Sunbeam Television Corp. v. Mitzel, No. 3D11–0249, 2012 WL 126784 (Fla. 3rd DCA Jan. 18, 2012): Failing to Present Claims in Administrative Phase Can Prove Costly

January 30, 2012

On January 18, 2012, the Third District Court of Appeal released an opinion which should be read by any employment lawyer, or non-lawyer, who may be considering filing an employment discrimination claim in Florida.  In Sunbeam Television Corp. v. Mitzel, 3D11-0249, the Court reversed a jury verdict which had been rendered in Mitzel’s favor in the amount of $790,000 for past lost wages and benefits, $97,000 for future wages and benefits, and $50,000 for punitive damages.  Why?  Two reasons.

First, Mitzel and her attorneys made the mistake of filing an administrative claim based only on age discrimination.  After the administrative process was complete, Mitzel filed a complaint in State court, again alleging discrimination based on her age.  However, as the case progressed to the summary judgment stage, Mitzel’s claim evolved into an age-plus-gender discrimination claim, which, according to the Court, “might allow Mitzel to muddy the waters, by reference to the Title VII standard for recovery, where a claim of discrimination can be advanced on a plaintiff’s claim that being an older woman was “a motivating factor” for her employer’s action.”  Sunbeam Television Corp., 2012 WL 126784 at *4  (citing Gross v. FBL Finan. Srvcs., Inc., 557 U.S. 167 (2009)).  Because Mitzel had not claimed age-plus-gender discrimination during the administrative proceedings, the Third DCA found that Mitzel’s age-plus-gender discrimination claim was administratively barred, and should not have been allowed to be presented to the jury.

Second, the Third DCA found that the trial court committed reversible error by allowing Mitzel’s expert to testify in generic terms as to the entire broadcast news industry, rather than about any specific practices of the employer, Sunbeam Television Corporation.  The Court described the expert’s testimony as “  . . . no more than an unsupported running theory that age discrimination against women is pervasive within the broadcast news industry.”  Sunbeam Television Corp., 2012 WL 126784 at *9.  If that  comment were not enough to let you know how the Court felt about the quality of the expert’s testimony, the Court summarized the effect of the expert testimony as follows:

In sum, Dr. Howard–Byrd’s testimony reached beyond the scope of this case to come to conclusions she was not competent to reach, and served only to interject irrelevant conjecture into the jury’s consideration, all to Sunbeam’s prejudice.  This pervasive discussion of a generalized distaste for older woman in the news industry by this expert unfairly suggested Mitzel’s termination was caused by the same kind of discrimination, and certainly diverted the jury from its task of deciding whether Mitzel’s age was the “but for” cause of her contract being terminated in this case.  This was wholly improper and so prejudicial as to warrant reversal and a new trial.

Sunbeam Television Corp., 2012 WL 126784 at *10.

What is to be learned from this case?   Two things.  First, if you rely on expert testimony during litigation, be sure that your expert witness is able to testify as to your specific case, as opposed to the industry in general.  Second, and perhaps most important, when you are filing an administrative complaint, be sure to check off any and all boxes/categories which might encompass the discrimination claim.

Filed under Age Discrimination, Employment Discrimination, Florida Third District Court of Appeal Tagged with , , , ,

Recent Florida Decisions Applying the McDonnell Douglas Analysis to Title VII Employment Discrimination Claims

October 25, 2011

In my last post, I discussed the administrative process for employment discrimination claims.  In this post, I will briefly describe the burden-shifting analysis often applied in employment discrimination cases.

South Florida’s employment discrimination attorneys know that generally, Title VII discrimination claims can be proven in two ways: (1) by showing disparate treatment, or (2) by showing a pattern or practice of discrimination.  See City of Miami v. Hervis, 65 So. 3d 1110 (Fla. 3d DCA 2011).  In cases where there is no direct evidence of discrimination, and the evidence is circumstantial, discrimination will have to be shown by meeting the requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).   See Smalley v. Holder, No. 09–21253–CIV, 2011 WL 649355, *6 (S.D. Fla. Feb. 22, 2011) (citing Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004)).  See also Holland v. Gee, Case No.: 8:08–cv–2458–T–33AEP, 2011 Wl 940291, *2 (M.D. Fla. Mar. 17, 2011).  The seminal opinion of McDonnell Douglas dealt with the “proper order and nature of proof in actions under Title VII,” and established a three-part burden-shifting framework.  See Ashmore v. F.A.A., No. 11–CV–60272, 2011 WL 3915752, *2 (S.D. Fla. Sept. 2, 2011) (quoting McDonnell Douglas, 411 U.S. at 794).

Pursuant to McDonnell Douglas, the plaintiff has the initial burden of establishing a prima facie case of discrimination or retaliation.  Once the plaintiff makes this prima facie showing, there is a rebuttable presumption that the defendant unlawfully discriminated or retaliated against the plaintiff and the burden shifts back to the defendant to proffer a legitimate, non-discriminatory or non-retaliatory reason for the adverse employment action.  If the defendant proffers a legitimate, non-discriminatory or non-pretextual reason, the burden shifts back to the plaintiff to show that the proffered reason is a pretext.  See Smalley, 2011 WL 649355 at *6 (citing McDonnell Douglas, 411 U.S. at 802, 804).  A plaintiff’s showing must be made by a preponderance of the evidence.  See Burgos-Stefanelli v. Sec’y, U.S. Dept. of Homeland Sec., 410 Fed. App’x 243, 246 (11th Cir. 2011).

It should be noted that in the analysis, the defendant’s burden is a burden of production, not persuasion.  See Holland, 2011 WL 940291 at *2.  A defendant “must merely produce evidence that could allow a rational fact finder to conclude” that its actions were not motivated by discriminatory intent.  See Holland, 2011 Wl 940291 at *2 (citing Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998).  If the defendant meets his burden, a plaintiff must “come forward with evidence, including the previously produced evidence establishing her prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.”  See Id. at *2 (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)).  According to the Middle District of Florida, when a defendant volunteers a legitimate, nondiscriminatory reason for an adverse employment action, the Court should skip the McDonnell Douglas analysis altogether and proceed directly to the question of whether the plaintiff has sufficient evidence to carry her burden of persuasion on the question of improper discrimination.  See Holland, 2011 WL 940291 at *2 (citing Wright v. Southland Corp., 187 F.3d 1287, 1305 n. 24 (11th Cir. 1999)).

To establish a prima facie case of disparate treatment, a plaintiff must demonstrate that (1) he or she is a member of a protected class; (2) he or she was subjected to an adverse employment action; (3) his or her employer treated similarly situated employees outside of the protected class more favorably than he or she was treated; and (4) he or she was qualified to do the job.  See Smalley, 2011 WL 649355 at *6 (citing Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006); Wilson, 376 F.3d at 1087).  Similarly, to establish a claim of discrimination by indirect evidence, a plaintiff will have to show that (1) he is a member of a protected class; (2) he is qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by a person outside his protected class, or was treated less favorably than a similarly-situated individual outside his protected class.   See Ashmore, 2011 WL 3915752 at *4 (citing Maynard v. Bd. of Regents, 342 F.3d 1281 1288-1289 (11th Cir. 2003)).  A plaintiff’s failure to identify at least one similarly-situated employee who was treated differently than the plaintiff can be fatal.  See Ashmore, 2011 WL 649355 at *4.

Although some actions may appear to be discriminatory at first glance, several recent Florida cases illustrate that courts often conclude otherwise.  For example, you may wish to review Hodgetts v. City of Venice, Florida, Case No. 8:11–cv–00144–EAK–EAJ, 2011 WL 2192813 (M.D. Fla.June 6, 2011) (letter by co-worker not evidence of disability discrimination); Jackson v. B & L Disposal, Inc., 425 Fed. App’x 819 (11th Cir. 2011) (being fired several days after complaint to supervisor did not amount to retaliation by employer); Bradley v. Pfizer, Inc., No. 11–11132, 2011 WL 3962824 (11th Cir. Sept. 9, 2011) (statement made during phone interview that applicant did not appear to be a “spring chicken” was insufficient evidence of age discrimination); and, Florida Dept. of Children and Families v. Shapiro, 68 S0.3d 298 (Fla. 4th DCA 2011) (subordinate co-worker’s racial and religious comments to employee did not rise to the level of an actionable claim for harassment under Title VII).

Filed under Age Discrimination, Employment Discrimination, Florida Fourth District Court of Appeal, Florida Third District Court of Appeal, United States Court of Appeals for the Eleventh Circuit Tagged with , ,

Restrictive Covenants in Florida: What are They and How are They Enforced

September 1, 2011

Generally speaking, restrictive covenants are clauses used by employers as part of their employment contracts, as a way to restrict certain activity by a prospective employee in order to protect legitimate business interests of the employer.  Restrictive covenants can be used to prohibit a prospective employee from using confidential business information outside the scope of his or her new employment, or from soliciting the company’s clients if the new employee decides to leave the job.  Restrictive covenants may take the form of a “covenant not to compete,” (“non compete,” for short), a “covenant not to solicit” (“non solicit,” for short), or a “confidentiality agreement.”  Under the relevant statute, Florida section 542.335, the term “restrictive covenants” includes all contractual restrictions such as noncompetition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other contractual restraints of trade.

Do Florida courts enforce these kinds of clauses or covenants?  The answer will depend on the facts of the case, but for the most part, courts will enforce restrictive covenants if certain requirements are met.

First, it is important to note that if an employer believes that a restrictive covenant has been breached (or violated), the employer, and its attorney, should consider seeking injunctive relief.  For those non-attorneys out there, injunctions are a legal device used to try to gain immediate relief by the court.  Because it is difficult to prove what damages will result from a breach of a restrictive covenant, injunctive relief is the typical remedy for cases involving breaches of restrictive covenants.  See Environmental Services, Inc. v. Carter, 9 So. 3d 1258, 1261 (Fla. 5th DCA 2009).

Before a court will issue an injunction, the moving party has to prove (1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest.  See Environmental Services, Inc., 9 So. 3d at 1261.  See also Hilb Rogal & Hobbs of Florida, Inc. v. Grimmel, 48 So. 3d 957, 959 (Fla. 4th DCA 2010).  A violation of an enforceable restrictive covenant generally creates a presumption of irreparable injury.  See Environmental Services, Inc., 9 So. 3d at 1261; Hilb Rogal & Hobbs of Florida, Inc., 48 So. 3d at 959.

Courts will determine whether to enforce a restrictive covenant in an employment contract by examining the requirements of Florida Statute section 542.335.  See Environmental Services, Inc., 9 So. 3d at 1261; Hilb Rogal & Hobbs of Florida, Inc., 48 So. 3d at 959.  The Fourth District Court of Appeal described the basic analysis as follows:

Hilb Rogal & Hobbs of Florida, Inc., 48 So. 3d at 959-960.

Attorneys litigating restrictive covenants and prospective employees presented with restrictive covenants in employment contracts may wish to take note of a few important considerations:

(1) Courts often recognize and enforce an employer’s legitimate interest in prohibiting solicitation of its customers with whom the employer has a substantial relationship.  See Id. at 960-962 (collecting cases); Environmental Services, Inc., 9 So. 3d at 1264-1266; Atomic Tattoos, LLC v. Morgan, 45 So. 3d 63, 65 (Fla. 2d DCA 2010)

(2) Restrictive covenants should specifically define which customers or clients are not to be solicited by the prospective employee.  See 4UOrtho, LLC v. Practice Partners, Inc., 18 So. 3d 41, 43 (Fla. 4th DCA 2009).

(3)  Employers seeking to protect what it believes to constitute trade secret information will have to rely on more than mere statements of concern when the time comes to go to court.  In one case, the court refused to enforce a restrictive covenant because testimony that an employer sought to protect “marketing plans, product plans, business strategies, financial information, forecasts, and the like” was found to be lacking in specificity.  See Gould & Lamb, LLC, 949 So. 2d 1212, 1214 (Fla. 2d DCA 2007).

(4) Restrictive covenants which fail to contain a geographic scope are not automatically void.  Rather, courts are permitted to determine what constitutes a reasonable geographic limitation.  See Environmental Services, Inc., 9 So. 3d at 1264 (collecting cases).

(5) Pursuant to section 542.335(1)(d), restrictive covenants lasting 6 months or less are presumed reasonable, and any covenants lasting more than 2 years are presumed unreasonable.  See Environmental Services, Inc., 9 So. 3d at 1263.

(6) Restrictive covenants may not be used to eliminate all competition, and may not be enforced where the court determines that the terms are unduly harsh or inflict an unnecessary result on the employee.  See Edwards v. Harris, 964 So. 2d 196, 198 (Fla. 1st DCA 2007).  Employers may not use restrictive covenants to prevent employees from going to work for a competitor “in any capacity.”  See Edwards, 964 So. 2d at 198.

Filed under Florida First District Court of Appeal, Florida Second District Court of Appeal, Florida Third District Court of Appeal, Florida Fourth District Court of Appeal, Florida Fifth District Court of Appeal, Florida Supreme Court, Palm Beach Circuit Court, Broward Circuit Court, Non-Compete Agreements, Non-disclosure Agreements Tagged with , , , , , ,

When is Florida Governor Rick Scott Going to Get Floridians Back to Work?

July 26, 2011

Rick Scott ran for Governor on a platform of job creation and bragged that he was going to get Florida “back to work.”  When is that going to happen?

News reports about Scott’s successes vary.  According to Rick Scott’s own website, over 85,000 jobs have been added so far, but a website for Florida Democrats reports that Scott has destroyed over 100,000 jobs since he took office.  Florida’s Agency for Workforce Innovation states that Florida’s unemployment rate is at 10.6 percent.  According to the report, such rate is unchanged from May of 2011, and is well above the national average of 9.2 percent.  Although Scott brags that Florida has been recognized as a leader in workforce training by a report issued by the U.S. Chamber of Commerce, it is hard to see how such recognition translates into the creation of any jobs.

Scott has done a great job of slashing expenses, mainly to the detriment of the working middle class.  State government offices have been forced to lay off workers, and those who remain have been forced, for the first time ever, to contribute toward their own retirement.  (For my thoughts on that decision, please visit my previous post on the matter here).  However, what Florida needs is more than mere slashing.  We need leadership that inspires people to want to come to Florida to live and open businesses.  We need a leader who can make workers feel like their struggles are recognized, and that things will get better.  We need jobs!

Within the first month of his taking office, Scott was given the chance to get more Floridians back to work on a high speed rail project.  But he rejected the offer.  Why?  Although he claimed that the project would have been too costly for taxpayers, a report from the New York Times notes that Florida’s unemployment rate would have decreased, and that the Federal government was going to foot 90 percent of the bill.   Scott had the chance to employ almost 24,000 people on that project.  But rather than putting Floridians back to work, and rather than creating jobs, Scott seems better suited to creating battles with almost every type of public worker, from firefighters, to teachers, and state employees.  Hopefully before the end of Scott’s term, more Floridians will get back to work.  But it’s hard to see how that will happen under Scott’s methods.

Filed under Florida Fifth District Court of Appeal, Florida First District Court of Appeal, Florida Fourth District Court of Appeal, Florida Second District Court of Appeal, Florida Supreme Court, Florida Third District Court of Appeal, Unemployment Claims Tagged with , , , , , , ,

Claims Under Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA)

July 20, 2011 Leave a comment

The FDUTPA was enacted to “protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  See Siever v. BWGaskets, Inc., 669 F. Supp. 2d 1286, 1292 (M.D. Fla. 2009) (quoting Fla. Stat. sec. 501.204(1)).  A claim brought under Florida’s Deceptive and Unfair Trade Practices Act has 3 elements: (1) a deceptive or unfair trade practice; (2) causation; and, (3) actual damages.  See Siever, 669 F. Supp. 2d at 1292.  Whether behavior constitutes unfair or deceptive under the FDUTPA is a question of fact.  See Id. at 1293.  So long as the conduct falls within the ambit of any statute, regulation, or ordinance that proscribes unfair competition or deceptive practices, a court may determine that the alleged conduct is deceptive or unfair for purposes of the FDUTPA.  See Id.  While a claim brought under the FDUTPA may arise from a breach of contract, claims brought under the FDUTPA primarily encompass unfair and deceptive practices arising from business relationships.  See Id.

To bring a claim under the FDUTPA, the plaintiff is not required to show that the defendant was the principal actor involved in the violative acts, or that the defendant initiated the acts.  See Gastaldi v. Sunvest Communities, U.S.A., LLC, 637 F. Supp. 2d 1045, 1056 (S.D. Fla. 2009).  Rather, it is sufficient to plead that the defendant directly participated in the alleged behavior, even if the violation was initiated by another.  See Gastaldi, 637 F. Supp. 2d at 1056.

State and Federal courts have entertained FDUTPA claims in a wide variety of contexts, from class actions to individual actions, involving allegations of price fixing and fraudulent real estate transactions.  See Barnhill v. Florida Microsoft Anti-trust Litigation, 905 So. 2d 195 (Fla. 3d DCA 2005) (class action); In re Florida Cement and Concrete Antitrust Litigation, 746 F. Supp. 2d 1291 (S.D. Fla. 2010) (price fixing); Gastaldi, 637 F. Supp. 2d 1045 (real estate).  FDUTPA claims may even be submitted to arbitration.  See Murphy v. Courtesy Ford, L.L.C., 944 So. 2d 1131, 1133 (Fla. 3d DCA 2006).

For an interesting case involving allegations of theft of confidential business information and deceptive trade practices by former employees, attorneys may wish to consult Furmanite, America, Inc. v. T.D. Williamson, Inc., 506 F. Supp. 2d 1134 (M.D. Fla. 2007) (denying motion for summary judgment on claims of misappropriation of trade secrets and violation of the FDUTPA).

Filed under FDUPTA, Florida Fifth District Court of Appeal, Florida First District Court of Appeal, Florida Fourth District Court of Appeal, Florida Second District Court of Appeal, Florida Supreme Court, Florida Third District Court of Appeal, Palm Beach Circuit Court, United States Court of Appeals for the Eleventh Circuit, United States District Court Tagged with , , , ,

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