LABOR AND EMPLOYMENT ALERT    August 2010

Case Law Update: FLSA and the Statute of Limitations

In Navarro v. Santos Furniture Custom Design, Inc., Case No. 09-11568 (11th Cir. 2010), an employee brought a claim pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., against his employer seeking damages for unpaid overtime wages spanning his fourteen-year employment with his employer.  The issue on appeal was whether or not the employer had adequately raised the statute of limitations as a defense.

On appeal, the employee urged that the District Court’s application of § 255(a)’s limitation was improper because the employer had waived the limitation by failing to properly plead it in their Answer.  The employer, on the other hand, urged that § 255(a) was not a traditional statute of limitations that must be raised as an affirmative defense. 

Section 255 (a) of the FLSA provides, in pertinent part: “Any action … to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act … may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” 29 U.S.C. § 255(a).

The Court held that although Rule 8(c) requires that a statute of limitations defense be raised as an affirmative defense, this Court has noted that “the purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it,” and, as a result, “if a plaintiff receives notice of an affirmative defense by some means other than the pleadings, the defendant’s failure to comply with Rule 8(c) does not cause the plaintiff any prejudice.”  Therefore, because the employee in this case was fully aware that the employer intended to rely on the statute of limitations defense, and because the employee did not assert any prejudice from the lateness of the pleading, the employer’s failure to comply with Rule 8(c) did not result in a waiver.

Case Law Update: Florida’s Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 (“Take Your Gun to Work”) Does Not Create a Cause of Action for Wrongful Termination Involving Self Defense in the Workplace

On August 26, 2010, Judge Casey Rodgers issued an Order addressing issues related to Florida’s Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 (the “Act”).  Riba v. Wal-Mart Stores East, L.P., Case No. 3:10cv112/MCR/EMT (N.D. Fla. 2010).  In Riba, Plaintiff alleged that while working at Wal-Mart he “used force out of self defense and in an attempt to detain a shoplifting suspect pursuant to store policy.”  After the incident, Plaintiff asserted that false accusations were placed in his personnel file suggesting that he violated store policy.  As a result, Plaintiff filed suit arguing that he was wrongfully disciplined, terminated, and treated disparately because of his age.  Defendant moved to dismiss Count III of Plaintiff’s Complaint (wrongful termination in violation of Fla. Stat § 790.251(4)(e)).

In its Order dismissing Count III of Plaintiff’s Complaint, the Court noted that under Florida law, at-will employees may be terminated for any reason and that there is no common law tort of wrongful termination.  However, Plaintiff argued that the Act served as a public policy exception to the rule and created an exception for the general right of self defense.    In its analysis of the Act, the Court stated as follows:

“[w]ithin that Act, employers are prohibited from violating ‘the constitutional rights of any customer, employee, or invitee as provided in paragraphs (a) - (e),’ and paragraph (e) specifically states as follows: (e) No public or private employer may terminate the employment of or otherwise discriminate against an employee, or expel a customer or invitee for exercising his or her constitutional right to keep and bear arms or for exercising the right of self-defense as long as a firearm is never exhibited on company property for any reason other than lawful defensive purposes. Fla. Stat. § 790.251(4)(e).”

Plaintiff argued that the phrase, ‘“or for exercising the right of self-defense,’ creates a broad exception to at-will employment by establishing a statutory right of self defense by any means (not limited to a firearm in a motor vehicle), protected by the right to bring a wrongful termination suit.”

Ultimately, the Court disagreed with Plaintiff and held, “[t]he statute does not create a cause of action for wrongful termination involving self defense in the workplace generally.”

Case Law Update: Florida Supreme Court Expands Workers’ Compensation Retaliation Claims

Resolving conflict between the Courts of Appeal in the First, Third and Fifth Districts, the Florida Supreme Court ruled in Bifulco v. Patient Business & Financial Services, Inc., that the presuit requirements of Section 768.28(6), Florida Statutes, do not apply to a workers’ compensation retaliation claim brought against a public entity.  In so holding, the Court ruled that under the plain language of the Worker’s Compensation law, actions for workers’ compensation retaliation are authorized against the State and any of its subdivisions, as employers.  Specifically, Section 440.02(16)(a), Florida Statutes, defines “Employer” to include “the state and all political subdivisions thereof [and] all public and quasi-public corporations therein.”

Case Law Update: Eleventh Circuit Upholds Department of Labor Administrative Review Board’s Dismissal of OSHA Appeal as Untimely

In Ellison v. U.S. Dept. of Labor, Administrative Review Bd., Case No. 09-13054 (11th Cir. 2010), Plaintiff alleged that he was terminated in retaliation for engaging in protected activities under the whistleblower provisions of the Clean Air Act, Toxic Substances Control Act, Safe Drinking Water Act, Federal Water Pollution Control Act, Solid Waste Disposal Act, and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  OSHA determined that the complaint was without merit and, thereafter, Plaintiff appealed to the Department of Labor Administrative Review Board (“ARB”).  The ARB dismissed the appeal as untimely, because Plaintiff failed to file his initial brief in accordance with the scheduling order and his counsel’s explanation for the delay was not credible.

On appeal, the Court upheld the decision of the ARB.  In its reasoning, the Court explained, “[we acknowledge that the dismissal of an appeal is a harsh sanction for a procedural error. But because the scheduling order was unambiguous, because [Plaintiff’s] counsel was an experienced litigator familiar with ARB procedures, and because [Plaintiff] was offered an opportunity to justify the filing delay, we cannot conclude that this sanction amounts to an abuse of discretion in this case.”

Case Law Update: Volunteers Not Entitled to Protection Under Title VII

In Gates v. Gadsden County School Board, Case No. 1D09-3636 (Fla. 1st DCA 2010), Plaintiff was a school teacher in the Gadsden County School District.  However, in 2004, she resigned from her teaching position and filed a Title VII discrimination suit against the School Board.  Despite her resignation, Plaintiff continued to participate in a volunteer mentoring program within the school district.  Six months following her resignation, the School Board notified Plaintiff that she could no longer be a volunteer and Plaintiff initiated the underlying action as a result.

The trial court granted summary judgment in favor of the School Board, holding that Plaintiff’s status as a volunteer disqualified her from raising a Title VII claim and that she would be unable to establish that material adverse action had been taken against her.  The First District Court of Appeal reversed.  Although the trial court correctly held that volunteers do not qualify for protection under Title VII, the U.S. Supreme Court has expressly extended Title VII protection from adverse retaliatory action to former employees.  See Robinson v. Shell Oil, Co., 519 U.S. 337 (1997) (holding that because the term “employees,” as used in Title VII, includes former employees, a former employee may sue a former employer for “allegedly retaliatory postemployment actions”).  Therefore, because Plaintiff is a former employee, she is entitled to seek protection pursuant to the Title VII anti-retaliatory provision.    

Case Law Update: Eleventh Circuit Rules in Favor of University in National Origin Case

In Yili Tseng v. Florida A & M University, Case No. 09-15297 (11th Cir. 2010), Plaintiff, a visiting profession from Taiwan, appealed the District Court’s order of summary judgment in favor of Florida A & M University and its Board of Trustees (“FAMU”).  In the District Court, Plaintiff filed an employment discrimination action and alleged, among things, that FAMU discriminated against him on the basis of national origin by promoting another visiting profession (from China) to a tenure-track position.  FAMU argued that it did not select Plaintiff because the other professor was simply more qualified, had better communication skills, and collaborated more with other faculty members.

The Court affirmed the District Court’s ruling.  Specifically, the Court reasoned that Plaintiff failed to present any direct or circumstantial evidence to show that FAMU’s proffered reasons for its decision were a pretext for discrimination.  With respect to direct evidence, the Court explained that just because Plaintiff “was passed over in favor of another foreign national, who also was not a native speaker of English, hardly supports a conclusion that FAMU acted out of animus toward foreigners or foreign accents.”  Plaintiff also failed to identify any remarks or actions that clearly indicated an intent to discriminate.  Regarding circumstantial evidence, the Court stated, “FAMU's choice between two candidates of roughly similar qualifications was not unreasonable. Even if [Plaintiff] were slightly more qualified in some respects, there was not such a disparity between them that ‘no reasonable person’ could have selected [the other professor] over him…[Plaintiff’s] evidence does not show that FAMU's proffered reasons were false. Even if it did, [Plaintiff] offers nothing to suggest that a discriminatory animus against Taiwanese or preference for mainland Chinese was the real motivation for FAMU's decision…FAMU hired and rehired [Plaintiff] for the visiting position four years in a row, all the while being well aware of his nationality

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