Eleventh Circuit Court of Appeals 
Weekly Update
 March 16, 2019
Published Cases

There were no published labor or employment law cases last week.  

Unpublished Cases

Case No. 18-11105
March 8, 2019

The Eleventh Circuit affirmed the district court’s summary judgment in favor of the defendant on the plaintiff’s ERISA claim challenging the denial of health benefits, concluding that the insurer’s determination that the desired hospitalization was not medically necessary was consistent with the plan language.  

The plaintiff suffered from anorexia and other conditions, and sought treatment at a specialized clinic in Miami.  The insurer initially approved a few days of “partial hospitalization” at the clinic, and the insurer’s medical director, a psychiatrist, subsequently granted two extensions.  However, after reviewing the plaintiff’s charts and speaking with the treating physicians, the medical director concluded that the plaintiff had improved, could transition to a lower level of care, and declined further coverage of partial hospitalization as no longer medically necessary.  Two levels of internal review by psychiatrists upheld the decision, as did an external review by a psychiatrist under New York state’s appeal process.  The plaintiff filed her ERISA claim, and the district court likewise upheld the plan decision.  

While the parties contested the proper standard of review, the Eleventh Circuit concluded that it was not necessary to determine the appropriate standard, because the plan’s decision was correct even under de novo review. The plan defined “medically necessary” treatments as those that are offered at “the most appropriate supply or level of services which can safely be provided,” and provided that a level of care remains medically necessary if the patient “continues to present with symptoms and/or history that demonstrate a significant likelihood of deterioration in functioning/relapse if transitioned to a less intensive level” and if she “cannot effectively move toward recovery and be safely treated in a lower level of care.”  The record reflected that the medical reviewers properly applied the plan terms in their review, and the available medical evidence showed that the plaintiff had improved sufficiently during her partial hospitalization that less intensive care would be appropriate. 
Case No. 18-12365
March 8, 2019

The Eleventh Circuit affirmed the district court’s grant of summary judgment to the City on Anterio’s Whistle-blower Act claim and race discrimination claims brought under the Florida Civil Rights Act and Title VII.

Anterio, a white male, was the former police chief of the City.  The City Manager discharged Anterio after investigating a complaint from Anterio’s second in command, Lieutenant Sheppard, a black male, who alleged Anterio was creating a hostile work environment and that he had made jokes using the n-word.  During the investigation, only one officer reported hearing any racial remarks or slurs from Anterio; nearly all officers, however, reported that morale within the department was low because of Anterio.  Meanwhile, Anterio had advised the City Manager that he intended to contact the Florida Department of Law Enforcement (FDLE) regarding various allegations of improper and unlawful conduct by officers within the department, including Sheppard.  Shortly after Anterio emailed the allegations to the FDLE, the City Manager informed him of his discharge, explaining that Anterio did not meet his expectations for a small-town police chief.

The Eleventh Circuit concluded Anterio’s retaliation claim failed to meet two separate requirements of Florida’s public-sector whistleblower law  statute .  First, the Court concluded Anterio did not make his disclosure to the proper entity. The statute specifies that a disclosure concerning a local government must be made to a chief executive officer or “other appropriate local official”; as the Court explained, the FDLE, a state agency, did not constitute an appropriate local official.  Second, the Court concluded the form of Anterio’s disclosure to the City Manager was not protected since it was done orally and not as a written complaint as required by statute.  

As to the race discrimination claims, the Court rejected Anterio’s argument that he presented a “ convincing mosaic ” of circumstantial evidence to show he was terminated based on his race.  Instead, the Court concluded the evidence – that numerous officers reported department morale was low due to Anterio – was fully consistent with the City Manager’s explanation for discharging him.  The Court further found that the  “cat’s paw” doctrine was not applicable in this case because, even if discriminatory animus could be imputed to Sheppard, the City Manager conducted an independent investigation and made an independent decision to terminate Anterio based on non-discriminatory reasons. 
Case No. 18-13058
March 4, 2019

The Eleventh Circuit affirmed the district court’s dismissal of Ronald Jones’s  pro se Section 1983 complaint.  Jones worked as a substitute teacher and his chief assertion was that the school district refused to grant him permanent status “in retaliation for exposing their inappropriate sexual behavior.”  The district court dismissed the complaint, noting that “no purpose would be served by granting leave to amend further.”  

On appeal Jones argued that he stated a claim when he alleged that the school district refused to hire him in retaliation for the filing of this suit, another federal lawsuit, and two administrative actions.  Liberally construing his complaint and brief, the Court opined that Jones had provided no factual basis that would allow the court to infer all three elements of a prima facie case of retaliation: the complaint did not suggest how exposing inappropriate sexual behavior was protected activity nor did it allege how that disclosure was connected to the school district’s failure to hire Jones as a permanent teacher.  His argument that the school district violated Fla. Stat. § 112.313 (6), which prohibits public officers from corruptly using their positions, failed because he did not name any public officers as defendants and  respondeat superior  liability is not available under Section 1983.  Finally, it concluded Jones waived his remaining arguments by failing to properly raise them on appeal. 
Case No. 18-10536
March 7, 2019

The Eleventh Circuit affirmed the district court’s grant of summary judgment in favor of the employer as to some claims, but vacated the court’s judgment in favor of the employer after a bench trial as to others, on the plaintiffs’ FLSA and breach of contract claims arising out of their recruitment by agents of the employer in which the agents illegally required payment of recruitment fees.    

Fancy Farms is a strawberry farm located in Hillsborough County, Florida.  The farm sought to hire temporary employees for the harvest, and engaged Nestor Molina, a principal of an international staffing firm, to assist in recruiting foreign (preferably Guatemalan) workers.  The farm did not discuss with Molina the issue of charging the prospective employees a recruitment fee; however, it directed that the recruitment be “done correctly” and “by the book.”  Eventually Fancy Farms entered into a contract hiring Molina and his partner Patrick Burns as temporary employees of the farm to represent it in recruiting.  The employment contract did not address recruiting fees.  Subsequently, the farm filed labor certifications with the U.S. Department of Labor in support of applications for H-2A visas for the temporary employees, in which it certified that it would contractually forbid any foreign labor recruiter that it employed from seeking or receiving payments from potential employees.  The farm also submitted the required DOL clearance orders, in which it agreed to abide by the regulations that forbid any foreign labor recruiter from seeking or receiving payments from prospective employees.

Unbeknownst to Fancy Farms, Molina had already begun hiring Hondurans and charging them a recruiting fee, promising they would be reimbursed at the end of the season.  When they arrived in Florida, the farm reimbursed their travel expenses, but no employee mentioned the recruiting fee.  The farm first learned of the recruiting fees after receiving a letter from an attorney representing the workers.  The farm provided a notice to the employees with their pay advising them that no one was authorized to collect a recruitment fee on the farm’s behalf, and that they should refuse to pay one.  The farm did not reimburse fees paid by any worker, or agree to do so.  

The workers filed an action against the farm alleging violation of the FLSA and breach of contract.  The FLSA claim was predicated on the fact that netting out the recruitment fee resulted in the employee’s compensation falling below the FLSA minimum; the breach of contract claim was based on the fact that the farm’s contracts with the recruiters did not explicitly prohibit the charging of recruitment fees as required by federal regulations. The parties filed cross-motions for summary judgment as to some or all claims, and the district court granted summary judgment for the employer as to all claims except the contract claims of workers engaged after the farm entered into the contracts with Molina and Burns.

On appeal, the Eleventh Circuit affirmed the summary judgment on the FLSA claims, concluding that under circuit  precedent the employees could not establish that Molina had actual or apparent authority to collect recruitment fees because there was no evidence that the farm provided any information to the prospective workers that caused them to believe that Molina was authorized to charge recruitment fees.  The Court also rejected respondeat superior liability as inappropriate.  As to the contract claims, the Court affirmed summary judgment as to workers paying the fees prior to the date the farms contracted with Molina and Burns.  However, the Court disagreed with the district court’s bench trial judgment, and concluded that the plaintiffs offered sufficient evidence to support a finding that the damages “arise naturally” from the farm’s failure to prohibit collection of a fee in its contracts with Molina and Burns as to workers paying the fee after that date, when the evidence was considered in light of the regulatory purpose for requiring the contractual prohibition.

[ Author’s Note : The contract claim at issue here was described by the  district court as one of first impression for the court.  The claim arises because the labor certification and clearance orders are considered contracts between the employer and the foreign employees.  The district court found that the employees could pursue such a contract claim, and established a material breach of contract, but failed to establish proximate cause for damages.  It is not entirely clear whether the Eleventh Circuit’s order was intended to finally dispose of the issue of causation, and if so, whether an employer could otherwise negate such an initial showing by evidence suggesting that the recruiter would have disregarded the contractual prohibition, which the employer attempted to do below.]
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.