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On July 10, 2025, the Florida Supreme Court issued its opinion in Steak N Shake, Inc. v. Ramos, No. SC2024-0099 (July 10, 2025) (referred to herein as Ramos).[1] As noted by the Court, under the Florida Civil Rights Act (“FCRA”), a claimant (i.e., the individual filing a charge of discrimination) must “file a complaint with the Florida Commission on Human Relations (‘FCHR’) containing ‘a short and plain statement of the facts describing the violation and the relief sought’ before bringing a civil action under the FCRA.”[2] The question the question addressed was “whether a claimant fulfills this necessary step to exhaust administrative remedies when he specifically references only federal law” in his charge of discrimination that was filed with both the Equal Employment Opportunity Commission (“EEOC”) and the FCHR (a process called dual filing).[3] As noted by the Court, the FCRA allows claimants to file a charge of discrimination with the EEOC instead of the FCHR, as the FCHR and EEOC have entered into what are called worksharing agreements (in essence, the EEOC typically handles the investigating of the charge of discrimination).[4] This blog post will discuss the Court’s opinion and provide guidance to litigants who may be filing or facing a charge of discrimination.

By way of background,  Steak N Shake hired Ramos as a grill operator.[5] During his employment, Ramos alleged that he suffered a back injury in a non-work-related car accident.[6] After the injury, Ramos asserted that Steak N Shake reduced his work schedule and ultimately terminated him. He claimed that “Steak N Shake took these actions in retaliation for his disability and requests for accommodations.”[7] Ramos did not file a charge of discrimination with the FCHR; instead, he filed the charge with the EEOC.[8] Ramos alleged retaliation and disability discrimination and listed only the Americans with Disabilities Act of 1991, as amended, in the “Particulars” section of the form.[9] Ramos did not specifically reference the FCRA in the charge, although it did contain the following statement: “‘I want this charge filed with both the EEOC and the State or local Agency, if any.’”[10] Subsequently, the EEOC forwarded the charge to the FCHR with a note stating that the EEOC would investigate the charge pursuant to the worksharing agreement with the FCHR.[11] Following its investigation, the EEOC sent Ramos a “‘Dismissal and Notice of Rights,’” the determination issued in the vast majority of cases.[12]

After reviewing the notice of rights form, Ramos filed a two-count complaint in the trial court, asserting disability discrimination and retaliation under the FCRA.[13] In response, Steak N Shake filed a motion for summary judgment seeking to have the judge dispose of the case.[14] The company argued that Ramos failed to exhaust his administrative remedies under the FCRA because his charge did not allege any FCRA claims in the document.[15] The trial court granted Steak N Shake’s motion, holding that Ramos did not exhaust his administrative remedies and that the failure could not be cured because the time for filing had expired.[16] On appeal, the Second District Court of Appeal (“Second DCA”) disagreed and reversed the trial court’s decision.[17] The Second DCA held that “‘Ramos was not required to specifically allege in his charge of discrimination that his claims were under the FCRA.’”[18] The court noted that the workshare agreement between the EEOC and the FCHR allow a claimant to dual file a charge with both agencies.[19] The court concluded by holding that the trial court added a requirement to the FCRA not found in the statute.[20] The court did note that the Fourth District Court of Appeal (“Fourth DCA”) had reached the opposite conclusion in a 2023 opinion and certified conflict with that court.[21] The Florida Supreme Court thus accepted the case to resolve the split.

On appeal, Steak N Shake continued to argue that Ramos failed to exhaust his administrative remedies under the FCRA.[22] Specifically, Steak N Shake argued that a claimant must specifically allege a violation of the FCRA in a dual-filed charge of discrimination; if the claimant fails to do so, the company argued, he would be prohibited from pursuing a civil action under the FCRA.[23] The Court rejected Steak N Shake’s arguments and affirmed the Second DCA.[24] The Court held that “we discern no statutory requirement that a party specifically identify the FCRA, even if he only alleges a violation of federal law and dual files that complaint with both the EEOC and the [FCHR].”[25] The Court rejected the company’s argument that “relief sought” and stated in the FCRA requires a claimant to “explicitly state the law violated.”[26] The Court examined the statutory text and the ordinary definition of “relief” to determine that as used in the FCRA, “relief” referred to “a remedy rather than the specific law violated.”[27] The Court further noted that at the time Ramos filed his Charge, the Florida Administrative Code did not include a requirement that a claimant “list the specific law violated.”[28] The Court concluded its analysis by stating, “we cannot go beyond the plain meaning [of the statutory provisions] and inject extra statutory requirements that the legislature did not enact. And here, there is simply no requirement that a complaint specifically reference the FCRA when it is dual filed, even if it only references federal law.”[29] Thus, the Court affirmed the Second DCA and disapproved of the Fourth DCA’s opinion to the contrary.[30]

The Court’s opinion in Ramos provides important guidance to both plaintiffs and defendants. The best practice is to list the FCRA in the charge of discrimination as well, but Ramos makes it clear that this is not required when a Charge is dual filed. For defendants, Ramos makes moot a common argument in cases where plaintiffs failed to list the FCRA in the charge of discrimination.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion is available on the Court’s website: https://supremecourt.flcourts.gov/content/download/2454528/opinion/Opinion_SC2024-0099.pdf (last visited Aug. 28, 2025). Citations in this blog post are to the version posted on the Court’s website.

[2] Ramos, at *1.

[3] Id.

[4] Id., at *4.

[5] Id.

[6] Id.

[7] Id.

[8] Id., at *5.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id., at *5-6.

[15] Id., at *6.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id., at *7. The Fourth DCA’s opinion was Belony v. N. Broward Hosp. Dist., 374 So. 3d 5 (Fla. 4th DCA 2023).

[22] Ramos, at *7.

[23] Id., at *8.

[24] Id.

[25] Id.

[26] Id.

[27] Id., at *8-9.

[28] Id., at *12.

[29] Id., at *13.

[30] Id., at *14.

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On June 5, 2025, the United States Supreme Court (“the Court”) rendered its opinion in Ames v. Ohio Department of Youth Services, No. 23-1039 (June 5, 2025).[1] The unanimous opinion, authored by Justice Ketanji Brown Jackson, addressed whether “reverse discrimination” claims, those brought by a member of a majority group, require meeting a more rigorous burden of proof. As discussed below, the Supreme Court held that such a requirement is not found in the text of Title VII of the Civil Rights Act of 1964 (“Title VII”).

The Court offered few background facts in Ames. As related by the Court, Marlean Ames, a heterosexual woman, was hired by the Ohio Department of Youth Services in 2004.[2] Ames eventually moved into the program administrator role and, in 2019, applied for a management position.[3] The agency ultimately hired a lesbian woman to fill the role.[4] Subsequently, Ames’s supervisors removed her from her program administrator role and hired a gay man to fill that position.[5] Ames accepted a demotion that resulted in a significant pay cut.[6] In response to these actions, Ames filed suit under Title VII, “alleging that she was denied the management promotion and demoted because of her sexual orientation.”[7]

The District Court granted summary judgment in favor of the agency, holding that, under the precedent of the Sixth Circuit (which covers Ohio, Kentucky, Michigan, and Tennessee), Ames had failed to show that the agency had acted with a discriminatory motive “because she had not presented evidence of ‘background circumstances’ suggesting that the agency was the rare employer who discriminates against members of a majority group.”[8] According to the District Court, “plaintiffs who are members of majority groups—including heterosexual plaintiffs, like Ames—could not discharge their evidentiary burden at the first step of the McDonnell Douglas inquiry.”[9] On appeal, the Sixth Circuit Court of Appeals affirmed, reasoning “that Ames, as a straight woman, was required to make this showing (i.e., of background circumstances to support the claim that the employer discriminated against a member of a majority group) ‘in addition to the usual ones for establishing a prima-facie case.’”[10] The court further explained that “plaintiffs can typically satisfy this burden . . . by presenting ‘evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination . . . against members of the majority group.’”[11] Because Ames failed to present such evidence, the Sixth Circuit held that the agency was entitled to summary judgment.[12]

In accepting the case, the Court noted that the Circuits were split regarding whether majority-group plaintiffs must satisfy a higher burden to prove their case under Title VII.[13] The Eighth Circuit, Seventh Circuit, Circuit Court for D.C., and the Tenth Circuit also require the heightened burden.[14] The Court granted review to resolve the split.[15]

In reversing the Sixth Circuit, the Court first noted, “As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.”[16] Title VII’s focus is on whether an individual was discriminated against based on her race, color, religion, sex, or national origin.[17] The Court emphasized that “[b]y establishing the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”[18] The Court noted that its “precedents reinforce that understanding of the statute,” and cited to several opinions holding that majority groups can also be discriminated against under Title VII.[19] The Court thus rejected the Sixth Circuit’s “background circumstances” rule.[20]

In summation, the Court stated, “The Sixth Circuit has implemented a rule that requires certain Title VII plaintiffs—those who are members of majority groups—to satisfy a heightened evidentiary standard in order to carry their burden [under McDonnell Douglas].”[21] The Court reiterated its conclusion that “Title VII does not impose such a heightened standard on majority-group plaintiffs.”[22] Thus, the Court vacated the granting of summary judgment in favor of the agency and remanded the case for further proceedings.[23]

Ames makes it clear that under Title VII, discrimination is discrimination, no matter if the individual belongs to a majority group. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion is available on the Court’s website: https://www.supremecourt.gov/opinions/24pdf/23-1039_c0n2.pdf (last visited July 30, 2025). Citations in this blog post are to the version posted on the Court’s website.

[2] Ames, at *2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. (citing to the District Court opinion).

[9] Id., at *2-3. The Court’s reference to the McDonnell Douglas framework refers to the method of evaluating disparate treatment (i.e., intentional discrimination based on a protected class) claims that rest on circumstantial evidence (i.e., indirect evidence). Id., at *2.

[10] Id., at *3 (citing to the Sixth Circuit opinion).

[11] Id. (citing to the Sixth Circuit opinion).

[12] Id.

[13] Id., at *3 n.1.

[14] Id.

[15] Id., at *3-4.

[16] Id., at *5.

[17] Id.

[18] Id., at *6.

[19] Id.

[20] Id., at *6-7.

[21] Id., at *9.

[22] Id.

[23] Id.

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On February 26, 2025, the First District Court of Appeal (“DCA”) rendered its opinion in State v. Toal, 406 So. 3d 978 (Fla. 1st DCA 2025).[1] In the opinion, the court addressed the question of whether noneconomic damages are available under Florida’s public sector whistle-blower’s act (“the Act”) and determined that such damages are not available under the Act.[2] This holding directly conflicts with the Third District Court’s holding in Iglesias v. City of Hialeah, 305 So. 3d 20 (Fla. 3d DCA 2019), where the court held that that noneconomic damages “could be recovered because the Whistleblower’s Act did not expressly exclude them[.]”[3] Thus, there is currently a split between appellate courts in Florida, and it will be up to the Florida Supreme Court to provide a final answer on the issue (or for the Legislature to revise the Act to explicitly allow such damages). This post will discuss the Toal opinion and its conflict with Iglesias.

By way of background, the Act protects employees of state agencies and independent contractors of state agencies when they raise complaints related to “[a]ny violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public’s health, safety, or welfare” or related to “[a]ny act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor” and face retaliation in response to their complaints if they meet certain reporting requirements.[4] In Toal, the court addressed the damages available under the statute.

The court in Toal provided few background facts, stating merely that “[a]fter Sally Toal was fired from her job with the Agency for Persons with Disabilities (‘Agency’), she sued her former employer alleging that she was subjected to whistleblower retaliation.”[5] As part of her requested relief (i.e., the damages she sought), “she claimed entitlement to compensation for noneconomic damages, including emotional pain and suffering, loss of the capacity for the enjoyment of life, and other intangible losses.”[6] The lower court denied the Agency’s motion to dismiss her claims for noneconomic damages, relying on the Third District Court of Appeal’s decision in Iglesias.[7]  The Agency argued that noneconomic damages were barred by sovereign immunity, an argument not addressed in Iglesias.[8]

The First DCA began its analysis by reviewing the doctrine of sovereign immunity, which applies to suits against the government (here, an agency of the State of Florida).[9] As the court related, sovereign immunity “‘has been a fundamental tenet of Angle-American jurisprudence for centuries and is based on the principle that “the King can do no wrong.”’”[10] The court further noted that sovereign immunity can be waived, but that “‘any waiver of sovereign immunity must be clear and unequivocal,’ and thus ‘waiver will not be found as a product of inference or implication.’”[11] The question of whether a statute has waived sovereign immunity is a question of law, to be determined by the court.[12]

Turning to the statutory language, the court began by examining the relief provision of the whistleblower act.[13] The Act provides:

(9) Relief.—In any action brought under this section, the relief must include the following:

(a) Reinstatement of the employee to the same position held before the adverse action was commenced, or to an equivalent position or reasonable front pay as alternative relief.

(b) Reinstatement of the employee’s full fringe benefits and seniority rights, as appropriate.

(c) Compensation, if appropriate, for lost wages, benefits, or other lost remuneration caused by the adverse action.

(d) Payment of reasonable costs, including attorney’s fees, to a substantially prevailing employee, or to the prevailing employer if the employee filed a frivolous action in bad faith.

(e) Issuance of an injunction, if appropriate, by a court of competent jurisdiction.

(f) Temporary reinstatement to the employee’s former position or to an equivalent position, pending the final outcome on the complaint, if an employee complains of being discharged in retaliation for a protected disclosure and if a court of competent jurisdiction or the Florida Commission on Human Relations, as applicable under s. 112.31895, determines that the disclosure was not made in bad faith or for a wrongful purpose or occurred after an agency’s initiation of a personnel action against the employee which includes documentation of the employee’s violation of a disciplinary standard or performance deficiency. This paragraph does not apply to an employee of a municipality.[14]

The court noted, “Noneconomic damages are not specified as a form of relief under the Whistleblower’s Act, full stop.”[15]

After reviewing the statutory text, the court turned to other statutory provisions related to employment law. For instance, the Florida Civil Rights Act and the private sector whistleblower’s act both provide (explicitly and implicitly) for noneconomic damages.[16] According to the court, the fact that the Legislature did not include language related to noneconomic damages in the Act “shows that noneconomic damages cannot be recovered under the public sector act.”[17]

In reaching its decision that noneconomic damages are not available under the Act, the court distinguished the Third DCA’s opinion in Iglesias. There, the court held that “[t]he [Act’s] language is a floor, rather than a ceiling, on the types of relief that a party can seek.”[18] The court further provided, “The [Act] mandates that an award include the remedies explicitly identified within the statute, but does not expressly exclude other recoverable damages, thereby allowing other forms of relief as may be appropriate under applicable law.” In Toal, the First DCA noted that the Third DCA did not mention sovereign immunity, and there is no indication that the argument was raised by the City.[19] According to the First DCA, Iglesias “is not persuasive authority and cannot support the trial court’s decision.”[20]

In conclusion, the First DCA held that the “Legislature delineated the precise forms of relief that must be awarded to a prevailing plaintiff [under the Act]. And it chose not to include uncapped noneconomic damages within this comprehensive framework.”[21] The court held that even if the statute were ambiguous, the Legislature did not clearly waive sovereign immunity.[22] The court thus reversed the order at issue and remanded the case to the trial court for further proceedings.[23]

We will monitor whether the Florida Supreme Court accepts the case to resolve the split between Iglesias and Toal and will provide an update once it becomes available. Until then, litigants can certainly argue that noneconomic damages are available under the Act and rely upon Iglesias.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion is available on the First DCA’s website at https://1dca.flcourts.gov/content/download/2447904/opinion/Opinion_2024-1651.pdf (last visited June 29, 2025). For purposes of this blog post, the page numbers referenced will be to the version posted on the court’s website.

[2] Toal, at *1. Florida’s Public Sector Whistle-blower’s Act can be found at section 112.3187, Florida Statutes (2025).

[3] Toal, at *2.

[4] § 112.3187(5)(a)-(b), Fla. Stat. (2025).

[5] Toal, at *1.

[6] Id., at *1-2.

[7] Id., at *2.

[8] Id.

[9] Id.

[10] Id. (quoting Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla. 2005)).

[11] Id., at *3 (quoting Am. Home Assurance Co., 908 So. 2d at 472 (other citations omitted)).

[12] Id.

[13] Id.

[14] § 112.3187(9), Fla. Stat. (2025).

[15] Toal, at *4.

[16] Id.

[17] Id.

[18] Iglesias v. City of Hialeah, 305 So. 3d 20, 22 (Fla. 3d DCA 2019).

[19] Toal, at *6.

[20] Id. The First DCA also challenged the Third DCA’s reliance on a 2008 First DCA opinion where sovereign immunity was not addressed and the court made comments regarding damages only in passing. Id.

[21] Id., at *7.

[22] Id.

[23] Id.

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On April 24, 2025, the Florida Senate passed the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (“CHOICE”) Act (“the Act”).[1] If signed into law by Governor DeSantis, the Act will take effect on July 1, 2025.[2] The Act does not replace the current non-compete statute (section 542.335, Florida Statutes), but it instead provides further protections for employers related to certain employment agreements.  The Act will be codified in Chapter 542, Florida Statutes.[3]

According to the Legislative Findings section of the Act, the Legislature determined that “a proper and legitimate state interest is served by enforcing strong legal protections in contracts between employers and contracted personnel which encourage optimal levels of information sharing and training and development.”[4] The Legislature noted that it felt that “nondisclosure agreements, fixed-duration term contracts, and nonsolicitation clauses in employment contracts [] are inadequate to protect against the significant global risks faced by companies in this state.”[5] It is apparent that the Legislature felt that section 542.335 alone did not provide adequate protections to companies related to certain employment agreements.

Turning to the definitions under the Act, it defines “covered employee” as

an employee or individual contractor who earns or is reasonably expected to earn a salary greater than twice the annual mean wage of the county in this state in which the covered employer has its principal place of business, or the county in this state in which the employee resides if the covered employer’s principal place of business is not in this state. The term does not include a person classified as a health care practitioner as defined in s. 456.001.[6]

It is important to note that the Act covers contractors, but it does not cover health care practitioners as defined in section 456.001.[7] Furthermore, the Act covers only employees who earn a certain salary, as determined by the mean annual wage in the relevant county as established by the United States Department of Labor, Bureau of Labor Statistics.[8] By way of example, in Orange County for the second quarter of 2024, the average annual wage was $60,268.[9] Thus, the Act would apply to employees who earn a salary greater than $120,536.[10] Under the Act, a “covered employer” is “an entity or individual who employs or engages a covered employee”; there is no requirement for number of employees for an employer to be covered.[11]

The first type of agreement covered by the Act is so-called “garden leave agreements.”[12] The Act defines “covered garden leave agreements” as follows:

1. The covered employee and covered employer agree to up to, but no more than, 4 years of advance, express notice before terminating the employment or contractor relationship;
2. The covered employee agrees not to resign before the end of such notice period[13]; and
3. The covered employer agrees to retain the covered employee for the duration of such notice period and to continue paying the covered employee the same salary and providing the same benefits that the covered employee received from the covered employer in the last month before the commencement of the notice period. The covered employer is not obligated to provide discretionary incentive compensation or benefits or have the covered employee continue performing any work during the notice period.[14]

In effect, the garden leave agreement permits employers to prevent employees from working for four years if the employer continues to pay base salary and benefits to the employee. The Act makes it clear that the garden leave agreement provisions apply if the covered employee maintains a “primary place of work in this state, regardless of any applicable choice of law provisions (i.e., no matter what the contract states the governing law is)” or if there is a covered employer whose principal place of business is in Florida and the agreement explicitly states it is governed by Florida law.[15] The garden leave agreements are enforceable if they meet the following requirements: (1) the covered employee is advised in writing of the right to seek counsel before entering into the agreement, (2) the employee acknowledges in writing “receipt of confidential information or customer relationships,” and (3) the agreement provides that (i) after the first 90 days of the notice period, the covered employee does not have to continue working for the employer; (ii) the employee can engage in nonwork activities at any time during the remainder of the notice period; (iii) the covered employee may, with permission from the employer, work for another employer while still employed by the covered employer during the remainder of the notice period; and (iv) the agreement notice period may be reduced during the notice period if the employer provided at least thirty days’ advance notice in writing to the employee.[16] Employers must provide at least seven days’ notice before an offer of employment expires or must provide at least seven days’ notice before the date that an offer to enter into the garden leave agreement expires.[17]

In the event of a breach of a valid garden leave agreement by an employee, the Act provides that courts must first enter a preliminary injunction prohibiting the employee from “providing services to any business, entity, or individual other than the covered employer during the notice period.”[18] The courts are permitted to modify or dissolve the injunction “only if the covered employee establishes by clear and convincing evidence” that the employee will not perform during the notice period any work similar to the services provided to the employer during the three-year period preceding the notice period or use confidential information or customer relationships of the employer or that the employer has failed to pay or provide the salary and benefits required under a garden leave agreement and had a reasonable opportunity to cure the failure.[19] Likewise, the Act permits businesses to seek injunctions against companies that hire the covered employee.[20] It is apparent that the Act is a strong tool for employers.

In addition to garden leave agreements, the Act also applies to certain non-compete agreements.[21] The Act defines “covered noncompete agreement” as “a written agreement, or a portion of a written agreement, between a covered employee and a covered employer in which, for a period not to exceed 4 years and within the geographic area defined in the agreement, the covered employee agrees not to assume a role with or for another business, entity, or individual[.]”[22] Notably, the four-year limit is greater than the limit set forth in section 542.335(d)1., which provides that for restrictive covenants (including noncompete agreements), “a court shall presume reasonable in time any restraint 6 months or less in duration and shall presume unreasonable in time any restraint more than 2 years in duration.”[23] No geographic restriction is set forth in the Act. The notice provisions related to noncompete agreements are similar to the provisions related to garden leave agreements.[24] Like the breach provisions for garden leave agreements, the Act provides that if an employer seeks enforcement of a covered noncompete agreement, a court must issue a preliminary injunction against the employee (or the new employer).[25] The pertinent provision of the Act concludes by asserting, “Any action regarding a restrictive covenant that does not meet the definition of a covered garden leave agreement or a covered noncompete agreement as provided in this part is governed by [section] 542.335.”[26]

This new Act contains vague and inconsistent provisions and will undoubtedly be challenged in the courts. It is unclear whether companies will transition to enforceable garden leave agreements and four-year noncompete agreements, but we will monitor the Act and its legal challenges and provide updates as they become available. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] Bill History, House Bill (“HB”) 1219, The Florida Senate, available at https://www.flsenate.gov/Session/Bill/2025/1219 (last visited May 29, 2025).  The Florida House of Representatives passed the bill on April 23.  Id.  The text of the bill is available at https://www.flsenate.gov/Session/Bill/2025/1219/BillText/er/PDF (last visited May 29, 2025).

[2] HB 1219, at § 22.

[3] Id., at §§ 1-2.

[4] Id., at § 2 (setting forth what will become section 542.42, Fla. Stat., and the other provisions that will be incorporated into Chapter 542).

[5] Id.

[6] Id. (setting forth what will become section 542.43(3), Fla. Stat.) (emphasis added).

[7] Id.

[8] Id.

[9] County Employment and Wages in Florida—Second Quarter 2024, U.S. Dep’t of Labor, Bureau of Labor Statistics, available at https://www.bls.gov/regions/southeast/news-release/countyemploymentandwages_florida.htm (last visited May 29, 2025).

[10] HB 1219, at § 2.

[11] Id.

[12] Id.

[13] The Act defines “notice period” as “the date from the covered employee’s or covered employer’s written notice of intent to terminate the covered employee’s employment through the date of termination as set forth in a covered garden leave agreement.” Id. (what will become § 542.43(8), Fla. Stat.).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id. (setting forth proposed § 542.43(6), Fla. Stat.).

[23] § 542.335(d)1., Fla. Stat. (2025).

[24] HB 1219, at § 2.

[25] Id.

[26] Id.

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“Res judicata,” Latin for “a matter judged,” is “the principle that a cause of action may not be relitigated once it has been judged on the merits.”[1] In Milner v. Baptist Health Montgomery, et al., No. 23-12985 (11th Cir. Mar. 31, 2025), the Eleventh Circuit provided an analysis of how the principle of res judicata operates in the context of a retaliation claim under the False Claims Act (“FCA”).[2] This blog post will discuss that opinion and will provide a hypothetical to further demonstrate the concept.

In Milner, the plaintiff was a physician at a hospital owned by the Defendants.[3] Milner alleged that the Defendants overprescribed opioids to patients and fraudulently billed the Government for them, and he asserted the amount improperly billed was about $4,000,000.[4] According to Milner, following his complaint related to the practice, Defendants terminated his employment.[5] In an earlier lawsuit, Milner brought a retaliation claim under the FCA stemming from his termination, but “that lawsuit was dismissed with prejudice for failure to state a claim.”[6] In the case before the Eleventh Circuit, Milner appealed the district court’s decision dismissing “Milner’s qui tam (FCA) action as barred by res judicata because of his earlier retaliation action[.]”[7] In reaching its decision, the district court relied upon two Eleventh Circuit decisions, Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235 (11th Cir. 1999), and Shurick v. Boeing Co., 623 F.3d 1114 (11th Cir. 2010).[8]

As explained by the Eleventh Circuit, “‘Res judicata prevents plaintiffs from bringing claims related to prior decisions when “the prior decision (1) was rendered by a court of competent jurisdiction; (2) was final; (3) involved the same parties or their privies; and (4) involved the same causes of action.”’”[9] As the court noted, only the third and fourth elements were relevant to the case at issue.[10] Regarding the first element, the question for the court was “whether Milner, who was a  party in his earlier lawsuit, is also a party here because of his status as a relator.”[11] In Ragsdale, the Eleventh Circuit faced the “‘mirror image’” of Milner, where a plaintiff first brought an FCA action and later an FCA retaliation claim against his employer.[12] The court “held that the plaintiff was the same party in both cases.”[13] According to the court, “[g]iven our categorical holding in Ragsdale, we can dispose of Milner’s argument that, while his retaliation lawsuit was brought on his own behalf in his personal capacity, this lawsuit is brought only on behalf of the United States because he is merely the ‘statutorily designated agent of the United States.’”[14]

The court rejected Milner’s arguments that Ragsdale’s decision regarding the identity of the parties was not part of the holding (and thus not binding precedent) and that if he was “barred from proceeding, the United States would lose the benefit of passively recovering 70% of any judgment against the Defendants without having to litigate.”[15] In essence, Milner attempted to persuade the Eleventh Circuit that Ragsdale was wrongly decided, but the court noted that “under our prior-panel-precedent rule, we cannot ignore Ragsdale as a panel even if that decision did not consider some arguments that Milner now advances.”[16] The court asserted that even if not bound by Ragsdale, Milner is incorrect that the United States’s ability to recover was in peril, as the United States had not intervened in the matter and was thus not a party to the case.[17] As stated by the court, “if there is a future case regarding the alleged fraud and the United States appears as a party, that would be the first case in which the United States appears in this capacity,” and res judicata would not apply.[18] The court held that the district court was thus correct in dismissing the action as to Milner but without prejudice to the United States (i.e., leaving the door open for a future case against defendant if the United States chooses to pursue it).[19]

Turning to the cause of action element of res judicata, the Eleventh Circuit held that Milner’s two cases arose out of the “same nucleus of operative fact.”[20] As asserted by the court, “the elements of the claims need not be the same; what matters is whether they arise from a common nucleus of operative fact.”[21] In essence, because the facts largely overlapped between the FCA claim and the FCA retaliation claim, they were effectively the same cause of action.[22] The court stressed, “Since Milner was also fired before filing either his retaliation lawsuit or his [FCA] lawsuit, both claims were in existence at the time the original complaint was filed, so a final judgment in one precluded litigation of the other.”[23] The court rejected Milner’s argument that the two claims could not be brought together due to service of process (i.e., formal notice of litigation to the defendant) deadlines under the Federal Rules of Civil Procedure, as there is a rule for sealed complaints (FCA claims are sealed from public disclosure at the initial stage) that tolls (i.e., pauses) the time to serve a defendant.[24] The court therefore concluded that “Milner’s instant FCA qui tam action shares the same cause of action with his earlier FCA retaliation action for res judicata purposes” and affirmed the lower court’s dismissal of the case with prejudice as to Milner.[25]

By way of example, Wile Blanc is an employee of Acme, a defense contractor. Mr. Blanc raises complaints to Acme management regarding the poor (and frankly dangerous) quality of the company’s products. Acme subsequently terminates Mr. Blanc within just a few weeks of his complaints. Mr. Blanc first files an FCA retaliation claim against Acme. While that is pending, he also files an FCA claim, even though both actions should have been filed together. The court dismisses Mr. Blanc’s FCA retaliation claim because he did not successfully state a claim. Several months later, after his FCA claim is unsealed and the Government has decided not to intervene in the case, the court dismisses Mr. Blanc’s claim under the principle of res judicata (without prejudice to the United States). Pursuant to Milner, the court would be correct in dismissing the claim, as it clearly arose under the same set of facts and involved the same party (Mr. Blanc).  If Mr. Blanc could turn back time, he surely would find a way to instruct his counsel to file the FCA claim and FCA retaliation claim in the same complaint.

As we have previously noted, the FCA is very complicated, and it is important to seek counsel if you feel you have such a claim. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] “Res judicata,” Cornell Law School Legal Information Institute, available at https://www.law.cornell.edu/wex/res_judicata (last visited Apr. 29, 2025).

[2] The opinion is available at https://media.ca11.uscourts.gov/opinions/pub/files/202312985.pdf (last visited Apr. 29, 2025).

[3] Milner, at *2. The court refers to Dr. Milner as simply “Milner” in the opinion. This blog post will do so as well.

[4] Id., at *2-3.

[5] Id., at *2.

[6] Id.

[7] Id.

[8] Id.

[9] Id., at *5 (quoting Rodemaker v. City of Valdosta Bd. of Educ., 110 F.4d 1318, 1324 (11th Cir. 2024) (other citation omitted)).

[10] Id.

[11] Id., at *6.

[12] Id., at *6-7.

[13] Id., at *7.

[14] Id. (citations omitted).

[15] Id., * 8-9.

[16] Id., at *10 (citation omitted).

[17] Id., at *11.

[18] Id.

[19] Id., at *12.

[20] Id., at *15.

[21] Id. (citations omitted).

[22] Id., at *15-16.

[23] Id., at *16.

[24] Id., at *17.

[25] Id., at *18.

Photo by Jon Tyson on Unsplash

On December 29, 2022, the PUMP Act was signed into law.[1] The PUMP Act further amended the Fair Labor Standards Act (“FLSA”) “to extend the reasonable break time and space protections to pump breast milk at work to as many as 9 million more employees who were not previously covered.”[2] The Act also “extended available remedies for violation of any provision of the pump at work requirements,” providing a tool for enforcing the vital legislation.[3]  This blog post will discuss the PUMP Act and provide a hypothetical case to illustrate a potential claim under the Act.

Under the PUMP Act, employers are required to “provide nursing employees reasonable break time each time such employee has need to pump breast milk at work for one year after the child’s birth.”[4] An employer cannot deny an employee covered by the PUMP Act a break to pump.[5] As the Department of Labor notes, “[t]he frequency, duration, and timing of breaks needed will vary depending on factors related to the nursing employee and the child.”[6] The location of the pumping space and the effort needed to express milk may also impact the duration of the break.[7] An employee and employer can generally agree to a schedule, “but an employer cannot required an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump” and such a schedule may understandably need to be adjusted.[8] Employees who telework are also eligible to take pump breaks.[9]

Regarding compensation, the “PUMP Act does not require that employees be compensated for break time needed to pump breast milk ‘unless otherwise required by Federal or State law or municipal ordinance.”[10] Pursuant to the FLSA, hours worked must be compensated and break time to pump will be considered as time worked if the employee is not completely relieved from duty during the entirety of the break.[11] Breaks of twenty (20) minutes or less provided by the employers must be counted as time worked.[12] If an employer provided paid break time, and the pumping employee wishes to use the paid break to pump, the employer must pay the employee as it would others.[13] It is important to note that employers cannot reduce the salaries of salaried exempt employees for taking a pump break.[14]

Regarding the space requirement, the PUMP Act requires that employees have access to a space that is:

1. Shielded from view;
2. Free from intrusion from coworkers and the public;
3. Available each time it is needed by the employee; and
4. Not a bathroom.[15]

As the DOL has noted, “[u]sing a bathroom to pump breast milk raises health and safety concerns, which may include the risk of contracting bacteria in breast milk or breast pump equipment.”[16] An employer must ensure that the space is private.[17] For example, the employer may display a sign when the space is in use or have a lock for the door.[18] Furthermore, the “location must be functional as a space for pumping. A space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump.”[19] Employers must also permit the employee to safely store the milk while at work, “such as in an insulated food container, personal cooler, or refrigerator.”[20]

There are limited exceptions to complying with the pump at work requirements under the PUMP Act. Specifically, “[t]he FLSA provided an exemption for small employers if compliance would require an undue hardship and includes exemptions that affect certain employees of air carriers, rail carriers, and motorcoach services operators.”[21] As to the small employer (fewer than fifty employees) exception, the DOL notes that “[w[hether compliance would be an undue hardship is determined on an individual employee basis. The employer bears the burden of proof that compliance with the pump at work provisions would be an undue hardship in the particular circumstances.”[22] The employer “must be able to demonstrate that the employee’s specific needs for pumping at work is an undue hardship due to the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.”[23]

An employer who is found to have violated PUMP Act may face serious consequences. The remedies “may include employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.”[24] The FLSA also contains provisions prohibiting employers from retaliating against employees who seek the protections under the PUMP Act.[25] As noted by the DOL, the Act protects employees whether or not they complain in writing.[26] “Retaliation occurs when an employer, through a manager, supervisor, administrator or director, fires an employee or takes any other type of adverse action (i.e., an action that would dissuade a reasonable employee from raising a complaint) against an employee for engaging in protected activity (e.g., making a complaint, speaking with the DOL, or requesting payment of wages).”[27] As the DOL advises, “[a]n employee may . . . file a private suit regarding an employer’s failure to provide a space to pump, if the employee has notified the employer of the need for space and has allowed 10 days for the employer to come into compliance.”[28] The waiting requirement is unnecessary if the employer expressed a refusal to comply with the PUMP Act, where an employee was terminated for requesting reasonable break time or space, or where an employee opposed an employer’s conduct related to the pump at work rights.[29]

By way of example, imagine that there is an employee of Binks’s Bistro, Padmé, who speaks with the owner, Mr. Binks, and works out an arrangement where she will be permitted to take four twenty-five-minute breaks each day when she first returns to work from maternity leave. Mr. Binks must continue to work with Padmé regarding the reasonable break time needed. Mr. Binks further works with Padmé to ensure she has a space that meets the requirements of the FLSA, as it would not cause an undue hardship for his business to accommodate Padmé. Mr. Binks smartly realizes that if he fails to comply with the requirements of the PUMP Act, he could face serious consequences.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] U.S. Dep’t of Labor, Field Assistance Bulletin No. 2023-02 re: Enforcement of Protections for Employees to Pump Breast Milk at Work, at *1, available at https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-2.pdf (last visited March 28, 2025). We have discussed the FLSA in a previous blog post.  Jill S. Schwartz & Associates, P.A., The Fair Labor Standards Act Turns 85: A Brief Overview of ‘The Law That Changed the American Workplace,” available at https://www.schwartzlawfirm.net/the-fair-labor-standards-act-turns-85-a-brief-overview-of-the-the-law-that-changed-the-american-workplace-1/ (last visited March 28, 2025).

[2] U.S. Dep’t of Labor, Field Assistance Bulleting No. 2023-02, at *1. As the Department of Labor notes in Field Assistance Bulletin No. 2023-02, the FLSA was amended in 2010 to “first include break time and space requirements for nursing employees to pump breast milk at work.” Id.

[3] Id.

[4] Id., at *2.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id., at *3.

[15] Id., at *4.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id., at *5.

[22] Id.

[23] Id.

[24] Id., at *7.

[25] Id.

[26] Id.

[27] Id.

[28] Id., at *8.

[29] Id.

Photo by Fotos on Unsplash

In 2021, the United States Department of Justice (“DOJ”) announced the launch of its Civil Cyber-Fraud Initiative (“CCF” or “the Initiative”).[1] As noted by the DOJ, the Initiative aims to “utilize the False Claims Act to pursue cybersecurity related fraud by government contractors and grant recipients.”[2] This blog post will discuss this Initiative and provide some insight into recent CCF cases.

As we noted in a previous blog post, the False Claims Act (“FCA”) is a powerful tool used by the Government to ensure that taxpayer funds are used properly.[3] According to the DOJ, the CCF “will hold accountable entities or individuals that put U.S. information or systems at risk by knowingly providing deficient cybersecurity products or services, knowingly misrepresenting their cybersecurity practices or protocols, or knowingly violating obligations to monitor and report cybersecurity incidents and breaches.”[4] Under the Initiative, the DOJ seeks to hold government contractors accountable for failures to adhere to the cybersecurity requirements found in government contracts or grants.[5] According to the DOJ, the Initiative will have several benefits, including “[b]uilding broad resiliency against cybersecurity intrusions across the government, the public sector[,] and key industry partners,” “[h]olding contractors and grantees to their commitments to protect government information and infrastructure,” and “[i]mproving overall cybersecurity practices that will benefit the government, private users[,] and the American public.”[6]

Two recent cases demonstrate the DOJ’s commitment to the Initiative. On August 22, 2024, the DOJ announced that it intervened (or joined) a suit filed against The Georgia Institute of Technology (“Georgia Tech”) and the Georgia Tech Research Corporation (“GTRC”).[7] The complaint asserted that the “defendants knowingly failed to meet cybersecurity requirements in connection with the Department of Defense (DoD) contracts.”[8] According to the head of the DOJ’s Civil Division, Principal Deputy Assistant Attorney General Brian M. Boynton, “‘Government contractors that fail to fully implement required cybersecurity controls jeopardize the confidentiality of sensitive government information[.]’”[9] He went on to state, “‘The department’s Civil Cyber-Fraud Initiative was designed to identify such contractors and to hold them accountable.’”[10]  Special Agent in Charge Darrin K. Jones of the DoD’s Office of the Inspector General added, “‘Deficiencies in cybersecurity controls pose a significant threat not only to our national security, but also to the safety of the men and women of our armed services who risk their lives daily[.]’”[11]

According to the suit, the defendants failed to implement a system security plan in accordance with DoD regulations and, when a plan was implemented, the defendants “failed to properly scope that plan to include all covered laptops, desktops, and servers.”[12] The complaint alleged other deficiencies as well, including a failure by the defendants to run anti-virus or anti-malware tools on the desktops, laptops, and servers and that the defendants “submitted a false cybersecurity assessment score to DoD for the Georgia Tech campus.”[13] This matter is still in the early stages of litigation, so it is worth monitoring the progress of this case, as it is one of the few cases in active litigation arising from the Initiative.

On October 22, 2024, the DOJ announced a settlement in a case brought against The Pennsylvania State University (“Penn State”).[14] In that case, the Relator alleged that Penn State “violated the False Claims Act by failing to comply with cybersecurity requirements in fifteen contracts or subcontracts involving the [DoD] or National Aeronautics and Space Administration (NASA).”[15] Specifically, Penn State allegedly “failed to implement cybersecurity controls that were contractually required by DoD and NASA and did not adequately develop and implement plans of action to correct deficiencies it identified.”[16] This is one of the first settlements announced by the DOJ under the Initiative. As part of the settlement, the Relator will receive a $250,000 share of the amount as a Relator under the FCA.[17]

As we have mentioned previously, FCA cases are complex and require a careful review of all documents and information available. Having experienced FCA counsel is critical, and the attorneys of Jill S. Schwartz & Associates are well-versed in FCA claims and the representation of Relators in these matters. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] Deputy Attorney General Lisa O. Monaco Announces New Civil Cyber-Fraud Initiative, Office of Public Affairs, U.S. Dep’t of Justice, available at https://www.justice.gov/opa/pr/deputy-attorney-general-lisa-o-monaco-announces-new-civil-cyber-fraud-initiative (last visited Feb. 27, 2025).

[2] Id.

[3] For more on the FCA, see Don’t Cross Uncle Sam: A Brief Overview of the False Claims Act, Jill S. Schwartz & Associates, P.A., Blog (May 16, 2022), https://www.schwartzlawfirm.net/dont-cross-uncle-sam-a-brief-overview-of-the-false-claims-act/ (last visited Feb. 27, 2025); see also The False Claims Act, U.S. Dep’t of Justice, https://www.justice.gov/civil/false-claims-act (last visited Feb. 27, 2025).

[4] Deputy Attorney General Lisa O. Monaco Announces New Civil Cyber-Fraud Initiative, supra, note 1.

[5] See Leslie Weinstein, An Introduction to the DOJ’s CCFI, Bracker & Marcus, LLC, Blog, https://www.fcacounsel.com/blog/doj-civil-cyber-fraud-initiative/ (last visited Feb. 27, 2025).  As Ms. Weinstein notes, clauses in government contracts refer to specific portions of the Federal Acquisition Regulation (“FAR”) and/or agency-specific regulations, such as the Defense Federal Acquisition Supplement (“DFARS”). Id.

[6] Deputy Attorney General Lisa O. Monaco Announces New Civil Cyber-Fraud Initiative, supra, note 1.

[7] United States Files Suit Against the Georgia Institute of Technology and Georgia Tech Research Corporation Alleging Cybersecurity Violations, Office of Public Affairs, U.S. Dep’t of Justice, available at https://www.justice.gov/opa/pr/united-states-files-suit-against-georgia-institute-technology-and-georgia-tech-research (last visited Feb. 27, 2025). This case was filed in July 2022 by our FCA co-counsel, Bracker & Marcus, LLC.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] The Pennsylvania State University Agrees to Pay $1.25M to Resolve False Claims Act Allegations Relating to Non-Compliance with Contractual Cybersecurity Requirements, Office of Public Affairs, U.S. Dep’t of Justice, available at https://www.justice.gov/opa/pr/pennsylvania-state-university-agrees-pay-125m-resolve-false-claims-act-allegations-relating (last visited Feb. 27, 2025). Bracker & Marcus also initiated this case.

[15] Id.

[16] Id.

[17] Id.

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The Pregnant Workers Fairness Act (“PWFA” or “the Act”) was signed into law on December 29, 2022.[1] The PWFA went into effect on June 27, 2023, and the Equal Employment Opportunity Commission (“EEOC”)’s final regulation related to the Act went into effect on June 18, 2024.[2] This blog post will discuss the PWFA and will provide guidance regarding this important piece of legislation.

As noted by the EEOC, the PWFA “requires a covered employer to provide a ‘reasonable accommodation’ to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an ‘undue hardship.’”[3] The PWFA applies only to reasonable accommodation requests for pregnant workers, as there are other laws that protect against discrimination based on pregnancy, childbirth, and related medical conditions, such as Title VII, the Americans with Disabilities Act (“ADA”), the PUMP Act, and the Family and Medical Leave Act.[4] The PWFA does not override federal, state, or local laws that are more protective of workers.[5]  The EEOC began accepting charges alleging violations of the PWFA starting on June 27, 2023, with the final regulations coming approximately a year later.[6]

As noted by the EEOC, the agency “will continue to accept and process charges involving a lack of accommodation regarding pregnancy, childbirth, or related medical conditions under Title VII and/or the ADA as well as under the PWFA.”[7] The PWFA, like Title VII and the ADA, applies to “private employers and public sector employers (state and local governments) that have 15 or more employees. It also applies to Congress and Federal agencies, and to employment agencies and labor organizations.”[8]

Under the PWFA, a “qualified employee or applicant” is defined as an employee or applicant who can perform the essential functions (i.e., fundamental duties) of a role without the reasonable accommodation.[9] An employee can be considered a qualified employees even if they cannot perform the essential functions if (1) the inability is temporary; (2) the employee could perform the essential functions “in the near future”; and (3) the inability to perform the essential functions can be reasonably accommodated.[10] Regarding “known limitation,” that means the “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” had been communicated to the employer by the employee or the employee’s representative (or applicant or applicant’s representative).[11] “Pregnancy, childbirth, or related conditions” includes, among other things, “uncomplicated pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.”[12]

Turning to prohibited conduct, the PWFA provides that employers may not:

• “Fail to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship;
• Require an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Punish or retaliate against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation);
• Coerce individuals who are exercising their rights or helping others exercise their rights under the PWFA.”[13]

The EEOC has clarified that leave may be a reasonable request under the PWFA but that an employer does not have to provide leave if it would cause an undue hardship.[14] An “undue hardship” is defined as something that would cause significant difficulty or expense for the employer.[15] Employees do not have to use specific words to request an accommodation and begin the interactive process with the employer.[16] As the pregnancy progresses, the employee may need different accommodations, and employers would work with the employee to ensure reasonable accommodations are provided.[17]

Regarding employers obtaining information from an employee’s healthcare provider, the EEOC has provided helpful guidance.  As the EEOC has noted, “In many instances under the PWFA, a discussion with the applicant or employee may be sufficient and supporting documentation will not be needed. Employers also should keep in mind that it may be difficult for a worker to obtain information from a health care professional early in pregnancy.”[18]  The EEOC has further provided, “Although an employer is not required to seek medical information from an employee’s health care provider, the employer may seek information from the employee’s health care provider under limited circumstances.”[19] If an employer does obtain medical information from an employee, the employer must keep the information confidential.[20]

By way of example, imagine that employee Lorelai works at The Independence Inn, which has over fifteen employees. Lorelai, who is six months pregnant (a fact known to the owner of the Inn, Mia), requests that she be permitted to attend medical appointments, a reasonable accommodation that would not cause hardship for the Inn. Mia must engage in an interactive process with Lorelai to accommodate her. Failure to do so would lead to Lorelai having a good claim under the PWFA (and, perhaps, would ultimately lead to Lorelai getting a settlement or judgment from The Independence Inn).  The damages available under the PWFA are the same as under Title VII (they include injunctive relief, compensatory damages, the possibility of punitive damages, and attorneys’ fees).[21]

The PWFA provides needed protections for employees with limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. We will monitor how the courts interpret this important piece of legislation and will provide updates as needed. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] Regulations to Implement the Pregnant Workers Fairness Act, Federal Register, available at https://www.federalregister.gov/documents/2023/08/11/2023-17041/regulations-to-implement-the-pregnant-workers-fairness-act (last visited Jan. 30, 2025).

[2] What You Should Know About the Pregnant Workers Fairness Act, Equal Employment Opportunity Commission, available at https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act (last visited Jan. 30, 2025).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] See Summar of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA), Equal Employment Opportunity Commission, available at https://www.eeoc.gov/summary-key-provisions-eeocs-final-rule-implement-pregnant-workers-fairness-act-pwfa (last visited Jan. 30, 2025).

Photo by Camylla Battani on Unsplash

On November 20, 2024, Florida’s First District Court of Appeal (“First DCA”) rendered its opinion in Gessner v. Southern Company & Gulf Power Company, No. 1D2023-2297 (1st DCA Nov. 20, 2024).[1] In the opinion, the First DCA addressed whether under Florida’s Private Sector Whistleblower’s Act (“FWA”), section 448.101, et seq., Florida Statutes, a plaintiff must show “that he objected to, or refused to participate in, an actual violation of a law, rule, or regulation by his employer in order to be protected nder the FWA from employment retaliation, as opposed to showing only a good faith, reasonable belief that a violation occurred.”[2] The trial court had determined that the plaintiff had to show he objected to an actual violation and granted summary judgment in favor of the defendants.[3]

The First DCA did not provide many pertinent background facts in Gessner, except to say that the plaintiff alleged that “he was discharged in retaliation for objecting to certain practices ‘that were in violation of state and/or federal laws or that he reasonably and objectively believed were in said violation.’”[4] The trial court rejected the plaintiff’s claim that “he needed to present evidence of a good-faith, objectively reasonable belief that his employer’s actions were illegal, not proof that an actual violation occurred.”[5] In making his argument, the plaintiff relied upon the Fourth District Court of Appeal’s (“Fourth DCA”) decision in Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA 2013).[6] The defendants relied upon, and the trial court agreed, with the Second District Court of Appeal’s (“Second DCA”) reasoning in Kearns v. Farmer Acquisition Co., 157 So. 3d 458 (Fla. 2d DCA 2015), that “in order to be protected under the private sector FWA as set forth in section 448.102(3), an employee must show that an employer committed an actual violation of a law, rule, or regulation.”[7] The First DCA thus faced the question of whether to agree with the Aery opinion or the Kearns opinion.

Ultimately, the First DCA determined that it agreed with the Second DCA. The court quoted extensively from the Kearns opinion and a federal court opinion cited by the Kearns court.[8] In agreeing with Kearns that “a plaintiff in a private sector FWA action brought pursuant to section 448.102(3) must establish that he or she objected to, or refused to participate in, an activity, policy, or practice of the employer that is an actual violation of a law, rule, or regulation,” the First DCA asserted that it was “guided first and foremost by the plain language of section 448.102(3).”[9] The court determined that “[h]ad the Legislature wished to provide the same whistleblower protection for private sector employees who disclose suspected violations of law as it did for public sector employees under section 112.3187(5)(a) (which provides that reporting of “[a]ny violation or suspected violation” of a law, rule, or regulation is covered under the statute), it certainly could have done so.”[10] As relevant in Gessner, the FWA provides protection where an individual “[o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.”[11]

The court further noted that “a number of federal district courts have approved the reasoning in Kearns and not Aery,” although the court did not acknowledge that federal district courts have also sided with the Aery court.[12] The court concluded its analysis but contending that “[i]t is not for us to judge the reasoning behind the Legislature’s decision in the private sector employment arena.”[13] The First DCA thus affirmed the summary judgment entered in favor of the defendants in the lower court.[14]  The court did certify conflict with the Fourth DCA, meaning that the Florida Supreme Court may accept jurisdiction to resolve the conflict if it chooses.[15]

It is hoped that the Florida Supreme Court will indeed accept jurisdiction if Gessner seeks review by Florida’s highest Court.  There is clearly a conflict among the district courts and the federal courts, and guidance is needed for both litigants and practitioners. We will continue to monitor this issue and will provide an update once it is available.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion is available at the following link: https://1dca.flcourts.gov/content/download/2443663/opinion/Opinion_2023-2297.pdf (last visited Dec. 3, 2024).

[2] Gessner, at *2.

[3] Id., at *1.

[4] Id., at *2.

[5] Id.

[6] Id.

[7] Id.

[8] See id., at *4-7.

[9] Id., at *8.

[10] Id.

[11] § 448.102(3), Fla. Stat. (2024).

[12] Gessner, at *8-9; see, e.g., Rivera v. Spirit Airlines, Inc., 2020 U.S. Dist. LEXIS 15286 (S.D. Fla. Jan. 30, 2020), at *2 (“Despite the different approaches, ‘Aery remains the controlling law on the issue because the discussion concerning the actual violation standard in Kearns was only in dicta.’” (citations omitted)).

[13] Gessner, at *9.

[14] Id., at *9.

[15] Id.

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On September 19, 2024, the Eleventh Circuit rendered its opinion in McCreight et Wester v. AuburnBank, et al., Case No. 22-12577 (11th Cir. Sept. 19, 2024).[1] As the Eleventh Circuit noted, the court has recently been trying “to clear a path” regarding Title VII claims, providing clearer guidance for practitioners and litigants.[2] In McCreight, the court sought to “clear up two other strands of [its] case law: sex-plus claims and mixed-motive theories of liability.”[3] This blog post will discuss the McCreight opinion and discuss its implications moving forward.

As noted by the court, “[a] sex-plus claim is based on one kind of discrimination—sex discrimination—targeting one subclass of a sex.  Black women and mothers are subcategories of women that have been recognized.  So too for older women,” the category at issue in McCreight.[4] Regarding the mixed-motive theory of liability, the court stated that it allows for “liability when an employment decision motivated by a legitimate reason—usually poor work performance—is also infected by an illegitimate reason—illegal discrimination.”[5] The court noted that “because mixed-motive discrimination is a theory of liability, not a type of claim, it need not be alleged in the complaint to survive; raising a mixed-motive argument by summary judgment offers notice to defendants about what to defend, and to courts about what to decide.”[6]

Turning to the case at issue, the Eleventh Circuit affirmed the summary judgment granted by the district court in favor of the defendants, holding that the plaintiffs did not produce enough evidence for a reasonable jury to find in their favor.[7] The facts of the case are not relevant for purposes of this blog post—suffice it to say that the plaintiffs argued that their terminations violated Title VII and the Age Discrimination in Employment Act and related state statutes.[8] The court began by examining the sex-plus claim and providing clarification regarding the mixed-motive theory of liability, as McCreight had conflated the two concepts.[9] The court noted that “[i]n short, sex-plus-age is a type of employment discrimination claim a plaintiff can bring, and mixed-motive is a theory of causation that a plaintiff can rely on to support that claim.”[10] The court held that although the McCreight was correct that a mixed-motive theory did not need to be alleged in the complaint to survive, she had not raised the theory at all at the district court level, thus waiving that claim.[11]

Regarding the sex-plus-age claim, the court noted that “[i]n a sex-plus-age case, the basis for the alleged discrimination is sex; the age factor’s work is in defining the subgroup in which the alleged sex discrimination occurred.”[12]  Thus, such claims fall within Title VII.[13]  As stated by the court, “[s]ingling out only one subgroup of a sex for discriminatory treatment thus does not insulate an employer from liability.”[14] A plaintiff can support such a claim (or any other discrimination claim) “through either a single- or mixed-motive theory[.]”[15]

When raising a mixed-motive theory of liability, “the employee contends that both legal and illegal reasons motivated her firing.”[16] Under the mixed-motive theory, “a plaintiff need only show that an illegal reason played a party in the decision—not that it had a dispositive role.”[17] Regarding remedies under a mixed-motive theory, the court notes that “if a plaintiff prevails under a mixed-motive theory, an employer can still avoid damages and certain equitable relief by showing that it would have taken the same action even without the illegal motivation. . . . This affirmative defense is known as the mixed-motive or same-decision defense.”[18] As the court explained, a plaintiff is not required to plead the motive at the outset of the case, as often discovery is needed to determine “which causation standard to pursue.”[19] According to the court, “[s]o long as the factual basis is properly alleged, an employee can raise a mixed-motive theory of liability as late as summary judgment. What is important is not when the theory is raised, but whether the defendant has enough notice of it.”[20] The court emphasized that plaintiffs cannot “spring new theories of liability that were not considered or defended against at summary judgment” on appeal, as McCreight had attempted in the case at issue.[21]

Applying the sex-plus and mixed-motive analyses to the case before it, the court rejected the claims made by the plaintiffs. As noted above, the court held that McCreight did not raise the mixed-motive theory in the district court, thus waiving that claim.[22] The court stressed that the mixed-motive theory does not invoke “a diminished standard of proof,” as seemingly argued by McCreight.[23] In reviewing the facts, the court determined that neither McCreight nor Wester offered enough evidence to have a reasonable jury find in their favor. As the court concluded, “[o]ur employment discrimination caselaw provides many approaches for plaintiffs seeking relief from discrimination. But all roads lead to Rule 56 (the summary judgment rule)—so long as a plaintiff offers enough evidence for a reasonable jury to infer illegal discrimination, her Title VII claim will survive summary judgment.”[24] In McCreight, the appellants failed to meet this burden, and the court affirmed the granting of summary judgment in favor of the defendants below.[25]

Navigating a discrimination case is a difficult journey and requires competent legal counsel. Our firm has extensive experience in all workplace matters. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion can be found at https://media.ca11.uscourts.gov/opinions/pub/files/202212577.pdf (last visited Oct. 24, 2024).

[2] McCreight, at *2.

[3] Id.

[4] Id.

[5] Id., at *3.

[6] Id.

[7] Id.

[8] Id., at *7.

[9] Id., at *9.

[10] Id.

[11] Id., at *9-10.

[12] Id., at *11.

[13] Id., at *12.

[14] Id., at *10.

[15] Id., at *12.

[16] Id. (citation omitted).

[17] Id., at *12-13.

[18] Id., at *13.

[19] Id., at *14.

[20] Id., at *15.

[21] Id., at *16.

[22] Id., at *17.

[23] Id., at *18.

[24] Id., at *34.

[25] Id.

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