintiff was in charge
of all birds and gators within the Breeding Marsh This announcement was reflected in
pertinent part from the meeting minutes Mike Godwin is in charge of the Breeding Marsh
with the exception of Adventure Hour Egg Collection and video productions (this was not
8
mentioned but Mark added to minutes) Mike is in charge of gators and birds within this
area as well
23 On September 29 2009 at the request of the Gatorland Park Planning
Committee and Board of Directors who were in discussions to remove and destroy
portions of a wading bird rookery with protected species on the north end of the property
to build a larger parking area Plaintiff researched the issue of whether nesting rookeries
containing species of special concern were protected and could be removed after nesting
season Plaintiff consulted with his liaison at the Florida Fish and Wildlife Conservation
Commission and was advised that the nests and habitat of protected species (such as the
wood stork) were protected all year round pursuant to Florida Wildlife Code 68A-27
Plaintiff presented this information to the CEO advising that these nests were protected all
year round pursuant to the Florida Wildlife Code and could not be removed Upon
receiving this information the CEO Mr McHugh (who also happens to be Plaintiffs
brother-in-law) told Plaintiff that he would not have his actions dictated by a minority and
would be shutting everything down and informed Plaintiff that he was therefore
terminated as a result
24 In January 2010 the Gatorland CEO advised Plaintiff that his termination
was a big misunderstanding and that he was being rehired as Program Director to
recommence operations for the 2010 birding season However his rehire would not
include his annual salary or the monies he received from operating the nighttime tours at
the park
25 As was typical at Gatorland when Plaintiff was rehired he was intentionally
misclassified as an independent contractor Despite this fiction Plaintiff received regular
9
employee insurance benefits health life dental and supplementaL for the entire year His
hours and job duties were controlled by Gatorland He was to receive $ 800 per week from
January 2010 though July 31 2010 plus a 10 commission on gross revenues for all
activities of the program Gatorland also provided Plaintiff office space Gatorland business
cards a paid cell phone and other benefits
26 Under Plaintiffs watch the birding and Rookery Tours photography
program in 2010 received acclaim throughout the birding and nature photography circles
in the USA and internationally and made a substantial profit GODWIN received numerous
accolades from the programs visitors for his enthusiastic and engaging demeanor vast
knowledge and genuine love of nature
27 On or about February 16 2010 the Defendants Park Planning Committee
met with a company called Global Expeditions to receive a zip-line proposal for the park
Days later the Park Planning Committee met to discuss recommending the zip-line project
The original planned route approved by the committee which did not affect any protected
bird or bird habitat was unilaterally changed by Defendants CEO so that the zip-line went
directly through the middle of the rookery The members of the Committee voted to
approve the route change over the objections of the Plaintiff A request by Plaintiff to seek
legal guidance on the issue was also denied by the Committee
28 On February 20 2010 at the Gatorland Annual Stockholders Meeting the
shareholders passed a resolution stating that no one at GatorIand including its employees
was to approach any outside or governing body regarding any aspect of the zip-line project
without permission from the Board or the CEO The resolution violates the Florida
Whistleblower Protection Act since this on its face penalizes protected activity under
10
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
and other avian species of special concern nest and roost Plaintiff Godwin advised the
CEO and the Board that their zip-line master plan could result in the abandonment of active
nests and that the zip-line route through the Breeding Marsh amp Bird Rookery would place
visitors too close to the endangered wood stork and other avian species of special concern
nests resulting in the unlawful disturbance and harassment of these species and their
habitat in violation of the federal Endangered Species Act of 1973 16 USC sect 1531 et seq
and its state law companion the Florida Wildlife Code Chapter 68A of the Florida
Administrative Code Plaintiff Godwin who is currently the President of the Orange
County Audubon Society further provided the Defendant with alternative plans that would
allow it to build a zip-line elsewhere on its property where no disturbance to the
endangered wood storks or other species would occur Rather than follow and abide by
the applicable federal and state regulations the Defendant chose to immediately terminate
the Plaintiffs employment within weeks of his report to the members of the Board of
Directors advising them that the current zip-line route and planned night-time operation
through the Breeding Marsh amp Bird Rookery could potentially disturb federally endangered
wood storks and other protected species in violation of federal and Florida law Plaintiff
was also banned from attendance at future Board meetings notwithstanding his minority
shares in the corporation Accordingly Plaintiff seeks monetary and equitable relief under
the Florida Whistleblower Protection Act FS sectsect448101-448105
JURISDICTION AND VENUE
2 This is a claim in excess of $1500000 and thus jurisdiction is proper in this
Court
2
3 The unlawful employment practices occurred in Orange County and
therefore venue is properly in this Court
PARTIES
4 Plaintiff GODWIN is a citizen and resident of Orange County Florida over the
age of 18 years and otherwise sui juris
5 At all times material hereto Defendant GATORLAND was a foreign for profit
corporation engaged in the operation of a 110-acre theme park and wildlife preserve in
Orange County Florida located on the South Orange Blossom Trail 4501 South Orange
Blossom Trail in Orlando Florida
6 At all times material hereto Plaintiff GODWIN was an employee of the
Defendant GATORLAND within the meaning of sect448101(2) Fla Stat
7 At all times material hereto Defendant GATORLAND employed more than
ten persons including Plaintiff GODWIN Therefore at all times material hereto
GATORLAND was an employer within the meaning of sect448101(3) Fla Stat
STATEMENT OF FACTS
Background
8 Defendants website describes its facility as a llO-acre theme park and
wildlife preserve with thousands of alligators and crocodiles a breeding marsh with
boardwalk and observation tower one-of-a-kind reptilian shows aviary petting zoo
swamp walk educational programs and much much more
9 Located within Gatorlands breeding marsh is a plethora of nesting birds
including colonies of the endangered wood stork (Mycteria Americana)
3
10 The wood stork is a gregarious species which nests in colonies (rookeries)
and roosts and feeds in flocks often in association with other species of long-legged water
birds Storks that nest in the southeastern United States appear to represent a distinct
population All available evidence suggests that regional declines in wood stork numbers
have been largely due to the loss or degradation of essential wetland habitat This US
nesting population of wood storks was listed as endangered by the US Fish and Wildlife
Service on February 28 1984 (Federal Register 49(4)7332-7335) The wood stork will
return to the same colony site for many years so long as that site and surrounding feeding
habitat continue to supply the needs of the birds Storks require between 110 and 160 days
for the annual nesting cycle from the period of courtship until the nestlings become
independent In Central Florida nesting activity may begin between February and April
and may be active as late as July or August Colony sites may also be used for roosting by
storks during other times of the year
11 In addition to the irreversible impacts of drainage and destruction of nesting
habitat the greatest threats to colony sites are from human disturbance and predation
Nesting storks show some variation in the levels of human activity they will tolerate near a
colony In general nesting storks are more tolerant of low levels of human activity near a
colony when nests are high in trees than when they are low and when nests contain
partially or completely feathered young than during the period between nest construction
and the early nestling period (adults still brooding) When adult storks are forced to leave
their nests eggs or downy young may die quickly when exposed to direct sun or rain
12 The Endangered Species Act of 1973 as amended protects plant and animal
species that are listed as endangered or threatened A species is endangered if it is in
4
danger of extinction throughout all or a significant portion of its range 16 UsC sect
1532(6) A species is threatened if it is likely to become an endangered species within
the foreseeable future throughout all or a significant portion of its range Id sect 1532(20)
13 The US breeding population of the wood stork is protected by the
Endangered Species Act of 1973 as amended Title 16 USc sect 1531 et seq prohibits
anyone including private persons and corporations from taking endangered wildlife The
definition of take includes to harass harm pursue hunt shoot wound kill trap capture
or collect or to attempt to engage in any such conduct 16 Usc sect 1532(19) A notable
component of this definition is the definition of harm Under the applicable implementing
federal regulations the term harm within the meaning of take means an act which kills
or injures protected wildlife Such acts may include significant habitat modification or
degradation which kills or injures wildlife by significantly impairing essential behavioral
patterns including breeding feeding or sheltering Harm can also result from habitat
destruction that prevents the recovery of the species by affecting essential behavioral
patterns 50 CFR sect 173 The regulations extend this to threatened animals such as the
wood stork See eg 50 CFR sectsect 1731 1721 These regulations also extend to the year
round protection of the wood stork habitat such as the wood stork rookeries and nesting
areas
14 Under the Act the term critical habitat for an endangered or threatened
species means
(i) the specific areas within the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations and protection and (ii) specific areas outside the geographic area occupied by the species at the time it is listed in
5
accordance with the provisions of section 1533 of this title upon a determination by the Secretary that such areas are essential for the conservation of the species 16 USC sect 1532(5)(A)
Pursuant to 16 usc sect 1538(a)(1)(G) of the Act it is unlawful for any person subject to
the jurisdiction of the United States to violate any regulation pertaining to any
threatened species of wildlife listed pursuant to section 1533 [of the Act] and
promulgated by the Secretary pursuant to authority provided by [the Act] Thus the
violation of any federal regulation enacted under the Act is itself a violation of the Act as a
matter of law
15 Florida law provides similar protections for species like the wood stork For
example Rule 39-4001 of the Florida Wildlife Code prohibits taking attempting to take
pursuing hunting molesting capturing or killing (collectively defined as taking)
transporting storing serving buying selling possessing or wantonly or willingly wasting
any wildlife or freshwater fish or their nests eggs young homes or dens except as
specifically provided for in other rules of Chapter 39 Florida Administrative Code
Likewise Rule 39-27011 of the Florida Wildlife Code prohibits killing attempting to kill
or wounding any endangered species
16 Additionally Rule 68A-27003 of the Florida Wildlife Code states the
following
68A-27003 Designation ofEndangered Species Prohibitions
(1) Federally-designated Endangered and Threatened species
(a) No person shall take possess or sell any of the endangered or threatened species included in this subsection or parts thereof or their nests or eggs except as allowed by
specific federal or state permit or authorization [emphasis added]
(b) The following Federally-designated Endangered and Threatened species shall be afforded the protection afforded under Commission rules and Florida Statutes and under the
6
Federal Endangered Species Act 16 Uscsect 1531 et seq and its implementing regulations Species classified as endangered are identified below by (E) and threatened as (T)
(f)(14) Wood Stork (Mycteria americana) (E)
Thus the Official Lists of Endangered and Potentially Endangered Fauna and Flora in
Florida includes the wood stork listed as endangered by the Florida Game and Fresh
Water Fish Commission
17 The Gatorland Wood Stork colony was formed in 2003 along the eastern
bank area of the Breeding Marsh and Bird Rookery In 2010 twenty-one nests were
recorded with the highest density of Wood Stork nests located in the tree tops at the
planned zip-line route For years these endangered birds could be observed safely by the
public via Gatorlands boardwalk and observation tower However these birds and their
habitat are in danger due to the Defendants recalcitrant decision to build a zip-line1
directly through the Wood Stork rookery in violation of the Endangered Species Act rather
than through another area of the park Plaintiff Godwin pointed out these possible
violations of law to the Defendant in an attempt to have them move the location of the zip-
line As a result Plaintiff was terminated
GENERAL ALLEGATIONS
18 Plaintiffs GODWIN grandfather started Gatorland in 1949 The business has
been family owned and operated to the present day
1 A zip-line consists of a pulley suspended on a cable mounted on an incline It is designed to enable a user propelled by gravity to traverse from the top to the bottom of the inclined cable usually made of stainless steel by holding on or attaching to the freely moving pulley
7
19 Being part of a family business started by Plaintiffs grandfather and run by
Plaintiffs father Godwin was raised at Gatorland and became officially employed by the
company in 1978 fulfilling a number of positions including Head Animal and Reptile
Curator Manager of Alligator Farming and creator of the world famous Gator Jumparoo
show Godwin left Gatorland in 1988 and was subsequently employed by Service
Merchandise and IBM
20 In or about 2003 Plaintiff returned to Gatorland as the IT Manager where
inter alia he was in charge of all technical aspects of the park from the computer phone
and POS systems to digital photography the online gift store and the parks website
21 In 2008 Gatorland instituted a birding and photography program to attract
eco-tourists As a result Gatorland created an eco-tourism program with the official name
of the Rookery Tours Department and made Plaintiff the Program Manager a position for
which he was qualified and the duties of which he performed with distinction In fact
Plaintiff was referred to as Gatorlands Official Birder and he handled all birding tours
and events One of the Plaintiffs duties was to act as Gatorlands official liaison to the
Florida Wildlife Commissions Great Florida Birding Trail of which Gatorland had been a
member of since 200l
22 During an April 30 2009 meeting of Gatorlands Park Operating Committee
Gatorland CEO McHugh advised the parks operating Directors that Plaintiff was in charge
of all birds and gators within the Breeding Marsh This announcement was reflected in
pertinent part from the meeting minutes Mike Godwin is in charge of the Breeding Marsh
with the exception of Adventure Hour Egg Collection and video productions (this was not
8
mentioned but Mark added to minutes) Mike is in charge of gators and birds within this
area as well
23 On September 29 2009 at the request of the Gatorland Park Planning
Committee and Board of Directors who were in discussions to remove and destroy
portions of a wading bird rookery with protected species on the north end of the property
to build a larger parking area Plaintiff researched the issue of whether nesting rookeries
containing species of special concern were protected and could be removed after nesting
season Plaintiff consulted with his liaison at the Florida Fish and Wildlife Conservation
Commission and was advised that the nests and habitat of protected species (such as the
wood stork) were protected all year round pursuant to Florida Wildlife Code 68A-27
Plaintiff presented this information to the CEO advising that these nests were protected all
year round pursuant to the Florida Wildlife Code and could not be removed Upon
receiving this information the CEO Mr McHugh (who also happens to be Plaintiffs
brother-in-law) told Plaintiff that he would not have his actions dictated by a minority and
would be shutting everything down and informed Plaintiff that he was therefore
terminated as a result
24 In January 2010 the Gatorland CEO advised Plaintiff that his termination
was a big misunderstanding and that he was being rehired as Program Director to
recommence operations for the 2010 birding season However his rehire would not
include his annual salary or the monies he received from operating the nighttime tours at
the park
25 As was typical at Gatorland when Plaintiff was rehired he was intentionally
misclassified as an independent contractor Despite this fiction Plaintiff received regular
9
employee insurance benefits health life dental and supplementaL for the entire year His
hours and job duties were controlled by Gatorland He was to receive $ 800 per week from
January 2010 though July 31 2010 plus a 10 commission on gross revenues for all
activities of the program Gatorland also provided Plaintiff office space Gatorland business
cards a paid cell phone and other benefits
26 Under Plaintiffs watch the birding and Rookery Tours photography
program in 2010 received acclaim throughout the birding and nature photography circles
in the USA and internationally and made a substantial profit GODWIN received numerous
accolades from the programs visitors for his enthusiastic and engaging demeanor vast
knowledge and genuine love of nature
27 On or about February 16 2010 the Defendants Park Planning Committee
met with a company called Global Expeditions to receive a zip-line proposal for the park
Days later the Park Planning Committee met to discuss recommending the zip-line project
The original planned route approved by the committee which did not affect any protected
bird or bird habitat was unilaterally changed by Defendants CEO so that the zip-line went
directly through the middle of the rookery The members of the Committee voted to
approve the route change over the objections of the Plaintiff A request by Plaintiff to seek
legal guidance on the issue was also denied by the Committee
28 On February 20 2010 at the Gatorland Annual Stockholders Meeting the
shareholders passed a resolution stating that no one at GatorIand including its employees
was to approach any outside or governing body regarding any aspect of the zip-line project
without permission from the Board or the CEO The resolution violates the Florida
Whistleblower Protection Act since this on its face penalizes protected activity under
10
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
3 The unlawful employment practices occurred in Orange County and
therefore venue is properly in this Court
PARTIES
4 Plaintiff GODWIN is a citizen and resident of Orange County Florida over the
age of 18 years and otherwise sui juris
5 At all times material hereto Defendant GATORLAND was a foreign for profit
corporation engaged in the operation of a 110-acre theme park and wildlife preserve in
Orange County Florida located on the South Orange Blossom Trail 4501 South Orange
Blossom Trail in Orlando Florida
6 At all times material hereto Plaintiff GODWIN was an employee of the
Defendant GATORLAND within the meaning of sect448101(2) Fla Stat
7 At all times material hereto Defendant GATORLAND employed more than
ten persons including Plaintiff GODWIN Therefore at all times material hereto
GATORLAND was an employer within the meaning of sect448101(3) Fla Stat
STATEMENT OF FACTS
Background
8 Defendants website describes its facility as a llO-acre theme park and
wildlife preserve with thousands of alligators and crocodiles a breeding marsh with
boardwalk and observation tower one-of-a-kind reptilian shows aviary petting zoo
swamp walk educational programs and much much more
9 Located within Gatorlands breeding marsh is a plethora of nesting birds
including colonies of the endangered wood stork (Mycteria Americana)
3
10 The wood stork is a gregarious species which nests in colonies (rookeries)
and roosts and feeds in flocks often in association with other species of long-legged water
birds Storks that nest in the southeastern United States appear to represent a distinct
population All available evidence suggests that regional declines in wood stork numbers
have been largely due to the loss or degradation of essential wetland habitat This US
nesting population of wood storks was listed as endangered by the US Fish and Wildlife
Service on February 28 1984 (Federal Register 49(4)7332-7335) The wood stork will
return to the same colony site for many years so long as that site and surrounding feeding
habitat continue to supply the needs of the birds Storks require between 110 and 160 days
for the annual nesting cycle from the period of courtship until the nestlings become
independent In Central Florida nesting activity may begin between February and April
and may be active as late as July or August Colony sites may also be used for roosting by
storks during other times of the year
11 In addition to the irreversible impacts of drainage and destruction of nesting
habitat the greatest threats to colony sites are from human disturbance and predation
Nesting storks show some variation in the levels of human activity they will tolerate near a
colony In general nesting storks are more tolerant of low levels of human activity near a
colony when nests are high in trees than when they are low and when nests contain
partially or completely feathered young than during the period between nest construction
and the early nestling period (adults still brooding) When adult storks are forced to leave
their nests eggs or downy young may die quickly when exposed to direct sun or rain
12 The Endangered Species Act of 1973 as amended protects plant and animal
species that are listed as endangered or threatened A species is endangered if it is in
4
danger of extinction throughout all or a significant portion of its range 16 UsC sect
1532(6) A species is threatened if it is likely to become an endangered species within
the foreseeable future throughout all or a significant portion of its range Id sect 1532(20)
13 The US breeding population of the wood stork is protected by the
Endangered Species Act of 1973 as amended Title 16 USc sect 1531 et seq prohibits
anyone including private persons and corporations from taking endangered wildlife The
definition of take includes to harass harm pursue hunt shoot wound kill trap capture
or collect or to attempt to engage in any such conduct 16 Usc sect 1532(19) A notable
component of this definition is the definition of harm Under the applicable implementing
federal regulations the term harm within the meaning of take means an act which kills
or injures protected wildlife Such acts may include significant habitat modification or
degradation which kills or injures wildlife by significantly impairing essential behavioral
patterns including breeding feeding or sheltering Harm can also result from habitat
destruction that prevents the recovery of the species by affecting essential behavioral
patterns 50 CFR sect 173 The regulations extend this to threatened animals such as the
wood stork See eg 50 CFR sectsect 1731 1721 These regulations also extend to the year
round protection of the wood stork habitat such as the wood stork rookeries and nesting
areas
14 Under the Act the term critical habitat for an endangered or threatened
species means
(i) the specific areas within the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations and protection and (ii) specific areas outside the geographic area occupied by the species at the time it is listed in
5
accordance with the provisions of section 1533 of this title upon a determination by the Secretary that such areas are essential for the conservation of the species 16 USC sect 1532(5)(A)
Pursuant to 16 usc sect 1538(a)(1)(G) of the Act it is unlawful for any person subject to
the jurisdiction of the United States to violate any regulation pertaining to any
threatened species of wildlife listed pursuant to section 1533 [of the Act] and
promulgated by the Secretary pursuant to authority provided by [the Act] Thus the
violation of any federal regulation enacted under the Act is itself a violation of the Act as a
matter of law
15 Florida law provides similar protections for species like the wood stork For
example Rule 39-4001 of the Florida Wildlife Code prohibits taking attempting to take
pursuing hunting molesting capturing or killing (collectively defined as taking)
transporting storing serving buying selling possessing or wantonly or willingly wasting
any wildlife or freshwater fish or their nests eggs young homes or dens except as
specifically provided for in other rules of Chapter 39 Florida Administrative Code
Likewise Rule 39-27011 of the Florida Wildlife Code prohibits killing attempting to kill
or wounding any endangered species
16 Additionally Rule 68A-27003 of the Florida Wildlife Code states the
following
68A-27003 Designation ofEndangered Species Prohibitions
(1) Federally-designated Endangered and Threatened species
(a) No person shall take possess or sell any of the endangered or threatened species included in this subsection or parts thereof or their nests or eggs except as allowed by
specific federal or state permit or authorization [emphasis added]
(b) The following Federally-designated Endangered and Threatened species shall be afforded the protection afforded under Commission rules and Florida Statutes and under the
6
Federal Endangered Species Act 16 Uscsect 1531 et seq and its implementing regulations Species classified as endangered are identified below by (E) and threatened as (T)
(f)(14) Wood Stork (Mycteria americana) (E)
Thus the Official Lists of Endangered and Potentially Endangered Fauna and Flora in
Florida includes the wood stork listed as endangered by the Florida Game and Fresh
Water Fish Commission
17 The Gatorland Wood Stork colony was formed in 2003 along the eastern
bank area of the Breeding Marsh and Bird Rookery In 2010 twenty-one nests were
recorded with the highest density of Wood Stork nests located in the tree tops at the
planned zip-line route For years these endangered birds could be observed safely by the
public via Gatorlands boardwalk and observation tower However these birds and their
habitat are in danger due to the Defendants recalcitrant decision to build a zip-line1
directly through the Wood Stork rookery in violation of the Endangered Species Act rather
than through another area of the park Plaintiff Godwin pointed out these possible
violations of law to the Defendant in an attempt to have them move the location of the zip-
line As a result Plaintiff was terminated
GENERAL ALLEGATIONS
18 Plaintiffs GODWIN grandfather started Gatorland in 1949 The business has
been family owned and operated to the present day
1 A zip-line consists of a pulley suspended on a cable mounted on an incline It is designed to enable a user propelled by gravity to traverse from the top to the bottom of the inclined cable usually made of stainless steel by holding on or attaching to the freely moving pulley
7
19 Being part of a family business started by Plaintiffs grandfather and run by
Plaintiffs father Godwin was raised at Gatorland and became officially employed by the
company in 1978 fulfilling a number of positions including Head Animal and Reptile
Curator Manager of Alligator Farming and creator of the world famous Gator Jumparoo
show Godwin left Gatorland in 1988 and was subsequently employed by Service
Merchandise and IBM
20 In or about 2003 Plaintiff returned to Gatorland as the IT Manager where
inter alia he was in charge of all technical aspects of the park from the computer phone
and POS systems to digital photography the online gift store and the parks website
21 In 2008 Gatorland instituted a birding and photography program to attract
eco-tourists As a result Gatorland created an eco-tourism program with the official name
of the Rookery Tours Department and made Plaintiff the Program Manager a position for
which he was qualified and the duties of which he performed with distinction In fact
Plaintiff was referred to as Gatorlands Official Birder and he handled all birding tours
and events One of the Plaintiffs duties was to act as Gatorlands official liaison to the
Florida Wildlife Commissions Great Florida Birding Trail of which Gatorland had been a
member of since 200l
22 During an April 30 2009 meeting of Gatorlands Park Operating Committee
Gatorland CEO McHugh advised the parks operating Directors that Plaintiff was in charge
of all birds and gators within the Breeding Marsh This announcement was reflected in
pertinent part from the meeting minutes Mike Godwin is in charge of the Breeding Marsh
with the exception of Adventure Hour Egg Collection and video productions (this was not
8
mentioned but Mark added to minutes) Mike is in charge of gators and birds within this
area as well
23 On September 29 2009 at the request of the Gatorland Park Planning
Committee and Board of Directors who were in discussions to remove and destroy
portions of a wading bird rookery with protected species on the north end of the property
to build a larger parking area Plaintiff researched the issue of whether nesting rookeries
containing species of special concern were protected and could be removed after nesting
season Plaintiff consulted with his liaison at the Florida Fish and Wildlife Conservation
Commission and was advised that the nests and habitat of protected species (such as the
wood stork) were protected all year round pursuant to Florida Wildlife Code 68A-27
Plaintiff presented this information to the CEO advising that these nests were protected all
year round pursuant to the Florida Wildlife Code and could not be removed Upon
receiving this information the CEO Mr McHugh (who also happens to be Plaintiffs
brother-in-law) told Plaintiff that he would not have his actions dictated by a minority and
would be shutting everything down and informed Plaintiff that he was therefore
terminated as a result
24 In January 2010 the Gatorland CEO advised Plaintiff that his termination
was a big misunderstanding and that he was being rehired as Program Director to
recommence operations for the 2010 birding season However his rehire would not
include his annual salary or the monies he received from operating the nighttime tours at
the park
25 As was typical at Gatorland when Plaintiff was rehired he was intentionally
misclassified as an independent contractor Despite this fiction Plaintiff received regular
9
employee insurance benefits health life dental and supplementaL for the entire year His
hours and job duties were controlled by Gatorland He was to receive $ 800 per week from
January 2010 though July 31 2010 plus a 10 commission on gross revenues for all
activities of the program Gatorland also provided Plaintiff office space Gatorland business
cards a paid cell phone and other benefits
26 Under Plaintiffs watch the birding and Rookery Tours photography
program in 2010 received acclaim throughout the birding and nature photography circles
in the USA and internationally and made a substantial profit GODWIN received numerous
accolades from the programs visitors for his enthusiastic and engaging demeanor vast
knowledge and genuine love of nature
27 On or about February 16 2010 the Defendants Park Planning Committee
met with a company called Global Expeditions to receive a zip-line proposal for the park
Days later the Park Planning Committee met to discuss recommending the zip-line project
The original planned route approved by the committee which did not affect any protected
bird or bird habitat was unilaterally changed by Defendants CEO so that the zip-line went
directly through the middle of the rookery The members of the Committee voted to
approve the route change over the objections of the Plaintiff A request by Plaintiff to seek
legal guidance on the issue was also denied by the Committee
28 On February 20 2010 at the Gatorland Annual Stockholders Meeting the
shareholders passed a resolution stating that no one at GatorIand including its employees
was to approach any outside or governing body regarding any aspect of the zip-line project
without permission from the Board or the CEO The resolution violates the Florida
Whistleblower Protection Act since this on its face penalizes protected activity under
10
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
10 The wood stork is a gregarious species which nests in colonies (rookeries)
and roosts and feeds in flocks often in association with other species of long-legged water
birds Storks that nest in the southeastern United States appear to represent a distinct
population All available evidence suggests that regional declines in wood stork numbers
have been largely due to the loss or degradation of essential wetland habitat This US
nesting population of wood storks was listed as endangered by the US Fish and Wildlife
Service on February 28 1984 (Federal Register 49(4)7332-7335) The wood stork will
return to the same colony site for many years so long as that site and surrounding feeding
habitat continue to supply the needs of the birds Storks require between 110 and 160 days
for the annual nesting cycle from the period of courtship until the nestlings become
independent In Central Florida nesting activity may begin between February and April
and may be active as late as July or August Colony sites may also be used for roosting by
storks during other times of the year
11 In addition to the irreversible impacts of drainage and destruction of nesting
habitat the greatest threats to colony sites are from human disturbance and predation
Nesting storks show some variation in the levels of human activity they will tolerate near a
colony In general nesting storks are more tolerant of low levels of human activity near a
colony when nests are high in trees than when they are low and when nests contain
partially or completely feathered young than during the period between nest construction
and the early nestling period (adults still brooding) When adult storks are forced to leave
their nests eggs or downy young may die quickly when exposed to direct sun or rain
12 The Endangered Species Act of 1973 as amended protects plant and animal
species that are listed as endangered or threatened A species is endangered if it is in
4
danger of extinction throughout all or a significant portion of its range 16 UsC sect
1532(6) A species is threatened if it is likely to become an endangered species within
the foreseeable future throughout all or a significant portion of its range Id sect 1532(20)
13 The US breeding population of the wood stork is protected by the
Endangered Species Act of 1973 as amended Title 16 USc sect 1531 et seq prohibits
anyone including private persons and corporations from taking endangered wildlife The
definition of take includes to harass harm pursue hunt shoot wound kill trap capture
or collect or to attempt to engage in any such conduct 16 Usc sect 1532(19) A notable
component of this definition is the definition of harm Under the applicable implementing
federal regulations the term harm within the meaning of take means an act which kills
or injures protected wildlife Such acts may include significant habitat modification or
degradation which kills or injures wildlife by significantly impairing essential behavioral
patterns including breeding feeding or sheltering Harm can also result from habitat
destruction that prevents the recovery of the species by affecting essential behavioral
patterns 50 CFR sect 173 The regulations extend this to threatened animals such as the
wood stork See eg 50 CFR sectsect 1731 1721 These regulations also extend to the year
round protection of the wood stork habitat such as the wood stork rookeries and nesting
areas
14 Under the Act the term critical habitat for an endangered or threatened
species means
(i) the specific areas within the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations and protection and (ii) specific areas outside the geographic area occupied by the species at the time it is listed in
5
accordance with the provisions of section 1533 of this title upon a determination by the Secretary that such areas are essential for the conservation of the species 16 USC sect 1532(5)(A)
Pursuant to 16 usc sect 1538(a)(1)(G) of the Act it is unlawful for any person subject to
the jurisdiction of the United States to violate any regulation pertaining to any
threatened species of wildlife listed pursuant to section 1533 [of the Act] and
promulgated by the Secretary pursuant to authority provided by [the Act] Thus the
violation of any federal regulation enacted under the Act is itself a violation of the Act as a
matter of law
15 Florida law provides similar protections for species like the wood stork For
example Rule 39-4001 of the Florida Wildlife Code prohibits taking attempting to take
pursuing hunting molesting capturing or killing (collectively defined as taking)
transporting storing serving buying selling possessing or wantonly or willingly wasting
any wildlife or freshwater fish or their nests eggs young homes or dens except as
specifically provided for in other rules of Chapter 39 Florida Administrative Code
Likewise Rule 39-27011 of the Florida Wildlife Code prohibits killing attempting to kill
or wounding any endangered species
16 Additionally Rule 68A-27003 of the Florida Wildlife Code states the
following
68A-27003 Designation ofEndangered Species Prohibitions
(1) Federally-designated Endangered and Threatened species
(a) No person shall take possess or sell any of the endangered or threatened species included in this subsection or parts thereof or their nests or eggs except as allowed by
specific federal or state permit or authorization [emphasis added]
(b) The following Federally-designated Endangered and Threatened species shall be afforded the protection afforded under Commission rules and Florida Statutes and under the
6
Federal Endangered Species Act 16 Uscsect 1531 et seq and its implementing regulations Species classified as endangered are identified below by (E) and threatened as (T)
(f)(14) Wood Stork (Mycteria americana) (E)
Thus the Official Lists of Endangered and Potentially Endangered Fauna and Flora in
Florida includes the wood stork listed as endangered by the Florida Game and Fresh
Water Fish Commission
17 The Gatorland Wood Stork colony was formed in 2003 along the eastern
bank area of the Breeding Marsh and Bird Rookery In 2010 twenty-one nests were
recorded with the highest density of Wood Stork nests located in the tree tops at the
planned zip-line route For years these endangered birds could be observed safely by the
public via Gatorlands boardwalk and observation tower However these birds and their
habitat are in danger due to the Defendants recalcitrant decision to build a zip-line1
directly through the Wood Stork rookery in violation of the Endangered Species Act rather
than through another area of the park Plaintiff Godwin pointed out these possible
violations of law to the Defendant in an attempt to have them move the location of the zip-
line As a result Plaintiff was terminated
GENERAL ALLEGATIONS
18 Plaintiffs GODWIN grandfather started Gatorland in 1949 The business has
been family owned and operated to the present day
1 A zip-line consists of a pulley suspended on a cable mounted on an incline It is designed to enable a user propelled by gravity to traverse from the top to the bottom of the inclined cable usually made of stainless steel by holding on or attaching to the freely moving pulley
7
19 Being part of a family business started by Plaintiffs grandfather and run by
Plaintiffs father Godwin was raised at Gatorland and became officially employed by the
company in 1978 fulfilling a number of positions including Head Animal and Reptile
Curator Manager of Alligator Farming and creator of the world famous Gator Jumparoo
show Godwin left Gatorland in 1988 and was subsequently employed by Service
Merchandise and IBM
20 In or about 2003 Plaintiff returned to Gatorland as the IT Manager where
inter alia he was in charge of all technical aspects of the park from the computer phone
and POS systems to digital photography the online gift store and the parks website
21 In 2008 Gatorland instituted a birding and photography program to attract
eco-tourists As a result Gatorland created an eco-tourism program with the official name
of the Rookery Tours Department and made Plaintiff the Program Manager a position for
which he was qualified and the duties of which he performed with distinction In fact
Plaintiff was referred to as Gatorlands Official Birder and he handled all birding tours
and events One of the Plaintiffs duties was to act as Gatorlands official liaison to the
Florida Wildlife Commissions Great Florida Birding Trail of which Gatorland had been a
member of since 200l
22 During an April 30 2009 meeting of Gatorlands Park Operating Committee
Gatorland CEO McHugh advised the parks operating Directors that Plaintiff was in charge
of all birds and gators within the Breeding Marsh This announcement was reflected in
pertinent part from the meeting minutes Mike Godwin is in charge of the Breeding Marsh
with the exception of Adventure Hour Egg Collection and video productions (this was not
8
mentioned but Mark added to minutes) Mike is in charge of gators and birds within this
area as well
23 On September 29 2009 at the request of the Gatorland Park Planning
Committee and Board of Directors who were in discussions to remove and destroy
portions of a wading bird rookery with protected species on the north end of the property
to build a larger parking area Plaintiff researched the issue of whether nesting rookeries
containing species of special concern were protected and could be removed after nesting
season Plaintiff consulted with his liaison at the Florida Fish and Wildlife Conservation
Commission and was advised that the nests and habitat of protected species (such as the
wood stork) were protected all year round pursuant to Florida Wildlife Code 68A-27
Plaintiff presented this information to the CEO advising that these nests were protected all
year round pursuant to the Florida Wildlife Code and could not be removed Upon
receiving this information the CEO Mr McHugh (who also happens to be Plaintiffs
brother-in-law) told Plaintiff that he would not have his actions dictated by a minority and
would be shutting everything down and informed Plaintiff that he was therefore
terminated as a result
24 In January 2010 the Gatorland CEO advised Plaintiff that his termination
was a big misunderstanding and that he was being rehired as Program Director to
recommence operations for the 2010 birding season However his rehire would not
include his annual salary or the monies he received from operating the nighttime tours at
the park
25 As was typical at Gatorland when Plaintiff was rehired he was intentionally
misclassified as an independent contractor Despite this fiction Plaintiff received regular
9
employee insurance benefits health life dental and supplementaL for the entire year His
hours and job duties were controlled by Gatorland He was to receive $ 800 per week from
January 2010 though July 31 2010 plus a 10 commission on gross revenues for all
activities of the program Gatorland also provided Plaintiff office space Gatorland business
cards a paid cell phone and other benefits
26 Under Plaintiffs watch the birding and Rookery Tours photography
program in 2010 received acclaim throughout the birding and nature photography circles
in the USA and internationally and made a substantial profit GODWIN received numerous
accolades from the programs visitors for his enthusiastic and engaging demeanor vast
knowledge and genuine love of nature
27 On or about February 16 2010 the Defendants Park Planning Committee
met with a company called Global Expeditions to receive a zip-line proposal for the park
Days later the Park Planning Committee met to discuss recommending the zip-line project
The original planned route approved by the committee which did not affect any protected
bird or bird habitat was unilaterally changed by Defendants CEO so that the zip-line went
directly through the middle of the rookery The members of the Committee voted to
approve the route change over the objections of the Plaintiff A request by Plaintiff to seek
legal guidance on the issue was also denied by the Committee
28 On February 20 2010 at the Gatorland Annual Stockholders Meeting the
shareholders passed a resolution stating that no one at GatorIand including its employees
was to approach any outside or governing body regarding any aspect of the zip-line project
without permission from the Board or the CEO The resolution violates the Florida
Whistleblower Protection Act since this on its face penalizes protected activity under
10
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
danger of extinction throughout all or a significant portion of its range 16 UsC sect
1532(6) A species is threatened if it is likely to become an endangered species within
the foreseeable future throughout all or a significant portion of its range Id sect 1532(20)
13 The US breeding population of the wood stork is protected by the
Endangered Species Act of 1973 as amended Title 16 USc sect 1531 et seq prohibits
anyone including private persons and corporations from taking endangered wildlife The
definition of take includes to harass harm pursue hunt shoot wound kill trap capture
or collect or to attempt to engage in any such conduct 16 Usc sect 1532(19) A notable
component of this definition is the definition of harm Under the applicable implementing
federal regulations the term harm within the meaning of take means an act which kills
or injures protected wildlife Such acts may include significant habitat modification or
degradation which kills or injures wildlife by significantly impairing essential behavioral
patterns including breeding feeding or sheltering Harm can also result from habitat
destruction that prevents the recovery of the species by affecting essential behavioral
patterns 50 CFR sect 173 The regulations extend this to threatened animals such as the
wood stork See eg 50 CFR sectsect 1731 1721 These regulations also extend to the year
round protection of the wood stork habitat such as the wood stork rookeries and nesting
areas
14 Under the Act the term critical habitat for an endangered or threatened
species means
(i) the specific areas within the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations and protection and (ii) specific areas outside the geographic area occupied by the species at the time it is listed in
5
accordance with the provisions of section 1533 of this title upon a determination by the Secretary that such areas are essential for the conservation of the species 16 USC sect 1532(5)(A)
Pursuant to 16 usc sect 1538(a)(1)(G) of the Act it is unlawful for any person subject to
the jurisdiction of the United States to violate any regulation pertaining to any
threatened species of wildlife listed pursuant to section 1533 [of the Act] and
promulgated by the Secretary pursuant to authority provided by [the Act] Thus the
violation of any federal regulation enacted under the Act is itself a violation of the Act as a
matter of law
15 Florida law provides similar protections for species like the wood stork For
example Rule 39-4001 of the Florida Wildlife Code prohibits taking attempting to take
pursuing hunting molesting capturing or killing (collectively defined as taking)
transporting storing serving buying selling possessing or wantonly or willingly wasting
any wildlife or freshwater fish or their nests eggs young homes or dens except as
specifically provided for in other rules of Chapter 39 Florida Administrative Code
Likewise Rule 39-27011 of the Florida Wildlife Code prohibits killing attempting to kill
or wounding any endangered species
16 Additionally Rule 68A-27003 of the Florida Wildlife Code states the
following
68A-27003 Designation ofEndangered Species Prohibitions
(1) Federally-designated Endangered and Threatened species
(a) No person shall take possess or sell any of the endangered or threatened species included in this subsection or parts thereof or their nests or eggs except as allowed by
specific federal or state permit or authorization [emphasis added]
(b) The following Federally-designated Endangered and Threatened species shall be afforded the protection afforded under Commission rules and Florida Statutes and under the
6
Federal Endangered Species Act 16 Uscsect 1531 et seq and its implementing regulations Species classified as endangered are identified below by (E) and threatened as (T)
(f)(14) Wood Stork (Mycteria americana) (E)
Thus the Official Lists of Endangered and Potentially Endangered Fauna and Flora in
Florida includes the wood stork listed as endangered by the Florida Game and Fresh
Water Fish Commission
17 The Gatorland Wood Stork colony was formed in 2003 along the eastern
bank area of the Breeding Marsh and Bird Rookery In 2010 twenty-one nests were
recorded with the highest density of Wood Stork nests located in the tree tops at the
planned zip-line route For years these endangered birds could be observed safely by the
public via Gatorlands boardwalk and observation tower However these birds and their
habitat are in danger due to the Defendants recalcitrant decision to build a zip-line1
directly through the Wood Stork rookery in violation of the Endangered Species Act rather
than through another area of the park Plaintiff Godwin pointed out these possible
violations of law to the Defendant in an attempt to have them move the location of the zip-
line As a result Plaintiff was terminated
GENERAL ALLEGATIONS
18 Plaintiffs GODWIN grandfather started Gatorland in 1949 The business has
been family owned and operated to the present day
1 A zip-line consists of a pulley suspended on a cable mounted on an incline It is designed to enable a user propelled by gravity to traverse from the top to the bottom of the inclined cable usually made of stainless steel by holding on or attaching to the freely moving pulley
7
19 Being part of a family business started by Plaintiffs grandfather and run by
Plaintiffs father Godwin was raised at Gatorland and became officially employed by the
company in 1978 fulfilling a number of positions including Head Animal and Reptile
Curator Manager of Alligator Farming and creator of the world famous Gator Jumparoo
show Godwin left Gatorland in 1988 and was subsequently employed by Service
Merchandise and IBM
20 In or about 2003 Plaintiff returned to Gatorland as the IT Manager where
inter alia he was in charge of all technical aspects of the park from the computer phone
and POS systems to digital photography the online gift store and the parks website
21 In 2008 Gatorland instituted a birding and photography program to attract
eco-tourists As a result Gatorland created an eco-tourism program with the official name
of the Rookery Tours Department and made Plaintiff the Program Manager a position for
which he was qualified and the duties of which he performed with distinction In fact
Plaintiff was referred to as Gatorlands Official Birder and he handled all birding tours
and events One of the Plaintiffs duties was to act as Gatorlands official liaison to the
Florida Wildlife Commissions Great Florida Birding Trail of which Gatorland had been a
member of since 200l
22 During an April 30 2009 meeting of Gatorlands Park Operating Committee
Gatorland CEO McHugh advised the parks operating Directors that Plaintiff was in charge
of all birds and gators within the Breeding Marsh This announcement was reflected in
pertinent part from the meeting minutes Mike Godwin is in charge of the Breeding Marsh
with the exception of Adventure Hour Egg Collection and video productions (this was not
8
mentioned but Mark added to minutes) Mike is in charge of gators and birds within this
area as well
23 On September 29 2009 at the request of the Gatorland Park Planning
Committee and Board of Directors who were in discussions to remove and destroy
portions of a wading bird rookery with protected species on the north end of the property
to build a larger parking area Plaintiff researched the issue of whether nesting rookeries
containing species of special concern were protected and could be removed after nesting
season Plaintiff consulted with his liaison at the Florida Fish and Wildlife Conservation
Commission and was advised that the nests and habitat of protected species (such as the
wood stork) were protected all year round pursuant to Florida Wildlife Code 68A-27
Plaintiff presented this information to the CEO advising that these nests were protected all
year round pursuant to the Florida Wildlife Code and could not be removed Upon
receiving this information the CEO Mr McHugh (who also happens to be Plaintiffs
brother-in-law) told Plaintiff that he would not have his actions dictated by a minority and
would be shutting everything down and informed Plaintiff that he was therefore
terminated as a result
24 In January 2010 the Gatorland CEO advised Plaintiff that his termination
was a big misunderstanding and that he was being rehired as Program Director to
recommence operations for the 2010 birding season However his rehire would not
include his annual salary or the monies he received from operating the nighttime tours at
the park
25 As was typical at Gatorland when Plaintiff was rehired he was intentionally
misclassified as an independent contractor Despite this fiction Plaintiff received regular
9
employee insurance benefits health life dental and supplementaL for the entire year His
hours and job duties were controlled by Gatorland He was to receive $ 800 per week from
January 2010 though July 31 2010 plus a 10 commission on gross revenues for all
activities of the program Gatorland also provided Plaintiff office space Gatorland business
cards a paid cell phone and other benefits
26 Under Plaintiffs watch the birding and Rookery Tours photography
program in 2010 received acclaim throughout the birding and nature photography circles
in the USA and internationally and made a substantial profit GODWIN received numerous
accolades from the programs visitors for his enthusiastic and engaging demeanor vast
knowledge and genuine love of nature
27 On or about February 16 2010 the Defendants Park Planning Committee
met with a company called Global Expeditions to receive a zip-line proposal for the park
Days later the Park Planning Committee met to discuss recommending the zip-line project
The original planned route approved by the committee which did not affect any protected
bird or bird habitat was unilaterally changed by Defendants CEO so that the zip-line went
directly through the middle of the rookery The members of the Committee voted to
approve the route change over the objections of the Plaintiff A request by Plaintiff to seek
legal guidance on the issue was also denied by the Committee
28 On February 20 2010 at the Gatorland Annual Stockholders Meeting the
shareholders passed a resolution stating that no one at GatorIand including its employees
was to approach any outside or governing body regarding any aspect of the zip-line project
without permission from the Board or the CEO The resolution violates the Florida
Whistleblower Protection Act since this on its face penalizes protected activity under
10
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
accordance with the provisions of section 1533 of this title upon a determination by the Secretary that such areas are essential for the conservation of the species 16 USC sect 1532(5)(A)
Pursuant to 16 usc sect 1538(a)(1)(G) of the Act it is unlawful for any person subject to
the jurisdiction of the United States to violate any regulation pertaining to any
threatened species of wildlife listed pursuant to section 1533 [of the Act] and
promulgated by the Secretary pursuant to authority provided by [the Act] Thus the
violation of any federal regulation enacted under the Act is itself a violation of the Act as a
matter of law
15 Florida law provides similar protections for species like the wood stork For
example Rule 39-4001 of the Florida Wildlife Code prohibits taking attempting to take
pursuing hunting molesting capturing or killing (collectively defined as taking)
transporting storing serving buying selling possessing or wantonly or willingly wasting
any wildlife or freshwater fish or their nests eggs young homes or dens except as
specifically provided for in other rules of Chapter 39 Florida Administrative Code
Likewise Rule 39-27011 of the Florida Wildlife Code prohibits killing attempting to kill
or wounding any endangered species
16 Additionally Rule 68A-27003 of the Florida Wildlife Code states the
following
68A-27003 Designation ofEndangered Species Prohibitions
(1) Federally-designated Endangered and Threatened species
(a) No person shall take possess or sell any of the endangered or threatened species included in this subsection or parts thereof or their nests or eggs except as allowed by
specific federal or state permit or authorization [emphasis added]
(b) The following Federally-designated Endangered and Threatened species shall be afforded the protection afforded under Commission rules and Florida Statutes and under the
6
Federal Endangered Species Act 16 Uscsect 1531 et seq and its implementing regulations Species classified as endangered are identified below by (E) and threatened as (T)
(f)(14) Wood Stork (Mycteria americana) (E)
Thus the Official Lists of Endangered and Potentially Endangered Fauna and Flora in
Florida includes the wood stork listed as endangered by the Florida Game and Fresh
Water Fish Commission
17 The Gatorland Wood Stork colony was formed in 2003 along the eastern
bank area of the Breeding Marsh and Bird Rookery In 2010 twenty-one nests were
recorded with the highest density of Wood Stork nests located in the tree tops at the
planned zip-line route For years these endangered birds could be observed safely by the
public via Gatorlands boardwalk and observation tower However these birds and their
habitat are in danger due to the Defendants recalcitrant decision to build a zip-line1
directly through the Wood Stork rookery in violation of the Endangered Species Act rather
than through another area of the park Plaintiff Godwin pointed out these possible
violations of law to the Defendant in an attempt to have them move the location of the zip-
line As a result Plaintiff was terminated
GENERAL ALLEGATIONS
18 Plaintiffs GODWIN grandfather started Gatorland in 1949 The business has
been family owned and operated to the present day
1 A zip-line consists of a pulley suspended on a cable mounted on an incline It is designed to enable a user propelled by gravity to traverse from the top to the bottom of the inclined cable usually made of stainless steel by holding on or attaching to the freely moving pulley
7
19 Being part of a family business started by Plaintiffs grandfather and run by
Plaintiffs father Godwin was raised at Gatorland and became officially employed by the
company in 1978 fulfilling a number of positions including Head Animal and Reptile
Curator Manager of Alligator Farming and creator of the world famous Gator Jumparoo
show Godwin left Gatorland in 1988 and was subsequently employed by Service
Merchandise and IBM
20 In or about 2003 Plaintiff returned to Gatorland as the IT Manager where
inter alia he was in charge of all technical aspects of the park from the computer phone
and POS systems to digital photography the online gift store and the parks website
21 In 2008 Gatorland instituted a birding and photography program to attract
eco-tourists As a result Gatorland created an eco-tourism program with the official name
of the Rookery Tours Department and made Plaintiff the Program Manager a position for
which he was qualified and the duties of which he performed with distinction In fact
Plaintiff was referred to as Gatorlands Official Birder and he handled all birding tours
and events One of the Plaintiffs duties was to act as Gatorlands official liaison to the
Florida Wildlife Commissions Great Florida Birding Trail of which Gatorland had been a
member of since 200l
22 During an April 30 2009 meeting of Gatorlands Park Operating Committee
Gatorland CEO McHugh advised the parks operating Directors that Plaintiff was in charge
of all birds and gators within the Breeding Marsh This announcement was reflected in
pertinent part from the meeting minutes Mike Godwin is in charge of the Breeding Marsh
with the exception of Adventure Hour Egg Collection and video productions (this was not
8
mentioned but Mark added to minutes) Mike is in charge of gators and birds within this
area as well
23 On September 29 2009 at the request of the Gatorland Park Planning
Committee and Board of Directors who were in discussions to remove and destroy
portions of a wading bird rookery with protected species on the north end of the property
to build a larger parking area Plaintiff researched the issue of whether nesting rookeries
containing species of special concern were protected and could be removed after nesting
season Plaintiff consulted with his liaison at the Florida Fish and Wildlife Conservation
Commission and was advised that the nests and habitat of protected species (such as the
wood stork) were protected all year round pursuant to Florida Wildlife Code 68A-27
Plaintiff presented this information to the CEO advising that these nests were protected all
year round pursuant to the Florida Wildlife Code and could not be removed Upon
receiving this information the CEO Mr McHugh (who also happens to be Plaintiffs
brother-in-law) told Plaintiff that he would not have his actions dictated by a minority and
would be shutting everything down and informed Plaintiff that he was therefore
terminated as a result
24 In January 2010 the Gatorland CEO advised Plaintiff that his termination
was a big misunderstanding and that he was being rehired as Program Director to
recommence operations for the 2010 birding season However his rehire would not
include his annual salary or the monies he received from operating the nighttime tours at
the park
25 As was typical at Gatorland when Plaintiff was rehired he was intentionally
misclassified as an independent contractor Despite this fiction Plaintiff received regular
9
employee insurance benefits health life dental and supplementaL for the entire year His
hours and job duties were controlled by Gatorland He was to receive $ 800 per week from
January 2010 though July 31 2010 plus a 10 commission on gross revenues for all
activities of the program Gatorland also provided Plaintiff office space Gatorland business
cards a paid cell phone and other benefits
26 Under Plaintiffs watch the birding and Rookery Tours photography
program in 2010 received acclaim throughout the birding and nature photography circles
in the USA and internationally and made a substantial profit GODWIN received numerous
accolades from the programs visitors for his enthusiastic and engaging demeanor vast
knowledge and genuine love of nature
27 On or about February 16 2010 the Defendants Park Planning Committee
met with a company called Global Expeditions to receive a zip-line proposal for the park
Days later the Park Planning Committee met to discuss recommending the zip-line project
The original planned route approved by the committee which did not affect any protected
bird or bird habitat was unilaterally changed by Defendants CEO so that the zip-line went
directly through the middle of the rookery The members of the Committee voted to
approve the route change over the objections of the Plaintiff A request by Plaintiff to seek
legal guidance on the issue was also denied by the Committee
28 On February 20 2010 at the Gatorland Annual Stockholders Meeting the
shareholders passed a resolution stating that no one at GatorIand including its employees
was to approach any outside or governing body regarding any aspect of the zip-line project
without permission from the Board or the CEO The resolution violates the Florida
Whistleblower Protection Act since this on its face penalizes protected activity under
10
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
Federal Endangered Species Act 16 Uscsect 1531 et seq and its implementing regulations Species classified as endangered are identified below by (E) and threatened as (T)
(f)(14) Wood Stork (Mycteria americana) (E)
Thus the Official Lists of Endangered and Potentially Endangered Fauna and Flora in
Florida includes the wood stork listed as endangered by the Florida Game and Fresh
Water Fish Commission
17 The Gatorland Wood Stork colony was formed in 2003 along the eastern
bank area of the Breeding Marsh and Bird Rookery In 2010 twenty-one nests were
recorded with the highest density of Wood Stork nests located in the tree tops at the
planned zip-line route For years these endangered birds could be observed safely by the
public via Gatorlands boardwalk and observation tower However these birds and their
habitat are in danger due to the Defendants recalcitrant decision to build a zip-line1
directly through the Wood Stork rookery in violation of the Endangered Species Act rather
than through another area of the park Plaintiff Godwin pointed out these possible
violations of law to the Defendant in an attempt to have them move the location of the zip-
line As a result Plaintiff was terminated
GENERAL ALLEGATIONS
18 Plaintiffs GODWIN grandfather started Gatorland in 1949 The business has
been family owned and operated to the present day
1 A zip-line consists of a pulley suspended on a cable mounted on an incline It is designed to enable a user propelled by gravity to traverse from the top to the bottom of the inclined cable usually made of stainless steel by holding on or attaching to the freely moving pulley
7
19 Being part of a family business started by Plaintiffs grandfather and run by
Plaintiffs father Godwin was raised at Gatorland and became officially employed by the
company in 1978 fulfilling a number of positions including Head Animal and Reptile
Curator Manager of Alligator Farming and creator of the world famous Gator Jumparoo
show Godwin left Gatorland in 1988 and was subsequently employed by Service
Merchandise and IBM
20 In or about 2003 Plaintiff returned to Gatorland as the IT Manager where
inter alia he was in charge of all technical aspects of the park from the computer phone
and POS systems to digital photography the online gift store and the parks website
21 In 2008 Gatorland instituted a birding and photography program to attract
eco-tourists As a result Gatorland created an eco-tourism program with the official name
of the Rookery Tours Department and made Plaintiff the Program Manager a position for
which he was qualified and the duties of which he performed with distinction In fact
Plaintiff was referred to as Gatorlands Official Birder and he handled all birding tours
and events One of the Plaintiffs duties was to act as Gatorlands official liaison to the
Florida Wildlife Commissions Great Florida Birding Trail of which Gatorland had been a
member of since 200l
22 During an April 30 2009 meeting of Gatorlands Park Operating Committee
Gatorland CEO McHugh advised the parks operating Directors that Plaintiff was in charge
of all birds and gators within the Breeding Marsh This announcement was reflected in
pertinent part from the meeting minutes Mike Godwin is in charge of the Breeding Marsh
with the exception of Adventure Hour Egg Collection and video productions (this was not
8
mentioned but Mark added to minutes) Mike is in charge of gators and birds within this
area as well
23 On September 29 2009 at the request of the Gatorland Park Planning
Committee and Board of Directors who were in discussions to remove and destroy
portions of a wading bird rookery with protected species on the north end of the property
to build a larger parking area Plaintiff researched the issue of whether nesting rookeries
containing species of special concern were protected and could be removed after nesting
season Plaintiff consulted with his liaison at the Florida Fish and Wildlife Conservation
Commission and was advised that the nests and habitat of protected species (such as the
wood stork) were protected all year round pursuant to Florida Wildlife Code 68A-27
Plaintiff presented this information to the CEO advising that these nests were protected all
year round pursuant to the Florida Wildlife Code and could not be removed Upon
receiving this information the CEO Mr McHugh (who also happens to be Plaintiffs
brother-in-law) told Plaintiff that he would not have his actions dictated by a minority and
would be shutting everything down and informed Plaintiff that he was therefore
terminated as a result
24 In January 2010 the Gatorland CEO advised Plaintiff that his termination
was a big misunderstanding and that he was being rehired as Program Director to
recommence operations for the 2010 birding season However his rehire would not
include his annual salary or the monies he received from operating the nighttime tours at
the park
25 As was typical at Gatorland when Plaintiff was rehired he was intentionally
misclassified as an independent contractor Despite this fiction Plaintiff received regular
9
employee insurance benefits health life dental and supplementaL for the entire year His
hours and job duties were controlled by Gatorland He was to receive $ 800 per week from
January 2010 though July 31 2010 plus a 10 commission on gross revenues for all
activities of the program Gatorland also provided Plaintiff office space Gatorland business
cards a paid cell phone and other benefits
26 Under Plaintiffs watch the birding and Rookery Tours photography
program in 2010 received acclaim throughout the birding and nature photography circles
in the USA and internationally and made a substantial profit GODWIN received numerous
accolades from the programs visitors for his enthusiastic and engaging demeanor vast
knowledge and genuine love of nature
27 On or about February 16 2010 the Defendants Park Planning Committee
met with a company called Global Expeditions to receive a zip-line proposal for the park
Days later the Park Planning Committee met to discuss recommending the zip-line project
The original planned route approved by the committee which did not affect any protected
bird or bird habitat was unilaterally changed by Defendants CEO so that the zip-line went
directly through the middle of the rookery The members of the Committee voted to
approve the route change over the objections of the Plaintiff A request by Plaintiff to seek
legal guidance on the issue was also denied by the Committee
28 On February 20 2010 at the Gatorland Annual Stockholders Meeting the
shareholders passed a resolution stating that no one at GatorIand including its employees
was to approach any outside or governing body regarding any aspect of the zip-line project
without permission from the Board or the CEO The resolution violates the Florida
Whistleblower Protection Act since this on its face penalizes protected activity under
10
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
19 Being part of a family business started by Plaintiffs grandfather and run by
Plaintiffs father Godwin was raised at Gatorland and became officially employed by the
company in 1978 fulfilling a number of positions including Head Animal and Reptile
Curator Manager of Alligator Farming and creator of the world famous Gator Jumparoo
show Godwin left Gatorland in 1988 and was subsequently employed by Service
Merchandise and IBM
20 In or about 2003 Plaintiff returned to Gatorland as the IT Manager where
inter alia he was in charge of all technical aspects of the park from the computer phone
and POS systems to digital photography the online gift store and the parks website
21 In 2008 Gatorland instituted a birding and photography program to attract
eco-tourists As a result Gatorland created an eco-tourism program with the official name
of the Rookery Tours Department and made Plaintiff the Program Manager a position for
which he was qualified and the duties of which he performed with distinction In fact
Plaintiff was referred to as Gatorlands Official Birder and he handled all birding tours
and events One of the Plaintiffs duties was to act as Gatorlands official liaison to the
Florida Wildlife Commissions Great Florida Birding Trail of which Gatorland had been a
member of since 200l
22 During an April 30 2009 meeting of Gatorlands Park Operating Committee
Gatorland CEO McHugh advised the parks operating Directors that Plaintiff was in charge
of all birds and gators within the Breeding Marsh This announcement was reflected in
pertinent part from the meeting minutes Mike Godwin is in charge of the Breeding Marsh
with the exception of Adventure Hour Egg Collection and video productions (this was not
8
mentioned but Mark added to minutes) Mike is in charge of gators and birds within this
area as well
23 On September 29 2009 at the request of the Gatorland Park Planning
Committee and Board of Directors who were in discussions to remove and destroy
portions of a wading bird rookery with protected species on the north end of the property
to build a larger parking area Plaintiff researched the issue of whether nesting rookeries
containing species of special concern were protected and could be removed after nesting
season Plaintiff consulted with his liaison at the Florida Fish and Wildlife Conservation
Commission and was advised that the nests and habitat of protected species (such as the
wood stork) were protected all year round pursuant to Florida Wildlife Code 68A-27
Plaintiff presented this information to the CEO advising that these nests were protected all
year round pursuant to the Florida Wildlife Code and could not be removed Upon
receiving this information the CEO Mr McHugh (who also happens to be Plaintiffs
brother-in-law) told Plaintiff that he would not have his actions dictated by a minority and
would be shutting everything down and informed Plaintiff that he was therefore
terminated as a result
24 In January 2010 the Gatorland CEO advised Plaintiff that his termination
was a big misunderstanding and that he was being rehired as Program Director to
recommence operations for the 2010 birding season However his rehire would not
include his annual salary or the monies he received from operating the nighttime tours at
the park
25 As was typical at Gatorland when Plaintiff was rehired he was intentionally
misclassified as an independent contractor Despite this fiction Plaintiff received regular
9
employee insurance benefits health life dental and supplementaL for the entire year His
hours and job duties were controlled by Gatorland He was to receive $ 800 per week from
January 2010 though July 31 2010 plus a 10 commission on gross revenues for all
activities of the program Gatorland also provided Plaintiff office space Gatorland business
cards a paid cell phone and other benefits
26 Under Plaintiffs watch the birding and Rookery Tours photography
program in 2010 received acclaim throughout the birding and nature photography circles
in the USA and internationally and made a substantial profit GODWIN received numerous
accolades from the programs visitors for his enthusiastic and engaging demeanor vast
knowledge and genuine love of nature
27 On or about February 16 2010 the Defendants Park Planning Committee
met with a company called Global Expeditions to receive a zip-line proposal for the park
Days later the Park Planning Committee met to discuss recommending the zip-line project
The original planned route approved by the committee which did not affect any protected
bird or bird habitat was unilaterally changed by Defendants CEO so that the zip-line went
directly through the middle of the rookery The members of the Committee voted to
approve the route change over the objections of the Plaintiff A request by Plaintiff to seek
legal guidance on the issue was also denied by the Committee
28 On February 20 2010 at the Gatorland Annual Stockholders Meeting the
shareholders passed a resolution stating that no one at GatorIand including its employees
was to approach any outside or governing body regarding any aspect of the zip-line project
without permission from the Board or the CEO The resolution violates the Florida
Whistleblower Protection Act since this on its face penalizes protected activity under
10
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
mentioned but Mark added to minutes) Mike is in charge of gators and birds within this
area as well
23 On September 29 2009 at the request of the Gatorland Park Planning
Committee and Board of Directors who were in discussions to remove and destroy
portions of a wading bird rookery with protected species on the north end of the property
to build a larger parking area Plaintiff researched the issue of whether nesting rookeries
containing species of special concern were protected and could be removed after nesting
season Plaintiff consulted with his liaison at the Florida Fish and Wildlife Conservation
Commission and was advised that the nests and habitat of protected species (such as the
wood stork) were protected all year round pursuant to Florida Wildlife Code 68A-27
Plaintiff presented this information to the CEO advising that these nests were protected all
year round pursuant to the Florida Wildlife Code and could not be removed Upon
receiving this information the CEO Mr McHugh (who also happens to be Plaintiffs
brother-in-law) told Plaintiff that he would not have his actions dictated by a minority and
would be shutting everything down and informed Plaintiff that he was therefore
terminated as a result
24 In January 2010 the Gatorland CEO advised Plaintiff that his termination
was a big misunderstanding and that he was being rehired as Program Director to
recommence operations for the 2010 birding season However his rehire would not
include his annual salary or the monies he received from operating the nighttime tours at
the park
25 As was typical at Gatorland when Plaintiff was rehired he was intentionally
misclassified as an independent contractor Despite this fiction Plaintiff received regular
9
employee insurance benefits health life dental and supplementaL for the entire year His
hours and job duties were controlled by Gatorland He was to receive $ 800 per week from
January 2010 though July 31 2010 plus a 10 commission on gross revenues for all
activities of the program Gatorland also provided Plaintiff office space Gatorland business
cards a paid cell phone and other benefits
26 Under Plaintiffs watch the birding and Rookery Tours photography
program in 2010 received acclaim throughout the birding and nature photography circles
in the USA and internationally and made a substantial profit GODWIN received numerous
accolades from the programs visitors for his enthusiastic and engaging demeanor vast
knowledge and genuine love of nature
27 On or about February 16 2010 the Defendants Park Planning Committee
met with a company called Global Expeditions to receive a zip-line proposal for the park
Days later the Park Planning Committee met to discuss recommending the zip-line project
The original planned route approved by the committee which did not affect any protected
bird or bird habitat was unilaterally changed by Defendants CEO so that the zip-line went
directly through the middle of the rookery The members of the Committee voted to
approve the route change over the objections of the Plaintiff A request by Plaintiff to seek
legal guidance on the issue was also denied by the Committee
28 On February 20 2010 at the Gatorland Annual Stockholders Meeting the
shareholders passed a resolution stating that no one at GatorIand including its employees
was to approach any outside or governing body regarding any aspect of the zip-line project
without permission from the Board or the CEO The resolution violates the Florida
Whistleblower Protection Act since this on its face penalizes protected activity under
10
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
employee insurance benefits health life dental and supplementaL for the entire year His
hours and job duties were controlled by Gatorland He was to receive $ 800 per week from
January 2010 though July 31 2010 plus a 10 commission on gross revenues for all
activities of the program Gatorland also provided Plaintiff office space Gatorland business
cards a paid cell phone and other benefits
26 Under Plaintiffs watch the birding and Rookery Tours photography
program in 2010 received acclaim throughout the birding and nature photography circles
in the USA and internationally and made a substantial profit GODWIN received numerous
accolades from the programs visitors for his enthusiastic and engaging demeanor vast
knowledge and genuine love of nature
27 On or about February 16 2010 the Defendants Park Planning Committee
met with a company called Global Expeditions to receive a zip-line proposal for the park
Days later the Park Planning Committee met to discuss recommending the zip-line project
The original planned route approved by the committee which did not affect any protected
bird or bird habitat was unilaterally changed by Defendants CEO so that the zip-line went
directly through the middle of the rookery The members of the Committee voted to
approve the route change over the objections of the Plaintiff A request by Plaintiff to seek
legal guidance on the issue was also denied by the Committee
28 On February 20 2010 at the Gatorland Annual Stockholders Meeting the
shareholders passed a resolution stating that no one at GatorIand including its employees
was to approach any outside or governing body regarding any aspect of the zip-line project
without permission from the Board or the CEO The resolution violates the Florida
Whistleblower Protection Act since this on its face penalizes protected activity under
10
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
Florida law Prior to the shareholders meeting the CEO McHugh advised Plaintiff that he
[McHugh] had an ace in the hole with respect to the Breeding Marsh and Plaintiffs report
from the FWC (Florida Fish amp Wildlife Conservation Commission) regarding the year round
protection of protected species nests Nonetheless at this meeting the Plaintiff reported
to the Board about the applicable state and federal laws and regulations regarding the
protected birds at Gatorland
29 On April 1 2010 the CEO sent a confidential email to the Gatorland Board
stating that he [McHugh] had personally removed several Cormorant nests protected under
the Migratory Bird Treaty act without permit This was done after a request by Plaintiff to
build a structure under the nesting location to protect visitors from falling material and
waste At the time of the request CEO McHugh had stated in response It would be cheaper
just to cut the goddamn branches The nest removal was carried out by McHugh
personally during the Plaintiffs days off and despite being in charge of the area the
Plaintiff was not consulted or informed prior to the action performed Plaintiff was
approached by CEO McHugh upon his return and was told if he [GODWIN] had any issues
with what had happened he could go tell someone who cared A few minutes later the
CEO returned to update his remark stating I meant anyone on the BOD NOT any
government or regulatory agency as that is strictly prohibited by the recent board
resolution
30 On April 21 2010 the Plaintiff was removed from the Gatorland Park
Planning Committee over his objections to the planned zip-line route through the Breeding
Marsh
11
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
31 On or about May 7 2010 the CEO requested that Plaintiff provide him with
the then existing wood stork nesting locations Plaintiff provided the CEO with an initial
bird count and a diagram showing the existing nests and nesting history In addition the
Plaintiff sent the CEO the Southeastern Wood Stork Management Guidelines which were
prepared and published by the United States Fish ampWildlife Service
32 On or about May 20 2010 Plaintiff was asked to review the Wood Stork
nesting count diagram prior to the Gatorland Board of Directors meeting Plaintiff
recounted twenty-one active nests and confirmed locations
33 On May 22 2010 during the scheduled Board of Directors meeting the CEO
McHugh presented a zip-line report and completed presentation with no mention of the
endangered Wood Storks the applicable state and federal guidelines or the effect and
possible violations of the Federal Endangered Species Act and the Florida Wildlife Code
Being Gatorlands expert on the birds and the Breeding Marsh Plaintiff was allowed to
report to the Board about the Endangered Species law and guidelines and the possible
impact that the zip-line construction and operation would have Plaintiff advised the Board
about the applicable federal regulations specifically with respect to wood storks
34 In fact pursuant to the published guidelines the area surrounding the wood
stork colony is divided into two zones The primary zone is the most critical area and
must be managed according to recommended guidelines to insure that a colony site
survives The Guidelines further state
The primary zone must extend between 1000 and 1500 feet in all directions from the actual colony boundaries when there are no visual or broad aquatic barriers and never less than 500 feet even when there are strong visual or aquatic barriers The exact width of the primary zone in each direction from the colony can vary within this range depending on the amount of visual screen (tall trees) surrounding the colony the amount of relatively deep
12
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
open water between the colony and the nearest human activity and the nature of the nearest human activity In general storks forming new colonies are more tolerant of existing human activity than they will be of new human activity that begins after the colony has formed
See Habitat Management Guidelines for the Wood Stork in the Southeast Region US Fish amp
Wildlife Service sect V(A)(l)
35 The applicable federal wood stork guidelines also set forth the following
recommended restrictions
a Any of the following activities within the primary zone at any time of the year are likely to be detrimental to the colony [emphasis added]
(1) Any lumbering or other removal of vegetation and
(2) Any activity that reduces the area depth or length of flooding in wetlands under and surrounding the colony except where periodic (less than annual) water control may be required to maintain the health of the aquatic woody vegetation and
(3) The construction of any building roadway tower power line canal
b The following activities within the primary zone are likely to be detrimental to a colony if they occur when the colony is active
(1) Any unauthorized human entry closer than 300 feet of the colony and
(2) Any increase or irregular pattern in human activity anywhere in the primary zone and
(3) Any increase or irregular pattern in activity by animals including livestock or pets in the colony and
(4) Any aircraft operation closer than 500 feet of the colony
Id atsect V(A) (2)
13
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
36 Additionally Plaintiff advised the board that under federal law the word
take means harass or harm and that the proposed route potentially violated federal
law if the 500 foot primary zone requirements were not adhered to
37 At the same meeting the Board was advised that under the instructions of
the CEO the company had issued a press release on the zip-line even before the Board had
the opportunity to vote on the route The Board delayed the vote on the route but
authorized the Park Planning Committee to continue with all current zip-line planning
38 On May 24 2010 McHugh instructed Plaintiff to forward his request on
behalf of Gatorland to present his zip-line project to the local Orange County Audubon
Society of which Plaintiff was a member
39 On May 26 2010 the Orange County Audubon SOCiety advised McHugh that
it could present his zip-line proposal at the organizations final general meeting before the
summer break McHugh was advised by Plaintiff that the meeting would be attended by
many people birders and photographers already familiar with the Gatorland Rookery
40 On May 27 2010 Plaintiff offered to act as a liaison between Gatorlands CEO
and the Orange County Audubon Society regarding the zip-line project The CEO refused In
fact on June 7 2010 McHugh advised the Board members not to communicate with
Plaintiff except for the purported consequences of Plaintiffs actions regarding the zip-line
project and the effect on the rookeries
41 On June 8 2010 Plaintiff received an email from the Board of Directors
adVising him that they saw a conflict of interest between his upcoming role as president of
Orange County Audubon Society and Gatorland The irony here is that prior to the issues
that arose regarding the zip-line as part of Plaintiffs job duties he was expected to join
14
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
such organizations and partner with them to help promote the parks eco-tourism
program In fact before the zip-line project was initiated the Plaintiff had received several
emails from the Gatorland Board congratulating him for becoming a board member of the
Orange Audubon Society
42 On June 9 2010 Plaintiff continued to receive emails from the Board
Members berating him for his opposition to the current zip-line route and its violation of
state and federal wildlife protection laws Some of the emails suggested that he should be
barred from future Board meetings that he was costing the company money and that he
should be fired Plaintiff then advised the CEO that contrary to the allegations and
innuendos from the Board members that he had not provided either the local Audubon or
the FWC or any other agency any information regarding the zip-line prior to the upcoming
presentation the CEO was to give to the local Audubon at Gatorland
43 During the time between the last Board meeting and the upcoming meeting
between the CEO and the local Audubon the CEO had been advising Board Members and
employees that the future of the company and their jobs were being threatened as a result
of Plaintiffs objection to the zip-line route and his insistence that federal and state wildlife
protection laws and regulations be followed In fact on June 10 and 11 2010 Plaintiff
started receiving emails from Gatorland employees criticizing him for his position
44 On or about June 11 2010 Gatorlands Marketing director sent out an email
stating that zip-line route through the Breeding Marsh (and wood stork protected area)
would be the ultimate thrill ride for the park Shortly thereafter the CEO sent out an
email to Plaintiff and the Board with respect to work allegedly done at the St Augustine
Alligator Farm Rookery The CEOs email read in pertinent part
15
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
When I asked them if they secured a USFampW permit before doing the work they said and I quote Hell no why would you ask Since St Augustine Alligator Farm is our most high profile competitor in the rookery jphoto arena I suggest you take a trip up there in the next week or two SO you can see what our competition really has Bottom line they did major work in their rookery including removal of vegetation without a USFampW permit and nobody cared
45 In response to some of these emails on June 11 2010 Plaintiff sent an email
to the Board and the CEO stating in pertinent part
There seems to be a perception that I am opposed to the addition of the zipline attraction and have taken some sort of action against it This is not the case as I believe that if done properly the zipline would be a wonderful new addition to our park and can hopefully generate much needed revenues for Gatorland
Putting aside the philosophical and ethical arguments of running an entertainment venue through the middle of a wildlife sanctuary my primary concerns with the current zipline route through the Breeding Marsh are impact upon the wildlife that call this refuge home and the laws and regulations that exist to protect this wildlife Some of you have stated that you do not feel the zipline will impact the birds within the Rookery that these birds are highly adaptive and will in time become used to the venue For several of the nesting species that inhabit our sanctuary especially the low to mid-level nesters this may very well be true However the top level nesters such as the endangered Wood Stork may indeed be [adversely] affected by irregular human movement that occurs in close proximity to their nesting areas especially if that human movement is on the same level or just above their treetop nests
Besides being a habitat for nesting birds the Breeding Marsh is outside of nesting season a roosting area for many species of protected birds that seek a safe place to sleep It has been proposed that the zipline run at night again fantastic idea but this will definitely impact the birds that roost in the area Anyone that has walked the Breeding Marsh at night when it is full of roosting birds will attest to that statement as many of the roosting birds fly away upon approach
We can all debate about the impact of the zipline route upon the birds however the laws and regulations regarding these protected animals is much clearer It is not my place to provide you all with the guidelines and legal
16
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
statutes regarding our endangered and protected birds I would ask that if any of you are interested in these documents that you ask the CEO if he would provide them for you While I am not a legal expert my interpretation of the state and federal guidelines and statutes shows that Gatorland would be in direct violation of these laws if the proposed Breeding Marsh route is built
46 Shortly thereafter Plaintiff sent the USFampW wood stork guidelines to the
third generation Board members as they had never received them from the CEO (even
though Plaintiff had provided them to the CEO weeks earlier) In response one Board
member wrongly stated that these laws and guidelines were written for wild areas and did
not apply to Gatorland
47 On June 13 2010 the Third Generation Board Members voted to accept the
controversial and potentially unlawful zip-line route That day the CEO sent out an email
that the Breeding Marsh was not a Bird Sanctuary and suggested that Plaintiff was
advancing his personal opinions with false support On one occasion the CEO sent out an
email falsely stating that Plaintiff [was] fighting against the unanimous wishes of this
board the shareholders and the employees and he will cost us valuable time and a large
sum of money fighting a frivolous lawsuit
48 On or about June 23 2010 the Gatorlands CEO advised in an email of his
upcoming plan to solicit conservation groups to partner with and would offer the Orange
County Audubon Society a percentage of zip-line revenues if the group joined Gatorland as
a conservation partner and went along with the zip-line proposal or in other words what
amounted to a veiled attempt to offer them a kickback in return for their acquiescence on
the zip-line project
17
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
49 On June 27 2010 the Defendants CEO made his presentation before the
Orange County Audubon Kissimmee Valley and State of Florida Audubon groups at
Gatorland The CEO advised the Audubon -members and directors present that Gatorland
would give them or any other environmental group that would partner with them a
percentage of zip-line revenues of approximately one percent of the expected one million
dollars in revenues the zip-line was expected to generate if they accepted his zip-line route
through the rookery In response one of the Audubon members stated that partnership
begins on day one and further offered suggestions on moving the zip-line route to an area
that would not disturb the protected wood storks
SO After touring the facilities the Defendants CEO thanked the members of the
Orange County Kissimmee Valley and State of Florida Audubon groups present for their
participation and that he [McHugh] was returning home as it was a Sunday and that he
was sure the Audubon groups would like to meet privately to discuss his proposal without
him and invited the group to continue using the Gatorland Board Room for their
discussion During this meeting the members decided to send a letter to the Defendant
stating the concerns of the impact of the zip-line upon the native birds and to ask for a
route change as no one could understand why the original route (as originally approved by
the Board and presented during the CEOs earlier presentation) was not being
implemented Additionally the members agreed that Audubon could not accept payment
for partnership but would be willing to partner with Gatorland at no cost After the
meeting ended McHugh despite his earlier departure statement was outside the Meeting
Room and again thanked the members on their way out Upon entering CEO McHughs
office McHugh advised Plaintiff that he was fired McHugh told the Plaintiff that he heard
18
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
everything everyone had said in the meeting and accused the Plaintiff of saying that he was
going to fight this to the very end which was blatantly false Plaintiff immediately called
for the Orange County Audubon Director who was just outside of the office to corroborate
no such statement was ever made by the Plaintiff
51 On June 30 2010 the Defendant through its CEO McHugh sent Plaintiff a
letter of termination which among other things cancelled his cell phone account and all
business interests as well as all benefits Plaintiff was further restricted from being on
Gatorland property except during park hours and was prohibited from speaking with any
Gatorland employees during business hours Plaintiff was offered COBRA for his
insurance again demonstrating that he was an employee notwithstanding any suggestion
to the contrary by Defendant
52 After his termination the Defendant through its CEO McHugh further
retaliated against Plaintiff by withholding his commissions owed and by falsely stating that
he was released due to poor performance The CEO intentionally understated revenues to
justify his unlawful retaliatory termination of the Plaintiff
53 Plaintiff has retained the Law Firm of Michael A Panciec PA and has agreed
to pay the firm a reasonable fee for its services
STATEMENT OF CLAIM
RETALIATION AGAINST PLAINTFF IN VIOLATION OF THE FLORIDA WHISTLEBLOWERS PROTECTION ACT
54 Plaintiff incorporates as if fully set forth herein paragraph 1-53 of the within
Complaint as if fully set forth herein
19
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
55 By and through its above-referenced conduct Defendants GATORLAND
parking lot project and zip-line project were in violation of federal law including but not
limited to the Endangered Species Act of 1973 as amended as well as its implementing
regulations and the Florida Wildlife Code which is codified in the Florida Administrative
Code
56 Plaintiff GODWIN by and thorough his complaints and objections to
Defendant GATORLANDs violations of federal and state laws rules and regulations
engaged in protected activity pursuantto sect448102(3) Fla Stat
57 By and through its adverse employment actions taken against GODWIN
including but not limited to taking away Plaintiffs nighttime tours his salary and in
terminating GODWINs employment because of GODWINs objections to GATORLANDs
unlawful activities GATORLAND has violated GODWINs rights pursuant to sect448102(3)
Fla Stat
58 As a direct and proximate result of GATORLANDs unlawful actions as set
forth herein GODWIN has suffered damages and will continue to suffer damages in the
future
WHEREFORE Plaintiff MICHAEL GODWIN demands judgment against Defendant
GATORLAND as follows
A Injunctive relief prohibiting the Defendant from further engaging in unlawful
conduct under the Florida Whistleblowers Protection Act sect44801 et seq Fla Stat
B Reinstatement to his former position or a substantially equivalent position
with the same benefits and compensation or in the alternative front pay
20
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21
C Full backpay including lost wages and fringe benefits other remuneration
and seniority rights
D Compensatory damages
E Attorneys fees and costs of litigation and
F Any other relief that the Court deems appropriate under the circumstances
DEMAND FOR JURY TRIAL
59 Plaintiff demands trial by jury on all issues so triable
Dated April J 2011
Respectfully submitted
LAW OFFICES OF MICHAEL A PANCIER PA COUNSEL FOR PLAINTIFF 9000 Sheridan Street Ste 96 Pembroke Pines FL 33024 Tel 954-862-2217 Fax 954-862-2287
EmnCRcifrta-(QID
lsi Micfi A Pancier Esq Michael A Pancier Esq Fla Bar No 958484
21