Legal Brief filled in the 5th DCA appealing an improper summary judgment entered

TABLE OF CITATIONS
Cases

Alphin v. Sears, Roebuck & Co.,
940 F. 2d 1497 (11th Cir. 1991)

Anderson v. Liberty Lobby, Inc.,
477 US 242 (1986)

Anderson v. Savage Laboratories, Inc.,
675 F.2d 1221, 1224 (11th Cir.1982)

Brungart v. BellSouth Telecomm., Inc.,
231 F.3d 791, 798-99 (11th Cir.2000)

Cleveland v. Home Shopping Network, Inc.,
369 F.3d 1189, 1195 (11th Cir.2004)

Clover v. Total System Services, Inc.,
176 F. 3d 1346, 1354 (11th Cir. 1999)

Combs v. Plantation Patterns,
106 F.3d 1519 (11th Cir. 1997)

Coszalter v. City of Salem,
320 F.3d 968, 977 (9th Cir. 2003)

D’Angelo v. ConAgraFoods, Inc.,
422 F.3d 1220, 1225-26 (11th Cir. 2005)

Damon v. Flemming Supermarkets of Florida Inc.,
196 F. 3d 1354, 1363 (11th Cir. 1999)

DCF v. Shapiro,
68 So.3d 298 (4th DCA 2011)

Farley v. Nationwide Mutual Ins. Co.,
197 F.3d 1322 (11th Cir. 1999)

TABLE OF CITATIONS (CONTINUED)

Hairston v. Gainesville Sun Publ’g Co.,
9 F.3d 913, 921 (11th Cir. 1993)

Higdon v. Jackson,
393 F.3d 1211, 1219 (11th Cir. 2004)

Jones v. Directors Guild of Am., Inc.,
584 So.2d 1057 (Fla. 1st DCA 1991)

Llampallas v. Mini-Circuits, Lab, Inc.,
163 F.3d 1236, 1249 (11th Cir. 1998)

McDonell Douglas Corp. v. Green,
411 U.S. 792, 802 (U.S. 1973)

Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 147 (2000)

School Bd. of Leon County v. Hargis,
400 So.2d 103 (Fla. 1st DCA 1981)

Segal v. Arrow Industries,
364 So.2d 89 (1978)

Speedway v. Dupont,
933 So.2d 75, 79 (5th DCA 2006)

Staub v. Proctor Hospital,
131 S. Ct. 1186 (2011)

Taylor Made Transportation Services, Inc. and Kimberly Tutt,
Case 05-CA-036646, 358 NLRB No. 53, (NLRB June 7, 2012)

Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361 (11th Cir.2007)



TABLE OF CITATIONS (CONTINUED)

Publications

AAFP Hepatitis C Diagnosis and Treatment, http://www.aafp.org/afp/2010/0601/p1351.html, (last visited Dec. 11, 2012)

Aman Ali, MD and Nizar N. Zein, MD, Hepatitis C infection: A Systemic Disease with Extraphepatic Manifestations,
72(11) Cleveland Clinic J. Med. 1005-1008 (2005)
Definition of Disability under ADA and ADAA, http://www.eeoc/foia/letters/2011/ada_definition_disability.html, (August 23, 2011)

Medline Plus Hepatitis C,
http://www.nlm.nih.gov./medlineplus/hepatitisc.html, (last visited Dec. 11, 2012)

National Institute of Allergy and Infectious Disease Hepatitis C, http://www.niaid.nih.gov/topics/hepatitis/Pages/treatment.aspx, (last visited on Dec. 11, 2012)

Rules

Fla. R. App. P. 9.210

Statutes

42 U.S.C. §12102

Fla. Stat. § 760.10



ISSUES ON APPEAL
1. The District Court Erred Because it Misapplied Binding Case Law From Staub and Shapiro to the Facts of This Case

2. The Plaintiff Has Established The Elements Necessary For Causation Under McDonnel Douglas And Higdon

3. The Plaintiff is Entitled to Survive Summary Judgment Because she has Sufficiently Demonstrated That the Defendants’ Proffered Reasons are Pretextual


STATEMENT OF THE CASE
The Plaintiff filed her claim against the Defendants on May 26, 2011. The Plaintiff asserted in her complaint that the Defendants terminated her in violation of the Florida Civil Rights Act in retaliation for engaging in protected activity. The Defendants answered the Complaint on October 14, 2011. The Plaintiff amended her complaint in January of 2012 and the Defendants filed their answer on January 26, 2012.
The Plaintiff alleges in her complaint that she is disabled within the meaning of the Florida Civil Rights Act and ADAA. Plaintiff requested and was granted reasonable accommodations by the Defendants to tend to her medical condition, Hepatitis C. Eventually a supervisor of the Defendant no longer wished to accommodate the Plaintiff and terminated her. The Defendant denies the Plaintiff’s allegations and alleges they terminated her employment for valid reasons.
Defendants filed their Motion for Summary Judgment on February 14, 2012 essentially arguing that it fired the Plaintiff for only valid reasons and their ultimate decision makers had no knowledge of Plaintiff’s disability.
Plaintiff filed her response on May 18, 2012 and argued that the reasons given by the Defendant were pretextual, and that the decision makers of the Defendants relied exclusively upon the recommendation of a supervisor who no longer wanted to be inconvenienced by Plaintiff’s disability. As a matter of law, the supervisor’s actions impute liability to the Plaintiff’s employer.
The Circuit Court improperly granted the Defendant’s Motion for Summary Judgment because it erroneously made credibility determinations, weighed facts disputed by the parties, and obviated binding legal precedent. This appeal followed.
STATEMENT OF THE FACTS
Plaintiff was hired by the Defendants on January 22nd 2008. (Jimenez Dep. pg. 9 L18-19). The Defendants admit that the Plaintiff was a good employee. (Jimenez Dep. pg. 23 L17-18).
Plaintiff was diagnosed with Hepatitis C in May of 2010 during the course of her employment with the Defendants. (Pla. Dep. pg. 11 L6-8). Side effects of the Plaintiff’s Hepatitis C treatment included extreme nausea, fatigue, hair loss, weakening in the legs, and immobility. (Pla. Dep. pg. 12 L15-16). The Plaintiff also developed breathing problems due to her treatment. (Pla. Dep. pg. 83 L22-23). The symptoms, from time to time, prevented the Plaintiff from working. (Pla. Dep. pg. 13 L5-14).
Plaintiff informed Rita Jimenez of the side effects and requested accommodations. (Pla. Dep. pg. 15); (Jiminez Dep. pg. 11 L10-12). Rita Jimenez agreed that Plaintiff’s treatment would impair the Plaintiff’s ability to work and agreed to accommodate the Plaintiff. (Pla. Dep. pg. 16 L1-3). Rita Jimenez is a supervisor of the Defendants. Essentially when Plaintiff took injections to treat her Hepatitis C she would take the next day off from work in order to recover from the side effects. However when the Plaintiff called in sick due to her treatment Rita Jimenez would become irritated with her. (Pla. Dep. pg. 19 L21 – pg. 20 L5).
Plaintiff had her Hepatitis C treatment on September 9th 2010. (Pla. Dep. pg. 48). On September 10th 2010 the Plaintiff called in sick and informed Rita Jimenez that she was unable to work. (Pla. Dep. Pg. 48). That morning Rita Jimenez traveled to the Plaintiff’s home to pick up a courier basket belonging to the Defendants’ and told the Plaintiff that she “looked like shit.” (Id. at 49). Later that evening Rita Jimenez texted the Plaintiff stating that there was something that needed to be discussed. (Id. at 51). Plaintiff called Rita Jimenez soon thereafter. (Id. at 52). During that phone conversation Rita Jimenez terminated the Plaintiff. (Id.). Plaintiff was terminated on September 10th 2010 the same day she took off for her treatment. (Pla. Dep. pg. 48 L5-9). Rita Jimenez refused to give the Plaintiff a reason for her termination. (Id.).
Prior to the Defendant’s retaliatory termination the Plaintiff received an excellent review and a raise. (Pla. Dep. pg. 36 L23 – pg. 37 L1, Dep. Ex. 7). In the more than two and a half years that Plaintiff worked for Defendants, the Plaintiff has never been disciplined by the Defendant prior to her termination. (Pla. Dep. pg. 74 L8-13). It is generally the Defendants’ practice to engage in progressive discipline. (Jimenez Dep. pg. 25 L2-7). Rita Jimenez however could not explain why Plaintiff was terminated immediately instead of receiving progressive discipline.
The reasons given by the Defendants for the Plaintiff’s termination was discussing salary and leaving for lunch and failing to clock out. (Jimenez Dep. pg. 52 L10-13), (Leon Dep. pg. 6 L11-14). Rita Jimenez recommended to Dr. Boyle and Dr. Leon that they fire the Plaintiff. (Jimenez Dep. pg. 52 L6-9). Dr. Leon and Dr. Boyle agreed with Ms. Jimenez and finalized the decision to terminate the Plaintiff. (Leon Dep. pg. 7 L4-10). The information Dr. Leon and Dr. Boyle relied upon was provided exclusively by Rita Jimenez. (Leon Dep. pg. 6 L22-23). Dr. Leon and Dr. Boyle did not conduct their own independent investigation of the allegations brought by Rita Jimenez against the Plaintiff. The Doctor’s spent about 10 minutes total discussing the termination of the Plaintiff.
Rita Jimenez alleged in her testimony that she was told by Sharon Austin that Plaintiff had left work and did not clock out. (Jimenez Dep. pg. 16 L2-7). Plaintiff denies ever leaving work without clocking out. Even though this was used as a basis to terminate the Plaintiff, other employees have left work without clocking out and are not terminated by the Defendants. (Austin Dep. pg.16 L19-pg.17); (Schoonmaker Dep. pg. 38 L6-10).
Joni Schoonmaker, an optical sales associate, testified that typically when an employee leaves for lunch without clocking out Rita Jimenez will approach the employee regarding the failure to clock out. Likewise, Sharon Austin, another optical sales associate, testified that when she forgets to clock out Rita Jimenez approaches her to discuss the issue. Both Dr. Leon and Dr. Boyle were under the impression that Plaintiff was engaged in time-card theft. (Boyle Dep. pg. 38 L10-24); (Leon Dep. pg. 6 L11-14). However, Rita Jimenez admits that she did not approach or ask the Plaintiff if leaving work and not clocking out was intentional or accident. (Jimenez Dep. pg. 16 L15-22).
When Sharon Austin forgets to clock out for her lunch she is never disciplined and has not been terminated. Likewise, Joni Schoonmaker who forgets to clock out is still employed by the Defendants. (Schoonmaker Dep. pg. 5 L12-13). When Schoonmaker described the typical procedure involving Rita Jimenez and time clock violations, Ms. Schoonmaker did not include discipline as part of Rita Jimenez’s procedure.
Sharon Austin also told Rita Jimenez that Plaintiff disclosed confidential staffing information; her salary. (Austin Dep. pg. 14 L16-18). Plaintiff denies ever disclosing her salary. Rita Jimenez testified that “[a]ny discussion of salaries or pay increases between employees, whether it be one asking or listening to another discuss it are grounds for termination. (Jimenez Dep. pg. 20 L1-4).
That is because discussing confidential staffing information such as salary is grounds for immediate dismissal. (Jimenez Dep. Ex. 1 Confidentiality of Facility Policy and Handbook Section B3.); (Leon Dep. pg. 31 L4-7). Rita Jimenez explained that disclosing confidential staffing information is grounds for termination means discussions about reviews or salary.
Ms. Schoonmaker had told the Plaintiff that she did not receive a raise. (Pla. Dep. pg. 62 L4-10). Rita Jimenez had a discussion with Ms. Schoonmaker and was aware that Ms. Schoonmaker allegedly discussed confidential staffing information with the Plaintiff . Ms. Schoonmaker also inquired with the Plaintiff about the status of Plaintiff’s review. (Jimenez Dep. Ex. 3). Rita Jimenez was aware that Ms. Schoonmaker had allegedly discussed Plaintiff’s review with the Plaintiff. Ms. Schoonmaker was not terminated or reprimanded for having a discussion about salary or reviews with the Plaintiff. (Jimenez Dep. pg. 20 L6-12).
Schoonmaker does not know how Rita Jimenez found out about the conversation. (Schoonmaker Dep. Pg. 11 L4-7). Schoonmaker and Smith both testified that nobody else was around when the alleged conversation between Smith and Schoonmaker took place. (Schoonmaker Dep. Pg. 11 L2). (Pla. Dep. Pg. 62 L4-10).


STANDARD OF REVIEW
The summary judgment standard applicable in Florida courts is that if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied. Jones v. Directors Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991).
The Plaintiff in a Florida Civil Rights Act trial must carry the initial burden under the statute to establish a prima facie case of discrimination. McDonell Douglas Corp. v. Green, 411 U.S. 792, 802 (U.S. 1973). To establish a prima facie case of employment discrimination under the ADA and as amended under the ADAAA, a plaintiff must demonstrate that: (1) she has a disability, (2) she is a “qualified individual,” and (3) the Defendant unlawfully discriminated against her because of her disability. D’Angelo v. ConAgraFoods, Inc., 422 F.3d 1220, 1225-26 (11th Cir. 2005).
To establish a prima facie case of retaliation a plaintiff must show that (1) she engaged in statutorily protected expression, (2) she suffered an adverse employment action, and (3) the adverse employment action was causally related to the protected expression. Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir. 2004).
After the Plaintiff shows by a preponderance of the evidence that she meets the prima facie elements of retaliation, then “the burden shifts to the employer to [persuade the trier of fact] that its real reason for termination was legitimate.” McDonnell Douglas, 411 U.S. at 803.
Then Plaintiff must introduce evidence “that could form the basis for a finding of facts, which taken in a light most favorable to the non-moving party, could allow a jury to find by preponderance of the evidence that the Plaintiff has established pretext, and that the action was taken for engaging in protected activity.” Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 921 (11th Cir. 1993).
“Florida has a long standing policy favoring jury trials and determinations on the merits. This policy is expressly incorporated in [Florida Statute] section 760.11(5)” Speedway v. Dupont, 933 So.2d 75, 79 (5th DCA 2006).





SUMMARY OF THE ARGUMENT
This Court should overturn the Circuit Court’s Order granting the Defendants’ Motion for Summary for three reasons.
First the Circuit Court incorrectly applied binding precedent from the Florida Third District Court of Appeal and the Supreme Court of the United States. The Defendant argued in there motion that the Defendants should not be liable because their decision makers had no knowledge that Plaintiff had a disability. Plaintiff provided binding case law which holds that if a decision maker relies upon the recommendation of a supervisor with discriminatory motive they are liable unless they conduct their own independent investigation into the facts. The Circuit Court incorrectly held that if the decision makers had made their own independent investigation they would have reached the same conclusion. This is error because it contradicts the requirement for an actual investigation and assumes facts not in the record. Specifically the Circuit Court found that the decision makers would have made the same decision if they had done their own investigation. This is an impermissible credibility determination and assumes facts not in the record.
Second the Circuit Court correctly found that Plaintiff established a prima facie case of discrimination and retaliation under the Florida Civil Rights Act.
Third the Circuit Court incorrectly determined that the Defendants’ reasons for terminating the Plaintiff were valid and not pretextual. This is error because the Plaintiff provided evidence which shows that similarly situated employees who are not disabled and engaged in the same types work rule violations that Plaintiff allegedly committed were not terminated. In addition the Plaintiff testified that she never violated any of the Defendants’ work rules. Finally the Defendants work rule they alleged Plaintiff broke prohibiting discussions of wages is prohibited by the National Labor Relation Act.
By determining that the Defendants’ reasons were valid the Circuit Court either ignored pretext evidence of similarly situated employees not being disciplined or in the alternative made an improper determination that Defendants’ reasons were valid even though other employees engaged in the same behavior and were not terminated.
Plaintiff is requesting that this Court reverse the Circuit Court’s Order and remand the case for further proceedings.





ARGUMENT
1. The District Court Erred Because it Misapplied Binding Case Law From Staub and Shapiro to the Facts of This Case
In this case Rita Jimenez had knowledge that the Plaintiff had Hepatitis C and recommended to the two decision makers that Plaintiff should be fired for violating the Defendants’ confidentiality policy and for leaving work without clocking out. Rita Jimenez’s retaliatory termination occurred on the very same day Plaintiff exercised her right to an agreed upon accommodation with the Defendants.
Rita Jimenez also had knowledge that another employee of the Defendants, Joni Schoonmaker, had violated the Defendants’ confidentiality of facility policy but did not recommend that Ms. Schoonmaker be terminated. Rita Jimenez also has knowledge that Ms. Schoonmaker and Sharon Austin had left work without clocking out on multiple occasions; however Ms. Jimenez did not recommend termination or even discipline Ms. Austin or Ms. Schoonmaker.
Under controlling case law, when a supervisor performs an act motivated by discriminatory animus to cause an independent decision maker to fire an employee the employer is still liable. Staub v. Proctor Hospital, 131 S. Ct. 1186, 1194 (2011). (“There was evidence that [the supervisors] were motivated by hostility towards [Plaintiff’s protected activity]. There was also evidence that [the supervisors’] actions were causal factors underlying [decision maker’s] decision to fire [Plaintiff].”). This Court can also refer to DCF v. Shapiro, 68 So.3d 298, 306 (4th DCA 2011). In Shapiro the 4th District Court of Appeals held:
[A] plaintiff can establish causation under a "cat’s paw" theory when the harasser is not the decision maker. (citation omitted). Under the "cat’s paw" theory, the decision maker acts in accordance with the harasser’s decision when the decision maker fails to conduct an independent investigation, and instead rubber stamps the recommendations of the harasser.

Shapiro, 68 So.3d at 306 (citing Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998).
The theory of the case is that Rita Jimenez had knowledge that multiple employees violated similar workplace rules established by the Defendants, however, Rita Jimenez only recommended that the Plaintiff be terminated because she no longer wished to accommodate the Plaintiff’s illness or treatment.
The facts are clear that two employees violated the Defendants confidentiality of facility policy. One employee, the Plaintiff, had Hepatitis C and was requesting accommodations related to her treatment. The second, Ms. Schoonmaker was not engaged in protected activity. Only the Plaintiff was terminated.
Additionally, multiple employees forget to clock out and leave work without any discipline whatsoever. In this case the Defendants allege that Plaintiff left work and forgot to clock out; based on Rita Jimenez’s recommendation the decision maker’s believed Plaintiff engaged in time card theft.
The question for the jury in this case is why Rita Jimenez would recommend that the Plaintiff requesting disability accommodation be fired when other employees not requesting disability accommodation commit identical offense and are not even disciplined. Moreover, because the Plaintiff denies ever even doing this alleged act, it is also a question for the Jury to determine if Plaintiff did this act.
The Circuit Court improperly found that:
I don’t think that anyone could conclude [discrimination] was the reason for [Plaintiff’s] discharge. The given two valid reasons was the two doctors that didn’t even know about Hepatitis, and if they conducted their own investigation it would have only confirmed the facts that were presented to them by Jimenez. It wasn’t pretextual as presented by to the doctors by Jimenez.

(Transcript pg. 46 L25 – pg. 47).
The Judge’s determination is error for multiple reasons, however for purposes of this issue only the cat’s paw issue arising under Staub, and Shapiro, will be addressed.
The most glaring error is the Judge’s determination that, if Dr. Boyle and Dr. Leon conducted their own investigation it would only confirm the facts that were presented by Jimenez. The Judge is making a credibility determination and assuming facts exists that are not presented anywhere on the record. Jones, 584 So.2d at 1059; see also Anderson v. Liberty Lobby, Inc., 477 US 242, 247 (1986) (“At the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” ). The facts are improperly assumed and are made in a light most favorable to the Defendants; the moving party. Jones, 584 So.2d at 1059. This is reversible error.
The second error in the Judge’s determination is the misapplication of Shapiro, and Staub. The Supreme Court in Staub, and the Florida Third District Court of Appeal in Shapiro, make it quite clear that in order for the Defendants to relieve themselves of liability from a recommendation biased by discrimination, the decision maker must conduct their own independent investigation and find its own grounds independent of the biased decision maker for terminating the Plaintiff. 68 So.2d at 306; 131 S. Ct. at 1193.
Dr. Boyle and Dr. Leon only spent about 10 minutes discussing the Plaintiff’s termination. They admitted that they did not perform their own independent investigation and relied only upon information provided to them by the discriminator, Rita Jimenez. The evidence shows that Rita Jimenez is discriminating against the Plaintiff because she only recommended that the Plaintiff be terminated when other employees engaged in similar alleged conduct, and terminated the Plaintiff the day she was taking advantage of her accommodation.
Further, the Judge completely ignored binding legal precedent and created his own exception to the rule established by Staub, and Shapiro. “If they conducted their own investigation it would have only confirmed the facts that were presented to them by Jimenez.” (Transcript pg. 46 L25 – pg. 47). The rule is clear that the decision maker must conduct his own investigation. The rule is not for a Court to act as a finder of fact and to assume that the decision maker would have made the same decision if they had conducted their own investigation.
Therefore, Plaintiff requests that this Court reverse the Circuit Court’s entry of Summary Judgment in favor of the Defendants and remand this case for further proceedings consistent with its opinion.
2. The Plaintiff Has Established The Elements Necessary For Causation Under McDonnel Douglas And Higdon
In the instant case, Plaintiff has met all three elements for a retaliation and discrimination case under Fla. Stat. § 760.10(7). As it pertains to elements one and two, the record is quite clear and undisputed.
To be disabled and entitled to reasonable accommodation under 42 U.S.C. §12102(1) the Plaintiff must have a physical impairment that substantially limits one or more major life activities. The phrase substantially limits should be construed broadly in favor of expansive coverage.
The Plaintiff was afflicted with Hepatitis C during her employment with the Defendants. Hepatitis C causes autoimmune disorders and chronic liver disease. Aman Ali, MD and Nizar N. Zein, MD, Hepatitis C infection: A Systemic Disease with Extraphepatic Manifestations, 72(11) Cleveland Clinic J. Med. 1005-1008 (2005). There is no cure for Hepatitis C. However, with treatment Hepatitis C will go into remission. Side effects for treatment include debilitating exhaustion, severe nausea, and numerous other flu-like symptoms.
The Plaintiff testified that she suffered from extreme nausea, fatigue, hair loss, weakening in the legs, difficulty breathing, and immobility. On occassions, this prevented the Plaintiff from working, a major life activity. Rita Jimenez agreed with the Plaintiff that her condition prevented her from working and agreed to accommodate the Plaintiff.
In order to establish element three that the discrimination or retaliation is related to the protected activity Plaintiff need only show that the termination and accommodation are not wholly unrelated. Clover v. Total System Services, Inc., 176 F. 3d 1346, 1354 (11th Cir. 1999).
By demonstrating a close temporal proximity between the adverse action and protected activity the Plaintiff meets the causation burden. Shapiro, 68 So.3d at 306; Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.2007); Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 798-99 (11th Cir.2000). The record is clear and undisputed that a supervisor for the Defendant, Rita Jimenez, had knowledge of Plaintiff’s illness, request for accommodation, and recommended to the Defendants that the Plaintiff be terminated on the very same day she was being accommodated for her illness. Farley v. Nationwide Mutual Ins. Co., 197 F.3d 1322 (11th Cir. 1999) (A period of seven weeks sufficient to establish temporal proximity.); Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003) (Three to eight months sufficient to establish temporal proximity.).
The Plaintiff need only show temporal proximity under the applicable and controlling cases Shapiro, Thomas, and Brungart, the Plaintiff has me her burden under the causation element by showing temporal proximity, that the Defendant terminated her the day of her requested accommodation.
3. The Plaintiff is Entitled to Survive Summary Judgment Because she has Sufficiently Demonstrated That the Defendants’ Proffered Reasons are Pretextual
Plaintiff is entitled to survive summary judgment if sufficient evidence exists to demonstrate that the legitimate reasons offered by the Defendants to justify their termination are pretextual, unworthy of credence, or in other words, not the real reason for the termination. Combs v. Plantation Patterns, 106 F.3d 1519, 1529, 1538 (11th Cir. 1997); see also Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1195 (11th Cir.2004) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000)) (“Proof that [employer] explanation is unworthy of credence allows jury to infer [the employer] is dissembling to cover up discriminatory purpose.”). “Indeed once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation.” Cleveland, 369 F.3d at 1195 (quotations omitted).
In this case the Defendants asserted that the Plaintiff was terminated for violating two work rules. Specifically the Defendants allege that the Plaintiff disclosed confidential salary information and left work without clocking out.
The Defendants’ work rule that employees are not allowed to discuss their wages or salary is unlawful. Under Section 7 of the National Labor Relations Act it is unlawful for an employer to terminate an employee for discussing wages with other coworkers. Taylor Made Transportation Services, 358 NLRB No. 53. It is well understood that an employer is not free to terminate an employee if the termination violates public policy. Segal v. Arrow Industries, 364 So.2d 89, 90 (1978).
The Defendants wages discussion work rule reason should not be considered as a legitimate reason for terminating Plaintiff because it is against the law. In the alternative the Plaintiff can still establish that the wage discussion reason is pretextual.
A work rule violation defense put forth by the Defendants is arguably pretextual when there is evidence that the Plaintiff (1) did not violate the rule or, (2) if she violated the rule other employees outside the protected class engage in similar acts but are not similarly treated. Damon v. Flemming Supermarkets of Florida Inc., 196 F. 3d 1354, 1363 (11th Cir. 1999) (citing Anderson v. Savage Laboratories, Inc., 675 F.2d 1221, 1224 (11th Cir.1982); Alphin v. Sears, Roebuck & Co., 940 F. 2d 1497, 1501 fn 1 (11th Cir. 1991)).
The Circuit Court erred when it found that the reasons articulated by the Defendant were valid reasons for termination. (Transcript pg. 46 L25 – pg. 47). This is reversible error for three reasons.
First the Circuit Court should not be determining whether or not an employer’s decision is a valid decision. The appropriate standard is the Circuit Court should be determining whether there is evidence that demonstrates that the reasons articulated by the Defendant are pretextual. Combs, 106 F.3d at 1538 Second if the Court intended to mean that the Defendants articulated reasons were not pretextual the Court did not apply the Damon, Anderson, and Alphin, cases correctly to the facts of this case. Third if the Circuit Court considered Damon, Anderson, and Alphin, in its decision and still found the Defendants’ proffered reasons to not be pretextual the Circuit Court made an impermissible credibility determination. Jones, 584 So.2d at 1059.
The evidence in this case regarding whether Plaintiff was actually fired for work rule violations is disputed. First and foremost the Plaintiff in this case denies violating both work rules the Defendants allege she violated in this case. In particular the Defendants allege that on the day that Plaintiff left work without clocking out she was on a shopping trip to Publix. The Plaintiff’s bank records show no transactions taking place on that day and the Plaintiff’s cell phone records show no activity when the Defendants allege she is out of work and on the clock.
Undisputed evidence exists in this case which shows that other employees committed identical work rule violations and were not terminated or even disciplined by the Defendants. Rita Jimenez testifies that she is aware that another employee Joni Schoonmaker discussed confidential staffing information regarding salary and reviews. Ms. Jimenez testifies with regards to the Plaintiff this is grounds for immediate dismissal. However with regards to Ms. Schoonmaker she does not even receive discipline from the Defendants.
Additionally when employees Sharon Austin and Ms. Schoonmaker leave work and forget to clock out they are approached by Rita Jimenez. Ms. Jimenez inquires regarding the clock out error and does not instigate discipline. When the Plaintiff left work and forget to clock out Rita Jimenez did not approach the Plaintiff and inquire. Instead Ms. Jimenez informed two decision makers that the Plaintiff had been engaging in time card theft, and recommended termination.
The law is quite clear under Damon, Anderson, and Alphin,
[A] reasonable jury could conclude that the specific reasons for termination given by Fleming were a pretext. Appellants both were terminated for alleged violations of company work rules. On summary judgment, we have written that the "work rule" defense is arguably pretextual when a plaintiff submits evidence (1) that she did not violate the cited work rule, or (2) that if she did violate the rule, other employees outside the protected class, who engaged in similar acts, were not similarly treated.
Damon, 196 F. 3d at 1363 (citing Anderson, 675 F.2d at 1224;
Alphin, 940 F. 2d at 1501 fn 1).
A finder of fact could conclude that the two reasons articulated by the Defendants; a release of confidential information and leaving work without clocking out are pretextual. The Circuit Court’s finding that the Defendant’s proffered reasons are valid or in other words not pretextual is clearly error. Jones, 584 So.2d at 1059.
In the Damon, case the employer alleged that they fired their employee for maintaining a store in a condition below the acceptable standard, and for yelling at employees in front of customers. 196 F. 3d at 1363-65. The employee denied maintaining his department in an unacceptable condition, brought forth evidence that his replacement maintained the department in a poor condition and was not terminated, and also brought forth evidence that other managers at the store yelled at employees in front of customers and were not terminated. 196 F. 3d at 1363-65. The Eleventh Circuit determined that a reasonable issue of fact existed as to whether the reasons articulated by the employer for firing the employee were truthful because the Plaintiff denied and misconduct and additionally produced other employees who were not fire for engaging in the same types of conduct. Id. The Eleventh Circuit Court of Appeals then reversed the lower court’s entry of summary judgment.
In the Alphin, case the Eleventh Circuit reversed a decision of the lower court granting summary judgment against an employee. 940 F. 2d at 1502. The Court in Alphin, held that when the employee produced evidence which showed that other employees were not disciplined for engaging in similar offenses summary judgment is inappropriate. Id. at 1501.
Under Damon, Anderson, and Alphin, a jury could find that Rita Jimenez would recommend termination for the Plaintiff and not other employees engaged in similar work place misconduct because Rita Jimenez no longer wanted to accommodate the Plaintiff in violation of the Florida Civil Rights Act.
A question of fact exists regarding whether or not the Plaintiff actually committed the work rule violations the Defendants allege she did. Even if a finder of fact determines that the Plaintiff committed work rule violations the jury must determine if those violations were truly the reason Rita Jimenez recommended that the Plaintiff be terminated.
The Circuit Court’s determination is error because the Circuit Court either did not properly apply the aforementioned case law or improperly determined that even with the pretextual evidence the Defendant’s reasons were not pretextual.
Once Damon, and Alphin, is applied to the facts of this case it becomes clear that evidence exists to demonstrate that the two reasons articulated by the Defendants is pretextual. Further under Cleveland, and Reeves, once a jury is able to determine that the Defendants’ reasons are unworthy of credence the jury can also find that the only reason remaining to terminate the Plaintiff is her disability and accommodations.
Therefore Plaintiff requests that this Court reverse the Circuit Court’s entry of Summary Judgment in favor of the Defendants and remand this case for further proceedings consistent with its opinion.

CONCLUSION
For the reasons stated above the Plaintiff requests that this Court overturn the decision of the Circuit Court and remand this case for further proceedings.

More Information: For more information, please visit our employment law page, or contact us at 1-800-411-4023
Attorney: Maurice Arcadier
Status: Pending
Date Filed: 12/20/12