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11th Circuit Court Holds Employer Must Show More Than the Safety Concern is Well-Grounded

In Booth, et al. v. Pasco Cty., FL, et al. (July 3, 2014), emergency-service workers brought claims against the County and union alleging retaliation pursuant to Title VII and the Florida Civil Rights Act. During employment, Plaintiff Booth filed a grievance against his supervisor, and named Plaintiff Brown as a witness. Booth was previously warned he would be transferred if he filed a grievance, and was. Brown was then threatened by the supervisor, and after filed his own grievance. Plaintiffs complained to the county, and sought union assistance, but found no help. They then filed EEOC charges. The union then sent around a memo about the Plaintiffs’ discrimination charges, which ended up on a station bulletin board with the Plaintiffs’ names highlighted. The memo also mentioned that the claims may result in increased union member fees for legal expenses. Plaintiffs were then shunned from their coworkers, denied vacations, available overtime, and shift swaps. Plaintiffs filed additional EEOC charges about the memo and harassment, as well as a lawsuit. After, a newspaper article about the lawsuit was posted to the station bulletin board. Plaintiff Booth ripped it up, and someone retrieved the ripped posting, taped it together, and re-posted it, as well as posting it on the station computer wallpaper. Booth then filed a grievance, which was deemed untimely. Four months later, the County reprimanded the captains for “doing nothing” about the situation. Brown and Booth then filed additional EEOC charges for retaliation due to the newspaper posting incident.

Plaintiffs then filed affidavits in litigation, claiming that they feared for their safety at work. The County Risk Manager testified she believed the affidavits meant the Plaintiffs’ fear rendered them unable to perform duties.  They were ordered for a fitness-for-duty examination. They were told they could return to work when they passed.

At trial, the jury returned verdicts against both defendants. Subsequently, the County moved for judgment as a matter of law, claiming there was insufficient evidence of retaliatory motive, and the district court granted the motion. However, the district court denied the union’s similar motion. The court then denied Plaintiffs’ motion for a new trial against the County, as well as the union’s same motion. The 11th Circuit heard all issues on appeal.

Reversing the district court’s entry of judgment in favor of the County, the 11th Circuit ordered judgment be entered against the County on the verdicts as returned, but affirmed on all other matters.

Regarding the County, the 11th Circuit discussed that Title VII retaliation claims require proof that desire to retaliate is but-for cause for action, and the question is not whether the County’s legitimate safety concern is well-grounded, but whether it motivated the County. Concluding the jury could find the County’s action was retaliatory, the 11th Circuit found that while there was evidence that the County’s employees may have believed their actions, they ordered the examinations without speaking to Plaintiffs or supervisors. Also, the County failed to investigate the potential factual basis for Plaintiffs’ statements.

With regard to the Union, the jury found the union retaliated against Plaintiffs by naming them in the memo and editorializing about ramifications to union members. The union claimed liability violates the First Amendment free speech. Reasoning that the union’s memo could be “viewed as part and parcel of a course of retaliation that included not only speech but conduct,” the 11th Circuit agreed with the district court that the union’s speech was a “call for reprisal” and “threat of further retaliation” by intentionally inviting members to retaliate against Plaintiffs.

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* Cathleen Scott is licensed to practice in Florida only.

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