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Monthly Archives: February 2012

Disgraced Administrator Wins Employment Contract Dispute Against County

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.

 
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Posted by on February 24, 2012 in Uncategorized

 

Domestic Violence Hearing Produces Compelling Courtroom Drama

I was in court this afternoon for a hearing on repeat violence.  My client alleged that an employee at her apartment complex had been stalking her.  Unfortunately, the judge found that the evidence was insufficient to grant a permanent injunction.

While waiting for my client’s case, I had to sit through several others.  The case before my client’s case can be described as highly entertaining.  First, I saw two little girls approach separate podiums.  To me they seemed young.  I was wondering how did they get into court or who signed a waiver to allow the testimony of minors.

The girls were each representing themselves. As one girl was testifying, she kept saying our children, our children.  The case started getting curious.  Then one of the girls made reference to “Our Baby Daddy.”  At that point I started to realize what was going on.  The judge was lost and had to ask one of the girls to spell things out.  The two girls had 4 kids who are half siblings.  One girl had three children from the same dad.  The other girl had one child from the same dad.  The judge, my client, and others in the courtroom were in the middle of a “Baby Mama Drama.”

On November 4, 2011, the girls confronted each other at a relative’s house.  I have no idea who thought it would be a good idea for the two girls to be together in the same room.  According to the testimony at the hearing, the girls started swinging at one another.  From the testimony, it was impossible to identify who started the fight.  There was a fight and relatives had to pull the girls off of one another.

Fast forward to January 28, 2012.  The girls ran into one another in a public place.  The girl who filed an injunction was holding a knife behind her back.  Recall my description above of the girls looking like little kids.  I have no idea why this little girl would be in a public place with a knife.  When the second girl learned that the first had a knife, she went to her car and picked up a baseball bat.  She approached the first girl and took a swing.  The first girl somehow missed the blow and swung with the knife.  Somehow each girl lost their weapons and they were engaged in a hair pulling, face pulling, arms swinging fight.  The fight was so bad the first girl ended up in the Emergency Room.

The judge, who appeared to be a gentle man, sternly admonished both girls.  He told them that he was surprised that neither of them did not land in jail.  He warned them that if the behavior repeated itself they should expect to be placed in jail.  I whispered amen to myself.  I wonder if the judge’s clerk saw my lips moving.

Next, the judge caught me be surprise.  He granted the first girl’s injunction.  He told the second girl that she would have not any contact with the first girl.  He did warn the first girl at the same time.  This ruling surprised me because I thought he would have dismissed the injunction altogether.  I thought under the circumstances, the first girl was equally as culpable as the second.  She was in public with a knife behind her back.

Still, I understand why the judge made the ruling that he did.  The second girl had the opportunity to remove herself from the situation.  Indeed, she should have gotten in her car and left.  Instead, she went to her car, grabbed a baseball bat and launched a preemptive strike.

The first lesson is obvious and appears in the preceding paragraph.  The second lesson is also noteworthy.  The second girl did not file a cross injunction.  Unless she was the aggressor, I think that she should have filed one against the first girl. Perhaps this would have improved her chances of receiving a ruling in her favor.

While I feel bad for both girls, this afternoon’s hearing was more entertaining than anything you could see on the People’s Court, Judge Brown or any other courtroom show that you will see on TV.

By the way, where was the dad while the two ‘Baby Mamas” were fighting and taking each other to court?

 
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Posted by on February 21, 2012 in Uncategorized

 

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IHOP Employee Survives Summary Judgment in Sexual Harassment Case

A Tampa man filed a lawsuit against a local International House of Pancakes or IHOP for damages related to sexual harassment.  He claimed that while working at IHOP as a cook, a female co-worker grabbed his genitals.  He further claimed that the restaurant manager witnessed the incident.  Additionally, he claimed that his co-worker grabbed him on one other occasion.  His lawsuit was filed under Title VII of the Civil Rights Act and the Florida Civil Rights Act.  In the lawsuit, he sought compensatory damages for emotional pain and suffering and humiliation.

At the close of discovery, the restaurant moved for summary judgment.  Among other things, IHOP argued that the harassment was not sufficiently severe and pervasive to support a claim of hostile work environment sexual harassment.  IHOP also argued that even if the harassment were severe and pervasive, it had taken prompt remedial action when it learned of the harassment.

The Court disagreed and denied the motion for summary judgment.   The Court ruled that

 Although the frequency of the conduct was only twice, the severity of the conduct is far greater.  The conduct in this case was physically threatening and humiliating, unlike the myriad of cases that involve “brushing” or “touching.”  Grabbing the crotch area of either sex certainly conveys a message that extends beyond workplace crudity, which, in large part under the case law, requires one to ignore.

See Cobb v. Sunshine Restaurants.  The Court further ruled that a fact issue existed as to whether the restaurant exercised reasonable care and corrected the sexually harassing behavior in a timely manner, thus avoiding vicarious liability.  Because the Court denied summary judgment, the employee could have presented his case to a jury.

This case highlights a number of lessons for employers.  Employers must have an anti-harassment policy in place that allows employees to report instances of harassment.  Next, employers must ensure that all employees are aware of the policy.  Also, management must know how to respond to allegations of harassment and investigations must be well documented.

Any employee who feels that he/she is being harassed should be familiar with the company policy and know who to contact to stop the harassment.   If you have any questions about harassment or other employment law issues, give me a call at (813) 413-2402.  Bradford & Bradford’s practice areas include, Wills, Trusts, Probate, Estate Planning, Civil Litigation, Employment Law, and Family Law.

 
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Posted by on February 13, 2012 in Uncategorized

 

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Did Judge Get this Right? – Breastfeeding is Not Pregnancy Related

            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 Lactation Is Not Caused By Pregnancy or Childbirth, Says Judge by Donna Ballman.
Do you think the Texas Judge made the right decision?
 
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Posted by on February 12, 2012 in Uncategorized

 

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Does Bipolar Employee Have Claim For Disability Discrimination

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”).  TheADAis 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, theADAand 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.

 
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Posted by on February 7, 2012 in Uncategorized

 

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