Eleventh Circuit Court of Appeals 
Weekly Update
 April 19, 2019

Published Cases

There were no published labor or employment law cases last week.  
Unpublished Cases
Case No. 18-11006
April 9, 2019
The Court affirmed summary judgment in favor of the employer (“PPC”) on Duckworth’s claim of disability discrimination in violation of the Florida Civil Rights Act. 
Duckworth was a debone supervisor, responsible for two production lines. In October 2013, he began experiencing health issues. He was approved for medical leave from October 22 through November 18, 2103. After a November 16 surgery, his doctor wrote a note stating he could return to light duty work on December 23, which he did. However, he did not report to work on several shifts in early to mid-January, and left early on one day.  Supervisors were expected to report absences two hours before their shift and supervisors who failed to do so were at risk of immediate termination. Duckworth neither properly reported his absences nor provided medical documentation for them. Instead, he called employees other than his supervisor hours after his shifts had started to say that he would not be at work. On another day, he emailed his supervisor and the HR benefits coordinator after his shift started stating that he would not be at work. His absences resulted in complaints from other supervisors who had to quickly alter production lines. Later in the month, Duckworth’s fiancé provided the employer with a doctor’s note excusing him due to illness until January 20, but on the 20 th he reported he would be out until January 22. On January 21, the employer received a note from Duckworth’s doctor stating he would return to work “full duty” on January 22. He was terminated after returning to work.
The Court assumed, without deciding, that Duckworth established a prima face case of disability discrimination. The employer’s proffered reason for termination was the excessive unexcused absenteeism in January. Duckworth argued that this reason was pretextual because he did not receive prior warnings about absences and he argued that the disparate treatment of other employees also proved pretext. The Court noted that the employer was not required under its policies or the law to progressively discipline Duckworth. It held that there was no evidence that the January absences were because of his surgery or related issues, much less any evidence sufficient to create an issue of pretext. It further opined that the comparator analysis also did not establish pretext: although Duckworth contended that those requiring finite limited leave were not penalized and those requiring indefinite uncertain periods of absence were fired, the evidence demonstrated that those who provided documentation or medical excuses for absences were retained while those who did not were dismissed. Moreover, Duckworth’s argument did not address whether the employer honestly believed he was violating the attendance policy or whether that reason was a cover-up. Consequently, the Court concluded he failed to create a triable issue of fact. 
Case No. 18-12148
April 8, 2019
The district court dismissed Wilbur’s Federal Tort Claims Act (FTCA) complaint as time-barred and within the discretionary function exception. The Eleventh Circuit agreed Wilbur’s complaint should have been dismissed, but for other reasons: his claims were precluded by the Civil Service Reform Act (CSRA).
The DOL’s Office of Inspector General (OIG) had opened an investigation into allegations that Wilbur, in his capacity as safety and health officer for OSHA, committed perjury in connection with one of his inspections. Wilbur ultimately resigned, and about a month later, OIG issued its investigative report. Later, Wilbur received a tentative job offer from the U.S. Citizenship and Immigration Services (USCIS) as a safety and health manager. But after receiving a copy of the OIG report, USCIS withdrew its offer. Along with USCIS’s notification of withdrawal, Wilbur received (apparently for the first time) a copy of the OIG report. Wilbur appealed the decision to the Merits System Protection Board (MSPB), and his appeal was dismissed as untimely. Instead of appealing that decision to federal court, Wilbur filed an administrative complaint under the FTCA asserting negligence and intentional infliction of emotional distress stemming from the OIG’s investigation of him. When he received no response, he filed his federal FTCA suit six months later. 
The district court dismissed his complaint reasoning that most of his claims were time-barred and the sole claim that was not related to DOL’s transmittal of its investigative report to the USCIS fell under the discretionary function exception to the FTCA. The Eleventh Circuit expressed doubts that Wilbur’s FTCA challenge to the OIG report was untimely. Instead, the Court resolved the case on the jurisdictional ground that the CSRA provided Wilbur’s exclusive remedy under these facts and precluded his FTCA claims. The Court explained that Wilbur had a chance to bring a claim under the CSRA but his MSPB appeal was filed too late, resulting in its dismissal, and he did not appeal that decision to the Federal Circuit.
The Eleventh Circuit Weekly Update was prepared by Reemployment Assistance Appeals Commission staff: case summaries by Chairman Frank E. Brown, and Appellate Counsel Cristina A. Velez and Katie E. Sabo; editing by Deputy General Counsel and Chief Appellate Attorney Amanda L. Neff; research and layout by Research Attorney Lesley Blanton.