Labor & Employment Law

FMG attorneys Paul Piantino, Danielle Rudkin, and Kyle Hogan prevailed on all claims in a four-day arbitration for a luxury hotel group based in Manhattan, New York, along with their individually named employees. Claimant was a former Event Captain at one of the hotels who alleged he was unlawfully terminated based on race, sex, and national origin as well as claims for hostile work environment, aider and abettor liability against select individual employees, retaliation, failure to rehire, and defamation. The Claimant made a settlement demand of $150,000,000.00. The Arbitrator ruled in the Company’s favor on all counts.

Marcus Isaiah Washington v. The Whitby Hotel; Firmdale Hotels PLC; Elizaveta Konoshenko; and Milena Cesarska

FMG attorneys Christian Gunneson, Jennifer Markowski and Joseph McGuire secured a complete dismissal in an arbitration on behalf of a third-party administrator of a self-funded ERISA plan. The claimant was the ERISA plan sponsor who alleged that FMG’s client mishandled employee health claims over a two-year period. The claimant initially sought damages in excess of $6 million. After securing two favorable motions to dismiss to limit the claims, the FMG team was able to successfully outline the poor evidentiary support of the claims. After FMG sought to file a motion for summary judgment, the claimant voluntarily dismissed all claims against FMG’s client.

KCI Holding USA, Inc. v BeniComp Inc. d/b/a BeniComp Health Solutions, In the Matter Before the American Arbitration Association, Case No.: 01-24-0008-6905.

In a collaboration among FMG’s Labor & Employment, Government Law and Appellate Advocacy practice groups, attorneys Jack Hancock, John Bennett, Kirsten Daughdril and Michael Freed obtained a reversal of a federal district court’s ruling denying qualified immunity to a county commissioner. That commissioner, along with two others, voted to terminate the employment contract of the county’s chief financial officer. She sued the county and the three commissioners claiming she was terminated in retaliation for her husband’s political activities in violation of her First Amendment right to intimate association. FMG argued that its client was entitled to qualified immunity because the plaintiff failed to allege a violation of clearly established law. The district court denied this argument, but after appeal, Eleventh Circuit Court of Appeals agreed with FMG, reversed the district court’s order, and ordered that the commissioner should be dismissed from the case.

Bivins v. Hambrick et al.; United States Court of Appeals for the Eleventh Circuit; Case No. 23-13029

FMG attorney Jennifer Markowski obtained a defense verdict on behalf of a car dealership and its owners who were accused of creating a race-based hostile work environment and retaliating against the plaintiff, a salesperson, for complaining. The trial lasted eight days. Plaintiff’s counsel asked the jury to award the plaintiff $12 million. The jury returned a verdict in FMG’s client’s favor.

After a weeklong jury trial, FMG attorneys Jennifer Markowski and Andrea Burke prevailed on all claims brought against their clients, a restaurant and its owner. The plaintiff was a former bar manager who alleged defamation and related tort claims connected to his employment and separation and sought damages for reputational harm, including his alleged inability to find comparable employment. The jury ruled in favor of FMG’s clients on all counts.

FMG attorney Eric Eide, with support from Sarah Emrick, successfully defended a workers’ compensation claim seeking compensability, past hospital treatment, and past and future medical and mental health treatment resulting from a claimed accident with hearing and mental injuries from the sounding of a fire alarm. The judge accepted all of FMG’s arguments and dismissed all claims, ruling that no accident or injury occurred and denying all claims for past and future medical and mental health treatment.

Suzanne Mandy v. American Momentum Bank/Travelers Insurance; Office of the Judges of Compensation Claims, Ft. Myers District; Case No. 24-022770JAW.

FMG attorneys Eric Eide and Sarah Emrick obtained a defense ruling in a workers’ compensation trial, representing a nationwide recreational and lease community provider. The claimant was a resort manager who alleged he was substantially injured when a minor resident struck him with a cell phone during a verbal altercation. The defense argued there was no physical impact and the claimed injuries were contrived. The claimant sought damages and future benefits of more than $150,000. After a trial that included law enforcement reports, body worn camera video and surveillance video recordings, The Judge of Compensation Claims ruled in favor of FMG’s client and found the claimant had lied under oath.

Larry Wayne Poe v. Sun Communities/Charter Oaks Fire Insurance Co.; Division of Administrative Hearings; Office of the Judges of Compensation Claims, Ft. Myers District; Case No:. 24-023083JAW.

FMG attorneys Eric Eide and Sarah Emrick secured a dismissal of all claims asserted against their client for wage loss benefits arising out of an industrial accident. The claimant was a Training Coordinator who allegedly suffered injuries after falling from his chair. The claimant was given work restrictions, which he asserted the employer did not accommodate and later resigned. The claimant sought over $18,000 in wage loss benefits over a nine-month period that included four months while he remained employed and five months after his resignation. The judge denied and dismissed the wage loss claims due to the claimant’s refusal of available employment, voluntary limitation of income, and a lack of sufficient causation of the wage loss to the injuries.

Omar Montanez v. Essex Mortgage/Travelers; Division of Administrative Hearings, Office of the Judges of Compensation Claims, Jacksonville District; Case No.:. 24-029733RJH

FMG attorneys Jennifer Markowski, Alexandra Held, Jennawe Hughes, and Katherine Chenail obtained a defense verdict for our union benefit funds client after a two–week jury trial in Norfolk County Superior Court. The clients were sued by a former employee who alleged she was subjected to a sexually hostile work environment and terminated in retaliation for a sexual harassment complaint that her boss made more than two years prior to the termination. At trial, Plaintiff asked the jury for nearly $900,000 in compensatory damages alone, plus punitive damages up to 20 times the compensatory award. The jury found our clients not liable on all counts.

FMG attorneys Jessica Farrelly and Jessica Cauley prevailed at a bench trial on behalf of their client, a non-profit private golf and country club, in the defense of a complaint alleging claims for breach of contract, violation of Florida Statute 720.305(2), breach of the Club’s governing documents, and injunctive relief. The case concerned the suspension of Plaintiff’s membership following the Club’s receipt and investigation of a complaint of alleged sexual harassment committed by Plaintiff against staff. Plaintiff claimed his suspension was improper and in violation of Florida law and the Club’s governing documents because he was not given 14 days’ notice of his suspension. FMG defeated Plaintiff’s Motion for Summary Judgment by providing the facts in support of the Club’s investigation and its justification for taking prompt remedial action.

At the subsequent trial, the Court denied Plaintiff’s request to exclude all evidence regarding the Club’s investigation of Plaintiff’s conduct. In doing so, the Court determined the Club acted reasonably and justifiably and the circumstances warranted an exception to the strict 14-day notice requirement before suspension. Judgment was entered in favor of FMG’s client on all counts, and the Court further determined that, as the prevailing party, FMG’s client was entitled to recover its reasonable attorneys’ fees and costs.

Joseph Koscal v. Highland Woods Golf & Country Club, Inc., Civil Action No. 23-CA-007419, Circuit Court of the 20th Judicial Circuit in and for Lee County, Florida

Brad Adler, Michael Hill, and Kelli Spearman prevailed on all claims in a multi-day arbitration for a nationwide automotive-platform company. The plaintiff was a former sales manager who alleged the company terminated her employment in retaliation for her earlier complaint of alleged sexual and racial harassment. The plaintiff sought over $500,000 in damages as a part of her complaint. After a three-day arbitration, the Arbitrator ruled in the Company’s favor on all counts.

Brad Adler and Michael Hill obtained a defense verdict for a Fortune 500 company client in an arbitration alleging failure to accommodate and retaliation under the Americans with Disabilities Act. The plaintiff, a former sales manager with the company, first alleged the company failed to accommodate his disabilities by refusing to transfer him to a different work location. The plaintiff also alleged the company terminated his employment in retaliation for his having requested a reasonable accommodation. The arbitrator ruled in favor of our client, holding that any accommodation the plaintiff requested was not reasonable and that the plaintiff failed to establish a causal connection between his alleged request for accommodation and termination of employment. The arbitrator thus ruled in favor of the company on all claims.

Robert Chadwick obtained a favorable appellate ruling from the National Labor Relations Board (“NLRB”) on behalf of a transportation company. After an evidentiary hearing, an administrative law judge below dismissed a failure to bargain complaint by the NLRB’s General Counsel. On appeal, the NLRB affirmed the judge’s rulings, findings and conclusions, and dismissed the complaint.

Ben Mathis, Robert Marcovitch and Bill Buechner recently obtained summary judgment on behalf of Hall County in a class action pension lawsuit brought in the Superior Court. In the lawsuit, Plaintiffs sought over $100 million dollars in seeking to overturn the County’s decision in 1998 to transition from a defined benefit plan to a defined contribution plan. Plaintiffs and their counsel have claimed that the named plaintiffs and a class of more than 100 current or former County employees they sought to represent were entitled to recover lost contributions and profits.

The County initially obtained summary judgment, but the ruling was vacated in part by the Georgia Court of Appeals with instructions for the Superior Court to consider certain issues on remand. Although Plaintiffs asserted that a trial was required because of the appellate ruling, the Court was persuaded by the arguments that the County still was entitled to summary judgment. Among other rulings, the Court rejected the Plaintiffs’ argument that the freeze of accruals in the defined benefit plan constituted a termination of the defined benefit plan (thereby triggering notice and hearing obligations) even though the defined benefit plan has continued to operate up to the present.

An Eastern District of Pennsylvania judge has ruled that Tyson Foods, Inc. (“Tyson”) is immune from liability for claims asserted by the family of a supervisor at a Philadelphia meatpacking plant who died of complications from COVID-19. The claims were dismissed as the Pennsylvania Workers’ Compensation Act (“PWCA”) is the exclusive remedy for job-related injuries. Although the Plaintiff argued only one entity could be immune under the PWCA, the court disagreed finding that Tyson, as a parent company exercising workplace control, was also immune from liability. Plaintiff alleged the meatpacking plant at which her deceased husband worked, was “owned, supervised, and controlled” by Tyson although he had been employed by Original Philly Holdings. She further claimed that Tyson’s COVID-19 safety measures were inadequate resulting in her husband’s exposure to COVID-19 and related death. She claimed Tyson could not be considered an employer under the PWCA because the Act only allows for one entity to be deemed an “employer” under the Act.

The Court rejected Plaintiff’s contention noting that Pennsylvania courts have explicitly held that an employee may have more than one employer for purposes of the Act. The critical issue for purposes of immunity is whether the entity has the right to control and direct the method and manner of work employees perform. Plaintiff’s allegations demonstrated that Tyson met the definition of employer for purposes of the Act. Specifically, the Plaintiff alleged Tyson “owned, operated, managed, and otherwise controlled” the meatpacking plant and “sell[s] meat products under the brand name Original Philly Cheesesteak.” The Plaintiff further contended that it was Tyson’s own failure to implement adequate safety precautions which resulted in her husband’s illness, and ultimately, death. Under the circumstances, the exclusivity provision of the Act mandated dismissal with prejudice of the tort claims asserted against Tyson.

Paul Piantino and the Aviation Practice Team secured a big win on summary judgment in New York Supreme Court in Erie County this past November. The case centers around the “duty to warn” and liability with respect to snow removal, a topic FMG has a great deal of expertise in.

Plaintiff was an employee of a private aircraft charter which leased certain sectors from Defendant Airport as part of its business activities. During a snowstorm at the Airport, Plaintiff was allegedly severely injured when she slipped and fell on ice. Plaintiff alleged that she was assisting in the removal of an airplane that had gone off the runway due to snowy and icy conditions. The aircraft left the runway on to a grassy area and had to be towed out. Plaintiff herself was assisting in towing the aircraft out at the time of her injury.

Plaintiff maintained that Defendant acted negligently in creating and allowing a dangerous condition and failing to display proper warning notices so that the pilot would be aware of the end of the runway in snowy conditions. In addition, Plaintiff brought a New York Labor law claim arguing Defendant had a general obligation to protect the health and safety of all employees operating in the area of the Airport. FMG represented the Airport Authority who operated the Airport.

Defendant was able to demonstrate that it was not required to erect a warning sign and the lack thereof was not a significant factor in causing the injuries that resulted to Plaintiff. Additionally, Defendant relied on the “snow in progress” doctrine. Specifically, while a storm was in progress, Defendant had no obligation to plow, sand or otherwise clean the area. Defendant did, however, choose to plow the area to make it possible for the grounded plane to be removed. As such, Defendant Airport had a duty to “not exacerbate or create a dangerous condition.” (Wheeler, 31 A.D.3d at 993) In the Court’s view, Defendant did not- they simply plowed the area to assist in the plane’s removal.

Additionally, it was ascertained that Defendant had neither actual nor constructive notice of the alleged icy conditions as this condition was allegedly present for less than one hour prior to the incident, and further, no complaints were received during that time. Lastly, it was determined that Plaintiff’s labor law claim was meritless because Plaintiff was not considered an employee of Defendant, and as such, Defendant did not have a duty to warn Plaintiff of “potentially dangerous machinery, equipment, and devices” (N.Y. Lab Law §200(2) (McKinney))

This is a notable case under New York law that touches on several vital and recurrent themes in tort law, especially as we head into the winter season. This case provides guidance when defending snow removal and “duty to warn” cases for FMG’s Tort and Catastrophic Loss Practice Section.