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A diminutive female human resources manager summoned a hulking male employee into her office to discuss his job performance. She shut the door, began a litany of complaints about his work performance, then fired him. In 2002, the man filed a claim for arbitration against the Miami company and threatened to sue, a not uncommon move for an employee who’s been terminated. But this ex-employee’s legal maneuvering was different from the traditional wrongful termination case. According to Miami lawyer Anne Marie Estevez, who defended the employer in that case, the man threatened to go to Miami-Dade Circuit Court on a common law claim of false imprisonment. The burly, 6-foot-tall male contended that the barely 5-foot-tall female manager imprisoned and terrified him by holding the closed-door meeting. Estevez was able to quash the man’s claim before it reached court. She and other employment lawyers, on the defense and plaintiff sides say the case illustrates two trends — increased filings of employment claims in Florida state courts rather than federal court, and the growing popularity of common law claims, such as false imprisonment, defamation, battery, intentional infliction of emotional distress, and negligent hiring or retention. But defense and plaintiff lawyers differ sharply on whether such cases are an appropriate use of state courts and common law. Estevez, a partner at Morgan Lewis & Bockius, decries the increased reliance on state common law theories in employment cases. “There’s a trend that the torts are going to be used for what they’re not supposed to be used for,” she said. “A lot of these claims have been rewritten to fit in a different box, but it’s really just the same claim.” But plaintiffs attorney William Amlong of Amlong & Amlong in Fort Lauderdale, Fla., argues that plaintiffs who seek legitimate redress for wrongful employer conduct have no choice but to turn to the state courts, since the federal courts have become so hostile. “You don’t just tack [a common law claim] on there willy-nilly,” he said. “You have to have a basis for doing so, you have to have a theory of liability and the facts that back it up.” Until recently, federal courts were plaintiffs’ preferred venue for bringing labor and employment claims. That’s because Congress passed civil rights laws in the 1960s prohibiting employment discrimination based on age, sex and race, and an extensive body of case law as well as a process for filing employment discrimination and harassment claims have developed in the federal court system. But in recent years, federal courts in Florida and other states have become less open to such suits, with federal judges more likely to dismiss them before trial and even sanction plaintiff lawyers for bringing frivolous or fraudulent claims. Federal appellate law, written by increasingly conservative appellate courts, has become less and less favorable for such claims. Additionally, damages in employment discrimination are capped in federal court, based on the size of the company. The most a plaintiff can hope for is $300,000 in damages if the company has more than 500 employees. Many plaintiffs lawyers have responded by shifting from federal to state courts, and from federal civil rights claims to state civil rights and common law theories. Such common law theories often are used to block defendants from removing cases to federal court on diversity and other grounds. Employers, on the other hand, generally fight to keep employment suits handled in federal court. Some employment claims have succeeded in South Florida state courts. Last summer, Amlong reached a $180,000 settlement in a Miami-Dade Circuit Court case on behalf of a Jewish woman who claimed physical abuse and anti-Semitic taunting at the hands of a Lebanese co-worker. Amlong could not disclose the name of the employer, due to the confidentiality of the settlement agreement. In Broward Circuit Court, Fla., a Publix Super Markets worker who lost his job after a co-worker sent an e-mail claiming he was lying about a disability won a $200,000 jury verdict in his defamation suit. The award was upheld by the 4th District Court of Appeal. In January, a Miami-Dade Circuit Court jury awarded Arthur Geddes, an American Airlines technician, $100,000 in a defamation and negligence case involving a claim of wrongful termination. Geddes said the airline wrongly fired him without properly investigating his co-worker’s allegation that Geddes physically threatened him. That case currently is on appeal. But defense lawyers argue that many of the common law cases in state court have failed because they were clearly frivolous. Estevez said she had a recent case in Miami-Dade Circuit Court in which an employee sued for intentional infliction of emotional distress after a co-worker spit on her notebook. In court, the plaintiff writhed on the floor to show her emotional pain. The defense won a motion for summary judgment, after spending thousands of dollars on legal costs. NUMBERS UP While there are no official statistics on the volume of labor and employment claims in state court, the sharp increase in complaints filed with the Florida Commission on Human Relations supports the widespread perception among employment lawyers that there is a rise in employment claims in state forums. The Florida Commission on Human Relations is the state’s version of the federal Equal Employment Opportunity Commission. For the 2004 fiscal year, the commission received 1,966 new filings, up 73 percent from 1,137 filings in fiscal year 1999. Most complaints were job-related, with a small number related to housing problems. Employees can file discrimination complaints with the commission up to one year after an alleged incident. The commission works in cooperation with the EEOC to investigate claims and determine what action should be taken. Employment discrimination claims typically pass through the EEOC or the FCHR for review prior before they are filed in court. The number of complaints filed with the commission first ticked up in fiscal year 2001, when the technology stock bubble burst and companies laid off workers. That year filings went up 30 percent, to 1,437. The following year, as the economy reeled following the Sept. 11 terrorist attacks, complaints rose another 11 percent, to 1,604. The Florida Human Rights Act of 1977 prohibits employment discrimination on the basis of race, sex, religion, national origin, disability and age. The 1977 act gave the FCHR the power to act as an enforcement agency. Title VII of the federal Civil Rights Act of 1964 prohibits employment discrimination. It served as the basis for most plaintiff suits in the early days of employment suits. In 1991, Congress amended Title VII, granting more generous damage provisions. A flood of lawsuits followed. In previous years, plaintiffs lawyers preferred to bring various kinds of employment cases, including discrimination, harassment and whistle-blower suits, in federal district court. But Amlong blames the 1991 amendments in the federal law for making the federal courts tougher on plaintiffs. “Federal court pre-1991 was a very heady place for civil rights lawyers,” he said. “After that, I think the judges had reactions to just tons of these lawsuits being filed. Are they all meritorious? No. But along the way, the case law that’s grown out of some of the more marginal cases has developed to hurt the good cases.” Melanie Damian, a plaintiffs lawyer and partner at Damian & Valori in Miami, agreed that the growing volume of discrimination suits in federal courts is detrimental to plaintiffs with legitimate cases. “There are so many discrimination cases in federal court, because of pure quantity and the standards they’re more likely to be dismissed,” said Damien, who formerly represented defendants. HOSTILE FEDERAL COURTS Fort Lauderdale plaintiffs lawyer Donna Ballman said she began filing employment cases in state courts in the past two years because she felt she had a better shot of getting past summary judgment. “I’ve found that the state court summary judgment standard is much more equitable for plaintiffs, and you have a much better chance of getting a trial,” she said. “It became clear that state court was the place to be.” Both plaintiff and defense attorneys note that federal judges more aggressively weigh the facts at the summary judgment phase, while state court judges are more likely to leave questions of fact up to a jury, making it easier to get a case in front of a jury in state court. Carmen S. Johnson, a shareholder at Akerman Senterfitt in Miami who represents employers in workplace cases, said she expected plaintiffs attorneys to switch to state courts sooner. “I’m surprised it’s taken this long, since the Florida [civil rights] statute gives plaintiffs the ability to collect unlimited damages.” Amlong said he shifted to state court after seeing his hard-fought jury awards in federal district court get overturned by the 11th U.S. Circuit Court of Appeals. Amlong represented Blaise Pfefferkorn and Ed Brouchu, two Riviera Beach police officers who alleged they were transferred in retaliation for alleging Police Department corruption. In 2001 jury trials in the Southern District of Florida, Pfefferkorn and Brouchu were awarded nearly $500,000 on their First Amendment and retaliation claims. But the following year, the 11th Circuit reversed the verdict, finding in part that no reasonable jury could have found evidence that Brouchu was transferred because of speaking out. “At that point I’m saying, ‘Why am I wasting my time here?’” Amlong said. “There’s no reason in the world why state courts can’t try these claims.” Statistics suggest that Amlong’s experience is not uncommon. According to a 2001 study by researchers at Cornell University law school of federal appeals in employment cases found that the 11th Circuit overturned verdicts for plaintiffs in 35 percent of cases, while defense verdicts were overturned in only 7 percent of cases. Plaintiff lawyers in South Florida also grew leery of bringing cases in federal court after federal judges hit several prominent attorneys and firms, including Amlong’s, with heavy sanctions for filing false or frivolous actions. In 2000, U.S. District Judge Joan Lenard ordered sanctions against Amlong and his wife and law partner, Karen Amlong. Lenard accused them of filing a baseless suit and threatened fines of up to $500,000. The final judgment in that case is pending. A factor outside of the courts that could be affecting plaintiffs’ ability to make a case may be employers’ increased awareness of liability in the workplace. “It’s getting tough to make these claims anywhere, which is why [plaintiffs] are relying on these state claims,” Anne Marie Estevez said. “Employers are getting savvy now. They have HR departments, they explain policies and they put these policies in place.” Estevez said that as employers develop policies on discrimination and as they educate and train their staff about the policies, they are protecting themselves from liability down the road. DEFEATING REMOVAL Not surprisingly, defense attorneys prefer to keep employment cases in the federal courts and often fight to remove state court cases to federal venues. They do so by arguing that the cause of action is a federal one, the amount of money at issue is more than $75,000 and that none of the defendants is from the same state as the plaintiff. “If there’s any way to remove it from state court, I would,” Johnson said. “The defense will make any kind of tortured argument that will keep it in federal court,” Ballman said. But in many cases, plaintiffs attorneys have succeeded in blocking defense efforts to remove cases. Having common law theories in the suit is one key method. “Plaintiff attorneys have gotten more creative and smarter about where and how they file their claims,” said Dori Stibolt, an associate at Steel Hector & Davis in West Palm Beach who represents employers. By filing solely state law claims, whether they are under Florida civil rights laws or Florida common law, plaintiffs often can defeat an argument for removal on the basis that the case involves only federal questions. Defense lawyers also try to remove cases on diversity grounds, arguing that the defendant company is headquartered outside Florida and that individual employees generally can’t be named in a federal civil rights suit. But state common law theories allow plaintiffs to name individual managers who reside in Florida, serving as another basis for defeating removal efforts. “If they want to beat diversity, they’re going to name a supervisor here in Florida, and they’re only going to file with the [Florida Commission on Civil Rights],” Stibolt said. Johnson acknowledged that in many cases the strategy of filing common law claims works for plaintiffs, leaving defendants to fight on the less favorable terrain of the state courts. “If there’s no federal claim that’s apparent, your only basis [for removal] is diversity,” Johnson said. “Once that individual is named as a defendant, they’ve in essence defeated diversity.” The Geddes case against American Airlines, which Ballman handled, shows how naming an individual employee can beat diversity. Geddes originally filed the defamation and negligence case in state court in 2002. American Airlines countered by removing the case to federal court, claiming that there were no in-state defendants. Ballman then added a supervisor as defendant. But a federal question held the case back. American argued that the federal Railway Labor Act was the applicable statute, since it governs the discipline of airline employees and that it pre-empts state law. Geddes responded that the pre-emption issue would be properly raised in Miami-Dade Circuit Court, and that the circuit judge could rule on the matter. In 2003, the 11th U.S. Circuit Court of Appeals agreed with Geddes’ argument. American Airlines appealed to the U.S. Supreme Court, which declined to hear the case. In January, the case went to trial in Miami-Dade Circuit Court, and Geddes won a $100,000 verdict. DEFAMATION POPULAR One major type of state employment claim is based on defamation. Plaintiffs typically base such claims on internal communications within the company. Estevez said she had one case in which an accountant sued her employer after an audit found her accounting practices faulty and fired her. The woman complained that the audit “let people know bad things about” her, Estevez said. But a 2002 decision by the 4th District Court of Appeal gave employers some leeway to discuss employee behavior without the discussion being considered defamatory. That case involved Donna Razner, a nurse at Wellington Regional Medical Center who once admitted drinking an alcoholic beverage while on call. Her supervisors later speculated that Razner was drunk on the job after hearing reports that her speech was slurred and she smelled of alcohol. Razner passed a blood alcohol test administered by the hospital. But her supervisors’ closed-door speculation about her alleged penchant for boozing on the job persisted. Razner resigned in 1997 and sued in Palm Beach Circuit Court, alleging defamation and discrimination based on her perceived disability. Razner’s suit was dismissed, and the 4th DCA upheld the lower court’s decision. In its opinion in Razner v. Wellington Regional Medical Center, the appellate court held that Razner’s supervisors’ concerns were valid and that they had discussed her possible alcoholism in good faith. “Certainly the circumstances prompting the conversation would normally be the subject of office discussion,” the court said in its opinion, which held the supervisors’ comments to be privileged. On the other hand, the 4th DCA ruled in favor of the plaintiff in another 2002 defamation case, Borino v. Publix Super Markets. Curtis Borino simultaneously held jobs with both Lakeland-based Publix Super Markets and Atlanta-based Delta Air Lines. His job at Publix involved heavy labor — stocking merchandise and unloading trucks — while at Delta he cleaned out plane cabins and did no heavy lifting. Borino was injured off the job and took disability leave from both jobs. He later returned to work, only to aggravate his injury and go back on disability. But this time, he took disability leave only from his Publix job. Another Publix employee found out that Borino had continued working at Delta, and reported him to human resources in an e-mail. The e-mail alleged that Borino intended to milk his injury for disability pay. Borino was fired for dishonesty, and the reason for his termination was communicated to his former colleagues. He later sued in Broward Circuit Court claiming defamation. A jury awarded Borino $200,000. The trial judge struck down the verdict and granted a new trial. But the 4th DCA in 2002 reinstated Borino’s jury award. The 4th DCA found that Publix’s supervisors’ statements about Borino were not privileged, since they were made known to his former co-workers at Publix. Another typical common law theory in employment cases is negligent retention and hiring. This tends to be used when one employee has harassed or harmed another. Estevez said she’s seen cases where plaintiffs have claimed negligent hiring when one employee was simply mean to another worker. Negligent hiring and retention was cited in a sexual harassment case in Broward Circuit Court filed last month. Christine Bailey, an assistant at Suffolk Construction Co., was working on a downtown Fort Lauderdale development that Suffolk was undertaking with Las Olas River House Corp. Bailey alleged that a representative of Las Olas River House repeatedly harassed her, on one occasion pulling back the waistband of her pants to see what kind of underwear she was wearing. The case is pending. Employment plaintiffs also claim battery. In Amlong’s case involving the Jewish woman harassed by her Lebanese colleague, the Lebanese man allegedly shoved the woman out of his way at work and allegedly commented to her that the fountains of Lebanon were filled with Jewish blood. Amlong settled that case for $180,000. No attorneys interviewed for this article could cite successful cases alleging intentional infliction of emotional distress. Estevez said that type of claim is difficult to win because it’s tough to prove. The Florida Supreme Court has held that plaintiffs in such cases essentially must show that the defendant’s conduct was so far outside the bounds of common decency that it was outrageous. With employment claims becoming more common in state court, some attorneys on both the defense and plaintiff sides predict that, as in the federal system, state courts will toughen the standards for such cases. They predict state judges increasingly will toss cases in the early stages before they reach a jury. “Once the state courts become bogged down with a lot of these types of cases,” said Joseph Fleming, a shareholder at Greenberg Traurig in Miami, “they will want to see how the federal courts are treating them, and they will want to imitate them.” Robert E. Weisberg, a Coral Gables, Fla., plaintiffs lawyer who focuses on employment cases, reluctantly agreed, fearing that state courts will start “borrowing off federal law.” “Federal law in the 11th Circuit is somewhat conservative,” he said. “It would be unfortunate if state courts begin to approach the cases the same way.”

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