News / Blog

On December 5, 2025, the Eleventh Circuit rendered its opinion in Ismael v. Roundtree, et al., No. 25-10604 (11th Cir. Dec. 5, 2025).[1] The court provided guidance regarding the use of the “convincing mosaic” standard and the McDonnell Douglas pretext analysis in discrimination and retaliation cases. This blog post will discuss the Ismael opinion and its importance for future cases.

By way of background, the Richmond County Sherrif’s Office (“RCSO”) hired Ismael in March 2020 as a deputy sheriff.[2] By mid-2021, Ismael was serving as an “officer-in-charge” providing security at a business as part of an ongoing special, off-duty assignment.[3] Ismael worked the assignment with Lieutenant Jenkins.[4] While working at the site, Ismael alleged that Jenkins frequently harassed him because of his race. As set forth by the court, “Ismael was born in the Republic of Iraq and is a person of Arabic descent. Jenkins allegedly called Ismael a ‘terrorist,’ told him to ‘go play in the sand,’ and warned colleagues that Ismael ‘may have a bomb.’ Jenkins admitted to making the terrorist comment but denied all others.”[5] The owner of the business testified that he “‘frequently’” witnessed Jenkins making racist comments to Ismael, and the General Manager of the business also corroborated Ismael’s allegations that Jenkins made routine racist comments about him.[6] Furthermore, the owner and the General Manager testified that Jenkins was deficient in his role at the business and was late for nearly every shift.[7] During this time, Jenkins served as commander of the RCSO SWAT team, which Ismael hoped to join.[8] Ismael alleged that Jenkins warned him not to report the harassment and poor job performance at the business, as that would lead to him not making the SWAT team.[9]

In mid-September 2021, Ismael attended a SWAT team training course and ultimately failed the written exam; Jenkins informed him he could therefore not join the team.[10] On the way home from the training, while driving his patrol vehicle and still in uniform, he stopped and visited the Burke County Sheriff’s Office and inquired about job openings.[11] He was told to apply online, and he completed his drive home.[12] Subsequently, Ismael filed an internal affairs complaint with RCSO.[13] He detailed Jenkins’s comments and conduct at the business, and the owner and General Manager submitted letters corroborating his account.[14] At the time, Ismael was in good standing and had no disciplinary history.[15] The Sergeant who conducted the investigation, McCarty, ultimately determined that “he could not verify Ismael’s allegations” and concluded that “‘[t]he complaint is not sustained.’”[16]

While the investigation was ongoing, McCarty received an e-mail from a Burke County employee inquiring about Ismael.[17] McCarty sent the e-mail to RCSO Captain Glen Rahn stating, “‘Lookie here.’”[18] McCarty also responded to the Burke County employee and spoke negatively about Ismael, asserting he had filed the complaint because he failed the SWAT training.[19] Subsequently, an RCSO Colonel, Chew, alleged that he received an anonymous call regarding Ismael’s visit to the Burke County office; McCarty contacted Burke County and confirmed that Ismael had indeed briefly visited.[20] In discovery, Ismael presented Chew’s phone records indicating that he did not receive an anonymous call at the specified time, and the parties disagreed whether Ismael was “on duty” or “off duty” at the time he visited Burke County.[21] According to RCSO, “‘[w]hether he was off duty or on duty, the act of using a patrol vehicle for personal errands is a violation of RCSO policy.’”[22]

In late September 2021, Ismael was slated to begin work at 6:00 p.m. and had scheduled a noon interview with Burke County.[23] Coincidentally, Ismael was called into work early, and he attended the interview in his uniform.[24] Subsequently, another anonymous individual called and reported that Ismael had attended the interview in Burke County while in uniform and driving his patrol vehicle.[25] RCSO terminated Ismael, allegedly for violating the department’s “‘Manner of Conduct’” policy.[26]

Ismael filed suit, alleging retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, although only his § 1981 claim remained by the time of the appeal.[27] The District Court ultimately granted the Defendants’ motion for summary judgment, holding that, under the McDonnell Douglas framework, Ismael had established a prima facie case but that he “‘failed to prove’” that the defendants’ reason for terminating him was pretext for retaliation.[28]

On appeal, the Eleventh Circuit disagreed with the District Court’s ruling. The court began its analysis by discussing the McDonnell Douglas framework. As noted by the court, the McDonnell Douglas framework was introduced by the Supreme Court in 1973.[29] In short, under McDonnell Douglas, a plaintiff must first establish a prima facie case (by showing the plaintiff is in a protected class, that the plaintiff was well qualified, that the plaintiff suffered an adverse employment action, and that the plaintiff was treated less favorably than similarly situated employees not in the protected class); once that requirement is met, the burden shifts to the employer “‘to articulate some legitimate, nondiscriminatory reason for the adverse action’”; and finally, if the employer meets that requirement, the plaintiff has an opportunity to show that the reason provided is pretextual.[30] In retaliation cases, the prima facie element is modified where a plaintiff must show he engaged in protected activity (such as filing a complaint for discrimination); that he suffered a material adverse action; and that there was a causal connection between the complaint and the adverse action.[31]

The court stressed that McDonnell Douglas “‘is an evidentiary standard, not a pleading requirement’” and does not play a role at the motion to dismiss stage, at trial, or in post-trial motions.[32] As relevant to the case at hand, the court emphasized that “McDonnell Douglas was ‘never intended to be the sine qua non [i.e., an essential condition] for a plaintiff to survive a summary judgment motion in an employment discrimination case.’”[33] In Smith, the Eleventh Circuit adopted the so-called “convincing mosaic” standard.[34] The court held that (1) a “‘plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent’” and (2) that a “‘triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.’”[35] The Ismael court made it clear that the “convincing mosaic” analysis “is a stand-in for the [Federal Rule of Civil Procedure 56] summary judgment standard applied to employment discrimination.”[36] It is not “McDonnell Douglas 2.0.”[37] The court stressed that “a plaintiff may avoid summary judgment by presenting a wide range of circumstantial evidence.”[38]

Next, the Eleventh Circuit noted that the “convincing mosaic” analysis is broader than the question of pretext under McDonnell Douglas.[39] The District Court, holding that under McDonnell Douglas Ismael failed to raise an inference of pretext, declined to analyze the evidence under the “convincing mosaic” standard.[40] The court held that the District Court erred in its analysis, noting that “[r]equiring a plaintiff to negate the defendant’s explanation on summary judgment has at least two defects. First, it is not required to succeed at trial. Second, it detracts from the plaintiff’s affirmative case that the driving cause was illegal discrimination or retaliation.”[41] The Supreme Court has held that a plaintiff in § 1981 cases “must show that an illicit motive was a ‘but-for’ cause for the adverse action,” but it does not have to be the only cause.[42] Indeed, the court stressed that if the plaintiff’s protected activity was one but-for cause out of multiple causes, that is enough.[43] The court concluded that “we do not think the Supreme Court intended pretext to be the sole determinate at any stage of litigation, but especially at summary judgment” and held that “summary judgment should not be granted for failure to demonstrate pretext unless it also ‘reflects a failure to put forward enough evidence for a jury to find for the plaintiff on the ultimate question of discrimination’ or retaliation.”[44]

Turning to the case at issue, the court determined that “the District Court was wrong to conflate a showing of pretext with the standard to survive summary judgment.”[45] The court held that the District Court’s error was not harmless and required reversal for further proceedings.[46] The court instructed the District Court to “ask whether Ismael’s circumstantial evidence, when artfully adhered together and viewed as one, allows a reasonable juror to envision an image of retaliation and find in Ismael’s favor.”[47]

The court concluded its opinion by setting forth a roadmap for lower courts when reviewing summary judgment motions. The Eleventh Circuit reiterated that “[c]orrectly understood, McDonnell Douglas is a ‘procedural device, designed only to establish an order of proof and production.’”[48] In cases where the plaintiff establishes a prima facie case, and an employer presents evidence to rebut the presumption of illicit intent, McDonnell Douglas is no longer relevant and “the court must proceed to ask whether ‘the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination [or retaliation] by the decisionmaker.’”[49] As the court noted, “a plaintiff’s inability to disprove the defendant’s rationale cannot be the sole grounds for summary judgment.”[50] In cases where a plaintiff does not demonstrate a prima facie case under McDonnell Douglas, the Eleventh Circuit held that a plaintiff “does not automatically lose on summary judgment.”[51] The district court must proceed to the “convincing mosaic” analysis and determine whether the plaintiff produced enough evidence to demonstrate a material triable issue of fact.[52] The court made it abundantly clear that it is not sufficient for lower courts to conduct only a McDonnell Douglas analysis, whether a plaintiff demonstrates a prima facie case or not.

By way of brief example, Veronica formerly worked at Ares Investigative Agency, owned by Keith. Veronica’s direct supervisor, Duncan, often made discriminatory statements about Veronica’s colleague, Eli, based on his race. Veronica raised a complaint to Keith regarding Duncan’s comments. Within two weeks of her complaint, Keith terminated Veronica, allegedly for failing to discover who had stolen the local high school’s mascot (a case that, in actuality, Veronica did solve, but Duncan took the credit). Subsequently, Veronica filed suit under the retaliation provisions of Title VII and the Florida Civil Rights Act. Veronica introduced evidence demonstrating that no other Ares employee had been terminated for similar reasons, that Keith favored Duncan, and that Keith had told a rival Investigative Agency that Veronica was a “troublemaker.” Based on Ismael, the District Court, after engaging in the McDonnell Douglas framework, must also decide whether Veronica had provided a “convincing mosaic” of evidence to permit her to proceed to the jury. Given the facts as presented, it is likely that Veronica will be able to proceed.

Ismael provides much-needed guidance to lower courts reviewing summary judgment motions in discrimination and employment cases. We will continue to monitor the case law and will provide further 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] The opinion is available on the court’s website at https://media.ca11.uscourts.gov/opinions/pub/files/202510604.pdf (last visited Jan. 29, 2026). The citations in this blog post are to that version of the opinion.

[2] Ismael, at *2.

[3] Id.

[4] Id.

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

[6] Id., at *3.

[7] Id.

[8] Id.

[9] Id.

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

[11] Id., at *4.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id., at *5.

[19] Id.

[20] Id.

[21] Id.

[22] Id., at *6.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id., at *7.

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

[29] Id., at *10.

[30] Id., at *10-11 (quoting McDonnell Douglas Co. v. Green, 411 U.S. 792, 802-04 (1973)).

[31] Id., at *11.

[32] Id., at *11-12 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002).

[33] Id., at *12 (quoting Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)).

[34] Id.

[35] Id., at *12-13 (quoting Smith, 644 F.3d at 1328 (other citation omitted)).

[36] Id.

[37] Id.

[38] Id.

[39] Id., at *14.

[40] Id.

[41] Id., at *15.

[42] Id. (quoting Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S. 327, 340 (2020)).

[43] Id.

[44] Id., at *17, 19 (quoting Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 945 (11th Cir. 2023) (other citations omitted)). The court noted that Justice Tomas recently argued that McDonnell Douglas has “spawned ‘widespread confusion’” and that the Supreme Court should provide clear guidance regarding how to conduct a review on summary judgment. Id., at *17 (quoting Hittle v. City of Stockton, Cal., 145 S. Ct. 759, 763 (2025) (Thomas, J., dissenting from denial of certiorari)).

[45] Id., at *19.

[46] Id., at *19-21.

[47] Id., at *21.

[48] Id. (quoting St. Mary’s Honor Ctr. V. Hicks, 609 U.S. 502, 521 (1993)).

[49] Id., at *22 (quoting Smith, 644 F.3d at 1328).

[50] Id.

[51] Id.

[52] Id., at *23.

Photo by Wesley Tingey on Unsplash

In November 2025, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance related to national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).[1] Like other federal agencies, the focus of the EEOC can change with each new presidential administration, and the EEOC will occasionally produce materials related to a specific topic that is important to the pertinent administration. These guidelines are non-binding but do provide an insight into the focus of the agency. This blog post will discuss the EEOC’s guidance related to anti-American bias under Title VII and will provide a hypothetical related to the issue.

As noted by the EEOC, “[u]nder Title VII, employment policies, programs, or practices may be unlawful national origin discrimination if they involve an employer or other covered entity (like a staffing agency or recruiter) taking an action motivated—in whole or in part—by an applicant’s or employee’s national origin.”[2] The EEOC’s guidance begins by focusing on “[d]iscriminatory job advertisements,” stressing to employers that under Title VII, discriminatory job advertisements are prohibited.[3] This includes “ads that say the employer prefers or requires applicants from a particular country or with a particular visa status (for example, ‘H-1B preferred’ or ‘H-1B only’).”[4]

The EEOC next turned its attention to disparate treatment, harassment and retaliation, noting that “Title VII bars discrimination against applicants or employees in the terms, conditions, or privileges of employment, including, but not limited to, hiring; firing; job assignments; compensation; training; fringe benefits; promotion; and demotion.”[5] By way of example, the EEOC first asserted that “[e]vidence of disparate treatment related to firing can include a company terminating American workers who are on the ‘bench’ between job assignments at a much higher rate than employees who are visa guest workers.”[6] In addition, the EEOC noted that “[e]vidence of disparate treatment related to hiring can include an employer making it more difficult for applicants from one national origin to apply for positions (for example, subjecting U.S. workers to more laborious application methods than H-1B visa holders during the PERM labor certification process).”[7] The EEOC further stressed that Title VII prohibits harassment on the basis of national origin, and provides the example of an employee being subjected to unwelcome remarks or conduct.[8] Finally, the EEOC emphasized that Title VII prohibits retaliating against an employee because the employee complained of national origin discrimination, participated in an EEOC investigation, or filed a Charge of Discrimination.[9] The EEOC’s guidance document makes it apparent that the agency will be taking special interest in cases involving discrimination against Americans based on their national origin.

By way of example, Edward, owner of Enigma, Inc., employs a rogues’ gallery of employees, including Oswald, at a pest control company. Oswald, who has been with the company for just over one year, often makes comments that Victor, a longtime and loyal employee, is a “lazy American,” who cannot compare to Al, who was born in Tunisia. On a daily basis, Oswald berates Victor and discusses his national origin in a demeaning manner. It is clear that Oswald favors Al, and ultimately Oswald promotes Al to Senior Bat Catcher over the more experienced and longer-tenured Victor. Victor raises a complaint to Edward and discusses the comments and conduct of Oswald with him. Within one week of raising his complaints, Edward terminates Victor. Victor will have a strong case of national origin discrimination and retaliation against Enigma, Inc., should he seek counsel from the city’s best-known attorney, Harvey. Although not commonly seen, it is clear that employers cannot discriminate on the basis of any national origin, including American.  Failure to heed this important signal can lead to a “Bat” time.

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

[1] “Discrimination Against American Workers is Against the Law,” U.S. Equal Employment Opportunity Comm’n, available at https://www.eeoc.gov/discrimination-against-american-workers-against-law (last visited Dec. 29, 2025).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

Photo by Nathan Sack on Unsplash

On October 16, 2025, the Eleventh Circuit (“the Court”) rendered its opinion in Galarza, et al. v. One Call Claims, LLC, et al. (No. 23-13205) (11th Cir. Oct. 16, 2025).[1] The workers in Galarza were insurance adjusters assigned by an outsourcing company for insurance claims to assist with investigating claims in the wake of Hurricane Harvey in 2017.[2] The court addressed whether the workers were employees of One Call or independent contractors under the FLSA, as the workers sought overtime pay they alleged they were owed.[3] The court noted that “[w]hen we review the conditions of employment to determine employee status, we consider all the relevant circumstances with an eye toward the economic reality of the relationship and whether the workers are economically dependent on the employer.”[4] To that end, the Eleventh Circuit has “recognized six relevant factors to guide the analysis[.]”[5] This blog post will discuss Galarza and provide guidance regarding the factors used by the Eleventh Circuit to determine whether an individual is an employee or an independent contractor.

By way of background, the workers in Galarza were licensed, certified, and trained insurance adjusters; neither One Call nor the Texas Windstorm Insurance Association (“TWIA”) (who contracted with One Call) “trained the workers on the basic skills or functions of the job; instead, they were licensed by Texas and had previous experience in these roles.”[6] TWIA, however, as a state-created entity, “required the adjusters to complete a certification process to ensure that they were familiar” with additional requirements imposed by the state.[7] According to one of the workers, he was trained on how TWIA wanted him to perform his duties and provided him with a spreadsheet as an aide in performing his duties.[8] Furthermore, the workers insisted that they were required to consult with and get approval from TWIA before making offers and resolving claims.[9] The workers and One Call had agreements that claimed they were independent contractors, but the contract noted that the assignment with TWIA was for “an indefinite duration to be ‘determined by ‘TWIA.’”[10] The workers performed services for One Call and TWIA for one and a half to two years.[11] Although the agreements provided they could market their services to other insurers, the contracts prohibited them from inducing or attempting to induce customers (and others) to cease doing business with One Call.[12] None of the workers at issue performed insurance adjustments for anyone else during the pertinent time.[13]

The workers presented evidence that TWIA set their work schedules, they were required to provide time sheets, and TWIA controlled their day-to-day tasks.[14] The workers were responsible for covering their own expenses related to the work with TWIA, but TWIA provided equipment for the work.[15]  Ultimately, TWIA underwent a shift to remote work.[16] The Eleventh Circuit noted there was a factual dispute whether TWIA could monitor the workers’ computers remotely.[17] If the workers wanted to work on Sundays, they had to request permission from TWIA.[18] The workers had all completed their assignments by August 2019.[19]

Subsequently, the workers filed suit under the FLSA seeking damages for unpaid overtime labor.[20] The workers “alleged that they were misclassified as independent contractors instead of employees and were not paid overtime for any week in which they worked more than 40 hours.”[21] The district court ultimately determined that four of the six factors weighed in favor of independent contractor status.[22]

The Eleventh Circuit disagreed with the district court and thoroughly reviewed each of the six factors set forth in Scantland and related cases.[23] The court explained that “[t]o determine whether a worker qualifies as an ‘employee’ and is thus entitled to overtime wage protection under the FLSA, we assess the economic reality of the relationship and whether the worker is economically dependent on the alleged employer under the totality of the circumstances.”[24] The court noted that the six factors, which are a guideline and not an exhaustive list, are:

(1) the nature and degree of the alleged employer’s control over the manner in which work is performed; (2) the worker’s opportunity for profit or loss depending on managerial skill; (3) the worker’s investment in materials or hiring additional workers as necessary to complete his task; (4) whether the worker’s job requires a special skill; (5) the permanency and duration of the relationship between the worker and alleged employer; and (6) the extent to which the worker’s services are an integral part of the alleged employer’s business.[25]

The court stressed that no one factor dominates and that the factors must reflect the economic reality of a given situation.[26]

Turning to the facts at issue, the court held that “[b]y our count, five factors favor employee status, and only one favors independent contractor status.”[27] The court thus determined that “a jury could reasonably conclude that the workers were employees.”[28] The court provided a detailed analysis of each factor that will not be set forth here. Briefly, the court determined first that the companies had sufficient control over the workers given that facts set forth above related to requiring time sheets, docking pay for absences or tardies, and requiring permission to work on Sundays.[29] The court further stressed that “the companies also controlled how the workers performed their tasks and limited their ability to work for other companies.”[30] The workers had to consult with One Call and TWIA to perform their duties, and the workers did not work for anyone else during the pertinent time.[31]

Next, the court turned to whether the workers had an “‘opportunity for profit or loss depending on [their] managerial skill.’”[32] The court determined that “[b]ecause the workers could do nothing to influence wages, this factor indicates that they were likely employees.”[33] The court stressed that “nothing in the record suggests that the workers had an ability to influence their income based on their own managerial skills.”[34]

The court next addressed the workers’ “‘investment in equipment or materials required for [their] task[s], or [their] employment of workers.’”[35] The court held that”[t]he workers had no ability to employ others, nor did they heavily invest in the equipment and materials necessary for the job compared to the companies,” thus suggesting “that the workers were employees.”[36] The workers were supplied with computers, telephones, ID badges, and other items to perform their duties.[37] Even when the workers worked remotely, the companies “provided the necessary software, networks, and accounts.”[38]

Turning to whether the job required a “‘special skill,’” the court determined the factor weighed “in favor of classifying the workers as independent contractors.”[39] The court noted that the workers “came to the relationship with special training and a lice from the state to work in this field.”[40]

Next, the court examined “‘the degree of permanency and duration of the working relationship.’”[41] The court held that this factor also weighed in favor of finding that the workers were employees and noted that “the companies retained the workers for an indefinite and extendable period of time during which the workers did not service any other companies[.]”[42] The court stressed that although the contracts stated that the workers were “‘temporarily engaged,’” the economic reality of the situation controlled the analysis.[43]

Finally, the court determined that the workers performed services that were “‘an integral part of the alleged employer’s business’” and thus the factor weighed in favor of finding that they were employees.[44] The court held that “without the workers’ services, the outsourcing company has nothing to sell and the insurers can’t perform their central function of resolving insurance claims.”[45]

The court thus held that “when we view the facts in the light most favorable to the workers, the factors support the workers’ claim that they are ‘employees’ under the FLSA.”[46] The court reversed the district court’s judgment and remanded the case for further proceedings.[47]

As Galarza demonstrates, the determination of whether a worker is an employee or independent contractor under the FMLA is a fact-intensive endeavor, and it is vital to understand the factors relied upon by the courts in the Eleventh Circuit in answering that question. Whether you are a worker who believes you have been underpaid or an employer facing a claim under the FLSA, you can turn to the experienced attorneys at Jill S. Schwartz & Associates to assist you.

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 at https://media.ca11.uscourts.gov/opinions/pub/files/202313205.pdf (last visited Nov. 25, 2025). The citations in this blog post are to that version of the opinion.

[2] Galarza, at *2-3.

[3] Id., at *2.

[4] Id.

[5] Id. (citing Scantland v. Jeffrey Knight, Inc., 721 F.3d 1308, 1311-12 (11th Cir. 2013)).

[6] Id., at *3. As noted by the court, Texas Windstorm Insurance Association was created by the Texas legislature “to provide wind and hail insurance to the Texas coast.” Id.

[7] Id.

[8] Id.

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

[10] Id., at *4.

[11] Id.

[12] Id.

[13] Id.

[14] Id., at *5.

[15] Id.

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

[17] Id., at *6.

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

[19] Id., at *7.

[20] Id.

[21] Id.

[22] Id.

[23] Id., at *8.

[24] Id.

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

[26] Id., at *8.

[27] Id., at *12.

[28] Id.

[29] Id., at *13.

[30] Id., at *14.

[31] Id.

[32] Id., at *15 (quoting Scantland, 721 F.3d at 1312).

[33] Id.

[34] Id., at *18.

[35] Id. (quoting Scantland, 721 F.3d at 1312).

[36] Id., at *19.

[37] Id.

[38] Id.

[39] Id., at *20-21 (quoting Scantland, 721 F.3d at 1312).

[40] Id.

[41] Id., at *21 (quoting Scantland, 721 F.3d at 1312).

[42] Id., at *22.

[43] Id.

[44] Id., at *23 (quoting Scantland, 721 F.3d at 1312).

[45] Id.

[46] Id., at *24.

[47] Id., at *25.

Photo by Erik Mclean on Unsplash

On August 8, 2025, the Eleventh Circuit (“the Court”) rendered its opinion in Mullin v. Secretary, U.S. Departmen of Veterans Affairs, No. 22-12354 (11th Cir. Aug. 8, 2025).[1] As relevant to this blog post, the Court made it clear that employers can be held liable for failing to protect confidential employee medical information.

By way of background, in Mullin, the plaintiff sued the Department of Veterans Affairs (“VA”) asserting claims for disability discrimination, failure to accommodate, retaliation, and, as pertinent here, unlawful disclosure of medical information under the Rehabilitation Act of 1973, which applies to federal agencies.[2] The district court granted summary judgment in favor of the VA.[3] The Court agreed with the district court as to the disability discrimination, failure to accommodate, and retaliation claims, but it reversed as to the unlawful disclosure claim.[4] Notably, the standards used for the Rehabilitation Act are the same used under Title I of the Americans with Disabilities Act (which applies to employment discrimination claims) (“ADA”); therefore, cases involving the Rehabilitation Act serve as precedent for ADA cases, and vice versa.[5]

The Court included a detailed chronology in its opinion due to the nature of the claims. For the sake of brevity, and given the limited scope of this blog post, only the most pertinent facts will be set forth here. Ms. Mullin began her employment with the VA in 2009, and she remains with the agency as a Ratings Veterans Service Representative in the St. Petersburg Regional Office.[6] In March 2012, Ms. Mullin was diagnosed with breast cancer, and her physician completed a Family and Medical Leave Act (“FMLA”) certification form stating she would require a six-month absence.[7] Ms. Mullin subsequently submitted the form to human resources.[8] A few months later, a steward with the union to which Ms. Mullin belonged sent her an email and “mentioned that he heard about Ms. Mullin’s ‘condition’ from Bonnie Wax, a human resources manager.”[9] He also asserted that Ms. Wax believed that breathing problems from which Ms. Mullin had suffered were due to the tumor.[10] Understandably, Ms. Mullin was surprised to learn that the steward knew of her diagnosis, as she had only told a friend at work and a Veterans Service Center manager.[11] Ultimately, Ms. Mullin filed a complaint that included a claim of unlawful disclosure and privacy violations related to the cancer diagnosis.[12]

As discussed above, the Court noted, “‘The standards used to determine whether [the Rehabilitation Act] has been violated . . . shall be the standards applied under [T]itle I of the Americans with Disabilities Act . . . and the provisions of [S]ections 501 through 504, and 510, of the Americans with Disabilities Act . . ., as such sections relate to employment.’”[13] Regarding the unlawful disclosure claim, the Rehabilitation Act “incorporates the confidentiality provisions of the ADA.”[14] In examining the relevant statutes and regulations, the Court stated, “Information obtained from an employee through a medical examination or inquiry [as permitted under 42 U.S.C. § 12112(d)(4)(A)] ‘shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record . . . . .’”[15] The Rehabilitation Act likewise provides that such information is generally “‘treated as a confidential medical record[.]’”[16] The Court noted that it had not previously addressed whether there is a private right of action under 42 U.S.C. § 12112(d)(4), but it held in Mullin that such a right of action does exist “irrespective of disability status.”[17] The Court clarified that to bring a claim under § 12112(d)(4), “an employee must show that (1) the employer either made an unlawful inquiry in violation of § 12112(d)(4)(A) or violated its confidentiality requirements after making a proper inquiry under § 12112(d)(4)(C), and (2) the employee suffered a tangible injury from the unlawful inquiry or disclosure.”[18]

Turning to Ms. Mullin’s claim, the Court first noted that the district court did not address the issue of whether the VA had made an inquiry because it determined that she had not suffered any harm, although the district court did state in a footnote that “it was ‘not at all convinced’ that an inquiry occurred when Ms. Mullin disclosed her medical information in a required FMLA form requesting leave for her cancer treatment.”[19] The Court disagreed, holding that “we believe that an inquiry was made and that there are issues of fact as to whether there was an unlawful disclosure stemming from that inquiry.”[20] The Court, relying upon a D.C. Circuit decision, held that “when an employer conditions an employee’s access to statutorily protected leave [such as FMLA leave] on the submission of medical information, that is an ‘inquiry’ under § 12112(d)(4).”[21] The Court noted that Ms. Mullin had previously sought FMLA leave related to asthma and had been informed that medical documentation would be required  if she wished to extend her leave, and when she was diagnosed with cancer, she submitted medical documentation because she had previously been instructed to do so by the VA.[22] Thus, the Court held that Ms. Mullin “did not volunteer the information; she disclosed it because, under the Department’s previous letters, it was apparent that disclosing the information was the only way to maintain her leave and her pay.”[23] Ms. Mullin did not voluntarily disclose the condition.[24]

The Court next addressed whether the VA had made an unlawful disclosure. The Court held that, despite the VA’s assertion to the contrary, “[t]here is sufficient evidence in the record for a jury to find that Ms. Wax was the source of the allegedly unlawful disclosure and that she obtained the information from the FMLA form.”[25] The Court noted that first, an internal VA memorandum approving Ms. Mullin’s FMLA leave, which was dated before the e-mail from the steward and signed by Ms. Wax, stated that the medical condition was left off “‘to avoid accidental disclosure.’”[26] Next, the Court observed that the steward’s e-mail, which came after approval of the FMLA leave, explicitly stated that he and Ms. Wax has discussed Ms. Mullin’s diagnosis.[27] The Court found that although Ms. Mullin had discussed her condition with a few people, there was “insufficient evidence that [the union steward] learned of her diagnosis from anyone other than Ms. Wax,” and Ms. Mullin testified she never shared the diagnosis with Ms. Wax.[28] Notably, the Court stressed, “Of course, sharing a medical condition with a few relatives or close friends does not, as a matter of law, make the condition non-confidential.”[29] The Court held that “a reasonable jury could find that Ms. Wax disclosed Ms. Mullin’s cancer diagnosis to [the steward] after the FMLA form was submitted.”[30]

Finally, the Court addressed whether the evidence established that Ms. Mullin had suffered a tangible injury due to Ms. Wax’s conduct.[31] The Court held that Ms. Mullin had presented sufficient evidence to present an issue of fact as to whether she suffered a tangible injury.[32] Specifically, during her deposition, Ms. Mullin testified that the conversation between Ms. Wax and the steward still causes her emotional distress and impacted her recovery.[33] The Court determined that the testimony alone was enough to withstand summary judgment.[34] It further noted that “[a]lthough documentation of emotional distress is not required . . . we note that the record also contains two letters from the Department of Labor Office of Workers’ Compensation Programs updating Ms. Mullin’s medical conditions in her file.”[35] The letters updated her conditions to include PTSD and major depressive disorder.[36] Although Ms. Mullin did not rely on the two letters, the Court noted that “if those diagnoses are connected to the alleged unlawful disclosure, a jury could reasonably find that Ms. Mullin suffered a tangible injury from the disclosure—for example, anxiety that developed into PTSD and/or depression.”[37] The Court thus reversed as to the unlawful disclosure claim.[38]

Mullin makes it clear that employers must ensure they take steps to protect employees’ confidential medical information. Failure to do so could have dire consequences. 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 at https://media.ca11.uscourts.gov/opinions/pub/files/202212354.pdf (last visited Oct. 29, 2025). The citations in this blog post are to that version of the opinion.

[2] Mullin, at *2.

[3] Id.

[4] Id.

[5] Id., at *8.

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

[7] Id., at *4.

[8] Id.

[9] Id., at *4-5.

[10] Id., at *5.

[11] Id.

[12] Id., at *7.

[13] Id., at *8 (citations omitted).

[14] Id., at *19.

[15] Id., at *20 (citation omitted).

[16] Id. (citation omitted).

[17] Id., at *20-21.

[18] Id., at *21 (citations omitted).

[19] Id., at *22.

[20] Id., at *22-23.

[21] Id., at *23.

[22] Id., at *25-27.

[23] Id., at *27 (citation omitted).

[24] Id. (citation omitted).

[25] Id., at *30.

[26] Id.

[27] Id., at *30-31.

[28] Id., at *31.

[29] Id.

[30] Id.

[31] Id., at *32.

[32] Id., at *35.

[33] Id., at *33-34.

[34] Id., at *34.

[35] Id. (citation omitted).

[36] Id.

[37] Id., at *34-35 (footnote omitted).

[38] Id., at *35, 38.

Photo by Tim Gouw on Unsplash

As defined by the Encyclopedia Brittanica, AI is the “ability of a digital computer or computer-controlled robot to perform tasks commonly associated with intelligent beings. The term is frequently applied to the project of developing systems endowed with the intellectual processes characteristic of humans, such as the ability to reason, discover meaning, generalize, or learn from past experience.”[1] Although AI has been a mainstay for many years (for example, Apple’s Siri was launched in 2011, and Amazon’s Alexa was introduced in 2014), since 2022, with the launch of ChatGPT, AI has very much come to the forefront of society, from music to AI-generated photos.[2] Likewise, the use of AI in the legal field has also exponentially increased in the last ten years, with companies such as LexisNexis, Westlaw, and Clio offering tools to assist law firms in their day-to-day operations with things such as taking notes during phone calls (with the client’s permission), searching for case law, or even drafting documents. This blog post will explore the use of AI in the legal field and will provide some suggestions to avoid frightening pitfalls.  This is a follow-up to our September 2024 post, which focused on the Florida Bar ethical opinion on the use of AI in the law.

Although AI can certainly be a useful tool, there have been multiple cases recently where the use of AI by attorneys went horribly wrong. For instance, in February, attorneys from a well-known law firm (and its co-counsel) were sanctioned by a District Court in Wyoming for citing eight non-existent cases, some of which were generated by an internal AI platform.[3] In its order sanctioning the attorneys, the court noted that although AI can be beneficial, “the current state of AI has its shortcomings. The legal profession has been cautious to make a head-first dive partly because of a concept referred to as ‘AI Hallucinations.’ A hallucination occurs when an AI database generates fake sources of information.”[4] The court noted that AI hallucinations are not unique to the legal field and emphasized that the case was “simply the latest reminder to not blindly rely on AI platforms’ citations regardless of profession.”[5] The court stressed that attorneys must manually check and verify their sources.[6]

Similarly, in a case from California, attorneys from two firms were sanctioned for submitting a brief that contained multiple hallucinated citations.[7] The attorneys filed a “corrected” brief that also contained at least six AI-generated errors.[8] The attorneys were chastised by the court for not verifying the citations and were sanctioned, including being ordered to pay $31,100 in defendant’s legal fees and to disclose the matter to their client.[9] These cases, and the many others like them, demonstrate that attorneys must be careful when relying upon AI, particularly when submitting briefs or other documents to the court. For Florida attorneys, the Florida Bar has developed a guide for getting started with AI.[10]

It is also important for clients to understand that AI sources do not always provide reliable information regarding their claims (or potential claims). Although it is certainly quick and easy to Google information or place a set of facts into ChatGPT (or a similar service), such information is not necessarily trustworthy. It is vital that clients speak with counsel regarding their claims so that the proper laws, rules, or regulations can be relied upon. For attorneys, although AI can be a very helpful tool, it is important to always check the information provided by AI and to verify the sources provided. Failure to do so can easily lead to a very “spooky” situation indeed.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.[11]

[1] B.J. Copeland, Artificial Intelligence, Brittanica.com, https://www.britannica.com/technology/artificial-intelligence (last visited Sept. 29, 2025).

[2] Introducing ChatGPT, OpenAI.com, https://openai.com/index/chatgpt/ (last visited Sept. 29, 2025).  For information related to Siri and Alexa, see The Evolution of AI-Powered Personal Assistants: A Comprehensive Guide to Siri, Alexa, and Google Assistant, Medium.com, https://megasisnetwork.medium.com/the-evolution-of-ai-powered-personal-assistants-a-comprehensive-guide-to-siri-alexa-and-google-f2227172051e (last visited Sept. 29, 2025).

[3] Debra Cassens Weiss, No. 41 law firm by head count sanctioned over fake case citations generated by AI, ABA Journal, available at https://www.abajournal.com/news/article/no-42-law-firm-by-headcount-could-face-sanctions-over-fake-case-citations-generated-by-chatgpt (last visited Sept. 29, 2025).

[4] Order on Sanctions and Other Disciplinary Action, Wadsworth v. Walmart Inc, et al., Case No. 2:23-CV-118-KHR (D. Wyo. Feb. 24, 2025), at *2, available at https://storage.courtlistener.com/recap/gov.uscourts.wyd.64014/gov.uscourts.wyd.64014.181.0_1.pdf (last visited Sept. 29, 2025).

[5] Id.

[6] Id.

[7] Bob Amrogi, AI Hallucinations Strike Again: Two More Cases Where Lawyers Face Judicial Wrath for Fake Citations, LawSites, https://www.lawnext.com/2025/05/ai-hallucinations-strike-again-two-more-cases-where-lawyers-face-judicial-wrath-for-fake-citations.html (last visited Sept. 29, 2025).

[8] Id.

[9] Id.

[10] The Florida Bar Guide to Getting Started with AI, Legal Fuel, https://www.legalfuel.com/guide-to-getting-started-with-ai/ (last visited Sept. 29, 2025). The guide provides a comprehensive overview of the use of AI in the law, including a discussion of ethical concerns with the use of AI. These issues were the subject of our September 2024 blog.

[11] This entire blog post was penned by a human hand — except for this tiny footnote, which was whispered into existence by ChatGPT.

Photo by Nahrizul Kadri on Unsplash

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.

Photo by Karl Callwood on Unsplash

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.

Photo by Roddy Mcgillivray on Unsplash

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.

Photo by Juliana Romão on Unsplash

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.

Photo by charlesdeluvio on Unsplash

“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