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September 2011

Miami Employment Team Prevails On Summary Judgment In Contentious Pregnancy Discrimination And FMLA Retaliation Case

Partner Robert M. Mayer and Senior Counsel Truth Fisher prevailed on a motion for summary judgment on behalf of a major corporation in the U.S. District Court for the Middle District of Florida. The plaintiff is a former employee who also resided on one of the employer's residential properties. The employer terminated the plaintiff's employment after she was a no call/no show for a period of two days. Upon termination, plaintiff was also required to vacate her company-owned apartment. Plaintiff, who was seven-months pregnant at the time of the termination and eviction, claimed that she had prior permission to be absent and that the termination was part of an effort to preclude her from exercising her FMLA leave rights once her baby was born. In her complaint, Plaintiff alleged retaliation under the federal FMLA, pregnancy discrimination under Title VII's Pregnancy Discrimination Act, and gender discrimination under Florida's Civil Rights Act.

Truth and Robert litigated the case against a well-known plaintiff's employment firm in Florida that had assigned three attorneys, including its senior partner, to work-up the case on behalf of the plaintiff. Prior to the filing of the summary judgment motion, plaintiff conducted massive discovery including deposing six executives and obtaining a court order for the company's stored back-up emails from an off-site server.  Despite the massive discovery, complicated factual scenario and compelling damages elements, Gordon & Rees was able to craft a persuasive summary judgment motion that focused on the timeline, the plaintiff's burden and the company's strong anti-discrimination education programs and policies as well as conflicts in the plaintiff's testimony.

Plaintiff then filed a series of pleadings seeking multiple extensions to continue discovery and submitted an affidavit from a "mystery witness" at the final hour in opposition of the summary judgment motion.  Plaintiff's new witness was another former employee who had left several years before while seven months pregnant, claiming she could not work for the same supervisor who had terminated the plaintiff. In her affidavit, the witness made several highly damaging statements about the supervisor's treatment toward pregnant employees.  To salvage the summary judgment motion, the team moved for leave to file a reply brief, which is rarely granted as reply briefs in the Middle District of Florida are not permissible without leave of court.

Knowing that the affidavit contained false information but not wanting to create a disputed issue of fact, the team vigorously argued the need to clarify the evidence for the court. The court granted leave citing that it believed a reply brief would be "helpful."  The reply brief focused on the argument that the court should ignore the "mystery witness" statements as legally irrelevant "me too" evidence that had no bearing on the legitimacy of plaintiff's claims.  The presiding judge over the case, Judge Virginia M. Hernandez-Covington, agreed with Gordon & Rees's logic and legal arguments and granted Camden's motion in its entirety and ordered the case closed.

The damages sought by the plaintiff were in the hundreds of thousands of dollars, the matter has been fully resolved and judgment entered on behalf of Gordon & Rees's client.