Archived Articles

Trial of FMLA Claim

Tampa Jury finds FMLA violation. Court awards $81,400.00-so far

By: Tom Harper, The Law and Mediation Offices of G. Thomas Harper, LLC

On February 22 a 6-person jury in federal court in Tampa awarded $40,700.00 in back wages to a terminated employee of Beltram Edge Tool Supply, Inc., who was fired while out on FMLA leave. On April 14, the court awarded an equal amount to the jury verdict in liquidated damages ($40, 700.00) to Ms. Regena White, the fired employee. The case addressed several issues that are of interest to Florida employers including the type of notice that an employee must provide to qualify for FMLA, and whether an employer can deny reinstatement and terminate when the employee’s doctor estimates that the employee will not be able to return to work in 12 weeks. Here is what the employee claimed happened, and presented to the court.

A First Mis-Step


Regena White began working for Beltram Edge Tool Supply, Inc. (“Beltram”) in

2003 as an Accounts Payable/Accounts Receivable Supervisor. She supervised

between 2 to 4 specialists in the accounts receivable and accounts payable

department. In addition to normal office-type duties, Regena had to walk around the three buildings that the company occupies to meet with salespersons to work out commission and billing problems. Beltram used an out-of date employee handbook that did not mention the FMLA and the company did not post the required FMLA notices to employees.

In April of 2010 Regena stepped on her leg and tore her ACL in her left knee. Her doctor said that she may need surgery, but Regena opted for physical therapy and returned to work. (No FMLA was offered or mentioned.)  Beginning in November of 2010, Regena began suffering from several other medical conditions including migraine headaches, anxiety attacks, shortness of breath and irregular heart rate. She missed some work, but FMLA was not mentioned or taken. Her health issues continued and Regena missed a lot of work in January 2011, but frequently called in to her supervisor, Jim Reeverts, to tell him about her medical problems.  She was referred to a cardiologist for tests on her heart. In late January, she was released by her doctor to return to work on January 31. But before she returned, she had an accident at home on January 26 while descending the stairs. Her left knee “gave out” on her while walking down the stairs and she fell. (This was the same knee that she had a torn the ACL.)  Her knee became swollen and she could not put any pressure on it or walk and she had great pain in her knee. Her doctor referred her to an orthopedic specialists to see what had happened.

On January 28 her supervisor’s boss, Xio Polewalski, Beltram’s V.P. of Operations, e-mailed to Regena the WH- 380 E form (Certification of Serious Health Condition) for Regena to take to her doctor. Beltram gave her no other info such as the required notice about FMLA rights (WH- 381) or a Designation Notice of FMLA (WH-382).  She was told to return the medical certification form by February 12. Her orthopedic surgeon told Regena that she needed left knee ACL (anterior cruciate ligament) reconstruction, and a repair of the meniscus. Surgery was scheduled for late February, but her doctor had to take a medical leave and Regena was transferred to a different doctor and the surgery was delayed.


Medical Certification


With the change in doctors, on February 11 Regena contacted Ms. Polewalski and told her she could not return the certification by February 12. According to Regena, Polewalski responded, “just get it in as soon as possible.” Ms. Polewalski also asked Regena to send doctor excuses about her absences since late December. Regena provided two doctor excuses, but one of the excuses said that Regena could return to work on January 31. That note had been written before the stairway fall that reinjured Regena’s left knee, but Beltram did not know that. When the serious health condition certification form was not received by February 16, Beltram made the decision to fire Ms. White. On February 17 one of Regena’s own employees at Beltram contacted her to say that Beltram had announced that since Regena had not returned her paperwork, she had been fired. This concerned Regena since she had gone to a lot of trouble to fax the medical certification form, twice, to Beltram on February 16.  Beltam denied receiving the form on February 16 when it claimed it made the decision to terminate. When the form was received by Beltram, it stated that Regena would need surgery and rehab and would be unable to work from January 28 until April 28, a period of almost 13 weeks.


Beltram sent Regena a letter explaining why she had been fired. The letter said that her doctor’s notes indicated that she was able to return to work without restrictions, on January 31, 2011, but she never did return to work.  “Additionally, you have failed to return, within the 15 calendar days granted by law, the FMLA form that was e-mailed to you on January 28, 2011.”


Tampa Court Dismisses her Case


Regena had her knee surgery on March 7, 2011. After being fired, she sought out a lawyer who filed suit for her in state court in Hillsborough County in January of 2013. Beltram removed the case to federal court and after some discovery, asked the federal court to dismiss her case entirely. District Judge James S. Moody, Jr. agreed with Beltram and found that, 1) Regena did not suffer from a serious health condition, 2) she did not give her employer proper notice of her need to take family medical leave and, 3) she had  requested more than 12 weeks of leave and thus her job was not protected.  Judge Moody therefore dismissed Regena White’s case.


But Regena appealed the District Judge’s decision to the federal Court of Appeals over Florida in Atlanta. The appeals court disagreed with the District Judge and found that Regena had presented enough evidence that she had a serious health condition. You may think that this should have been obvious to Beltram, but the District Court considered only what Beltram said they knew when they made the decision to fire Regena. The appeals court said that this was wrong and that the District Court should have considered all available evidence. “…[W]e know of no authority…suggesting that, to determine whether one had a ‘serious health condition’ a court must limit itself to considering only evidence received by the employer before the employee was fired. And we see no reason why that should be the case. The fact question-did the employee suffer from a serious health condition? – is one that, like any other question on summary judgment, should be answered using all available evidence. The appeals court explained,


“It may seem unfair to the employer, as Beltram argues, to make the serious-health-condition determination decision using evidence that the employer did not see until after the termination. But as we discuss later, other provisions protect employers from being sandbagged by employees who try to create interference claims after the fact, and based on information not known at the time of termination.”


Next, the District Court had found that Regena’s need for a leave was foreseeable, and that she had therefore not given Beltram the required 30 day notice. To reach this conclusion the District Judge seized upon the fact that Regena was told months earlier that surgery on her knee was “an option.” Then the lower court looked to her surgeon’s statement in his deposition that Regena’s knee surgery was “elective” surgery. These facts led the lower court to find her surgery and leave foreseeable and thus triggering a 30 day notice requirement for her.


Here again, however, the appeals court saw things differently. The appeals court found that the District Court had not viewed the evidence in the light most favorable to Ms. White, and this was their duty when ruling at this point in the case. The lower court did not point to Regena’s fall and re-injury of her leg on January 26. In addition, the lower court did not consider the full answer of Regena’s surgeon when he stated that her surgery was “elective.” A few minutes later in his deposition, her surgeon explained what he meant by “elective” by saying:


It’s…elective in that it does not have to be done right away in the middle of the night. That’s an orthopedic emergency. It’s a relatively urgent procedure because if it’s—something isn’t done [,] the knee is going to keep buckling out and giving out…, but it’s not a true emergency where you are going to lose your leg if it isn’t done right away.


The appeals court found that Regena’s surgery was “relatively urgent” and not a “planned medical treatment.”  Since the surgery was not foreseeable, Regena was not required to give Beltram 30 days notice.


As a last basis for dismissing Regena’s case, the District Court found that even if Regena did have a serious health condition and had given adequate notice to her employer, she was not entitled to be reinstated to her job because she had requested more than 12 weeks of leave. The District Court looked to her doctor’s statement that she would likely not be able to return until 13 weeks and found that this meant that she was not entitled to job restoration. Since she was not entitled to job restoration this meant that Beltram did not interfere with her FMLA rights when it fired her!


This raised a question that Florida employers are often presented with. If the doctor estimates they will not be able to return in 12 weeks, can we terminate? The appeals court said “No.” The WH 380 E Medical Certification asks the doctor the probable duration of the condition necessitating leave. In this case, Beltram fired her before giving her a chance to see when she would be able to return. A year later during the lawsuit, Regina went to her doctor and obtained his statement that, in fact, Regina made an excellent recovery from surgery and rehab and that she would have been able to return within 8 weeks, and not 13!  Again, the court was required to look at things from Regena’s point of view and Beltram jumped the gun and concluded she would not be able to return within 12 weeks. The appeals court found, “These competing pieces of evidence created a dispute as to whether Ms. White could have returned within 12 weeks. The District Court erred by resolving this dispute in favor of Beltram.”  With the appeals court’s reversal on these important issues, the case was sent back to the District Court and the case was tried in late February in Tampa. The jury returned a verdict for Regena in the amount of $40,700.00, less than she had asked for, but still a significant amount. Regena White vs. Beltram Edge Tool Supply, Inc., Case No. 8:13-cv-478-T-30MAP, M.D. FL (April 14, 2016).



Post trial motions are still pending in this case. This past month the court awarded $40,700.00 in liquidated damages to Ms. White. The FMLA does not allow compensatory damages, but instead allows an award of liquidated damages to a successful employee. Regena’s lawyers have now also asked the court to award attorneys’ fees and costs to her as a prevailing party.  Her lawyers have spent about $140,000.00 in time (appeal and trial) and the court will review their work and decide how much to award her in attorneys’ fees and court costs. Beltram also has a pending motion to set aside the jury verdict.

This case gives many lessons. First, get the DOL forms and study and use them!! Second, take time to update your employee handbook and use and post all required notices such as the required FLMA Notice of Rights. Third, this case extends an employer’s duty to consider what happens even after it decides to fire an employee. This is a new requirement for Florida employers. Even after you fire an employee on FMLA leave, it appears you must continue to reach out to the employee to make sure that you know all the facts about their condition and ability to return to work.



Discrimination Claims

When is a Settlement Not a Settlement?

By Tom Harper, The Law and Mediation Offices of G. Thomas Harper, LLC (

P.F. Chang’s China Bistro, Inc.’s (“P.F. Chang’s”) received a letter from a Florida employment law firm who represented one of Chang’s current employees, a wok cook at Chang’s Sawgrass Mills restaurant .  The letter claimed that their client, Kareem Williams, who was still employed, had been the victim of harassment and discrimination. Over two months, the lawyer for P.F. Chang’s negotiated with Mr. Williams’ lawyer and reached a settlement, or so P. F. Chang’s thought.  When Kareem Williams filed suit on April 25, 2016 against P.F. Chang’s, Chang’s sued Williams back (called a countersuit) seeking to enforce the settlement agreement it had reached with Williams’ lawyer. Here is what happened.

Changing His Mind and Changing His Claims:

Kareem Williams began working for Chang’s in the fall of 2014. At the end of January this year, Williams was still working as a wok cook at Chang’s and he went to a lawyer complaining that he was a victim of harassment and discrimination. Williams hired Jeffrey Del Rio, Esq. with the Spielberger Law Group who wrote Chang’s claiming that Mr. Williams had been called names like “faggot” and the “N” word by two other kitchen employees because of his sexual orientation. William’s lawyer claimed that Kareem had reported the conduct of his co-workers to the Kitchen Manager who took no action.

During February and March of this year the lawyer for P.F. Chang’s negotiated a settlement with Williams’ lawyer, Del Rio. While these discussions were ongoing, Kareem Williams was suspended from his job. On February 29, Mr. Del Rio sent an e-mail to Chang’s lawyers stating that, “Mr. Williams indicated that if he [could] be paid for the time in which he [had] been suspended, he would be agreeable to a resolution at the $6,500 figure.” By early March the e-mails show that the lawyers agreed to settle Williams complaints by paying Williams $3,900.00 plus the scheduled time that Williams lost while suspended–$632.00. In addition, Chang’s agreed to pay Williams’ lawyers $2,600.00. The total settlement was about $7,132.00.  Williams’ lawyer agreed to the terms and Chang’s thought they had a settlement!

Chang’s lawyers prepared a written settlement agreement, had it signed by Chang’s officials and overnight mailed three (3) settlement checks with the signed agreement to Del Rio. Williams, however, refused to sign the agreement and eventually hired another lawyer who filed suit in April in federal court in south Florida claiming race discrimination.  With a new lawyer, Williams’ suit was for race discrimination-not gender discrimination or sexual harassment as claimed in the January letter.  Instead, Mr. Williams, who was born in St. Croix and is African-Caribbean by ethnicity and/or race, claimed that the line cooks at the restaurant were predominantly of African descent, while the management team at Sawgrass Mills was predominantly white. In his suit, Williams claimed that he was treated differently on account of his race and denied promotional opportunities regularly given to white employees. Williams claimed that his kitchen manager had lost his promotional test and then refused to allow Williams to re-take a proficiency test that was required by Chang’s for advancement.

Chang’s answered the suit by filing an answer denying Williams’ claims and Countersuing Williams for enforcement of the settlement agreement reached in March. P.F. Chang’s then asked the federal court in south Florida to grant its motion to enforce the settlement that Del Rio reached on behalf of his client at the time, Kareem Williams. The settlement agreement that Williams refused to sign provided that Williams released Chang’s “… from all and any claims arising from Williams’ previous employment or separation of employment with P.F. Chang’s.” Chang’s argued that the two parties reached a “meeting of the minds” on the essential terms of the settlement and that Del Rio spoke for Williams who then wrongly refused to sign the agreement. In its motion, Chang’s asked the court to find that a settlement agreement had been reached and Williams had breached the agreement by suing Chang’s. (Although three checks were sent with the agreement, and the agreement had been signed by Chang’s, there was no evidence presented that the checks were ever cashed.  In fact, the cover letter enclosing the checks stated, “Please do not cash the attorney’s fee check until you receive confirmation from Mr. Williams that he has accepted the settlement payment.”)

Court Won’t Force Settlement:

In deciding whether the settlement agreement should be enforced, the court carefully analyzed all the e-mails and communications between the lawyers. The court found that Chang’s had the burden to establish a “meeting of the minds” or mutual assent to certain and definite terms.   “While uncertainty as to an agreement to nonessential or small items will not preclude a finding of an enforceable settlement, the agreement must be sufficiently specific and mutually agreeable as to every essential element,” said the Court.

P.F. Chang’s argued that the settlement was enforceable despite Williams’ failure to sign the agreement because Williams’ lawyer had clear and unequivocal authority to enter into the agreement for Williams. The court, however, found that the hiring of a lawyer to represent a client was not enough to confer on the lawyer implied or apparent authority to compromise and settle the client’s claims. The court noted that even where the lawyer believed that he had authority to settle, that belief was not enough.  By its research the court found that in Florida cases, the courts “…have been very stringent in what they find to be a ‘clear and unequivocal’ grant of authority,” to the lawyer. After studying all the correspondence over the settlement negotiations, the court believed that the correspondence did not show that Mr. Del Rio had “clear and unequivocal” authority to enter into the settlement agreement. As a further basis for finding that Chang’s had not met their burden of proof, the court also looked to the fact that Chang’s had twice asked Del Rio to have Williams sign the agreement. The court concluded that the parties thought that Williams’ signature was necessary to complete the settlement. Kareem Williams v. P.F. CHANG’S CHINA BISTRO, INC., Case No. 16-cv-60906, (S.D. Fla, August 16, 2016).

Takeaway: Here in Florida, courts are hesitant to “force” a settlement upon a party, even when all the terms have been agreed upon by lawyers representing the respective sides. Your editor had a three (3) day evidentiary hearing in Tampa a few years ago in a similar case with facts even more favorable for the employer. In that case also, the former employee refused to sign the final agreement and fired his lawyers. The lesson learned is that, until the (former) employee signs, you likely do not have a settlement.