Florida Employment Lawyer Blog

The blog takes great pride in being as neutral as possible on legal issues and court opinions - Sarelson Law Firm (unlike most employment law firms) represents both employees and employers in employment disputes and avoids ideological based representation. But the Eleventh Circuit issued an unpublished opinion yesterday that really bothers me. The case is Ash v. Tyson Foods, and the blog has previously discussed the case the last time the Eleventh Circuit issued an opinion in the case.

The case is a race discrimination case under 42 U.S.C. s. 1981. In the original trial, the jury returned a verdict in favor of the employee and awarded both compensatory and punitive damages. The trial judge granted the employer's motion for a directed verdict - i.e., the judge overruled the jury's decision and entered a verdict fo the employer. The employee, who won (at least according to the jury), successfully appealed to the Eleventh Circuit and the Eleventh Circuit correctly ruled that there was evidence to support the jury verdict, and thus the trial judge was wrong to overrule the jury.

Despite this initial ruling, the Eleventh Circuit also affirmed the trial judge to the extent there was insufficient evidence to support the award of punitive damages.

When the case was remanded to the trial judge, the case was retried on both liability and damages. (Frankly the blog is confused as to why there was even a retrial -- the jury's original verdict should have been reinstated and a trial on punitive damages, if warranted and wanted by the plaintiff, should have been approriate).

At the second trial, a different jury again found in favor of the plaintiff and again awarded substantial compensatory and punitive damages. The employer made the same motion to the judge to have the judge overrule the jury's verdict. This time the trial judge -- no doubt taking his cue from being reversed by the Eleventh Circuit the last time - denied the motion and entered judgment in favor of the plaintiff.

Plaintiff won two jury trials and the first ruling on liability was already affirmed by the Eleventh Circuit. Case closed, right? Nope.

This time the employer again appealed making the exact same argument to the appellate court that was rejected the first time - namely, the failure of any evidence to support the jury's finding in favor of the employee.

As luck would have it, this time the Eleventh Circuit agreed with the employer, and again reversed the trial judge but in the exact opposite direction. Poor trial judge. The first time he ruled for the employer and was reversed. The second time he ruled for the employee on the exact same legal issue and the court of appeals reversed him again this time in favor of the employer.

The decision, despite being fairly lengthly, detailed and controversial, was "unpublished" by the Eleventh Circuit. This means the court does not want its own opinion to be binding in future cases. The case was also issued "per curiam," which means no one judge wishes to have his or her name associated with preparing the opinion. A visiting trial judge sitting by designation wrote a simple but strong dissent that got it exactly right -- two different juries found in favor of the employee and awarded compensatory and punitive damages.

Call me old fashioned but I take the Seventh Amendment's right to a jury trial seriously. The blog hopes the case is reheard en banc and perhaps petitioned to the Supreme Court if necessary.

The case is here:

Ash v. Tyson Foods

After years of fighting, it appears this Tyson's chicken is fully roasted.

Normally plaintiffs' employment lawyers in Florida will be awarded $350 to $425 an hour (on the high-end) by federal judges after prevailing at trial. A federal judge in Texas awarded a plaintiff's attorney a whopping $750 per hour. The plaintiff turned down an offer of $40,000, and won a $3.6M jury verdict. Given those numbers -- $750/hour seems cheap. Full story is here.

The blog normally does not cover matters where the Firm loses, but this appeal is worth discussing. On the eve of a civil rights trial brought by an inmate against three police officers under 42 U.S.C. s. 1983, Sarelson Law Firm was appointed pro bono counsel to represent the indigent inmate via the Volunteer Lawyers' Project. The Firm was very successful in its last VLP assignment and won compensatory and punitive damages in a bench trial.

Unbeknownst to the Firm, one of the police officers filed an interlocutory appeal on qualified immunity grounds and the Firm was required to handle the appeal as well. It was fully briefed during the summer of 2009 and oral argument was held in May 2010. Last week, the Eleventh Circuit issued a lengthy but unpublished opinion reversing the district court and dismissing the supervisory police officer from the lawsuit.

The crux of the opinion - and the crux of the appeal as agreed by all parties - was whether the inmate's medical condition was a "serious medical need" as that term is used in Fourteenth Amendment violations. The inmate was repeatedly kicked in the face and was bleeding profusely from the nose and mouth. The blood eventually clotted and resulted in difficulty breathing. Both the magistrate judge and the district judge rejected the officer's argument and allowed the case to proceed to trial. The Eleventh Circuit reversed as a matter of law and decided that the inmate merely had a nose bleed that was not sufficiently serious to warrant a constitutional violation.

The full opinion is here:

Fernandez v. Miami Dade

Although the blog is disappointed in the loss, we take great pride in representing the poor in pro bono civil rights cases.

In yet another setbeck for the overconfident employment defense bar, the Atlanta-based Eleventh Circuit Court of Appeals reversed a Miami federal judge's summary judgment ruling and reinstated an employment retaliation lawsuit for trial. In Alvarez v. Royal Atlantic Developers, Judge Carnes, in his usual colorful and literary manner, noted that the employer's confession that the employee's complaint of discriminatory treatment constituted protected activity under Title VII and confession that the employer terminated the employee because of the complaint should have resulted in the plaintiff's claims "sailing through" summary judgment. Once you read this early passage, you pretty much can stop reading:

"The company admits that Alvarez was fired sooner instead of later because of that letter, which it concedes is protected conduct. Given that admission and concession, one would think Alvarez's retaliation claim would sail past summary judgment, although the damages remedy might be trimmed because she eventually would have been fired anyway. But the retaliation claim did not drift, much less sail, past the shoals of summary judgment. It ran aground when the district court accepted as valid the company's four proffered reasons for firing Alvarez sooner instead of later. The two most interesting of those reasons are that it would be "awkward and counterproductive" to keep a disgruntled employee around and that Alvarez could vindictively use her position as controller to sabotage the company's operations."

For some reason too many employers and defense counsel wrongly believe that employers can come up with whatever excuse is necessary to justify an otherwise illegal termination or demotion. Unfortunately there are several bad opinions that remain binding that seem to suggest that the employer's hypothetical argument that it would have taken certain hypothetical action even if, hypothetically, the employer did not also consider the employee's statutorily protected rights is a defense that prevents an unlawfully terminated employee from even having his or her day in court. This "hypothetical" defense argument is a legal fiction that has no place in a court of law that concerns itself with what actually happened, as opposed to what might have happened.

The complaint Alvarez opinion is reproduced in its entirety here:

Alvarez v. Royal Atlantic Developers

Congrats to Martin Leach for this appellate win. If you have questions about this opinion, or any questions concerning employment discrimination and retaliation, feel free to contact an experienced employment lawyer today.

A group of Mexican janitorial workers in Chicago will receive proceeds from a $350,000 settlement with their employer, Chicago-based Gonella Bakery, Inc. The suit alleged that a mid-level manager routinely made derogatory remarks to the Mexican workers regarding their national origin. The company also agreed to enter into a consent decree to ensure that similar violations of the Title VII do not happen again. The EEOC's announcement is here.

Sexual harassment and gender-based disrimination is illegal -- and it does not matter whether the person being harassed or discriminated against is a man or woman. Although Title VII was designed to empower women in the workplace, there is nothing in the law that limits its applicability to women.

Men are the new protected class that routinely find themselves being subjected to a hostile working environment because of their gender. Men with female bosses and female co-workers potentially face the same time of misconduct that women with male bosses can look to Title and the Florida Civil Rights Act to prevent. And men are facing a hostile work environment not just from women, but from other men. If a gay male supervisor harasses a straight male subordinate, and the harassment is of sexual nature, then it is illegal and violates federal and state law. Similarly, if a straight male supervisor harasses a gay male subordinate, then that too is illegal.

Bottom line -- all Americans have a constitutional right to be free from sexual harassment in the workplace. Of course not all flirtations or off-color jokes constitute illegal sexual harassment, but anyone who has every worked in even a medium sized office can testify to that "that guy" or "that girl" who takes it to whole new level. Too many courts have wrongly overcomplicated the analysis by considering the gender and sexual orientation of the harasser and the victim. This is silly and has absolutely no basis in federal or Florida anti-discriminatio and anti-retaliation statutes.

The Miami Herald, courtesy of the AP, has a great article on the subject. Sexual harassment against men is probably vastly underreported because most men would never complain or file a lawsuit because of the fear of embarassment or stigmatization. But that too shall pass in time.

Questions about sexual harassment? Don't wait until you're fired or you resign in protest -- it may be too late. Contact an experienced sexual harassment lawyer today.

Federal civil rights actions against police officers under 42 U.S.C. s. 1983 are normally limited to the actual police officers who violate the federal constitutional rights. Police departments and supervisors are not "vicariously liable" for the misconduct of subordinate officers in the way an employer is vicariously liable for the negligent acts of its employees.

The only limited exception is when the supervisory police officers could have intervened to stop the subordinate officers from violating the citizen's constitutional rights. But these lawsuits are rarely successful because supervisors do not ordinarily sit on the sidewalk and watch a street officer beat the crap out of a person for no reason.

For every general rule there's an exception -- and the Eleventh Circuit just opined on a major one. The court affirmed a district court ruling that refused to dismiss a First Amendment lawsuit filed against the City of Miami's former police chief and other supervising offiers. The case stems from the massive protest at the 2004 Miami summit of the Free Trade Association of the Americas.

The relevant portion in Keating v. City of Miami is here:

"Because [Chief] Timoney, Fernandez, and Cannon had the authority, and exercised that authority, to direct the subordinate officers to engage in unlawful acts to violate the Protesters' First Amendment rights, they likewise had the authority to stop the subordinate officers from exercising such unlawful acts. Therefore, because Timoney, Fernandez, and Cannon knew that the subordinate officers would engage in unlawful conduct in violation of the Protesters' First Amendment rights by directing such unlawful acts, they also violated the Protesters' First Amendment rights by failing to stop such action in their supervisory capacity. Thus, their alleged failure to stop the subordinate officers from acting unlawfully
caused the First Amendment violations,"

The whole opinion is here. The case will be sent back to Judge Martinez for trial. Stay tuned -- I anticipate the City of Miami will file a petition for certiorari with the Supreme Court.

For years the EEOC race discrimination lawsuit against Abercrombie & Fitch was one of the most talked about matters among employment lawyers. It seems the on-again off-again love affair between the EEOC and Abercrombie is on-again, or at least the signs of an early courtship have appeared.

This week a Muslim-American woman, working with the Council on American-Islamic Relations, filed an EEOC charge of discriminination against Abercrombie when she refused to not wear her religiously mandated hijab and when she ultimately was terminated for violating Abercrombie's "look" policy. CAIR's press release is here.

This past September, the EEOC actually filed suit against Abercrombie in Oklohoma on behalf of another Muslim-American who was refused a retail position because of her hijab. Both the September lawsut and new EEOC charge allege that Abercrombie's "look" policy (which precludes head coverings) is facially discriminatory against observant Muslims, Jews and Sikhs.

Abercrombie's "look" policy is not the only grooming manual to come under fire recently. As the blog reported earlier, Orlando-based entertainment giant Disney has twice been sued alleging that its "Disney Look" policy was facially discriminatory against Muslims, Sikhs and Jews.

As a practical matter, it is extremely difficult for employers to argue that an employee's head covering violates a "business necessity" of the company or that it would frequire substantial resources to accommodate the head covering. In 2010, there is no morally or intellectually defensible arguement that someone who works at a Ft. Lauderdale cash register or greets new arrivals at an Orlando hotel must be denied the position due to a religiously mandated turbon or yarmulke.

Sarelson Law Firm has experience representing victims of religious discrimination by major publicly traded corporations. Are you afraid? Need to speak to someone confidentially?

In a lengthy, 53 page opinion, the Atlanta-based Eleventh Circuit Court of Appeals affirmed, in large part, a jury verdict against the Alabama Department of Transportation. The plaintiff, a black employee, alleged that she was repeatedly denied various promotions on account of her race. The jury agreed and the court agreed with the jury on several, not not all of the claims. What makes the case so interesting is that the court went to great lengths to explain the history of racism in Alabama state agencies and that black state employees are still feeling the lingering effects of decades old bigotry.

The court also affirmed the trial court's granting of injunctive relief -- i.e., the plaintiff was reinstated to a sufficiently senior position that would compensate her for the years of lost promotions. Public employees, unlike private employees, are likely to be reinstated or promoted by court order.

The opinion is here:
Opinion

Do you work for Florida, Miami-Dade County, the City of West Palm Beach? Contact an employment lawyer experienced with suing state agencies.

Ordinarily one would not think that child labor is a significant problem in the United States. And generally speaking, you would be right. But it is not unheard of and a recent series of raids by the Department of Labor illustrates the problem. Over the past several months, several local malls -- including the Dolphin Mall, the Sawgrass Mills Mall and the Gardens Malls -- have been cited for violating child labor laws.

The United States has few laws prohibiting child labor (and Florida has even less), but one of the few laws routinely violated is the prohibition on children 17 years old and younger engaged in hazardous activities. Anything considered "hazardous" is off-limits, but the regulations do not specify what is and what is not deemed hazardous. Machine equipment, trash compactors and forklifts are generally hazardous, but what about an industrial kitchen or gym equipment?

Questions about federal and state child labor laws? Contacted an experienced employment attorney today.