Florida Labor and Employment Attorneys

Key Takeaway:

• In cases involving governmental entities in Florida, the damage cap under Florida’s waiver of sovereign immunity statute governs.

On July 1, 2026, Florida’s Fourth District Court of Appeal (“Fourth DCA”) rendered its opinion in Wilson v. Palm Beach County Board of County Commissioners, No. 4D2024-3347 (Fla. 4th DCA July 1, 2026).[1] The court addressed the question of whether the maximum allowable damages under Title VII (known as a damage cap) preempt the applicable caps under Florida’s sovereign immunity waiver.[2] This blog post will discuss the Fourth DCA’s analysis and its importance for plaintiffs seeking damages against public entities in Florida.

By way of background, Wilson brought a claim of employment discrimination against the Palm Beach County Board of County Commissioners (“the County”) under the Florida Civil Rights Act of 1992.[3] Following a trial, a “jury awarded Wilson $243,372 in economic damages for lost wages and benefits and $500,000 in non-economic damages for emotional pain, mental anguish, inconvenience, and loss of reputation.”[4] Subsequently, the County moved to set aside the verdict or in the alternative to reduce the award (called a remittitur).[5] As to reducing the award, “the County requested the trial court ‘impose a limitation on the amount that Plaintiff may recover from the County of no more than $200,000 consistent with section 768.28(5), Florida Statutes . . . and inclusive of all damages, costs, post-judgment interest and attorney’s fees.’”[6] In response, Wilson argued that the FCRA’s recovery cap was preempted by Title VII, which has a higher cap.[7] Following a hearing, that trial court granted the motion to reduce non-economic damages and reduced the amount to $60,000.[8] The court’s order did not discuss statutory caps or preemption.[9] The trial court entered an amended final judgment in favor of Wilson for $303,372.[10] In the initial appeal, the County raised issues from the trial, while Wilson cross-appealed the reduction in non-economic damages and the court’s denial of her front pay request.[11] There, the Fourth DCA affirmed the final judgment (including the reduction) but “reversed the imposition of a daily fine sanction imposed by the trial court if Wilson’s employment was not reinstated by a certain date.”[12]

Back at the trial court, Wilson filed a petition for writ of mandamus (Latin for “we command”) “requesting the trial court to ‘direct[] the [County] to pay [Wilson] and her counsel, the sum set forth in the Final Judgment, [and] reasonable attorney’s fees and costs[.]’”[13] The petition did not argue that Title VII’s caps applied.[14] In its response in opposition, the County asked the court to determine the applicability of Florida’s sovereign immunity recovery cap found in section 768.28(5).[15] The County asserted that it was prepared to issue payment of the statutory cap of $200,000, but it argued that the trial court should not apply the Title VII cap to the extent that was argued by Wilson.[16] The County further asserted that Wilson had “alleged the existence of ‘“Guerra [Cal Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987)]preemption”’ as to the statutory cap in this action and relies on Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008),” but the County maintained that case law clearly provides that Title VII does not preempt the FCRA.[17] Wilson filed a reply “detailing her arguments about why Florida’s recovery cap was preempted by federal law or applied to only compensatory damages, but not back wages, attorney’s fees, and costs.”[18]

Subsequently, a judge who did not preside over the trial or grant the remittitur ruled on Wilson’s petition and “concluded that Florida’s recovery cap was a cap on all recovery, and ‘no basis’ existed for concluding Florida’s recovery cap was preempted by Title VII’s recovery cap.”[19] The judge issued a writ of mandamus for $200,000 to ensure payment was made and subsequently issued an order consistent to that effect.[20] Wilson appealed that order.[21]

The Fourt DCA agreed with the trial court. The court began its analysis on the primary question on appeal by noting, “Federal law can supersede state law in three ways: (1) express preemption; (2) implied preemption; and (3) conflict preemption.”[22] Here, Wilson argued that conflict preemption applied, which “‘arises when “compliance with both federal and state regulations is a physical impossibility,” or when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”’”[23] Wilson asserted that Florida’s statutory cap impeded Congress’s intent under Title VII and noted that Title VII has a cap of $300,000 total for compensatory and punitive damages for employers with more than 500 employees but that back pay and attorney’s fees and costs are not capped.[24] The Fourth DCA rejected Wilson’s argument and her reliance on a 1991 First DCA case and a subsequent Fourth DCA case unrelated to damage caps and noted that “Wilson conflates a remedy with protection.”[25]

In reaching its decision, the Fourth DCA found an Eleventh Circuit case cited by the County instructive.  Specifically, the County relied on Bradshaw v. School Board of Broward County, 486 F. 3d 1205 (11th Cir. 2007), in which the Eleventh Circuit also rejected an argument that Title VII preempted the FCRA cap.[26] The court noted that Wilson did not attempt to distinguish Bradshaw and held that “as Bradshaw explains, Title VII does not prevent states from imposing liability however they see fit.”[27] The judges further agreed with the County’s argument that “‘[t]he limit on the amount of recovery has no bearing on the scope of the employer activity that is unlawful, nor does it change that an aggrieved employee can bring an action and impose liability on an employer that has engaged in discrimination.’”[28] The court thus determined that Title VII does not preempt Florida’s statutory cap and affirmed “the trial court’s order limiting Wilson’s recovery under the jury verdict to $200,000 for monetary damages, attorney’s fees, costs, and post-judgment interest.”[29]

Wilson is very instructive for individuals bringing claims against governmental entities (the state and its agencies and subdivisions) in Florida. The Fourth DCA makes it clear that although a jury may award significantly more than $200,000 to an aggrieved individual, in the end, the statutory cap found in section 768.28(5) will control. We will continue to monitor this issue and will provide any pertinent 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.

The Bottom Line:

• Although a jury may award significantly more than $200,000 to an aggrieved individual in a case involving a governmental entity in Florida, in the end, the statutory cap found in section 768.28(5), Florida Statutes, will control.

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[1] The opinion is available at the following link: https://flcourts-media.flcourts.gov/content/download/2490743/opinion/Opinion_2024-3347.pdf (last visited Aug. 28, 2026). References to the opinion in the blog post refer to the page numbers from that version.

[2] Wilson, at *1.

[3] Id.

[4] Id.

[5] Id., at *2.

[6] Id. Section 768.28(5) applies to the state and its agencies and subdivisions. § 768.28(5), Fla. Stat. (2025). Under section 768.28, “‘State agencies or subdivisions’ include the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the state, including state university boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities, including the Florida Space Authority.” § 768.28(2), Fla. Stat. (2025).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id., at *3.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

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

[21] Id., at *4.

[22][22] Id., at *5 (citation omitted). The court quickly rejected the County’s argument that jurisdiction was not proper. Id., at *4.

[23] Id., at *5 (quoting 770 PPR, LLC v. TJCV Land Tr., 30 So. 3d 613, 617 (Fla. 4th DCA 2010) (other citation omitted)).

[24] Id.

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

[26] Id., at *6.

[27] Id., at *7.

[28] Id. (quoting the County’s Answer Brief).

[29] Id.

 

Photo by Albert Stoynov on Unsplash

In our January 2025 blog post, we asked whether the Florida Supreme Court (“the Court”) would weigh in regarding the standard a plaintiff must meet in cases arising under section 448.102(3) of Florida’s Private Sector Whistleblower Act (section 448.101, et seq., Florida Statutes; “FWA”).[1] On May 28, 2026, the Court answered that question by rendering its opinion in Gessner v. Southern Company, et al., No. SC2024-1835 (Fla. May 28, 2026).[2] This is the case addressed in our July 2025 post where we noted the First District Court of Appeal (“DCA”) had certified conflict with the Fourth DCA regarding the applicable standard in FWA matters. This blog post will discuss the Court’s opinion in Gessner and its importance moving forward for parties involved in an FWA matter arising under section 448.102(3).

Given our previous analysis of the First DCA’s opinion, we will only briefly summarize the pertinent facts here. Gessner began working for Gulf Power Company (a subsidiary of Southern Company) in 2008.[3] Gulf Power ultimately terminated Gessner about a decade later, “after placing [him] on a kind of probation following multiple formal reprimands.”[4] His “use of racially disparaging language during a meeting proved to be the last straw,” and the company asserted that this was the “precipitating event for his termination.”[5] In his suit, Gessner asserted that he was “fired in retaliation for his objections to the companies’ alleged practices of exposing employees to unsafe environments” in violation “‘state and/or federal laws or that he reasonably and objectively believed were in said violation.’”[6] After discovery, the defendants moved for summary judgment.[7] They argued that Gessner had failed to establish that he “had objected to actual violations of laws, rules, or regulations,” while Gessner argued he only needed to proffer evidence that he objected to conduct he believed violated the law.[8] Gessner alternatively argued that he raised complaints to conduct that violated the General Duty Clause under the Occupational Safety and Health Act, but he had abandoned that argument before the Florida Supreme Court by not raising it in his briefings.[9]

The trial court ruled in favor of the defendants, holding that under 448.102(3), “an employee must show that he or she blew the whistle on an actual, not suspected, violation of law.”[10] As we discussed in our prior post, the First DCA agreed, holding that the “actual violation” standard governs FWS matters.[11] The First DCA aligned itself with the Second DCA, and the Fifth DCA subsequently joined the “actual violation” camp.[12] The First DCA and the Fifth DCA noted the conflict with the Fourth DCA’s opinion in Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA 2013), where the court adopted a “good faith, objectively reasonable belief” standard.[13] The Court granted jurisdiction to resolve the conflict.[14]

The Court began its analysis by setting forth the pertinent statutory text:

An employer may not take any retaliatory personnel action against an employee because the employee has:

. . . .

(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.[15]

The Court emphasized that “section 448.102(3) uses ‘is’ to connect the employer’s ‘activity, policy, or practice’ to a ‘violation of a law, rule, or regulation.’”[16] The Court set forth an in-depth analysis of the meaning of “is,” which included references to John Keats and former Los Angeles Dodgers announcer Vin Scully.[17]

The Court determined that as used in 448.102(3), “is” is used definitionally, meaning that “[a]n employee need only object to an activity or practice that is, in the definitional sense, in violation of law in order to be protected under the statute.”[18] The Court determined that section 448.102(3) “does not require an employee to prove that the employer is, at the moment the employee is discharged, in the act of violating the law, that the employer has already violated the law, or that any authority has found the employer to have done so.”[19] The Court thus rejected the “actual violation” standard as set forth by the DCAs, as well as the “good faith, objectively reasonable belief” standard adopted by the Fourth DCA.[20] The Court noted that the Legislature has included subjective language in other whistleblowing statutes (including the public sector whistleblower statute), but it declined to do so in section 448.102(3).[21] The Court stressed that “to survive a motion to dismiss for a section 448.102(3) claim, an employee must plead ultimate facts about the employer’s ‘activity, policy, or practice’ that, if proven, would be in violation of law,” and it noted that a plaintiff must prove all of the statutory elements by a preponderance of the evidence to prevail.[22]

The Court helpfully illustrated its holding by providing the example of an employee terminated for refusing to dump hazardous waste in a waterway, in violation of Florida Litter Law.[23] The hypothetical employer had not yet dumped the material, but the directive would still be, definitionally, a violation of the law.[24] The Court determined that “[t]he hypothetical employee is thus protected by the statute when he objects to the dumping instruction regardless of whether the employer fails to ultimately carry it through without the employee.”[25] The Court stressed that the employer need not direct the employee himself for the employee to be protected, as the employee could object to the employer’s illegal activity carried out by the employer or its other agents.”[26]

Turning to the facts at hand, the Court determined that the trial court and First DCA properly determined that Gessner was not entitled to relief; however, the Court disapproved of their construction of the “actual violation” standard “to the extent it requires a completed unlawful action or adjudication of illegality in order for a plaintiff to sustain his or her burden at this stage of the proceedings.”[27] The Court affirmed the First DCA under the “tipsy coachman” doctrine, which permits an appellate court to affirm a trial court if it reached the right result for the wrong reason so long as there is a basis in the record that supports the judgment.[28] The Court determined that Gessner had not proven by a preponderance of the evidence “that the activities to which he objected are, definitionally, in violation of the law.”[29]

Gessner provides much-needed guidance for FWA litigations. Reviewing the statutory text, the Court determined that to the extent the “actual violation” standard required a plaintiff to prove the employer was in the act of violating the law, had violated the law, or that an authority had determined a violation had occurred, such a requirement was too stringent. Instead, as its hypothetical indicates, a plaintiff may be protected if the employer’s directive would constitute a violation of a law, rule, or regulation. Whereas previously there was murkiness in the FWA realm, there is now some clarity, although, as Chief Justice Muñiz notes in his opinion concurring in the result, future courts may need to determine if conduct that has not yet occurred constitutes an “activity, policy, or practice of the employer” under section 448.102(3).[30] For now, Gessner provides the controlling authority for FWA claims arising under 448.102(3).

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

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[1] See Jill S. Schwartz & Associates, P.A., News/Blog, Case Law Update: The First District Court of Appeal Adopts “Actual Violation” Standard for Private Sector Whistleblower Claims & Certifies Conflict—Will the Florida Supreme Court Weigh In?, available at https://www.schwartzlawfirm.net/case-law-update-the-first-district-court-of-appeal-adopts-actual-violation-standard-for-private-sector-whistleblower-claims-certifies-conflict-will-the-florida-supreme-cou/ (last visited June 26, 2026).

[2] The opinion is available at the following link: https://flcourts-media.flcourts.gov/content/download/2489373/opinion/Opinion_SC2024-1835.pdf last visited June 26, 2026). References to the opinion in the blog post refer to the page numbers from that version.

[3] Gessner, at *4.

[4] Id.

[5] Id.

[6] Id. (quoting his complaint) (emphasis added).

[7] Id., at *5.

[8] Id.

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

[10] Id., at *6.

[11] Id., at *7.

[12] Id., at *7-8.

[13] Id., at *8.

[14] Id.

[15] Id., at *9 (quoting § 448.102(3), Fla. Stat.) (emphasis added).

[16] Id., at *10.

[17] Id., at *11-12.

[18] Id., at 13-15.

[19] Id., at *16.

[20] Id., at *18.

[21] Id., at *18-19.

[22] Id., at *21.

[23] Id., at *14.

[24] Id.

[25] Id.

[26] Id., at *15.

[27] Id., at *22.

[28] Id. The Court set forth the poem from which the doctrine’s name derives in footnote 10 of the opinion.

[29] Id., at *23.

[30] Id., at *25 (Muñiz, C.J., concurring in result).

 

Photo by Patrick Fore on Unsplash

On February 6, 2026, the Eleventh Circuit rendered its opinion in Melton v. I-10 Truck Center, Inc., et al., No. 23-14175 (11th Cir. Feb. 6, 2026).[1] The court noted that the case required that it “decide whether an employee’s complaint of a racially hostile work environment can be supported by evidence of discrimination in his workplace against all racial minorities.”[2] This blog post will discuss the Melton opinion and how it provides important guidance in cases involving claims of hostile work environment.

By way of background, the court noted that Melton is an African American man who began working at I-10 Truck Center in March 2020.[3] The owner’s son, Jason Brigman, “participated in management decisions at I-10, though he had no official role.”[4] Joseph Andrews was Melton’s direct supervisor.[5] As related by the court, “All employees at I-10, except for Melton, were white.”[6] Melton worked as a salesman, selling, showing, and washing trucks, and completing the necessary paperwork, among other duties.[7] Melton alleged that he “‘regularly’ observed the Brigmans and Andrews make derogatory comments about all nonwhite customers.”[8] Furthermore, Andrews refused to serve nonwhite customers if it was possible to pass them on to Melton.[9] Brigman and Andrews routinely made racist comments regarding nonwhite customers, using a variety of racial slurs.[10] Melton raised complaints to the elder Brigman regarding the comments, but the owner took no corrective action.[11] As stated by the court, “Because Melton ‘heard such language . . . nearly every time a nonwhite customer entered I-10,’ and because nonwhite customers entered ‘frequently,’ Melton felt racial hostility toward customers was a ‘normal practice’ at I-10.”[12] Melton alleged that the comments caused him stress and anxiety and made it difficult for him to perform his duties.[13]

In addition to the above comments, the court related that “I-10 employees also used racial slurs to discuss Melton behind his back.”[14] This included calling him “token” and referring to him using a racial slur.[15] In an employee group chat that included Andrews, employees described Melton using racial slurs (the Brigmans were apparently unaware of the group chat prior to discovery in the lawsuit).[16]

The court next turned to the alleged deficiencies in Melton’s work observed by I-10 management.[17] Attendance logs indicated he missed many days of work and several hours on many other days.[18] There were also reported deficiencies in his paperwork and invoices.[19] In April 2021, Melton and Andrews got into a heated argument because Melton felt that Andrews had deprived him of commission payments.[20] The discussion ended with Andrews telling Melton, “‘Boy, you’d better get out of my office.’”[21] Melton complained about the comment to the elder Brigman.[22] Brigman admonished both Melton and Andrews for the confrontation, but he “took no action to punished Andrews’s alleged racist behavior.”[23] Subsequently, Melton overheard the younger Brigman tell Andrews that the company was “‘going to get rid of [Melton] but they had to do it the right way.’”[24] The alleged performance deficiencies continued over the next few months.[25] I-10 ultimately changed Melton’s compensation from a salary to hourly pay and criticized him for performing his work the same way he had prior to the April confrontation.[26]

In May 2021, Melton’s attorney emailed the Brigmans and Andrews “alleging ‘unfair treatment in the workplace’” and complaining that Melton had again overheard the Brigmans referring to customers and himself using a racial slur.[27] In June, the younger Brigman warned Melton, Andrews, and others of deficiencies in paperwork and stated that the deficiencies had to stop.[28] The day before I-10 terminated Melton, a customer came in to pick up a truck, but the truck was hundreds of miles away in Alabama.[29] For purposes of summary judgment, I-10 agreed that it terminated Melton on August 6, 2021.[30]

Melton sued I-10 and the Brigmans for racial discrimination, retaliation, and a racially hostile work environment.[31] For each claim, he relied on the federal law barring racial discrimination in contracting (see 42 U.S.C. section 1981).[32] The lower court granted summary judgment in favor of I-10.[33]

For purposes of this blog post, we will briefly note that the Eleventh Circuit determined that Melton did not provide substantial evidence that racial animus motivated his termination or that his termination was causally connected to his complaints of racial discrimination.[34] Regarding the racial discrimination claim, the court held that “[n]either Andrews nor [the younger Brigman] qualifies as a decisionmaker with racial animus.”[35] The court further determined that “I-10 provided legitimate reasons for [Melton’s] termination.”[36] Likewise, the court determined that Melton did not establish causation for his retaliation claim.[37]

Regarding the hostile work environment claim, the court noted, “We judge claims of racially hostile work environments under section 1981 by the same standard we apply to the same claims under Title VII.”[38] The court provided historical context for hostile work environment claims under Title VII and stressed that “[t]o prevail on a claim against his employer for a racially hostile work environment, an employee must first prove that ‘he is a member of a protected class,’ and that he was subjected to ‘unwelcome’ harassment ‘based on his race.’”[39] The court further related that a plaintiff must then prove “‘that the harassment was severe or pervasive enough to alter the terms and conditions of his employment.’”[40] Finally, the plaintiff “must prove that ‘the employer is responsible for the environment.’”[41] Importantly, “An employee may prevail by showing ‘[e]ither severity or pervasiveness.’”[42]

Here, the court determined that the evidence presented by Melton, taken together, was “enough for a jury to infer a hostile work environment.”[43] The court first noted that Andrews’s use of the term “boy” could be found by the jury to be a racial slur.[44] The court further held that “[a] jury could reasonably rely on the evidence of pervasive hostility toward nonwhite customers.”[45] The court emphasized that Melton “provided specific evidence that the Brigmans and Andrews routinely used racial slurs towards dark-skinned customers and made other, charged comments about them in his presence.”[46] The court held that a “jury would be on firm ground to infer from these comments that Andrews and the Brigmans were hostile to all dark-skinned or nonwhite customers and employees.”[47] The court stressed that Melton was the only nonwhite employee and that “the routine targeting of any nonwhite customer by a dominant white majority could reasonably make the environment hostile for a black employee.”[48] The court further noted that its conclusion was reinforced by the facts that Andrews and the Brigmans “regularly confirmed that their prejudiced extended to black customers, by questioning the source of a black customer’s money ‘[n]early every time’ a black customer paid with cash.”[49] The court also reiterated Andrews’s use of a racial slur to Melton’s face.[50]

In reaching its decision, the court stated, “we hold only that when an employee belongs to a minority group relative to his specific workplace, the treatment of other non-majority groups may evidence a strong racial preference for the workplace majority such that all minorities are racially disfavored.”[51] The court stressed that “[e]mployees must still establish that they were subject to at least some harassment based on their own race” and that “Title VII is not a ‘civility code’ to save employees from offense at the vulgarity and cruelty of others.”[52] But, the court held, Melton was protected in this instance given the evidence presented.[53] Thus, the court ruled that “[b]ecause Melton has provided substantial evidence to put that question [whether the harassment affected Melton’s performance throughout his employment or prevented him from improving his performance] to a jury, the district court erred in granting summary judgment against his claim of a hostile work environment.”[54]

Melton makes it clear that even where an employee’s claim of race discrimination and retaliation fails, he may still be able to prevail on a claim of hostile work environment if the conditions are severe or pervasive enough, and he encountered discrimination based on his race. Although the court emphasized that its holding is limited, it still provides important guidance in instances where there is racial animus present in the workplace.

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

 

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[1] The opinion is available on the court’s website at https://media.ca11.uscourts.gov/opinions/pub/files/202314175.pdf (last visited May 27, 2026). The citations in this blog post are to that version of the opinion.

[2] Melton, at *2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id., at *3.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id., at *4.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id., at *5.

[22] Id.

[23] Id.

[24] Id.

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

[26] Id., at *6.

[27] Id.

[28] Id.

[29] Id.

[30] Id., at *7.

[31] Id.

[32] Id.

[33] Id.

[34] Id., at *8.

[35] Id., at *10.

[36] Id., at *12.

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

[38] Id., at *17 (citation omitted).

[39] Id., at *20 (quoting Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248-49 (11th Cir. 2014)).

[40] Id. (quoting Adams, 754 F.3d at 1249).

[41] Id. (quoting Adams, 754 F.3d at 1249).

[42] Id. (quoting Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en banc)).

[43] Id., at *21.

[44] Id.

[45] Id.

[46] Id., at *22.

[47] Id.

[48] Id.

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

[50] Id., at *23.

[51] Id.

[52] Id. (quoting Reeves, 594 F.3d at 807).

[53] Id.

[54] Id.

 

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As we discussed in our July 2025 post, in State v. Toal, 406 So. 3d 978 (Fla. 1st DCA 2025), Florida’s First District Court of Appeal 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.[1] At the time, the decision conflicted with the Third District Court’s decision in Iglesias v. City of Hialeah, 305 So. 3d 20 (Fla. 3d DCA 2019), where the court held that noneconomic damages “could be recovered because the Whistleblower’s Act did not expressly exclude them[.]”[2] On March 25, 2026, in Miami-Dade County v. Garavan, No. 3D25-0014 (Fla. 3d DCA Mar. 25, 2026), the Third District Court joined the First District Court in holding that non-economic damages are not available under the Act.[3] This blog post will discuss the Garavan opinion and its importance to parties litigating under the Act.

By way of background, Dr. David Fintan Garavan “was an employee of the Miami-Dade County Medical Examiner’s Office.”[4] Dr. Garavan brought suit under the Act, alleging that the County demoted and terminated him in retaliation for raising complaints of violations of laws, rules, and/or regulations.[5] Following a jury trial, “the jury returned a verdict in his favor, awarding both economic and non-economic damages.”[6] The County subsequently filed a motion to set aside the non-economic damages portion of the verdict aside as excessive, and the trial court denied the motion and entered final judgment, “finding substantial evidence of emotional distress and reputational harm.”[7] The County appealed.[8]

On appeal, the County argued that “the jury’s award of non-economic damages to Dr. Garavan is barred as a matter of law because the County is entitled to sovereign immunity and Dr. Garavan’s recovery is limited to those damages expressly waived.”[9] As the First District Court did in Toal, the Third District Court began its analysis by reviewing the history of the doctrine of sovereign immunity.[10] The court noted that sovereign immunity is the idea that the sovereign (including the State of Florida) cannot be sued without its consent, a doctrine that has its roots in the English common law.[11] The court noted, “‘The immunity of the States of Florida and its agencies from liability for claims arising under Florida law or common law is absolute absent a clear, specific, and unequivocal waiver by legislative enactment.’”[12] The court further stressed, “The Florida Supreme Court has required that any legislative waiver of sovereign immunity be clearly expressed and strictly construed.”[13] The court went on to state that “if the sovereign has not expressly, clearly and unequivocally waived a specific category of damages—such as non-economic damages—we conclude that those damages are not recoverable against the sovereign.”[14]

The court next turned to whether the County was entitled to sovereign immunity for non-economic damages under the Act. The court set forth the statutory language of the Act related to permitted relief and stressed that the Act “does not include non-economic damages as a form of relief.”[15] The court determined that the list of remedies under the Act were limited to “a quantifiable economic loss damage.”[16] The court contrasted the Act with Florida’s private sector Whistleblower Act, which “expressly authorizes additional relief in the form of ‘[a]ny other compensatory damages allowable at law,’ which has been found to include noneconomic damages.”[17]

The court thus held that “[b]ecause [the Act] does not expressly and unequivocally waive sovereign immunity for non-economic damages, we find that such damages cannot be recovered against the County under the Act.”[18] Notably the court further held that its prior decision in Iglesias was not controlling because there was no indication sovereign immunity was raised in that case.[19] The court concluded its analysis by quoting extensively from Toal.[20] The court reversed the final judgment to the extent that the trial court awarded non-economic damages and remanded “for entry of a corrected judgment limited to the forms of relief authorized by section 112.3187(9), Florida Statutes.”[21]

After Toal, there was a split among District Courts of Appeal regarding whether non-economic damages are recoverable under the Act. Now, that split does not exist, although it is possible another District Court of Appeal will hold that such damages are recoverable. Until then, plaintiffs should be mindful of Toal and Garavan when deciding whether to pursue a claim under the Act, as governmental entities will undoubtedly rely upon these decisions to limit recovery to quantifiable economic damages. We will continue to monitor recent case law and will 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.

 

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[1] State v. Toal, 406 So. 3d 978, 979 (Fla. 1st DCA 2025).

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

[3] Miami-Dade Cnty. v. Garavan, No. 3D25-0014, at *2 (Fla. 3d DCA Mar. 25, 2026), available at https://flcourts-media.flcourts.gov/content/download/2486594/opinion/Opinion_2025-0014.pdf (last visited Apr. 17, 2026). For purposes of this blog post, the page numbers referenced will be to the version posted on the court’s website.  The Third District Court has jurisdiction over Miami-Dade and Monroe Counties.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id., at *3. The court noted that although the County had not raised the issue of sovereign immunity at the trial court level, it could raise it for the first time on appeal. Id., at *3 n.1.

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

[11] Id., at *4.

[12] Id. (quoting Daly v. Marion Cnty., 265 So. 3d 644, 650 (Fla. 1st DCA 2018) (other citation omitted)).

[13] Id., at *5 (emphasis added).

[14] Id., at *6.

[15] Id., at *8.

[16] Id.

[17] Id., at *10 (quoting § 448.103(2)(e), Fla. Stat. (other citation omitted)).

[18] Id., at *11.

[19] Id., at *11 n.2.

[20] Id., at *11-12.

[21] Id., at *12.

 

Photo by Juliana Romão on Unsplash

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.

 

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[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.

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[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.

 

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[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.

 

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[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]

 

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[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.

 

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[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