Court Overturns Verdict Against Fire Department, But Not Against Fire Union

Anthony Booth and Jerry Brown are firefighters with Pasco County, Florida, and are members of the bargaining unit represented by Local 4420 of the International Association of Fire Fighters. Booth and Brown sued the County and Local 4420, claiming that both retaliated against them after they filed various charges of discrimination against them in 2007 and 2008.

Booth and Brown alleged that the County retaliated against them by mandating that they take a fitness-for-duty examination on pain of termination. After Local 4420 refused to assist Booth and Brown in prosecuting their charges against the County, Booth and Brown both filed individual discrimination charges against the Union with the EEOC. A short time later, the Union distributed an “Update on Legal Issues” memorandum to firefighters through the County email distribution system. It was later posted in fire station halls, where Pasco County employees, including non-union employees, could read it. The memo, in relevant part, states: “Local 4420 members Jerry Brown and Anthony Booth have filed a charge claiming unspecified discrimination with the U.S. Equal Employment Opportunity Commission against the Union and the County. The Executive Board and our attorney feel it is a frivolous claim with no grounds for support and we are extremely confident in winning but will still have to defend the charges. This could be very costly and generate a legal bill of $10,000 or more. If it becomes too costly the Union may have to assess its member’s additional fees to offset the cost. We will update you as it progresses.”

Booth’s and Brown’s claim against Local 4420 was that the memo was designed to provoke firefighters to retaliate against them for filing EEOC charges against Local 4420.

After a six-day jury trial, the jury found for the Plaintiffs against both the County and Local 4420. The jury awarded Brown and Booth $75,000 each for emotional pain and suffering. And, as the jury found Local 4420 acted with malice or reckless indifference, the jury also awarded each $8,000 in punitive damages against Local 4420. Both the County and Local 4420 filed motions to overturn the verdict.

The Court granted the County’s motion, and overturned the verdict against it. The Court found that “(1) the exams were only ordered after the County became aware of the safety concerns raised in Brown’s and Booth’s affidavits before the EEOC (neither had ever before been ordered to undergo a fitness-for-duty exam); (2) The County’s standard operating procedure was to refer individuals potentially posing a danger to themselves and/or others to take a fitness-for-duty examination; (3) The County had referred 17 others for fitness-for-duty exams in the past four years; (4) none of the individuals named in Booth’s and Brown’s complaints of discrimination against the County made the decision to order the fitness-for-duty exams; (5) the decision to refer was made by Jane Calano, Risk Manager for the County, an individual in no way involved with the prior discriminatory conduct alleged by Plaintiffs; (6) before making the decision, Ms. Calano sought the advice of an independent consultant based in Chicago, a non-County employee, in order to ensure that the referral decision was merited; and (7) the exams were ordered approximately three years after Plaintiffs filed their various charges of discrimination against the County.

“The Court concludes there is insufficient evidence such that a reasonable person could conclude that the fitness-for-duty examinations were ordered for retaliatory purposes. Consequently, it is appropriate to overturn the jury verdict against Pasco County, as the County’s ordering Plaintiffs to submit to fitness-for-duty exams were the only adverse actions found by the jury.”

Local 4420 did not fare as well as the County. The Court held that “Local 4420’s motion turns, in large part, on the question of whether the legal updates memo was speech protected by the First Amendment. When Title VII seeks to prohibit workplace speech not based upon its point of view, but instead because the speech constitutes an implicit call for reprisal, and/or a threat, that speech is not protected by the First Amendment. Here, the problem with the Union’s speech was it had the potential of being seen (and was seen by the jury) as an implicit call for reprisal. As such, it is not protected by the First Amendment.

“Although this Court ultimately concludes that the Union’s speech is not protected, it does not take the Union’s arguments lightly. The Union has a duty to keep its members informed, and it has a strong argument that all information in the memo was information that its members were entitled to know. Indeed, had this information been given in answers to questions in a Union meeting, it would pose a closer question.”

Booth v. Pasco County, Fla., 2012 WL 555854 (M.D. Fla. 2012).