Employment Defense Team Gets a “Win” for School District

Messer Caparello’s employment defense team of Bob Harris, Jim Dean and Cameron Carstens recently scored a big win for a School District client in an employment discrimination and whistleblower case in federal court in North Florida.

The Plaintiffs, a Husband and Wife, alleged that the School District discriminated against them based on the Wife’s medical conditions (spinal injuries, hypertension and tachycardia) and that the District then retaliated against them because the Wife requested accommodations for her medical conditions. The Plaintiffs also alleged that they were both whistleblowers who made complaints to the Department of Education claiming that the District was neglecting its students, improperly changing students’ grades and attendance records and failing to comply with state standardized testing requirements. The Plaintiffs claimed that the District retaliated against the Husband by withdrawing an offer to hire him as an administrator and that the District retaliated against the Wife by declining to renew her annual contract as a teacher.

The Plaintiffs sought hundreds of thousands of dollars in damages and attorney’s fees, alleging claims of wrongful termination and failure to hire. The School District denied any wrongdoing, and Messer Caparello successfully defended the District in the case. Uncontroverted evidence was provided to the Court which demonstrated that the Wife had engaged in conduct that supported the decision to not renew her contract and that there was no discrimination or retaliation against the Wife or the Husband. Rather, the District consistently applied its performance and conduct policies to its employees, including the Plaintiffs. As the federal court stated in its Order, “there is no basis from which a jury could find that [the Wife] was subject to disparate treatment because of her disability.”  Based on the evidence presented by the School District, the Court concluded the Wife “has not shown that any similarly situated employees have engaged in similar degrees of misconduct.”

In regards to the Wife’s claim of retaliation for being required to attend a school meeting, the Court confirmed several prior decisions by granting summary judgment on the retaliation claim. The Court held, “The Wife cannot establish a prima facie case of retaliation because the claim is based on the School District’s alleged failure to accommodate her by requiring her to attend [a meeting] and it is well established that a retaliation claim cannot be based on a mere failure-to-accommodate.”

In dismissing the Plaintiffs’ FWA retaliation claims, the Court held, “It is undisputed that the [School District] has an administrative grievance procedure for handling FWA complaints and that it also has contracted with DOAH to conduct hearings. Thus, Plaintiffs had to file a complaint under one of those procedures before filing suit, and because it is undisputed that they failed to do so, their FWA claims must be dismissed for failure to exhaust administrative remedies.”

Our employment defense team persuaded the federal district court Judge to grant a summary judgment in favor of the School District before the case went to trial. As a result, the federal court dismissed all of Plaintiffs’ claims, and the Plaintiffs later dropped their appeal at the Eleventh Circuit.

Cameron Carstens Selected as 2024 Florida Rising Star

Messer Caparello, P.A. is pleased to announce that Cameron Carstens has been recognized as a 2024 Florida Rising Star by Super Lawyers in the field of Civil Litigation: Defense. Super Lawyers is a rating service of outstanding lawyers that includes a patented, multi-phased selection process based on peer recognition, professional achievement, and other factors.

Only 2.5% of lawyers across the state of Florida who are under the age of 40 are included on the Rising Stars list. Mr. Carstens has been selected as a Rising Star every year since 2019.

Messer Caparello Attorneys Provide Training to Private Colleges

Bob Harris Presenting Training for Independent Educational Institutions

On May 29, 2024, Messer Caparello attorneys Bob Harris, Jim Dean, Cameron Carstens, Rob McNeely and Monica Freeland provided a full day of training to administrators of over 85 independent postsecondary educational institutions on a host of legal issues. Approximately 110 administrators attended the training. The topics included college regulatory compliance with state and federal regulations, the new Title IX regulations, employment law, ADA issues for students, protection of intellectual property, corporate and business operations, commercial leases and real estate law issues. The attending schools, colleges and universities were all licensed by the Florida Commission for Independent Education, and many were nationally or regionally accredited.

Terry Lewis Presents on Evidence at Criminal Law Review & Board Certification Seminar

Terry Lewis Presents on Evidence

Terry Lewis, a former Leon County Circuit Judge, recently participated as a Presenter at the Florida Association of Criminal Defense Lawyers’ Criminal Law Review & Board Certification seminar held on April 5, 2024, in Lake Mary Florida. Judge Lewis presented on the topic of Evidence. Judge Lewis is a member of the Firm’s mediation and arbitration team. With over thirty years of judicial experience, Judge Lewis has the unique experience and resources to make his mediations and arbitrations successful.

Terry Lewis Participates as Faculty Member at the Florida Bar’s Civil Trial Certification and Review Seminar

Terry Lewis, former circuit judge, recently participated as a faculty member at the Florida Bar’s Civil Trial Certification and Review Seminar. Judge Lewis presented on the topic of Evidence during the seminar, which was held on February 1-2, 2024, in Fort Myers, Florida. Judge Lewis is a member of the Firm’s mediation and arbitration team.

Supreme Court Punts in ADA Tester Case

Supreme Court “punts” in ADA “tester” case
by James J. Dean

If you are a place of public accommodation under the ADA – such as a hotel, restaurant, school, college, doctor’s office, accountant, realtor, store, car dealership or other business open to the public – you may be sued by an ADA “tester” for disability discrimination even though that person has no plans to visit your establishment or do business with you.

In Acheson Hotels, LLC v. Lauffer, the U.S. Supreme Court had an opportunity to change that. Unfortunately, on December 5, 2023, the Court “punted” the case because the “tester” who filed the lawsuit voluntarily dismissed her case during the appeal. That is unfortunate. Serial ADA “tester” litigation has become a cottage industry. As the United States Chamber of Commerce pointed out in its amicus brief in the case:

Litigation under Title III of the ADA (which prohibits discrimination on the basis of disability in places of public accommodation) has exploded over the past several years. Case filings have more than tripled since 2013 and now count more than 10,000 filings annually. These cases are unique not only in their explosive growth, but also in their geographic distribution. More than half of ADA Title III cases are filed in just three states: California, New York, and Florida.

In the Acheson Hotels case, the plaintiff, Deborah Laufer, used a wheelchair and lived in Florida. She sued Acheson Hotels after viewing its website and claiming that the website lacked information required by ADA regulations. Ms. Laufer sued Acheson Hotels even though she had no intention of going there. Ms. Laufer had sued hundreds of hotels that she had no intention of visiting (she sued over 600 hotels in the five years leading up to this case). She often offered to settle immediately for $10,000 in attorney’s fees and corrective action. Significantly, Ms. Laufer dropped her case against Acheson Hotels after one of her lawyers was sanctioned for lying about his attorney’s fees in court fee petitions and in settlement negotiations. The attorney was demanding $10,000 in attorney’s fees per case even though he was using “boilerplate” complaints.

When faced with an ADA accessibility lawsuit, many commercial establishments, especially smaller businesses, feel pressured to settle quickly to avoid the costs of litigation – even when they do not believe they violated the ADA. This is especially true in ADA “tester” litigation, which will continue to be filed in large numbers in Florida. However, there are defenses to ADA claims, and not all “testers” can satisfy the legal requirements to bring a lawsuit.

So, what should businesses do? First, check your websites and facilities to ensure compliance with the accessibility requirements of the ADA. Second, if an ADA claim is made against you, check your insurance policies to see if the claim is covered by insurance. And third, consider consulting legal counsel about your rights and defenses.

Best Lawyers® Names Messer Caparello, P.A. a Best Law Firm in its 14th Edition National Rankings

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, names Messer Caparello, P.A. a Best Law Firm in its 2024 rankings. Best Lawyers’ ranking highlights Messer Caparello’s Ethics and Professional Responsibility and Mediation practice areas. With nearly 50 years of experience in Ethics and Professional Responsibility, Messer Caparello is unrivaled in its representation of public officials in Florida. The Firm’s mediation professionals are likewise uniquely skilled in alternative dispute resolution, having handled thousands of mediations or arbitrations involving a wide variety of legal issues. More information about Messer Caparello’s professionals in these areas can be found here:

Mark Herron
Dom Caparello
Terry Lewis
Thomas Bateman
Richard “Rick” Miller

Rick Miller Conducts Mediation Workshop

Richard “Rick” Miller recently conducted a mediation-skills workshop for Florida’s Second Judicial Circuit. Entitled “Mediation Training: Mediation Survival,” the interactive presentation (which was recorded and posted on the Circuit’s YouTube channel) highlights techniques to avoid impasse and foster resolution. Rick became of counsel with the firm last year and specializes in mediation.

Messer Caparello, P.A., Announces New Shareholders

Tallahassee law firm, Messer Caparello, P.A., established in 1970, is pleased to announce that retired circuit judge Thomas H. Bateman III, Monica Freeland and Cameron Carstens have been named as shareholders with the firm.

Thomas H. Bateman III joined the firm following his retirement from Leon County Circuit Court and offers mediation, arbitration, special magistrate, appraisal umpire and other alternative dispute resolution services.

Monica Freeland has a broad range of experience representing various institutional lenders, businesses and individuals in real estate transactions, including purchase and sale, construction, financing and leasing.   Ms. Freeland is also well versed in ad valorem taxation and advises businesses and county property appraisers across the state concerning taxation matters.

Cameron Carstens focuses his practice on civil litigation in state and federal court, with an emphasis on employment and tort defense, as well as breach of contract and other business disputes. Mr. Carstens also advises public K-12 educational institutions on a wide range of risk management issues and represents clients before state and administrative agencies in licensure matters, disciplinary proceedings and administrative litigation.

Don’t be too quick to discipline students for social media posts done off campus!

When may a school discipline a student for social media postings? Student speech is protected by the First Amendment. And when a student engages in “pure speech” on political or social issues, the student is entitled to extra protection. The law is clear that schools have authority to discipline students for things they say on social media while at school or at school-sponsored events, provided the speech disrupts classwork or invades the rights of others. But what about something a student posts on social media while the student is not at school or at a school-sponsored event?

The United States Supreme Court addressed this issue on June 23, 2021, in the case of Mahanoy Area School District v. B.L. In this case, BL had tried out for the varsity cheerleading squad at the end of her freshman year, but she wasn’t selected. Although B.L. was offered a spot on the JV squad, she wasn’t happy. During the weekend, while at a convenience store, she and a friend used B.L.’s smartphone to post some images on snapchat. According to the Supreme Court’s opinion, one of the images “showed B.L. and a friend with middle fingers raised” and included the caption, “Fuck school, fuck cheer, fuck everything.” The image was seen by the cheerleaders, other students and the cheerleading coaches.

What should the cheerleading coaches do in this situation? After talking it over with the school principal, the coaches decided to suspend B.L. from the JV cheerleading squad for the upcoming year based on her use of profanity and violation of team rules. The Supreme Court ruled against the School District, holding that the suspension violated B.L.’s First Amendment free speech rights (meaning B.L.’s suspension from the JV squad was expunged and she was also entitled to a judgment against the School District for her attorney’s fees).

The Court noted that although some members of the cheerleading team were upset, the school district had not shown that B.L.’s snapchat post had caused “substantial disruption” in the classroom or within the cheerleading program. The Court also explained that a school has less authority to discipline students for social media postings when the posting is not done while the student is at school or at a school-sponsored event.

The lesson here is that schools should not be too quick to discipline students for off-campus speech. Student discipline is more likely to be constitutional when it relates to: (a) perceived threats to school administrators, teachers, other staff or students; (b) speech that criticizes or derides school administrators, teachers or other staff and (c) clear instances of bullying and severe harassment of other students. Otherwise, schools should exercise great caution when considering discipline for off-campus speech.  

Case Information: Mahanoy Area School District v. B.L., 141 S.Ct. 2038 (June 23, 2021).

For more information, contact Bob L. Harris, Esq., at [email protected] or (850) 222-0720.