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January 2012

Another Summary Judgment Victory for the Miami Employment Team

Gordon & Rees partner Robert M. Mayer and senior counsel Truth Fisher scored another summary judgment victory for the Miami office employment team. Gordon & Rees represented a temporary care facility for teenaged boys with severe sexually reactive behaviors who had been removed from their homes due to abuse and neglect. The plaintiff was a former Assistant Counselor at the facility who reported a sexual harassment grievance to the facility's management against her co-worker. Management immediately responded to plaintiff's grievance by investigating and resolving plaintiff's sexual harassment claim in less than 48 hours. However, less than a week later after reporting the grievance, plaintiff received her first write-up for poor performance after having never received any disciplinary counseling or reprimands during her employment. Plaintiff received three more write-ups for poor performance in a one-month period following her initial sexual harassment grievance and the facility eventually terminated plaintiff two months later for various violations including breaches of patient confidentiality. Plaintiff sued Gordon & Rees's client alleging harassment, discrimination, and retaliation claims under Florida's Civil Rights Act. However, she was ultimately defeated on all claims by Gordon & Rees's team of employment lawyers.

Gordon & Rees moved for summary judgment against plaintiff's complaint focusing primarily on the Faragher-Ellerth affirmative defense based on the facility's swift investigation and resolution of plaintiff's sexual harassment complaint. Prior to filing the summary judgment motion, Gordon & Rees forced plaintiff to admit at deposition that within 48 hours her harassment grievance had been completely resolved by the facility and that she had no further issues with the alleged harasser. This admission elicited by Gordon & Rees proved to be the fatal flaw in plaintiff's case. In its motion, Gordon & Rees provided an in-depth analysis for the court of the Faragher-Ellerth affirmative defense and argued that each of plaintiff's claims failed because she could not rely upon the resolved harassment complaint as a basis to prove that her subsequent write-ups and termination were "tangible employment actions" for purposes of establishing harassment, discrimination, and/or retaliation against the facility.

In response to the motion, plaintiff filed a confusing and convoluted opposition consisting of 36 pages of purported triable issues of fact five days before the hearing. In her opposition, plaintiff all but abandoned her harassment and discrimination claims and argued a temporal proximity inference in an attempt to salvage her retaliation claim. However, at oral argument, Gordon & Rees sliced through plaintiff's arguments and explained that plaintiff's write-ups and termination were the result of her adopting a derelict attitude toward her job following her sexual harassment grievance. The cornerstone of Gordon & Rees's oral argument was justice arguing that plaintiff was not clothed with immunity from suffering the consequences of her policy violations simply because she made a sexual harassment complaint. The court agreed.

A rarity in Florida courts, the judge ruled on the motion directly from the bench immediately following the close of Gordon & Rees's rebuttal argument. The judge held that Gordon & Rees established each element of its affirmative defenses in this case and that plaintiff established "none" of the elements for her three causes of action and ordered judgment in favor of Gordon & Rees's client.



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