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Federal Judge Donald M. Middlebrooks of the U.S. District Court for the Southern District of Florida has slapped a prominent Fort Lauderdale, Fla., lawyer with a rarely invoked sanction for filing a frivolous employment lawsuit. Charles Whitelock, special counsel to both the Broward, Fla., Sheriff’s Office and the Broward County, Fla., School Board, was hit with the Rule 11 sanction last week in Miami. Middlebrooks ruled that Whitelock submitted a “baseless retaliation claim” and ordered him to pay $8,800 in legal fees to A.E. Products, a 23-employee electronics manufacturer in Palm Beach County, Fla. Judges may impose Rule 11 sanctions to punish lawyers and make them pay the opposing counsel’s legal fees when they determine that the offending lawyer filed pleadings in bad faith to run up the costs of litigation, or filed pleadings that were not properly researched or had no factual basis. “I come to this conclusion even though I generally do not believe in sanctioning attorneys,” wrote Middlebrooks in his ruling. “Oftentimes, a lawyer must rely on the representations of [a] client (true or false) in litigating a claim. However, when presented with objective evidence casting serious (if not fatal) doubt on a pleading’s factual allegations and legal claim, a lawyer simply cannot replead those allegations.” Whitelock, managing partner at Whitelock & Associates in Fort Lauderdale, vehemently denied Middlebrooks’ assertions and filed a motion for reconsideration Tuesday, along with a request for sanctions against the attorney for A.E. Products, Nancy Colman, a partner at Dreier Baritz & Colman in Boca Raton, Fla. He says he will also appeal the judge’s ruling, if necessary. “I’ve been practicing law for 30 years in this community,” he says. “This is my reputation at stake.” BATTERY CONVICTION Attorneys who represent employers call such sanctions long overdue. Tom Harper, editor of the Florida Employment Law Letter and an employment lawyer at Haynsworth Baldwin Johnson & Greaves in Jacksonville, says Middlebrooks’ decision could dissuade lawyers from taking on questionable cases for disgruntled ex-employees. From the perspective of plaintiffs’ lawyers, the facts of the Whitelock case, combined with Middlebrooks’ ruling, could heighten anxieties about taking on clients who are less than candid, or prompt lawyers to do more thorough investigations of clients’ claims. The sanctions ruling arose from an employment discrimination and retaliation case filed June 6, 2000, in federal court in Miami against Lake Park, Fla., company A.E. Products and its president, Stan Allina. According to the lawsuit, Arlinda Luzunaris of Palm Beach Gardens contended that Allina fired her on April 5, 2000, because she is Puerto Rican and because he found out that she was a witness in another employee’s Palm Beach County Office of Equal Opportunity case against the company. That complaint was filed last year by Vickie Gordon, an African-American employee of A&E Products. The issue of when it actually was filed later became central in the Rule 11 matter. But Luzunaris’ lawsuit was severely undercut by a related criminal case against her. According to documents from the Florida Department of Labor and Employment Security Unemployment Compensation Appeals Bureau, Allina fired Luzunaris because he found out that she had broken into secure computer files to obtain confidential salary and personnel information. Allina said he inadvertently found the information — which could only be accessed with a secret pass code — while looking up client data on Luzunaris’ work computer. The confidential information showed up on a list of documents Luzunaris had opened. Allina said he waited for several days, unsure of what action to take. Then he and his vice president of operations confronted Luzunaris. When she refused to confirm or deny that she had accessed the confidential information, they fired her, according to the unemployment documents. At that point, according to a complaint Allina filed with Lake Park Police, Luzunaris became angry and threw a full can of Pepsi Cola at Allina’s cheek, punched him in the chest, and tore document bins off the walls. That’s when he called police, who charged Luzunaris with battery. Last October, Luzunaris was convicted by a Palm Beach Circuit Court jury and was sentenced to nine months of probation, 20 hours of community service and mandatory participation in an anger management course. Allina also obtained a restraining order against Luzunaris. Her conviction weakened her contention that she was fired because of her ethnicity and involvement in the Equal Opportunity complaint. But Allina had still more ammunition in defending against Luzunaris’ lawsuit. He contended in court documents that the retaliation charge was baseless because when he fired Luzunaris, he had no idea that Gordon had filed an E.O. complaint or that Luzunaris was named as a witness in that case. And he insisted that Whitelock, who was representing Luzunaris, knew that he didn’t know. UNMATCHED DATES Indeed, Colman, his attorney, provided Judge Middlebrooks with evidence that Allina did not even find out about the E.O. complaint until well after Luzunaris was fired and had filed her lawsuit. In a motion to dismiss, Colman attached a copy of the Palm Beach County E.O. complaint. The complaint was dated June 9, 2000 — not March 24, 2000, as Luzunaris’ lawsuit stated. In addition, the E.O. complaint made no reference to Luzunaris being a witness. (Whitelock argues that he was referring to the date of the original E.O. intake questionnaire, which he has just received now that the file is closed. That questionnaire is dated March 29 and does list Luzunaris as a witness. But according to the county equal opportunity office, it is the first step in the process of claiming racial discrimination and is not provided to the employer.) Despite the damning facts contained in the motion to dismiss, Whitelock filed an amended complaint reiterating his client’s assertion that Luzunaris was fired because Allina knew she was a witness to an E.O. complaint. Colman then filed her first request for Rule 11 sanctions against Whitelock. Whitelock defends his decision to press ahead with the retaliation claim, saying that he had to take his client’s word about when the E.O. complaint was filed and about her being named as a witness. By law, he argues, he was not permitted to view the E.O. file, which is confidential until the case is closed and could only have been viewed by the parties involved, Gordon and A.E. Products. In addition, he notes that three other lawyers in his office interviewed Luzunaris before he took on the case and interviewed Gordon and Luzunaris personally. “If someone comes in, you don’t have to do a full-fledged investigation,” he says. “I didn’t make this up.” PAY DEMANDS After Whitelock filed the amended complaint, Colman filed a second motion to dismiss, along with a second motion for Rule 11 sanctions against Whitelock. Later she filed a third motion to dismiss and for sanctions. In October, Colman and Allina filed a counterclaim accusing Luzunaris of tortious interference with Allina’s business relationships by distributing confidential salary information to other A.E. Products employees. Allina says the employees, armed with the salary numbers provided by Luzunaris, demanded a meeting with Allina a month after Luzunaris’ departure and insisted on a 25 percent pay raise, coupled with pay cuts for management. Allina says he rejected those demands. Whitelock says he finally learned about the battery charge when Luzunaris off-handedly mentioned, “I have to go to court on this battery charge.” He says he never would have accepted her as a client if he had known about the alleged battery, and promptly dropped her as a client. Whitelock says he had tried for six months prior to that to obtain documentation from Colman on why Luzunaris was fired and says he “got nothing.” Colman disputes this. “We did give them documents,” she says. On Jan. 5 of this year, Whitelock officially withdrew from the case and approached Colman about personally settling the Rule 11 matter. Whitelock says he offered Allina $20,000 but that Colman wanted $50,000 as compensation for her legal fees. On Jan. 31, Luzunaris filed a voluntary notice of dismissal of her lawsuit against A.E. Products and Allina. Allina says he’s not satisfied with Judge Middlebrooks’ sanction against Whitelock. The $8,800 Rule 11 penalty, he complains, covers only a fraction of the $60,000 he says he spent on defense costs; he had sought $40,000 in sanctions. And he wonders why Middlebrooks denied three motions to dismiss the case before finally agreeing that there was no case. Middlebrooks did not return phone calls for comment. But more important, Allina says, the experience has soured his attitude toward his employees. “This used to be a fun place to work,” he says. “We used to celebrate everyone’s birthdays. I used to take them on a [gambling] cruise ship and give everyone a roll of quarters. I don’t trust my employees any more.” Allina says he wishes the U.S. Supreme Court had gone further than it did recently when it upheld the legality of employers requiring workers to sign mandatory arbitration agreements for handling job disputes. He feels arbitration for such matters should be mandatory. “Small businesses cannot afford to defend themselves against every disgruntled employee who sues,” he says. “Why do I have to police the legal industry?”

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