Saturday, December 20, 2008

Pregnancy discrimination -- Mom’s apple pie

Pregnancy discrimination is a form of sex discrimination, rules the Fourth District Court of Appeal: some holiday cheer for women employees and some depressing news for employers.

On December 2008, the Fourth District Court of Appeal ruled, in a revised opinion, in Carsillo v. City of Lake Worth, 33 Fla. L. Weekly D2768 (Fla. 4th DCA Dec. 3, 2008), that the Florida Civil Rights Act bars pregnancy discrimination as a form of sex discrimination (substitution of opinion reported at 33 Fla. L. Weekly D2154). The issue arose because Carsillo was a firefighter/paramedic who requested light duty within the fire department after becoming pregnant and was, in response, given light duty in other departments. The problem was that the Florida Civil Rights Act (FCRA), enacted in 1977 (then call the Florida Human Rights Act), was modeled after Title VII. The U.S. Supreme Court held in 1976, in a case called Gen’l Elec. Co. v. Gilbert, 429 U.S. 125 (1976), that discrimination on the basis of pregnancy was not sex discrimination under Title VII. So the FCRA was also understood to not prohibit pregnancy discrimination as a form of sex discrimination. Congress, in response to Gilbert, enacted the federal Pregnancy Discrimination Act of 1978, and that Act specified that discrimination because of pregnancy was sex discrimination violative of Title VII. However, FCRA was not amended until 1992 and when it was, it did not incorporate the federal Pregnancy Discrimination Act language. So many federal courts concluded that the FCRA, unlike Title VII and the PDA, did not prohibit pregnancy discrimination as a form of sex discrimination. The Fourth District disagreed and held that the FCRA is to be construed the same way that Title VII is currently construed and that includes prohibiting pregnancy discrimination as a form of sex discrimination.

Florida has required most employers to comply with Title VII’s prohibition against pregnancy discrimination, but the Carsillo decision means that Florida employees can now sue for pregnancy discrimination and retaliation under both Title VII and the FCRA. Given the number of federal courts that have construed the FCRA to not prohibit pregnancy discrimination as a form of sex discrimination, this may likely be an issue that the Florida Supreme Court will be asked to resolve conclusively.


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Sunday, December 7, 2008

Jury instructions on an uncharged theory of liability and getting toasted

Jury instructions on an uncharged theory of liability or. . .what do you mean I had to charge a defendant with that before the jury could be instructed on it? 12-7-08

Jury instructions need to be carefully reviewed against the complaint/charging document and the answer/defense document. If a jury is instructed on uncharged theories of liability, that is a productive source of error. Where an offense can be committed in more than one way, a trial court commits error when it instructs the jury on an alternative theory not charged in the information. See, e.g., Vega v. State, 900 So. 2d 572, 573 (Fla. 2d DCA 2004), disapproved in part by State v. Weaver, 957 So. 2d 586 (Fla. 2007); Hodges v. State, 878 So. 2d 401, 402 (Fla. 4th DCA) (reversed and remanded for new trial on kidnapping charge because instructions allowed the jury to find defendant guilty of kidnapping if it found that he committed an act not charged in the information. Although the State demonstrated that defense counsel did not object to the reading of this instruction, the error was fundamental. Since appellate counsel was ineffective on the kidnapping conviction, that conviction was reversed and a new trial was ordered.), rev. denied, 890 So. 2d 1114 (Fla. 2004); Griffis v. State, 848 So. 2d 422, 427 (Fla. 1st DCA 2003) (similar); Dixon v. State, 823 So. 2d 792, 794 (Fla. 2d DCA 2001), disapproved in part by Weaver, 957 So. 2d 586; Braggs v. State, 789 So. 2d 1151, 1153-54 (Fla. 3d DCA 2001) (similar); Taylor v. State, 760 So. 2d 298, 299 (Fla. 4th DCA 2000) (similar); O'Bryan v. State, 692 So. 2d 290, 290-91 (Fla. 1st DCA 1997) (similar).

In State v. Weaver, 957 So. 2d 586, 587-88 (Fla. 2007), the Florida Supreme Court abrogated in part the rules enunciated in Vega and Dixon, wherein the Second District held that the defendants, charged by information only with intentionally touching a law enforcement officer, were entitled to a new trial because the trial court's erroneous instruction on both the intentional touching and bodily harm forms of BOLE constituted fundamental error. Weaver, instead approved the rule in Reed v. State, 837 So. 2d 366, 370 (Fla. 2002) (quoting State v. Delva, 575 So. 2d 643, 644 (Fla. 1991)), that jury instructions are "subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appeal only if fundamental error occurred." Citing Delva, the Weaver Supreme Court articulated the proper standard for determining whether a defective jury instruction rises to the level of fundamental error as being "fundamental error. . .only when the omission is pertinent or material to what the jury must consider in order to convict."
In Delva. . .‘[w]e expressly recognized a distinction regarding fundamental error between a disputed element of a crime and an element of a crime about which there is no dispute in the case.’ We held that the defective instruction could only constitute fundamental error if the malice issue was disputed at trial: ‘[F]undamental error occurred in the present case if the inaccurately defined term 'maliciously' was a disputed element in the trial of this case.’ We overturned the defendant's conviction because the record demonstrated that the malice element was disputed at trial, and therefore fundamental error occurred when the trial court instructed the jury using the erroneous definition for ‘maliciously.’

Weaver, 957 So. 2d at 587-89, citing Reed, 837 So. 2d at 369; see also Battle v. State, 911 So. 2d 85, 89 (2005) (similar); Garcia v. State, 901 So. 2d 788, 794 (Fla. 2005) (similar). In Debose v. State, 920 So. 2d 169 (Fla. 1st DCA 2006), for example, the First District Court of Appeal reiterated the general rule that, where an offense can be committed in more than one way, fundamental error occurs when the jury is instructed on an alternate theory not charged in the information and returns a general verdict of guilt without specifying the basis for the conviction. Such an error is deemed fundamental in nature because under a general verdict, it is in most cases "impossible to determine whether [the defendant] was convicted of a charged or uncharged offense." Debose, 920 So. 2d at 170; see also Eaton v. State, 908 So. 2d 1164, 1165 (Fla. 1st DCA 2005) ("[s]ince the jury returned a general verdict of guilty. . .it is impossible to determine whether appellant was convicted of a charged or an uncharged offense"); Hodges, 878 So. 2d at 402; Griffis, 848 So. 2d at 427; Dixon, 823 So. 2d at 794; Braggs, 789 So. 2d at 1153-54; Taylor, 760 So. 2d at 299; O'Bryan, 692 So. 2d at 290-91.

In Sanders v. State, 959 So. 2d 1232 (Fla. 2d DCA 2007), the Second District further explained the Florida Supreme Court’s Weaver rule of non-reversal for erroneous jury instructions as limited to those cases where there was neither evidence of nor argument on the uncharged theory of the offense, and it was not impossible to know whether the defendant was convicted of the charged theory of the offense or the uncharged theory:
In Weaver,. . .[t]he supreme court left intact, however, the rule enunciated in Vega and Dixon that it is fundamental error to instruct the jury on an uncharged alternate theory of a particular offense when it is impossible to ascertain whether the jury convicted the defendant of the uncharged theory rather than the charged theory.

Sanders, 959 So. 2d at 1233-34, citing Weaver, 957 So. 2d at 587-88. In Sanders, that defendant was charged with the "deadly weapon" theory of aggravated battery but the jury was also instructed on the uncharged "great bodily harm, permanent disability, or permanent disfigurement" theory of aggravated battery. Sanders, 959 So. 2d at 1233-34.

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Friday, December 5, 2008

Contracts and Settlement Flavors

CONTRACTS: Enforcing Settlement Agreements 12-5-08


Parties can enter into a binding settlement agreement without both parties formally signing the same document. See Edgewater Beach Corp. v. Sugarman, 153 Fla. 555, 15 So. 2d 260 (1943) (Several writings, such as letters or telegrams, constitute a valid and binding written contract when they evidence a complete meeting of the minds of the parties and an agreement upon the terms and conditions of the contract.); Rank v. Sullivan, 132 So. 2d 32, 36 (Fla. 2d DCA 1961) (holding statement in will of person being charged constituted a sufficient memorandum to satisfy statute of frauds); Heffernan v. Keith, 127 So. 2d 903, 904 (Fla. 3d DCA 1961) (finding that telegram constitutes note or memorandum confirming prior agreement); Maas Bros., Inc. v. Dickinson, 195 So. 2d 193 (Fla. 1967) (same).

This is patent. Settlement agreements are contractual in nature and are, therefore, interpreted and governed by contract law. Barone v. Rogers, 930 So. 2d 761, 763-64 (Fla. 4th DCA 2006); Cadle Co. v. Schecter, 602 So. 2d 984, 985 (Fla. 3d DCA 1992). Construction of contractual terms is a question of law, which the Courts review de novo, where “the language is clear and unambiguous and free of conflicting inferences.” Miller v. Kase, 789 So. 2d 1095, 1097 (Fla. 4th DCA 2001); see also Gray v. D & J Indus. Inc., 875 So. 2d 683, 683 (Fla. 3d DCA 2004) (“The construction of a contract is a question of law for the courts to determine where the language used in the written contract is clear, unambiguous, and susceptible to only one interpretation.”). Where the contractual language is clear and unambiguous, “courts may not indulge in construction or modification and the express terms of the settlement agreement control.” Sec. Ins. Co. of Hartford v. Puig, 728 So. 2d 292, 294 (Fla. 3d DCA 1999).

An enforceable written agreement may take almost any possible form. See Bader Bros. Transfer & Storage, Inc. v. Campbell, 299 So. 2d 114, 115 (Fla. 3d DCA 1974) (holding settlement sheets were sufficient to constitute memorandum under statute of frauds); Rank v. Sullivan, 132 So. 2d 32, 36 (Fla. 2d DCA 1961) (holding statement in will of person being charged constituted a sufficient memorandum to satisfy statute of frauds); Heffernan v. Keith, 127 So. 2d 903, 904 (Fla. 3d DCA 1961) (finding that telegram constitutes note or memorandum confirming prior agreement). Several writings— (1) emails from one part, with email “signature” and (2) along with corresponding emails will be aggregated to find an enforceable agreement, as long as the signed writing expressly or implicitly refers to the partially or unsigned document. Kolski v. Kolski, 731 So. 2d 169 (Fla. 3rd DCA 1999).

"[S]everal writings, only one of which is signed by the debtor, may be aggregated to satisfy the statute provided that the signed writing expressly or implicitly refers to the unsigned document." Cook v. Theme Park Ventures, Inc., 633 So. 2d 468, 471 (Fla. 5th DCA 1994); see also Middelthon v. Crowder, 563 So. 2d 94, 95 (Fla. 3d DCA 1990); Rohlfing v. Tomorrow Realty & Auction Co., Inc., 528 So. 2d 463, 465 (Fla. 5th DCA 1988) (holding real estate terms of sale together with buyer's guide and check constituted sufficient writings to satisfy statute). See also Edgewater Beach Corp. v. Sugarman, 153 Fla. 555, 15 So. 2d 260 (1943) (Several writings, such as letters or telegrams, constitute a valid and binding written contract when they evidence a complete meeting of the minds of the parties and an agreement upon the terms and conditions of the contract.); Rank v. Sullivan, 132 So. 2d 32, 36 (Fla. 2d DCA 1961) (holding statement in will of person being charged constituted a sufficient memorandum to satisfy statute of frauds); Heffernan v. Keith, 127 So. 2d 903, 904 (Fla. 3d DCA 1961) (finding that telegram constitutes note or memorandum confirming prior agreement); Maas Bros., Inc. v. Dickinson, 195 So. 2d 193 (Fla. 1967) (same).
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