What is the condition of "pretext" in wrongful termination cases in Florida presently? My understanding is you may persuade the trier of fact indirectly by showing the employer lied about the reason for termination. I more specific information regarding this question, but wish to know if this is still a persuasive argument.
State/Country relating to Question: Florida
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Hello,In order to assist you I will need some additional information. Can you give me a very brief description of the circumstances behind the Termination and what you are alleging is the real reason for termination?
YYY hired my wife in 2002, and she worked with them in Florida full time until 2005, when she moved to Boston. They offered her the opportunity to work offsite from Boston and she obliged. In 2010, new management came to the department, and terminated her citing that her being offsite was inefficient and she worked non-traditional hours. I presented 700 pages of documentation showing neither of these claims had credence, including afadavits from coworkers, her supervisor of 8 years, and clients claiming if anything she was more efficient, and that many individuals did not even know she was offsite because of her extraordinary work.I claimed YYY's Reasons For Termination Were Pretext And More Likely Discriminatory/RetaliatoryIn regard to her claim of Wrongful Termination Based on Race (Asian), XXX will make a showing of pretext by showing that YYY's proffered explanation is false, and offered to cover up true motives and intentions. XXX will demonstrate that (1) YYY's reasons are unworthy of credence by showing that the proffered reasons had no basis in fact, and did not actually motivate her separation or subsequent termination.XXX will show other relevant factors to show pretext including (2) disturbing procedural irregularities and (3) YYY's treatment of XXX.I sent this to FCHR, and they said that I raised questions about whether their reasons were realistic, but they were not sufficient to show discrimination. I cited:Grandison v. Consolidated Freightways Corporation of Delaware, 15 F.A.L.R. 2268, at 2277 (FCHR 1993).“The Petitioner may make [a] showing of pretext either directly by persuading the trier of fact that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. The employee may demonstrate that the employer’s reasons are unworthy of credence by showing (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate [the adverse employment action], or (3) that they were insufficient to motivate [the adverse employment action].”Colon-Sanchez v. Marsh, 34 EPD 34,314, 733 F.2d 78 (10th Cir. 1984).Other factors can be relevant to show pretext including: “(1) the employer’s prior treatment of the plaintiff, (2) the employer’s general policy and practice with respect to minority employment, particularly statistics reflecting a general pattern and practice of discrimination, (3) disturbing procedural irregularities, and (4) the use of subjective criteria, especially when used to evaluate candidates that are not objectively equally qualified.” If Pretext Law works in Florida now, as it did in these two cases, I proved beyond any reasonable doubt, with a preponderance of evidence that YYY's reasons were pretextual. I reasoned, in Florida, if you may terminate someone for any reason - or no reason - unless the reason is discriminatory - why would they invent a reason? Besides that I showed many disturbing procedural irregularities when the new management came in, as well as bad-faith, ureasonable, poor treatment of XXX.
Hello again,Thank you for the information. This comes down to a question of fact, not law. The FCHR did not find that there was sufficient evidence of the discrimination, so the issue of pretext is not the overriding issue here, the sufficiency of evidence related to discrimination is the issue. As for why an employer would use a reason for termination when they have an "At Will" employee. Many will do it so that if the employee files for Unemployment Benefits, they would have established "cause" and perhaps the employee will not be eligible for unemployment benefits and therefore the employer will not have their UI tax rate negatively effected. Also, some employers may anticipate that an employee will be more likely to file discrimination claims if they do not give them a reason for termination. That said, I am not saying that you're wrong and that your presentation of your facts was misguided, I am just trying to explain why the FCHR probably came to this conclusion. So, pretext is still relevant in cases to show the there was discriminatory intent, but the botXXXXX XXXXXne is there must be objective evidence of some sort of pattern of discrimination against a member or members of a protected class, or this employee, to show that there was a reason to create a pretextual reason for termination.
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Thank you for your reply. I may still be a little confused. It sounds like what you may be describing is what I understand to be "Pretext-Plus". That being the indirect showing of pretext "plus" a direct showing of discrimination. What I understand Pretext, or "Pretext-Only" to be is an indirect showing.I wonder, how may I, an individual presenting this case first to the FCHR, present any direct evidence of a pattern of discrimination? For 8 years there was no apparent discrimination, then suddenly, two new managers come in, they retain the all-caucasian employees and promote the all-caucasian comparators. It's hard to show a history of discrimination, other than taking over the department, and in the first three months, fire the only minority.
I agree that based on the facts that you presented at the end of this latest response that it appears that you have provided enough factual information to support discrimination and therefore the pretext argument should be considered. I'm sorry if I made it sound like there is some sort of pretext plus, but there must be some showing of a pattern or actual actions of discrimination to support the notion of pretext and to rebut the employer's assertion that the reason for termination is valid. Again though this is a decision based on their factual determinations after considering the evidence presented to them.
Thank again for your prompt response. At the risk of sounding indiscreet, I will show my great appreciation for your help in a meaningful way at the conclusion of this discussion. In several months, I've failed at even getting a phone consultation with an employment attorney in Florida.If you will indulge me further, a core difficulty in my case has been the nature of comparators. While I claim there are several comparators based on length of employment, responsibilities and the like, YYY claims there were no comparators because XXX was the only full-time off-site comparator. I showed three notarized letters from XXX's supervisor, colleague and client that being off-site did not impair XXX's efficiency or quality of work, but rather, there was no difference due to her being off-site. But FCHR agreed that being off-site negated comparisons to other employees. I feel, as do the people who wrote on XXX's behalf, that XXX's position is perfectly suited to being off-site, and that judging an off-site employee as being different is an antiquated and inaccurate judement. Moreover, this comparison upholds the very pretext YYY put forward to establish a "cause" for the termination. Is there, in Employment Law, a clear cut, established difference between on-site and off-site employees, or can it be argued that in certain cases, this situation should not be considered a differentiation between employees?
There is no actual legal distinction between on and off-site employees. So, any distinction drawn would have to be based on the facts. The off-site employee is still an employee and the actions taken in their case as well as those taken for other employees, if similar enough in scope, should all be considered as one. Again though, highly fact specific.
Is there any chapter/section/case law to quote to show the lack of legal distinction? (Final question.)
No, there is no statute. That was the point I was attempting to make. So, I can't give you a citation since there is none. It's like proving a negative. The State can't show a statute to support their position either. This is only a factual issue and interpreted based on the similarities or dissimilarities in the employees on an off-site in their positions, rules, duties, etc.
Licensed Attorney with 27 yrs. exp in Employment Law
May I paste my letter to EEOC requesting a review here for your review?
Yes, but remember that under the Terms of Service of the site, I cannot form an attorney-client relationship with you, which means I can't give you legal advice. I would be more than willing to take a look at what you have, but within the scope of what I am limited to do here.
Perhaps if you could review for tone, any errors, etc.Dear EEOC,We respectfully XXXXX XXXXX indulgence, and submit for your consideration, a request for a substantial weight review regarding the findings and recommendations of the FCHR in the above charge. It is a matter of utmost importance to our family.We disagree with the FCHR’s finding of “No Cause”, and hope the EEOC will review the factual basis of our position. We understand the FCHR is empowered with discretion when interpreting the facts of a case, but it is our position that many of the recommendations are not based in fact but rendered with presupposition and conjecture, are factually inaccurate, and run contrary to reason.It is our belief that XXX was given a six month Separation with Advance Notice (SWAN) on December 1, 2010 for discriminatory reasons.Our statement employs an argument of Pretext. We presented to the FCHR that a discriminatory reason more likely motivated YYY by indirectly showing that YYY'S proffered explanation is unworthy of credence. YYY'S proffered reason for the SWAN was that XXX’s off-site status created inefficiencies within her department. Through a preponderance of evidence, we showed beyond any doubt that this proffered reason had no basis in fact, that it could not have actually motivated YYY to give XXX SWAN and was insufficient to motivate the SWAN. Beyond proving Pretext, we showed other relevant factors including YYY'S treatment of XXX and disturbing procedural irregularities. As impuissant individuals, we lack the ability to compel YYY to supply any information that could directly show a pattern of discrimination, but there is one fact that YYY cannot deny, which we submit is an actual act of discrimination:XXX worked for YYY for eight and a half years until YYY1, YYY2 and YYY3 became the new administrators of XXX’s department. Three months after these individuals collectively assumed responsibility for the Department, they retained, hired or promoted all Caucasian employees and terminated the only Asian Female, leaving only one minority in the entire department in a lower-paid, secretarial position. To mask the true motivations for this action, they proffered a fallacious reason.XXX’s Caucasian comparators were treated differently or better. YYY argued, and FCHR agreed that there were no comparators due to XXX working off-site. There is no actual legal distinction between on and off-site employees. Since there is no statute, this is a factual issue and should be interpreted based on the similarities or dissimilarities of the employees. Our facts show conclusively show that no distinction should be drawn. YYY failed to supply any facts to show otherwise. Therefore, XXX, as an off-site employee was still an employee and the actions taken in her case as well as those taken for other employees, similar in scope, should all be considered as one. Moreover, we submit that this subjective differentiation between on and off-site employees, accepted by FCHR is an erroneous presupposition that unfairly benefited the very pretext YYY put forward to establish a “cause” for the SWAN.YYY had an opportunity to not only retain, but amplify its diversity in the Advancement Division by inviting XXX to return to on-site status. Instead, at best, XXXXX XXXXX indifferent to the matter of diversity and had no policy in place to review the decision made by the three individuals in question. Their decision was to eliminate the existing diversity in the Department, and dilute it further by retaining, promoting or hiring all-Caucasian employees.YYY ultimately terminated XXX when her health prevented her from performing normal daily functions. This fact is corroborated by an MD who is currently treating XXX for depression after her Departmental Vice President gave her SWAN in a manner that contravened all YYY SWAN Procedures. The SWAN was based on paucity of information and oppression, and ultimately harmful to her professional reputation and mental well-being. XXX’s condition was further complicated when this individual broadcast an e-mail to the Department citing the pretextual reasons for the SWAN. It was this oppressive and independently libelous act that caused XXX’s declining mental health. It was then YYY’s refusal to speak to me, her husband, Durable Power of Attorney and Health Care Proxy (since 2008) which induced her to miss three days of work for which YYY cites as the cause of her termination. While they claim she was not in touch with them at that time, I was directly in touch with them on her behalf, as XXX’s MD has stated was necessary due to her condition.In all, YYY and its representatives acted with such fallacious, malicious and oppressive bad faith, it is unrealistic to think XXX’s SWAN and termination was due to XXX being “off-site” and more reasonable to think it was a base, mean, arrogant display of discrimination.Unfortunately, we have not been able to retain an Attorney in the State of Florida. Therefore we are acting Pro Se. This may have led to some of the erroneous conclusions of the FCHR and we hope the EEOC will take our unfortunate and challenging circumstance of having to present our case without the benefit of representation into account when weighing the facts presented.Thank you for your generous time and careful consideration in reviewing this matter.
Hello again,There is nothing wrong with the tone of your letter. What I am wondering though is more the timing and jurisdictional issues here. Can you tell me when your wife filed her FCHR complaint and if they simultaneously filed with the EEOC (which is the standard practice)? If so, have you heard from the EEOC about their own investigation? Has the FCHR issued a 90 day "Right to Sue" letter?
We filed with the EEOC in mid-January, 2011. They gave it a # XXXXX referred us to FCHR who also gave it a number. I have not heard anything more from EEOC at all. FCHR sent a "no-cause" letter to us June 2, 2011, and told us we have 35 days to submit a "Petition for Relief", which I do not understand. I called EEOC about if they were investigating separately, and the person I spoke to there said I would need to send them a request for a substantial weight review ASAP.I wonder if I should call EEOC again and inquire about their separate investigation? Also wondering if the "Petition for Relief" and the "Substantial Weight Review" are the same or different things. Thank you for asking.
Actually the Petition for Relief goes back to the FCHR. It is a higher level review carried out by an Administrative Law Judge. You can see an example of the results of a decision on a Petition for Relief at: http://18.104.22.168/fchr/layout/set/print/content/view/full/2991So, it is not the same thing as a Substantial Weight Review that the EEOC completes. Therefore, you want to submit what you are proposing here as your Petition for Relief. You may also want to check with the EEOC to see what the status of their investigation is.
I called the EEOC, they advised me that there is no independent investigation with them. Once it is sent to FCHR, FCHR conducts the investigation. There's no dual-investigation. :(
I'm not sure if I can request the Substantial Weight Review at the same time as the Petition of Relief, or if I have to wait for the results of the Petition for Relief, and it's difficult to reach the Miami EEOC Field Office today.Also, I requested an extension for the Petition for Relief, and FCHR did not reply. I really worry/wonder about this institution.
I would not count on an extension, so I would submit my Petition ASAP. If you miss a deadline, you can lose any chance to continue with the case. I am not sure why there wasn't a dual filling of the complaint with the EEOC. Perhaps I am misunderstanding and there was a dual filling but not two separative investigations. In that case, then you could still file for substantial weight review but only after you have exhausted your administrative remedies with the State FCHR.
Maybe you are right - that there was a dual filing, because there are two separate charge numbers, but not two separative investigations.So, if I understand correctly, I should go ahead with the Petition for Relief before requesting a Substantial Weight Review with the EEOC. In that case, I reckon I should tone the letter down a bit. Still be advocative, and forceful, but add another 15-25% more humility and respect.The determination is dated June 2, and my petition is due 35 from that date = July 7. I'm attaching correspondence to their form, and expect to mail it Certified Post tomorrow. Even with the holiday I think it should arrive in time. I wonder if I should send it FedEx instead.Thank you for you help and advice!
You're welcome. If you mail it in Florida as certified mail tomorrow, I don't think there is anywhere in the State that wouldn't receive it by the 7th, but whatever gives you more comfort is what you should do. As for your tone, there really wasn't anything wrong with it. All you need to do is to focus on where you think the FCHR went wrong in their analysis and the facts that support your conclusion. Best of luck to you.
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