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11th Circuit Update: Discrimination, Whistleblower

Claude R. Short v. Mando American Corporation, _____F.3d _____ (11th Cir. February 27, 2015).

Brief Summary: This is an employment discrimination case brought under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000 et seq., 42 U.S.C. § 1981 (§ 1981), and state tort law. The case involved consolidated appeals of a final judgment based on a jury verdict of a §1981 claim and summary judgment on Title VII and remaining §1981 claims of racial discrimination, national origin, discrimination and retaliation. Eleventh Circuit affirmed the lower court’s decision.

The Plaintiff’s complaint asserted seven counts, only three of which were relevant to his appeal. Under 42 U.S.C. § 1981 and Title VII, he raised claims of racial discrimination, national origin discrimination, and retaliation. In support of those claims, he alleged that he had suffered three adverse employment actions at the hands of his employer: (1) he was demoted from his position as Director of Quality Control in December 2008; (2) he was demoted from his position as Director of Customer Service and Warranty and transferred to Michigan in June 2009; and (3) his employment was terminated in August 2009. According to the Plaintiff, the employer demoted him and eventually discharged him on account of his race (white) and his national origin (American), and because he exercised his Title VII and § 1981 rights to oppose the employment policies as discriminatory.

As for the §1981 demotion claim, the Eleventh Circuit affirmed the district court’s judgment, and found that the Plaintiff’s arguments for new trial had no merit.

The Court also found that under the McDonnell Douglas framework, the employer proffered a legitimate non-discriminatory reason for its decision to transfer the Plaintiff to a different location (Michigan). Specifically, the Court found that cost cutting measures, and need to improve services to its customers located in that specific geographic area, were sufficient. Further, the Court found that the Plaintiff’s focus regarding the employer’s “business judgment” and subjective reasons for its decisions, were not sufficient to demonstrate that the employer’s reasons for the transfer were pre-textual.

The Court also found that an alleged statement of the Plaintiff’s supervisor that he “wanted a Korean” in the Plaintiff’s position could be considered circumstantial evidence of discriminatory animus, however it was “isolated and unrelated to the challenged employment decision” because the statement was made six (6) months before the employer made the decision to transfer the Plaintiff to Michigan. In sum, the Court concluded that this statement was insufficient to establish a genuine fact issue on pretext.

With regard to the discriminatory termination claim, the Court found that the employer’s reason for terminating the client (failure to accept company’s relocation offer) was not pretext for discrimination. The Court also found that employers decision to cut costs and provide better service to customers in a certain geographic location were not a pretext for retaliatory conduct. The Court affirmed the lower court’s ruling on the employer’s summary judgment as to these remaining claims.

Bernard F. Campbell v. Secretary of Department of Veterans Administration, _____F.3d _____ (11th Cir. February 20, 2015).

Brief Summary: Employment case wherein Plaintiff alleged race discrimination, gender discrimination, religious discrimination, and retaliation under Title VII of the Civil Rights Act of 1964. Eleventh Circuit upheld lower court’s decision to grant employer’s summary judgment, as well as the denial of Plaintiff’s post-judgment motions for fraud on the court and disqualification.

The Court affirmed the lower court’s granting of the employer’s summary judgment motions, finding that the employer had given legitimate, nondiscriminatory reasons for terminating the Plaintiff and that the Plaintiff had not presented any evidence that the employer’s reasons were pretext for discrimination.

Thereafter, the Plaintiff filed a post-judgment motion pursuant to Rule 60(d)(3), which permits a court to “set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3). The Plaintiff claimed that the district judge, along with the three judges on this Court who affirmed the district court’s judgment, defrauded the court by ignoring his evidence, failing to consider his arguments, and preventing his case from going to a jury. The lower court found no evidence of fraud and denied the motion and the Plaintiff appealed.

The Eleventh Circuit found that the facts proffered by the Plaintiff in support of his claim of fraud on the court, directly related to the merits of his employment claims and not the issue of fraud. Therefore, the Eleventh Circuit held that the Plaintiff’s motion was a “misguided effort to relitigate claims already raised and rejected” and affirmed the lower court’s decision.

Bruce Ayala v. Sheriff, Broward County Florida, et al., _____F.3d _____ (11th Cir. February 19, 2015).

Brief Summary: Plaintiff originally brought suit under the Age Discrimination in Employment Act, 29 U.S.C. § 621, and the Florida Civil Rights Act of 1992 (FCRA), Fla. Stat. Ann. § 760.01. Plaintiff appealed the lower court’s grant of summary judgment in favor of his employer. Eleventh Circuit affirmed.

The plaintiff claimed that his employer eliminated his position in the crime lab as part of a reduction in force (RIF) based on his age. The Eleventh Circuit found that the plaintiff did not sufficiently demonstrate that he was qualified to be transferred to another available position at the time of his discharge. The Court further held that the ADEA does not require employers to transfer or rehire workers during the course of an RIF. To the contrary, it just requires that “a discharged employee who applies for a job for which she is qualified and which is available at the time of her termination must be considered for that job along with all other candidates, and cannot be denied the position based upon her age.” In addition the Eleventh Circuit placed particular importance that in situations involving an RIF, the position must be available and the employee must have applied for the position in order to establish a prima facie case of age discrimination.

In sum, the Eleventh Circuit concluded that it wasn’t enough for the plaintiff to merely demonstrate that he was qualified for his current position. In situations involving total elimination of a position for a non-discriminatory reason, the plaintiff must show that they were qualified for another available job with that employer at the time of discharge, and applied for that position. The Court affirmed the lower court’s decision.

Cynthia Turner v. Bob Inzer, _____F.3d _____ (11th Cir. February 17, 2015).

Brief Summary: Plaintiff originally filed suit alleging a violation of the Florida Whistleblower’s Act and retaliation. The employer prevailed with a motion for summary judgment as to all counts, and Plaintiff and employer filed cross appeals related to the lower court’s decision as to an award of attorney’s fees in relation to same. Eleventh Circuit affirmed lower court’s decision regarding fee award.

The district court granted summary judgment on all claims in favor of the employer, which was affirmed by the Eleventh Circuit on appeal. The district court also denied fees for the employer with respect to the Whistle Blower Act, finding that, although the plaintiff’s whistle blower claim was frivolous, it was not brought in bad faith, as required by the Whistle Blower Act for an award of fees to an employer. However, the district court awarded the employer attorney’s fees because it found that the Plaintiff’s Title VII claims were frivolous.

The Eleventh Circuit found that the plaintiff did not bring the Whistleblower claim in bad faith. However, the Court found that the plaintiff’s Title VII claims were frivolous because the suspension, transfer and probation of the plaintiff were reasonable disciplinary measures perceived by the employer to be acts of insubordination. In addition, the Eleventh Circuit found that the lower court’s holding that the employer should only receive a portion of fees that it would not have paid, but for the frivolous claim was the correct standard, and the award by the district court of only the costs that would have been incurred absent the whistleblower claim, was appropriate. Eleventh Circuit affirmed lower court’s decision.

Ferenc Fodor v. Eastern Shipbuilding Group, _____F.3d _____ (11th Cir. February 3, 2015).

Brief Summary: Plaintiff brought two employment discrimination claims: one for nationality discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2; the other for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112. The Plaintiff appealed the district court’s grant of the employer’s summary judgment. Eleventh Circuit affirmed.

The plaintiff claimed that the employer refused to promote and ultimately terminated him because of his nationality and disability. In addition, he claimed that his employer was responsible for a hostile work environment.

As to the nationality and disability discrimination claims, the Eleventh Circuit found that that the Plaintiff failed to proffer any evidence refuting the employer’s assertion that a hiring freeze was a legitimate reason for refusing promotion. Further the Eleventh Circuit held that the Plaintiff’s failure to show up to work on three consecutive days was also a legitimate non-discriminatory reason for the decision to terminate employment.

With regard to the hostile work environment claim, the Eleventh Circuit found that the employer sufficiently demonstrated that they exercised reasonable care to prevent and promptly correct the harassing behavior and that the Plaintiff unreasonably failed to take advantage of any preventative opportunities. Specifically, the Court found that the employer proffered evidence that it had an anti-harassment policy which was sufficient to demonstrate reasonable care to prevent harassment. IN addition, the Court found that the employer proffered evidence that the Plaintiff failed to report the harassment, which was sufficient to demonstrate he failed to take advantage of the preventative measure (anti-harassment policy). Finally, the Court concluded that because the employee never gave the employer “an opportunity to address the situation and prevent further harm from occurring,” and because the employer took reasonable care to prevent harassment beforehand, they were shielded from liability for a hostile work environment. Eleventh Circuit affirmed.

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* Cathleen Scott is licensed to practice in Florida only.

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