employment law

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.


In 2012, the EEOC issued guidance to employers regarding the use of criminal background checks as a pre-employment screening process. link The Agency believed that the use of criminal background check would or could lead to a disparate impact on black job applicants. In its guidance, the Agency stated, “National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin.

On Tuesday, in its continued effort to limit the use of background checks, the EEOC filed suit against Dollar General Corp and a U.S. unit of German auto maker BMW, AG alleging that the companies’ policies regarding the use of background checks had the effect of discriminating against black applicants.

Despite its actions, EEOC senior Counsel James A. Paretti Jr., speaking the American Bar Association ‘s Labor and Employer Conference, explained that the EEOC was not seeking to bar the use of criminal background checks but wanted employers to at least consider what it calls the “Green Factors” in making its employment decisions. In Green, the 8th Circuit identified three factors that it considered relevant to assessing the applicant’s criminal record as it related to the job being sought. They are:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

See Green v Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977).
Employers are cautioned that the use of background checks without consideration of the “Green Factors” could lead to litigation by either a rejected applicant or the EEOC.

For more information on this case and other employment law related matters, please contact Brennan Donnelly at [email protected]

U.S. Department of Labor Finalizes Rules On Employment of Veterans and Disabled Persons

Employers with Federal Government contracts are affected by the final rule proposed by the USDOL. On September 24th the USDOL published two final rules in the Federal Register aimed at increasing hiring of disabled persons and veterans. The rules are effective on March 24th 2014 and federal contractors wil be required to comply with the new rules by that date. Both rules establish minimum goals for hiring disabled employees and veterans. You can view the new rule regarding veterans at
https://www.federalregister.gov/articles/2013/09/24/2013-21227/affirmative-action-and-nondiscrimination-obligations-of-contractors-and-subcontractors-regarding#h-6. You can view the new rule regarding disabled persons at

By: Brennan Donnelly

Empoyment Law Update: FMLA Protections

The U.S. Department of Labor issued a final rule implementing two important expansions of FMLA protections.  In 2008 the FMLA was amended to provide employees with family members serving in the Armed Forces, National Guard and Reserves with FMLA leave for reasons related to their family members’ military service. In 2010 the FMLA was again amended, expanding the military-related leave protections. The FMLA was also amended to include a special eligibility provision for airline flight crew employees.Continue Reading Empoyment Law Update: FMLA Protections

Employment Law Update

Employers need to be aware of a new tool in the plaintiff’s employment lawyer’s arsenal: the Florida Minimum Wage Law (FMWL).

Although Florida voters passed the law in 2004 as an amendment to Florida’s Constitution, codified at Article X, Section 24, Florida Constitution, it has been largely ignored by the plaintiff’s bar until recently.  The legislative implementation of the constitutional provision is found at §448.110, Florida Statutes.

Continue Reading Employment Law Update