Federal Appeals Court Upholds Verdict Against Fire Union

Anthony Booth and Jerry Brown were emergency services workers for the Emergency Services Department in Pasco County, Florida, and were members of Local 4420 of the International Association of Fire Fighters. Both worked in the Department’s Station 14.

In June 2007, Booth filed a Department grievance against the captain who supervised the station. The captain’s boss had warned Booth that he would be transferred if he filed a grievance, and Booth was in fact transferred, against his wishes, pending investigation. In his grievance, Booth named Brown as a witness. The station captain allegedly threatened Brown as a result, causing Brown to file a grievance of his own in July 2007.

In November 2007, the offending captain was disciplined and transferred out of Station 14. Booth returned to Station 14, but he was assigned, against his wishes, to work on an ambulance rather than a fire engine. Coworkers who had submitted written statements on Booth’s behalf had been transferred out of Station 14, and the only coworker who had not submitted a written statement remained. Brown was transferred to another station that was physically unpleasant and in a state of some disrepair. All of these reassignments were for a minimum of six months. Department officials testified that these reassignments were part of an attempt to address a “country club” atmosphere that predated the subject of Booth and Brown’s grievances.

Booth and Brown and their coworkers believed the transfers to be retaliatory. They complained to the County and sought help from Local 4420, to no avail. Booth and Brown then filed charges against the County and Local 4420 with both the EEOC and the Florida Commission on Human Rights.

Local 4420 President Ralph Grant subsequently received unsolicited phone calls about a rumored lawsuit against the Local and the identity of the parties involved. Grant testified that the membership generally demanded to be told about legal matters in which the Union was involved. He said that he wanted to respond to the rumors and to inform the members about the situation, the Union’s position, the Union’s plan, and the potential costs.

Grant emailed the Chief asking him to forward an attached memorandum to all members of Local 4420’s bargaining unit. The subject line of Grant’s email was “Discrimination,” and the title of the Memo was “Update on Legal Issues.” The memo referred to the EEOC claim as “frivolous,” and talked about the possibility of assessing members in order to pay attorney fees. The Chief forwarded the memorandum as requested.

Booth and Brown claimed that nearly all of their coworkers subsequently shunned them. For example, Brown testified that one coworker said: “Somebody needed to shut [his] f’ing mouth before their dues went up,” and that another tried to provoke him into a fight. Booth and Brown maintained that their superiors and coworkers worked to deny them access to available vacation days, voluntary overtime, and “shift swaps.” Eventually, Booth and Brown sued Local 4420 and the Department, alleging retaliation for their filing the EEOC complaint.

A jury awarded Booth $500 in back pay and $10,000 for emotional pain and mental anguish from the County. The jury wrote that Brown should be awarded $500 in back pay and $12,000 for emotional pain and mental anguish from the County. The jury wrote that each plaintiff should be awarded $75,000 for emotional pain and mental anguish from the Union. On a separate form, completed later, the jury found that each plaintiff should be awarded $8,000 in punitive damages from the Union.

The federal Eleventh Circuit Court of Appeals upheld the verdict against Local 4420. The Court commented: “We conclude that the memo contained both an implicit ‘call for reprisal’ and also a threat of further retaliation. In the memo, the Union intentionally invited its members to retaliate against Booth and Brown because Booth and Brown had filed EEOC charges. A crucial part of this ‘call for reprisal’ was a threat that the cost of the Union’s defense would result in additional dues assessments, which the individual members would be required to pay. Because no such assessment was ever levied, this statement was reasonably perceived as a baseless threat of further retaliation if Booth and Brown did not drop their EEOC charges.

“We find support in the context of federal labor laws governing the workplace, which for our purpose are analogous to civil rights laws governing the workplace. Most significantly, we find strong support for rejecting the Union’s First Amendment challenge in the fact that the Union’s speech at issue in this case involves a matter of little or no public concern. It is significant that the jury focused on a narrow aspect of the Union’s speech. Liability was not based on the mere fact that the Union reported the existence of an EEOC charge. Nor was liability based upon the Union’s expression of its opinion that Booth’s and Brown’s claims were ‘frivolous.’ Rather, the ground on which the Union was held liable was its ‘call for reprisal’ – the fact that the Union identified Booth and Brown, invited Union members to retaliate against them for having filed EEOC charges, and threatened to impose assessments in order to fund the Union’s defense.”

The Court also affirmed the verdicts against the County, concluding that the fact that the County required Booth and Brown to submit to a fitness for duty evaluation was sufficient evidence of retaliation by the County.

Booth v. Pasco County, Florida, 2014 WL 3031177 (11th Cir. 2014).