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Anthony Booth, et al v. Pasco County

February 21, 2012



THIS CAUSE comes before the Court upon Defendant Pasco County's Fed. R. Civ. Proc. 50(b) motion for Judgment Notwithstanding the Verdict, Defendant International Association of Firefighters Local 4420 ("The Union" or "Local 4420")'s Motion for Judgment Notwithstanding the Verdict, and Plaintiffs' Responses. Both motions were made orally on Monday, January 30, 2012.*fn1 Upon reviewing Defendants' arguments, and Plaintiffs' responses, the Court concludes Defendant Pasco County's Motion should be granted and Defendant Local 4420's Motion should be denied.


Plaintiff Anthony Booth ("Booth") and Plaintiff Jerry Brown ("Brown") claim both Pasco County and The Union retaliated against them after they filed various charges of discrimination against Defendants in 2007 and 2008.

Booth states that Pasco County retaliated against him by, among other things: (1) intimidating and retaliating against those individuals he identified as witnesses to his alleged discrimination; (2) downgrading his performance review in certain areas; (3) transferring him to an undesirable location that required an increased work load; (4) causing him to lose substantial overtime and swap opportunities due to a general poisoning of the work atmosphere against him; and (5) mandating that he take a fitness for duty examination on pain of termination. Brown contends that the County retaliated against him in similar ways.

After the Union refused to assist Plaintiffs in prosecuting their charges against the County, Booth and Brown both filed individual discrimination charges against the Union with the EEOC. A short time later, the Union distributed an "Update on Legal Issues" memorandum to firefighters through the County email distribution system. It was later posted in fire station halls, where Pasco County employees, including non-union employees, could read it. The memo, in relevant part, states:

Local 4420 members Jerry Brown and Anthony Booth have filed a Charge claiming unspecified discrimination with the U.S. Equal Employment Opportunity Commission against the Union and the County. The Executive Board and our attorney feel it is a frivolous claim with no grounds for support and we are extremely confident in winning but will still have to defend the charges. This could be very costly and generate a legal bill of $10,000 or more. If it becomes too costly the Union may have to assess its member's additional fees to offset the cost. We will update you as it progresses.

Plaintiffs allege the legal updates memo was distributed by the Union in retaliation for their earlier EEOC complaints against the Union. They contend the memo, which stated that union members would likely have to pay more in dues in order to defend against Plaintiffs' "frivolous" claims, was designed to provoke firefighters to retaliate against them for filing EEOC charges against the Union.

Indeed, according to Plaintiffs, shortly after the Union distributed the legal updates memo, their fellow union members and firefighters did proceed to retaliate against them, quickly turning them into social pariahs. Among other things, Plaintiffs contend that: (1) union members were no longer willing to swap shifts with them; (2) they were not picked for voluntary overtime; (3) they were not welcome at many of the stations to which they wished to transfer; (4) they were subjected to unfair discipline (5)they were subjected to profanity and threats;*fn2 (5) fellow union member's retaliatory conduct, instigated by the Union's memo led Plaintiffs to fear for their lives*fn3 ; and (6) they were otherwise subjected to various harassing behavior

Plaintiffs contend, among other things, the fact that the Union: (1) included their names in the memo (where names on other legal matters wereleft off); (2) characterized their charges as frivolous; (3) stated that dues might have to be increased to pay for the Union's defense (where, at the time of the distribution of the memo it was at best highly speculative that dues would ever be increased), and; (4) disseminated the memo to non-union as well as union employees, all support the inference that the Union disseminated the memo not to inform their members of union business, but rather, to retaliate against Plaintiffs for filing EEOC charges against the Union.

The case went to trial on Plaintiffs' retaliation claims, and, after a six-day jury trial, the jury found for the Plaintiffs against both the County and the Union.

While Plaintiffs alleged that the County took several retaliatory actions against them, the jury only found one of these actions to be truly retaliatory. Specifically, the jury found that "forcing Plaintiff[s...] to sign a statement under threat of termination which resulted in a fitness for duty examination" was an adverse action taken in retaliation for Plaintiffs' filing grievance and EEOC charges against the County. The jury awarded each Plaintiff $500 in lost wages and benefits, $10,000 to compensate Plaintiff Booth for emotional pain and suffering, and $12,000 to compensate Plaintiff Brown for emotional pain and suffering.

The jury also found the Union retaliated against Plaintiffs for filing EEOC charges against the Union. Specifically, the jury found the Union retaliated against Plaintiffs by: "Naming Plaintiff[s...] in the legal update memo and editorializing about possible ramifications to union members." The jury awarded each Plaintiff $75,000 for emotional pain and suffering. And, as the jury found the Union acted with malice or reckless indifference with respect to Plaintiffs' federally protected rights, the jury also awarded each Plaintiff $8,000 in punitive damages.

Now, both Defendant Pasco County and Defendant Local 4420 move for judgment notwithstanding the verdict.


Under Fed. R. Civ. P. 50(b), a Court may overturn a jury verdict only if: (1) the verdict is premised on incorrect legal standards, or; (2) "the facts and inferences point so overwhelmingly in favor of one party that reasonable people could not arrive at a contrary verdict." Brown v. Alabama Dept. of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997)). In deciding whether to overturn a verdict, the Court must view the evidence in a light most favorable to the party opposing the motion. Id. Moreover, the Court may not make credibility judgments, re-weigh the evidence, and/or substitute its own judgment for that of the jury. Id.; Jackson v. State of Alabama State Tenure Com'n, 405 F.3d 1276, 1281 (11th Cir. 2005). On the contrary, the Court's role is limited to deciding whether there is some evidence in support of the verdict such that a reasonable person could have supported it. Brown, 597 F.3d at 1160.

A. Pasco County's Motion for Judgment Notwithstanding the Verdict

Defendant Pasco County argues that the jury's verdict is supported by insufficient evidence and thus must be overturned as a matter of law. Pasco County argues that: (1) referring Plaintiffs to a fitness for duty examination was not an adverse action as a matter of law; (2) Plaintiffs failed to make out a prima facie case of retaliation by failing to show a causal connection between their protected activity and the County's alleged adverse actions; and (3) Plaintiffs failed to rebut Pasco County's proffered legitimate non-retaliatory reasons for its actions, to wit, that it ordered the fitness for duty evaluations for safety reasons.

"A prima facie case of retaliation under Title VII requires the plaintiff to show: (1) she engaged in an activity protected under Title VII; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action." Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008); Butler v. Alabama Dep't of Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008) ("To establish a claim of retaliation under Title VII or section 1981, a plaintiff must prove that he engaged in statutorily protected activity, he suffered a materially adverse action, and there was some causal relation between the two events.").*fn4 Plaintiff's burden of establishing a prima facie case is not heavy. See Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (the prima facie case requirement is not an onerous one).

Importantly, the McDonnell Douglas burden-shifting framework applies to Title VII retaliation claims relying on circumstantial evidence. Brown v. Alabama Dept. Of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). Once a plaintiff has made a prima facie case of retaliation, "the burden of production shifts to the defendant to rebut the presumption by articulating a legitimate, non-discriminatory reason for the adverse employment action." Id. If the defendant is able to successfully rebut the presumption of retaliation, then the ...

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