Worker Rights and Remedies

The U.S. Court of Appeals for the Eleventh Circuit vacated a district court’s order granting summary judgment to the employer in a case alleging age and race discrimination, Kilgore v. Trussville Development, LLC dab Hilton Garden, Inc., 2016 U.S.app. LEXIS 5464; 646 Fed. Apps. 765 (11th Cir. 2016).  The text of the decision can be found at https://www.courtlistener.com/opinion/3188580/valarie-kay-kilgore-v-trussville-development-llc/ Ms. Kilgore presented circumstantial evidence which supported an inference that the employer’s claim that she was fired for being rude to guests was a pretext.  She presented evidence that she was replaced by two newly hired employees who were younger and African-American - Ms. Kilgore was a Caucasian woman in her sixties.  In addition, her superiors had made derogatory statements about her age (that she was “a stubborn old woman” and “too old”) and also about her race (that she was “the wrong color.”  Such comments are circumsta...

On January 11, 2016, Administrative Law Judge Richard J. Ortiz-Valero entered a decision awarding disability insurance benefits and finding that due to her fibromyalgia the claimant was disabled under sections 216(i) and 223(d) of the Social Security Act.  The decision is significant in that fibromyalgia is not a "listed" impairment under the Social Security Administration's regulations. These regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1, list many of the most readily diagnosed medical conditions and their symptoms which can reach a severity which is considered disabling.  In the usual case, in order to award benefits the Social Security Administration must determine that the claimant's impairment is of a severity to meet or medically equal the criteria of a "listed" impairment. This claimant's condition had been diagnosed by several physicians as fibromyalgia ("FM").  FM affects the muscles and soft tissues.  Symptoms include chr...

Under Florida law an employee who is discharged will qualify for unemployment benefits unless the discharge was because of the employee's "willful misconduct."  The definition of misconduct was substantially broadened by the Florida legislature in 2014, see §443.036(29), Florida Statutes.  Nonetheless the burden remains on the employer to show it fired the employee because of a "deliberate violation or disregard of the reasonable standards of behavior which the employer expects." In a recent the claimant had a panic attack at work.  She testified that she temporarily blacked out and could not recall her actions.  Co-workers later told her about her erratic behavior during the panic attack, for which the employer sent her home and, two weeks later, fired the claimant. The Florida Reemployment Assistance Program initially found that the claimant was disqualified from receiving unemployment compensation because of her misconduct.  She appealed this determinati...