Last Week in the Eleventh Circuit

Eleventh Circuit Court of Appeals

Weekly Update

February 2, 2019

Published Opinions

There were no published labor or employment cases last week.

A published case not involving labor or employment law issues but which might be of interest is Brewster v. Hetzel , Case No. 16-16350 (January 22, 2019). The Court reversed a jury verdict of conviction due to what it viewed as a series of actions by the trial court that were cumulatively coercive and resulted in the jury eventually reaching a verdict after advising by a series of notes that they were split and unable to reach a verdict and after an Allen instruction had been given. (The Court also had to address the issue of ineffective assistance as trial counsel never objected during the sequence of events). The case is an entertaining read as well, as it begins with some interesting historical anecdotes as to the extent judges have gone to “encourage” jurors to reach verdicts.

Unpublished Opinions

Hamilton v. Sikorsky Aircraft Corp.

Case No. 18-11378

January 25, 2019

The Eleventh Circuit affirmed the district court’s grant of summary judgment to the employer on Hamilton’s claims of wage discrimination in violation of the EPA; race, gender, and national origination discrimination in violation of the FCRA and 42 U.S.C. § 1981; retaliation in violation of the EPA, FCRA and § 1981; and breach of contract based on E.O. 11246.

The Court’s decision contained a lengthy factual recitation. The crux of the case, however, was that Hamilton, a black Jamaican female who worked as a software engineer, did not receive a desired promotion. She was eventually discharged for insubordinate conduct.

Her promotion claims failed because, while she was given raises in several years, she was never rated as having “Exceptional Performance” two consecutive years as her on-site supervisor personally required to recommend promotion, and the record evidence demonstrated that he applied that criteria consistently regardless of race and gender. Hamilton’s EPA and other pay discrimination claims failed after the employer demonstrated that Hamilton’s salary was actual higher than her chosen comparator. Furthermore, although she contended that she was doing work of those in higher labor grades, the employer offered evidence to show those coworkers had job responsibilities that she did not have.

Hamilton’s retaliation claims failed because she failed to contest all the grounds on which the district court granted summary judgment, waiving several arguments in her brief. In challenging the district court’s ruling on her retaliation claim, Hamilton solely focused her argument on the district court’s alternative ruling that the employer had a legitimate non-retaliatory reason for firing her and that she did not present evidence showing that that reason was pretextual. Because she did not challenge the district court’s finding that portions of her conduct were not statutorily-protected expression, the arguments were deemed abandoned and the Court was bound to affirm summary judgment.

Finally, the Court cited Eatmon to support its conclusion that EO 11246 did not create a private cause of action for employees to enforce the equal opportunity clause in their employer’s government contracts.

Parish-Carter v. Avossa

Case No. 17-14588

Jan. 23, 2019

The Eleventh Circuit affirmed the district court’s grant of summary judgment in favor of the employer on Parish-Carter’s claims of race and age discrimination, and the award of attorney’s fees to the defendants, which were imposed as a sanction against Parish-Carter’s attorneys. Most notable were the sanctions issues.

Parish-Carter filed an action alleging discrimination, retaliation, and violation of her due process rights, which was dismissed, in part, and referred to a magistrate for disposition of all pretrial discovery motions. After a discovery dispute, the magistrate judge imposed monetary sanctions in part because of social media posts made by plaintiff’s counsel that said, amongst other things, “[tomorrow] I get to depose the MFing Superintendent” and that he “would love to start a shooting campaign.” The Court noted that this or similar behavior had also been addressed in Abrams-Jackson v. Avossa (covered in our August 3, 2018 summary), a case involving another plaintiff represented by these counsel.

Plaintiff’s counsel also engaged in conduct, relating to the erroneous filing of a draft joint pretrial stipulation by defendant’s paralegal due to a miscommunication, which the district court judge found to be in “bad faith” and in contravention of tenets of professionalism embodied in the federal and local rules. Consequently, the district judge imposed attorney’s fees as a sanction under Rule 11(c), 28 U.S.C. § 1927, and the court’s inherent power.

On review, the Eleventh Circuit noted that the appellant had failed to make any specific challenge to the district judge’s sanctions award; instead, she challenged the magistrate judge’s award, and that challenge was previously dismissed by the Eleventh Circuit because review had not been sought in the district court.

An unpublished case not involving labor or employment law issues but which may be of interest is Douse v. Bain , Case No. 18-12179 (January 24, 2019). Douse had twice previously sued DOJ attorney Bain in his personal capacity after Bain had in a prior proceeding attached documentary evidence to a motion and inadvertently failed to redact Douse’s medical information and certain personally identifiable information as required by Fed.R.Civ.P. 5.2. Both cases had resulted in merits dismissals at the district court and dismissals in the Eleventh Circuit for failure to prosecute. In the case at bar, the Court affirmed the district court’s dismissal of a third such lawsuit on the grounds of res judicata. The most notable aspect of the decision was the Court’s rejection of Douse’s contention that removal of his state court filing to federal court was improper, in which the Court provided an overview of the process by which federal employees sued in state court actions for actions taken in the scope of their employment may have their cases removed to federal court under the Westfall Act and Federal Tort Claims Act.

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.