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.

Happy Friday, South Florida!

Certain employment discrimination laws authorize employees who have been wrongfully terminated to  sue their employers for reinstatement and damages. The question presented is whether the Establishment and Free Exercise Clauses of the First Amendment bar such an action when the employer is a religious group and the employee is one of the group’s ministers.

After discussing the historical underpinnings of our nation’s religious freedoms, the Court finally turned to the core employment issue at page 13 of the slip opinion.  In its analysis, the Court first agreed with the Circuit Courts of Appeal that there is a “ministerial exception,” grounded in the First Amendment, which precludes application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.”  In explaining the ministerial exception, the Court stated that requiring a church to retain an unwanted minister would violate the First Amendment’s Free Exercise and Establishment clauses.  Second, the Court held that the ministerial exception applied to the case because Perich was indeed a minister.  In its closing paragraphs, the Court strikes a balance between rights of an individual, and the rights of society at large.  The Court stated eloquently,

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important.  But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.  When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.  The judgment of the Court of Appeals for the Sixth Circuit is reversed.

At the risk of sounding corny, I have to say that reading an opinion like this makes me want to wave the American flag!  God bless America!

I know what you may be thinking–Palm Beach County may not need another shopping area.  You might be right.  But if you think about the bigger picture, I think you’ll see that this development might be great news for Palm Beach County.  This development has the potential to bring great employment and business opportunities to our area.   Construction workers might need to be hired, and eventually, retail stores will have to hire employees.  And with the property being so visible along I-95, perhaps a shiny new luxury outlet mall might attract passing travelers and, ultimately, even more business to the area.  And if the local economy grows, local employment grows.

What does this have to do with employment discrimination?  Not much, I admit.  But this does relate to my criticism of Governor Rick Scott and his inability to get Florida’s unemployment numbers down.  (In my last post, I provided links to the unemployment numbers for Florida and other states).  After all, Scott made such a big deal about being getting Florida “back to work” when he took office.  (You can view one of my previous posts on Scott’s efforts here).  But here we are, 2 years after he took office, and many Floridians are still waiting to see Scott make that happen.  I might be wrong, but I am hopeful that this new retail project might be just the spark that Palm Beach County and South Florida need.

While I am not happy that reports show that Florida continues to face higher unemployment rates than many other states, (click here  and here for other reports), overall, I think that the EEOC’s report is very good news for everyone dealing with employment discrimination, whether you live in South Florida or not.

Recovery from the “mancession” has been long and slow.  (Note: the recession has been coined the “mancession” because the recession has hit male-dominated jobs the hardest, such as those in the manufacturing and construction sectors.)  If you follow the economic news, you may have read reports stating that men appear to be gaining more jobs in the economy than women.  At first, you might think that employment discrimination is to blame.  But you’d be wrong.

According to a report in USA Today, male workers may be getting more jobs for two reasons: (1) more men than women are applying for jobs; and, (2) men may now be more willing to take jobs in sectors which had previously been dominated by female workers, such as retail.

But if more men are applying for jobs, and if more men are getting jobs, what are all the female workers doing these days?  According to a report by Robert Trigaux in the Tampa Bay Times, it appears that women are using their time out of the workforce to sharpen their skills and improve their education.  For the first time in decades, there may be more young women in school than in the work force.

While the future economic picture remains unclear, perhaps something interesting may result.  As noted by Robert Trigaux in his column, although male workers may be gaining more jobs in the short term, female workers may find that they are better educated than their male counterparts in the long term.  And that could mean good news for working women!

Click here, here, here, and here for my favorite displays.

Well, I came across a news report the other day that made me laugh out loud.  Apparently Jon Stewart and the Daily Show staff learned of Scott’s drug testing policy, and decided to let correspondent Aasif Mandvi loose in Tallahassee.  First, while Scott made a rare appearance at a press conference to unveil his state budget plans on December 8, 2011, Mandvi interrupted and asked Governor Scott to pee in a cup.  Wow.  Check out the report here.  But that was not good enough for Mandvi.  After attending Scott’s press conference, he went to another press conference and asked Attorney General Pam Bondi to do the same!  At least Bondi handled the situation a little more humorously.  According to another news report, Bondi was ready for Mandvi and actually gave him a cup containing a yellow substance and made a quick exit.  Mandvi examined the contents, declared it to be apple juice, and made a few jokes for the reporters.

Since I came across the reports of Mandvi’s antics, I’ve been watching Jon Stewart nightly, waiting for Mandvi’s report to air.  Nothing yet, but Mandvi was pretty funny last night in his report on Lowe’s being a sponsor of terrorism.  If you need a laugh today, check out Mandvi on The Daily Show episode from December 13, 2011, at www.thedailyshow.com.

First, keep in mind that Title VII is generally designed to prohibit discrimination in the workplace on the basis of race, sex (and pregnancy), color, religion, or national origin.  See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 61-62 (2006) (citing 42 U.S.C. sec. 2000e-2(a)).   That means that as a plaintiff in an employment discrimination action, you’ll generally have the burden of showing that you were discriminated against because you belong to one of the protected classes.  Title VII does not create “a general civility code for the American workplace.”  Burlington Northern, 548 U.S. at 68 (citations omitted).  Generally speaking, Title VII does not afford a cause of action for “petty slights,” “personality conflicts,” “snubbing,” or other actions which might fall into the category of “ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Burlington Northern, 548 U.S. at 68 (citations omitted).

Title VII’s anti-retaliation provision provides,

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Burlington Northern, 548 U.S. at 62 (citing 42 U.S.C. sec. 2000e-3(a)).  This section is to be construed broadly.  See Thompson v. North American Stainless, LP, 131 S.Ct. 863, 868 (noting that in Burlington Northern, “we held that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct.”) (citing Burlington Northern, 548 U.S. at 62).

Notwithstanding the broad construction to be afforded the anti-retaliation section, the Eleventh Circuit still requires a plaintiff in an anti-retaliation action to show that (1) he or she was engaged in statutorily protected expression; (2) he or she suffered an adverse employment action; and (3) there was some causal relationship between the two events.  See Burgos v. Napolitano, 330 Fed. App’x. 187, 189 (11th Cir. 2009) (citing Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260-61 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)).   Filing an EEOC claim,  opposing a discriminatory practice, or participating in Title VII enforcement proceedings have been held to constitute expressions protected by Title VII.  See Burgos, 330 Fed. App’x at 189; Valentine v. Legendary Marine FWB, Inc., No. 3:09cv334/MCR/EMT, 2010 WL 1687738, *4 (N.D. Fla. April 26, 2010).  As illogical as it may sound, merely enjoying a benefit conferred by Title VII, or making a general complaint of discrimination is not legally sufficient for claims of employer retaliation.  See Valentine, 2010 WL 1687738 at *3-*4 (holding that plaintiff’s generalized claim that she was discriminated against by being terminated while on FMLA maternity leave was legally insufficient for claim of retaliation because exercise of right to FMLA maternity leave “is simply not the same as opposing a discriminatory practice or participating in an enforcement proceeding under Title VII.”) (citing Marshall v. Mayor and Alderman of City of Savannah, Ga., No. 09-13444, 2010 WL 537852, at *8-9 (11th Cir. Feb.17, 2010) (unpub.); Coon v. Ga. Pac. Corp., 829 F.2d 1563, 1568-69 (11th Cir. 1987)).

The Eleventh Circuit construes “the causal-relationship prong” broadly, meaning that “a plaintiff simply has to demonstrate that the protected activity and the adverse action are not completely unrelated.”  Burgos, 330 Fed. App’x at 190 (citing Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)).  “A plaintiff satisfies this element if she provides sufficient evidence that her employer had knowledge of the protected expression and “that there was a close temporal proximity between this awareness and the adverse action.”  Burgos, 330 Fed. App’x at 190 (quoting Higdon, 393 F.3d at 1220).

Perhaps the biggest hurdle a plaintiff may face in a retaliation case is showing a close temporal proximity between the Title VII protected activity and the retaliation.  Although a time difference of one month has been accepted, time spans of three, four, and six months have been found to be insufficient as a matter of law to establish a temporal nexus.  See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing Richmond v. ONEOK, 120 F.3d 205, 209 (10th Cir. 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (4-month period insufficient); Burgos, 330 Fed. App’x at 190-191 (holding that six month delay between filing of EEOC claim and the adverse employment action constituted “a substantial delay” and “without more, is insufficient to support an inference of causation.”); Higdon, 393 F.3d at 1220 (holding that, by itself, three months was insufficient to prove causation, but noting that the Court previously held that one month is “not too protracted.”) (citing Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986)).

What does all of this mean for you, the employee who complained about your boss, and then found yourself on the receiving end of some adverse employment action?  Basically, you’ll have to think about three important questions: (1) At the time the adverse employment action occurred, were you participating in some form of expression that is protected by Title VII, such as making and EEOC claim or participating in EEOC enforcement proceedings? (2) Is there a close enough temporal proximity between your Title VII protected activity, and the adverse employment action?  (3) Were you truly discriminated against because you are a member of a protected class, or were you perhaps singled out because of an unfortunate personality conflict with your boss?