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Filing Complaint with DOL Doesn't Preclude FMLA Lawsuit, Says Eleventh Circuit

The Family and Medical Leave Act authorizes employees to file a complaint against their employer with the Department of Labor, which can then file an enforcement action.  The FMLA also permits employees to file suit directly against their employer in court. But what happens if an employee does both?  That was the question posed in a recent decision by the Eleventh Circuit Court of Appeals, Spakes v. Broward County Sheriff's Office (11th Cir. January 31, 2011).

The employer argued that the FMLA's implementing regulations require an employee to choose either a DOL complaint or a private lawsuit, and that an earlier-filed complaint with the DOL bars a subsequent private lawsuit.  Specifically, the employer relied on 29 CFR 825.400(a), which provides:

(a) The employee has the choice of: (1) Filing, or having another person file on his or her behalf, a complaint with the Secretary of Labor, or (2) Filing a private lawsuit pursuant to section 107 of FMLA.

This language seems pretty clear: the phrase "the employee has the choice of..." seems to require, well, that the employee choose one or the other. On its face, then, the employer's argument seems to have merit.

The problem with the employer's argument, according to the court, was that the regulations are inconsistent with the statute. The FMLA itself provides that an employee's right to bring an action is terminated only upon the filing of a complaint by DOL. That did not happen here, so the court held that the employee had the right to bring a private lawsuit.  "[W]here the statute provides a right to a cause of action and lists the limitations, regulations cannot contravene the statute by terminating the right where the statute did not so authorize," wrote the court.  In other words, as any first year law student can tell you, the statute trumps the regulations. And in this case, that means the employer loses.  


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.


The Florida Employer

Reporting employment and immigration law developments that affect Florida employers.

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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.