AMERICAN AIRLINES, INC. and EDWIN DIAZ, Petitioners,
KIM CIMINO, individually, as Personal Representative of the Estate of MICHAEL CIMINO, andas Natural Guardian of MICHAEL DREW CIMINO, Respondent.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Patti Englander Henning, Judge; L.T. Case No.
Jennifer Olmedo-Rodriguez, Jesse H. Diner, Kelly H. Kolb, and
Mary Beth Ricke, of Buchanan Ingersoll & Rooney PC, Fort
Lauderdale and Miami, for petitioners.
A. Rosenberg of The Law Offices of Robert A. Rosenberg, Coral
Springs, and Chris Kleppin and Chelsea A. Lewis of Glasser
& Kleppin, P.A., Plantation, for respondent.
MOTION FOR REHEARING
Respondent's motion for rehearing, but withdraw our
previously issued opinion, substituting the following in its
American Airlines, Inc. ("AA") and Edwin Diaz seek
certiorari review of a discovery order that requires
Petitioners to produce allegedly privileged documents to
Respondent Kim Cimino, individually, as personal
representative of the estate of Michael Cimino, and as
natural guardian of Michael Drew Cimino (collectively,
"the Estate"). The trial court determined that
Petitioners "waived privileges" through affirmative
defenses. The trial court reached this decision without
conducting an in camera review of the material at
issue, and without defining the scope of any waiver. As set
forth below, we grant the petition and remand for further
pending litigation arises from Michael Cimino's suicide,
committed days after he was fired by AA. Diaz, who had only
recently become Cimino's supervisor, told Cimino he was
being fired for time card fraud. Cimino, a manager in the
cargo area at the Miami airport, had worked for AA for over
thirty-four years, purportedly without incident, until Diaz
became his supervisor.
operative complaint, the Estate alleges claims for violation
of the Florida Civil Rights Act, negligent and intentional
infliction of emotional distress, negligent retention, and
wrongful death. The Estate alleges that the pretextual firing
of Cimino, a white, non-Hispanic male, followed
Petitioner's long pattern of alleged discrimination and
hostility based on race, national origin, and/or ethnicity.
Specifically, the Estate alleges that Diaz "hates
Anglos" and led the charge to fire Cimino and other
Anglo employees before him, resulting in their replacement
with Hispanic employees. The Estate further alleges that
Diaz, who had been transferred from another location for
bullying, bullied and harassed Cimino, threatening him with
criminal charges and the loss of his pension and insurance.
to the complaint, Diaz hired Cimino's replacement well
before accusing Cimino of any wrongdoing and firing him.
Following purported claims that he was
"piggybacking" into the employee parking lot,
Cimino was placed on administrative leave. He invoked his
right to have a co-worker, Michelle Chung, present for any
discussions with Diaz. Discovery from Chung is one of the
contested issues-the Estate alleges that Diaz scheduled his
final meeting with Cimino when he knew Chung had left work
for the day.
complaint further alleges that AA knew about the bullying and
harassment, and that Cimino was suicidal after the firing, as
he participated in AA's mental health program which had
recommended medication and additional treatment. In short,
the complaint alleges that all of the above led to
Cimino's depression and ultimate suicide.
discovery at issue concerns AA's investigation, conducted
by Jeanette Gibbs (an HR representative), after receiving
anonymous letters from AA Miami cargo employees
following Mr. Cimino's suicide (the "Gibbs
Investigation"), and Gibbs' resulting report. The
letters referenced a petition to remove Diaz and other
bullying supervisors from their positions. According to AA,
the purpose of the Gibbs Investigation was to gather
information to allow AA's legal department to assess
AA's liability ...