Eleventh Circuit Court of Appeals 
Weekly Update
 April 15, 2019

Published Cases


There were no published labor or employment law cases last week.  
Unpublished Cases
 
    
Case No. 17-15322
April 5, 2019

The Eleventh Circuit affirmed the district court’s holding that Bland Farms’ packing shed employees did not qualify as agricultural workers exempt from the FLSA’s overtime provisions, but vacated and remanded the award of liquidated damages.

Bland Farms runs a packing shed that processes and packages Vidalia onions grown by both Bland Farms as well as other farmers in the area. Shortly after he began growing onions in the 1980s, Bland requested and received guidance from the DOL as to when he should pay overtime wages to his packing shed employees. The DOL replied that a farmer is not responsible under the agricultural exemption from overtime if the packing shed employees were processing onions grown by the farmer or onions that the farmer had purchased in the field as long as he purchased the entire field. During the 2012-2016 seasons, Bland Farms processed onions in its packing sheds that were grown on land owned and leased by other growers. Typically, Bland Farms paid only for those onions that were marketable. During this period Bland Farms provided advice and sometimes cash advances to their contract growers, but otherwise took no responsibility of the onions until purchased. In May 2014, the DOL challenged the overtime-exempt status of Bland Farms’ packing shed employees.

Relying on Mitchell v. Huntsville , the Eleventh Circuit found the processing by Bland Farms during the 2012-2016 seasons was not within the FLSA’s definition of agriculture because Bland Farms was not closely involved in its contract growers’ farming operations. While the Eleventh Circuit upheld the award of back wages during that period, it reached a different conclusion as to liquidated damages. Bland Farms asserted two reasons that it acted in good faith and with a reasonable belief in lawfulness as required by the statutory standard: first, it relied on the DOL’s letter, and second, aside from the letter, it reasonably believed it was in compliance because of its extensive control over the farming operations of its growers. The Eleventh Circuit concluded the district court erroneously ignored the second argument when it ruled that Bland Farms’ good faith belief ceased in May 2014, after the DOL filed suit, and remanded the case for the lower court to address Bland Farms’ subjective belief in its calculation of liquidated damages.
Case No. 17-13145
April 3, 2019

The Eleventh Circuit vacated summary judgment in favor of the benefits plan and employer and remanded the case for additional consideration, concluding that the plan had not provided a “full and fair” review of the plaintiff’s benefits claim as required by Section 503(2) of ERISA.

Plaintiff Boysen was a general manager of one of the employer’s business units. When he was discharged in 2014 for poor performance, he sought severance benefits. The plan provided for benefits only when an employee was separated due to a permanent job elimination, and also excluded employees who were terminated for cause, which included “unsatisfactory job performance.” Boysen’s claim was denied on the grounds that he was not separated due to a job elimination and that he was separated for cause. Boysen appealed the decision, contending that his performance was not poor, and requested additional information relating to the elimination of his position and his job performance compared to others. The plan administrator eventually denied the requested information relating to job performance concluding that the only issue was whether he was terminated because of a position elimination. Boysen filed suit seeking benefits. After permitting discovery, the district court granted the plan’s summary judgment motion. 

On appeal, the Eleventh Circuit focused on Boysen’s first contention, that he was denied a full and fair review. Finding no prior circuit decision stating the standard of review on this issue, the Court nonetheless read Mellech v. Life Insurance Co. of North America as establishing a de novo standard. Such review was appropriate, the Court reasoned, because the requirement was statutory. In so holding, the Court acknowledged disagreement with other circuits. Applying the test, the Court concluded that because the plan administrator had largely relied on evidence that Boysen was separated for poor performance rather than job elimination in reaching his conclusion as to the nature of his separation, Boysen had been denied a full and fair review when his contentions and request for information as to whether his performance was actually poor were rejected as irrelevant by the plan administrator when he eliminated the dismissal for good cause exclusion as a consideration. The Court concluded that poor performance could be relevant to both issues under the plan. 

[ Author’s Note : The Mellech decision was written by Judge Tjoflat, who was also a member of the panel for this per curium decision.  Boysen appears to be a refinement of the analysis the Court used in Mellech , and probably should have been a published decision. Regardless, it will likely be highly persuasive precedent in establishing the standard of review for the full and fair review issue within the circuit. Somewhat surprisingly, the Court did not discuss the ERISA claims regulations (29 C.F.R. §2560.503-1), and did not limit its analysis of the statutory full and fair review requirement to the standards created in the regulation.]
Case No. 18-13446
April 2, 2019

The Eleventh Circuit held that Eleventh Amendment immunity barred Clarke’s Section 1983 complaint against McMurry, the Commissioner of the Georgia DOT. The complaint alleged McMurry violated the Fourteenth Amendment’s Equal Protection and Due Process Clauses by failing to ensure the DOT reimbursed Clark, a former employee, for paying medical bills that he incurred after an on-the-job-traffic accident. Because Clarke sued McMurry in his official capacity for damages, his claims were in effect against the State. 
Case No. 18-12195
April 4, 2019

The Eleventh Circuit affirmed the district court’s grant of summary judgment for the employer on the plaintiffs’ FLSA overtime claims, concluding that the employer established that the motor carrier exemption applied to the plaintiffs’ work.

The defendant manufactures Carvel® ice cream cakes and other frozen desserts, which have a six-month “shelf life.” The products the plaintiffs delivered are manufactured in Connecticut or other states and trucked to an Orlando warehouse operated by a third party. From there, shuttle trucks delivered the products to the delivery trucks operated by the plaintiffs, who transport them to retail locations. The amount of product shipped to the warehouse was based on the employer’s internal projections as to future sales, and product was shipped twice per week without filling the warehouse completely. Based on dollar volume, the product at the warehouse completely turned over in less than a month. The product was stored in and then transported from the warehouse packaged and unaltered.

The plaintiffs contended that the motor carrier exemption did not apply because the employer did not ship specific product to fulfill specific orders from customers. The Court rejected that argument, relying on an ICC policy statement that held that an employer may have a “‘fixed and persisting intent’ that products travel in interstate commerce, even though they are stored in a warehouse before delivery to customers in the same state, when the shipper bases its total volume of products to ship on ‘projections of customer demand that have some factual basis, rather than a mere plan to solicit future sales within the State.’” The Eleventh Circuit rejected the analysis in a 2018 Southern District decision because it did not consider the ICC factors. The Court also rejected the plaintiffs’ contentions that the fact that some product remained in the warehouse for several months, and that the warehouse “handled, released, and transferred” the product between incoming and outgoing shipments defeated the intent to maintain continuity of transit. Finally, the Court rejected the plaintiffs’ contention that the employer’s subsequent decision to pay them overtime created an issue of fact, concluding that such a decision is irrelevant to whether the exemption was previously applicable. 
Case No. 16-16867
April 4, 2019

The Court affirmed the district court’s denial of Udeh’s motion for a new trial and its entry of final judgment in accordance with the jury’s verdict in favor of Winn-Dixie on her Title VII pregnancy discrimination claim.

The parties agree Udeh took a pregnancy related leave of absence beginning June 20, 2009, which was intended to last six weeks. Whether she properly submitted her leave paperwork was in dispute. The parties also agreed that Udeh called her manager in July, asked to return early, and was given the option to work a different position and shift. The manager contended Udeh then informed her that she would not be returning to work and did not show up for the scheduled shifts. Udeh contended that she told the manager that her doctor had informed her that she could not return to work until August. She further contended that a few days later the co-manager called and told her she was terminated because her leave paperwork was not on file and then suggested she was automatically terminated because she had been away more than six weeks. Although Udeh had not yet been out six weeks, she admitted that she did not contact her manager or the employee assistance number. Winn-Dixie finalized Udeh’s termination for job abandonment six weeks and one day after her maternity leave began.

At the end of trial, the jury answered “No” to the first question on the verdict form: “Do you find from a preponderance of evidence…[t]hat [Defendant] discharged [Plaintiff] and that this discharge constitutes an adverse employment action?” Udeh argued that the jury’s verdict in favor of Winn-Dixie should be reversed because the verdict was contrary to the great weight of evidence and argued she was entitled to a new trial because the district court made erroneous evidentiary rulings and failed to properly instruct the jury on the meaning of “adverse employment action.” Viewing the evidence in the light most favorable to the prevailing party, the Court concluded there was ample evidence to support the jury’s verdict and that Udeh was merely asking the Court to credit her evidence over the employer’s evidence. The Court rejected her characterization of the manager’s testimony as inconsistent and held it was the jury’s prerogative to credit that testimony.

The Eleventh Circuit reviewed the trial court’s evidentiary rulings and the district court’s jury instructions for an abuse of discretion and found no basis to reverse the denial of a new trial. Udeh waived her argument that the district court erred by denying her motion in limine (seeking to exclude evidence that she had not properly requested maternity leave), because her counsel raised the issue in his opening argument and questioned witnesses about it during her case in chief. The Court opined that invited error cannot form the basis of appeal . Although Udeh claimed that Winn-Dixie secured a detrimental affidavit by telling a witness she would not have to testify if she produced the affidavit, the district court did not abuse its discretion in failing to investigate the allegation because the witness testified at trial and the affidavit was not used. Udeh was also not entitled to relief based upon the district court’s failure to instruct the jury as to the meaning of “adverse employment action” because she never requested that the district court give an instruction defining the term or objected to the court’s failure to so.
Case No. 18-12889
April 5, 2019

The Court affirmed summary judgment in favor of the employer on Zinnerman’s claims that Worthington failed to hire her for its technical support team because she was an African-American woman, in violation of Title VII. Zinnerman failed to prove that Worthington’s reasons for hiring two Caucasian men were false and that discrimination was the real reason. The selected candidates had more technical knowledge and experience with technical customer support than Zinnerman.  Although Zinnerman argued that the company shifted its explanation for its decision, the Court concluded that the record at most established that the weight given to certain criteria might have changed, but that did not establish pretext. The Court then opined that Zinnerman’s cat’s paw theory failed because she provided no evidence of discrimination on the part of the alleged influencer and because the decision maker completed an independent assessment of the applicant’s experience and education.
A recent decision of the First District Court of Appeal not directly involving labor or employment law issues but which might be of interest is Sedgwick CMS v. Valcourt-Williams , Case No. 1D17-96 (April 5, 2019)(en banc), a case clarifying coverage under Florida’s workers’ compensation law. The claimant was injured while working at home when she tripped over her dog while getting a cup of coffee. The injury was held compensable by the judge of compensation claims. By a 12-2 decision, the Court concluded that the injury was not one “arising out of” employment because it was not the result of a risk connected with the employment and “not existent in the claimant’s ‘non-employment life.’” The Court explained that the fact that an injury occurred “in the course and the scope of employment” – that is, during working hours and in a place the worker would reasonably be – was insufficient by itself to establish occupational causation. The Court receded from prior decisions to the contrary.

[ Author’s Note : The Court’s decision brings Florida’s workers’ compensation law to a standard similar to OSH Act interpretations. In late 1999, a short-lived OSHA interpretation letter purported to apply the act to the work environment for employees working at home, suggesting that the employer would be responsible to ensure that the area of the work and areas required to access the home work area were free from hazards. After a firestorm of protest regarding the effect that the interpretation might have on the availability of telecommuting, the interpretation was withdrawn in January 2000 and soon replaced by an instruction recognizing that “family-friendly, flexible and fair work arrangements, including telecommuting, can benefit individual employees and their families, employers, and society as a whole” and holding that that employers had no liability for, or duty to inspect, home offices. Employers’ responsibility for other home-based worksites was limited to “hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee's home.” In 2009, OSHA issued an interpretation letter regarding the reporting obligation for work-at-home injuries opining that “injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.” Ironically, the interpretation gave as an example of a non-covered injury “trip[ping] on the family dog while rushing to answer a work call.”]
The Eleventh Circuit Weekly Update was prepared by Reemployment Assistance Appeals Commission staff: case summaries by Chairman Frank E. Brown, and Appellate Counsel Cristina A. Velez and Katie E. Sabo; editing by Deputy General Counsel and Chief Appellate Attorney Amanda L. Neff; research and layout by Research Attorney Lesley Blanton.