The court essential said that a pregnant woman's lifting restrictions do not support a claim of discrimination.  The court cited cases in which pregnancy claims have been denied where an employer has shown it does not accommodate other employees who have restrictions on their abilities to lift or perform other job related functions.  In this case, the plaintiff presented testimony that her immediate supervisor told her that there was no job for her because she was pregnant.  The court rejected the statement on two grounds:

1) That the immediate supervisor was not a decision maker; and

2) That the plaintiff's other statements regarding the immediate supervisor's comments mentioned no reference to pregnancy.

The second point is troubling because the court conducted a credibility determination, which should actually be the job of the jury.  The court noted that the plaintiff's statements to the Equal Employment Opportunity Commission ("EEOC") and the allegations in the complaint said nothing of any pregnancy comment by her supervisor, but the comments were not necessarily inconsistent with her account of her supervisor mentioning pregnancy.

This case is troubling because it demonstrated that employers can get around the Pregnancy Discrimination Act by referring to lifiting restrictions, even when those restrictions are obviously related to pregnancy.

Kendyl Grace v. Adtran, Inc.

The Third District Court of Appeal rejected the Miami Firefighters attempt to bypass the Publem Employee Relations Commission ("PERC").  The firefighters claim that the city's declaration of a financial emergency and unilateral action in reducing wages and benefits constituted a violation of the firefighters' constitutional rights, and therefore did not need to proceed to PERC first.  The trial and appellate courts disagreed, requiring them to file an unfair labor practice complaint through PERC. 

There is a process that must be used when a public employer declares a financial emergency and refuses to paybargained for wages and bnefits.  PERC and the courts have strictly limited a public mployer's bility to declare a financial emergency to only those circumstances where a true financial emergency exists.

Miami Association of Firefighters Local 587 of the International Association of Firefighters of Miami, Florida v. The City of Miami

Manuel Fernandez, R.N. v. Florida Dept. of Health, Board of Nursing

Rodriguez v. City of Boynton Beach

The jury awarded the plaintiff $80,000 in back-pay, which the trial judge ultimately reducted to $10,000 under the doctrine of after-acquired evidence. The District Court had misread a portion of a previous 11th Circuit Court of Appeals opinion, which suggested the back-pay may be reduced if it can be demonstrated that the Employer could have fired the employee for any non-discriminatory reason.  The court clarified this statement by stating that such reduction is appropriate only if the non-discriminatory reason for termination was a result of the employee's misconduct.  There was no evidence in this case of employee misconduct and therefore the trial court erred in reducing the damages awarded by the jury.

Lisa Holland v. David A. Gee, Sheriff

In Coleman's case, the petitioner filed suit, alleging that his employer violated the FMLA by denying him self-leave.  The court determined that self-leave is different from family-leave as described in Hibbs, stating that the "self-care provision was not directed at an identified pattern of geneder-based discrrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of the States."  Under Colement, an employee of a state may not bring an FMLA claim against his or her employer based on his or her own need for medical leave, but may bring a claim based on hir or her need to care for a family member.

Daniel Coleman v. Court of Appeals of Manryland

           In this case, the labor union conducted a ratification election to approve a collective bargaining agreement. Initially, the labor union members voted down the ratification. The union leadership resubmitted the same agreement again, and conducted campaigns to build support from the membership to accept the terms of the new collective bargaining agreement. A second vote was taken, and the membership ratified the agreement.

            A few members of the labor union filed an unfair labor practice in response to these actions taken by their leadership. The General Counsel concluded that there is no such statute preventing a union from voting twice on the ratification of a collective bargaining agreement. Due to this fact, the union leadership was not in violation of the Florida Statutes when it took these steps to ratify the collective bargaining agreement.

Alvarez, Garth, Guerra, Hernandez, Agudelo, and Alvarez v. Transportation Workers Union, Local 291

The appellant in this case, Robyn Rush, appealed a decision by the lower court holding that the exemption in the Public Records Act that exempted questions and answer sheets from being released also applied to the redacted questions and answers in pre-employment polygraph reports. This appeals court affirmed the lower court’s decision.

Section 119.071(1)(a) exempts testing materials from the general requirement that personnel records be available under the Public Records Act. In this case, the public employer administered a pre-employment polygraph test to a candidate for a reserve police officer position. The city was asked to provide these exam reports to members of the public through a file public records request.

The First District Court of Appeals, in an opinion written by Circuit Judge James Daniel (sitting by designation), held that the prohibition against the release of testing materials applied not only to traditional exams but that the plain language of the statute also applied the exemption to polygraph tests.

Polygraphs have routinely been used by public agencies to screen applicants, however it should be remembered that the Florida Supreme Court held that polygraph exams are inherently unreliable and non-admissible as evidence against public employees in disciplinary proceedings. Farmer v. City of Ft. Lauderdale, 427 So. 2d 187 (Fla. 1983).

Robyn Rush v. High Springs, Florida

            Kelvin Baker, an employee of the U.S. Department of Transportation, was demoted from his position for allegedly exhibiting conduct unbecoming of a supervisor.  The Department claimed that its decision was based on Baker's challenging a subordinate employee to a physical altercation, demonstrating a lack of remorse and failing to reassure the decision maker that such behavior would not happen again.  Baker, however, alleged that the decision was made for retaliatory reasons, and that the Department’s proffered reasoning was false.

            In retaliation cases, once a prima facie case of discrimination is established, the plaintiff may prove his or her case by establishing, by a preponderance of the evidence, that the rationale provided by the defendant is a pretext for prohibited, retaliatory conduct.  In order to establish such pretext, it must be proved that the proffered rationale is false and that the true reasons were retaliatory.  Here, Baker failed to establish such pretext, and summary judgment was granted to the defendant.

            Although Baker cited to a table of penalties, which were not utilized in his case, the employer justified its variance from the table through its position that supervisors would be held to a higher standard.

Baker v. Secretary, U.S. Department of Transportation

            This disability discrimination case wasfiled under the Americans with Disabilities Act (ADA), Rehabilitation Act (RA) as well as the Florida Civil Rights Act (FCRA).  Knowles suffered from alcoholism.  Heclaims that his employer should have accommodated his disability by allowing him to participate in the Employee Assistance Program, which the Sheriff’s Office allowed any of its employees to enter.  Knowles’ claim stems from his assertion that he would have entered the program voluntarily prior to termination had he not been under the assumption that he would be placed in the program mandatorily. 

            This dispute over voluntary or required entry into the program caused the Court to admit that there was a communications breakdown, claiming that “someone dropped the ball.” It did not, however, accept this breakdown as evidence of an ineffective interactive process.  Instead, the court determined that the Sheriff’s office did not fail to offer a reasonable accommodation, and therefore Knowles could not claim discrimination based on the ADA or the FCRA.  This decision is troubling because it suggests that an employer need not explain how an appropriate interactive process could have occurred when there are significant communication problems that prevent an employee from obtaining a reasonable accommodation for a disability.

Knowles v. Sheriff

            This retaliation case was filed by the plaintiff seeking to recover damages caused by her former employer when she was terminated shortly after filing a race discrimination charge with the EEOC.  After the charge was filed, Peppers was hired back for a six-week period after which she was terminated again.  The defendant claimed that her termination was not based on the charge, but instead the fact that she was cited for five separate complaints of violation of company rules, Peppers demonstrated that all five of these citations occurred during the six-week period between her filing of the charge and her ultimate termination, which no previous complaint had ever been filed against her.

            The Court upheld the the trial court's dismissal of the retaliation claims.  The written opinion points out the difficulty of proving discrimination and retaliation cases.  The defendant was able to prove that four of the five complainants knew nothing about the plaintiff's filed charge, and the Court based its determination that the complaints were not based on retaliatory intent on the lack of knowledge bythe complaintants.

            The reality is that employees in a workplace are often influenced by the attitudes of management toward a specific employee.  A negative atmosphere can develop over a protected characteristic.  However, the existence of this negative atmosphere cannot be enough to survive summary judgment in federal court.  The plaintiff must establish specific evidence indication that a decision was made based on protected class discrimination in order to retain the right to take the case to a jury.  Trial courts routinely dismiss cases when plaintiffs cannot "connect the dots," despite the reality that discrimination mayhave taken place, but may simply be difficult to pin down.

Peppers v. Traditions Golf Club

This Eleventh Circuit Case involves an appeal of a Family Medical Leave ("FMLA") issue, in which the trial judge allowed the jury to determine the amount of future wages and benefits to which the plaintiff was entitled. The court determined that Federal Express wrongfully terminated Wai from her employment after attending four medical appointments to determine whether she had cancer or not.  The jury determined that she was entitled to future lost wages and benefits, which were to be doubled as liquidated damages. 

Federal Express appealed this finding of damages.  The Court of Appeals agreed with Federal Express that liquidated damages for front pay can only be calculated as an alternative to reinstatement.  Because Federal Express offered Wai reinstatement, the court determined that liquidated or double damages for future wages and benefits was inappropriate.

Wai v. Federal Express Corporation
 

This matter was brought before an Administrative Law Judge, to determine if Mr. McIntyre, a teacher in the state of Florida, should have action taken against his Florida's Educator Certificate due to alleged violation of the Department's rules establishing standards of teacher conduct.  Mr. McIntyre was shopping at a Fred's Discount Department Store on October 7, 2010.  When he entered the store, he went immediately to the glasses display, where he picked out two pairs of glasses priced at $4.95 each for purchase.  After picking out the glasses, he also went to a candy display to purchase prizes for students in his class.  After picking up the candy, Mr. McIntyre noticed that there was a sale on dog food, and in attempt to make room in his hands to carry all of his items, placed the glasses in his pocket. 

His efforts to carry his items to the check out counter caused him to forget about the sunglasses he had placed in his pocket, and after paying for his other goods he left the store.  On his way out of the store, he was reminded of the glasses only after the security alarm sounded at the door.  In a panic, Mr. McIntyre remembered that this store had a particularly harsh policy in dealing with shoplifters, and not wanting to be punished, threw the glasses into a nearby flower bed.  When approached about the issue, Mr. McIntyre explained to the store staff and police that it was an accident and desired to pay for the glasses.  He was taken into custody by the police who inquired about his status as a school teacher.  Mr. McIntyre explained that he was indeed a school teacher, and this arrest would be a bad situation for him. 

The Administrative Law Judge found that there was insufficient evidence to prove that Mr. McIntyre had the intent to commit shoplifting by a clear and convincing evidence standard of proof.  The Commission accepted the Administrative Law Judge's ruling. This case illustrated the importance of the heightened burden of proof in a licensure case.  Clear and convincing evidence is a higher standard than the civil standard of preponderance of the evidence, but lower than the criminal standard of beyond a reasonable doubt.  The Administrative Law Judge explained that each element of theft must be proved, including intent, at this clear and convincing evidence level.

D. Eric J. Smith, Commissioner of Education v. James King McIntyre

United States Court of Appeals, Eleventh Circuit.

Divison of Administrative Hearings

Respondent was suspended from his employment on April 13, 2011 by the Miami-Dade County School Board, for allegedly failing to correct performance deficiencies and incompetence. In response to this action, Mr. Guy requested an administrative hearing, which was heard  by the Division of Administrative Hearings ("DOAH") on October 20, 2011.

MANATEE COUNTY SCHOOL BOARD vs. MICHELE GABRIELE

LEE COUNTY SCHOOL BOARD vs. PATRICIA SLADE

Florida law permits emergency suspensions of a professional license under certain circumstances.  Emergency suspension orders (ESO's) can be issued in a variety of situations, particular when a practitioner has entered a plea of guilty or no contest or been convicted of certain criminal offenses. 

The appellate courts are very protective of the rights of professionals with regard to ESO's.  An ESO may only be entered if the circumstances qualify under the terms of the statute.  An expedited appeal is available when an ESO is entered, and the ESO must set out the specific facts and reasons for finding an immediate danger to the public health, safety or welfare, and the State's reasons for concluding that the ESO procedure is fair under the specific circumstances. 

In Dr. Mendelsohn's case, the Department had issued an ESO based on his conviction of a felony under 18 U.S.C. § 371, but Dr. Mendelsohn argued that the conviction was not related to the Medicaid program.  The appellate court found that the portion of § 456.074(1), which permits suspension for a misdemeanor or felony, only permitted such emergency suspension when the offence was related to the Medicaid program.  Dr Mendelsohn's conviction was one for the commission of fraud upon the United States, but was not directly related to Medicare. 

The emergency suspension of a license is a very dramatic step, and circumvents the normal due process system, which permits a licensed professional to appeal disciplinary action.  Absent an immediate suspension order, a licensed professional maintains his or her license unless and until a final order is issued revoking or disciplining the license. 

In practice, the notice of an intent to issue disciplinary action does not impair or affect a professional's ability to practice a profession.  Rather, the professional has the right to an evidentiary hearing before an administrative law judge, followed by a hearing before a professional body to evaluate the administrative law judge’s factual findings and legal recommendations.  Unless the administrative law judge makes a finding that the practitioner is guilty of the listed offences, the license can generally not be disciplined. 

The professional has every right to continue to practice unless and until the licensing board or commission issues an order.  When an emergency suspension order is issued, the practitioner must take immediate action to protect his rights, and Florida law permits a very speedy process for reviewing the emergency discipline.  Failure to immediately appeal will work to the licensed person's detriment, and therefore any person faced with an emergency order suspension should evaluate it carefully and consult a legal professional to determine whether or not such order may be challenged through the expedited process. 

Mendelsohn v. State of Florida Department of Health Case #1D11-3278, Florida First District Court of Appeal, August 31, 2011

In this case, the First District Court of Appeal reversed a revocation of a teacher certification for violation of a crime.  The statute under which Mr. Presmy’s certification was revoked called for an automatic revocation of the certifications of persons who were convicted of battery on children. 

The specific statute was enacted after Mr. Presmy’s offense, and the question was whether or not the statute would apply retroactively.  The First District Court of Appeal held that Florida’s case law history requires that statutes be presumed to apply prospectively rather than retrospectively, unless the legislature specifically indicates otherwise especially the case with regard to licensing or certification statutes which the courts have held to involve a constitutionally protected liberty interest in an entitlement to a profession. 

While the First District Court of Appeal did not specifically site liberty interest protection, it noted that Mr. Presmy’s right to his license was one that had vested, and could not be revoked because the legislature had not passed the revocation statute at the time Mr. Presmy had committed the crime.

Presmy v. Commissioner of Education CASE No:  1D10-5291, Florida First District Court of Appeal (September 16, 2011)

This case involved a review of a final order issued by the Board of Real Estate Appraisal Board finding two appraisers guilty of violating state statutes governing the appraisal profession. 

The two appraisers had been charged with a number of statutory and rule violations, and had requested a formal administrative hearing before an Administrative Law Judge.  The Administrative Law Judge heard the testimony and evidence and found that the allegations against the two appraisers were not proven.  The Administrative Law Judge had only found the two guilty of a recordkeeping violation and had found them not guilty of the more serious violations alleged against them. 

The First District Court of Appeals found that the Appraisal Board had violated Section 120.57 (1) (l) Florida Statutes by imposing an interpretation of statute in an unreasonable fashion.  The court found that the Board erred in rejecting the Administrative Law Judge’s more reasonable interpretation of the statute regarding the duty to retain dated records, which the Administrative Law Judge found to only have been part to be maintained.  The records were actually in an appraiser’s work file. 

The Administrative Law Judge also found that while some errors existed in the appraisal reports submitted by the two appraisers, the appraisal report was not sufficiently misleading and did not contain insufficient information as required by the statute.  The court found that the Administrative Law Judge’s determination constituted a factual finding and that the Board could not reverse the factual finding unless there was no confident substantial evidence to support the factual finding. 

The court likewise found that the Administrative Law Judge’s findings regarding the minimum requirements of reports was reasonable, and there was sufficient factual basis to support the Administrative Law Judge’s interpretation.  The court reversed the agency’s order with the directions to revise the penalty issued to the two appraisers to match the seriousness of the offenses, which were supported by the evidence. 

This case illustrates the role of the Administrative Law Judge and administrative agency reviewing the Administrative Law Judge’s determinations.  Essentially, the Administrative Law Judge has the ability to make factual findings based on the evidence presented in a hearing.  The administrative agency which reviews the ALJ’s findings may only reverse those findings if there is absolutely no confidence in substantial evidence to support the findings. 

In some situations, the findings can be “infused with policy considerations” which permit an agency to validly reject an ALJ’s determinations, but only when such policy considerations involve matters over which the administrative agency has authority to set standards for a profession or area of expertise.  Generally, administrative agencies are free to reject an ALJ’s conclusions of law when such conclusions of law involve matters over which the agency has final authority to make policy.  However, the Licensing Board does not have the right to reject conclusions of law if the Board or Agency does not have jurisdiction over the specific area of law on which the ALJ reached a conclusion. 

Green and Moody, the Florida Department of Business and Professional Regulation, Division of Real Estate

In this case, an individual who began receiving retirement benefits under the Florida Retirement System and then later was charged and convicted of a felony offense involving theft from his employer. 

The court held that the fact that the individual had already begun to receive retirement benefits did not prevent a forfeiture of his retirement benefits under Article II, Section 8 of the Florida Constitution, which provides for forfeiture of an employee’s rights under a public retirement system when the employee violates the public trust. 

Further, under Section 112.3173(3) and (4) statutes, a public employee also who is convicted of an offence involving violation of the public trust forfeits his or her retirement benefits.  The fact that the employee could retire and start receiving benefits prior to the convictions did not effect the entitlement to benefits. 

Garay v. Department of Management Services, Division of Retirement 

The Jacksonville Fraternal Order of Police filed an action for injunction for leave to prevent the Sheriff’s office from permitting public access to hearings involving the Jacksonville sheriff’s office Response to Resistance Board.  The Board investigates uses of force by JSO officers and the Board serves as an investigatory body to determine whether or not a police officer should be subject to disciplinary action by their agency.

Two provisions of the Law Enforcement Officers’ Bill of Rights, Sections 112.532(4)(b) and 112.533(2)(a) provide for the confidentiality of law enforcement officer and correctional officer investigations.  A previous opinion issued by the Fourth District Court of Appeal in City of Delray Beach v. Barfield, 579 So.2d  315 (Fla. 4th DCA 1991) held that the confidentiality provisions of Section 112.533(2)(a) did not apply unless a complaint was filed by a person outside of an investigative agency; therefore, an internally-generated complaint of the type involved in this case would not be confidential under the Barfield rationale. 

The First District Court of Appeals held that at the time that Barfield was decided, the confidentiality provision in Section 112.532 had not yet been enacted.  The confidentiality provisions in Section 112.532(4)(b) are broader than the confidentiality provisions in Section 112.533, and therefore the First District Court of Appeals held that the proceedings should remain confidential and not open to the public. 

Fraternal Order of Police v. Sheriff John Rutherford

The First District Court of Appeals reversed the determination of the Florida Public Employees Relations Commission (PERC) that a job applicant could pursue a claim of discrimination against a public employer based on the public employer’s anti-union animus. 

The National Labor Relations Act permits job applicants to claim retaliation based on an employer’s anti-union motivation, and a previous court case Southwest Florida Police Benevolent Association v. City of Bradenton, 9 FPER ¶14100 (1983), affirmed, 440 So. 2d 358 (Fla. 2d DCA 1983) held that a management employee could recover for its anti-union retaliation under the Florida Public Employees Relations Act. 

The first District Court of Appeals held that the remedies under the Public Employees Relations Act did not apply to persons who were not public employees at the time of the retaliation.  Rather, the court pointed to Section 447.17, Florida Statutes, which it stated provided a remedy to individuals who are not public employees, permitting them to sue for discrimination based on activities. 

The end result in this case is that a nonpublic employee may actually have a better claim than a public employee for union retaliation.  Section 447.17 of Florida Statutes permits a non-employee to obtain “such damages as he or she may have sustained and the costs of suit.”  Although there is not much case law interpreting Section 447.17, it would appear that this provision might provide a greater remedy than an unfair labor practice proceeding under the Public Employees Relations Act. 

Sheriff of Broward County v. Stanley

The Florida Second District Court of Appeals upheld the Public Employee Relations Commission’s finding of an unfair labor practice against a school district, which changed health insurance benefits for its employees.  

During the effective term of the collective bargaining agreement, the school district defended against the charge by claiming that the union had participated on an advisory committee as well as claimed exigent circumstances.  The first District Court Appeals stated that because the Union did not have any direct input in selecting the options, the Union did not waive its rights.

Additionally, the court stated that a waiver must be “clear and unmistakable” and that “for an action to ripen into a ‘clear and unmistakable waiver,’ consideration of all the circumstances must reveal that the (bargaining agent) has abandoned its right to negotiate over the notice of change.”  

The court noted that the plans, which were later implemented, were never actually discussed at the advisory meetings.  Additionally, the union requested collective bargaining more than two weeks before the school board scheduled a vote on the proposed Health Insurance Plans, but the request to bargain was denied.  

Further, the court upheld the finding of no exigent circumstances to justify the school district’s conduct.  The court noted that the exigent circumstance defense requires a finding that an emergency “exists to provide relief to an employer who is forced by an emergency to quickly and immediately modify the wages, the hours, or terms and conditions of employment of its employees.”  Given the fact that the school board knew of the proposed budget short fall, months in advance and had incurred budget short falls in the two prior fiscal years, the second District Court of Appeals did not find sufficient evidence to support a fiscal emergency defense.

Scool District of polk County v. Polk Education Association