Law Firm Feldman, Fox & Morgado, P.A. Attorneys Tampa, Florida Lawyers

Serving Gainesville and Other Areas: Discrimination Lawyers

By: Mitchell L. Feldman, Esq.
Feldman, Fox & Morgado
Florida RIMS Annual Convention, August 2007

I SEXUAL HARASSMENT AND DISCRIMINATION UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 and the Florida Civil Rights Act

A) PREGNANCY DISCRIMINATION: TITLE VII AMENDED TO INCLUDE PREGNANCY. 42 U.S.C. 2000e(k). as part of SEXUAL DISCRIMINATION (amended in 1978)

1) After the Supreme Court said pregnancy was not covered in 1976: GE v. Gilbert, 429 US 677 (1976).
2) Also now protected as a class: any discrimination against women affected by pregnancy, childbirth or related medical conditions.
3) All such women shall be treated the same for all employment related purposes as other persons not so affected but similar in their ability or inability to work.

Question : What if your employee announces she is pregnant after you hire them, and says she will go on leave after 4 months???

Legal analysis is the same in other Title VII sex discrimination suits: In a Disparate treatment discrimination claim, a necessary element is: discriminatory intent.

B) A sexual harassment claim is the same as a claim for a hostile work environment under Title VII and the Florida Civil Rights Act (FRCA). Florida and most States do not recognize a separate common law cause of action for sexual harassment.
C) FLORIDA STATUTES SEXUAL DISCRIMINATION
760.10 Unlawful employment practices: Unlawful for employer, employment agency, labor-management committee, or a labor organization to discriminate against any persons because that person has opposed any practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

760.10(7) virtually identical to Florida Civil Rights Act FRCA to RFCRA claims.Title VII 42 USC 2000e-3(a). The federal case law on Title VII applies

II THE PRIMA FACIE CASE UNDER TITLE VII FOR SEXUAL DISCRIMINATION

TITLE VII claims: Plaintiff employee can establish claim/case of violation/discrimination in 1 of 2 ways

1) through tangible employment action - discharge, demotion, pay decrease or

2) through creation of a hostile work environment caused by sexual harassment that is sufficiently severe or pervasive to alter the terms and conditions of the work.

A) Plaintiffs "light" burden of proof of gender discrimination: (If no evidence or allegation of direct evidence of discrimination under Title VII, the courts will apply the McDonnell Douglas Corp v. Green burden shifting framework. 411 US 792 (1973)

that she belongs to a protected class
she was qualified for her position
she was discharged despite her qualifications (suffered an adverse employment action)
she was terminated under circumstances which give rise to an inference of unlawful gender discrimination.

B) BURDEN then shifts to Defendant Sprint to prove a legitimate nondiscrimination reason for the termination.

C) STEP 3: Burden shift back to plaintiff to prove: reason asserted was a pretext for an intentionally discriminatory reason.

D) After the employer offers a nondiscriminatory justification for its actions, the McDonnell Douglass framework falls away, and we must determine whether a reasonable jury could infer discrimination from the combination of

the plaintiff's prima facie case;
any evidence the plaintiff presents to attack the employer's proffered explanation for its actions
any further evidence of discrimination that may be available to the plaintiff.

E) Pregnancy Prima Facie Case (direct evidence method):

she was pregnant and her employer knew it
she was performing her duties satisfactorily
she was fired
similarly situated employees not in the protected class were treated more favorably.

Burden then shifts to employer to demonstrate a legitimate nondiscriminatory reason for the firing. Summary judgment will then be afforded to the Defendant unless the plaintiff proves the reason was a pretext for discrimination.

F) RETALIATION CLAIMS A SEPARATE AND DISTINCT CAUSE OF ACTION UNDER TITLE VII OR THE FRCP:

"I WAS FIRED BECAUSE I REPORTED THE DISCRIMINATORY CONDUCT TO THE EEOC OR STATE HUMAN RIGHTS COMMISSION, OR REPORTED THIS TO MY EMPLOYER. THIS IS A SEPARATE AND DISTINCT CAUSE OF ACTION.

1) PRIMA FACIE CASE OF RETALIATION UNDER 42 USC 2000E-3: PLAINTIFF MUST SHOW :

she engaged in statutorily protected activity
her employer took an adverse personnel action against her; and
causal connection exists between the two

III TIME FRAMES TO FILE COMPLAINTS, AND THE STATUTE OF LIMITATIONS

A) LEDBETTER V. GOODYEAR : THE NEW RULES ON FILING CLAIMS AND GREAT NEWS FOR EMPLOYERS. US SUPREME COURT 2007

FACTS:

Ledbetter files suit under Title VII for sex discrimination.
She was a salaried employee at a Goodyear plant.
She submitted a questionnaire to the EEOC in March 1998 and a formal EEOC charge in July 1998.
She then retired in November 1998, thereafter filing this lawsuit.
The claim for sex discrimination on the matter of compensation went to jury trial.
She alleged that supervisors gave her poor evaluations because of her sex, and that as a direct result; her pay was less throughout her employment.
She earned less than her male colleagues she alleged when she finally left. She won at jury trial.
Goodyear asserted that any pay decisions made 180 days before she filed her EEOC questionnaire were time barred.
Thereafter, Goodyear says no discriminatory pay act occurred after she filed her EEOC questioner, and therefore they are not liable.
The 11 ^th Circuit Court reversed.
The Supreme Court agreed and affirmed.
FLAW and fatal to claim is that Ledbetter makes no claim that any intentional discriminatory act occurred during the charging period or thereafter.
Ledbetter had 180 days after each allegedly discriminatory employment decision was made AND communicated to her to file suit.

HOLDING: Because the later effects of past discrimination do not restart the clock for filling an EEOC charge, Ledbetter's claim is untimely.

B) Legal Procedures and conditions precedent for filing a lawsuit under Title VII

1) Originally, an employee must file an EEOC charge within 180 days after the alleged unlawful employment practice occurred. 42 USC 2000e-(2)a)(1).

D) Time to file under FRCA as stated in Title VII TIME NOW TO FILE CHARGE OF DISCRIMINATION: 300 DAYS, FROM THE DATE OF THE OCCURRENCE OF AN ALLEGED UNLAWFUL EMPLOYEMENT PRIACTICE. 42 USC 2000e5(e)(1).

******Here the Supreme court says that her claims that each paycheck received during the charging period and the 1998 raise denial is a separate title VII claim and gave rise to new charging period for each check

2) RULE: A new charging period does not commence upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.

3) BUT: if the Employer engages in a serious of separately actionable intentionally discriminatory acts, then a fresh/new violation takes places when each act is committed and new charging times apply.

4) The integrated multi-step enforcement procedures must be followed. Congress' preference is for prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.

5) " CONTINUING VIOLATIONS DOCTRINE": an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purpose of determining liabilti8yy. See National RR Passenger Corp v. Morgan, 536 US 101 (2002).

IV HOSTILE WORK ENVIRONMENT (SEXUAL Harassment CLAIMS):

When the workplace is permeated with discriminatory intimidation, ridicule, and insult that are sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, TITLE VII is violated. Harris v. Forklift Sys, Inc, 510 US 17, (1993). The Key is the conduct must be Severe or Pervasive.

A Plaintiff's burden to prove prima facie case: To establish a prima facie case of hostile work environment sexual harassment, a plaintiff must establish:

1) he or she is a member of a protected group;
2) he or she was the subject of unwelcome sexual harassment;
3) the harassment occurred because of his or her sex; and
4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of his or her employment. Breda v. Wolf Camera & Video, 222 F.3d 886, 889 , n. 3 (11th Cir.2000).
5) "the employee must show that the employer knew or should have known of the harassment and failed to take remedial action." Castleberry, 810 So.2d at 1029-30. Eckerd does not dispute that Natson proved a prima facie case of sexual harassment.

B) "employers generally are liable for a supervisor's sexual harassment if the harassment is SEVERE and PERVASIVE enough to result in a hostile work environment amounting to discrimination prohibited by Title VII, 42 USC 2000e et. Swq.

C) No Common Law Cause of Action for Sexual Harassment.

1) There is no Common Law Cause of Action for Sexual Harassment in Florida. (City of Miami Beach v. Guerra, 746 So.2d 1159 (Fla. 3d DCA 1999).
2) Workers' Compensation Statute does not Shield Employer from liability: immunity does not apply.

D) Non-supervisory harassment. The Employer is presumed to be the supervisor. Where the harasser is a co-employee, the Employer can be held liable where the employer knew or should have known about the conduct. The employer knew or should have known of the harassment and failed to take prompt remedial action.

V DEFENDING AGAINST THE CLAIM OF DISCRIMINATION AND Harassment: AVAILABLE DEFENSE FOR EMPLOYER :

A) FARAGHER/ELLERTH DEFENSE : (the genius of the

Faragher-Ellerth plan is that the corresponding duties it

places on employers and employees are designed to stop sexual harassment before it reaches the severe or pervasive stage amounting to discrimination in violation of Title VII.

1) An Employer is NOT liable if:

a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided.

WHAT INVESTIGATION IS REQUIRED: A nothing requires company to conduct a full-blown, due process, trial type proceeding in response to complaints of sexual harassment. All that is required of an investigation is

2) reasonableness in all of the circumstances, and the permissible circumstances may include

a) conducting the inquiry informally in a manner that will not unnecessarily disrupt the company's business, and
b) in an effort to arrive at a reasonable fair estimate of the truth.

Investigators nor required to take more notes, or that discussion were not specifically thorough, or that they did not give more weight to a particular fact.

3) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided. Burden of proof on defendant as AFFIRMATIVE DEFENSE.

(to prevail, an employer must show not only that it fulfilled its responsibility, but also that the employee failed to fulfill hers).

a) Employee who believes that he or she has been subject to harassment or violence in any form should report the incident or conduct immediately to his or her manager or to employee relations.
b) An employee must comply with the reporting rules and procedures her employer has established.
c) Employee must make choice even if in fear of losing her job or damaging her career prospects. If you want the employer to be vicariously liable for actions of harasser, either choice is to end the harassment.

4) To be actionable harassment, the employer must have created an environment that a reasonable person would find hostile or abusive: Employer will file Motions for Summary Judgment or Directed Verdict.

a) Examine the Totality of the circumstances.

TWO FORMS OF EMPLOYEE'S FAILURE:

a) not using the procedures in place to promptly report any harassment and
b) not taking advantage of any reasonable corrective measure the employer offer after the harassment is reported.

Here the Court found that the phone calls amounted to co-worker congeniality, and at worst described persistent but non-threatening suitor, which does not amount to harassment.

5) Not available where the discrimination the employee has suffered included a tangible employment action. (Tangible action: termination, loss of promotion etc.).
6) The remedy by the Employer : even if the process in employer arrives at the remedy in the case of the alleged sexual harassment is defective, the defense is still available if the remedial result is adequate. "where the substantive measures taken by the employer are sufficient to address the harassing behavior, complaints about the process under which those measures are adopted ring hollow. "a reasonable result cures an unreasonable process."

*********counseling is the first step corrective measure required by the nation's largest employer: the US FEDERAL GOVT. in all cases of sexual harassment.

B) OTHER AFFIRMATIVE DEFENSES AND DEFENSES

1) inter-sexual flirtation is not sexual harassment . Oncalev. Sundownwer Offshore Services, Inc, 523 US 75 (1998)
2) The behavior was not pervasive or severe : ex. Frequently calling an employee at home and making even innocuous inquiries may be annoying or inappropriate behavior; it does not equal severe or pervasive sexual harassment.

A) Look at the totality of the circumstances:

1) whether the conduct unreasonably interferer's with the employee's job performance
2) was the conduct physically threatening or humiliating
3) were the communications merely an offensive utterance

3) If the employee did not want the harassing behavior reported or acted upon, the employer would not have been placed on proper notice of the harassment, and employer not liable. Olson v. Lowe's Home Centers, Inc., 130 F.app'x 380, (11 ^thCir 2005).
4) warning and counseling of the harasser : sufficient defense where the allegations are substantiated. See Fleming v. Boeing, 120 F.3d 242 (11 ^thCir 1997) (talking to the harasser and telling the complainant to report any further problems was, as an initial measure, enough to constitute immediate and appropriate corrective action) (also, giving the harassera verbal warning and transferring the complainant to a different work group in the same facility also constituted immediate and appropriate corrective action) (issuance of counseling memorandum to the harasser was sufficient).

***What is appropriate remedial action will necessarily depend on the particular facts of the case...including the effectiveness of any initial remedial steps.

RULE: THE COMPLAINANT DOES NOT GET TO CHOOSE THE REMEDY.

VI RECENT CASES OF SIGNIFICANCE

A) SWACKMANMER V. SPRINT/UNITED MANAGMENET CO., July 7, 2007 10 ^th Circuit.

FACTS:

Summary judgment for Defense on sex discrimination claim.
Employer offered evident that the decision to terminate Swackhammer is because she violated the company's ethics policies.
She was fired by Mr. Castanona, the Sr VP of Customer Solutions.
She was an executive.
Sprint received "anonymous" complaints of unethical behavior within the customer service department.
She took a business trip on a Concorde with another employee and had emails implicating in vendor dealings.
The emails mention expensive gifts from vendors, payment for a friend of Garcia as a business expense, and also inferred that Garcia would share confidential information with a vendor.
They fired her because of her involvement and failure to enforce the same policies with regard to Garcia.
They had the appearance of impropriety.
Castanona was also later fired.
Her claim: not direct evidence method.
She used the McDonnell Douglas burden shifting
framework to show an inference from circumstantial evidence.
She says since they did not fire Winters, the subject of the ethical claims for which lead to the firing of Castonona, but yet fired her, the evidence shows a discriminatory intent.
The district court granted Sprint summary judgment and Swackhammer appealed.

LEGAL ANALYSIS:

1) Plaintiffs "light" burden of proof of gender discrimination: THE PRIMA FACIE CASE: (THE MCDONNELL DOUGLASS BURDEN SHIFTING FRAMEWORK)

a) that she belongs to a protected class
b) she was qualified for her position
c) she was discharged despite her qualifications (suffered an adverse employment action)
d) she was terminated under circumstances which give rise to an inference of unlawful gender discrimination.

2) BURDEN then shifts to Defendant Sprint to prove a legitimate nondiscrimination reason for the termination.
3) STEP 3: Burden then shifts back to plaintiff to prove: reason asserted was a pretext for an intentionally discriminatory reason.

DISCRIMINATION ANALYSIS: If no evidence or allegation of direct evidence of discrimination under Title VII, the courts will apply the McDonnell Douglas Corp v. Green burden shifting framework. 411 US 792 (1973)

C) RULE: DISCRETE ACTS OF DISCRIMIANTION TIMELY OCCURING WITHIN THE LIMIATIONS PERIOD CANNOT SAVE UNTIMELY NONDISCRETE ACTS.

1) Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.
2) The limitation period begins running the date the discrete act occurs.
3) In contrast, hostile work environment claims continue to occur over time.
4) The Court may consider the entire period of the hostile environment for the purposes of determining liability if an act related to the claim occurred within the filling period. (but see Ledbetter).

D) RULE: Where the discrete act is sufficiently related to a hostile work environment claim so that it may be fairly considered part of the same claim, it can form the basis for consideration of untimely, non-discrete acts that are part of the e same claim.

1) Pivotal question: whether the timely discrete acts are sufficiently related to the hostile environment work claim.

E) SUMMARY JUDGMENT AND PROOF EMPLOYERS CAN WIN:

1) HOLLAND V. SAM'S CLUB, US DIST COURT, 8 ^THCIRCUIT, JANUARY 9, 2007

FACTS:

Holland worked at Sam's club in Missouri, in July 1996, and then was transferred in October 1991.
She was forklift operator.
Later due to performance complaints about her use of the forklift, she was transferred to the electronics department as a stocker in June, 2004.
She then took a medical leave, and returned in August 2003.
Now she was assigned as a store greeter.
She was still paid the same.
October 2003, she got into it with a customer who filed a complaint against her.
She then filed discrimination claims with EEOC and Missouri Commission on Human rights in January 2004, thereafter getting a right to sue letter.

****STANDARD OF REVIEW ON APPEAL: DE NOVO: (ALL THE EVIDENCE IS REVIEWED INDEPENDENTLY BY THE APPELLATE COURT, VIEWING THE EVIDENCE AND DRAWING ALL REASONABLE INFERENCES IN THE LIGHT MOST FAVORABLE TO THE NONMOVING PARTY.

SUMMARY JUDGMENT IS GRANTED IF NO GENUINE ISUE OF MATERIAL FACT EXISTS AND THE MOVING PARTY IS ENTITLED TO JUDGEMENT AS A MATTER OF LAW.

Application to Holland: Only those acts alleged to be discriminatory occurring within the 300 days of the date the EEOC claim filed are actionable under Title VII.

HOLDING: Holland's claims are time barred, since she complained about the transfer as being discriminatory, which occurred over 300 days prior to her EEOC complaint.

But see and consider:

"CONTINUING VIOLATIONS DOCTRINE": an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purpose of determining liabilti8yy. See National RR Passenger Corp v. Morgan, 536 US 101 (2002).

F) VICKERS V. DONALD POWELL, CHARIMENT, FDIC, Dist Columbia Circuit, July6, 2007.

FACTS:

Vickers sued the defendants for hostile work environment.
She was an African American woman.
Employed from 1991 until termination in 2001 as a criminal investigator for the FDIC in Atlanta office.
She did not get along with her immediate supervisor Bedwell, a man.
They had unpleasant exchanges.
A heated discussion about her work occurred, in which also Vickers had said she would be taking off a week for medical treatment.
They yelled at each other heatedly.
She said, I don't need this and stormed out of the office, and said "I'm outa here."
She handed her cell phone and badge in on the way out. Next day, her husband came in to turn in key, computer, credit card.
Following day, Bedwell sent Vickers a letter documenting the argument, granting her 4 hours of admin leave for time she left work that day.
He warned her that if she did not come back to work by November 6, 2000, they would commence termination proceedings against her.
Vickers did come in on November 6, handing a letter requesting 6 months leave without pay to resolve mental, emotional and physical anguish caused by her employment with FDIC.
That request was granted. She then filed a complaint with the EEOC in November.
On March 1, 2001, she was then treated for severe depression.
She gave the FDIC letter from her SHRINK stating that she would be able to return to work on May 1, 2001.
Bedwell told Vickers in letter, she had to go for a medical exam to come back pursuant to US Public Health services law.
She went to the exam but refused to sign forms, including general medical release.
Bedwell's replacement then sent letter to Vickers, warning if she did not complete the forms would be grounds for disciplinary action up to and including removal.
She refused.
Asst inspector General for Investigations AIGI then fired her on December 14, 2001, citing 4 reasons:

showing disrespect to Bedwell
failed to provide information about her work to Bedwell
failed to sign the releases
failed to follow McDade's instructions to return t he PHS to sign the releases.

HOLDING AND LEGAL ANALYSIS:

1) Public Servants have separate tribunals and legal, including the Merit Systems Protection Board, and matters are heard by an ALJ.
2) ALJ rejected Vickers affirmative defense that she was fired because of race and gender and in retaliation for her EEOC activities.
3) Mixed Cases involving the MSPB appeals and discrimination claims under Title VII are reviewed in federal district court. District court granted motion for summary judgment for FDIC on all claims, and Vickers appealed.
4) The McDonnell Douglas burden-shifting analysis works on retaliatory claims as well.
5) VICKERS lost, as per court because of weakness of PFC, and she has failed to show that the FDIC's justification for termination was a mere pretext for discrimination.

G) Chambless v. Louisiana Pacific Corporation , 11 ^thCircuit, March 23, 2007.

FACTS:

Plaintiff filed suit alleging she was denied promotions due to the age and gender, and she was subjected to a sexually hostile work environment in violation of Title VII.
She also cleverly sued under state law for negligent training, supervision and retention.
2 years later, she filed another lawsuit claiming termination in retaliation for her EEOC charge and prior lawsuit.
She alleges she was denied promotion despite statement from employer that she was disqualified due to her failure to properly complete FMLA paperwork during sick leave.
She alleged numerous other instances of sexual harassment, which created a hostile work environment: sexual touching, jokes, and propositions by male employees, a male coworker raised her dress and put his head between her legs, ridicule because of her pregnancy, social isolation, and disparate job conditions.
The hostile work environment claim was dismissed as untimely.
Case went to jury, which found for Defendant, saying that retaliation was a motivating factor, but they would have fired her anyway for non-discriminatory motives anyway.

LEGAL ANALYSIS:

A disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome.
Hazen Paper v. Biggins, 507 US 604 (1993).
Here, regardless of whether the employer did in fact violate the FMLA is IRRELEVANT to the inquiry into whether the employer discriminated against her based on her protected traits (even thought the legitimate reasons was based upon false reasons).
Mixed motives defense: the adverse employment decision or action suffered by the plaintiff was either the result of his or her request or of his unsatisfactory performance in his position.

H) NURSE BE v. Columbia Palms West Hospital LTD Partnership, dba Palms West Hospital, US 11 ^th Circuit, July 6, 2007

FACTS:

· Nurse Bobbie Obrien sued hospital for sexual harassment by Dr. Chaparro, a physician with privileges at the hospital, under Title VII and Florida law.
· Jury found Employer liable. Reversed, and Jury decision is vacated.
· Obrien was a nurse from April 2002 until January 2004.
· Dr. Chaparro was a pediatric neurosurgeon employed by Palms West Pediatric Neurosurgery.
· He had privileges, and there was a contract with the hospital this medical practice to supply specialty doctors.
· The hospital actually only employed 2 doctors.
· In 2003, Dr C began calling RN's cell phone.
· Calls late at night.
· He would ask her to meet him for a drink or go to dinner.
· She always said NO. After 3 to 5 calls, she went to her supervisor Cindy Stowers, and her that her phone number be removed from the staff directory.
· She did not id Dr. Chaparro at that time.
· She said the calls were harassing. Stowers thought she meant annoying. Stowers never reported this to HR.
In May 2003, RN was transferred and Dr. C began making lewd and sexual comments whether he saw her, and would rub against her.
She always rejected the advances.
November 2003, and incident occurred, in which Dr. C asked RN to get a razor from supply room.
He then entered the closet behind her and made sexual advances.
She fled.
She then told another RN.
Dr. C then brushed his buttocks against her during this conversation.
That night she complained to RN supervisors.
That complaint then made it to HR.
No other contact between the RN and Dr. C thereafter occurred.
RN then took leave of absence.
Dr. C met with superiors and said that supply room incident resulted from months of mutual flirting.
He says RN called him too.
Dr. C's supervisor then admonished Dr. C from having further contact with RN.
Dr. C was disciplined by Palms Neurosurgery but not hospital, since he is not their employee.
Hospital investigation concludes unable to conclude that closet incident was not consensual.
A palm west has a written policy against sexual harassment in workplace. In the employee handbook and educated.
RN then after her complaint, hospital began to impermissibly schedule her and reprimand her for shifts not apprised about and not showing up for them.
She then resigned on December 31, 2003.
RN sued Dr C for assault, battery, IIED.
Later she amended to include claims against hospital for hostile work environment and retaliation.

J) Baldwin v. Blue Cross/Blue Shield of Alabama, 11 ^th Circuit, March 19, 2007:

FACTS:

Baldwin lost on summary judgment and appealed.
She was marketing rep in Huntsville Ala in 1998.
Scott Head became her boss in November 2000, as district manager.
There were problems between the 2 prior to his advancement.
He told her that the only reason she was there is because the company needed a woman there.
Called her babe, and hey babe.
She thought he was unethical and mistreated customers.
On day Head promoted, Baldwin came to congratulate him and he asker her to sit down and said "babe, are you on my team?"
He then stood up, pointed his finger at her and said, "That's not the fucking question I asked you. Are you on my team?"
They then talked about power, authority and respect.
She felt threatened but did not complain to anyone at that time.
Head would routinely use profanity.
Nothing else occurred for next 8 months.
He called other men, not Baldwin, cocksuckers and peckerwoods. He regularly used the word fuck.
He used the word BITCH to generally refer to women.
He said his wife was a fucking bitch and a female client once too.
Later at a banquet in Birmingham, Head leaned over to Baldwin and invited her to forgo her return trip to Huntsville in favor of a night of dancing and partying that would include her staying in his hotel room in Birmingham.
He said "No one will ever know".
On her way home, Head called Baldwin and invited her to see him that night, and said he was coming to her house.
He said she should leave the garage door open, he would get beer pick her up, and they would cruise through the Green Mountains in his car with top down, drink and play CD's.
He called her several times, finally saying he was at her front door. She told him to go home on the phone to his wife and kids.
Head said "alright Babe".
Maybe next Monday, Head called her into his office, closed the door, walked behind her and said "Hey, Babe, blow me".
She was forced to fall backwards onto a couch as he got up close to her.
She then asked if there was anything else, grabbed some m and M's and sat in a chair in front of his desk.
They discussed each other's weekends.
He said his fucking wife bitch got drunk, came at him and he threw her to the floor.
Then he said he put his hands around her neck.
She was scared, and decided to leave Head's office. She thought he wasn't quite right. She did not report this conversation.
Another incident, Head chose to not hire a female for a marketing rep job and he said he would not promote that slut and tramp.
Said he needed to hire a male.
He would joke with other male employees about their wives "your wife looked good last night, or this morning or I'm coming over to see your wife later."
2 occasions he unzipped his fly and moved zipper up and down. Other times he would come up from behind and breathe on her neck and say "Hey BABE."
Other male employees played with his penis through his pants and said to Baldwin, tells Jeff to tickle this.
She failed to file any complaint as required by BC/BS policy.
Later, when she got a check for $2000, when she thought it should be #3,000, she went to Head and asked him to do something about this.
He said he had no control.
Baldwin then said she should go to his supervisor and he said to her "are you fucking stupid?
Don't you ever fucking go over my head.
You'll lose your fucking job, pointing his finger at her face and yelling.
She then said, I'm done with you, I'm done.
She told him that if he wants to say she is insubordinate, she said why don't you just fire me?"
Later, Head called Baldwin in to make amends.
He then called his superiors about the bonus, and warned don't go over his head again.She still did not report these incidents.
2 more incidents then occurred over next month and a half, leading to her filing complaint internally about Head.
She complained about the vocabulary being used around her. Later, King gave Baldwin a chance to choose between counseling and a transfer, and for the 4 ^th time, Baldwin refused to cooperate with the HR rep King.
She had met with other officers too, and said she cannot work for Head.
King then demanded her resignation, citing her refusal to work with the relationship counselor in Huntsville or to accept the transfer.
She refused to resign and was fired, with an enhanced severance arrangement effective December 20, 2001.
She sued, alleging Head's harassing behavior created a hostile work environment, and that she was fired in retaliation for reporting it.

LEGAL ANALYSIS and HOLDING:

1) The District Court found that the alleged incidents of harassment were not sufficiently severe or pervasive to constitute sexual harassment , and that in any event, BC/BS had established the affirmative defense provided in Faragher and Ellerth.

2) Court also found on the retaliation claim, employer's proffered non-retaliatory reason for the firing, and Baldwin failed to put forth evidence to support a finding that the reason was a pretext.

RULE: Firing an employee because she will not cooperate with employer's reasonable efforts to resolve her complaints is not discrimination based on sex, even if the complaints are about sex discrimination .

3) The offered remedy by the Employer was reasonable.

RULE: TITLE VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive.

Title VII does not enact a general civility code. Plaintiff must show that similarly situated persons not of her sex were treated differently and better for a sexual harassment claim under Title VII. Here, Head was just a belligerent, foul-mouthed jerk.

STANDARD FOR HOLDLING EMPLOYER LIABLE FOR HARRASSING CONDUCT OF CO-WORKERS NOT SUPERVISORS: Employer will be held liable only if it knew or should have known of the harassing conduct but failed to take prompt remedial action.

ALL EMPLOYER MUST DO IS INTERVENE, ACT, STOP THE CONDUCT.

Hinton v. Supervision International Inc., 5 ^th DCA, 2006 942 So.2d 986: Plaintiff awarded only $10,000 in compensatory damages, after evidence indicated she was collecting unemployment.

VII DAMAGES JUDGMENTS AND RELATED CASES:

A) LIMITATIONS/CAP ON DAMAGES: 42 USC 1981 Limitations: Depends upon the number of employees.
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non pecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party -
A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and
C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.

E) Construction: Nothing in this section shall be construed to limit the scope of, or the relief available under, section 1981 of this title.
F) Jury trial: If a complaining party seeks compensatory or punitive damages under this section -

1) any party may demand a trial by jury; and
2) the court shall not inform the jury of the limitations described in subsection (b)(3) of this section.

G) Damages allowed and recoverable (right of recovery under the Civil Rights Act) against person or business for intentional discrimination: (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act [ 42 U.S.C. 2000e-2, 2000e-3, 2000e-16], and provided that the complaining party cannot recover under section 1981 of this title, the complaining party may recover:

1) compensatory and
2) punitive damages as allowed in subsection (b)
3) in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

Compensatory and punitive damages

1) Determination of punitive damages: A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.
2) Exclusions from compensatory damages Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [ 42 U.S.C. 2000e-5(g)].

H) DAMAGES UNDER FLORIDA CIVIL RIGHTS ACT:

A plaintiff is limited by a combined effect of State and Federal law limitations on damages
There is no apportionment between the state and federal laws on damaged when a jury is awarding damages
If TITLE VII cannot fully remedy the plaintiff's damages or injury, the remaining portion of the injury is remedied as much as possible under the FRCA and VISE-VERSA

I) The FRCA has no cap on compensatory damages, except sovereign immunity under F.S. 768.25

1) Florida and its agencies are liable in tort, but not for punitive damages, and
2) no interest for period before judgment
3) damages are limited or capped at $100,000 per person
4) $200,000 cap or limit per incident or occurrence
5) any amount above can be reported to the Legislature and the plaintiff can seek to increase the award under a "moral obligation". A judgment may be claimed in excess of statutory limits, but he state shall not be liable to pay the excess. The STATE may, in its discretion, choose to pay the excess judgment through a legislative claims bill.
6) No intent under the Civil Rights Act Title VII to limit damages or awards under other statutes
7) Florida cannot render Federal judgments unenforceable.

J) Construction between CRA and FRCA: Title VII is not to be construed to prevent states from imposing liability in any way they see fit, so long as the states to not interfere with Title VII by requiring or permitting acts that Title VII would forbid.

K) Williams v. Motorola, Inc., 303 F.3d 1284 (11 ^th Cir. 2002):

FACTS:

Williams was an engineer for Motorola fired in 1993, and filed suit. She was 4-year employee.
7 Counts of the original 13 went to trial.
She alleged pre-termination discrimination She was awarded $300,000 for emotional distress regarding termination discrimination in job assignments and performance appraisals.
The District Court however, remitted the jury award to $50,000.
In Omnibus Order the Court stated: Evidence showed that this claims related to the termination claims of sexual harassment and judgment was granted the defendant.
Therefore, the award of $400,000 was unsupported by testimony and was so excessive that it shocked the District Court's conscience.
There was no expert testimony to support the damagers.
Later, the DC clarified, and gave Williams the option of a new trial on the issues of damages. She chose the new trial.
The Judge then recused himself and the case was reassigned.
Williams told her attorney to voluntarily dismiss the case.
Final judgment was then entered for $1.
She appealed, and so did Motorola.

L) Pollard v. EI DuPont de Nemours and Company, 532 US 843 (2001).

FACTS:

Pollard sued under Title VII for hostile work environment based on sex.
She was subjected to co-worker sexual harassment, of which her supervisors were aware.
That harassment resulted in a medical leave of absence for psychological assistance and her eventual dismissal for refusing to return to the same work environment.
The DC awarded her $300,000 in compensatory damages, the MAX available under 42 USC 1981(a)(b)(3).

Holding: Front pay is not an element of compensatory damages under 1981a and thus not subject to the damages cap imposed by 1981(a)(b)3.
Courts finding intentional discrimination in Title VII typically award back pay (known as front pay when it occurs after the judgment).
Awards up to the date the employee was reinstated or returned to the position he should have been had the violation not occurred. Courts now award front pay in lieu of reinstatement.
Congress in 1981 expanded available remedies to include compensatory and punitive damages, subject to 1981ab3's cap.
this court concludes that front pay awards are not an element of compensatory damages under Civil Rights Act of 1991.

M) Haines City HMA Inc. v. Carter, 948 So.2d 904 (2 ^nd DCA 2007).

FACTS:

Carter won for retaliatory discrimination claim jury awarded $79,652 in back pay, but no compensatory damages.
Court awarded prevailing party fees under 760.11(5), and court enhanced by a multiplier of 1.5, based on Std Guaranty Ins Vo v. Quanstron, 555 So.2d 828 (1990).
Florida Courts are to and should follow same case law involving Title VII cases.
Here fees were then $95,681.
Following Dague, 505 US at 558, courts now do not apply multiplier in attorney's fee awards where there are fee-shifting statutes.

Holdings: Florida Courts must apply this federal case law, as required by the Florida Legislature, 760.11(5),
The Florida legislature has mandated that the determination of the federal judiciary shall govern Florida Courts. Accordingly, a multiplier is inappropriate.

N) FEES AND COSTS:

1) Winn Dixie Stores Inv. V. Reddick & Stokes, 1 ^st DCA 2007.

FACTS:

· Plaintiffs were awarded $700,000 in economic damages and $100,000 in punitive damages.
· Plaintiffs sought fees of $229,856 and costs of $65,305.
· Costs include postage, travel fees, office expenses, computerizes research, photocopies, expert fees, and mock trials.

HOLDINGS:

1) Federal cases state that an award of fees in a civil rights case should include reasonable out of pocket expenditures of the attorney beyond normal overhead.
2) These non-statutory costs, which are subsumed within the reasonable attorney's fee, could include compensation for postage, long distance calls, photocopying, travel, paralegals, expert witnesses and computerized legal research.
3) Time spent proving entitlement to fees are awardable in federal law.
4) As a matter of law 760.11(5) permits party to receive an award of attorney's fees for time spent litigating their entitlement to such fees.

VIII The EQUAL PAY ACT

29 USC 206(d)1. Prohibits discrimination between employees on the basis of sex by paying wages to employees at a rate less than the rate at which the employer pays wages to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.

IX PREVENTION OF LAWSUITS

1) Implement written policies and procedures for reporting incidents and complaints of harassment and perceived discriminatory conduct.

a) mandate that any employee hearing or seeing such inappropriate comments or conduct SHALL immediately report this activity to the HR department or appropriate supervisor.
b) institute a formal company policy against passing along emails from non work-related sources and not approved by the company.
c) institute a formal policy against internet usage by employees

2) Take immediate action to investigate the complaints by the employee or reported incidents by other employees:

Document findings

a) get sworn statements or affidavits if serious
b) separate if possible the parties involved into different groups, sections, departments or geographic areas.
c) put some on leave if necessary, unpaid.
d) investigate and retrieve all emails of persons involved and view work computers for websites and internet usage
e) obtain phone records, cell and office, check for communications
f) demand to see any written or documentary evidence.
g) ask for witnesses from both sides

3) counsel offenders and complainant
4) terminate if necessary, the offending person
5) transfer either person to prevent continued incidents, and warn each person not to have any communication outside of work or termination proceedings will be commenced
6) Correct and foreclose the discrimination or harassment if substantiated and remedy past harm with complainant, including

a) promotions
b) awarding back pay
c) get waivers and releases

7) if termination or resignation is to occur, seek a separation agreement, and offer consideration of severance pay (x # of weeks pay) in consideration for execution of a waiver of all claims for discrimination or harassment, etc.

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