Eleventh Circuit Court of Appeals 
Weekly Update
 January 16, 2019

Published Opinions

There were no published labor or employment cases last week.
Unpublished Opinions

Case No. 18-11102
January 8, 2019

The Eleventh Circuit upheld the district court’s denial of Berber’s application for preliminary injunction, which asked the district court to compel her former employer, Wells Fargo Bank, to reinstate her as an employee. The Eleventh Circuit additionally concluded the district court properly held that it had subject matter jurisdiction. 

Berber’s initial complaint was filed in Florida state court against the Bank and her supervisor for alleged violations of Section 448.101 et seq., the Florida Private Whistleblower Act (“FPWA”), as the Court referred to it.  Berber claimed that she was fired for refusing to participate in the Bank’s illicit sales practices.  The Bank successfully removed the lawsuit to federal court asserting diversity jurisdiction. The district court then denied Berber’s application for preliminary injunction based on its conclusion that Berber could not establish irreparable harm.  

The Eleventh Circuit agreed Berber did not satisfy the irreparable harm prong to obtain preliminary injunctive relief.  The Court explained that Berber’s alleged harms, like lost wages, were not irreparable but instead could be compensated with a monetary remedy and are expressly provided for under the FPWA.  The Eleventh Circuit also concluded the district court properly found it had subject matter jurisdiction through diversity jurisdiction. While Berber’s complaint contained FPWA claims against Berber’s manager, a non-diverse defendant, the Eleventh Circuit agreed full diversity existed on the ground that the manager was  fraudulently joined as a defendant because liability under the FPWA is limited to employers, not supervisors.  
Case No. 18-11217
January 9, 2019

The Eleventh Circuit affirmed the district court’s grant of summary judgment in favor of the employer on Connelly’s claims that the employer failed to accommodate her disability and discriminated against her in violation of the ADA, and her claim that the employer retaliated against her in violation of the ADA and FMLA.  

Connelly suffered from a depressive disorder.  The Court assumed that Connelly had established a prima face case of discrimination, but concluded she did not rebut the employer’s legitimate non-discriminatory reason for her termination, that she violated the employer’s policy by coming to work impaired.  The policy specifically provided that employees would be subject to disciplinary action, up to termination, if they came to work impaired due to the influence of prescription medications that had not been previously reported.  Connelly admitted she was impaired and that she had undisclosed prescription drugs in her system.  Although she listed several facts as suggesting the employer’s reason was pretextual, none of the factors specifically rebutted the employer’s reason for her termination or demonstrated that the employer’s reason was “ unworthy of credence .” The Court also concluded that while the employer’s failure to complete an employee-conference form, giving Connelly an opportunity to dispute the positive drug-test result, may have been a deviation from policy, there was no basis to suggest the deviation occurred “ in a discriminatory manner . ” 

Connelly’s retaliation claims failed for the same reason her discrimination claim failed: although there was a close temporal proximity between her medical leave and her termination, summary judgment was appropriate because she failed to rebut the legitimate non-discriminatory reason for her termination. 

Finally, summary judgment was appropriate on Connelly’s failure-to-accommodate claim because she never made a specific demand for accommodation.  The Court opined that, while the employer had previously allowed her to “cool down” or go home after emotional outburst, absent a request for accommodation the employer did not violate the ADA by not providing Connelly with a certain amount of time to compose herself.  
Case No. 18-11119
January 11, 2019

The Eleventh Circuit affirmed summary judgment in favor of the employer on Mathew’s claim that the employer accelerated her date of resignation in retaliation for her complaint that her supervisors harassed her because of her race and gender in violation of Title VII.  

The Court opined that, even if it concluded she established a prima facie case of retaliation, Mathews failed to prove that the reason the employer gave for accelerating her resignation was pretextual.  The employer established that the date of resignation was moved from 14 days to 3 because of Mathew’s sequential cash shortages and poor performance and Mathews had testified that she received a notice to improve her performance several months prior.  Matthew’s speculative assertions, that the employer accepted her resignation earlier than she requested in order to prevent an investigation into her complaints of discrimination, did not meet her burden on summary judgment.  
Case No. 18-12070
January 7, 2019

The Eleventh Circuit affirmed the district court’s order granting the defendant’s motion for judgment on the pleadings against the pro se plaintiff, who alleged a variety of theories arising from the failure of the defendant, a job placement firm, to provide him with employment despite twice applying and passing a drug test.  

The Court rejected McCullough’s alleged claim under Section 440.102, Florida Statutes, for lack of a right of action.  McCullough contended that the defendant had violated the statute, apparently on the ground that he did not fall within the definition of a “job applicant” in § 440.102(1)(j) because he did not have a conditional offer of employment.  Reviewing the statutory language, the Court observed that Section 440.102 does not prohibit otherwise legal drug testing not intended to comply with the statute, and noted that the statute includes specific employer protection provisions. Since no provision of the statute could be read to prohibit the defendant’s actions, the Court concluded no right of action existed.  

The Court also concluded that the district court correctly held that McCullough had failed to establish legally viable claims for false advertising, breach of contract, intentional infliction of emotional distress, and the Florida Civil Rights Act.  As to the last claim, McCullough failed to allege that he appealed the final order of the FCHR, and he further failed to raise his retaliation claims in the FCHR proceeding or within a year of their accrual.  

[ Author’s Note : The Court cited  Florida case law for the proposition that a right of action will not be inferred “absent a specific expression of intent.”  However, in  Smith v. Piezo Technology the Florida Supreme Court inferred a cause of action under Section 440.205 despite the lack of an express creation of a private civil claim.  It did so, however, only in the presence of an explicit statutory prohibition on the alleged employer behavior, which did not exist here.  The Eleventh Circuit also distinguished  Laguerre v. Palm Beach Newspapers, Inc. which reached the merits of an alleged claim for violation on the grounds that Laguerre alleged a claim of wrongful discharge for violation of Section 440.102, rather than a claim on the statute itself.  But it is not clear from  Laguerre precisely what the plaintiff’s claim therein relied upon, or whether the Eleventh Circuit’s distinction would have made any difference.  Regardless, McCullough’s claim was doomed, private action or not, because like Laguerre’s, his factual allegations failed to show any violation of the statute.]  
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.