• “Reduction in Force” Employment Discrimination by Federal Contractors – In situations involving a reduction in force, a modified prima facie formulation may apply, which allows a case of discrimination to be established by presenting evidence showing, not dissimilar treatment, but that the employer intended to discriminate against the plaintiff in making the discharge decision.” The Eleventh Circuit affirmed the grant of summary judgment to defendant-contractor in plaintiff’s racial discrimination claim under Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act, Florida Statute § 760.10, based plaintiff’s termination in 2009 as part of a reduction in force. Under the McDonnell Douglas test, Plaintiff failed to establish that he was treated less favorably than similarly situated individuals outside his protected class, given that the plaintiff had arrived late and left work three times more often than the “comparators” he identified regarding attendance. Despite statistical analysis by plaintiff’s expert, the record showed that the termination decisions the contractor subsequently modified were based on a spreadsheet, which contained all information for all employees, and revealed that plaintiff’s race was, if anything, a positive factor in the contractor’s decision. Accordingly, plaintiff had failed to establish the requisite discriminatory intent for a prima facie case in a reduction in force context. Fuller v. Edwin B. Stimpson Co. Inc., No. 14-12479, 2015 WL 294112 (11th Cir. Jan. 23, 2015).


  • Arbitrator’s Partiality & Authority; “Results Obtained” Reduction of Attorney’s Fees under Rowe; Construction Lien – Appellant in construction lien arbitration challenged the arbitrator’s partiality and authority to grant interest. Both parties challenged the award of attorney’s fees to lienor. First, arbitrator’s comments and questions during hearing sought to understand and clarify parties’ position fell short of a “reasonable impression of partiality.” Second, arbitrator did not exceed his authority by awarding interest to lienor after the trial court had confirmed the arbitrator’s previous award under Florida Statute §682.12, which provides that an arbitrator’s award shall be vacated when the arbitrator exceeds his or her power. The trial court’s confirmation of the award was invalid because the award was not complete, as the arbitrator had reserved jurisdiction to determine interest. Lastly, lienor, who prevailed on all claims but recovered less damages than sought, challenged the trial court’s reduction of attorney’s fees, arguing that the “results obtained” reduction based on “limited success” as discussed inFlorida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), applied to fees sought by a who party prevails on some of its claims rather than, as here, a party succeeds on all claims but recovers less damages than those sought. The Fourth District disagreed, holding that the result obtained analysis under Rowe permits consideration of the limited recovery amount. Accordingly, the Fourth District affirmed on all issues. Jomar Properties, L.L.C. v. Bayview Const. Corp., No. 4D13-2159, 2015 WL 159055 (Fla. 4th DCA Jan. 14, 2015) (Note: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal.)
  • Experts; Loss of Use Damages During Delayed Improvement to Home; - Loss of delay damages are the building’s rental value during the period of construction delay. Despite small windfall to homeowner-plaintiff based on a lack of offset of plaintiff’s occasional access to home during repairs, plaintiff’s loss of use damages for defendant’s delay in constructing improvement to plaintiff’s home were proper where (1) expert used rental estimation from three comparable properties, and (2) defendant failed to meet its burden to challenge the comparability of the properties relied upon, and instead attacked the calculation for not offsetting homeowner’s limited use of the property during repair. Analogizing the case to payments to tort plaintiffs from collateral sources, the court concluded that although the defendant may have been entitled to set-off for plaintiff’s use, in such situations the law favors a windfall for the injured plaintiff rather than the tortfeasor. Gonzalez v. Barrenechea, No. 3D12-3430, 3D13-987, 2015 WL 249254 (Fla. 3d DCA Jan. 21, 2015) (Note: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal.)