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Eleventh Circuit Finds Liquidated Damages Discretionary in FLSA Retaliation Cases

The Eleventh Circuit decided an interesting FLSA retaliation case this week, Moore v. Appliance Direct, Inc.  I have noticed an uptick in the filing of those kinds of suits in recent months/years, so this decision is significant.  The facts are basic - the three employee plaintiffs were delivery drivers for Appliance Direct, and filed an FLSA overtime suit while they were still employed.  During the pendency of the case, Appliance Direct fired the three drivers.  The company claimed that it had outsourced those jobs.  The drivers, as you might expect, filed an FLSA retaliation suit against the company and its CEO.  After some procedural machinations, the retaliation case against the CEO went to jury trial.  The jury found in favor of the drivers, and awarded each $30,000 in damages.  The Court declined to award plaintiffs an additional amount in liquidated damages.

Under the FLSA's overtime and minimum wage provisions, a plaintiff's entitlement to liquidated damages - or, double damages - is a question for the judge, and it depends on whether the defendant company acted in good faith.  For example, a jury may award an FLSA overtime plaintiff a certain sum in unpaid overtime, say $10,000.  If the judge determines that the defendant failed to prove that it acted in "reasonable good faith" with respect to the pay decisions, then an award of liquidated damages (an additional $10,000 in this example) is mandatory.

In Moore, the Eleventh Circuit considered whether the same is true in an FLSA retaliation case, and decided that it is not.  The Court noted that the text of the anti-retaliation provision differs from the text of the unpaid wages provisions, and determined that liquidated damages are discretionary in retaliation cases, even where the defendant has failed to prove it acted in good faith with respect to the alleged retaliatory conduct.  The Court stated that the FLSA "gives the district court discretion to award, or not award, liquidated damages, after determining whether doing so would be appropriate under the facts of the case."

The Court did not explain when it would be appropriate to award liquidated damages in a retaliation case, but it is safe to say that it depends on whether the company has any explanation (other than a retaliatory one) as to why it fired (or took other adverse action) against the employee.  An employer who has no explanation for the employment decision will probably be assessed liquidated damages.  On the other hand, an employer who has a reasonable, non-retaliatory explanation (with contemporaneous written documentation of the decision) may be able to avoid liquidated damages, even when that explanation was insufficient to convince the jury to find in its favor.  The real takeaway from this case is that it is more important than ever for employers to do their duty and document the reasons for terminations.


Per Third DCA, the Florida Civil Rights Act Does Not Prohibit Pregnancy Discrimination

Last week in Delva v. The Continental Group, Inc., the Third District Court of Appeal held that the Florida Civil Rights Act ("FCRA") does not prohibit pregnancy discrimination.  In this blog last year, we discussed and analyzed the status of this issue. 

The Third DCA's decision is good for employers, and is in line with the First DCA and most federal courts that have reached this issue.  But, it is in conflict with the 4th DCA's Carsillo decision from 2008.  In Delva, the Third DCA certified a conflict with Carsillo, which may prompt the Florida Supreme Court to resolve this question once and for all. 

The Third DCA covers Miami-Dade County, while the Fourth DCA covers Broward and Palm Beach. So, this conflict is of particular import to South Florida employment attorneys and their clients. 

Some may ask why this is a big deal.  Women who believe they have a pregnancy discrimination claim can always sue under federal law.  But, if they file under federal law, employers will have a right to litigate the case in federal court.  Some plaintiff's attorneys want to litigate in state court exclusively, and are hesitant to take cases that may require them to be in federal court.  The Delva decision should dissuade those attorneys from filing pregnancy discrimination claims in Miami-Dade County.

So, while Delva doesn't resolve the ultimate question, it takes us one step closer to clarity.  We will keep you posted as to what happens next.


EEOC Finds That Title VII Protects Transgendered Persons

I had previously posted about an Eleventh Circuit case recognizing that discrimination against transgendered persons is prohibited sex discrimination under Title VII.  The EEOC, in a decision issued last month, has adopted that reasoning.  The EEOC stated:  "...[W]e conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based,' and such discrimination therefore violates Title VII."  The linchpin of this decision is the notion that discrimination against transgendered people is differential treatment based on the transgendered person's failure to conform to gender stereotypes, and thus is discrimination based on sex.

This is a potentially important decision because I can foresee employees (and their attorneys) arguing that Title VII protects gay and lesbian persons under a similar rationale.  After all, aren't all instances of sexual orientation discrimination  based on the individual's failure to adhere to a preconceived gender norm (attraction to the opposite sex)?  This is a developing area of the law, and we will have to wait to see what happens next.


Senators Introduce Bill to Overturn Gross v. FBL ADEA Decision

Back in June of 2009, the Supreme Court issued a decision in Gross v. FBL Financial Inc. that many observers felt would make it harder for plaintiffs to prevail on age discrimination claims.  Gross dealt with technical, burden of proof issues.  Most importantly, the decision provided that:  (2) a plaintiff who sues under the Age Discrimination in Employment Act ("ADEA") must prove that he/she was fired "because of" age, i.e. that age was the "but for" reason for the termination; and, (2) the plaintiff always has the burden of proof in an ADEA case - the burden never shifts to the defendant to show that it would have made the same decision absent any consideration of the plaintiff's age.  This framework differs from Title VII, which requires that a plaintiff show only that a protected characteristic (race, sex, etc...) was "a motivating factor".  If the plaintiff in a Title VII case makes that showing, the burden then shifts to the defendant to justify its decision. 

When Gross came down, there was talk of Congress passing legislation to overturn it, much the same way it acted to overturn the Eleventh Circuit's Lily Ledbetter decision.  Many may recall that President Obama made Ledbetter a big campaign issue in 2008.  But, so far Congress has done nothing on Gross.  But, just this week three senators (Harkin, Grassley, and Leahy) introduced a bill that would overturn Gross, and make the burden of proof for ADEA cases the same as the burden for Title VII cases.

My question is, why now?  At least in my experience, the Gross decision has had a relatively minor practical effect on ADEA litigation.   It has affected the ADEA jury instructions, but little else.  On the whole, it has not made it easier for defendants to get age discrimination cases dismissed (via summary judgment or any other avenue) before trial.  And, any good plaintiff's attorney would probably like their chances in an age discrimination jury trial, regardless of what technical burden of proof language is contained in the jury instructions.

This is a bi-partisan bill, and it has the support of the AARP and other influential groups.  And, much like Ledbetter, in a campaign year this issue might have some traction for the president.  Still, at least in my view, Gross has been much ado about nothing and, even if passed, this bill will not have earth shattering effects.


Eleventh Circuit Rules For Transgender Employee in Sex Discrimination Case

Gender identity discrimination has become something of a hot topic these days.  Just last month Massachusetts became the latest state to enact a law prohibiting employers from discriminating against employees on the basis of gender identity.  The Massachusetts law defines gender identity as "gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth".  If you're like me, you may find that definition a little confusing. 

Whether confusing or not, gender identity cases are guaranteed to be thought provoking, to push buttons, and to make news.   The Eleventh Circuit issued a ruling in such a case yesterday.  The court affirmed a Georgia trial court's granting of summary judgment in favor of a transgender woman, Vandiver Elizabeth Glenn, who had been fired from her job with the Georgia state legislature.  She had been hired as a man, but later announced that she was in the process of becoming a woman.  She also said that she would begin coming to work dressed as a woman.  Her ultimate boss, Sewell Brumby, fired her because he thought that her "intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn's coworkers uncomfortable." 

So, there was no dispute why the employee was fired - the only dispute was whether the firing was unlawful.  The court found that it was.   The court found that "discrimination against a transgender individual because of her gender non-conformity is sex discrimination".  The court also stated that "[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype."

Since Glenn worked for the government, the case was brought under the Equal Protection Clause.  But, the opinion indicates that the same rationale would  apply if a transgender person brought a similar claim under Title VII against a private employer. 

Some will ask if this case opens a can of worms. The defendant in this case argued that concerns about Glenn's using the women's restroom justified the termination.  The court dismissed the argument as "speculation".  The fact is that gender identity issues don't arise much in the workplace.  Most employers will never have to deal with them.  But, those that have to need to be cognizant that treating a person differently because they don't conform to your gender-related expectations ("he is too effeminate to be a salesperson"; "she is too masculine to meet with this client")  can be problematic.

One thought I had was this - this case makes pretty clear that federal law protects transgender people from employment discrimination.  But, as we know, federal law offers no such protection for gay and lesbian people.  Does anyone think that makes any sense? 


Big Victory for Duane Morris - Judge Lenard Vacates Final Judgment in Retaliation Case

Huge victory yesterday for my partners Mike Casey and Rich Tuschman (he of this blog), associate Teresa Maestrelli and paralegal Pia Mendoza.  They tried a Title VII and state law retaliation case last summer before Judge Joan Lenard (SD Fla).  Our client was Royal Atlantic Developers, Inc.  The plaintiff was Eliuth Alvarez, who had passed away before the trial.  The case already had a long history, as we had initially won summary judgment back in 2008 on the discrimination claims and on the retaliation claim, but the Eleventh Circuit had reversed on the retaliation count. 

In any event, the jury returned a small verdict (about $25,000) for the plaintiff's estate.  The plaintiff's counsel, Mike Feiler and Martin Leach of Feiler and Leach, filed a petition seeking $546,250.00 in prevailing party fees. 

In litigating that fee petition, we discovered that the plaintiff had filed for bankruptcy at some point during the proceedings, but had failed to notify us or the trial court that the true plaintiff was now the bankruptcy trustee.  The plaintiff had also failed to supplement her interrogatory responses to disclose the later-filed bankruptcy. 

We filed a motion to vacate the judgment, based on two arguments:  (1) that the plaintiff  lacked standing to pursue the matter after the bankruptcy filing; and, (2) that the plaintiff was judicially estopped from pursuing this case because the plaintiff took inconsistent positions in the discrimination/retaliation case and in the bankruptcy case.

The plaintiff argued that this was a "no harm, no foul" situation, and that our arguments were based on a "technicality".

Yesterday, Judge Lenard entered an Order vacating the judgment.  She ruled in our favor on both arguments, and stated that the plaintiff’s “failure to disclose her bankruptcy proceeding in this case and Plaintiffs’ (and Plaintiffs’ counsel’s) ‘strategic’ and steadfast refusal to disclose the inconsistent positions has resulted in manipulation of both courts. In short, the record overwhelmingly supports an inference that the inconsistent positions taken were calculated to make a mockery of the judicial system.”

Judge Lenard dismissed the plaintiff's case, but also indicated that the defendant was entitled to judgment in its favor.

Congratulations to Mike, Rich, Teresa, and Pia, and also to the good folks at Royal Atlantic!


Considering the Proximate Cause Limitation Under the “Cat’s Paw” Theory of Liability

The “cat’s paw” theory of liability in employment discrimination cases received much attention earlier this year, when the United States Supreme Court approved its use in a case under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).  The Court held in Staub v. Proctor Hosp., ___ U.S. ___, 131 S.Ct. 1186 (Mar. 1, 2011), that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.*

While the “cat’s paw’ theory is viable in employment discrimination cases, it is important to understand how the concept of proximate cause may limit its application. A recent decision by the Eleventh Circuit Court of Appeals illustrates this limitation.

The plaintiff in Brooks v. Hyundai Motor Manufacturing Alabama, LLC, Case No. 10-14700 (11th Cir., October 20, 2011) (unpublished) had a team leader, Gunn, who allegedly spoke to her with exasperation and said “you black folks” or “nigger.”  It was this racial animus that Brooks claimed led to her termination.

Brooks was fired for leaving her shift without the permission of a member of management, as company policy required.  Brooks claimed that Gunn, her team leader, gave her permission to leave her shift early.  But Gunn was not a member of management.

Gunn’s version of events was different. He claimed that he allowed Brooks only to go to “medical” to be excused, and that he told her if she left without going to medical, she would be deemed to have left without authorization.  At the end of the shift, Gunn reported to manager Akers that Brooks had left without authorization.

Ultimately two human resources employees, Swegman and Kimble, investigated the matter and made the decision to terminate Brooks.  Brooks did not claim that Swegman and Kimble harbored any racial animus. 

The question that the court addressed was whether Gunn’s alleged racial animus influenced the decision, such that the company could be held liable under a “cat’s paw” theory.

Brooks argued that, absent Gunn’s actions, management may not have noticed plaintiff’s violations.  Thus, according to Brooks, Gunn’s actions, and the racial animus that motivated them, influenced the termination decision, and the company could therefore be held liable under a “cat’s paw” theory.

But the court rejected this theory on the grounds  that Swegman and Kimble determined, apart from anything that Gunn said, that terminating Brooks was appropriate.  Indeed, the company’s policy was clear:  Because Gunn was not a member of management, he could not have validly given permission for Brooks  to leave her shift early. 

In support of its ruling, the court cited to the following language of Staub:

But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

Staub, 131 S.Ct. at 1193 (emphasis added).

In other words, if the employer’s independent investigation determines that the adverse action (here, the termination decision) is justified, apart from the biased supervisor’s recommendation, then the “cat’s paw” theory does not apply.  Under such circumstances, the mere fact that the biased supervisor made a recommendation to terminate the employee is insufficient to impose liability on the employer.  Although the recommendation may have triggered a chain of events that ultimately caused the employee’s termination, the employer’s independent investigation ensures that the biased recommendation is not deemed the proximate (i.e. the “legal”) cause of the decision.


*  As noted by the Court, the term “cat’s paw” derives from an Aesop’s fable that was put into verse by La Fontaine in 1679. In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.  In the employment discrimination context, the discriminator is the monkey who induces the decision-maker (the cat) to carry out his discriminatory purposes.   



Is Pregnancy Discrimination Illegal Under Florida Law? Courts Are Divided.

The Florida Civil Rights Act, which. among other things, prohibits sex discrimination in employment, does not prohibit pregnancy discrimination, according to a recent decision by a federal judge in Florida.

If you think that sounds crazy, think again. The court’s decision in Duchateau v. Camp Dresser & McKee, Inc., Case No. 10-6-0712-CIV-ZLOCH/ROSENBAUM (S.D. Fla., October 4, 2011) is supported by logic and precedent. However, courts are divided on this issue.

Here’s the logic. Congress enacted Title VII in 1964, thereby prohibiting sex discrimination in employment. Five years later, the Florida legislature passed the Florida Human Relations Act, which prohibited discrimination based on "race, color, religion, or national origin."In 1972, the Florida legislature amended the Florida Human Relations Act to ensure "freedom from discrimination because of sex." In 1976, the Supreme Court ruled in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) that Title VII did not prohibit pregnancy discrimination. Because Florida law provides that a Florida statute patterned after a federal law will be given the same construction as the federal courts give the federal act, it was clear after Gilbert that the Florida Human Relations Act did not prohibit pregnancy discrimination, either. Subsequent amendments to the Florida Human Relations Act (including changing its name to the Florida Human Rights Act ("FHRA") did not add pregnancy as a protected status, despite the Supreme Court’s decision in Gilbert.

In 1978, in response to Gilbert, Congress enacted the Pregnancy Discrimination Act ("PDA"), which amended Title VII by re-defining sex discrimination to include discrimination on the basis of pregnancy. Yet Florida did not amend the FHRA in the years following the enactment of the PDA. In 1991, Florida’s First District Court of Appeal in O’Loughlin v. Pinchback, 579 So. 2d 788, 791-92 (Fla. 1st DCA 1991), concluded that the FHRA did not prohibit pregnancy discrimination.

In 1992, the Florida legislature amended the FHRA, including changing its name to the Florida Civil Rights Act of 1992. Still, despite O’Loughlin, these amendments did not modify the statute’s references to sex discrimination or otherwise suggest an intention to prohibit pregnancy discrimination. The language of the FCRA prohibiting discrimination on the basis of sex continued to include the pre-PDA language of Title VII. Thus, the Florida Civil Rights Act does not prohibit pregnancy discrimination.

That’s the logic, anyway. In Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), Florida’s Fourth District Court of Appeals reached a different conclusion. Noting that when Congress enacted the PDA, it "expressed its disapproval of both the holding and the reasoning of Gilbert," the Fourth DCA concluded that "Congress made clear in 1978 that its intent in the original enactment of Title VII in 1964 was to prohibit discrimination based on pregnancy as sex discrimination." Because the FCRA is patterned after Title VII, the Fourth District reasoned, "it follows that the sex discrimination prohibited in Florida since 1972 included discrimination based on pregnancy[.]"

I don’t believe Carsillo makes sense. Whether Congress intended to prohibit pregnancy discrimination when it enacted Title VII would seem to be irrelevant in light of the U.S. Supreme Court’s holding in Gilbert that Title VII did not prohibit pregnancy discrimination. The Supreme Court is the final word on this issue. That’s why it took an amendment to Title VII, the PDA, to prohibit pregnancy discrimination under Title VII. Because the Florida statute was patterned after the pre-PDA version of Title VII, and was never amended to prohibit pregnancy discrimination, it would seem to follow that the Florida Civil Rights Act does not prohibit pregnancy discrimination.

That is not to suggest that women are without recourse in Florida if they are discriminated against because of their pregnancy: they can always sue under Title VII. But until the Florida Supreme Court decides the issue, whether a woman can state a cause of action for pregnancy discrimination under the Florida Civil Rights Act will depend on the court in which she litigates her case. In addition to the split among the First and Fourth district courts of appeal, federal courts in Florida are also divided on this issue. Compare Boone v. Total Renal Labs., Inc., 565 F. Supp. 2d 1323, 1326-27 (M.D. Fla. 2008) (holding that the FCRA does not provide a claim for pregnancy discrimination), Whiteman v. Cingular Wireless, LLC, Case No. 04-80389-CIV-PAINE, D.E. 114 at 11 (S.D. Fla. May 3, 2006) (same), aff’d, 273 F. App’x 841 (11th Cir. 2008) (per curiam), and Frazier v. T-Mobile USA, Inc., 495 F. Supp. 2d 1185, 1187 (M.D. Fla. 2003) (same), with Constable v. Agilysys, Inc., 2011 WL 2446605, at *6 (M.D. Fla. June 15, 2011) (concluding that the FCRA does provide a cause of action for pregnancy discrimination), and Terry v. Real Talent, Inc., 2009 WL 3494476, at *2 (M.D. Fla. Oct. 27, 2009) (same).


Infrequent Activities May Be Essential Job Functions, Rules Eleventh Circuit

The law giveth, and the law taketh away.  The ADA Amendments Act of 2008 (ADAAA) makes it significantly more difficult for employers to defend ADA cases.  But a recent ruling by the Eleventh Circuit Court of Appeals that even infrequent activities may constitute essential functions of an employee’s position makes it clear that employers still have powerful defenses available to them. 


First, some background.  The ADAAA and its implementing regulations expand the definition of “disability,” and even provide that the definition of “disability” should be “broadly” construed” to the “maximum extent permitted” by the terms of the ADA.  Thus, the focus in ADA cases is now on whether discrimination occurred, rather than on whether the plaintiff has a disability. 

One argument that discrimination did not occur is that the employee was unable to perform the essential functions of his job, with or without a reasonable accommodation.  This defense stems from the definition of a “qualified individual,” which is one of the elements a plaintiff must prove as part of his prima facie case.  A “qualified individual” is “someone with a disability who, ‘with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8)). 

The Eleventh Circuit Court of Appeals has long noted that “essential functions ‘are the fundamental job duties of a position that an individual with a disability is actually required to perform.’”  Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007) (quoting Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000) (per curiam)).


In Cremeens v. The City of Montgomery, Alabama, Case No. 10-14695 (11th Cir., May 31, 2011), the court tackled the question of how frequently an employee is required to perform such duties in order for them to be deemed “essential.” 

Cremeens was a fire investigator for the City of Montgomery who, because of his disability, was unable to engage in firefighting.  The city argued that it was not required to retain Cremeens because he could not perform the “essential function” of firefighting.  Cremeens argued that fire investigators rarely had to engage in firefighting and that this was not an essential function of the position.


To resolve this dispute, the court cited the ADA’s implementing regulations, which provide a non-exclusive list of factors indicating whether a particular function is essential.  They include:  (1) the employer’s judgment as to which functions are essential; (2) the written job descriptions of the position; (3) the amount of time spent on the job performing the function; and (4) the consequences of not requiring the individual to perform the function. 29 C.F.R. § 1630.2(n)(3).  With respect to the first factor, the court noted that courts give “substantial weight” to the employer’s judgment as to what functions of a position are essential, “but that factor alone is not conclusive.” 

In Cremeens, it was undisputed that fire investigators rarely engage in firefighting activities.  In addition, there is nothing in the court’s opinion to indicate that the city had a written job description for fire investigators that included firefighting as an essential function.  Nevertheless a combination of the first factor (the employer’s judgment as to which functions are essential) and the fourth factor (the consequences of not requiring the individual to perform the function)  was enough to carry the day for the city:

Assistant Chief Davis, the division chief of the Fire Investigations Division, testified that Fire Investigators may be ordered to engage in fire suppression activities by either a superior officer or an on-scene fire commander and that failure to comply could subject them to disciplinary action. Davis also testified that, even absent such an order, Fire Investigators have a responsibility to engage in fire suppression activities if the lives of other firefighters or civilians are in danger and fire suppression units are not on the scene. Fire Investigators may engage in fire suppression activities infrequently, but that does not mean firefighting is a nonessential function of the position. Indeed, the firefighting function is essential whenever the need arises, and the consequences of not requiring a Fire Investigator to engage in fire suppression activities when necessary could be dire.

Accordingly, the court held that Cremeens was not a “qualified individual” within the meaning of the ADA, and affirmed the district court’s grant of summary judgment in favor of the city.

For employers within the Eleventh Circuit (Florida, Georgia and Alabama), Cremeens establishes the important principle that a job function need not be performed frequently in order to be deemed “essential.”  If the employer regards the job function as essential, and can show that the consequences of not performing this function would be detrimental to the employer, the employer may be able to show that the function is essential even if it is rarely performed.  In Cremeens, the employer was able to make this showing in the absence of a job description that reflected its judgment that firefighting was essential.  But, to increase the likelihood of prevailing on this defense, employers should include all of the essential functions of a position in a written job description.  


“Old Man” Comments Not Enough to Warrant Trial in Age Discrimination Case

As a general rule, when a plaintiff in an age discrimination case alleges that a decision maker frequently referred to him as an “old man,” and the plaintiff was replaced by a younger employee, the plaintiff probably has a pretty decent case. At the very least, the judge is going to let the case go to trial.  Generally speaking… 

But what if the plaintiff got fired the day after he allowed a truck carrying a 70-feet steel beam to slide 15 feet into his employer’s wall, knocking the wall down?  And what if customers had complained about the plaintiff’s job performance? And what if the plaintiff admitted that he was excessively chatty, disrupted other employees, and slept on the job?  Will the “old man” comments and the fact that he was replaced by someone younger be enough to defeat the employer’s summary judgment motion?

Not according to the Eleventh Circuit Court of Appeals.  In Ritchie v. Industrial Steel, Inc., Case No. 10-10945 (11th Cir. May 19, 2011), the court, faced with the above facts, affirmed the district court’s grant of summary judgment to the employer.  The court noted that the plaintiff failed to show that the age-related comments were related to the decision to terminate his employment; thus, they were not direct evidence of discrimination. And, the plaintiff failed to show circumstantial evidence of discrimination because he could not demonstrate that the employer’s explanation that he was terminated for performance-related reasons was pretextual. 

The Ritchie case serves as a reminder to employment law practitioners to evaluate all the facts of a case before making a prediction about the outcome.  Discriminatory comments by decision makers are never good facts for an employer.  But sometimes, an employee’s poor performance is so apparent and indisputable that even discriminatory comments by the decision makers are not enough to get the case to a jury.  In other words, when an employee is terminated after he accidentally knocks down his employer’s wall, he’s got a tough row to hoe to prove discrimination.  Generally speaking…


Third DCA Erases $2.6 Million Racial Discrimination and Retaliation Verdict

Florida’s Third District Court of Appeals has reversed the jury verdict and judgment of a Miami-Dade Circuit Court in favor of the plaintiff for nearly $2.6 million.  Ruling that the plaintiff failed to meet the legal requirements for establishing racial discrimination or retaliation under the Florida Civil Rights Act, the appellate court ruled that the trial judge should have directed a verdict in favor of the employer. The case is Sean St. Louis v. Florida International University, Case No. 3D08-2316 (Fla. 3d DCA, March 30, 2011).

The court’s opinion is straightforward and sensible.  The plaintiff could not establish his discrimination claim, the court ruled, because he could not show that similarly situated employees outside his protected class were treated more favorably.  As for the plaintiff’s retaliation claim, the plaintiff produced no evidence that the decision makers knew of his allegations of discrimination, so they could not have retaliated against him.

The Third DCA’s opinion reads like a federal district court’s order granting summary judgment to the employer.  The difference, of course, is that this case went to trial at great expense to the employer.  That’s not surprising, because state court trial judges, unlike their federal counterparts, are generally reluctant to grant motions for summary judgment before trial, or motions for directed verdict at trial.  That’s why defense counsel remove employment cases to federal court, if possible. Here, that wasn’t possible because there were no federal claims, and there was no diversity of citizenship between the parties.  The saving grace for the employer was that cases under the Florida Civil Rights Act are supposed to be analyzed under the same rigorous standards as federal Title VII claims.  And under those standards, the Third DCA ruled that the employer was entitled to a defense verdict, the jury’s feelings to the contrary notwithstanding.




How Much is Too Much? Emotional Distress Damages in Florida

 Most federal and state employment discrimination statutes allow for the recovery of "noneconomic damages", sometimes referred to as "emotional distress damages”.  This concept is frightening to many employers, because, unlike damages based on lost wages, the potential amount of emotional distress damages bears no relation to funds allegedly lost or spent by the plaintiff.  The typical situation is that the plaintiff sues for wrongful termination, and claims that he/she suffered "emotional distress" as a result of the termination.  The plaintiff typically has not treated with a doctor or psychologist, but still claims that he/she has experienced loss of appetite, lack of sleep, nausea, and so forth.  If the case goes to trial, the plaintiff's attorney will ask the jury to award a particular dollar amount (usually many thousands of dollars) to compensate for these troubles, and, if the plaintiff wins on liability, and depending on how emotionally charged the jury is, the jury may make a large emotional distress damages award.

The 2nd DCA in Earnie Hare Ford, Inc. v. Atkinson, reviewed a situation where the jury had awarded over $3.5 million in emotional distress damages, even though the plaintiff “presented no proof of physical injury or emotional pain and suffering.”  The court surveyed other cases, and noted that courts in so-called “garden variety” discrimination cases (where the plaintiff has received no medical treatment or psychological counseling) have been “reluctant to uphold damages awards which exceed six figures”, and that one court had stated that such damages “should not exceed the $5,000 to $30,000 range”.  The 2nd DCA ultimately overturned the $3.5 million award.

This decision is good news for employers who may be frightened by the uncertain nature of this category of damages.  While it remains difficult for defense attorneys to calculate with any certainty the potential monetary range of noneconomic damages, it is safe to say that Florida state courts are not going to uphold “runaway” awards.


Supreme Court Broadens Scope of Title VII Anti-Retaliation Provision

I think we would be remiss if we did not in this space mention the Supreme Court's January 24 decision in Thompson v. North American Stainless, LP.  It is a groundbreaking decision, which will affect employers everywhere, including, of course, in Florida.  Here is my firm's client alert, which explains the decision.  In a nutshell, the decision allows employees who have not engaged in any "protected activity" whatsoever to bring a retaliation claim when another employee with whom they are "closely related to or associated with" has engaged in protected activity.  In other words, if you are related to or are close friends with a co-employee who has made allegations of discrimination, you are probably also protected.  This will potentially open the door to claims from all sorts of employees.  Employers who want to fire an employee for performance-related reasons will now have to consider whether the employee is sufficiently close to another employee who has brought a complaint.  How close is close enough is up for debate, as the Supreme Court declined to provide guidance on that question.






Green Bay Packers Tie Issue Illustrates That Potential Jurors Care Foremost About Fairness of Employment Action

Those of you who follow football may have seen the report about the Green Bay Packers fan who was fired for wearing a Packers tie to work.  The employee at issue was a salesman at a Chicago-area automobile dealership.  He apparently showed up to work on Monday - the day after the Packers beat the Chicago Bears in the playoffs - wearing a Packers tie.  His boss instructed him to remove the tie, and the employee refused.  Ultimately, the dealership terminated the employee.

This story has been all over ESPN, both television and radio, during the last 24-hours.  The focus has been on the "fairness" - or perceived lack thereof - of the decision.  For example, Mike Golic on the Mike and Mike ESPN radio program this morning said that he thought that the employee did not deserve to be fired, and that the employer should have instead merely sent the employee home for the day. 

In addition to illustrating the inanity of sports talk these days, the debate over the issue is also a good window into how potential jurors approach wrongful termination cases.  Most people know that it is perfectly lawful in Florida, and most other jurisdictions, to fire an employee for any reason or no reason at all, as long as the termination does not violate a contract (emploment contract, union contract, etc..) or is not discriminatory (on the basis of race, sex, disability, etc...).  Based on what has been reported, the dealership had every right to fire the employee in this case. 

But, when I prepare wrongful termination cases for trial, I always counsel the client that jurors usually are more concerned about the fairness of the termination than any technical legal issues involved.  In other words, a juror will often question whether the employee "deserved" to be fired instead of whether the termination was unlawful.  The debate about this rather insignificant issue illustrates that maxim very well.  Employers who intend to take employment discrimination cases to trial need to make sure not only that the termination decision was devoid of discriminatory motive, but also that the non-discriminatory reasons for the termination will resonate with the jury.


The Florida Employer

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Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.