EMPLOYER'S LIABILITY. DEFENDANT'S VERDICT

• Pages: 13-14

EMPLOYER’SLIABILITY

SUMMARY JUDGMENT

Alleged violation of Federal Family Medical Leave

Act – Worsening of plaintiff’s medical condition –

Claimed wrongful termination.

U.S. District Court, Middle, Florida

The plaintiff brought this action against his former

employer under several claims – including the

Federal Family Medical Leave Act (FMLA). The

plaintiff alleged that the defendant denied him

unpaid medical leave, thereby worsening his

medical condition. The defense disputed the

allegations.

The plaintiff began working in sales for the defendant – a

full-service independent insurance agency – in February

2003 at age 51. In February 2009, the plaintiff was diag-

nosed with Epstein-Barr virus. He obtained a note from a

physician’s assistant, stating that he should remain off

work from April 1 through May 1, 2009 (four weeks).

The plaintiff claimed that his supervisor told him to come

back in a couple weeks, because he could not afford

to take off an entire month, and would lose his job. This

was denied by the defendant. The plaintiff claimed that

under FMLA he was entitled to up to 12 weeks of unpaid

leave; but out of fear of losing his job, he returned to

work after two weeks on April 13, 2009. The plaintiff was

laid off on November 9, 2009; one of 11 employees in

what the defense contended was a reduction in force.

The plaintiff was diagnosed, the day after his termina-

tion, with chronic fatigue syndrome.

The plaintiff claimed that his performance issues were a

direct result of the defendant’s failure to provide him with

sufficient leave time to recover from his illness, and that

his condition worsened. The plaintiff also claimed that

he defendant hired younger sales agents.

The plaintiff asserted counts of disability discrimination in

violation of the Americans with Disabilities Act (“ADA”);

failure to accommodate in violation of the ADA; retalia-

tion in violation of the ADA; handicap discrimination in vi-

olation of the Florida Civil Rights Act (“FCRA”); failure to

accommodate in violation of the FCRA; retaliation in vi-

olation of the FCRA; discrimination in violation of the

FCRA; age discrimination and interference with rights

under the FMLA.

The defense contended that note from the plaintiff’s

doctor stating that he could return to work as of April 13,

2009, and the plaintiff indicated that he was not taking

a full month of FMLA leave.

The defense maintained that the plaintiff’s subjective be-

lief, that he would be fired for taking leave, was insuffi-

cient evidence to survive summary judgment.

The court previously granted summary judgment as to

all counts except the FMLA interference claim, which

was permitted to proceed to trial. The jury returned a

verdict for the plaintiff on that issue. The court then

granted the defendant’s motion for summary judgment

post-trial. The court agreed that there was no legally suf-

ficient evidentiary basis for a jury to find in favor of the

plaintiff, because he did not establish that he suffered

damages directly related to the alleged interference.

REFERENCE

Brown vs. Lassiter-Ware, Inc. Case no. 6:11-cv-01074;

Judge Charlene Edwards Honeywell, 07-18-14.

Attorneys for defendant: Kristyne E. Kennedy and

Robert A. Swift of Cole, Scott & Kissane in Orlando,

FL. Attorney for defendant: Caryn Diamond Shaw of

Fisher & Phillips, LLP, in Orlando, FL.

DEFENDANT’S VERDICT

Alleged violation of Florida Private Whistleblower

Protection Act – Claimed wrongful termination of

employment.

Miami-Dade County, FL

The plaintiff brought this action under Florida’s

Private Whistleblower Protection Act against the

company which employed him. The plaintiff

alleged that the defendant terminated his

employment in retaliation for the plaintiff’s

objecting to alleged violations of tax laws

committed by the defendant. The defense denied

the plaintiff’s allegations.

The plaintiff contended that, during his employment with

the defendant, he became aware of certain tax laws

that were being violated by the defendant. The plaintiff

alleged that when he complained of the tax violations,

he was terminated. The plaintiff sought lost wages, lost

benefits, and compensation for emotional distress.

The defendant maintained that the plaintiff’s termination

was for a legitimate, non-retaliatory reason. The defense

contended that the plaintiff’s position was eliminated as

part of a corporate restructuring, which the defendant

initiated to prepare itself to become a publicly-traded

corporation. The defendant argued that the plaintiff’s

termination had nothing to do with any complaints the

plaintiff may have raised while working there.

The jury found for the defendant. The plaintiff has moved

for a new trial. The defendant has filed a post-trial mo-

tion for attorney fees and costs per a proposal for

settlement.

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