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Booth v. Pasco County, Florida and Int'l Assoc. of Firefighters, Local 4420, No. 12-13389 (11th Cir. July 3, 2014)

A Florida federal jury holds a union and county liable for retaliation against two employees for complaining about race discrimination. The Union argues on appeal that retaliation -- in the form of exposing the plaintiffs' names, complaint and projected cost of defense -- is constitutionally-protected free speech. The Eleventh Circuit affirms the verdict, nevertheless, holding that misleading and coercive speech amounting to a "call for reprisal" is not protected under the First Amendment.

Booth v. Pasco County, Florida and Int'l Assoc. of Firefighters, Local 4420, No. 12-13389 (11th Cir. July 3, 2014): The two plaintiff EMS workers, Brown and Booth, filed race-discrimination and retaliation complaints against their captain. Shortly thereafter, the captain was disciplined, and the plaintiffs (along with all coworkers who had submitted written statements on their behalf) were transfered, allegedly to less-desirable locations.

plaintiffs then "complained to the County and sought help from the Union, to no avail. On April 11, 2008, plaintiffs filed charges against the County and the Union with both the EEOC and the Florida Commission on Human Rights ('FCHR'). In the charges, plaintiffs complained about the actions of their former captain, as well as the County's and the Union's responses to their internal complaints."

The Union emailed the following memo to the membership:

"EEOC Discrimination Charges: 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 members addition al fees to offset the cost. We will update you as it progresses."

In fact, no fee increase was ever enacted. Nonetheless, the email produced a strong reaction against the plaintiffs:

"plaintiffs maintain that nearly all of their coworkers subsequently shunned them. For example, Brown testified that one coworker said 'somebody needed to shut [his] f'ing mouth before their dues went up' and that another tried to provoke him into a fight. plaintiffs maintain that their superiors and coworkers worked to deny them access to available vacation days, voluntary overtime, and 'shift swaps.' On May 24, 2008, an unknown person also put a custom-made sticker with the words 'Department Asshole' on Brown's locker. Brown maintains that this incident was under-investigated and characterized the incident, in a complaint to Department Chief Lopinto dated May 31, as part of the 'continued harassment and a hostile work environment' that had resulted from the Memo. Both plaintiffs allegedly faced resistance when requesting transfers to different stations."

Copies of the email continued to be printed and posted around the station even after the Union ordered it removed.

During litigation of the Title VII and Florida civil rights retaliation claims, the plaintiffs filed affidavits expressing concern for their safety in this environment, suggesting that their equipment might be tampered with. In response, the County ordered, on threat of termination, that they submit to "fitness-for-duty" exams on the ground that "their fear would render them unable to perform their duties." They were sent for an evaluation and six follow-up visits, after which they were cleared to return to work.

A federal jury held the County and Union liable for retaliation: the Union for "NAMING plaintiff's] IN THE LEGAL UPDATE MEMO AND EDITORIALIZING ABOUT POSSIBLE RAMIFICATIONS TO UNION MEMBERS," and the County for imposing the fitness-for-duty exams. Against the County, it awarded Booth $500 in backpay and $10,000 for emotional pain and mental anguish, and Brown $500 in backpay and $12,000 for emotional pain and mental anguish. It also award each plaintiff  $75,000 for emotional pain and mental anguish from the Union, plus $8000 in punitive damages.

The district court then vacated the verdict against (i.e., granted judgment as a matter of law for) the County, holding that there was insufficient evidence that the "fitness-for-duty" exams were motivated by a retaliatory purpose. (The Eleventh Circuit reverses this order and mandates entry of the jury's verdict for the plaintiffs, holding that "there was evidence tending to establish that at least [Chiefs] DeSimone and Calano believed plaintiffs' statements to have a possible basis in reality" and that the plaintiffs did not facially meet the conditions for such exams.)

On appeal, the Union's principal argument is that the adverse action that the jury found against them was constitutionally-protected speech, and thus could not be the basis of civil liability. Affirming the entry of judgment, the panel determines that even if the memo outing the plaintiffs by name might constitute a form of speech, the jury could have found that the false, coercive and private nature of the communication forfeited any constitutional protection.

The panel begins by assuming that the judgment was a "content-based" burden on the Union's speech, though it expresses doubts: "It is less clear that anti-retaliation laws, such as the ones at issue here, function as content-based restrictions on speech. It is true that liability under the anti-retaliation laws may sometimes attach because of the content of a particular statement, which supports the argument that those laws may be content-based in application. ... It seems unlikely, however, that liability will often attach because of disagreement with the speaker's message."

Nonetheless, the panel finds that the Union's memo was more than simply communicating a message. Rather, the Union's speech in the Memo was a "call for retaliation and a threat of further retaliation" and that it was "at least arguable that the Union's statements amounted to speech that is incidentally proscribable because it is used to aid in an unlawful act...."

Thus, there were ample grounds depriving the memo of First Amendment protection. "First, it is absolutely clear that there is a compelling government interest" in forbidding retaliation against employees who invoked the protection of civil rights laws. "Second, on the basis of our independent review, we conclude that the Memo contained both an implicit 'call for reprisal' and also a threat of further retaliation. In the Memo, the Union intentionally invited its members to retaliate against plaintiffs because plaintiffs had filed EEOC charges." The panel notes that the implication that the plaintiffs' charges would cause union fees to go up (which turned out to be groundless) "was reasonably perceived as a baseless threat of further retaliation if plaintiffs did not drop their EEOC charges." Finally, "and most significantly, we find strong support for rejecting the Union's First Amendment challenge in the fact that the Union's speech at issue in this case involves a matter of little or no public concern." The panel determines that the jury found liability NOT for the Union's expression of its views on the merits of the plaintiffs' claims, but for the call for reprisal, i.e., that the Union "identified plaintiffs, invited Union members to retaliate against them for having filed EEOC charges, and threatened to impose assessments in order to fund the Union's defense." Moreover, the speech was not disseminated publically and did not involve the public in any way.

The opinion thus provides insulation for unions to engage in robust, federally-protected public speech, while proscribing threats and groundless accusations that would deter reasonable employees from complaining about discrimination.

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