The Fourth District Court of Appeal agreed to temporarily keep internal American Airlines Inc. documents out of discovery in a wrongful death case, following the suicide of a manager at Miami International Airport’s cargo department days after his firing.
Family of Michael Cimino claim he was bullied by a supervisor and pointed to an internal AA investigation into possible racial discrimination, but the court ruled releasing those documents could cause irreparable harm to the airline.
The 1,800-page report goes beyond Cimino’s case, stemming from a human resources probe prompted by anonymous letters. The letters petitioned to remove alleged bullies, including Cimino’s Hispanic supervisor, who allegedly discriminated against non-Hispanics. The family’s lawsuit against AA and MIA supervisor Edwin Diaz claim he also bullied Cimino, threatening his pension, insurance and even criminal charges against him.
Cimino, referred to in the complaint as an “Anglo,” had spent 34 years at AA without a problem but was fired over alleged time card fraud. The family claim Cimino’s firing was a pretext, as Diaz supposedly showed a pattern of racial discrimination, “hates Anglos” and had fired other white employees to replace them with Hispanic staff. The suit claims Diaz hired Cimino’s replacement before accusing him of wrongdoing, and claims Cimino had told AA’s mental health program he was depressed.
AA did not respond to a request for comment. Its South Florida attorneys Jennifer Olmedo-Rodriguez, Jesse H. Diner, Kelly H. Kolb and Mary B. Ricke of Buchanan Ingersoll & Rooney in Fort Lauderdale and Miami declined comment.
The airline has repeatedly denied liability, pointing out that its policies prohibit discrimination and claiming that any discriminatory motive was mixed with a genuine reason — Cimino’s alleged dishonesty and falsification of documents. The way AA tells it, Cimino didn’t properly report the bullying or take advantage of the company’s preventive procedures.
But those affirmative defenses fall under Faragher-Ellerth case law, according to plaintiffs lawyer Chris Kleppin of Glasser & Kleppin — meaning they cancel out any privilege.
“If you’re affirmatively going to state that in the court case, then you can’t say, ‘Oh, by the way, everything we did in the investigation is privileged and you don’t get to see it. You just have to take our word for this,’ “ said Kleppin, who’s working on the case with Plantation lawyer Chelsea A. Lewis and Coral Springs lawyer Robert A. Rosenberg.
The way Kleppin sees it, the issue is already settled law.
“The federal courts have run over any employers’ attempts to say these types of documents are privileged. There are far fewer opinions in state court on this issue, so we think that the state court judges on the panel were certainly less familiar with this issue than federal judges,” Kleppin said.
The anonymous letters link Cimino’s suicide with bullying allegations and detail two other attempted suicides by employees, according to Kleppin. But because Broward Circuit Judge Patti Englander Henning hadn’t looked at the documents, the Fourth DCA couldn’t rule on privilege. It quashed the discovery order, asking the trial court to review the documents.
Fourth DCA Judge Alan O. Forst wrote the opinion, backed by Martha C. Warner and Mark W. Klingensmith.
Cimino’s family will ask for more than $1 million for their “needless” loss, according to Kleppin, as Cimino was a high-level employee with benefits and a retirement fund. The lawsuit seeks compensation, punitive damages, future wages and attorney fees, and asks AA to add equal employment policies.
Read the full court opinion: