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Responses to Charges of Discrimination

The Fort Lauderdale EEOC attorneys at the Mavrick Law Firm have substantial experience representing employers in proceedings before the United States Equal Employment Opportunity Commission (“EEOC”), the Florida Commission on Human Relations, and also before local agencies that enforce anti-discrimination laws and ordinances. In many cases, once The Mavrick Law Firm submits a detailed explanation to the EEOC or other agency showing why there is no merit to the charge of discrimination, the employee does not file suit. By submitting a carefully worded position statement showing there is no valid claim of discrimination or retaliation, most employees will not undertake difficult litigation against their former employer.

In May 2016, the Mavrick Law Firm’s Fort Lauderdale EEOC attorneys obtained dismissal of a charge of pregnancy discrimination against a prominent Plantation, Florida physician’s practice. The charge of discrimination was filed by a disgruntled former employee under Broward County’s Human Rights Ordinance, which requires that “[w]omen affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work.” Federal case law interpreting the federal Pregnancy Discrimination Act provides the relevant legal analysis of such claims of discrimination which the courts refer to as “disparate treatment” claims. To establish a prima facie case, a plaintiff must establish that (1) she is a member of a protected group, i.e., pregnant, (2) she was qualified for the position or benefit sought, (3) she suffered an adverse effect on her employment, and (4) she suffered from a differential application of work or disciplinary rules. Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309, 1312 (11th Cir. 1999). “When a plaintiff alleges discriminatory discipline, to determine whether employees are similarly situated, we evaluate whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.” Burk-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). However, the Pregnancy Discrimination Act “does not require that employers give preferential treatment to pregnant employees.” Spivey v. Beverly Enterprises, Inc., 196 F.3d at 1312. As in many pregnancy discrimination cases, the employee who filed the charge of discrimination against her former employer suggested that the employer had to give her special treatment merely because she was pregnant. However, the law is clear that pregnant employees are to be treated the same as all employees, pregnant and not pregnant, and are to be afforded no special treatment. Mr. Mavrick proved to the Broward County Human Rights Division (the agency investigating the alleged discrimination) that not only did the complainant fail to show she was treated worse than other employees, in fact the employer treated her at least as well as other employees and there was absolutely no evidence of discrimination. The Broward Human Rights Division issued a decision in favor of Mr. Mavrick’s client and dismissed the former employee’s claim.

A month earlier, in April 2016, Mr. Mavrick had successfully represented another employer, a child care business, accused of pregnancy discrimination by a former employee. In that case, Mr. Mavrick’s client had previously settled a worker’s compensation case brought by a former employee. In exchange for the settlement payment, the former employee signed a settlement agreement wherein she agreed to “indemnify, protect and hold harmless” her former employer. Under Florida law, such an indemnification and hold harmless agreement covers claims filed after the Agreement is signed. Vermut v. GMC, 773 So. 2d 126, 126-28 (Fla. 4th DCA 2000) (holding that a claim filed in 1997 was precluded by a “covenant to hold harmless … from any and all liability, claims and causes of action” that was signed in 1995); Villareal v. Eres, 128 So. 3d 93, 100 n.4 (Fla. 2d DCA 2013) (holding that although the agreement did “not use the terms ‘hold harmless’ or ‘indemnification’” it was nevertheless “in the nature of a hold harmless or indemnification” because it released “all claims, including, but not limited to, past, present, or future claims..” The agency investigating the charge of discrimination agreed that the former employee’s claim was barred by her resolution of the worker’s compensation claim and signing the indemnification and hold harmless agreement. Often, former employees in worker’s compensation cases try to get additional monies from their former employers by filing charges of discrimination to extort a further settlement from the former employer. This is why it is crucial for employers to prepare comprehensive settlement agreements that are written with broad enough wording to extinguish such potential discrimination claims.

After the 2008 financial crisis, the Fort Lauderdale EEOC attorneys at the Mavrick Law Firm represented numerous businesses that were victims of baseless discrimination claims stemming from not getting promoted or due to layoffs or employment terminations. In one such case in 2010, former employees had banded together to fabricate bogus claims of discrimination and retaliation. Mr. Mavrick was able to persuade the EEOC that the claim lacked merit. Ultimately, the employee sued in federal court, but Mr. Mavrick proved the claim was meritless and the court dismissed the case with prejudice.

In another case in 2009, a former employee filed a charge of discrimination with the EEOC claiming that he was denied a promotion base on race. The Fort Lauderdale EEOC attorneys at the Mavrick Law firm successfully defended the employer by arguing that federal courts interpreting discriminatory pretext in the context of promotion accord substantial leeway to an employer’s hiring decisions. In the context of a promotion, “a plaintiff cannot prove pretext by simply arguing or even by showing that he [or she] was better qualified than the [person] who received the position he coveted. A plaintiff must show not merely that the defendant’s employment decisions were mistaken but that they were in fact motivated by race.” Brooks v. County Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006). Furthermore, a plaintiff must show that the disparities between the successful applicant’s and his own qualifications were of “such weight and significance that no reasonable person, in the exercise of impartial judgment, could have but that they chosen the candidate selected over the plaintiff.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004). Mr. Mavrick demonstrated to the EEOC that the former employee had never proved being better qualified, but instead merely asserted he was the best qualified without proof. Mr. Mavrick further demonstrated to the EEOC that the employee was actually much less qualified than the successful applicant. The EEOC agreed that the employee failed to satisfy his burden of proof and dismissed the charge of discrimination.

The Mavrick Law Firm also has successfully protected the interests of employers by settling cases after former employees filed charges of discrimination with the EEOC.

Defending Florida Employers From Claims Of Employment Discrimination: Meaning Of “Similarly Situated” Employee

The Florida Civil Rights Act of 1992 (“FCRA”) prohibits workplace discrimination and states in pertinent part: “It is an unlawful employment practice for an employer: To discharge ... or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment….” § 760.10(1)(a), Fla. Stat. (2005). The legal standard to bring a claim of employment discrimination requires what courts call a “prima facie” case, which is a fancy way of saying that the employee must present, in the words of one Florida appellate court, “facts adequate to permit an inference of discrimination.” To show discrimination, the employee must prove the following: (1) the employee is a member of a protected class; (2) the employee was qualified for her position; (3) the employee suffered an adverse employment action; and (4) similarly situated employees outside the employee's protected class were treated more favorably. Peter Mavrick is an employment attorney who defends businesses against employment discrimination lawsuits.

One of the strongest areas for employers to prevail in employment discrimination lawsuits is attack the employee’s failure to meet a critical legal burden: that there are “similarly situated” employees outside of the protected class who were treated more favorably. For example, the Florida appellate court case of Valenzuela v. GlobeGround North America, LLC, 18 So.3d 17, 22 (Fla. App. 3 Dist. 2009), explained the legal standard for similarly situated employees. The employer, GlobeGround, was a provider of aircraft refueling services at Miami International Airport. GlobeGround hired Valenzuela as a commercial aircraft fueler. Licensing requirements mandated that employees such as Valenzuela possess a commercial driver’s license (‘‘CDL’’), which she did not have. On her employment application, the employee lied. The employee misrepresented as a fact that she held a CDL. When GlobeGround informed her that she needed a CDL, Valenzuela only made one attempt to obtain the license. She was subsequently terminated during her probationary period. Despite her obvious improper actions, the employee then filed a Charge of Discrimination with the EEOC against her former employer GlobeGround. After investigating the claim, the EEOC found no grounds for Valenzuela’s complaint. The former employee then filed a lawsuit against the company pursuant to the FCRA alleging she was terminated because she is female. The trial court ruled in favor of the employer and granted the employer’s motion for summary judgment. The employee appealed.

In her appeal, Valenzuela claimed she met the prima facie requirement for gender discrimination. However, the appellate court disagreed. The appellate court explained that the employee failed to establish that similarly situated employees outside of the protected class were treated more favorably. The appellate court held that when determining whether employees are similarly situated to establish a prima facie case, courts must consider whether other employees were involved in or accused of the same or similar conduct but disciplined in different ways. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). The employee must show that she and these other employees are “similarly situated in all relevant respects” and ‘‘the quantity and quality of the comparator’s misconduct [must] be nearly identical.” Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003). The appellate court further expanded this requirement by stating that “[s]imilarly situated employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff’s, without such differentiating conduct that would distinguish their conduct or the appropriate discipline for it.’’ This is a very difficult standard for the employee to meet. The appellate court held that the former employee was not able to establish there were other similarly situated employees and therefore the former employer was entitled to summary judgment. The appellate court affirmed the trial court’s ruling in favor of the employer.

The appellate court further explained that even if the employee had been able to identify similarly situated employees, and employer still should prevail because it was able to show a legitimate, non-discriminatory reason for terminating her employment. The employer established that it terminated the employee because she did not make an effort to or receive her CDL license during the probation period, and that there were issues with her performance as well.

Mr. Mavrick has successfully defended many businesses against employment discrimination claims, including where employees failed to prove a key element of their claims regarding status as “similarly situated” employees.

Defending Florida Employers Accused of "Sexual Orientation" Discrimination An emerging trend in the federal courts is the expansion of federal discrimination law to include "sexual orientation" as a prohibited basis for employment discrimination law. Currently, the Eleventh Circuit Court of Appeals, which governs the the interpretation of federal law within the State of Florida, has held that sexual orientation is not prohibited under the federal anti-discrimination law commonly know as "Title VII," i.e., Title VII of the Civil Rights Act of 1964. In Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), the Eleventh Circuit held that employers cannot be sued for discrimination on the basis of a person's sexual orientation. However, that Eleventh Circuit opinion contained a important dissenting opinion arguing that prior United States Supreme Court precedent had the effect of expanding Title VII to include sexual orientation as prohibited under Title VII. Two other federal appellate courts, the Second Circuit in 2018 and the Seventh Circuit in 2015, have also held that sexual orientation is barred by Title VII. Peter Mavrick is an employment attorney who defends businesses accused of employment discrimination and retaliation. The Mavrick Law Firm represents businesses in Fort Lauderdale (and throughout Broward County), Miami, and Palm Beach.

The recent Second Circuit opinion in 2018 and the Eleventh Circuit dissenting opinion in 2017 similarly argued that sexual orientation is barred under Title VII because an earlier Supreme Court decision in Price Waterhouse v. Hopkins, 109 S.Ct. 1775, 490 U.S. 228 (1989). In brief, the Supreme Court in Price Waterhouse held that stereotyping a person based on that person's sex is a form of sex discrimination under Title VII. In Price Waterhouse, a female sued her former employer (the accounting firm Price Waterhouse) because she was denied promotion to partnership within the accounting firm due to the fact that she did not fit the "feminine" stereotype that a female partner should have in the eyes of Price Waterhouse. According to the plaintiff in the Price Waterhouse case, she was accused in her internal reviews of being too abrasive, brusque, macho and that she did not talk, dress, and act in a feminine enough manner to be admitted to partnership at that accounting firm. The Supreme Court held that "sex stereotyping" is a form of sex discrimination and is a violation of federal law prohibiting sex discrimination.

The Eleventh Circuit dissent and the Second Circuit opinion interpreted the term "sex stereotyping" to include "sexual orientation."

The Eleventh Circuit dissent in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), describes the Price Waterhouse case as revolutionary and on that basis argued that Title VII prohibits discrimination on the basis of sexual orientation. The dissent argued in pertinent part:

To understand why Price Waterhouse was so revolutionary, we need to consider the facts of that case…Price Waterhouse employees described Hopkins as ‘abrasive[,]’ ‘brusque[,]’ and ‘macho’; they also complained that she ‘overcompensated for being a woman’ and that she should have ‘walk[ed] more femininely, talk[ed] more femininely, dress[ed] more femininely, w[orn] make-up, ha[d] her hair styled, and w[orn] jewelry.’” Evans v. Georgia Regional Hospital, 850 F.3d 1248, 1262–63 (11th Cir. 2017) ... Price Waterhouse had passed over Hopkins for partner because it insisted that she should act in a stereotyped “feminine” manner, and she did not... the Supreme Court found that Price Waterhouse's actions violated Title VII. Describing Price Waterhouse's employees' comments as ‘show[ing] sex stereotyping at work,’ the Supreme Court held that Title VII prohibited an employer from ‘evaluat[ing] employees by assuming or insisting that they matched the stereotype associated with their group’…The second part of this statement, ‘or insisting that [employees] matched the stereotype associated with their group’ opened a whole new avenue for Title VII claims by substantially expanding Title VII's previously understood reach of precluding discrimination based on only the first half of the statement, ‘assuming ... that [employees] matched the stereotype associated with their group’... In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender…Because Price Waterhouse had allegedly discriminated against Hopkins for being, in its view, as a woman ‘must not be,’ the Court determined that Price Waterhouse's conduct fell within the bounds of Title VII ... Nor did Price Waterhouse leave any doubt about its scope. In its holding, the Court emphasized that, ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes’…The Supreme Court's message was plain: regardless of the kind of prescriptive stereotype of women that a particular woman failed to satisfy, no employer—and no court—could hold that against her.

The United States Court of Appeals for the Second Circuit followed this reasoning in its 2018 decision in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018). The Second Circuit, sitting en banc (i.e., as an entire circuit with all of the appellate judges in the Second Circuit as opposed to a typical panel of only three appellate judges), held that sexual orientation is prohibited under Title VII of the Civil Rights Act. In Zarda, the plaintiff sued his former employer asserting he was discriminated against for being homosexual and that his employer discriminated against him because he did not conform to “sex stereotypes”. On appeal, the Second Circuit held, “Title VII prohibits discrimination on the basis of sexual orientation as discrimination because of…sex.”. This conclusion was based on the analysis of whether sexual orientation discrimination was motivated, in part, by sex and, therefore, a subset of sex discrimination. The appellate court found that it was and stated, “sex is necessarily a factor in sexual orientation…sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.” The court made it clear that there was “no justification in the statutory language . . . for a categorical rule excluding such claims from the reach of Title VII.”

In 2015, the United States Court of Appeals for the Seventh Circuit, also sitting en banc as in the Second Circuit's decision in Zarda, held in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), that “discrimination on the basis of sexual orientation is a form of sex discrimination.” The plaintiff in Hively was a lesbian professor who sued her employer college under Title VII.  The lawsuit alleged that the plaintiff was denied full-time employment and promotions based on her sexual orientation. The district court dismissed the complaint, finding that sexual orientation was not a protected class under Title VII. The Seventh Circuit Court of Appeals disagreed and held that a “person who alleges that she experienced employment discrimination on basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Peter Mavrick, of the Mavrick Law Firm, is an employment lawyer who regularly defends businesses against employment discrimination accusations, claims, and lawsuits.

In reaching its conclusion, the Seventh Circuit in Hively examined past and current holdings of other federal appellate courts as well as the Supreme Court and concluded that the direction of the holdings is that sexual orientation is protected under Title VII. The court’s analysis began by recognizing that, “Congress had nothing more than the traditional notion of ‘sex’ in mind when it voted to outlaw sex discrimination…” Doe v. City of Belleville, Ill., 119 F.3d 563, 572 (7th Cir. 1997). The court in Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) simplified it further by stating, “…Title VII’s prohibition against sex discrimination “implies that it is unlawful to discriminate against women because they are women and against men because they are men.” Later cases accepted these rulings as settled law and the majority of the sister courts agreed.

Although the United States Court of Appeals for the Eleventh Circuit held that sexual orientation discrimination is not prohibited under Title VII, relying on prior precedent from the Fifth Circuit Court of Appeals in Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), the trend of the law indicates that this will likely change in the future.

Peter Mavrick is an employment attorney who defends businesses.