Thursday, December 27, 2012

Tampa EEOC Settles Retaliation Suit with OfficeMax for $85,000

A Florida OfficeMax recently settled retaliation claims filed by the EEOC on behalf of an employee for $85,000.  In this case, an OfficeMax store manager fired an employee, who later complained that the manager fired him because he is Hispanic.  The company required the manager to rehire the employee.  According to the lawsuit, the manager, however, made life difficult for the employee by creating reasons to terminate him and trying to force him to resign.  The employee went to the EEOC who investigated his claims against OfficeMax.   After the parties failed to reach a pre-suit resolution, the EEOC filed a lawsuit in Tampa federal court on behalf of the employee.

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County Property Appraiser Settles Sexual Harassment Case for $135,000

Last spring, the office of the Hillsborough County Property Appraiser was rocked by the sexual harassment claims of Carolyn Filippone.  Although the case had been pending for nearly two years, it did not make front page news until Property Appraiser, Rob Turner, fired his paramour, Carolyn Filippone.

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Friday, June 1, 2012

Tampa Woman Likely to Sue Hillsborough County Property Appraiser's Office


Carolynn Filipponne worked in the office of the Hillsborough County Property Appraiser, holding a couple of positions before eventually rising to the level of director of human resources.  She worked for the current Property Appraiser Rob Turner.  Approximately, two years ago she filed a Charge of Discrimination against Turner’s office with the Equal Employment Opportunity Commission (“EEOC”) based on allegations of sexual harassment.  Specifically, Filipponne alleged that Turner had sent her pornographic photos through the emails.  She also alleged that Turner had sent him a text that attached a photo of his genitals.  Think allegations against made by former FSU cowgirl against Brett Farve or former New York Congressman Anthony Weiner.  See Woman Considers Wrongful Termination Suit Against Rob Turner, Who Sent Her Porn









The EEOC closed the file in April indicating “The EEOC is unable to conclude that the information obtained establishes violations of the statutes.”  At this point, Turner believed he won the case and on Monday, he fired Ms. Filipponne.  In other words, he went from exercising poor judgment, with his use of the emails, to failing to consult wise counsel regarding the employment of Ms. Filipponne.  Also, a story that was unknown to the public has become front page news for the last three days.

The dismissal of the EEOC case started a 90-day clock for Ms. Filipponne.  She has until sometime in July to decide whether she wants to drop her case against Turner’s office or move forward with a lawsuit in state of federal court.  She is also represented by an excellent Tampa attorney, Steve Wenzel, who is guiding her through her decision.  Ms. Filipponne also added Chris Jayson to her legal team.  The question is not whether Ms. Filipponne will file suit.  Rather, the question is when.  By firing Ms. Filipponne, Turner unwittingly gave her a reason to move forward with a lawsuit.  To make matters worse, Ms. Filipponne can add allegations of retaliation on top of her harassment claims.  I have not done a scientific study, but I always felt that a retaliation claim is always easier to prove than a discrimination or harassment claim.

Is it really necessary to emphasize the many mistakes made by Turner?  In case you missed it, they include: 1) do not date your employees (think Glenn Close and Fatal Attraction); 2) do not send your employees porn; and 3) do not fire your employees when they are in the middle of deciding on whether they should sue you.  

A few years back, the County spent nearly $300,000 trying to defend Kevin White, who I understand reported to prison yesterday by the way.  The County needs to settle this case quickly because taxpayers are growing weary of having to write big checks for acts of poor judgment by County officials.

Tuesday, May 1, 2012

Discrimination Based on Gender Stereotypying


In Glenn v. Brumby, the U.S. Court of Appeals for the Eleventh Circuit held a government agent violates the Equal Protection Clause's prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.  For the Eleventh Circuit, this ruling sets a major precedent.
For a complete discussion of the Glenn v. Brumby, see "The Eleventh Circuit Bridges the Gap" by Stephan T. Mashel.

EEOC Explains How to Avoid Sexual Harassment Suits


During an interview, the Equal Employment Opportunity Commission used a Burger King franchise as an example in its discussion of steps that an employer should take to minimize sexual harassment lawsuits.  The EEOC provided the following suggestions:
  • Clearly communicate to employees that sexual harassment (and other forms of discrimination) will not be tolerated.
  • Provide sexual harassment training to their employees
  • Establish an effective complaint or grievance process (make sure there is more than one way to complain, so you don't wind up with the fox guarding the henhouse, or a harasser/ harasser's best friend being the person who received complaints)
  • Take all reports of discrimination or harassment seriously. This means making sure that all your employees know they have a duty to bring any unfair treatment or harassment to your attention.
  • Managers act immediately to correct the situation. Respond with immediate and appropriate action when an employee complains.
  • Employees have a right to complain about treatment that they believe is illegal job discrimination. You cannot punish employees, treat them differently, or harass them because they report job discrimination or help someone else report job discrimination, even if it turns out that the conduct was not illegal.
Having the best policies in place is not enough.  Business owners need to make sure that their managers are familiar with the policies and know how to enforce the policies.  Follow this link for more on "EEOC Says How to Avoid Sexual Harassment Suits."


Tuesday, April 10, 2012

Disability Discrimination Case Results in $56,500 Verdict for Bipolar Employee


Bipolar Employee Prevails in Lawsuit















About a month ago, I wrote about an employee who has a disability discrimination case pending against Regions Bank.  The employee has bipolar disorder and unless a settlement is reached, there is a very good chance that this case will go to trial in the next month or so. See below discussion of  Muzyka v. Regions Bank.

Last week, news reports released a story about another bipolar employee who took his employer to court.  The employee was able to persuade the judge that his employer discriminated against him and recovered a verdict of $56,500.

Sean Reilly was diagnosed with bipolar disorder while he was in college.  Although treated for the condition, he had problems and dropped out of college.

Reilly then took a job as an assistant manager with Cottonwood Financial.  Cottonwood owns and operates pay day lending stores in a handful of states.  Reilly decided to stop taking his medication after gaining almost 100 pounds.   Afterwards, Reilly started feeling paranoid and believed that people were talking about him behind his back.  Afraid that others would spy on him, he threw out his cell phone.  Reilly eventually had a nervous breakdown.  He called in sick and his boss denied his request saying that someone needed to cover the store.  Reilly went to work and requested two weeks of leave, which also was denied.  Within a month, Cottonwood terminated Riley’s employment.

After a four day bench trial, Judge Edward F. Shea of U.S. District Court for the Eastern Washington ruled in Reilly's favor.  A bench trial is a trial before a judge without a jury.  Reilly’s attorney took a different approach because more often than not, employment law plaintiffs would rather have a jury trial.

Judge Shea found that Cottonwood’s ADA policies and practices were deficient. The judge also found that Cottonwood’s reasons for firing Reilly were a pretext – i.e., cover-up – for intentional discrimination.  Reilly’s attorney noted that this case is significant because the employer regarded and perceived him as disabled and incapable of doing his job.

Reilly, by the way, was able to return to school and earn his degree.

For questions on the Americans with Disabilities Act and other employment related matters, call Rich Bradford at (813) 413-2402.

Sunday, April 8, 2012

Employment Law Violations Multiply for Texas Hospital


Hospital CEO says Fat Nurses Need Not Apply
I found the following article about a Texas hospital whose personnel policies will keep it in court for a very long time.  First, the hospital invited litigation from its Indian employees because the CEO wrote a memo stating:
I feel a sense of disgust but am more concerned with what this means to the future of the hospital as more of our Middle-Eastern-born physicians demand leadership roles and demand influence.
It will change the entire complexion of the hospital and create a level of fear among our employees.
I hope this is a case where the CEO is failing to listen to his HR people and legal team.  I hate to see this as a case where his staff members gave him the green light to institute such a poorly reasoned memo.  CEOs, you need to listen to your legal staff and HR department.
Now, the hospital CEO is trying to invite claims of disability discrimination or even gender discrimination because of his declaration of war on overweight nurses. The CEO actually banned job applicants from being overweight.   If his issue is the ability of the applicant to perform his/her duties, then an individualized inquiry is necessary.  If he is concerned about patient perception, then he is inviting many problems for the hospital.  For more details check out:  Fat Nurses Need Not Apply.

Tuesday, March 20, 2012

Why Does an Employer Need Your Facebook Password

Yes, we still are the United States of America. So why is it necessary for an employer to ask interviewees to provide access to their Facebook accounts, to include providing management with the potential employee's Facebook password.  Robert Lavigne describes a scenario as follows

The HR manager, who legally could not ask you about your sexual orientation or religious beliefs, does the unthinkable. They ask you to hand over your facebook account and password for further screening. Faced with the thought of continued unemployment, you agree out of fear and cohersion. As they scan your friends, uploaded pictures, status updates both public and private, you sit there is complete disbelief at what is happening. 

Lavigne further adds:
 Sounds far fetched, but this is happening right now. These HR policies and corporate mindsets go against everything that is Social Business. Most job seekers unfortunately will simply accept these new terms without any resort or retort. Well, I am making it clear right here and now. I will not work for any company who would promote or allow this form of social privacy invasion and social profile hijacking.

So, what will you do if your favorite corporation asks you to provide your Facebook password to HR prior to making  a decision to hire you.  Check out Robert Lavigne's post in its entirety at What is Your Password?

Sunday, March 18, 2012

Sexual Harassment and Retaliation Charges Pending Against Hyatt for Employee Appreciation Prank


I would expect to read a story like this from a garage owned by a man named Joey. I find it surprising that a story like this would come from the Hyatt.

Two middle aged sisters worked for the Hyatt as housekeepers.  One day when they arrived at work they heard laughter from their co-workers and management.  Apparently, someone used photos of the two women and placed their faces on the bodies of slimmer cartoon women in bikinis.  The pictures appeared on an “employee appreciation” bulletin board.  Apparently, one of the sisters did not appreciate the “commendation” and took the pictures down.  The sisters felt ashamed and humiliated by the prank.  The ladies indicated that they do not own a bikini.  Believe it or not, the sisters were told to put the pictures back up on the bulletin board.  Within a month, the Hyatt fired the two women for taking too many breaks.   Let’s see the Hyatt try to get that one past the judge.

The two women have a case against the Hyatt pending with the Equal Employment Opportunity Commission.  Their claims involve sexual harassment and retaliation.  Thus, the ladies’ sexual harassment claim is based on denigrating them by placing their photos on sexually suggestive cartoons.  The retaliation aspect comes into play because the law is designed to protect anyone who participates in a proceeding geared towards stopping harassment or opposing a practice in the company that promotes harassment.

While the burden is on the ladies to prove their harassment and retaliation cases, it looks like this will be a difficult case for the Hyatt.


Thursday, March 15, 2012

After Sexual Harassment of Female Employee Joan Rivers Attends Training

I am not sure if this was a publicity stunt or idle Hollywood gossip. Still, news of Joan Rivers “harassment” of a female employee can provide lessons for employers.

Apparently, Joan Rivers and someone named Melissa have a reality show called “Joan and Melissa: Joan Knows Best.” While the show was being filmed, Joan was captured trying on jewelry on the young woman. The woman provides the following description of the incident:
 “Putting all the jewelry on me and pulling my sweater back and touching my breasts.” 
Sounds like harassment to me.  Rivers may think that the young lady’s allegations are ridiculous, but pulling the woman’s blouse open and saying, “Peek-a-boo, look at you today,” then complimenting the woman’s breasts will land most corporations in court. With activity caught on camera, it would be difficult for Rivers to dispute her employee’s claims.

When an employer learns of allegations of harassment, the appropriate thing is to take prompt remedial action to ensure that the harassment does not repeat itself. In this case, the company took the appropriate action by conducting mandatory harassment training for all employees.

Ms. Rivers’ response, however, could land a company in hot water because she made it no secret that she was not happy with having to attend the training. Evidence that a CEO thought harassment training was a waste of time would not be well received by a jury.

Fortunately, for Ms. Rivers and her company, the employee decided not to move forward with the complaint. I certainly hope that Ms. Rivers’ legal team advises her not to fire this employee because then her company would be forced to defend a retaliation suit.

For questions regarding sexual harassment and/or retaliation, do not hesitate to call me, Rich Bradford at (813) 413-2402.

As a side note, I made note of prompt remedial action above. While this is an important defense in a harassment case, this defense may not be available in a case where a superior harasses a subordinate.





Friday, March 2, 2012

Is Auto Dealership Liable for Race Discrimination


Two African American males who are employed by Verizon visited an automobile dealership.  These employees were interested in looking at the luxury cars on the lot. They spent some time talking to a sales person.  They were interested in one of the cars and one of the men offered his driver’s licenses to the sales person.  The sales person left to retrieve the keys to the car.  Upon the sales person’s return, he told the men that his sales manager would not let them test drive the car until the dealership ran a credit report on Plaintiffs.  The sales person told the men that this was dealership’s policy. The men were not happy with this treatment and they left the dealership without test driving car.
The two men later shared their story with co-worker who is Caucasian.  Subsequently, the friend went to the dealership.  On his visit to the dealership, the friend asked to test drive the same vehicle as the two African American men.  The salesman allowed the friend to test drive the vehicle without running a credit check.
The friend then shared his experience with the two African American men.  Having heard his story, the two men filed a race discrimination law suit against the dealership.
Do you think the African American men have a discrimination case?  If so, what is the case worth?



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Friday, February 24, 2012

Former Hillsborough County Administrator Wins Employment Contract Dispute


Patricia Bean served as the County Administrator for Hillsborough County, Florida.  In that capacity she reported to the County Commissioners.   A few years back she gave raises to herself and the County Attorney without approval of the County Commissioners.  This resulted in both of their dismissals.  The circumstances surrounding their dismissals was on the front pages of the local newspapers for a couple of years (and I admit I did not catch all of the stories). Unfortunately, her decision making resulted in local and state investigations.

The most recent battle involved her seeking a severance package in connection with the dismissal.  Ms. Bean had a very nice employment contract drafted that allowed her to claim a severance even if she was terminated.  Usually, in executive contracts an executive will not receive severance if they are terminated “for cause.”  In Ms. Bean’s contract, cause would require a finding of criminal wrongdoing. 

The Florida Department of Law Enforcement investigated Ms. Bean’s actions.   Although Ms. Bean’s reputation in this County will always be associated with unethical behavior, the FDLE concluded that there was no criminal wrongdoing.

Ms. Bean wanted to get paid.  Recognizing the notoriety of the case, the County Commissioners said no way will we give you a severance.  An attempt to negotiate followed. After the negotiations broke down, Ms. Bean sued.

This was a difficult call for the County Commissioners.  Given the language of the contract, it seemed that they had an uphill battle.  Still, they felt that it was necessary to go forward with the suit.

A trial was held before Judge Barton on December 29.   Yes, the judge required the attorneys to appear him during the week between Christmas and New Years.  Having considered the evidence, the judge ruled in Ms. Bean’s favor.

One person noted that “she paid the judge off.”  While the public may not be happy with the result, that did not happen.  This case was won when the parties signed her contract.  Of course, when these contracts are drafted there are a lot of pleasantries and the executive is excited about taking on the new position and moving forward.  Years ago, no one expected that the County Commissioners would have to fire their chief executive.  This case shows that one of the most important things to review in these agreements is what happens if the parties have to go there separate ways.


Sunday, February 12, 2012

Court Finds That Breastfeeding is not Related to Pregnancy


            In EEOC v. Houston Funding II, LTD, a Texas court considered whether an employer discriminated against a woman who asked to pump breast milk during breaks at work.  Ruling in favor of the employer, the district court concluded that the employee’s claims did not rise to the level of discrimination.

            Donnicia Venters worked for Houston Funding for approximately two years.  She took a leave of absence to give birth and a few days after delivery told the company VP that she was uncertain as to when she would return.  After this conversation, while Venters maintained contact with her coworkers, she did not make further contact with the VP.  About a month and a half later, the VP held a meeting with several employees and they discussed Venters’ return date.  Concluding that Venters did not intend to return, Houston Funding decided to terminate her employment. 

            A few days later, Venters doctor released her to return to work.  When Venters reached the VP, she told him that she was ready to return and asked if she could use a back room during breaks to pump milk for her baby.  The VP told Venters that she had been fired because the company believed that she abandoned her job.

            The Equal Employment Opportunity Commission filed a lawsuit on Venters’ behalf claiming that the company discriminated against her in connection with her pregnancy.  The pregnancy discrimination allegations focused on Venters’ need to pump breast milk at work.

            The Texas judge entered summary judgment in favor of Houston Funding.  Summary judgment is a procedure that allows a judge to enter judgment in favor of one party without trial if the court concludes that the evidence to proceed to trial is lacking.  In reaching its conclusion, the court noted that the Pregnancy Discrimination Act did not cover Venters’ claims.  The court reasoned that lactation is not pregnancy, childbirth, or a related medical condition.  That is right…the court concluded lactation is not“a related medical condition” [to pregnancy].  The court further noted that after Venters gave birth, her pregnancy related conditions ended.

            This case generated some publicity over the last week, with no less than 275 newspaper articles or commentaries. While I admit to not reading all of the articles, I think it would be difficult to find an opinion piece in which the writer agreed with the judge.  It is worth noting, that about 3-4 other courts reached the same result when the issue was presented. 

            Also, there has been a change in the law that protects some women who need to pump milk while at work.  In 2008, Congress amended the Fair Labor Standards Act to require employers to provide time for women to pump for up to 12 months following the birth of the child.  This new law, however, applies only to non-exempt employees and there are exceptions.

Additionally, I recommend the following articles/blogs for further thoughts on this subject:   Judge:Legally, breastfeeding not related to pregnancy by the Suzanne Lucas and LactationIs Not Caused By Pregnancy or Childbirth, Says Judge by Donna Ballman. 

Do you think the Texas Judge made the right decision?

Sunday, February 5, 2012

Florida Court Rules Claims of Disabled Employee with Bipolar Disorder May Proceed to Trial


Michael Muzyka worked for Regions Bank as a “Personal Banker.”  During his employment at Regions, Muzyka received performance bonuses.  Muzyka also was diagnosed with bipolar disorder.  His condition caused him to be confused, made it difficult for him to concentrate and experienced difficulty sleeping.

Muzyka’s psychologist provided a list of accommodations to help alleviate the stress associated with Muzyka’s position.  These accommodations included flexibility with deadlines, reducing his workload, and recognizing that despite his normal high levels of performance he could have periods of “average performance.”  Regions rejected Muzyka’s requests for accommodations.

During his tenure at Regions, Muzyka had different supervisors.  Muzyka’s last supervisor indicated that he had performance problems and placed Muzyka on a performance improvement plan.  Regions then terminated Muzyka’s employment.

Muzyka brought a lawsuit against Regions under the Americans with Disabilities Act (“ADA”) and the Florida Civil Rights Act (“FCRA”).  The ADA is a civil rights law that, among other things, protects employees from discrimination based on their disability.  To prove his case, Muzyka had to show (1) that he is disabled; (2) that he was a qualified individual with a disability; and (3) he was subjected to unlawful discrimination because of his disability.

Regions sought to have the Court dispose of the case by filing a motion for summary judgment.  In many civil cases, especially employment cases, summary judgment is critical. When an employer moves for summary judgment, it is telling the judge that on the plaintiff’s best day, his evidence is insufficient to present to the jury.  If the employer wins on summary judgment, the case is over and there will be no trial.  If the employee is able to prevail on summary judgment, he/she gains leverage over the employer.  At this point, the employee’s attorney is in a position to demand a nice settlement for his client.

In this case, Regions claimed that Muzyka was not qualified for the position because of poor performance.  Judge Virginia Covington noted that Muzyka presented evidence that he met his goals and received bonus payments.  Therefore, she denied Regions motion for summary judgment concluding that there were “genuine issue of material fact concerning whether Muzyka was able to perform the essential functions of his job.”

It looks like Regions will have to open up the check book right about now.  Muzyka was terminated a little bit more than two years ago, so he will be looking at that amount in back pay.  Depending on his ability to obtain employment elsewhere, Regions could also be responsible for front pay.   Additionally, the ADA and FCRA provides monetary damages for emotional pain and suffering.  Muzyka suffered from a mental condition that no doubt was exacerbated by his treatment by his supervisor.   Regions probably would not want to try this case because on top of all that, Muzyka was fired in December, right before the holidays.  Unless all your “i’s’” are dotted and “t’s” crossed, you would not want to fire someone before the holidays.  As a side note, Regions fired Muzyka after he complained to the Equal Employment Opportunity Commission, giving him a meritorious retaliation claim.



Saturday, January 21, 2012

Supreme Court Rules Ministerial Exception Bars Teacher's Claims


Last week the U.S. Supreme Court for the first time found that there is a “ministerial exception” to discrimination law.  In other words, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and similar statutes do not apply to employees serving in a ministerial capacity.  

The Supreme Court addressed the issue in addressing the employment of Cheryl Perich, who was a teacher at Hosanna-Tabor Evangelical Lutheran Church and School.  The school had “lay” teachers and “called” teachers.  “Called’ teachers are regarded as having been called by God.  They must complete certain academic requirements, including a theological course of study.  Ms. Perich began as a “lay” teacher and during her course of employment became a called teacher.  In this case, in addition to teaching secular subjects, Ms. Perich taught a religion class, led her students in daily prayer, and devotional exercises.  She also took her students to weekly chapel and twice a year led the chapel service.

Later, Ms. Perich had problems and was diagnosed with narcolepsy.  She then took a leave of absence.  While she was gone, the school selected a “lay” teacher to fill her position.  Ms. Perich contacted the principal seeking to return to work and he informed her that her position had been filled.  He also expressed concern that she was not ready to return.  The school tried to persuade her to resign and agreed to cover her health insurance.  Ms. Perich refused to resign.  Ms. Perich then presented herself to the school and refused to leave until the school produced documentation stating that she presented herself for work.  The congregation voted to rescind Ms. Perich’s call for insubordination and terminated her employment.

Ms. Perich sued the school claiming discrimination and retaliation under the Americans with Disabilities Act.  The trial court entered summary judgment in favor or the school citing the “ministerial exception.”  According to this doctrine, the First Amendment of the Constitution bars claims involving the employment relationship between a religious institution and one of its ministers.  Ms. Perich filed an appeal and the U.S. Court of Appeals for the Sixth Circuit reversed the decision ruling that Ms. Percich’s position did not meet the qualifications of a minister.  In a unanimous decision, the Supreme Court disagreed.

In the opinion, Chief Justice Roberts discussed the history of the Constitution’s religious clauses.  He wrote that the Establishment Clause prevents Government from appointing ministers and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.  The Court recognized the application of “ministerial exception” and affirmed its use in the employment relationship.  The Court noted that requiring a church to retain or accept an unwanted minister or punishing a church for failure to do so, interferes with the internal governance of the church.  The Court ruled that this deprive the church control of the selection of those who will personify its beliefs.  The Court was careful to note that it was not imposing a rigid formula for deciding when an employee qualifies as a minister.  The Chief Justice also noted that it would not use a stopwatch to make the determination of whether an employee was truly a minister.

The unanimous decision revealed that the Court did not have difficulty reaching its conclusion.  As is often the case, there are issues that were not addressed by the Court in this decision.  For instance, what criteria should the lower courts use in determining whether an employee is a minister.  Will all teachers at religious schools be considered ministers?  Will the title be limited to teachers providing religious instruction?  Would a math teacher qualify as a minister?  Also, would a church secretary qualify.  Also, as one of the concurring opinions noted, a question could surface for other religions that do not use the term “minister.”  The courts will certainly be challenged as more arguments are presented regarding the boundaries of the “ministerial exception.”