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Title VII Claims Barred by Res Judicata Effect of Arbitrator’s Civil Service Ruling


An arbitrator’s decision upholding an employee’s termination under civil service rules barred, under the doctrine of res judicata, the employee’s subsequent Title VII claims, according to a recent decision by a Florida federal judge in Palmer v. Miami-Dade County, Florida (Case No. 10-23478-CIV-COOKE/TURNOFF (S.D. Fla., April 25, 2011).  The decision sheds light on when Title VII claims are barred by earlier state court proceedings. 

The facts of the case are as follows.  Defendant, Miami-Dade County, employed Plaintiff, Sebrina Palmer, as a police sergeant. On August 22, 2008, Defendant terminated Plaintiff's employment. Plaintiff is an African-American female. Defendant stated, as grounds for her termination, that Plaintiff falsified payroll records. Plaintiff challenged her termination pursuant to Miami-Dade County Code § 2-47, the County's classified civil service hearing process. An arbitrator was appointed.  After a two-day hearing, he wrote a report concluding that Plaintiff violated County rules by failing to take reasonable steps to ensure that the payroll documents she submitted were accurate. The arbitrator recommended that Plaintiff's termination be upheld. The County Manager sustained the arbitrator’s decision and confirmed Plaintiff's dismissal. Plaintiff appealed the County Manager's final order to the Appellate Division of the Circuit Court for the Eleventh Judicial Circuit of Florida. The Appellate Division, upon review of the entire administrative record, issued a mandate affirming the County Manager's decision. 

Plaintiff subsequently brought suit in federal court, alleging that her termination was racially and sexually discriminatory in violation of Title VII.  Defendant moved for summary judgment, arguing, among other things, that Plaintiff’s claim was barred by res judicata, otherwise known as claim preclusion.

The court agreed.  The court began its analysis by noting that the doctrine of res judicata may bar Title VII claims where a state court affirms an administrative agency's decision, and two criteria are met: (1) the state court would grant preclusive effect to the judgment, and (2) the state proceedings comport with the procedural requirements of the Fourteenth Amendment's Due Process Clause.  The court held that the first criterion was met because Florida courts grant preclusive effect to quasi-judicial administrative decisions.  The court held that the second criterion was met because  state proceedings comport with the procedural requirements of the Fourteenth Amendment's Due Process Clause. Under Miami-Dade County Rules §§ 2-47 and 2-47.1, a dismissed employee is entitled to notice, an opportunity for a full hearing, compulsory process and representation by counsel before the hearing examiner, with layers of administrative and judicial review.

Turning to Florida law, the court held that the doctrine of res judicata applies if four conditions exist: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality in the person for or against whom the claim is made.  When the four identities are present, res judicata attaches to all matters which were or could have been determined.

The outcome of the case turned mainly on the second factor:  Were Plaintiff’s administrative proceeding and her Title VII action the “same” cause of action for res judicata purposes? 

The court held that they were: Plaintiff's administrative proceeding and this federal action consist of the same cause of action for purposes of res judicata analysis under Florida law. “The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.” Albrecht, 444 So. 2d at 12. In the administrative proceeding, Plaintiff challenged the propriety of her dismissal. Here, she also argues that Defendant improperly dismissed her. In both proceedings, Plaintiff must proffer evidence regarding her dismissal. In both proceedings, Plaintiff argues that she was subject to disparate treatment, and therefore her dismissal was improper. Thus, the facts and evidence are the same in both causes of action -- Plaintiff must proffer evidence and show facts to support her contention that Defendant improperly dismissed her because it had a discriminatory intent and the County's reasons for dismissing her were pretextual and illegitimate. The court went on to hold that Plaintiff could, and did, litigate the issue of disparate treatment in her administrative proceeding.  Thus, res judicata barred the re-litigation of her claims in U.S. District Court.

But what happens when the opposite situation presents itself, i.e. when a plaintiff litigates her Title VII claim in federal court, and then attempts to litigate a similar discrimination claim under state law? 

According to Florida’s Fourth District Court of Appeals, the state law claim may or may not be barred by res judicata, depending on whether the plaintiff also litigated state law claims in federal court. 

In Andujar v. Nat'l Prop. & Cas. Underwriters, 659 So. 2d 1214 (Fla. 4th DCA 1995), the Fourth DCA held that a federal court’s dismissal on the merits of Title VII claim did not bar a claim arising from the same core of operative facts asserted under the Florida Human Rights Act.  The court reasoned that because the plaintiff did  not allege any state law claims in her first action, and thus did not seek to have the federal district court assert jurisdiction over such claims under its pendent jurisdiction, the federal and state claims were separate and distinct for purposes of federal claim preclusion rules.

Less than a year later, however, the Fourth DCA considered a similar situation in Dalbon v. Women's Specialty Retailing Group, 674 So. 2d 799, 801 (Fla. 4th DCA 1996), and reached a different result.  In Dalbon, the plaintiff, in addition to asserting a Title VII claim, had asserted a state law claim for intentional infliction of emotional distress, which the federal court dismissed on summary judgment.  The federal court subsequently dismissed the Title VII claim after a trial on the merits.  Plaintiff subsequently filed state law claims in state court for negligent misrepresentation and negligent supervision and retention.  On appeal, the Fourth DCA held that the new claims were barred by res judicata. The court reasoned that “[h]aving presented one of her state law claims arising from the termination of her employment to the federal court, plaintiff cannot now attempt to raise new state law claims in state court arising from the same facts and from the same primary rights and duties as were litigated previously.” 

 
 
 
 

Defending Against Harassment-Related Tort Claims in Florida


Suppose an employee claims workplace harassment and sues her employer asserting an assortment of tort claims – intentional infliction of emotional distress, negligent supervision, negligent retention, and battery.  And suppose further the employee has declined to assert any statutory claims under Title VII or the Florida Civil Rights Act.  Can the employer move to dismiss the complaint on the grounds that the plaintiff’s tort claims are really claims of workplace harassment that must be pleaded under Title VII or the Florida Civil Rights Act? 

The clear answer is no.  Title VII and the Florida Civil Rights Act do not preempt tort claims.  And Florida and federal pleading rules allow a plaintiff to assert alternative theories of recovery under the same facts.  A plaintiff can assert Title VII claims, FCRA claims, or tort claims – or a combination thereof. 

These basic rules did not prevent the defendant in a recent case from making the novel argument that the plaintiff’s tort claims were barred because they were “actually” claims for sexual harassment that must be pleaded under Title VII or the FCRA.  And, strangely enough, the Broward County Circuit Court judge agreed with the defendant, and even sanctioned the plaintiff’s attorney for failing to comply with the pre-suit procedures set forth under Title VII and the FCRA.  Last week, Florida's Fourth District Court of Appeals reversed the trial court’s ruling in Gerber v. Vincent’s Men’s Hairstyling, Inc., Case No. 4D09-5059 (Fla. 4th DCA March 30, 2011). 

So what should a defense lawyer when faced with common law claims of harassment?  My strategy is to attack the claims on their merits, if possible.  For example, the tort of intentional infliction of emotional distress requires a showing that the defendant’s conduct was “so outrageous in character and extreme in degree as to go beyond the bounds of decency and be deemed utterly intolerable in a civilized society.”  Garden variety harassment claims will not meet that high standard.  Negligence claims are subject to attack because they require the violation of a common law duty, and there is no duty under common law to prevent workplace harassment. 

Still, a motion to dismiss may not always be possible.  To state a cause of action for civil battery, a plaintiff merely has to allege that the defendant intentionally inflicted a harmful or offensive contact upon the plaintiff.  Allegations of sexual harassment often are accompanied by a claim of battery.  In such a case, if the plaintiff alleges the requisite elements for battery, I answer the complaint and get to work on discovery.  As the Gerber case illustrates, there is nothing to be gained from asserting that the plaintiff’s tort claims are “actually” something else.  The claims will ultimately stand, or fall, on their merits.

 
 
 
 
 

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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.
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.