Florida Lawyer News Services | Robbins Equitas

Defending an Employment Discrimination Lawsuit

EMPLOYMENT LAW UPDATE

Defending an Employment Discrimination Lawsuit

Employers constantly face the threat of employment discrimination lawsuits under federal employment laws and similar state statutes.  Most Florida employment law cases are filed under Title VII of the Civil Rights Act (“Title VII”)[1], the Age Discrimination in Employment Act (“ADEA”), the American’s with Disabilities Act (“ADA”), the Fair Labor Standards Act (“FLSA”), the Civil Rights Act of 1866 (42 U.S.C. Section 1981), the Florida Civil Rights Act (“FCRA”) and the Florida Whistleblower’s Acts.[2]

Lynch & Robbins knows this an expensive, prolific and evolving area of law for employers to navigate.  This update briefly summarizes some employment litigation trends, common issues raised in employment discrimination cases and strategies aimed at preventing and defending employment lawsuits.

Employment Discrimination Lawsuits Hit Record Highs

Over the last 20 years, the number of employment discrimination lawsuits has risen steadily making employment litigation one of the most expensive areas of the law for companies to manage in the United States.  This trend began in 1991 when Congress amended Title VII of the Civil Rights Act of 1964, giving employees additional rights when suing an employer including compensatory and punitive damages, attorney’s fees and the right to a jury trial.

So far this year, well over 10,000 employment lawsuits were filed in federal courts within  the United States.[3] Approximately 1,500 of these were filed in Florida including the Southern, Middle and Northern District Courts of Florida.

This does not included state court cases filed in Florida, which may exceed federal filings, or claims filed with the Equal Employment Opportunity Commission (EEOC).  Many Plaintiffs’ lawyers file employment discrimination cases in state court to attempt to reduce the risk of dismissal or the entry of summary judgment against their clients which is historically more likely to occur in federal court.

The EEOC announced that it received 93,277 workplace-discrimination complaints in fiscal year 2009, which ended September 30, 2009.  For the first half of fiscal year 2010, over 70,000 employees filed employment discrimination claims with the EEOC—a 60% increase from 2009.  Continuing a 10-year pattern, the most frequently filed claims with the EEOC were those alleging race discrimination (36%), retaliation (36%), and gender discrimination (30%).[4]

Employment discrimination cases often relate to alleged discriminatory termination, failure to hire, denial of promotion, retaliation or hostile work environment (“workplace harassment”).  Employment discrimination cases raise claims of racial discrimination, age discrimination, gender discrimination, disability discrimination, pregnancy discrimination and retaliation.

Effectively and Efficiently Defending an Employment Discrimination Lawsuit

Lynch & Robbins evaluates each employment discrimination case for our clients independently and creatively based upon the particular circumstances present.  We desire to aggressively defend and seek dismissal of any claims that lack merit and pursue any of the many available defenses to alleged employment discrimination.

The key to most employment discrimination cases is whether the employee can prove that they were intentionally discriminated against in the terms and conditions of employment based upon a protected category (race, color, gender, age, religion, a disability, pregnancy or national origin).  In the overwhelming majority of cases, the only way the plaintiff/employee can establish intentional discrimination is by showing by circumstantial evidence that a “similarly situated” employee outside of their protected category was treated more favorably under similar circumstances.  The courts have labeled this element of a plaintiff’s case the “comparator.”   If the plaintiff cannot present sufficient evidence of the existence of a “comparator,” the defendant may be able to prevail in the case on a motion for summary judgment without the need for a trial.  See Corell v. CSX Transp. Inc., 6th Cir., No. 08-2381 (2010).

Fair and Consistent Employment Practices and Excellent Recordkeeping

Employers should keep detailed records of their employment decisions, conduct periodic audits of their employment practices and receive employment law training on the various and changing areas of employment law.  We believe one of the best employment practices available is to apply employment policies and make employment decisions consistently and fairly—then keep meticulous records of those decisions.  The United States and Florida Departments of Labor also have useful information and tools to help employers on their websites at www.dol.com and www.stateofflorida.com.   Unfortunately, even the best employment policies, decisions and recordkeeping cannot prevent disgruntled current or former employees from bringing claims.

Our Experience and Service

Lynch & Robbins advises employers on employment law matters and defends companies sued for alleged employment discrimination.  We are committed to providing our clients the most current methods for preventing and defending employment claims in an effective and efficient manner.

Vincent Lynch is the Managing Partner of Lynch & Robbins. Mr. Lynch has over 18 years of Employment Litigation experience and served as a state and Federal Court law clerk. Mr. Lynch has represented small and Fortune 500 companies in class action and individual employment discrimination cases including Raymond James, Publix, Home Depot, CCH, Disney, HCA, Ryder, and Walgreens.  He was admitted to The Florida Bar in 1992.

---

[1] Title VII of the Civil Rights Act provides the broadest of federal protections for employees prohibiting discrimination in the workplace and the creation  of a hostile work environment based upon race, color, gender, religion and national origin.  See 42 U.S.C. Section 2000e-2.
[2] Florida has both a “private” and “public” sector whistleblower statute prohibiting retaliation against an employee for reporting, complaining about, or refusing to participate in a violation of federal, state or local laws, rules or regulations.  See Sections 448.102 and 112.3187, Fla Stat.
[3] This does not include state court cases or federal disability discrimination cases filed specifically under the ADA or other civil rights cases against employers.  See Public Access to Electronic Records (“PACER”).
[4] http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm

Potential Minefields Exist in All Areas of the Law That Could Affect a Medical License

By: Christopher Hixson, Esq., Associate of Lynch & Robbins, P.A.

In the State of Florida, several industries and professionals are mandated to acquire a license prior to working in that field.  As many license holders undergo hours upon hours of training, test taking and applications to work in their respective fields, many hold their licenses in high regard.   However, many licensees fail to realize that legal actions taken in other forums, such as small claim courts, civil lawsuits, or criminal proceedings, all have lasting consequences that may have effect upon retaining a professional license. This update focuses on licenses regulated by the Department of Health (“DOH”) who is entrusted by the State of Florida to conduct disciplinary proceedings against medical professionals.[1]

Criminal Convictions

During the 2009 Legislative Session, the Florida Legislature passed H.B. 425 which took effect on October 1, 2009, requiring all professional licensees to report to the agency within thirty (30) days of being convicted, found guilty of, or having plead nolo contendere or guilty to a crime in any jurisdiction.[2] The penalties for a violation of this newly enacted law ranges from a small fine up to and including revocation.  The key phrase of this law is “having plead nolo contendere or guilty.”   While criminal defense attorneys zealously represent their clients by requiring the State to prove accusations beyond a reasonable doubt, the issue of the consequences upon an individual’s license is rarely considered or taken into account.  The judge in the matter routinely asks if the person understands that the plea may subject them to immigration issues or civil commitment prior to accepting the plea, but those questions are devoid of advising that the individual’s license may be jeopardized by entering the plea.  With this new law in effect, one should take this into account as the individuals livelihood could be at stake.

Common Pitfalls

A much discussed concern is complaints issued in relation to various accidents in the workplace.   Accidents may stem into charges of negligence and gross misconduct in the workplace.[3] While negligence is always a concern, the licensee must be reminded the scope of the disciplinary power of the DOH is much larger.

Failure to Complete Continuing Education Units (“CEU”) on Time

When a licensed individual is unable to complete their CEUs in a timely manner, they have violated the licensure requirements and are subject to an administrative complaint.[4] The individual may attempt to remedy the situation and complete the CEUs prior to an administrative complaint.  This would seem to logically end the process as the licensee now has complied correct?   The answer is not that easy.   Once the license holder fails to comply with the requirements, a violation has occurred.  Their subsequent actions do not justify the original delay in the compliance.  Therefore, the Board may press forward with discipline if they choose.  The Board has a duty to impose discipline upon licensees who fail to remain compliant.  The licensee cannot rely upon the Board as parents for reminders to perform their obligations.

Controlled Substances and Associated Violations

Violations involving the misuse and mismanagement of controlled substances are handled routinely by the Board.   As the individuals are routinely around and have access to controlled substances, not only are controlled substance related incidents harmful to the license holder but to public safety.   The typical way this is addressed by the board is referral to the Intervention Project for Nurses (“IPN”).[5] The Board requires an evaluation and any associated treatment with IPN during a probationary period.

Violations Based Upon the Improper Administration of a Business

Even actions not directly dealing with patients can invoke administrative complaints.  For example, writing a bad check or failing to pay suppliers or pay judgments all invoke administrative complaints despite the lack of direct harm to patients.  The violation comes from a “catch all” provision that indicates that a licensed individual must not fail to perform any statutory or legal obligation.[6] While the matters seem mundane and irrelevant, the Board does not take this lightly as the mismanagement of legal affairs may be an indicator of the mismanagement of other parts of the licensed individual’s practice and thus putting the public in harms way.

Defending an Administrative Complaint

Defense of an administrative complaint begins with the licensee’s election to contest the facts or not.  Since the action is one that affects a “substantial interest”, the individual is permitted to have a hearing on the matter[7], either by “informal” [8] or a “formal” [9] hearing.  In either case, the individual normally has 21 days to respond or the matter will proceed to the “informal” hearing by default.[10] Subsequent actions involve negotiation, review of documents, presentation and argument as to if any violation occurred and any mitigating and aggravating factors surrounding the matter.  An attorney is permitted at all stages and should be contemplated.

Our Experience

Our firm has represented many individuals in these matters, from pre filing of the administrative complaint up and through informal and formal hearings and appeals if needed.  Our clients have included nurses, contractors, cosmetologists, architects, and many of the other professions under which Florida law requires licensure.

No information or explanation in this article should be construed to establish an attorney client privilege or be intended as specific legal advice in your matter as each individual contains unique facts and circumstances that must be evaluated accordingly.

Attorney Christopher Hixson is an associate of Lynch & Robbins.  In addition to representing professionals before their various boards and before administrative judges; Hixson practices within the areas of federal litigation, intellectual property, employment law, and civil cases in addition to criminal and family law.  Mr. Hixson serves on the Board of Trustees for the Pinellas County Law Libraries and as a Florida Supreme Court Circuit and County mediator.  He has been a member of the Florida Bar since 2007.

---

[1] Fla. Stat. §456.073
[2] http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_h0425__.xml&DocumentType=Bill&BillNumber=0425&Session=2009
[3] Fla. Stat. §456.072
[4] Id.
[5] http://www.ipnfl.org/
[6] Fla. Stat. §460.413(1)(i)
[7] Fla. Stat. §120.569(1)
[8] Fla. Stat. §120.57(1)
[9] Fla. Stat. §120.57(2)
[10] Fla. Admin. Code 28-106.111(4)

Potential Minefields Exist in All Areas of the Law That Could Affect a Professional License

By: Christopher Hixson, Esq., Associate of Lynch & Robbins, P.A.

In the State of Florida, several industries and professionals are mandated to acquire a license prior to working in that field.  These fields encompass professions from architects and real estate agents to cosmetologists, interior designers, the medical professions[1] and contractors.[2] Entrusted with the power to regulate these professions is the Florida Department of Business Professional Regulation (“DBPR”)[3] and the Department of Health (“DOH”).  In particular is their power to conduct disciplinary proceedings.[4] As many license holders undergo hours upon hours of training, test taking and applications to work in their respective fields, many hold their licenses in high regard.   However, many licensees fail to understand the disciplinary process and its structure.  Without this knowledge, license holders may make a decision contrary to their best interest or to what they believe they are doing.

Defending an Administrative Complaint

Defense of an administrative complaint begins with the licensee’s election to contest the facts or not.  Since the action is one that affects a “substantial interest”, the individual is permitted to have a hearing on the matter[5], either by “informal” [6] or a “formal” [7] hearing.  In either case, the individual normally has 21 days to respond or the matter will proceed to the “informal” hearing by default.[8] Subsequent actions involve negotiation, review of documents, presentation and argument as to if any violation occurred and any mitigating and aggravating factors surrounding the matter.  An attorney is permitted at all stages and should be contemplated.

The Lack of Response Trap

A common situation occurs when a licensed individual receives an administrative complaint, does not seek counsel, and do not know what they are allowed to do; so they do nothing.   This results in the Board proceeding with an “informal” hearing.  This means that the licensee admits to all allegations and is awaiting discipline at the hearing.  Only then does a licensee finally realize what is going on and understands that they had the right to contest matters.  At this point, unfortunately, it is past 21 days and they have waived their right according to the plain language of the statute and rules.[9] Many believe at this point all is over and they are not able to fight the charges any more.  However this is not always the case.   The law allows that if the licensee disputes material facts in the matter, the “informal” hearing must cease and a “formal” one be initiated before an administrative law judge.[10] While the standard seems simple enough, it is how one begins to dispute the material facts that invoke this non publicized rule.   Consulting an attorney would best afford the licensee to avoid this situation altogether or to best present the argument to the panel to stop the “involuntary” hearing and substitute a formal one instead.

Informal Hearing Discipline

At an “informal” hearing, the license holder admits to all allegations and is subject to the whim of the Board for disciplinary action to take place.  The Board is bound to give discipline under guidelines[11] outlined by Florida Statute and the Florida Administrative Code which also has provisions permitting the Board to consider mitigating and aggravating factors that allow the Board to reach beyond the guidelines.  Therefore, while disciplines are required to be administered within a confined scope, the Board knows they may deviate from the standard and do so depending on certain factors.[12]

Formal Hearing Discipline

If you dispute material facts and are permitted a formal hearing, an administrative judge will conduct a trial and give a recommendation as to findings of fact, law and what discipline should be administered, if any at all.[13] The judge will follow the same guidelines and exceptions as above.  It is then up to the Board to make the final determination to adopt the recommendation or not.

Settlement Agreement Discipline

At any stage, informal or formal, the licensee and the agency attorney may come to an agreement on the disposition of the matter, primarily over what discipline should be administered to forego any future hearings in the matter.   If this is done, the licensee and the agency attorney both sign the settlement stipulation and send it to the Board for final approval.   The Board has the authority to reject the agreed upon stipulation and either propose a disposition themselves or set either the informal or formal hearing as was prior anticipated.

Voluntary Relinquishment Discipline

At any stage, informal or formal, the licensee has the option of relinquishing their license.   This may sound counterintuitive since the individual needs the license to work in that regulated field.  When the licensee has little to no mitigating factors or evidence and is faced with significant charges, fines, and revocation, this method may be preferred.  This option permits the licensee to avoid further prosecution before the Board and the fines and other penalties associated in the matter.

Our Experience

Our firm has represented many individuals in these matters, from pre filing of the administrative complaint up and through informal and formal hearings and appeals if needed.  Our clients have included nurses, contractors, cosmetologists, architects, and many of the other professions under which Florida law requires licensure.

No information or explanation in this article should be construed to establish an attorney client privilege or be intended as specific legal advice in your matter as each individual contains unique facts and circumstances that must be evaluated accordingly.

Attorney Christopher Hixson is an associate of Lynch & Robbins.  In addition to representing professionals before their various boards and before administrative judges; Hixson practices within the areas of federal litigation, intellectual property, employment law, and civil cases in addition to criminal and family law.  Mr. Hixson serves on the Board of Trustees for the Pinellas County Law Libraries and as a Florida Supreme Court Circuit and County mediator.  He has been a member of the Florida Bar since 2007.

---

http://www.doh.state.fl.us/
http://www.myfloridalicense.com/dbpr/services.html
Fla. Stat. §455.203
Fla. Stat. §455.225
Fla. Stat. §120.569(1)
Fla. Stat. §120.57(1)
Fla. Stat. §120.57(2)
Fla. Admin. Code 28-106.111(4)
Id.
Village Saloon, Inc. v. DBPR, 463 So.2d 278 (1st DCA 1984)
Fla. Admin. Code 61G5-30 and its equivalent for each Board
Fla. Admin. Code 61G5-30.001(4) and its equivalent for each Board
Fla. Stat. §120.57(1)(l)

Potential Minefields Exist in All Areas of the Law That Could Affect a Contractor License

By: Christopher Hixson, Esq., Associate of Lynch & Robbins, P.A.

In the State of Florida, several industries and professionals are mandated to acquire a license prior to working in that field.  These fields encompass professions from architects and real estate agents to cosmetologists, interior designers, the medical professions and most notably contractors.[1] Entrusted with the power to regulate these professions is the Florida Department of Business Professional Regulation (“DBPR”).[2] In particular is the power of the DBPR and the respective boards that regulate each profession to conduct disciplinary proceedings.[3] These professionals undergo hours upon hours of training and test taking and applications to work in their respective fields.   Accordingly, many hold their licenses in high regard.   However, many licensees fail to realize that legal actions taken in other forums, such as small claim courts, civil lawsuits, or criminal proceedings, all have lasting consequences that may have effect upon retaining a professional license.

Criminal Convictions

During the 2009 Legislative Session, the Florida Legislature passed H.B. 425 which took effect on October 1, 2009, requiring all professional licensees to report to the DBPR within thirty (30) days of being convicted, found guilty of, or having plead nolo contendere or guilty to a crime in any jurisdiction.[4] The penalties for a violation of this newly enacted law ranges from a small fine up to and including revocation.  The key phrase of this law is “having plead nolo contendere or guilty.”   It is often that individuals charged with crimes choose to not take their case up and through trial.  Instead a plea bargain may be negotiated and presented to the judge for approval.  While criminal defense attorneys do a fine job in zealously representing their clients and reminding the State it must prove the accusations against them beyond and to the exclusion of each and every reasonable doubt, the issue of the consequences upon an individual’s license is rarely considered or taken into account.  The judge in the matter routinely asks if the person understands that the plea may subject them to immigration issues or civil commitment prior to accepting the plea, but those questions are devoid of advising that the individual’s license may be jeopardized by entering the plea.  With this new law in effect, one should take this into account as the individuals livelihood could be at stake.

Default Judgments Entered Against Contractors

There are many relationships among many different entities in construction.  There are the consumer, the lead contractor, its sub contractors, and depending on the size of the project, the sub contractors of sub contractors.  With these numerous relationships, there exists an intricate maze of liability and contractual relationships.   However two circumstances routinely arise: 1) the contractor is not paid by the consumer and accordingly cannot pay its subcontractors or suppliers; and 2) the contractor is paid but the consumer does not like the work and sues.  Both circumstances, while purely business in nature, have lasting impact on the contractor.  To protect themselves from personal liability, many contractors form a corporation or limited liability company for purposes of doing business.   Accordingly if they are sued, the judgment, if obtained, is against the company and not the individual personally.  These suits are obtained in small claims, county, or circuit civil claims courts.   The theory is that since the company has no assets a judgment against it cannot be collected so why even contest it.  This results in a default judgment being entered and the company is under the obligation to pay the judgment.   However, the contractor that provides the license for the company then puts their license on the line if that judgment is not addressed.   Per the Florida Administrative Code, which governs the disciplinary actions over the licenses, not paying the judgment obtained against the company in a reasonable time subjects the licensed contractor to discipline.[5] Further, a reasonable time is defined explicitly as a mere 60 days.  For a failure to adhere to this rule, this discipline ranges from a $500.00 fine and proof of satisfaction of the judgment up to a $10,000.00 fine and revocation of the license in addition to continuing legal education, investigative costs and prosecutorial costs.[6] This not only subjects the contractor to a judgment but now to an administrative process that will cost time and money and perhaps their license.  This begs the question if the contractor should have, or would have, addressed the underlying lawsuit in a different fashion.

Updating the Construction Project Contract

Neglect to use correctly drafted and complete contract forms may cause harm to your license as well as your bottom line.  Many contractors are aware that filing of liens against property and collection of debt is often contingent upon correct forms, notices and timely action.  A lack of awareness remains for some contractors who still do not provide necessary notices such as the required Florida Homeowners Construction Recovery Fund. The few hundred dollars a contractor may spend with a construction law attorney to update this important document pales in comparison to the lost receivables and possible cost of defending an administrative complaint by the Construction Board.

Defending an Administrative Complaint

Defense of an administrative complaint begins with the licensee’s election to contest the facts or not.  Since the action is one that affects a “substantial interest”, the individual is permitted to have a hearing on the matter[7], either by “informal” [8] or a “formal” [9] hearing.  In either case, the individual normally has 21 days to respond or the matter will proceed to the “informal” hearing by default.[10] Subsequent actions involve negotiation, review of documents, presentation and argument as to if any violation occurred and any mitigating and aggravating factors surrounding the matter.  An attorney is permitted at all stages and should be contemplated.

Our Experience

Our firm has represented many individuals in these matters, from pre filing of the administrative complaint up and through informal and formal hearings and appeals if needed.  Our clients have included nurses, contractors, cosmetologists, architects, and many of the other professions under which Florida law requires licensure.

No information or explanation in this article should be construed to establish an attorney client privilege or be intended as specific legal advice in your matter as each individual contains unique facts and circumstances that must be evaluated accordingly.

Attorney Christopher Hixson is an associate of Lynch & Robbins.  In addition to representing professionals before their various boards and before administrative judges; Hixson practices within the areas of federal litigation, intellectual property, employment law, and civil cases in addition to criminal and family law.  Mr. Hixson serves on the Board of Trustees for the Pinellas County Law Libraries and as a Florida Supreme Court Circuit and County mediator.  He has been a member of the Florida Bar since 2007.

---

[1] http://www.myfloridalicense.com/dbpr/services.html
[2] Fla. Stat. §455.203
[3] Fla. Stat. §455.225
[4] http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_h0425__.xml&DocumentType=Bill&BillNumber=0425&Session=2009

[5] Fla. Admin. Code 61G4-17
[6] Fla. Admin. Code 61G4-17.001(1)(q); Fla. Admin. Code 61G4-17.001(2)-(3)
[7] Fla. Stat. §120.569(1)
[8] Fla. Stat. §120.57(1)
[9] Fla. Stat. §120.57(2)
[10] Fla. Admin. Code 28-106.111(4)