IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA ~.,

ORLANDO DIVISION

: ~

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
Vo
FEDERAL EXPRESS CORPORATION,
Defendant.

CIVIL ACTION NO.
: o - 1tt<
COMPLAINT
JURY TRIAL DEMANDED INJUNCTIVE RELIEF SOUGHT

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of retaliation, and to provide appropriate relief to Ted Maines (hereinafter "Mr. Maines") who was adversely affected by such practices. As stated with greater particularity in paragraph 7 below, the Equal Employment Opportunity Commission (hereinafter "EEOC" or the "Commission") alleges that Mr. Maines was unlawfully disciplined and constructively discharged by Defendant Federal Express Corporation (hereinafter "Federal Express") in retaliation for opposing what he reasonably believed to be a practice made unlawful under Title VII.

JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(0(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII"), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Middle District of Florida, Orlando Division.
PARTIES 3. Plaintiff, the EEOC, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(0(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant Federal Express has continuously been a Delaware corporation doing business in the State of Florida and the City of Orlando, and has continuously had at least 15 employees. 5. At all relevant times, Defendant Federal Express has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Mr. Maines filed a charge with the Commission alleging violations of Title VII by Defendant Federal Express. All conditions precedent to the institution of this lawsuit have been fulfilled.

7. Since at least February, 2001, Defendant Federal Express has engaged in unlawful employment practices at its Orlando, Florida location in violation of Section 704(a) of Title VII, 42 U.S.C. §2000e-3(a). Specifically, on or about February 7, 2001, Mr. Maines met with Defendant’s in-house counsel in order to report and complain about what he reasonably believed to be discriminatory employment practices on the part of Defendant’s upper management. As a result, on or about February 16, 2001, Federal Express gave Mr. Maines the ultimatum to either (i) accept a demotion of five pay grade levels and report to his subordinate; or (ii) be issued a strongly worded warning letter and face immediate termination for any subsequent "mistake." When Mr. Maines advised Defendant that he could not reasonably accept either "option," Federal Express immediately issued a disciplinary warning letter containing a threat of termination. As a result of Defendant’s retaliatory conduct the terms and conditions of Mr. Maines’ employment with the Defendant became so intolerable that he was forced to resign on April 9, 2001.
8. The effect of the conduct complained of in paragraph 7 above has been to deprive Mr. Maines of equal employment opportunities and otherwise adversely affect his status as an employee in retaliation for his opposition to unlawful employment practices.
The unlawful employment practices complained of in paragraph 7 above were intentional.
I0. The unlawful employment practices complained of in paragraph 7 above were done with malice or with reckless indifference to the federally protected rights of Mr. Maines.

PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Federal Express, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of an employee’s opposition to what he or she reasonably believes to be unlawful employment practices. B. Order Defendant Federal Express to institute and carry out policies, practices, and programs which provide equal employment opportunity for persons engaged in a protected activity and which eradicate the effects of its past unlawful employment practices. C. Order Defendant Federal Express to make whole Mr. Maines by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to, reinstatement and rightful place promotion or front pay. D. Order Defendant to make whole Mr. Maines by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 7 above, including, but not limited to job search expenses and out of pocket losses, in amounts to be determined at trial. E. Order Defendant to make whole Mr. Maines by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including emotional pain, suffering, inconvenience, humiliation, and loss of enjoyment of life, in amounts to be determined at trial. F. Order Defendant to pay Mr. Maines punitive damages for its malicious and reckless conduct described in paragraph 7 above, in amounts to be determined at trial.
4

Go

Grant such further relief as the Court deems necessary and proper in the public

interest.

H. Award the Commission its costs of this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by its complaint.

NICHOLAS M. 1NZEO Acting Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
DELNER FRANKLIN-THOMAS Regional Attorney
MICHAEL J. FARRELL Supervisory Trial Attorney

CHERYl. COO~-ER Trial Attbmey FL Bar No. 0171591
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Miami District Office One Biscayne Tower, Suite 2700 Two South Biscayne Boulevard Miami, Florida 33131-1805 Tel.: (305) 536-5384 or (305) 530-6001 Fax: (305) 536-4494

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

Case No.: 6:02-cv-1112-ORL-28-DAB

TED MAINES,

Imervenor-Plaintiff,
go

FEDERAL EXPRESS CORPORATION, a foreign corporation licensed to do business in the State of Florida

Defendant.

INTERVENOR TED MAINES’ VERIFIED COMPLAINT Intervenor-Plaintiff, TED MAINES (hereinafter, "MR. MAINES"), by and through his undersigned counsel, hereby sues Defendant, FEDERAL EXPRESS CORPORATION, a foreign corporation licensed to do business in the State of Florida (hereinafter, "FEDERAL EXPRESS"), for retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. 1981 a (collectively, "Title VII"), and the Florida Civil Rights Act of 1992, Florida Statutes § 760.0 I, et seq.(the "FCRA"), and for violation of Florida’s Private Sector Whistleblower Act, §§44g. 101, et. seq., Florida Statutes (2001) and in support thereof alleges the following:
INTRODUCTION 1. This action is brought to remedy unlawful retaliation in employment wherein
1 EXHIBIT "A" to Motion to Intervene (Verified Complaint)

MR. MAINES was unlawfully disciplined and constructively discharged by Defendant, FEDERAL EXPRESS, in retaliation for opposing what he reasonably believed to be discriminatory employment practices made unlawful under Title VII and the Florida Civil Rights Act. The legal basis for this action is Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. 1981a (collectively, "Title VII"), and the Florida Civil Rights Act of 1992, Florida Statutes § 760.01, et seq.(the "FCRA"). Intervenor-Plaintiff, MR. MAINES, seeks equitable relief and damages. This action is also brought, in part, to remedy unlawful retaliation taken against MR. MAINES for his objection to and/or refusal to participate in what he believed in good faith to have constituted discriminatory and illegal employment practices on the part of Defendant, FEDERAL EXPRESS, in violation of Florida’s Private Sector Whistleblower Act, §§448.101, et. seq., Florida Statutes (2001).
JURISDICTION, VENUE AND PARTIES 2. This action arises, in part, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000, et seq., as amended by the Civil Rights Act of 1991 ("Title VII"). This Court has original jurisdiction to grant relief pursuant to 28 U.S.C. §§ 1331, 1332(a)(1) and 1343 (3) and (4). This Court is vested with jurisdiction to order an injunction, front pay, back pay or any other equitable relief as may be proper, and compensatory and punitive damages, attorneys’ fees and costs pursuant to 42 U.S.C. §§ 1981a and 2000e-5(g). This action also arises, in part, under the Florida Civil Rights Act of 1992, Florida Statutes § 760.01, et seq.(the "FCRA"). This action also arises, in part, under Florida’s Private Sector Whistleblower Act, §448.101, et. seq., Florida Statutes (2001). This Court has jurisdiction
2

over all state law claims pursuant to 28 U.S.C. § 1331 and § 1367. The state claims herein are

for damages in excess of $75,000.00 and are therefore also within the jurisdiction of this

Court. 3.

Plaintiff, U.S. Equal Employment Opportunity Commission ("EEOC"), made

a finding of discrimination and retaliation against FEDERAL EXPRESS, and filed suit in its

own right on behalf of MR. MAINES, giving him the right to intervene as a plaintiff.

Accordingly, MR. MAINES brings his claims herein as an Intervening Plaintiff. 4. Venue is proper in the Orlando Division of the Middle District of Florida
pursuant to 28 U.S.C. § 1391(a) and (c) because the unlawful employment practices were

committed within this judicial district.

5. Intervenor-Plaintiff, MR. MAINES, is an individual who at all times material

resided in Orange County, Florida, during the time of his employment with FEDERAL EXPRESS. At all times material herein, MR. MAINES, was employed by FEDERAL

EXPRESS as the Senior Manager of FEDERAL EXPRESS’ MCO Revenue Customer Care

Center, located in Orlando, Florida.

6. At all relevant times concerning this action, Defendant FEDERAL EXPRESS

has continuously been a Delaware corporation doing business in the State of Florida and the City of Orlando, and has continuously had at least 15 employees.

7. At all times relevant to this action, Defendant FEDERAL EXPRESS had continuously been an "employer" engaged in an industry affecting commerce within the

meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e-5(b), (g) and (h),

and Fla. Stat. § 760.02(7).

COMPLIANCE WITH PROCEDURAL REQUIREMENTS 8. MR. MAINES timely filed a charge of retaliation with the Equal Employment Opportunity Commission ("EEOC") and Florida Commission of Human Relations ("FCHR") alleging that he was unlawfully disciplined and constructively discharged by Defendant FEDERAL EXPRESS in retaliation for opposing what he reasonably believed to be discriminatory employment practices made unlawful under Title VII and the FCRA. 9. MR. MAINES has exhausted his administrative remedies required under 42 U.S.C. 2000e, and has otherwise fulfilled all applicable administrative prerequisites to bringing this action. Moreover, on May 31, 2002, the EEOC’s District Director for the agency’s Miami District Office issued a "Letter of Determination" wherein the EEOC found that there was reasonable cause to believe that violations of Title VII had occurred. A true and correct copy of the EEOC’s "Letter of Determination" is attached hereto to this Verified Intervenor-Complaint as EXHIBIT "A." Additionally, for purposes of Count III of this Amended Complaint, this action is filed within two (2) years of Intervenor-Plaintiff’s discovery of the retaliatory personnel actions taken by Defendant FEDERAL EXPRESS as more fully described herein. Upon information and belief, Defendant has not yet filed an Answer to the EEOC’s underlying Complaint in this action. GENERAL ALLEGATIONS APPLICABLE TO ALL COUNTS 10. MR. MAINES served with distinction with Defendant FEDERAL EXPRESS for approximately 21 years, from November of 1979, until his career was abruptly terminated at or around April 9, 2001, when he was constructively discharged in retaliation for his
4

opposition and objection to what he reasonably and in good faith believed to be discriminatory employment practices made unlawful by Title VII and the FCRA. For the past 2 years prior to his constructive discharge, MR. MAINES served in the capacity of Senior Manager of Defendant FEDERAL EXPRESS’ MCO Revenue Customer Care Center, located in Orlando, Florida.
11. Throughout MR. MAINES" tenure of service with Defendant FEDERAL EXPRESS, his employment history had been favorably distinguished by numerous accolades, awards, and exemplary performance reviews. For example, MR. MAINES’ overall rating on his most recent Individual Performance & Contribution Discussion Form (annual performance evaluation), dated April 10, 2000, was a 3.8 on a 4.0 scale. Additionally, as recently as January 16, 2001, MR. MAINES’ outstanding performance as Senior Manger was recognized by Defendant FEDERAL EXPRESS in that he received an "F-Pool" salary increase of 5%. Significantly, this salary increase was approved by Ms. Diane Mattman, Defendant’s Vice President of Worldwide Revenue Operations. Additionally, during Ms. Mattman’s only visit to the Orlando MCO facility during MR. MAINES’ tenure, she favorably commented on MR. MAINES’ performance, and further stated that "there will be a Managing Director position" for MR. MAINES in the near future. Upon information and belief, Ms. Mattman was accompanied by FEDERAL EXPRESS’ Chief Financial Officer during this meeting wherein Ms. Mattman promised MR. MAINES that he would soon be promoted as a result of his hard work and commitment to excellence.
12. Prior to his constructive discharge, MR. MAINES’ hard work and conmaitment to excellence were consistently recognized and acknowledged by Defendant

FEDERAL EXPRESS. For example, MR. MAINES was awarded FEDERAL EXPRESS’ Domestic Ground Operations’ (Sunshine District) "Senior Manager of the Year" in 1986, 1989, 1990, 1993 and 1999. Additionally, MR. MAINES received FEDERAL EXPRESS’ "Star/Superstar" designation for the years 1988, 1990, 1992, 1993, 1994, 1995, 1997, 1998 and 2000. Moreover, for the past nine (9) years prior to the termination of his career with Defendant FEDERAL EXPRESS, MR. MAINES received a Leadership Index Score of 100% on FEDERAL EXPRESS’ Survey/Feedback/Action ("SFA") internal employee relations survey.
13. Unfortunately, MR. MAINES’ exemplary performance record for the past two decades afforded him absolutely no protection against the retaliatory actions of Ms. Diane Mattman, and Mr. Cartoon ("Lex") Lannom, MR. MA1NES’ Managing Director and immediate supervisor.
14. At or around December 20, 2000, a personnel requisition was approved by FEDERAL EXPRESS’ Sr. Vice President, Traey Schmidt, and by Ms. Mattman for two Orlando-based CAS Mangers. After conducting a candidate interview and selection process that was fully consistent with FEDERAL EXPRESS’ Personnel Policy and Procedures, and which was approved by MR. M AINES’ (then) Managing Director, Ms. Karen Christian, MR. MAINES then presented the interview and selection process materials to FEDERAL EXPRESS’ Personnel Representative, Mr. Eddie Jenkins, for evaluation and final approval of the top 2 candidates.
15. Only after Ms. Christian and Mr. Jenkins approved of the selection process and specifically approved the selection of the top 2 candidates (which was fully consistent

with FEDERAL EXPRESS’ policies and procedures) did MR. MAINES extend job offer letters on February 1, 2001 to the two top candidates. The successful applicants were Ms. Guadalupe Miller (an Hispanic Female) and Ms. Annette Reece (an African-American female).
16. Immediately after these two women accepted their offer letters, MR. MAINES was informed by his (then) Managing Director, Ms. Karen Christian, that Defendant FEDERAL EXPRESS’ Vice President of Worldwide Revenue Operations, Ms. Diane Mattman, was angry about the hiring selections and that Ms. Mattman had wanted a Caucasian candidate, Ms. Lauren Ruston, to have been given a CAS Manager position. Upon information and belief, MS. MATTMAN initially tried to de-legitimize the interview and selection process that resulted in the offer letters being delivered to Ms. Guadalupe Miller and Ms. Annette Reece by falsely claiming that she had only authorized that one CAS Manager position be filled. Additionally, Ms. Mattman ordered that the offer letter extended to Ms. Guadalupe Miller and Ms. Annette Reece be withdrawn immediately.
17. MR. MAINES complained to his (then) direct supervisor, Ms. Christian, that he believed that Ms. Mattman’s actions in nullifying the interview and selection process were discriminatory given the fact that Ms. Guadalupe Miller was a minority (an Hispanic), while Ms. Ruston was not.
18. Moreover, MR. MAINES’ further questioned the legitimate business basis for Ms. Mattman’s directives given the fact that Ms. Miller was fluent in Spanish (a skill not possessed by any of the other managers at the Orlando MCO center, either then nor, upon information and belief, as of October 7, 2002) and thus her language skills would have

enabled FEDERAL EXPRESS to have a customer service escalation process as well as a valuable quality auditing process in place with respect to the large volume of Spanish speaking calls that the Orlando, MCO facility regularly received. This seemed to be particularly beneficial for advancing FEDERAL EXPRESS’ legitimate business interests given the fact that its Orlando, MCO facility acts as the exclusive CAS venue for Spanish speaking calls.
19. Throughout the process that followed, MR. MAINES’ fundamental concern was that Ms. Mailman’s actions constituted discriminatory employment practices that were unlawful under Title VII and the FCRA, and that they would likely expose Defendant FEDERAL EXPRESS to a credible risk of employment-related litigation and/or EEO complaints from Ms. Miller and/or Ms. Reece.
20. Ultimately, on February 7, 2001, and in accordance with FEDERAL EXPRESS’ policies and procedures, MR. MAINES voiced his complaints of discrimination and of the likelihood of FEDERAL EXPRESS’ potential corresponding legal exposure to Mr. Greg Richards, an in-house attorney for FEDERAL EXPRESS. During this meeting, Attorney Richards twice offered his assurances that MR. MAINES "would be protected from any acts of retaliation" as a result of his good faith reporting of and objection to what MR. MAINES reasonably believed to be discriminatory employment practices made unlawful under Title VH and the FCRA. Attorney Richards also indicated that he would contact Ms. Mattman to discuss this situation.
21. On February 8, 2001, Ms. Mattman advised MR. MAINES that she was "nullifying" the entire selection process for the two CAS Managers. She also ordered MR.

MAINES to send her all of the interview materials via overnight delivery. MR. MAINES faithfully complied with this directive. Significantly, Ms. Mattman never bothered to wait to receive and review these pertinent interview materials prior to sending out "nullification letters" to all of the fifteen (15) applicants, as well as rescinding the offer letters that had been extended to Ms. Miller and Ms. Reece.
22. Moreover, Ms. Ruston, the Caucasian candidate who, upon information and belief, had attended the first interview process with her husband and a local realtor in tow (thus behaving as though her interview and the selection process itself were mere formalities and merely a prelude to a predetermined conclusion), was ultimately given a CAS Manager position at Defendant FEDERAL EXPRESS’ Orlando, MCO facility. Upon information and belief, Ms. Guadalupe Miller was subsequently ordered by Defendant FEDERAL EXPRESS to train Ms. Ruston in several meaningful areas in an effort to teach Ms. Ruston how to perform in her role as CAS Manager.
23. Also on February 8, 2001, MR. MAINES received a telephone call from Eddie Jenkins and Karen Christian. During this telephone call, Mr. Jenkins and Ms. Christian warned MR. MAINES that Ms. Mattman was furious that she had received a telephone call from Defendant FEDERAL EXPRESS’ Legal Department as a result of MR. MAINES’ complaint of discrimination to Attorney Richards. Mr. Jenkins further warned MR. MAINES that "Diane can do anything she wants," referring to Ms. Mattman.
24. Later that same evening on February 8, 2001, Mr. Jenkins called MR. MAINES again at home to convey his concerns that MR. MAINES would likely be subjected to retaliation as a result of his complaint of discrimination against Ms. Mattman to Defendant

FEDERAL EXPRESS’ Legal Department. During this conversation, Mr. Jenkins recounted other situations wherein "a good manager had been placed on a VP. ~ hit list," because the manager had "stood up to" the V.P. Apparently, this particular manager received an "unacceptable performance evaluation" as a result. In concluding this telephone call, Mr. Jenkins once again cautioned that: "Diane can do whatever she wants."
25. On February 12,2001, Ms. Guadalupe Miller advised MR. MA1NES that she was in the process of filing an internal EEO Complaint due to the "nullification" of her offer letter by Ms. Mattman. Effective at or around February 15, 2001, Mr. Carmon "Lex" Lannom replaced Ms. Christian as Managing Director and became MR. MAINES’ direct supervisor.
26. Upon information and belief, Ms. Christian had suffered a substantial demotion at the hands of Ms. Mattman, resulting in the insertion of Mr. Lannom as MR. MAINES’ direct supervisor. Immediately thereafter, Mr. Lannom began to criticize various aspects of MR. MAINES’ performance, business judgment and leadership abilities. These criticisms were false, unwarranted and were obviously meted out with the approval and encouragement of Ms. Mattman (Defendant FEDERAL EXPRESS’ Vice President of Worldwide Revenue Operations) in retaliation for MR. MAINES’ complaint of and goodfaith objection to what he reasonably believed to be discriminatory employment practices made unlawfial under Title VII and the FCRA.
27. On the evening of February 16, 2001, MR. MAINES received a telephone call from Lex Lannom, wherein Mr. Lannom advised that as a result of the CAS Manager hiring decisions, MR. MAINES would be receiving a "strongly worded warning letter." Mr.
10

Larmom then threatened that, after receiving this warning letter, "tke next mistake you make will lead to termination." Mr. Lannom also stated that this disciplinary action taken against MR. MAINES was due to the fact that FEDERAL EXPRESS had received "at least one EEO complaint filed as a result of" MR. MAINES’ hiring decisions.
28. Alternatively, during this same conversation, Mr. Lannom stated that if MR. MAINES would accept a demotion of five (5) pay grade levels to the position of Sr. Invoicing Specialist (wherein MR. MAINES would be reporting to his subordinate, Ms. Joni Smith), then he "wouldn’t be disciplined at all." Mr. Lannom then ordered that MR. MAINES could have the weekend to make a decision as to whether he would accept the proposed demotion (without any ’further’ discipline), or elect to receive the warning letter and the eventual termination of his employment as per Mr. Lannom’s retaliatory threat.
29. On February 20, 2001, MR. MAINES informed Mr. Lannom via E-mail that neither ’alternative’ posed by Mr. Lannom on February 16, 2001, was acceptable to him as he had done nothing improper. In response, Mr. Lannom issued a disciplinary "Warning Letter," dated February 21, 2001, wherein he cited MR. MAINES’ (who had previously enjoyed exemplary employment record for over two decades) for "lack of judgment and leadership failure." Mr. Larmom furthermore made a concerted effort to allege that MR. MAINES had improperly conducted the interview and selection process for the CAS Managers, which then resulted in the selection of Ms. Miller and Ms. Reece. Mr. Lannom also stated that, based on FedEx’s "initial investigation," MR. MAINES’ actions violated FedEx’s Acceptable Conduct policy. Significantly Mr. Larmom’s disciplinary "Warning Letter" (which was copied to Ms. Mattman and to Mr. Jenkins) contained at least two threats
11

of termination. 30. Mr. Lannom and/or Ms. Mattman continued a vicious and retaliatory
campaign against MR. MAINES that included, but was not limited to, having Mr. Lannom falsely criticize and disparage MR. MAINES’ work performance, having MR. MAINES’ telephone calls and E-Mail systems monitored, and having Mr. Lannom engage in a campaign wherein he actively attempted to solicit negative information from MR. MAINES’ subordinates. Upon information and belief, Mr. Lannom’s efforts in this particular regard even included him offering "immunity" to subordinates who would agree to furnish negative information regarding MR. MAINES’ performance as a manger.
31. On February 26, 2001, MR. MAINES contacted Defendant FEDERAL EXPRESS’ in-house attorney, Mr. Greg Richards, to alert him to the disciplinary "Warning letter" issued by Mr. Lannom. MR. MAINES expressed his concern that this letter was clearly retaliatory, and was a direct result of the fact that he had previously voiced concerns and objections regarding what he in good-faith believed were Ms. Mattman’ s discriminatory employment actions made unlawful under Title VII and the FCRA. Thereafter, Mr. Larmom embarked on a deliberate and concerted effort to further disparage MR. MAINES’ performance in an open and obvious effort to get MR. MAINES terminated, as per his threat previously made on February 16, 2001. These illegal retaliatory acts were sanctioned by Ms. Mattman who knew or should have known that they were occurring under her direction.
32. Due to this campaign of retaliation, coupled with Mr. Lannom’s clearly articulated threat to ternainate MR. MAINES if he would not accept a significant demotion, the terms and conditions of MR. MAINES’ employment with the Defendant FEDERAL
12

EXPRESS became so intolerable that he was forced to resign on April 9, 2001. 33. The effect of the conduct complained of in Paragraphs 10 through 32 herein
has been to deprive MR. MA1NES of equal employment opportunities and to otherwise adversely affect his status as an employee in retaliation for his opposition to unlawful employment practices.
34. The unlawful retaliatory acts complained of in Paragraphs 10 through 32 herein were intentional and done with malice or with reckless indifference to MR. MAINES’ rights protected under Title VII and the FCRA, as well as under Florida’s Private Sector Whistleblower Protection statute, §448.101, et seq., Florida Statutes (2001).
35. As a result of Defendant FEDERAL EXPRESS’ wrongful acts alleged herein, MR. MAINES has suffered economic and emotional damages.
36. All conditions precedent to filing this action have been performed, have occurred or have been waived.
37. MR. MAINES has engaged the services of legal counsel and is obligated to pay legal counsel their fees and costs incurred in the prosecution of this action.
COUNT I VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,
AS AMENDED - RETALIATION
38. MR. MAINES respectfully repeats and realleges the allegations contained in paragraphs 1 through 37 herein.
39. Defendant FEDERAL EXPRESS violated Title VII of the Civil Rights Act of 1964, as amended, by retaliating against MR. MAINES for complaining about and
13

objecting to what he reasonably believed to be unlawful discrimination in employment as

more fully described in the General Allegations section of this Verified Intervenor

Complaint.

40.

The adverse employment actions suffered by MR. MAINES in retaliation

for his good-faith complaint of and objections to discriminatory employment practices have

been more specifically outlined in the General Allegations Section of this Verified Intervenor

Complaint, in Paragraphs 23 through 32, and culminated in his constructive discharge on

April 9, 2001.

41.

The adverse employment actions suffered by MR. MAINES were causally

related to and in retaliation for MR. MAINES’ having engaged in the protected activity of

complaining about and objecting to what he reasonably and in good-faith believed to be

discriminatory employment practices made unlawful by Title VII, as has been described in

detail within the General Allegations Section of this Verified Intervenor Complaint.

42. The actions of Defendant FEDERAL EXPRESS and/or its agents, employees,

managers, supervisors and/or shareholders were willful, wanton, intentional and performed

with malice or with reckless indifference to MR. MAINES’ federally protected rights,

entitling MR. MAINES to compensatory and punitive damages pursuant to 42 U.S.C. §§

1981a and 2000e-5(g) to punish FEDERAL EXPRESS for its actions and to deter it, and

others, from taking such actions in the future.

43. The actions of Defendant FEDERAL EXPRESS make reinstatement ineffective

as a make-whole remedy, entitling MR. MAINES to front pay in lieu of reinstatement.

44. As a direct, proximate and foreseeable result of the actions of Defendant

14

April 9, 2001. 48. The adverse employment actions suffered by MR. MAINES were causally
related to and in retaliation for MR. MAINES’ having engaged in the protected activity of complaining about and objecting to what he reasonably and in good-faith believed to be discriminatory employment practices made unlawful by the Florida Civil Rights Act, as has been described in detail within the General Allegations Section of this Verified Intervenor Complaint.
49. The actions of Defendant FEDERAL EXPRESS and/or its agents, employees, managers, supervisors and/or shareholders were willful, wanton, intentional and performed with malice or with reckless indifference to MR. MAINES’ protected rights under the Florida Civil Rights Act, entitling MR. MAINES to compensatory and punitive damages pursuant to Florida Statutes Chapter 760.11(5) to punish Defendant FEDERAL EXPRESS for its actions and to deter it, and others, from taking such actions in the future.
50. The actions of Defendant FEDERAL EXPRESS make reinstatement ineffective as a make-whole remedy, entitling MR. MAINES to front pay in lieu of reinstatement.
51. As a direct, proximate and foreseeable result of Defendant FEDERAL EXPRESS’ actions, MR. MAINES has suffered past and future pecuniary losses, emotional pain, suffering, inconvenience and mental anguish, loss of enjoyment of life, loss of dignity, emotional distress, humiliation and other nonpecuniary losses and intangible injuries.
DEMAND FOR RELIEF WI/EREFORE,/ntervenor-Plaintiff, TED MAINES,respectfully demands judgment
16

against DEFENDANT FEDERAL EXPRESS CORPORATION for back pay, front pay in

lieu of reinstatement, compensatory damages, prejudgment interest, punitive damages,

attorneys’ fees, costs of this action and any such other relief as this Court deems just and

proper.

COUNT III VIOLATION OF THE FLORIDA PRIVATE SECTOR WHISTLEBLOWER PROTECTION ACT~ FLORIDA STATUTES
,§448.101, et seq.

52. MR. MAINES respectfully repeats and realleges the allegations contained in paragraphs 1 through 37, herein.
53. Florida Statutes §448.102(3) provides a cause of action for any employee who has been the object of a retaliatory personnel action for objecting to or refusing to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.
54. At all times material to this action, MR. MAINES was an employee within the meaning of Florida Statutes §448.101 (2).
55. At all times material, Defendant FEDERAL EXPRESS was/is an employer within the meaning of Florida Statutes §448.101 (3) and regularly employs more than 10 persons.
56. Defendant FEDERAL EXPRESS violated Florida Statutes § 448.102(3) by taking retaliatory personnel actions against MR. MAINES due to his good faith objections to, and/or his refusal to participate in, FEDERAL EXPRESS’ violation of federal and state laws prohibiting workplace discrimination based upon race and/or national origin, as well as prohibiting retaliation against an employee who engages in the statutorily-protected activity of reporting same, as has been more thoroughly described in the General Allegations section of this Verified Intervenor

17

Complaint, in Paragraphs 23 through 32, herein. 57. Defendant FEDERAL EXPRESS retaliated against MR. MAINES in violation of
Florida’s Private Sector Whistleblower Statute, as has been more thoroughly described in the General Allegations section to this Verified Intervenor Complaint herein, culminating in MR. MAINES’ constructive discharge on April 9, 2001. Defendant FEDERAL EXPRESS’ retaliatory actions were the result of MR. MAINES’ having in good faith objected to and/or refused to participate in FEDERAL EXPRESS’ illegal and discriminatory employment practices in violation of Title VII and the FCRA, as has been more fully described herein.
58. Defendant FEDERAL EXPRESS and its agents, employees, supervisors, managers, partners, officers ands’or directors actively and knowingly participated in the retaliatory personnel actions against MR. MAINES, culminating in MR. MAINES’ constructive discharge on April 9, 2001, having actual knowledge and/or constructive knowledge of the wrongfulness of their conduct and the high probability that injury or damage to MR. MAINES would result, and/or acted with such reckless disregard or absence of reasonable care as to constitute a conscious disregard or indifference to the rights of MR. MAINES, and/or acted with such gross negligence that they contributed to MR. MAINES’ damages, injuries and losses.
59. As a consequence of these actions, MR. MAINES has suffered damages including loss of income, lost wages and benefits, damage to reputation, standing in his profession and community, emotional distress damages, and other damages which have yet to be determined.
DEMAND FOR RELIEF WHEREFORE, Intervenor-Plaintiff, TED MAINES, respectfully demands judgment against DEFENDANT FEDERAL EXPRESS CORPORATION for compensation for lost wages,
18

benefits and any other applicable remuneration, prejudgment interest, and all monetary awards, attorneys’ fees, court costs and expenses incurred in this action, all other compensatory and punitive damages allowable at law, and may other such relief as this Court deems just and proper. To the extent that Intervenor-Plaintiff is required under applicable law to present a proffer to the Court prior to making a plea for relief under this Count III that includes a claim for punitive damages against Defendant, Intervenor-Plaintiffexpresslyreserves the right to present same at such a time as deemed reasonable and appropriate by the Court.
DEMAND FOR JURY TRIAL Intervenor-Plaintiff, TFD MAINES, respectfully requests a trial by jury for each Count of this Verified Intervenor Complaint on all issues so triable. DATED this _jtf)~"-day of October, 2002.
Sch _ Sg,
- Flat’ida Bar No.: 523021 Andrew G. Wedmore, Esquire Florida Bar No.: 0141143 JILL S. SCHWARTZ & ASSOCIATES, P.A. 180 Park Avenue, North, Suite 200 Winter Park, Florida 32789 Telephone: (407) 647-8911 Facsimile: (407)647-8911 Attorneys for Intervenor-Plaintiff, TED MAINES
19

VERIFICATION Personally appeared before the undersigned, TED MAINES, who, being first duly sworn, deposes and says that the allegations of this Verified Intervenor Complaint for Damages and Demand for Jury Trial consisting of paragraphs numbered 1 through 59 inclusive, are true and correct to the best of his knowledge, information and belief.

TED MAINES, Intervenor-Plaintiff

STATE OF FLORIDA COUNTY OF ORANGE

The foregoin "

as ac ow

ore me this ~ dayofOCTOBER, 2002.

by TED MAINES~s personally known to me 9.r.-~o did produce Florida Driver’-s License

No.

as identification.

~TA-RY PIJBI£IC~TATE OF FLORIDA

==.’_ ., . ,~ "_ = ",,d;,~tlC S~&~~

20

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Verified Intervenor Complaint (and exhibits) as been furnished via U.S. Mail to: Pamela D. Pitts, Esquire, Managing Director Legal Department, Federal Express Corporation, 3620 Hacks Cross Road, 3r’~ Floor, Building 8, Memphis, Tennessee, 38125 (attorney for Defendant), and Delner FranklinThomas, Esquire, Michael J. Farreli, Esquire, and Heui Young Choi, Esquire, U.S. Equal Employment Opportunity Commission, Miami District Office, One Biseayne Tower, Suite 2700, Two South Biscayne Blvd., Miami, Florida 33131-1805, on this /~/ L"~day of October, 2002.
21

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Miami District Office

one Biscayne Tower

2 South Biscaynv Blvd., Suite 2700 Miami, FL 3313 t

PH: (305) 536-4491

TDD: (305) 536-572 I

FAX: (305) 536-40i I

EEOC Charge No. 150A12037

Ted Maines 811 E. Pine Street Orlando, FL 32801

Charging Party

Federal Express Corporation 1901 Summit Tower Boulevard Orlando, FL 32810

Respondent

LETTER OF DETERMINATION
I issue the following determination on the merits of this charge.
Respondent is an employer within the meaning of Title VII of the Civil Rights Act (Title VII) of 1964, as amended, and timeliness, deferral and all other requirements for coverage have been met.
Charging Party alleged that he was discriminated against in violation of Title VII in that he was threatened with demotion or discipline in retaliation for protesting employment practices he believed were illegal thereby causing his constructive discharge.
I have determined tJ~at the evidence obtained during the investigation establishes that there is reasonable cause to believe that violations of the statute have occurred.
Upon finding that there is reason to believe that violations have occurred, the Commission attempts to eliminate the alleged unlawful practices by informal methods of conciliation. Therefore, the Commission now invites the parties to join with it in reaching a just resolution of this matter. The confidentiality provisions of Sections 706 and 709 of Title VII and the Commission Regulations apply to information obtained during conciliation.

EXHIBIT "A" to Intervenor’s VERIFIED COMPLAINT

Letter of Determination EEOC Charge No. 150A12037 Page 2
Please complete the enclosed Invitation to Conciliate and return it to the Commission at the above address within ten (10) days of receipt of the Letter of Determination. You may fax your response directly to (305)530-7660 to the attention of Susan A. Mann, Senior Investigator. Failure to respond within ten (10) days of receipt of the Letter of Determination will indicate that you are not interested in conciliating this matter, and the Commission will determine that efforts to conciliate this charge as required by Title VII have been unsuccessful.
If the Respondent declines to discuss settlement or when, for any other reason, a settlement acceptable to the office Director is not obtained, the Director will inform the parties and advise them of the cohrt enforcement alternatives available to aggrieved persons and the Commission.
On Behalf of the Corn~.~ ,

Date
Enclosure: Invitation to Conciliate
CO: Char.o-ing Party_ Representative Andrew G. Wedmore, Esq. Jill S. Schwartz & Associates, P.A. 180 Park Avenue North, Suite 200 Winter Park, FL 32789-7401 Respondent Representative Bobbie Temple, Advisor Employee Relations Department Federal Express Corporation 3660 Hacks Cross Road Building F, Third Floor Memphis, TN 38125

~?tririct D~;:tt;’:s

 </s> Case 6:02-cv-01112-JA-DAB Document 40 Filed 04/15/2004 Page 1 of 5

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

2mq APR ,5 PM )! ,2
us lJlSTRICT cOURT
f,;ODlE 'OISTRtCT Of FLORtDA , ORLANDO. FLORtnA

Plaintiff,

-vs-

Case No. 6:02-cv-1112-0rl-28DAB

FEDERAL EXPRESS CORPORATION,

Defendant.

ORDER This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: MOTION FOR PROTECTIVE ORDER (Doc. No. 28)

FILED:

March 29, 2004

THEREON it is ORDERED that the motion is DENIED in part. Defendant seeks to prohibit the taking of a deposition with respect to its financial worth, as being an undue burden and an annoyance. Both sides acknowledge that the issue of Defendant's finances is relevant in the context of a punitive damages claim, but Defendant argues that it has already provided copies of recent annual reports for the company, which show significant assets. Defendant submits that, as it is indisputable that it "is financially capable of satisfying a judgment in this case," further discovery on the matter is pointless. This is especially so, argues Defendant, as Title VII contains a statutory cap on any punitive damage award.

Case 6:02-cv-01112-JA-DAB Document 40 Filed 04/15/2004 Page 2 of 5
Plaintiffsubmits that the discovery does not go to whether Defendant can satisfy thejudgment, but to what that judgment should be. Plaintifffears that Defendant will rely at trial on "some obscure footnote" to somehow confuse the jury, and thus, seeks a deposition to "clearly interpret" the financial statements in the annual reportsl. As for the cap, Plaintiff points out that the jury is prohibited from being informed of the cap, and it is therefore irrelevant to discovery issues.
Thus, it appears that both sides agree that the information is relevant and discoverable, but Defendant seeks to control the method of discovery of that information. The issue is whether the burden and annoyance of a deposition designed to elicit admittedly relevant information constitutes "good cause" to prevent it, under Federal Rule ofCivil Procedure 26(c). This Court finds that it does not. Nonetheless, it is evident that Plaintiffhas exaggerated the appropriate scope and importance of financial information in presenting a claim for punitive damages. The Court will not permit, at trial or in discovery, an extended exploration ofall aspects ofthe Defendant's finances. The development and presentation of sufficient summary information to allow the jury to make the appropriate determinations should be a negligible aspect ofthis litigation. Indeed, in most cases, counsel are able to craft an acceptable stipulation that narrow or eliminate the contested issues regarding net worth or financial status. Because the parties have apparently failed to do so here, the Court will allow the deposition to go forward, limited in time to 30 minutes. The Court reminds counsel that all sides are under a duty to proceed in good faith in this matter, and the Court will not hesitate to impose sanctions for either overreaching or for failing to facilitate discovery.
lThis scenario seems somewhat fanciful since any such attempt by the Defendant would most likely be adversely construed by the jury.
-2-

Case 6:02-cv-01112-JA-DAB Document 40 Filed 04/15/2004 Page 3 of 5

· 1--14 DONE and ORDERED in Orlando, Florida this~ day of April, 2004.

Copies furnished to:

Counsel of Record
~

D1

I\' \~/

)..1/

~~~~
UNITED STATES MAGISTRATE JUDGE

-3-

Case 6:02-cv-01112-JA-DAB Document 40 Filed 04/15/2004 Page 4 of 5

Date Printed: 04/16/2004

F I L E COP Y

Notice sent to:
Cheryl A. Cooper, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
6:02-cv-01112 igc
Michael J. Farrell, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
6:02-cv-01112 igc
Delner Franklin-Thomas, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
6:02-cv-01112 igc
Nicholas M. Inzeo, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
6:02-cv-01112 igc
Gwendolyn Y. Reams, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
6:02-cv-01112 igc
M. Teresa Rodriguez, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700

Case 6:02-cv-01112-JA-DAB Document 40 Filed 04/15/2004 Miami, FL 33131
6:02-cv-01112 igc
Carl Morrison, Esq. Federal Express Corporation 3rd Floor, Building B 3620 Hacks Cross Rd. Memphis, TN 38125-1842
6:02-cv-01112 igc
Kay L. Wolf, Esq. Ford & Harrison LLP 300 S. Orange Ave., Suite 1300 P.O. Box 60 Orlando, FL 32802-0060
6:02-cv-01112 igc
Andrew G. Wedmore, Esq. Jill S. Schwartz & Assoc., P.A. 180 Park Ave. N., Suite 200 Winter Park, FL 32789
6:02-cv-01112 igc
Jill Steinberg Schwartz, Esq. Jill S. Schwartz & Assoc., P.A. 180 Park Ave. N., Suite 200 Winter Park, FL 32789
6:02-cv-01112 igc

Page 5 of 5

 </s> Case 6:02-cv-01112-JA-DAB Document 54 Filed 05/12/2004 Page 1 of 5

- -::c:.

<")\

i-':;<- : r'1

t

0;;'1

.. _...., ~-r~ e~: ~

-... ,' •...- r, ' 1~: , ". ... " (. ~ ,.'

UNITED STATES DISTRICT COURT

1,.,

1 '"}

\

MIDDLE DISTRICT OF FLORIDA

)

ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

TED MAINES,

Intervenor-Plaintiff,

-vs-

Case No. 6:02-cv-1112-0rl-28DAB

FEDERAL EXPRESS CORPORATION,

Defendant.

ORDER
The EEOC brought this action against Defendant Federal Express Corporation ("Federal Express") under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 (Doc. 1), and Intervenor-Plaintiff Ted Maines ("Mr. Maines") intervened and filed a Complaint (Doc. 9) alleging violations of Title VII, the Florida Civil Rights Act, and the Florida Whistleblower Act. This matter is currently before the Court on IntervenorPlaintiff's Motion for Leave to Seek Punitive Damages Underthe Florida Whistleblower Act (Doc. 27, filed March 29, 2004), in response to which Federal Express has filed a memorandum in opposition (Doc. 29, filed April 8, 2004).
In his motion, Mr. Maines asserts that Section 448.103, Florida Statutes, in conjunction with Sections 768.71 and 768.72, Florida Statutes, allows him to seek punitive

Case 6:02-cv-01112-JA-DAB Document 54 Filed 05/12/2004 Page 2 of 5
damages on his whistleblower claim. Section 448.103(2) provides in part that on a whistleblower claim, "a court may order relief' including an injunction; reinstatement of the employee to his former position; reinstatement of benefits and seniority; "[c]ompensation for lost wages, benefits, and other remuneration"; and "[a]ny other compensatory damages
allowable at law." § 448.103(2), Fla. Stat. Mr. Maines hangs his hat on this last clause,
contending that the punitive damages he seeks qualify as "other compensatory damages allowable at law" because Sections 768.71 and 768.72 provide a substantive rightto recover punitive damages.
However, Mr. Maines's argument is not persuasive. Although this issue had apparently not been specifically addressed in a published opinion at the time Mr. Maines filed his motion six weeks ago, during the pendency of the motion this very argument has been squarely addressed and rejected by another court within this district. In Branche v. Airtran Airways. Inc., No. 8:01-CV-1747-T-30MSS, 2004 WL 859319 (M.D. Fla. Apr. 19, 2004) (Moody, J.), the court examined the plain language of the statutes involved and concluded that punitive damages are not recoverable under the Florida Whistleblower Act.
This Court agrees with the well-reasoned opinion of the Branche court. Sections 768.71 and 768.72 do not create a right to recover punitive damages where one does not otherwise exist. Branche, 2004 WL 859319, at *2 (concluding that Section 768.72 merely "places additional procedural and evidentiary limitations on claims for punitive damages" rather than creating a substantive right thereto). Moreover, the plain language of Section
448.103(2) forecloses recovery of punitive damages. lit. ("Use of the word 'compensatory'
in Section 448.1 03(2)(e) clearly indicates that punitive damages and other forms of non-
-2-

Case 6:02-cv-01112-JA-DAB Document 54 Filed 05/12/2004 Page 3 of 5

compensatory damages are unavailable to correct FWA [Florida Whistleblower Act] violations."); cf. Snapp v. Unlimited Concepts. Inc., 208 F.3d 928, 934 (11th Cir. 2000)

("Punitive damages ... have nothing to do with compensation .... [T]heir purpose is to

punish and deterthe wrongdoer rather than to compensate the aggrieved party. Therefore,

punitive damages would be out of place in a statutory provision aimed at making the plaintiff

whole."). Therefore, Intervenor-Plaintiff's Motion for Leave to Seek Punitive Damages Under

the Florida Whistleblower Act (Doc. 27, filed March 29, 2004) is DENIED.
I DONE and ORDERED in Chambers, Orlando, Florida this L

day of May,

2004.

.-j ~

'--- ----fr--- ( --= l..
j10HN ANTOON II
. United States District Judge

Copies furnished to: Counsel of Record Unrepresented Party

-3-

Case 6:02-cv-01112-JA-DAB Document 54 Filed 05/12/2004 Page 4 of 5

:e Printed: 05/13/2004

F I L E COP Y

tice sent to:
Cheryl A. Cooper, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
6:02-cv-01112 igc
Michael J. Farrell, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
6:02-cv-01112 igc
Delner Franklin-Thomas, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
6:02-cv-01112 igc
Nicholas M. Inzeo, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
6:02-cv-01112 igc
Gwendolyn Y. Reams, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
6:02-cv-01112 igc
M. Teresa Rodriguez, Esq. Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700

CaMseia6m:0i2,-cvF-L0111323-1J3A1-DAB Document 54
6:02-cv-01112 igc
Carl Morrison, Esq. Federal Express Corporation 3rd Floor, Building B 3620 Hacks Cross Rd. Memphis, TN 38125-1842
6:02-cv-01112 igc
Kay L. Wolf, Esq. Ford & Harrison LLP 300 S. Orange Ave., Suite 1300 P.O. Box 60 Orlando, FL 32802-0060
6:02-cv-01112 igc
Andrew G. Wedmore, Esq. Jill S. Schwartz & Assoc., P.A. 180 Park Ave. N., Suite 200 Winter Park, FL 32789
6:02-cv-01112 igc
Jill Steinberg Schwartz, Esq. Jill S. Schwartz & Assoc., P.A. 180 Park Ave. N., Suite 200 Winter Park, FL 32789
6:02-cv-01112 igc

Filed 05/12/2004 Page 5 of 5

 </s> Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 1 of 15

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

TED MAINES,

Intervenor-Plaintiff,

-vs-

Case No. 6:02-cv-1112-Orl-28DAB

FEDERAL EXPRESS CORPORATION,

Defendant. ______________________________________

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT
This cause came on for consideration without oral argument on the following motion filed

herein:

MOTION: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. No. 33)
FILED: April 13, 2004 _____________________________________________________________ THEREON it is RECOMMENDED that the motion be DENIED.
Plaintiff, the Equal Employment Opportunity Commission (herein “the EEOC”) filed suit against Defendant (“FedEx”), to correct allegedly unlawful employment practices regarding retaliation and to provide appropriate relief to Ted Maines, allegedly adversely affected by such practices (Doc.

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 2 of 15
No. 1). Maines has intervened, and asserts a Title VII retaliation claim on his own behalf, as well as a claim under the Florida Civil Rights Act of 1992 (Fla. Stat. § 760.01) and Florida’s Private Sector Whistleblower Act (Fla. Stat. § 448.101, et seq.).
Defendant moves for summary judgment (Doc. No. 33, with attached exhibits) and has filed deposition transcripts of Ted Maines, Karen Christian, Carmon Lannom, Eddie Jenkins, and Gregory Richards (Doc. Nos. 34-39; 43-44; 50-51). Plaintiffs filed a consolidated response in opposition to the motion (Doc. No. 45, with exhibits), and have also filed deposition transcripts (Volume I and II) of Ted Maines, and Karen Ings (Doc. Nos. 46-49). The Court has reviewed the record, the briefs, and the applicable law. It is respectfully recommended that the motion be DENIED.
FACTUAL BACKGROUND The parties’ papers forcefully present a myriad of disputed issues of fact. For present purposes, it appears that the parties agree on the following matters,1 although the inferences to be drawn from these agreed-to events are disputed. Maines was employed by Federal Express for 21 years, most recently as a Senior Manager in the Orlando Customer Care Facility. Maines reported to Managing Director Karen Christian, who in turn reported to Vice-President of Worldwide Revenue Operations, Diane Mattman. By all accounts, prior to the incidents described below, Maines was considered to be an outstanding employee. In March of 2000, Christian and Mattman conferred a “FedEx Superstar” rating on Maines, signifying a rating in the top 1% of salaried employees in his division.
1The Court has distilled these facts from each of the parties’ “statement of undisputed material facts,” to the extent there was general agreement. Where the parties agreed to what occurred, but drew different conclusions from an event, the Court reads the facts, as required at this stage, in the light most favorable to Plaintiffs. The parties have, to a substantial degree, mistakenly equated “undisputed material facts” with any contention that finds some support in the record.
-2-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 3 of 15
In December 2000, two additional Customer Account Services manager positions were approved for the Orlando facility.2 These positions would report directly to Maines. Maines and a subordinate manager (Smith) served as the members of the interview panel. The applicants included several existing FedEx managers, as well as Maines’ secretary, Guadalupe Miller (an Hispanic), and Annette Reece (an African American). The parties sharply dispute whether Ms. Miller met the minimum qualifications for the new position.3 Ms. Reece’s qualifications, however, are apparently not in dispute.
After completing the interviews, Maines and Smith reviewed their notes and agreed that the top two candidates were Reece and Miller. In accordance with company policy which states that Personnel must audit the qualifications of selected candidates before the job offer is made, Maines hand-delivered the interview packages and application materials for all of the candidates to Senior Personnel Representative, Eddie Jenkins. Jenkins reviewed the selection matrix and authorized the selection of Reece and Miller. On February 2, 2001, Maines then extended offer letters to the two successful candidates.
Mattman learned of the selections and that Lauren Ruston, one of her own managers who applied for the job, was not selected and emailed Christian on February 5, 2001, that she was “concerned” about Maines’ hiring selections and stated “unless she is exceptional, i doubt i would have approved hiring an admin. into a mgr slot.” Mattman decided to nullify the selection process.
2There is some dispute as to whether FedEx intended to fill two positions or just one. For present purposes, it is undisputed that Maines was directed by his superior to hire for two positions.
3For example, as indicated in the papers, the position required a bachelors degree “or equivalent.” It is undisputed that Miller attended Fordham University but did not receive a degree.
-3-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 4 of 15
Christian spoke with Maines regarding Mattman’s unhappiness with the hire, and Mattman’s direction to rescind both promotions.
On February 7, 2001, Maines called Greg Richards, Senior Counsel of Defendant’s legal department, and objected to what he believed to be discriminatory employment practices against both Reece and Miller, and in favor of Caucasian applicant, Lauren Ruston. Richards relayed the discrimination complaint to Mattman later that day.
The next day, February 8, 2001, Mattman formally nullified the selection of Reece and Miller, summarily removed and demoted Christian from her position as Maines’ Managing Director, appointing Mr. Carmon Lannom in her stead, and directed that Ted Maines and his organization be “moved” from Customer Account Services to Strategic Planning and Alliances. That same day, Ruston filed an internal complaint against Maines regarding her non-selection.
On February 16, 2001, Maines received a phone call from Lannom advising him that Lannom was issuing a warning letter, and Maines had the choice of either accepting the warning letter, or a five-level demotion to a non-management position (at a pay cut of approximately $50,000). The letter addressed Maines’ “lack of judgment and leadership failure” in the hiring decision and noted that “there were at least four candidates who were existing FedEx managers who were not chosen, one of which was an internal WRO manager with excellent credentials.”4 The letter, which stated that it was active for 12 months during which he would not be allowed to submit a Job Change Application, warned that a repeat of any other leadership or behavioral problem may result in more severe discipline up to and including termination. Maines testified in deposition that he was told by Lannom
4In deposition, Mattman testified that Lauren Ruston was the referenced “internal WRO manager with excellent credentials.”
-4-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 5 of 15
that “Diane [Mattman] wants you to know that the next mistake you make you will be terminated.” (Maines Deposition, at 194-95).
Maines sent Lannom an email on February 20, 2001, in which he indicated that he had done nothing wrong, and therefore declined to accept either the warning letter or the demotion. Lannom issued the warning letter on February 21, 2001.
The parties dispute what happened next. Maines asserts that FedEx began a pattern of immediate and harmful retaliation, which included monitoring his phone calls and emails, curtailing his access to email so that he could not communicate with his subordinates in the field, monitoring his subordinate manager’s computers and telephone, and other acts designed to set him up for a “mistake” that would be grounds for termination. Maines asserts that he filed an internal complaint of retaliation, which the company routed directly to Mattman, the alleged perpetrator of the retaliation.
FedEx disputes any retaliatory conduct and asserts that Maines resigned from his position on April 9, 2001, after refusing to accept a severance package offer requested by Maines. Maines asserts that on April 9, 2001, he informed FedEx that he was constructively discharged.
The customer service manager position was filled in April 2001 by Lauren Ruston. Apparently, she did not stay in the position very long. After Ted Maines left, Annette Reece, who had not filed an internal complaint of discrimination, was promoted. Miller filed an EEOC charge of discrimination (Doc. No. 35, Exhibit 9), and the EEOC issued a letter of determination finding reasonable cause to believe that violations occurred (Doc. No. 35, Exhibit 10).
SUMMARY JUDGMENT STANDARD Under Federal Rule of Civil Procedure 56(c), a party is entitled to judgment as a matter of law when the party can show that there is no genuine issue as to any material fact. FED. R. CIV. PRO.
-5-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 6 of 15
56(c). The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of proving that no genuine issue of material fact exists. Celotex, 477 U.S. at 323. In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255.
STANDARDS OF LAW Plaintiffs EEOC and Maines assert Title VII retaliation claims, and Maines asserts additional claims under the Florida Civil Rights Act of 1992 (Fla. Stat. § 760.01) and Florida’s Private Sector Whistleblower Act (Fla. Stat. § 448.101). The Florida Civil Rights Act (“FCRA”) is patterned after Title VII, and Florida courts have construed the FCRA in conformity with decisions construing Title VII. Harper v. Blockbuster Entertainment Corp., 139 F. 3d 1385, 1387 (11th Cir. 1998). Similarly, Florida courts analyze retaliation claims under Florida’s Private Sector Whistleblower Act using the same framework used for Title VII retaliation claims. Sierminski v. Transouth Fin. Corp., 216 F. 3d 945, 950 (11th Cir. 2000). Thus, all four claims are subject to the same burden shifting analytical framework. To establish a prima facie case of retaliation under Title VII, a plaintiff must prove the following elements: (1) he participated in an activity protected by Title VII; (2) he suffered an adverse employment action; and (3) there is a causal connection between the participation in the protected activity and the adverse employment decision. Shannon v. BellSouth Telecommunications, Inc., 292
-6-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 7 of 15
F.3d 712, 715 (11th Cir. 2002) (citing Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000)); Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir. 2001) (citing Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000)). Once a plaintiff makes out a prima facie case of retaliation, the burden shifts to the defendant to produce legitimate reasons for the adverse employment action. See Shannon, 292 F.3d at 715. If the defendant produces legitimate reasons for the action, the plaintiff must show that the reasons given were pretextual. Id.
Statutorily protected expression may include internal complaints of discrimination to superiors as well as complaints lodged with the EEOC. See Shannon, 292 F.3d at 716 n.2 (statutorily protected activity included plaintiff’s voicing of complaints of discrimination to supervisors); Pipkins, 267 F.3d at 1201; see also Rollins v. Fla. Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (Title VII protects not just individuals who have filed formal complaints, but also those who informally voice complaints to their superiors.)
Here, Defendant argues that Plaintiffs have failed to establish a prima facie case of discrimination, and, alternatively, have failed to establish pretext. The Court addresses each contention below.
Statutorily Protected Expression The parties agree that in order to establish prong one of the prima facie case for retaliation, Plaintiffs must establish that Maines had a good faith, reasonable belief, both objectively and subjectively, that FedEx was engaged in unlawful employment practices. See Little v. United Technologies, 103 F. 3d 956, 960 (11th Cir. 1997). As shown above, on February 7, 2001, Maines communicated a complaint to FedEx’s legal department regarding what he believed to be discrimination against two minority candidates, in favor of a Caucasian candidate. FedEx argues that
-7-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 8 of 15
Maines could not have had a subjective or objective belief that the activity constituted discrimination in that no experienced manager could reasonably believe that an individual who did not meet minimum qualifications for the position was discriminated against. This argument is unpersuasive for several reasons.
First, Maines complained about discrimination against both Miller and Reece. There is no evidence that Reece did not meet minimum qualifications for the position. Moreover, there is no evidence that at the time of the complaint it was established that Miller did not meet minimum qualifications, and Maines knew it. In fact, the issue of Miller’s qualifications is very much in dispute. Plaintiffs point out that Miller’s application indicated that she met the minimum qualifications and the selection of Miller was approved by Eddie Jenkins, who was tasked with implementing FedEx policy of auditing the qualifications of candidates prior to job offers being made. Defendant argues that “the lack of an objective, good faith belief of discrimination is confirmed by the fact that Annette Reece . . . was [eventually] promoted into the CAS manager position a few months after the initial nullification.” This act, of course, took place well after Maines’ complaint. If ex post facto reasoning is allowed, Plaintiffs could well argue that Maines’ good faith belief that discrimination occurred was confirmed by the EEOC’s finding of cause, with respect to Miller’s EEOC complaint of discrimination.
On this record, viewed in Plaintiffs’ favor, a reasonable jury could well find that Maines had a good faith, reasonable belief, both objectively and subjectively, that FedEx was engaged in unlawful employment practices.
-8-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 9 of 15
Adverse Employment Action
An adverse employment action has been defined as a “serious and material change in the
terms, conditions, or privileges of employment . . . as viewed by a reasonable person in the
circumstances.” Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1239 (11th Cir. 2001). Not
“every unkind act” is sufficiently adverse. Shotz v. City of Plantation, Florida, 344 F. 3d 1161, 1181
(11th Cir. 2003) (internal citation omitted). The sufficiency is analyzed on a case-by-case basis, using
both a subjective and an objective standard. Id., citing Gupta v. Fla. Bd. of Regents, 212 F.3d 571,
587 (11th Cir.2000).
In Stavropoulos v. Firestone, 361 F.3d 610, 616-17 (11th Cir. 2004), the Eleventh Circuit
recently reviewed these standards and reconciled precedent:
To be considered an adverse employment action for purposes of Title VII’s anti-retaliation provision, the action must either be an ultimate employment decision or else must “meet some threshold level of substantiality.” [citing Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d 1095, 1118 (11th Cir. 2001)]. Ultimate employment decisions include decisions such as termination, failure to hire, or demotion. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998). The conduct Stavropoulos complains of was not an ultimate employment action, because she did not lose her job or suffer a lessening of pay, position, or benefits. Thus, we must ask whether it rises to the level of substantiality. In Wideman, 141 F.3d at 1455-56, we concluded that the plaintiff had crossed the threshold of substantiality where she established that her employer had improperly listed her as a no-show on a day she was scheduled to have off, gave her written reprimands which resulted in a one-day suspension, solicited comments on her performance from only those employees with negative things to say about her, failed to schedule her for work, threatened to shoot her in the head, and delayed authorizing medical treatment for an allergic reaction she was having. Id. at 1455-56 (holding that the totality of these acts meet the threshold of substantiality, but declining to decide whether anything less than the totality would meet the threshold). In Gupta v. Fla. Bd. of Regents, 212 F.3d 571 (11th Cir. 2000), we characterized the threshold as requiring the employment action to be “‘objectively serious and tangible enough’ to alter [the employee’s] ‘compensation, terms, conditions, or privileges of employment ...,’” and held that scheduling the employee to teach on three different campuses in one term did not meet the threshold because she never actually had to follow this schedule, denying
-9-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 10 of 15
her the opportunity to teach a particular class did not suffice because she chose not to teach at all that term, and delaying the return of the employee’s visa application was not serious enough because the university returned it to her in time for her to file it with the Immigration and Naturalization Service. Id. at 588 (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3rd Cir. 1997)). Our reason for rejecting these three acts as insubstantial was that “[a]n action which, it turns out, had no effect on an employee is not an ‘adverse’ action.” Id. at 588. Applying this standard in Bass, 256 F.3d at 1118, we decided there was an adverse employment action when, comparing the plaintiff to other employees of the same rank, the employer forced plaintiff to perform more menial tasks under less senior personnel; denied the plaintiff opportunities to earn several types of extra pay available to his co-workers; and forced plaintiff to take tests in order to maintain his paramedic pay, while not requiring his co-workers to take the tests. We rejected, however, the employer’s ordering plaintiff not to record certain tasks in his work log and ordering him to destroy certain materials he had created as insubstantial because they “in no way punished or affected Bass’ employment status.” Id.
Thus, Plaintiffs must show that FedEx’s employment actions were objectively serious and
tangible enough to punish or affect Maines’ employment status. Applying the objective case-by-case
standards, Plaintiffs’ claims survive summary judgment.
There is a genuine issue of material fact on the ultimate question of whether Maines resigned
(as argued by FedEx) or was constructively discharged (as urged by Maines and EEOC). FedEx
contends, however, that even if the Court were to credit all of the reasons Maines has set forth as
constituting the constructive discharge, the actions are not legally sufficient to constitute an adverse
employment action. The Court disagrees.
Maines has set forth several actions he believes constitute adverse employment action: 1) the
ultimatum between accepting a serious demotion and pay cut or a warning letter, coupled with the
threat of immediate termination upon the next mistake; 2) having his email and telephone
communications monitored; 3) reduced email capacity so that he could not communicate with his
team, thus setting him up for a mistake which would lead to immediate termination; 4) various threats
-10-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 11 of 15
communicated by co-workers regarding being “watched” and that Mattman was angry at him and could do whatever she wanted; 5) being unfairly criticized by a new supervisor; and 6) various acts constituting, in Maines’ view, a total lack of respect. Maines contends that these acts justify his conclusion that he was constructively discharged and that constructive discharge is, itself, an adverse employment action. Alternatively, Maines argues that the letter alone constituted adverse employment action under the “imminent discharge” theory.
The United States Supreme Court recently confirmed that Title VII encompasses employer liability for constructive discharge. Pennsylvania State Police v. Suders, ___U.S.___, 124 S. Ct. 2342 (2004). In order for Maines to state a case for constructive discharge, he must “demonstrate that working conditions were ‘so intolerable that a reasonable person in [his] position would have been compelled to resign.” Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir. 1997); see also Pennsylvania State Police, 124 S. Ct. at 2346 (a plaintiff must show that the abusive working environment became so intolerable that resignation qualified as a fitting response).
In Downey v. Southern Natural Gas Co., 649 F. 2d 302 (5th Cir. 1981),5 the 62 year old demoted plaintiff was told by his supervisor that he might be discharged because the company did not want to keep him around until the mandatory retirement age, and he would lose his stock benefits if the company discharged him. Rather than risk the loss of the benefits, Downey requested (and received) early retirement, and then promptly filed a charge of age discrimination. The Fifth Circuit reversed the district court’s granting of summary judgment finding no constructive discharge, reasoning:
5The Eleventh Circuit has adopted the decisions of the Fifth Circuit, rendered prior to October 1, 1981, as binding precedent. Bonner v. City of Prichard, 661 F. 2d 1206 (11th Cir. 1981). Downey was decided on June 30, 1981.
-11-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 12 of 15
Essentially, the test is whether a reasonable person in the employee’s position would have felt compelled to resign. Downey asserts that his superior specifically advised him that he might be discharged, with a consequent loss of benefits. We regard that testimony as sufficient to create a contested issue of material fact regarding constructive discharge. A reasonable person might well feel compelled to resign in the face of such a statement. 649. F2d at 305. Here, Maines testified in deposition that his supervisor told him in no uncertain terms that the “next mistake you make you will be terminated.” (Maines Deposition, pp. 194-95). This, coupled with evidence from Maines and his co-workers that a) Maines was subject to immediate and unusual scrutiny of both email and telephone communications, b) was given an overly “harsh” and allegedly inaccurate disciplinary letter, and c) was being set up by a new supervisor hand-picked by Mattman, is likewise sufficient to present a contested issue of material fact regarding constructive discharge. The second prong of the prima facie case is established. Causation and Pretext To establish the third prong of the prima facie case, Plaintiff must point to evidence sufficient to infer causation. “Close temporal proximity between the protected activity and the adverse action may be sufficient to show that the two were not wholly unrelated.” Shannon v. BellSouth Telecommunications, Inc., 292 F.3d 712, 716-717 (11th Cir. 2002) (citing Bass v. Board of County Commissioners, 256 F.3d 1095, 1119 (11th Cir. 2001)). As shown above, the complaint of discrimination was followed by immediate reassignment, and the ultimatum and warning letter were issued within days. Defendant does not dispute the temporal proximity. Rather, in arguing that Plaintiff Maines has failed to establish the third prong of his prima facie case, Defendant does no more than reiterate its asserted legitimate, non-discriminatory reason for the adverse employment action – namely, that Maines was disciplined not for complaining about discrimination, but for
-12-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 13 of 15
“misrepresent[ing] his secretary’s qualifications in an effort to get her promoted.” (Doc. No. 33 at 21). The record indicates that this is a disputed issue, incapable of resolution at the summary judgment stage.
Likewise, Plaintiffs’ assertion of pretext is a genuine issue of material fact that must be resolved by a jury. As FedEx has met its burden of articulating a legitimate non-discriminatory reason for the adverse employment action, the burden shifts back to Plaintiff to “prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for [retaliation].” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Plaintiff may establish pretext by undermining the credibility of Defendant’s proffered explanations. See Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). It is incumbent on a plaintiff to come forward with evidence demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence.” Id., Smith v. Alabama, 252 F.Supp.2d 1317, 1335 (M.D. Ala. 2003), affirmed, __ F. 3d __ (11th Cir. April 2004). Plaintiffs have met this burden here.
FedEx asserts that Maines intentionally misrepresented his secretary’s qualifications in order to get her promoted and it is that act that warranted the resulting discipline and not the complaint Maines made to the legal department regarding perceived illegal discrimination. It is, however, undisputed that Maines’ employment record was without blemish until the ill-fated promotion of Reece and Miller, and yet FedEx’s response to a first offense by a stellar, long term employee included an ultimatum choice of a five level demotion out of management and a $50,000 pay cut – a punishment that was considered by his long-time supervisor as well as other co-workers to be overly
-13-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 14 of 15
harsh. While the Court does not sit as a super-personnel board determining the justness or not of a particular punishment, the severity of the offered punishment could well be seen as so out of proportion to the asserted wrong (an attempt to promote an unqualified person) as to be deemed implausible that this was the real or only wrong being punished. Moreover, Plaintiff cites to the conflicting deposition testimony of Mattman and Lannom which appears to indicate that the discipline was imposed even though neither Mattman nor Lannom conducted an investigation of the matter. See Doc. No. 45 at 29 and cited excerpts. Most importantly, Plaintiff has presented evidence that disputes the factual conclusions upon which FedEx justified its disciplinary actions toward Maines: namely, that Maines’ actions were violative of existing written policies. Plaintiff’s evidence, interpreted in his favor, indicates that his actions were not violative of FedEx’s written policies and were undertaken with the knowledge and approval of his supervisors. All of this, coupled with Mattman’s deposition testimony that she had been accused of racial discrimination at FedEx before this incident,6 can legitimately give rise to an inference that it was the complaint to the legal department and not a fraudulent promotion that motivated Mattman. There is enough here to present a genuine issue for trial.
CONCLUSION Because the record contains genuine issues of disputed material fact, summary judgment is not appropriate. It is respectfully recommended that the motion be DENIED.
6Mattman testified to “two or three” separate claims of racial discrimination filed against her internally with FedEx, including a 1998 “class allegation” brought by 15 FedEx employees. (Mattman deposition at 263-68).
-14-

Case 6:02-cv-01112-JA-DAB Document 68 Filed 07/30/2004 Page 15 of 15
Failure to file written objections to the proposed findings and recommendations contained in this report within ten (10) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
Recommended in Orlando, Florida this 30th day of July, 2004.
David A. Baker
DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE Copies furnished to: Presiding District Judge Counsel of Record Courtroom Deputy
-15-

 </s> Case 6:02-cv-01112-JA-DAB Document 83 Filed 10/13/2004 Page 1 of 7

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

TED MAINES,

Intervenor-Plaintiff,

-vs-

Case No. 6:02-cv-1112-0rl-28DAB

FEDERAL EXPRESS CORPORATION, Defendant.

ORDER
In this action under Title VII of the Civil Rights Act of 1964, as amended, the Florida Civil Rights Act, and Florida's Private Sector Whistleblower Act, the Equal Employment Opportunity Commission ("EEOC") and Intervenor Ted Maines ("Mr. Maines") have brought retaliation claims against Defendant Federal Express ("Fed Ex"). Plaintiffs contend that FedEx retaliated against Mr. Maines by disciplining him and constructively discharging him after he complained about what he reasonably believed was an unlawful employment practice at Fed Ex.
This cause is before the Court on Defendant's Motion for Summary Judgment (Doc. 33) and Plaintiffs' Response in Opposition thereto (Doc. 45). The assigned United States Magistrate Judge has submitted a Report and Recommendation (Doc. 68) recommending that the motion be denied. FedEx has filed Objections to the Report (Doc. 69), and Plaintiffs have filed a Response to those Objections (Doc. 71). The Court has reviewed the record

Case 6:02-cv-01112-JA-DAB Document 83 Filed 10/13/2004 Page 2 of 7
and, as required by 28 U.S.C. § 636(b)(1), has made U a de novo determination as to those portions of the report ... to which objection is made." Having done so, the Court agrees with the magistrate judge's recommendation that Fed Ex's motion for summary judgment be denied.
The Report concludes that Plaintiffs have made a prima facie showing of retaliation because they have established (1) that Mr. Maines engaged in activity protected by Title VII when he complained to FedEx's legal department about what he believed was discriminatory treatment of two minority candidates for management positions; (2) that he suffered an adverse employment action when, among other things, he was "offered the choice" of a demotion or a warning letter that included the threat of immediate termination after one more "mistake," his e-mail and telephone calis were monitored, his e-mail capacity was reduced, and he ultimately resigned under circumstances that a reasonable jury could find to have amounted to constructive discharge; and (3) that there was a causal connection between the protected activity and the adverse action because of their close temporal proximity. The Report further concludes that, once FedEx came forward with its proffered legitimate nondiscriminatory reason for its treatment of Mr. Maines - that he had acted deficiently as a manager in selecting his secretary for a managerial position - Mr. Maines succeeded in raising a genuine issue of material fact as to pretext to survive summary judgment.
As Plaintiffs correctly note in their Consolidated Response to FedEx's Objections, for the most part "Defendant's objections are not presented in the context of the Magistrate Judge's findings regarding the prima facie elements of this Title VII retaliation case, nor his findings with respect to evidence of pretext." (Doc. 71 at 1). Instead, FedEx takes issue
-2-

Case 6:02-cv-01112-JA-DAB Document 83 Filed 10/13/2004 Page 3 of 7
with several statements in the Factual Background section of the Report and argues that they render the Report erroneous. Specifically, FedEx contends "that the Magistrate mistakenly construed crucial undisputed facts as disputed throughout the course of his Report, which resulted in an erroneous recommendation that Fed Ex's summary judgment motion be denied." (Doc. 69 at 1). FedEx is incorrect.
FedEx disputes five specific statements in the Report: (1) "The parties sharply dispute whether Ms. Miller met the minimum specifications for the position" (Report at 3); (2) "Jenkins reviewed the selection matrix and authorized the selection of Reece and Miller" (Report at 3); (3) "Mattman decided to nullify the selection process" (Report at 3); (4) "The next day, February 8, 2001, Mattman formally nullified the selection of Reece and Miller, summarily removed and demoted Christian from her position as Maines' Managing Director, appointing Carmon Lannom in her stead ...." (Report at 4); and (5) The offer of a nonmanagement position to Maines would have resulted in "a pay cut of approximately $50,000" (Report at 4).
Although FedEx has identified these five statements as erroneous, it argues almost exclusively about the first statement, regarding whether the parties dispute whether Ms. Miller, Mr. Maines's secretary, was qualified for the position into which Mr. Maines promoted her. FedEx asserts that "this erroneous conclusion ... infects [the] entire Report" and that therefore the Report should be rejected and Fed Ex's summary judgment motion granted. (See Doc. 69 at 2).
Fed Ex's assertion on this point is incorrect for several reasons. First, the issue of whether Ms. Miller was or was not qualified for the position, while not totally irrelevant to the
-3-

Case 6:02-cv-01112-JA-DAB Document 83 Filed 10/13/2004 Page 4 of 7
case, is not dispositive of the issue of whether Mr. Maines engaged in statutorily protected activity when he complained about her promotion being revoked. What is determinative is whether Mr. Maines reasonably thought she was qualified at the time he selected her so as to render his belief genuine regarding whether discrimination had occurred at the time he complained to the legal department. The magistrate judge correctly explained that there is no evidence that Mr. Maines did not believe during the relevant time period that Ms. Miller was qualified. The fact that Mr. Maines may now realize that some of the calculations in the paperwork were done incorrectly does not affect whether he had a good-faith belief at the pertinent time. Moreover, at least one other former FedEx employee stated in a deposition that she believed Ms. Miller was qualified for the position, (Dep. of Karen Ings, Doc. 49 at 49), and Mr. Maines still maintains that Ms. Miller would have served ably in the management position in any event (Vol. II of Dep. of Ted Maines, Doc. 48 at 284-87).
In sum, while it may have perhaps been more accurate to say that there is a difference of opinion among the witnesses as to whether Ms. Miller was qualified for the promotion, the statement in the Report that "[t]he parties sharply dispute whether Ms. Miller met the minimum qualifications for the position" does not "infect" the Report with error. Opinions vary as to her qualifications, but what is important - and what was correctly concluded by the magistrate judge - is that there is evidence that Mr. Maines believed Ms. Miller was qualified at the pertinent time. This alleged error does not invalidate the Report. And, as noted in the Report, Ms. Miller's lack of qualification would not have anything to do with whether Ms. Reece - whose promotion was also revoked - was qualified.
-4-

Case 6:02-cv-01112-JA-DAB Document 83 Filed 10/13/2004 Page 5 of 7
The second factual statement challenged by FedEx is that "Jenkins reviewed the selection matrix and authorized the selection of Reece and Miller." This statement refers to Eddie Jenkins, the Human Resources representative who was involved in the selection process at issue. FedEx argues in its Objections that Jenkins did not approve the selection of Ms. Reece or Ms. Miller but instead only approved the selection "process." However, the record supports the statement contained in the Report; Jenkins acknowledged in his deposition that he told "Mr. Maines that they're approved, that it's okay to extend offers to Guadalupe Miller and Annette Reece." (Dep. of Eddie Jenkins, Doc. 38 at 80).
The third statement about which FedEx complains is that "Mattman decided to nullify the selection process" (Doc. 69 at 3) (quoting Report at 3). FedEx contends that "[i]t is undisputed that both Mattman and Karen Christian decided to nUllify Maines' promotions." (Doc. 69 at 3). Whatever difference this makes, there are numerous references in the record to Mattman being the one who nullified the promotions. (See. e.g., Dep. of Eddie Jenkins, Doc. 38 at 103, 106, 107, 154, & 297; Ex. 9 to Dep. of Eddie Jenkins (Fed Ex internal memorandum dated 03/21/01 from Catherine Banks to Eddie Jenkins stating that "the overall selection process was 'nullified' by Vice President Diane Mattman"».
The fourth statement challenged by FedEx is that on February 8, 2001, Mattman "summarily removed and demoted Christian from her position as Maines' Managing Director, appointing Carmon Lannom in her stead." (Doc. 69 at 3) (quoting Report at 4). FedEx complains that Christian was not demoted on February 8 but instead moved to a different organization on May 23,2001. As with the third statement discussed above, it is not clear what different this statement makes to the summary judgment motion, but in any event
-5-

Case 6:02-cv-01112-JA-DAB Document 83 Filed 10/13/2004 Page 6 of 7
Christian did testify in her deposition that on February 8 Mattman "removed the whole operation from" Christian. (Dep. of Karen Christian, Doc. 36 at 65-66).
The final Factual Background statement about which FedEx complains is that the non-management position which Maines was offered after the subject incident would have resulted in "a pay cut of approximately $50,000." (Doc. 69 at 3) (quoting Report at 4). Citing the deposition testimony of Lex Lannom, FedEx contends that the pay reduction would only have been 15-18% and not $50,000. However, Mr. Maines - a Fed Ex employee for over twenty years - plainly testified that his pay cut would have been $50,000. (Vol. II of Dep. of Ted Maines, Doc. 48 at 347). Hence, although there may be conflicts in the evidence as to how much the pay cut would have been, at the summary judgment stage the evidence is to be construed in the non movant's favor. Thus, the Report's statement in this regard is not erroneous.
Additionally, several other times in its objections, FedEx mischaracterizes the magistrate judge's Report. For example, FedEx states that "[t]he Magistrate seems to suggest that if Maines made a mistake rather than intentionally promoting his unqualified secretary, then Fed Ex is prohibited from disciplining him." (Doc. 69 at 8). However, the magistrate judge suggests no such thing; instead, the Report correctly notes that there is no evidence that Mr. Maines knew at the time he made his complaint to the legal department that Ms. Miller did not in fact meet the minimum qualifications for the position, on the way to concluding that a reasonable jury could find that Mr. Maines had a good faith belief that discrimination had occurred. (See Report at 8). The Report was not even addressing Fed Ex's right to discipline Mr. Maines, much less saying that it had no such right. FedEx's
-6-

Case 6:02-cv-01112-JA-DAB Document 83 Filed 10/13/2004 Page 7 of 7

similar assertion later in its objections "that the Magistrate erred by suggesting that FedEx may not discipline Maines for making a mistake" (Doc. 69 at 9) is similarly flawed. Nowhere does the Report state or suggest that FedEx may not discipline its employees. Additionally, although FedEx criticizes the magistrate judge's characterization of the discipline as an "ultimatum choice," the Court is quite confidentthat the oxymoronic nature of this term was not lost on the magistrate judge and indeed was the point of the statement.
Finally, there is absolutely no merit to Fed Ex's objection regarding the Report's reliance on "close temporal proximity" to establish the causal connection element of Plaintiffs' prima facie case. (See Objections, Doc. 69 at 11). The objection conflates the issue of the prima facie showing with the issue of whether a legitimate nondiscriminatory reason has been articulated. As noted in the Report, it is well-established in this circuit that close temporal proximity is enough to satisfy the causation element of a plaintiff's prima facie case.
Therefore, it is ORDERED as follows: 1. The Report and Recommendation (Doc. 68) is ADOPTED and CONFIRMED and made a part of this Order. 2. Defendant's Motion for Summary Judgment (Doc. 33) is DEN ~-:----. DONE and ORDERED in Orlando, Flori

Copies furnished to: Counsel of Record Unrepresented Party United States Magistrate Judge David A. Baker
-7-

Nil United States District Judge

 </s> Case 6:02-cv-01112-JA-DAB Document 116 Filed 12/16/2004 Page 1 of 4

F' LED
IN OPEN COURT

1·······~~~·····!··~···.?~.. 19._

UNITED STATES DISTRICT COURT J

CLEr~i<:

MIDDLE DISTRICT OF FLORIDA

u. S. DISTRICT COURT

ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

TED MAINES,

Intervenor-Plaintiff,

-vs-

Case No. 6:02-cv-1112-0rl-28DAB

FEDERAL EXPRESS CORPORATION,

Defendant.

VERDICT 1. Do you find from a preponderance of the evidence that Plaintiff Ted Maines engaged in statutorily protected activity, that is, that he opposed a practice by Defendant Federal Express Corporation that he believed in good faith constituted discrimination prohibited by law?
Answer Yes or No

Case 6:02-cv-01112-JA-DAB Document 116 Filed 12/16/2004 Page 2 of 4

Note:

If you answered No to Question 1, you should not answer any other questions on this verdict form but should instead stop and have your foreperson sign and date the verdict form. If you answered Yes to Question 1, please proceed to Question 2.

2. Do you find from a preponderance of the evidence that Plaintiff Ted

Maines was constructively discharged by Defendant?

Answer Yes or No

Yes

Note:

If you answered Yes to Question 2, please proceed to Question 3. If you answered No to Question 2, please skip Question 3 and proceed to Question 4.

3. Do you find from a preponderance of the evidence that the

constructive discharge of Ted Maines was causally related to Ted Maines's

statutorily protected activity? Answer Yes or No

_ _~~e.:......$",,--_ _ _ __

4. Do you find from a preponderance of the evidence that Plaintiff Ted

Maines was subjected to an adverse employment action other than

constructive discharge? Answer Yes or No

l{ es
--~~------

-2-

Case 6:02-cv-01112-JA-DAB Document 116 Filed 12/16/2004 Page 3 of 4

Note:

If you answered Yes to Question 4, please proceed to Question 5. If you answered No to Question 4 and you answered No to either Question 2 or Question 3, please skip the remaining questions and proceed to the end of the verdict form and have your foreperson sign and date it. If you answered No to Question 4 and answered Yes to Question 3, please skip Question 5 and proceed to Question 6.

5. Do you find from a preponderance of the evidence that the adverse employment action suffered by Ted Maines was causally related to Ted Maines's statutorily protected activity?
Answer Yes or No ____y~e~s~_________

Note:

If you answered Yes to either Question 3 or Question 5, please proceed to Question 6. Otherwise, skip Question 6 and have your foreperson sign and date the verdict form.

-3-

Case 6:02-cv-01112-JA-DAB Document 116 Filed 12/16/2004 Page 4 of 4

6. What amount of damages do you find should be awarded to Ted

Maines?

Lost wages and benefits Emotional pain and mental anguish

$ dOl) Q \ 0 . 3D
$ \) ~1 D J 000

SO SAY WE ALL.
DATED: I:;; -/lo - 0'-1

~·C:W Foreperson

-4-

 </s> Case 6:02-cv-01112-JA-DAB Document 121

Filed 12/22/2004 Page 1 of 2
F I LED
IN OPEN COURT

J_ _D_ EC_! _ 2 "2_00_ 4 19...__
CLERK . U. $. DISTRICT COURT
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

TED MAINES,

Intervenor-Plaintiff,

-vs-

Case No. 6:02-cv-1112-0rl-28DAB

FEDERAL EXPRESS CORPORATION,

Defendant.

VERDICT 1. Do you find from a preponderance of the evidence that a higher management official of the Defendant acted with malice or reckless indifference to Ted Maines's federally protected rights?

Answer

Yes

or

No

~es
--------

Case 6:02-cv-01112-JA-DAB Document 121 Filed 12/22/2004 Page 2 of 2

2. If your answer to Question 1 is Yes, do you find from a preponderance of the evidence that the Defendant itself had not acted in a good faith attempt to comp\y with the law by adopting policies and procedures designed to prohibit such discrimination in the workplace?
N Answer Yes or No - - -D- - - - -
3. If you answered Yes to both Question 1 and Question 2, what amount of punitive damages, if any, should be assessed against the Defendant?
$_------------

SO SAY WE ALL.
DATED: /if -c22-: -clool

~J~ Foreperson

-2-

 </s> Case 6:02-cv-01112-JA-DAB Document 133 Filed 02/10/2005 Page 1 of 8

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

TED MAINES,

Intervenor-Plaintiff,

-vs-

Case No. 6:02-cv-1112-0rl-28DAB

FEDERAL EXPRESS CORPORATION,

Defendant.

ORDER
This employment discrimination case was tried to a jury in December 2004. The jury found that Defendant Federal Express retaliated against Plaintiff Ted Maines by, inter alia, constructively discharging him after more than twenty years of employment. (Doc. 116). The jury awarded Mr. Maines $201,010.30 in lost wages and benefits, as well as $1.37 million to compensate him for emotional pain and mental anguish. (Doc. 116). However, the jury declined to award punitive damages. (Doc. 121).
This cause is currently before the Court on Defendant's Renewed Motion for Judgment as a Matter of Law or, in the Alternative, for New Trial or Amendment of Judgment

Case 6:02-cv-01112-JA-DAB Document 133 Filed 02/10/2005 Page 2 of 8
(Doc. 126). Defendant has filed a Memorandum (Doc. 127) in support of the motion, and Plaintiffs have filed a Joint Response (Doc. 132) in Opposition to the motion.1
In its motion. Defendant seeks (1) a judgment of no liability as a matter of law on the basis that Plaintiffs failed to prove retaliation; (2) alternatively. a new trial on the basis that the verdict is against the great weight of the evidence; and (3) alternatively. a reduction in the amount of damages awarded for lost wages and emotional distress on the basis that the awards are not supported by the evidence or within the realm of reasonableness under the circumstances of this case. As set forth below. Defendant's motion is denied except to the extent it seeks remittitu r of the amount of the compensatory damages for emotional pain and mental anguish.
I. Motion for Judgment as a Matter of Law Federal Rule of Civil Procedure 50 provides in relevant part that U[i]f ... a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue." Defendant argues that it is entitled to relief under this rule because Plaintiffs failed to establish their retaliation claim as a matter of law.
1Defendant has also filed a Notice of Scriveners Error (Doc. 128) with respect to this motion. and the Court has made note of the Defendant's corrections to its motion.
-2-

Case 6:02-cv-01112-JA-DAB Document 133 Filed 02/10/2005 Page 3 of 8
'''[J]udgment as a matter of law after the verdict may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment.'" Pulte Home Corp. v. Osmose Wood Preserving. Inc., 60 F.3d 734, 739 (11th Cir.1995) (quoting 5AJames W. Moore etal., Moore's Federal Practice1150.07[2] (2d ed. 1995)). In ruling on such a motion, the court "must draw all reasonable inferences in favor of the nonmoving party." Cleveland v. Home Shopping Network. Inc., 369 F.3d 1189,1192-93 (11th Cir.), reh'g and reh'g en banc denied, 116 Fed. Appx. 254 (2004). '''Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... [A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.''' Cleveland, 369 F.3d at 1193 (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000)). Where a case involves allegations of employment discrimination, factors to be considered in ruling on a motion for a judgment as a matter of law "include the 'strength of the plaintiffs prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case.''' Cleveland, 369 F.3d at 1193 (quoting Reeves, 530 U.S. at 149-50)).
The Court has considered these factors and concludes that Defendant's motion for judgment as a matter of law must be denied. Granting the motion would require the Court to second-guess the jury's credibility determinations, which the Court cannot do. Although if the Court were the factfinder it might have reached a different conclusion than did the jury, and although the constructive discharge issue is a close one, the Court is unable to hold as
-3-

Case 6:02-cv-01112-JA-DAB Document 133 Filed 02/10/2005 Page 4 of 8
a matter of law that Plaintiffs did not present evidence from which a reasonable jury could find in their favor as to liability.
II. Motion for New Trial Defendant also seeks a new trial under Federal Rule of Civil Procedure 59, arguing that the verdict is against the great weight of the evidence. However, as with the motion for a judgment of a matter of law, to grant this motion would require the Court to second-guess credibility determinations made by the jury, as factfinder, in this case. Thus, Defendant's argument that it is entitled to a new trial on the issue of liability on the basis that the verdict is against the great weight of the evidence is rejected.
III. Motion for Amendment of Judgment (Remittitur) Finally, Defendant contends that the jury's damage awards - $201,010.30 for lost wages and benefits and $1.37 million for emotional pain and mental anguish - are not supported by the evidence and are unreasonable. The Court disagrees with this argument as to the award of lost wages, but it agrees with Defendant that the award of $1.37 million for emotional pain and mental anguish cannot be sustained in this case. Thus, that amount will be reduced and Plaintiffs will be given the option of accepting the reduced amount or proceeding to a new trial on damages. '''[T]he standard of review for awards of compensatory damages for intangible, emotional harms is deferential to the fact finder because the harm is subjective and evaluating it depends considerably on the demeanor of the witnesses.'" Munoz v. Oceanside Resorts. Inc., 223 F.3d 1340, 1349 (quoting Ferrill v. Parker Group. Inc., 168
-4-

Case 6:02-cv-01112-JA-DAB Document 133 Filed 02/10/2005 Page 5 of 8
F.3d 468, 476 (11th Cir. 1999». The Eleventh Circuit has noted that it "will disturb such a jury verdict only 'where the verdict is so excessive as to shock the conscience of the court.'" Munoz,223 F.3d at 1349 (quoting Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1447 (11th Cir. 1985)).
As another district court has noted, "[t]he Eleventh Circuit has never precisely delineated the factors that a court should consider in determining whether the plaintiffs evidence of emotional distress is sufficient to support the jury's award of compensatory damages for emotional distress." Bernstein v. Sephora, 182 F. Supp. 2d 1214,1227 (S.D. Fla. 2002). The Bernstein court noted that the Fourth Circuit had compiled the following factors: "(1) whether the plaintiff had lost the esteem of h[is] peers; (2) whether the plaintiff suffered physical injury as a consequence ofh[is] emotional distress; (3) whetherthe plaintiff received psychological counseling or other medical treatment; (4) whether the plaintiff suffered a loss of income; (5) the degree of emotional distress; (6) the context of the events surrounding the emotional distress; (7) the evidence tending to corroborate the plaintiffs testimony; (8) the nexus between the challenged conduct and the emotional distress; and (9) any mitigating circumstances." Bernstein, 182 F. Supp. 2d at 1227 (citing Price v. City of Charlotte, 93 F.3d 1241, 1254 (4th Cir. 1996)). Another district court in ths circuit has listed the appropriate considerations as: (1) the size of the award; (2) the rational relationship between the award and the evidence adduced at trial; and (3) awards in similar cases." Copley v. BAX Global. Inc., 97 F. Supp. 2d 1164, 1172 (S.D. Fla. 2000).
Considering the evidence that was presented during the trial of this case, the award of $1.37 million for emotional pain and mental anguish rises to the level of shocking the
-5-

Case 6:02-cv-01112-JA-DAB Document 133 Filed 02/10/2005 Page 6 of 8
conscience of the Court. Although evidence was presented regarding emotional distress that Mr. Maines suffered, including medical testimony regarding Mr. Maines's depression and counseling, under the totality of the circumstances the award is excessive. Mr. Maines did not suffer any physical harm, and the testimony also established that other events in Mr. Maines's life contributed to his emotional distress.
Amounts of emotional distress awards in reported employment discrimination cases vary greatly from case to case, but the award in this case is out of line with the majority of those that have been sustained. See Bogle v. McClure, 332 F.3d 1347 (11th Cir.) (affirming trial court's reduction of emotional distress damages from $1 million to $500,000 per plaintiff where evidence of emotional distress damages consisted only of plaintiffs' testimony), reh'g and reh'g en banc denied, 77 Fed. Appx. 510 (11th Cir. 2003), and cert. dismissed, 540 U.S. 1158 (2004); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (11th Cir. 1999) (affirming trial court's reduction of emotional damages award from $450,000 to $300,000); Bernstein (reducing emotional distress damages from $150,000 to $75,000); Copley (reducing award of damages for emotional pain and mental anguish from $479,692 to $100,000); see also Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346 (3d Cir. 2001) (firJding no abuse of discretion in district court's reduction of emotional distress damage award from $1.15 million to $375,000; Spina v. Forest Preserve Dist. of Cook County, 207 F. Supp. 2d 764 (N.D. III. 2002) (finding jury's compensatory damages award of $3 million "monstrously excessive" and reducing it to $300,000, including $200,000 for emotional distress); Liberatore v. CVS N.Y., Inc., 160 F. Supp. 2d 114 (D.D.C. 2001) (granting defendant's motion for remittitur and
reducing emotional distress damages award from $1.1 million to $200,000). But ct. Griffin
-6-

Case 6:02-cv-01112-JA-DAB Document 133 Filed 02/10/2005 Page 7 of 8
v. City of Opa-Locka, 261 F.3d 1295 (11th Cir. 2001) (affirming district court's denial of motion for remittitur of awards of $500,000 for sexual harassment and $1.5 million for rape of city employee by city manager); Rowe v. Hussmann Corp., 381 F.3d 775 (8th Cir. 2004) (affirming district court's refusal to remit jury's emotional distress award of $500,000); Gagliardo v. Connaught Labs.! Inc., 311 F.3d 565 (3d Cir. 2002) (affirming district court's denial of motion for remittitur and thus allowing to stand award of $1.55 million for pain and suffering); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir. 2000) (affirming district court's decision not to reduce jury's award of $1 million for emotional distress damages). The award of $1.37 million for emotional pain and mental anguish is beyond what is reasonable. Therefore, this award is remitted to $350,000.
However, "no judgment for a remittitur may be entered without the plaintiffs consent because the Seventh Amendment prohibits the court from substituting its judgment for that of the jury's regarding any issue of fact: Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1329 (11th Cir. 1999) (citing Hetzel v. Prince William County, Va., 523 U.S. 208 (1998)). "If the plaintiff does not consent to the remittitur, the court has no alternative but to order a new triaL" Johansen, 170 F.3d at 1329. Thus, Plaintiffs will be given the option of accepting the reduced amount or proceeding to a new trial on damages.
IV. Conclusion In accordance with the foregoing, it is ORDERED and ADJUDGED as follows: 1. Defendant's Renewed Motion for Judgment as a Matter of Law or, in the Alternative, for New Trial or Amendment of Judgment (Doc. 126) is GRANTED in part and
-7-

Case 6:02-cv-01112-JA-DAB Document 133 Filed 02/10/2005 Page 8 of 8

DENIED in part. The motion is DENIED insofar as it seeks judgment as a matter of law on liability. The motion is also DENIED to the extent is seeks reduction in the damages awarded for lost wages and benefits. The motion is GRANTED only to the extent it seeks remittitur of the damages for emotional pain and mental anguish. The motion for new trial is DENIED, subject to Plaintiffs' acceptance of the Court's order of remittitur.
2. The jury's award for emotional pain and mental anguish is remitted from $1.37 million to $350,000. Plaintiffs shall file a notice of acceptance of remittitur on or before Friday, February 25, 2005 if they accept the Court's remittitur. If no such notice of acceptance is filed, the Court will order a new trial limited to the issue of damages for emotional pain and mental anguish.
3. The ore tenus Motion for Judgment as a Matter of Law (see Doc. 106) made during trial by Defendant Federal Express is DENIED as moot.
DONE and ORDERED in Orlando, Florida this I ()

Copies furnished to: Counsel of Record Unrepresented Party

(JOHN ANTOON II United States District Judge

-8-

 </s> Case 6:02-cv-01112-JA-DAB Document 145 Filed 05/05/2005 Page 1 of 8

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

TED MAINES,

Intervenor-Plaintiff,

-vs-

Case No. 6:02-cv-1112-0rl-28DAB

FEDERAL EXPRESS CORPORATION,

Defendant.

ORDER
This cause is before the Court on Plaintiffs' Joint Post-Trial Motion Regarding Front Pay and Injunctive Relief (Doc. 140), in response to which Defendant Federal Express Corporation ("FedEx") has filed a Memorandum in Opposition (Doc. 142). The Court heard argument and testimony regarding the motion on April 14, 2005.

I. Background This employment discrimination case was tried to a jury in December 2004. The jury returned a verdict finding that Plaintiff Ted Maines had engaged in statutorily protected activity by opposing an employment practice and that FedEx retaliated against him for engaging in that activity by, inter alia, constructively discharging him. (Verdict, Doc. 116). The jury determined damages in the amounts of $201 ,010.30 for lost wages and benefits

Case 6:02-cv-01112-JA-DAB Document 145 Filed 05/05/2005 Page 2 of 8
and $1.37 million for emotional pain and mental anguish. (kL.). The jury did not award any punitive damages, however, because it found that although "a higher management official of [FedEx] acted with malice or reckless indifference," FedEx "acted in a good faith attempt to comply with the law by adopting policies and procedures to prohibit such discrimination in the workplace." (Punitive Damages Verdict, Doc. 121).
After the verdicts, FedEx renewed its motion for judgment as a matter of law and alternatively moved for a new trial or amendment of judgment. (Doc. 126). The Court denied the motion except to the extent that it sought remittitur of the compensatory damages amount for emotional pain and mental anguish. (Order, Doc. 133). The compensatory damages award was remitted from $1.37 million to $350,000; Plaintiffs were given the option of accepting the remitted amount or proceeding to a new trial on damages. (kL.). Plaintiffs then moved for (Doc. 134), and were granted (Doc. 135), an extension of time within which to make their remittitur decision until after the front pay issue was decided. That issue is now before the Court, along with the issue of injunctive relief.
II. Discussion Title VII includes the following provision:
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... , or any other equitable relief as the court deems appropriate. 42 U.S.C. § 2000e-5(g)(1). Plaintiffs seek front pay and injunctive relief pursuant to this
-2-

Case 6:02-cv-01112-JA-DAB Document 145 Filed 05/05/2005 Page 3 of 8
section.
A. Front Pay
"In addition to back pay, prevailing Title VII plaintiffs are presumptively entitled to either reinstatement or front pay." Weaver v. Casa Gallardo. Inc., 922 F.2d 1515, 1528 (11 th Cir. 1991). Reinstatement is presumed to be "the appropriate remedy in a wrongful discharge case," but '''when extenuating circumstances warrant, a trial court may award a plaintiff front pay in lieu of reinstatement.'" EEOC v. W & 0, Inc., 213 F.3d 600, 619 (11th Cir. 2000) (quoting Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1338-39 (11th Cir. 1999)). If a district court awards front pay in lieu of reinstatement, it must "'carefully articulate' its reasons for" doing so. J..d,. (quoting Farley, 197 F.3d at 1339).
Plaintiffs contend that reinstatement is not feasible in this case because of animosity between the parties, and in their motion Plaintiffs state, "Counsel for Defendant and counsel for Plaintiff are in agreement that reinstatement is not appropriate as it would not constitute a fit within FedEx's current management structure." (Doc. 140 at 9 n.1). During argument on the motion, counsel for FedEx agreed that the parties had, early in the case, stipulated that front pay in lieu of reinstatement would be submitted to the court; however, counsel added that after the trial, discussions on the issue of reinstatement had been reopened between the parties. Fed Ex informed Mr. Maines that it had no available jobs to offer him in the Orlando metropolitan area, and Mr. Maines indicated that he was not willing to relocate. Hence, FedEx did not look into whether it had a job for him at any other location. In sum, although FedEx does not agree that reinstatement is impossible due to animosity,
-3-

Case 6:02-cv-01112-JA-DAB Document 145 Filed 05/05/2005 Page 4 of 8

· .-"

FedEx does not dispute that reinstatement is not really a viable option in this case, and the

Court agrees. However, FedEx argues that Mr. Maines has already been made whole by

the jury's remitted damages awards, that he has failed to mitigate his damages by seeking

comparable employment, and that front pay is not warranted here.

At the time of his separation from employment from FedEx in early 2001, Mr. Maines

was making an annual salary of slightly less than $100,000,1 but Plaintiffs base their front

pay claim on total annual compensation, including benefits, of $135,134. (See Pis.' Ex. 13

at 8). This $135,134 total consists of: 2004 annual base pay of $1 00,477; incentive pay of

$16,076; retirement plan contributions of $14,067; and insurance replacement costs of

$4,504. (Pis.' Ex. 13 at 8). However, the expert who prepared the front pay calculation

conceded at the hearing that as to the incentive pay of just over $16,000, she assumed that

Mr. Maines would earn that incentive pay year after year, even though she only had data

reflecting that Maines earned that much of a bonus in 2000 and not in any other year.

Before his constructive discharge, Mr. Maines had secured a new job as a medical

office administrator, earning $85,000 (a salary of $75,000 plus a $10,000 bonus), but with

no benefits. However, when that office did not grow as anticipated, that job was phased out

and Mr. Maines took his current job, working as an independent contractor for a real estate

developer earning $60,000 with no benefits. Based on the difference between this $60,000

salary and the $135,000 in total compensation that he would ostensibly be making at Fed Ex,

1Plaintiffs' exhibit regarding Mr. Maines's salary history at FedEx lists his 2000 salary as $94,879 but also states that his "ending salary was $7,233.00 per month base pay plus bonuses and fringe benefits." (Pis.' Ex. 13 at 3). Annualized, his final salary was $86,796 ($7,233 per month X 12 months).
-4-

Case 6:02-cv-01112-JA-DAB Document 145 Filed 05/05/2005 Page 5 of 8
Mr. Maines seeks front pay in the amount of approximately $75,000 per year. Although he is not expected to retire for eighteen years, he is requesting ten years offront pay, for a total front pay award of $785,963.
However, Plaintiffs paint an unduly bleak picture of the situation in which Mr. Maines found himself upon separation from his employment at Fed Ex. Although they characterize him as a nearly fifty-year-old worker (Mr. Maines testified that he will turn forty-seven next month) with only a high school degree and "Fed Ex-specific" job skills, another- and, in the Court's view, more accurate - way to assess his situation is as an articulate, successful manager with many marketable skills who was only forty-two years old at the time of his discharge more than four years ago. Mr. Maines was hired by FedEx in 1979 and had become a manager within three years and a senior manager only two more years after that. Mr. Maines testified that in the four years since his termination, he has submitted forty resumes, which works out to ten per year. He had applied for two jobs in March 2005 but none in April 2005, and he has spoken to, but not hired, a headhunter.
Considering the testimony and the arguments of counsel, the Court declines to award Mr. Maines any front pay. He has already been awarded back pay from the date of his termination to the date of trial- a nearly four-year period. Although Mr. Maines testified that he would like to obtain a comparable position to that that he held at FedEx and that he has made a modest effort to find one, he has had four years to work his way back up. As the Weaver court stated:
Back pay and front pay are not independent and severable items of damages. They are each part of the remedy the court is charged with fashioning, a remedy that, as a whole,
-5-

Case 6:02-cv-01112-JA-DAB Document 145 Filed 05/05/2005 Page 6 of 8
achieves the remedial purposes of the Act. A monetary award of front pay is calculated to terminate on the date a victim of a discrimination attains an opportunity to move to his "rightful place." Front pay, therefore, is appropriate only when the other damages awarded will not fully compensate the plaintiff for his injury. 922 F.2d at 1529 (footnotes omitted). Essentially, back pay and front pay are two sides of the same coin - compensation for lost earnings - divided temporally by the date of trial/judgment. Mr. Maines has already been awarded more than $200,000 in compensation for nearly four years of a salary differential.2 In light of the fact that Mr. Maines obtained a management position at FedEx within three years of hire and a senior management position within five years, and now has approximately twenty years of management experience, the nearly four years for which Mr. Maines has already been compensated is a sufficient length of time for Mr. Maines to have "attain[ed] an opportunity to move to his 'rightful place.'" .l.ct.,. In sum, the Court rejects Plaintiffs' assessment of Mr. Maines's job prospects and limited skill set, and finds that he should have been able to work his way back to comparable employment by now and has been made whole by the damages he has already been awarded. Thus, an award of front pay is not appropriate in this case.
B. Injunctive Relief Plaintiffs also seek the imposition of injunctive relief, including: (1) a permanent injunction barring FedEx from engaging in retaliatory employment practices; (2) a
21n addition, of course, Mr. Maines has been awarded $350,000 for pain and suffering, for a total of well over $500,000 in damages.
-6-

Case 6:02-cv-01112-JA-DAB Document 145 Filed 05/05/2005 Page 7 of 8
requirement that Fed Ex redistribute its anti-discrimination policy to all of its Maitland, Florida employees and to all management officials with supervisory authority overthose employees; (3) a requirement that FedEx implement a half-day training session (for its Maitland employees and management officials) annually for five years regarding Title VII's proscription against retaliation and Fed Ex's anti-retaliation policy; (4) a requirement that a notice regarding disposition of this lawsuit, signed by the CEO of Fed Ex, be conspicuously displayed at the Maitland facility for a minimum of five years; and (5) a requirement that FedEx file quarterly reports with the EEOC's District Office in Miami regarding the receipt of discrimination complaints by any employee at the Maitland facility. (See Doc. 140 at 16-18).
As noted by Plaintiffs in their memorandum, in EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d 1244, 1253 (11th Cir. 1997), the Eleventh Circuit cited with approval the Seventh Circuit's standard "that the EEOC is normally entitled to injunctive relief where it proves discrimination against one employee and the employer fails to prove thatthe violation is not likely to recur." In the instant case, however, FedEx has persuaded the Court that the violation is not likely to recur, and only very limited injunctive relief is warranted in this case. By all accounts, the retaliation against Mr. Maines was an isolated incident by a single manager who is no longer employed by Fed Ex. A FedEx employee testified at the hearing that in the four years since Mr. Maines's constructive discharge, there have been no complaints of discrimination made at the Maitland office, and no evidence of any complaints at any other FedEx office was presented.
Accordingly, the Court will grant in part the second of FedEx's five requested forms of injunctive relief and will order FedEx to redistribute its anti-discrimination policy to all of
-7-

Case 6:02-cv-01112-JA-DAB Document 145 Filed 05/05/2005 Page 8 of 8

its management officials with supervisory authority over FedEx's Maitland, Florida employees. Beyond this measure, however, no need for injunctive relief is apparent.
III. Conclusion In accordance with the foregoing, it is ORDERED and ADJUDGED as follows: 1. Plaintiffs' Joint Post-Trial Motion Regarding Front Pay and Injunctive Relief (Doc. 140) is GRANTED in part and DENIED in part. The motion is GRANTED only to the extent that it seeks injunctive relief in the form of redistribution of FedEx's anti-discrimination policy as ordered in paragraph two below. In all other respects, the motion is DENIED. 2. Within thirty days of the date of this Order, FedEx shall redistribute its antidiscrimination policy to all management officials with su pervisory authority over its Maitland, Florida employees. 3. As stated in this Court's prior Order (Doc. 135), Plaintiffs shall file a notice within ten days of this Order regarding their decision as to remittitur. If the Plaintiffs do not file a notice of acceptance of remittitur, a new trial limited to the issue of damages for emotional pain and mental anguish will be ordered. (See Order, Doc. 133, at 8).
DONE and ORDERED in Orlando, Florida this S day of May, 2005.

Copies furnished to: Counsel of Record Unrepresented Party

N ANTOON II nited States District Judge
-8-

 </s> Case 6:02-cv-01112-JA-DAB Document 168 Filed 08/05/2005 Page 1 of 2

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

TED MAINES,

Intervenor-Plaintiff,

-vsFEDERAL EXPRESS CORPORATION,

Case No. 6:02-cv-1112-0rl-28DAB

Defendant.

ORDER
This case is before the Court on the Motion to Review Bill of Costs Granted to EEOC (Doc. No. 158) filed July 1, 2005, and the Motion to Review Bill of Costs Granted to Ted Maines (Doc. No. 160) filed July 1, 2005. The United States Magistrate Judge has submitted a report recommending that the Motion to Review Bill of Costs Granted to EEOC be denied and the Motion to Review Bill of Costs Granted to Ted Maines be granted in part and denied in part.
After an independent de novo review of the record in this matter, and noting that no objections were timely filed, the Court agrees entirely with the findings of fact and conclusions of law in the Report and Recommendation. Therefore, it is ORDERED as follows:

Case 6:02-cv-01112-JA-DAB Document 168 Filed 08/05/2005 Page 2 of 2

1. The Report and Recommendation filed July 21, 2005 (Doc. No. 165) is

ADOPTED and CONFIRMED and made a part of this Order.

2. The Motion to Review Bill of Costs Granted to EEOC (Doc. No. 158) is

DENIED.

3. The Motion to Review Bill of Costs Granted to Ted Maines (Doc. No. 160) is

GRANTED in part and DENIED in part. The award of costs to Ted Maines should be

vacated in favor of the filing by Maines of an Amended Bill of Costs, consistent with the

deletions and modifications referenced in the Report and Recommendation. To the extent

there are any remaining objections to the modified bill of costs, they are denied.

4. The Clerk of Court is directed to vacate the award of costs to Ted Maines, and

Ted Maines should file his Amended Bill of Costs within 15 days from the date of this Order.

.----t..--

DONE and ORDERED in Chambers, Orlando, Florida this )

day of August,

2005.

Copies furnished to:
United States Magistrate Judge Counsel of Record Unrepresented Party

~'-----
NTOON II U ted States District Judge

-2-

 </s> Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...
CLOSED, DAB
U.S. District Court Middle District of Florida (Orlando) CIVIL DOCKET FOR CASE #: 6:02-cv-01112-JA-DAB

United States Equal v. Federal Express Assigned to: Judge John Antoon II Referred to: Magistrate Judge David A. Baker Demand: $0 Cause: 28:451 Employment Discrimination
Plaintiff
United States Equal Employment Opportunity Commission

Date Filed: 09/27/2002 Date Terminated: 05/26/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Cheryl A. Cooper Equal Employment Opportunity Commission Suite 2700 2 S Biscayne Blvd Miami, FL 33131 305/808-1853 Fax: 305/808-1835 Email: cheryl.cooper@eeoc.gov TERMINATED: 10/18/2005 LEAD ATTORNEY
Delner Franklin-Thomas Equal Employment Opportunity Commission Suite 2700 2 S Biscayne Blvd Miami, FL 33131 305/530-6001 Email: delner.franklin-thomas@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gwendolyn Y. Reams Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131 305/530-6010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren G. Dreilinger U. S. Equal Employment Opportunity

1 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...
Commission 2 South Biscayne Blvd. Suite 2700 Miami, FL 33131 305/808-1788 Fax: 305/808-1835 Email: lauren.dreilinger@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
M. Teresa Rodriguez Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131 305/530-6010 Fax: 305/536-4494 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas M. Inzeo Equal Employment Opportunity Commission Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131 305/530-6010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Farrell Jill S. Schwartz & Associates, PA Suite 200 180 Park Ave N Winter Park, FL 32789 407/647-8911 Fax: 407/628-4994 Email: mfarrell@schwartzlawfirm.net TERMINATED: 10/12/2005
Muslima Lewis American Civil Liberties Union Foundation of Florida, Inc. Suite 340 4500 Biscayne Blvd Miami, FL 33137 786/363-2729 Fax: 786/363-1448

2 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

Intervenor Plaintiff Ted Maines

Email: mlewis@aclufl.org TERMINATED: 10/18/2005
represented by Andrew G. Wedmore Jill S. Schwartz & Associates, P.A. 180 North Park Ave., Suite 200 Winter Park, FL 32789 407/647-8911 Fax: 407/628-4994 Email: awedmore@schwartzlawfirm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jill Steinberg Schwartz Jill S. Schwartz & Associates, PA Suite 200 180 Park Ave N Winter Park, FL 32789 407/647-8911 Ext 201 Fax: 407/628-4994 Email: jschwartz@schwartzlawfirm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia K. Lippincott Marcia K. Lippincott, P.A. 864 Bright Meadow Dr. P.O. Box 953693 Lake Mary, FL 32795 407/688-2700 Fax: 407/688-1159 Email: marcy@appellatepartner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Federal Express Corporation

represented by Carl Morrison Federal Express Corporation 3rd Floor, Building B 3620 Hacks Cross Rd. Memphis, TN 38125-1842 901/434-8548 Fax: 901/434-8552 TERMINATED: 10/22/2004 LEAD ATTORNEY

3 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

Intervenor Defendant Federal Express Corporation
Mediator Jay M. Cohen

Jay L. Grytdahl Federal Express Corporation 3rd Floor - Building B 3620 Hacks Cross Rd Memphis, TN 38125-1842 901/434-8590 Fax: 901/434-9278 Email: jlgrytdahl@fedex.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kay L. Wolf Ford & Harrison, LLP 300 S Orange Ave - Ste 1300 PO Box 60 Orlando, FL 32802-0060 407/418-2300 Fax: 407/418-2327 Email: kwolf@fordharrison.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel P. O'Gorman Ford & Harrison, LLP 300 S Orange Ave - Ste 1300 PO Box 60 Orlando, FL 32802-0060 407/418-2300 ext:2303 Fax: 407/418-2327 Email: dogorman@fordharrison.com ATTORNEY TO BE NOTICED
represented by Kay L. Wolf (See above for address) ATTORNEY TO BE NOTICED
represented by Jay M. Cohen Jay M. Cohen, P.A. P.O. Box 2210 Winter Park, FL 32790-2210 407/644-1181 Email: jmcohen@bellsouth.net PRO SE

Date Filed

#

Docket Text

4 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

09/27/2002 09/27/2002 09/27/2002 10/02/2002
10/02/2002 10/10/2002 10/15/2002 10/15/2002 10/15/2002 10/30/2002 10/30/2002 11/07/2002 11/07/2002 11/20/2002 11/21/2002 11/21/2002 12/04/2002
12/23/2002 12/23/2002

1 COMPLAINT for Civil Rights Act, Employment Discrimination filed; jury demand (igc) (Entered: 09/27/2002)
MAGISTRATE JUDGE CASE ASSIGNMENT Magistrate assigned: David A. Baker (igc) (Entered: 09/27/2002)
SUMMONS issued for Federal Express. (igc) (Entered: 09/27/2002)
2 ORDER ON INTERESTED PERSONS and Corporate Disclosure Statement (response due within 11 days) ( Signed by Judge John Antoon II ) ctc (igc) (Entered: 10/02/2002)
3 RELATED CASE ORDER AND TRACK TWO NOTICE (response due within 11 days) - TRACK 2. (ctc) (igc) (Entered: 10/02/2002)
4 MOTION by Ted Maines to intervene as Plaintiff referred to Magistrate Judge David A. Baker (igc) (Entered: 10/10/2002)
5 CERTIFICATE OF INTERESTED PERSONS and Corporate Disclosure Statement by United States Equal Re: [2-1] order (jet) (Entered: 10/15/2002)
6 NOTICE (no related cases) by United States Equal of pendency of other actions re: order of compliance to local rule (jet) (Entered: 10/15/2002)
7 RESPONSE by United States Equal to [2-1] order; certificate of service attached showing service of order on defendant (jet) (Entered: 10/15/2002)
8 ORDER granting [4-1] motion to intervene as Plaintiff ( Signed by Magistrate Judge David A. Baker ) ctc (igc) (Entered: 10/30/2002)
9 INTERVENOR'S COMPLAINT with demand for jury trial by Ted Maines against Federal Express (igc) (Entered: 10/30/2002)
10 CERTIFICATE OF INTERESTED PERSONS and Corporate Disclosure Statement by United States Equal Re: [2-1] order (igc) (Entered: 11/07/2002)
11 NOTICE by United States Equal of pendency of other actions (no related case) re: order of compliance to local rule (igc) (Entered: 11/07/2002)
12 CERTIFICATE OF INTERESTED PERSONS and Corporate Disclosure Statement by Federal Express Re: [2-1] order (igc) (Entered: 11/21/2002)
13 NOTICE by Federal Express of pendency of other actions (no related case) re: order of compliance to local rule (igc) (Entered: 11/21/2002)
14 NOTICE of designation and consent to act by Federal Express (igc) (Entered: 11/22/2002)
15 ORDER ON INTERESTED PERSONS and Corporate Disclosure Statement (response due within 11 days for Ted Maines) ( Signed by Judge John Antoon II ) ctc (igc) Modified on 12/04/2002 (Entered: 12/04/2002)
16 ANSWER and affirmative defenses to [1-1] complaint by Federal Express (cbh) (Entered: 12/24/2002)
17 ANSWER and affirmative defenses to [9-1] intervenor complaint by Federal Express (cbh) (Entered: 12/24/2002)

5 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

01/31/2003 02/06/2003 02/18/2003 03/06/2003
03/06/2003 04/14/2003 04/15/2003 09/23/2003
09/29/2003
03/24/2004 03/29/2004 03/29/2004

18 ORDER ON INTERESTED PERSONS and Corporate Disclosure Statement (response due within 11 days for Ted Maines) ( Signed by Judge John Antoon II ) ctc (igc) (Entered: 01/31/2003)
19 CERTIFICATE OF INTERESTED PERSONS and Corporate Disclosure Statement by Ted Maines Re: [18-1] order (igc) (Entered: 02/06/2003)
20 CASE MANAGEMENT REPORT (jet) (Entered: 02/18/2003)
21 CASE MANAGEMENT AND SCHEDULING ORDER setting Joining of parties, amending of pleadings on 4/4/03; Discovery cutoff - Fact 11/14/03, Expert - 1/30/04; dispositive motion filing deadline for 3/1/04; Pretrial statement due on or before 5/7/04; Jury trial set for 8:30 a.m. on 9/1/04; Scheduled for Judge John Antoon II ( signed by Judge John Antoon II ) ctc (igc) (Entered: 03/06/2003)
21 ORDER referring case to mediation. Appointing Jay M. Cohen as mediator. Conduct hearing by 9/26/03 Lead counsel; Michael J. Farrell, to coordinate dates. ( Signed by Judge John Antoon II ) ctc (igc) (Entered: 03/06/2003)
22 MOTION by United States Equal to substitute attorney M. Teresa Rodriquez in place of Heui Young Choi ; referred to Magistrate Judge David A. Baker (igc) (Entered: 04/14/2003)
23 ORDER granting [22-1] motion to substitute attorney M. Teresa Rodriquez in place of Heui Young Choi ( Signed by Magistrate Judge David A. Baker ) ctc (igc) (Entered: 04/15/2003)
24 JOINT MOTION by United States Equal, Federal Express to extend discovery deadline to 3/30/04 , extend mediation deadline to 3/30/04 , extend dispositive, Daubert & Markman motions to 4/30/04 , extend joint final pretrial statement deadline to 6/30/04 and to extend deadline for all other motions (including motions in limine) & trial briefs to 7/15/04 referred to Magistrate Judge David A. Baker (igc) Modified on 09/25/2003 (Entered: 09/24/2003)
25 ORDER granting in part [24-1] joint motion to extend discovery deadline to 3/30/04, [24-2] joint motion to extend mediation deadline to 3/30/04, [24-3] joint motion extend dispositive motions, Daubert & Markman motions, [24-4] motion extend joint final pretrial statement deadline to 6/30/04, and [24-5] joint motion to extend deadline for all other motions (including motions in limine) & trial briefs; reset discovery due for 3/30/04 , reset mediation conference for 3/30/04 , reset dispositive motion filing deadline for 4/9/04 , reset pretrial statement deadline for 6/30/04 , deadline for meeting in person to prepare joint final pretrial statement is 5/31/04 & deadline for filing all other motions & trial briefs is 7/1/04. ( Signed by Magistrate Judge David A. Baker ) ctc (igc) Modified on 10/02/2003 (Entered: 09/29/2003)
26 MEDIATION REPORT. Mediation conference held: 3/22/04. Jay M. Cohen, mediator. Hearing outcome: IMPASSE (igc) (Entered: 03/24/2004)
27 MOTION by Ted Maines with memorandum in support for leave to seek punitive damages under the Florida Whistleblower Act (igc) (Entered: 03/29/2004)
28 MOTION by Federal Express with memorandum in support for protective order referred to Magistrate Judge David A. Baker (igc) (Entered: 03/29/2004)

6 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

04/08/2004 04/09/2004
04/12/2004 04/13/2004 04/13/2004 04/13/2004 04/13/2004 04/13/2004 04/13/2004 04/13/2004 04/13/2004 04/13/2004 04/15/2004 04/19/2004
04/20/2004

29 MEMORANDUM by Federal Express in opposition to [27-1] motion for leave to seek punitive damages under the Florida Whistleblower Act (igc) (Entered: 04/08/2004)
30 UNOPPOSED MOTION by Federal Express to exceed page limitation on Defendant's Motion for Summary Judgment (unopposed) ; proposed document, over 20 pages, attached; referred to Magistrate Judge David A. Baker (jet) Modified on 04/12/2004 (Entered: 04/12/2004)
31 RESPONSE by United States Equal in opposition to [28-1] motion for protective order and [29-1] memorandum in support (jet) (Entered: 04/12/2004)
***END VOLUME 1 - Document Nos. 1-31 - Go to Volume 2*** (igc) (Entered: 04/13/2004)
32 ORDER granting [30-1] motion to exceed page limitation on Defendant's Motion for Summary Judgment ( Signed by Magistrate Judge David A. Baker ) ctc (igc) (Entered: 04/13/2004)
33 MOTION by Federal Express with memorandum in support for summary judgment (igc) (Entered: 04/13/2004)
34 NOTICE of filing of depositions of Ted Maines, Karen Christian, Carmon Lannon, Eddie Jenkins & Gregory Richards in support of motion for summary judgment by Federal Express (igc) (Entered: 04/13/2004)
35 DEPOSITION of Diane B. Mattman by Federal Express re: [33-1] motion for summary judgment (Transcript filed separately) (igc) (Entered: 04/13/2004)
36 DEPOSITION of Karen Christian by Federal Express re: [33-1] motion for summary judgment (Transcript filed separately) (igc) (Entered: 04/13/2004)
37 DEPOSITION of Carmon Lannon by Federal Express re: [33-1] motion for summary judgment (Transcript filed separately) (igc) (Entered: 04/13/2004)
38 DEPOSITION of Eddie Jenkins by Federal Express re: [33-1] motion for summary judgment (Transcript filed separately) (igc) (Entered: 04/13/2004)
39 DEPOSITION of Gregory B. Richards by Federal Express re: [33-1] motion for summary judgment (Transcript filed separately) (igc) (Entered: 04/13/2004)
40 ORDER denying in part [28-1] motion for protective order ( Signed by Magistrate Judge David A. Baker ) ctc (igc) (Entered: 04/16/2004)
41 EMERGENCY UNOPPOSED MOTION by United States Equal to consolidate their response to defendant's motion for summary judgment & to exceed page limitation on plaintiffs' consolidated response (EMERGENCY - UNOPPOSED) (igc) Modified on 04/19/2004 (Entered: 04/19/2004)
42 ORDER granting [41-1] consent motion to consolidate their response to defendant's motion for summary judgment &, granting [41-2] consent motion to exceed page limitation on plaintiffs' consolidated response - allowing a response of a total of 35 pages. ( Signed by Judge John Antoon II ) ctc (igc) (Entered: 04/20/2004)

7 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

04/21/2004 04/21/2004 04/23/2004 04/23/2004 04/23/2004 04/23/2004 04/23/2004 04/23/2004 04/23/2004 04/29/2004
05/04/2004 05/12/2004 06/09/2004 06/09/2004 06/30/2004 06/30/2004 06/30/2004

43 NOTICE of filing deposition of Ted Maines - Volume II - by Federal Express (igc) (Entered: 04/22/2004)
44 DEPOSITION of Ted Maines by Federal Express re: [33-1] motion for summary judgment (Transcript filed separately) (igc) (Entered: 04/22/2004)
45 RESPONSE by United States Equal in opposition to [33-1] motion for summary judgment (Exhibits filed separately) (igc) (Entered: 04/23/2004)
46 NOTICE of filing depositions in support of response to motion for summary judgment by United States Equal, Ted Maines (igc) Modified on 04/23/2004 (Entered: 04/23/2004)
47 DEPOSITION (Volume I) of Ted Maines by United States Equal, Ted Maines re: [45-1] opposition response (Transcript file separately) (igc) Modified on 04/23/2004 (Entered: 04/23/2004)
48 DEPOSITION (Volume II) of Ted Maines by United States Equal, Ted Maines re: [45-1] opposition response (Transcript filed separately) (igc) (Entered: 04/23/2004)
49 DEPOSITION of Karen Ings by United States Equal, Ted Maines re: [45-1] opposition response (Transcript filed separately) (igc) (Entered: 04/23/2004)
50 NOTICE of filing deposition in support of motion for summary judgment by Federal Express (igc) Modified on 04/26/2004 (Entered: 04/26/2004)
51 DEPOSITION of Ted Maines by Federal Express re: [33-1] motion for summary judgment (Transcript filed separately) (igc) (Entered: 04/26/2004)
52 NOTICE of filing supplemental authority by Federal Express re: [29-1] opposition memorandum (STRICKEND & RETURNED TO COUNSEL PER ORDER DATED 5/4/04 - DOCUMENT NO. 53) (igc) Modified on 05/04/2004 (Entered: 04/29/2004)
53 ORDER striking [52-1] notice & returning document to counsel. ( Signed by Judge John Antoon II on 5/3/04 ) ctc (igc) (Entered: 05/04/2004)
54 ORDER denying [27-1] motion for leave to seek punitive damages under the Florida Whistleblower Act ( Signed by Judge John Antoon II ) ctc (igc) (Entered: 05/13/2004)
55 ORDER referring motion for report and recommendations. Motions referred: [33-1] motion for summary judgment referred to Magistrate Judge David A. Baker (signed by Judge John Antoon II ) ctc (igc) (Entered: 06/09/2004)
***END VOLUME 2 - Document Nos. 32-55 - Go To Volume 3*** (igc) (Entered: 07/06/2004)
56 JOINT PROPOSED jury instructions & Verdict Form by United States Equal, Federal Express, Ted Maines (igc) Modified on 06/30/2004 (Entered: 06/30/2004)
57 JOINT PROPOSED voir dire questions by United States Equal, Ted Maines (igc) (Entered: 06/30/2004)
58 JOINT PRETRIAL STATEMENT. (igc) (Entered: 06/30/2004)

8 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

07/01/2004
07/01/2004 07/01/2004 07/01/2004 07/01/2004 07/06/2004 07/14/2004 07/15/2004
07/16/2004 07/20/2004 07/30/2004 08/16/2004 08/26/2004

59 JOINT MOTION by United States Equal, Federal Express, Ted Maines for permission to bring cellular phones, laptop computer, projection & portable screen & accessory equipment into courthouse with trial & final pretrial matters in connection with this action (Joint Motion) (igc) Modified on 07/02/2004 (Entered: 07/01/2004)
60 CONSOLIDATED MOTIONS by United States Equal with memorandum in support in limine seeking an Order excluding certain evidence from the jury trial (igc) (Entered: 07/01/2004)
61 TRIAL BRIEF by United States Equal (igc) (Entered: 07/01/2004)
62 PROPOSED voir dire questions by Federal Express (igc) (Entered: 07/02/2004)
63 MOTION by Federal Express in limine to exclude matters that are inadmissable, irrelevant, or prejudicial to the material issues in this case (igc) (Entered: 07/02/2004)
***END VOLUME 3 - Document Nos. 56-63 - Go To Volume 4*** (igc) (Entered: 07/06/2004)
64 MOTION for Extension of Time to File Response to Plaintiff's Consolidated Motions in Limine by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 07/14/2004)
65 CONSOLIDATED RESPONSES in opposition re 63 Motion in limine filed by Ted Maines, United States Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Excerpts from Ted Maines' Deposition# 2 Exhibit Excerpts from Karen Ings' Deposition# 3 Exhibit Excerpts from Eddie Jenkins' Deposition# 4 Exhibit Excerpts from Lex (Carmon) Lannom's Deposition# 5 Exhibit Excerpts from Diane Mattman's Deposition)(Wedmore, Andrew) Modified on 7/15/2004 (IGC) (Entered: 07/15/2004)
66 The Court GRANTS Defendant Federal Express Corp.'s Unopposed Motion for Extension of Time to File Response to Plaintiffs' Consolidated Motions in Limine (Doc. No. 64).Signed by Judge John Antoon II on 7/16/2004. (ew) (Entered: 07/16/2004)
67 RESPONSE to motion re 60 Motion in limine filed by Federal Express Corporation. (Attachments: # 1 Exhibit deposition transcript of Eddie Jenkins)(O'Gorman, Daniel) Modified on 7/20/2004 (IGC). (Entered: 07/20/2004)
68 REPORT AND RECOMMENDATIONS - recommending that motion be Denied re 33 Motion for summary judgment filed by Federal Express Corporation. Signed by Judge David A. Baker on 7/30/2004. (ESC) Modified on 8/2/2004 (IGC). (Entered: 07/30/2004)
69 OBJECTION to 68 Report and Recommendations by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 08/16/2004)
70 ORDER granting 59 Motion to allow cellular telephones and laptop computers for use at pretrial and trial commencing September 2004. Signed by Judge John Antoon II on 8/24/2004. (DJD, ) (Entered: 08/26/2004)

9 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

08/27/2004
09/01/2004 09/02/2004 09/09/2004 09/24/2004 09/24/2004 09/28/2004 09/30/2004 09/30/2004 09/30/2004
10/05/2004
10/06/2004
10/13/2004

71 RESPONSE to 69 objections to 68 Report and Recommendations filed by Defendant by Ted Maines, United States Equal Employment Opportunity Commission. (Gillespie, Kenneth) Modified on 8/30/2004 (JET). (Entered: 08/27/2004)
72 TRIAL CALENDAR for trial term September '04. Signed by Judge Anne C. Conway on 9/1/2004. (SAF) (Entered: 09/01/2004)
73 Joint MOTION to continue jury trial (Expedited Motion) by Ted Maines. (Wedmore, Andrew) (Entered: 09/02/2004)
74 ORDER granting 73 Motion to continue trial. Trial is continued to the OCTOBER 1, 2004 TRIAL DOCKET . Signed by Judge John Antoon II on 9/9/2004. (EMW) (Entered: 09/09/2004)
75 TRIAL CALENDAR for October '04 trial term before Judge Anne C. Conway. (SAF) (Entered: 09/24/2004)
76 NOTICE of unavailability of counsel by Federal Express Corporation from September 24, 2004 to November 15, 2004. (Attachments: # 1 Exhibit)(O'Gorman, Daniel) (Entered: 09/24/2004)
77 AMENDED TRIAL CALENDAR for October '04 trial term before Judge Anne C. Conway.(SAF) (Entered: 09/28/2004)
78 NOTICE of Hearing: Evidentiary Hearing on Defendant's Notice of Unavailability and Unopposed Motion for Continuance set for 10/7/2004 at 02:00 PM in Courtroom 4 before Judge John Antoon II. (DJD, ) (Entered: 09/30/2004)
79 NOTICE canceling Evidentiary hearing scheduled for 10/7/2004 (DJD, ) (Entered: 09/30/2004)
80 ORDER : This cause is before the court on the Notice of Unavailability 76. The Court notes that the filing is improper in that it does not comply with Local Rule 3.01. To the extent the Notice seeks a continuance of trial, the motion is denied. This case shall remain on the trial docket of The Honorable John Antoon and shall remain as well on the October trial docket of the undersigned. Counsel shall be given as much notice as possible of the trial date. Signed by Judge Anne C. Conway on 9/30/2004. (Conway, Anne) (Entered: 09/30/2004)
81 APPEARANCE of non-resident counsel and designation of local counsel by Kay L. Wolf on behalf of Federal Express Corporation Local Counsel: Kay L. Wolf (Attachments: # 1 List of Courts Attorney Admitted# 2 Certificate of Good Standing)(Wolf, Kay) (Entered: 10/05/2004)
82 PRO HAC VICE FEES paid and Special Admission Attorney Certification form filed by Jay L. Grytdahl appearing on behalf of Federal Express Corporation (Filing fee $10.00 receipt number 16383.) Balance due $0 (CEK) (Entered: 10/13/2004)
83 ORDER denying 33 Motion for summary judgment, adopting Report and Recommendations 68 . Signed by Judge John Antoon II on 10/12/2004. (EMW) (Entered: 10/13/2004)

10 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

10/22/2004 10/22/2004
10/22/2004 10/27/2004 11/10/2004 11/18/2004 11/19/2004 11/29/2004
11/29/2004 11/30/2004 12/02/2004 12/02/2004 12/03/2004 12/08/2004 12/08/2004

84 APPEARANCE of non-resident counsel and designation of local counsel by Daniel P. O'Gorman on behalf of Federal Express Corporation Local Counsel: Daniel P. O'Gorman (O'Gorman, Daniel) (Entered: 10/22/2004)
85 APPEARANCE of non-resident counsel and designation of local counsel by Daniel P. O'Gorman on behalf of Federal Express Corporation Local Counsel: Daniel P. O'Gorman (O'Gorman, Daniel) (Dupllicate of document no. 84) (IGC). (Entered: 10/22/2004)
86 NOTICE by Federal Express Corporation of Substitution of Counsel for Federal Express Corporation (O'Gorman, Daniel) (Entered: 10/22/2004)
87 TRIAL CALENDAR for trial term November '04 for Judge Anne C. Conway. (SAF) (Entered: 10/27/2004)
88 NOTICE by Federal Express Corporation of Designation of Trial Counsel (O'Gorman, Daniel) (Entered: 11/10/2004)
89 NOTICE of unavailability of counsel by Federal Express Corporation from 12/6/04 to 12/7/04. (O'Gorman, Daniel) (Called Counsel on 11/19/04 to refile pleading not signed) (IGC). (Entered: 11/18/2004)
90 AMENDED NOTICE of unavailability of counsel by Federal Express Corporation from 12/6/04 to 12/7/04. (O'Gorman, Daniel) Modified on 11/22/2004 (IGC). (Entered: 11/19/2004)
91 UNOPPOSED MOTION to substitute attorney Michael Farrell in place of Kenneth Gillespie by United States Equal Employment Opportunity Commission. (Farrell, Michael) Modified on 11/30/2004 (IGC). (Entered: 11/29/2004)
92 TRIAL CALENDAR for December '04 trial term before Judge Anne C. Conway. (SAF) (Entered: 11/29/2004)
93 ORDER granting 91 Motion to substitute attorney. . Signed by Judge David A. Baker on 11/30/2004. (Baker, David) (Entered: 11/30/2004)
94 NOTICE of Hearing: Final Pretrial Conference set for 12/7/2004 at 09:00 AM in Courtroom 4 before Judge John Antoon II. (DJD, ) (Entered: 12/02/2004)
95 AMENDED NOTICE of Hearing: Final Pretrial Conference reset for 12/8/2004 at 09:00 AM in Courtroom 4 before Judge John Antoon II. (DJD, ) (Entered: 12/02/2004)
96 NOTICE of unavailability of counsel by Federal Express Corporation from December 23, 2004 to December 30, 2004. (O'Gorman, Daniel) (Entered: 12/03/2004)
97 ORDER allowing laptops and cellphones for use at trial beginning the week of December 13, 2004. Signed by Judge John Antoon II on 12/8/2004. (DJD, ) (Entered: 12/08/2004)
98 Minute Entry for proceedings held before Judge John Antoon II : FINAL PRETRIAL CONFERENCE held on 12/8/2004. Court Reporter: Tony Rolland (DJD, ) (Entered: 12/08/2004)

11 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

12/08/2004 12/08/2004 12/10/2004 12/13/2004 12/13/2004 12/14/2004 12/15/2004 12/15/2004 12/16/2004 12/16/2004 12/16/2004 12/16/2004 12/16/2004 12/16/2004 12/16/2004 12/16/2004 12/20/2004

99 NOTICE of Hearing: Jury Trial set for 12/13/2004 at 08:30 AM in Courtroom 4 before Judge John Antoon II. (DJD, ) (Entered: 12/08/2004)
104 ORAL ORDER granting in part and denying in part defendant's 63 Motion in limine, granting in part and denying in part plaintiffs' 60 Motion in limine . Signed by Judge John Antoon II on 12/8/2004. (DJD, ) (Entered: 12/17/2004)
100 NOTICE by Ted Maines, United States Equal Employment Opportunity Commission of Filing Front Pay Calculation (Attachments: # 1 Exhibit "A" Front Pay Calculations)(Schwartz, Jill) (Entered: 12/10/2004)
101 Minute Entry for proceedings held before Judge John Antoon II : Voir Dire held on 12/13/2004. Court Reporter: Tony Rolland (DJD, ) (Entered: 12/13/2004)
102 Minute Entry for proceedings held before Judge John Antoon II : JURY TRIAL (DAY ONE) held on 12/13/2004. Court Reporter: Tony Rolland (DJD, ) (Entered: 12/13/2004)
103 Minute Entry for proceedings held before Judge John Antoon II : JURY TRIAL (DAY TWO) held on 12/14/2004. Court Reporter: Tony Rolland (DJD, ) (Entered: 12/15/2004)
105 Minute Entry for proceedings held before Judge John Antoon II : JURY TRIAL (DAY THREE) held on 12/15/2004. Court Reporter: Tony Rolland (DJD, ) (Entered: 12/17/2004)
106 ORAL MOTION for Judgment as a Matter of Law (Rule 50) by Federal Express Corporation. (DJD, ) (Entered: 12/17/2004)
Mail returned as Undeliverable re: 92 Trial calendar, as to Jay L. Grytdahl. (IGC) (Entered: 12/16/2004)
107 Minute Entry for proceedings held before Judge John Antoon II : JURY TRIAL (DAY FOUR) held on 12/16/2004. Jury reaches verdict for plaintiff Court Reporter: Tony Rolland (DJD, ) (Entered: 12/17/2004)
108 NOTICE of Hearing: Jury Trial on punitive damages set for 12/22/2004 at 08:30 AM in Courtroom 4 before Judge John Antoon II. (DJD, ) (Entered: 12/17/2004)
115 COURT'S JURY INSTRUCTIONS. (DJD, ) Additional attachment(s) added on 12/27/2004 (DJD, ). (Entered: 12/17/2004)
116 JURY VERDICT. (DJD, ) Additional attachment(s) added on 12/27/2004 (DJD, ). (Entered: 12/17/2004)
117 EXHIBIT LIST by Ted Maines, United States Equal Employment Opportunity Commission. (DJD, ) Additional attachment(s) added on 12/27/2004 (DJD, ). (Entered: 12/17/2004)
118 EXHIBIT LIST by Federal Express Corporation. (DJD, ) Additional attachment(s) added on 12/27/2004 (DJD, ). (Entered: 12/17/2004)
119 COURT'S EXHIBIT LIST. (DJD, ) Additional attachment(s) added on 12/27/2004 (DJD, ). (Entered: 12/17/2004)
131 COURT'S JURY INSTRUCTIONS on punitive damages phase of trial. (DJD, ) (Entered: 01/20/2005)

12 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

12/22/2004
12/22/2004 12/22/2004 12/22/2004 12/28/2004
01/14/2005 01/14/2005 01/14/2005 01/14/2005 01/19/2005 01/20/2005 01/20/2005 01/21/2005
02/10/2005 02/14/2005

114 NOTICE of filing Election of Remedies and Proposed Judgment by United States Equal Employment Opportunity Commission and Ted Maines (Attachments: # 1 Exhibit A: Proposed judgment)(Schwartz, Jill) Modified on 12/23/2004 (JET). (Entered: 12/22/2004)
120 MINUTE ENTRY for proceedings held before Judge John Antoon II : JURY TRIAL on punitive damages held on 12/22/2004. Court Reporter: Tony Rolland (DJD, ) (Entered: 12/27/2004)
121 JURY VERDICT. (DJD, ) (Entered: 12/27/2004)
122 COURT'S EXHIBIT LIST. (DJD, ) (Entered: 12/27/2004)
123 PRO HAC VICE FEES paid and Special Admission Attorney Certification form filed by Kathy Laughter Laizure appearing on behalf of Federal Express Corporation (Filing fee $10 receipt number 17058.) Balance due $0. (ANH, orl) (Entered: 12/30/2004)
124 MOTION for Judgment as a Matter of Law or in the Alternative, For New Trial or Amendment of Judgment by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 01/14/2005)
125 MEMORANDUM in support re 124 Motion for Judgment as a Matter of Law filed by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 01/14/2005)
126 MOTION for Judgment as a Matter of Law or, in the Alternative, for New Trial or Amendment of Judgment by Federal Express Corporation. (Wolf, Kay) (Entered: 01/14/2005)
127 MEMORANDUM in support re 126 Motion for Judgment as a Matter of Law filed by Federal Express Corporation. (Wolf, Kay) (Entered: 01/14/2005)
128 NOTICE by Federal Express Corporation of Scrivner's Error re 126 Motion (O'Gorman, Daniel) Modified on 1/20/2005 (IGC). (Entered: 01/19/2005)
129 Unopposed MOTION for leave to file excess pages by United States Equal Employment Opportunity Commission. (Farrell, Michael) (Entered: 01/20/2005)
130 ENDORSED ORDER granting 129 Motion for Leave to File Excess Pages. Response shall not exceed 25 pages. . Signed by Judge John Antoon II on 1/20/2005. (DJD, ) (Entered: 01/20/2005)
132 JOINT RESPONSE in opposition re 126 MOTION for Judgment as a Matter of Law or, in the Alternative, for New Trial or Amendment of Judgment filed by United States Equal Employment Opportunity Commission, Ted Maines. (Schwartz, Jill) Modified on 1/24/2005 (IGC). (Entered: 01/21/2005)
133 ORDER denying as moot [106] Motion for judgment as a Matter of Law, granting in part and denying in part 126 Motion for judgment as a Matter of Law. Signed by Judge John Antoon II on 2/10/2005. (EMW) (Entered: 02/10/2005)
134 Plaintiff's JOINT EXPEDITED MOTION for clarification that the issues of front pay and other affirmative relief remain pending; leave to file post trial motion and/or have hearing regarding such relief; and, an extension of time to tile notice regarding remittitur until after the Court has issued its ruling regarding such relief by United States Equal Employment Opportunity Commission and Ted Maines.

13 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

02/15/2005
02/16/2005 02/17/2005 02/22/2005 03/04/2005
03/18/2005 04/01/2005 04/04/2005 04/14/2005

(Farrell, Michael) Modified on 2/15/2005 (IGC). Modified on 2/22/2005 (GJS). (Entered: 02/14/2005)
135 ORDER granting in part 134 Motion for Clarification; the Court grants the Plaintiffs' request for an extension of time to file notice regarding remittitur, allowing Plaintiffs 10 days from the date of the Court's Order on the issue of front pay; Defendants will have 10 days to respond from the date of Plaintiffs' notice; a Status Conference is set for Friday, February 25, 2005, at 10:00 a.m. Signed by Judge John Antoon II on 2/15/2005. (EMW) Modified on 2/22/2005 (GJS). (Entered: 02/15/2005)
136 Joint Unopposed MOTION to reschedule Status Conference to 3/4/05 re 135 Order on motion for clarification by United States Equal Employment Opportunity Commission, Ted Maines. (Wedmore, Andrew) Modified on 2/17/2005 (IGC). (Entered: 02/16/2005)
137 ORDER granting 136 Motion to Reschedule Status Conference. Signed by Judge John Antoon II on 2/17/2005. (EMW) (Entered: 02/17/2005)
138 AMENDED NOTICE of Hearing on Motion 134 MOTION for clarification: Motion Hearing set for 3/4/2005 at 09:00 AM in Courtroom 4 before Judge John Antoon II. (DJD, ) (Entered: 02/22/2005)
139 MINUTE ENTRY for proceedings held before Judge John Antoon II : Motion Hearing held on 3/4/2005 re 134 MOTION for clarification filed by United States Equal Employment Opportunity Commission. Counsel request court allow them to brief the issue of front pay and specific injunctive relief; Court sets briefing schedule: Plaintiff's brief due by 3/18/05. Defendant's brief due April 1, 2005. Court will allow 5 days following ruling on front pay to file notice regarding remittitur. Court sets evidentiary hearing on the issue of front pay for 9:00 a.m. on Thursday, April 14, 2005. Start time: 9:00 am; End time: 9:15 a.m. Counsel for pltf: Jill Schwartz, Michael J. Farrell. Counsel for deft: Kathy L. Laizure. Court Reporter: Tony Rolland (DJD, ) (Entered: 03/04/2005)
140 JOINT POST-TRIAL MOTION regarding Front Pay and Injunction by United States Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Farrell, Michael) Modified on 3/21/2005 (IGC). (Entered: 03/18/2005)
141 MEMORANDUM in opposition re 140 Motion for miscellaneous relief filed by Federal Express Corporation. (Attachments: # 1 Exhibit A# 2 Exhibit B)(O'Gorman, Daniel) (Called attorney on 4/4/05 - pleading missing signature). (Entered: 04/01/2005)
142 MEMORANDUM in opposition re 140 Motion for miscellaneous relief (Amended as to signature on Certificate of Service) filed by Federal Express Corporation. (Attachments: # 1 Exhibit A# 2 Exhibit B)(O'Gorman, Daniel) (Entered: 04/04/2005)
143 MINUTE ENTRY for proceedings held before Judge John Antoon II : Motion Hearing held on 4/14/2005 re 140 MOTION Front Pay and Injunction filed by United States Equal Employment Opportunity Commission. Court takes matter under advisement. Court Reporter: Tony Rolland (DJD, ) (Entered: 04/14/2005)

14 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

04/14/2005 05/05/2005
05/16/2005 05/25/2005 05/26/2005 06/08/2005
06/08/2005 06/17/2005
06/17/2005 06/20/2005 06/20/2005

144 EXHIBIT LIST by United States Equal Employment Opportunity Commission, Ted Maines. (DJD, ) (Entered: 04/14/2005)
145 ORDER granting in part and denying in part 140 Motion Regarding Front Pay and Injunctive Relief. The Motion is denied as to front pay and granted in part as to injunctive relief. Within ten (10) days Plaintiffs shall file a notice regarding their decision as to remittitur. Signed by Judge John Antoon II on 5/5/2005. (EMW) (Entered: 05/05/2005)
146 NOTICE by United States Equal Employment Opportunity Commission, Ted Maines re 145 Order on Motion for Miscellaneous Relief, Accepting Remittitur (Wedmore, Andrew) (Entered: 05/16/2005)
147 ORDER directing Clerk to enter judgment and instructing parties regarding claims for costs and fees. The Clerk of Court is directed to close this case after entry of judgment.Signed by Judge John Antoon II on 5/25/2005. (EMW) (Entered: 05/25/2005)
148 JUDGMENT in favor of Plaintiff, Ted Maines against Defendant, Federal Express Corporation (Signed by Deputy Clerk) (IGC) (Entered: 05/26/2005)
149 MOTION for attorney fees and Costs by Ted Maines. (Attachments: # 1 Exhibit A - Fees Billing Summary# 2 Exhibit B - Schwartz Affidavit# 3 Exhibit C Wedmore Affidavit# 4 Exhibit D - Miner Affidavit# 5 Exhibit E - Augello Affidavit# 6 Exhibit F - O'Shea Affidavit# 7 Exhibit G - Ball Affidavit# 8 Exhibit H - Itemization of Costs)(Wedmore, Andrew) (Entered: 06/08/2005)
150 MOTION for taxation of costs by United States Equal Employment Opportunity Commission. (Attachments: # 1 Attachment #1# 2 Tab A to Attachment 1# 3 Tab B to Attachment 1# 4 Tab C to Attachment 1)(Lewis, Muslima) (Entered: 06/08/2005)
151 NOTICE OF APPEAL by Federal Express Corp.as to 148 Judgment [104] Order on motion in limine,, 105 Jury trial - held, 145 Order on Motion for Miscellaneous Relief,, [106] MOTION for Judgment as a Matter of Law, 107 Jury trial - held, 148 Judgment, 115 Jury instructions - court, 116 Jury verdict, 83 Order on motion for summary judgment, Order on report and recommendations, 133 Order on Motion for Judgment as a Matter of Law,, [101] Voir Dire, 102 Jury trial - begun, 103 Jury trial - held by Federal Express Corporation. (Filing fee not paid) (O'Gorman, Daniel) Modified on 6/20/2005 (VEF, ). Modified on 8/11/2005 (VEF, ). (Entered: 06/17/2005)
USCA appeal fees received $ 255 receipt number 18659 re 151 Notice of appeal, filed by Federal Express Corporation, (VEF, ) (Entered: 06/17/2005)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 151 Notice of appeal. Transcript information form sent. (VEF, ) (Entered: 06/20/2005)
152 ORDER denying without prejudice 149 Motion for attorney fees, denying without prejudice 150 Motion for taxation of costs. Signed by Judge David A. Baker on 6/20/2005. (ESC ) (Entered: 06/20/2005)

15 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

06/27/2005 06/27/2005 06/27/2005 06/28/2005 06/28/2005
07/01/2005 07/01/2005 07/01/2005 07/01/2005 07/01/2005 07/12/2005 07/13/2005
07/18/2005 07/21/2005

153 PROPOSED BILL OF COSTS by United States Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3)(Farrell, Michael) (Entered: 06/27/2005)
154 PROPOSED BILL OF COSTS by Ted Maines. (Attachments: # 1 Exhibit Itemization of Costs)(Wedmore, Andrew) (Entered: 06/27/2005)
ACKNOWLEDGMENT by USCA of receiving Appeal Package on 6/22/05 re 151 Notice of appeal. USCA number: 05-13448-E. (VEF, ) (Entered: 06/27/2005)
155 BILL OF COSTS taxed against Defendant, Federal Express Corporation in the amount of 12,478.56 by Plaintiff, U.S. Equal Employment Opportunity. Signed by Deputy Clerk. (IGC) (Entered: 06/28/2005)
156 BILL OF COSTS taxed against Defendant, Federal Express Corporation in the amount of 10,172.31 by Intervenor Plaintiff, Ted Maines. Signed by Deputy Clerk. (IGC) ***VACATED PER ORDER DATED 8/5/05 - DOCUMENT NO. 168 - IGC. (Entered: 06/28/2005)
157 TRANSCRIPT information form filed by Federal Express Corporation for proceedings held on 12/8/04 & 12/13-16/04 before Judge John Antoon II re 151 Notice of appeal. USCA number: 05-13448-E. (VEF, ) (Entered: 07/01/2005)
158 MOTION to review re 155 Bill of costs granted to Plaintiff, EEOC by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 07/01/2005)
159 MEMORANDUM in support re 158 Motion to review costs granted to Plaintiff, EEOC filed by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 07/01/2005)
160 MOTION to review re 156 Bill of costs granted to Plaintiff-Intervenor, Ted Maines by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 07/01/2005)
161 MEMORANDUM in support re 160 Motion to review costs granted to Plaintiff-Intervenor, Ted Maines filed by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 07/01/2005)
162 COURT REPORTER ACKNOWLEDGMENT by Tony Rolland re 151 Notice of appeal, Estimated transcript filing date: 8/7/05. USCA number: 05-13448-E. (VEF, ) (Entered: 07/12/2005)
163 RESPONSE in opposition re 160 MOTION to review re 156 Bill of costs granted to Plaintiff-Intervenor, Ted Maines and Incorporated Memorandum of Law filed by Ted Maines. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Schwartz, Jill) (Entered: 07/13/2005)
164 RESPONSE in opposition re 158 MOTION to review re 155 Bill of costs granted to Plaintiff, EEOC filed by United States Equal Employment Opportunity Commission. (Farrell, Michael) (Entered: 07/18/2005)
165 REPORT AND RECOMMENDATIONS re 158 MOTION to review re 155 Bill of costs granted to Plaintiff, EEOC filed by Federal Express Corporation; and160 MOTION to review re 156 Bill of costs granted to Plaintiff-Intervenor, Ted Maines filed by Federal Express Corporation. Signed by Judge David A. Baker

16 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

07/22/2005 07/25/2005 08/03/2005 08/04/2005
08/05/2005 08/11/2005 08/16/2005 08/17/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005 08/29/2005

on 7/21/2005. (ESC ) (Entered: 07/21/2005)
166 NOTICE OF APPEAL re 148 Judgment by United States Equal Employment Opportunity Commission. (Filing fee not paid) (Farrell, Michael) Modified on 7/25/2005 (IGC). (Entered: 07/22/2005)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 166 Notice of appeal. Transcript information form sent. (IGC) (Entered: 07/25/2005)
ACKNOWLEDGMENT by USCA of receiving Appeal Package on 7/27/05 re 166 Notice of appeal. USCA number: 05-13448-E. (VEF, ) Modified on 8/11/2005 (VEF, ). (Entered: 08/03/2005)
167 TRANSCRIPT information form filed by United States Equal Employment Opportunity Commission for proceedings held on 12/22/04, 04/14/05 before Judge John Antoon II re 166 Notice of appeal. USCA number: 05-13448-E. (Attachments: # 1 Transcript Information Form)(Farrell, Michael) (Entered: 08/04/2005)
168 ORDER denying 158 Motion to review, granting in part and denying in part 160 Motion to review, adopting 165 Report and Recommendations. Signed by Judge John Antoon II on 8/5/2005. (EMW) (Entered: 08/05/2005)
169 COURT REPORTER ACKNOWLEDGMENT by Tony Rolland re 166 Notice of appeal Estimated transcript filing date: 9/4/05. USCA number: 05-13448-E. (VEF, ) (Entered: 08/11/2005)
170 PROPOSED BILL OF COSTS (Amended pursuant to 8/05/05 Court Order by Ted Maines. (Attachments: # 1 Exhibit A - Amended Itemization)(Wedmore, Andrew) (Entered: 08/16/2005)
171 AMENDED BILL OF COSTS taxed against Federal Express Corporation in the amount of 8,539.02 by Intervenor-Plaintiff, Ted Maines. Signed by Deputy Clerk. (IGC) (Entered: 08/17/2005)
172 TRANSCRIPT of Pretrial Conference held on 12/8/04 before Judge John Antoon II re 151 Notice of appeal 166 Notice of appeal. Court Reporter: Tony Rolland. (VEF, ) (Entered: 08/29/2005)
173 TRANSCRIPT of Trial held on 12/13/04 before Judge John Antoon II re 151 Notice of appeal 166 Notice of appeal. Court Reporter: Tony Rolland. (VEF, ) (Entered: 08/29/2005)
174 TRANSCRIPT of Trial held on 12/14/04 before Judge John Antton II re 151 Notice of appeal 166 Notice of appeal. Court Reporter: Tony Rolland. (VEF, ) (Entered: 08/29/2005)
175 TRANSCRIPT of Trial held on 12/15/05 before Judge John Antoon II re 151 Notice of appeal 166 Notice of appeal. Court Reporter: Tony Rolland. (VEF, ) (Entered: 08/29/2005)
176 TRANSCRIPT of Trial held on 12/16/05 before Judge John Antoon II re 151 Notice of appeal 166 Notice of appeal. Court Reporter: Tony Rolland. (VEF, ) (Entered: 08/29/2005)

17 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

08/29/2005 09/06/2005 09/06/2005 09/06/2005 10/12/2005 10/12/2005 10/18/2005 12/05/2005 12/05/2005 12/12/2005 11/03/2006
11/03/2006

177 NOTIFICATION that transcripts have been filed by Tony Rolland re: 151 Notice of appeal 166 Notice of appeal USCA number: 05-13448-E (VEF, ) (Entered: 08/29/2005)
178 TRANSCRIPT of Trial held on 12/22/04 before Judge John Antoon II re 151 Notice of appeal, 166 Notice of appeal. Court Reporter: Tony Rolland. (VEF, ) (Entered: 09/07/2005)
179 TRANSCRIPT of Front Pay and Injunctive Relief held on 4/14/05 before Judge John Antoon II re 151 Notice of appeal,166 Notice of appeal. Court Reporter: Tony Rolland. (VEF, ) (Entered: 09/07/2005)
180 NOTIFICATION that transcript has been filed by Tony Rolland re: 151 Notice of appeal, 166 Notice of appeal USCA number: 05-13448-E (VEF, ) (Entered: 09/07/2005)
181 MOTION to substitute attorney Lauren Dreilinger by United States Equal Employment Opportunity Commission. (Dreilinger, Lauren) (Entered: 10/12/2005)
182 ENDORSED ORDER granting 181 Motion to substitute attorney. Provided counsel shall participate in the electronic filing system as adopted by the Court. Copies of docket entries will not be sent by U.S. Mail. Signed by Judge David A. Baker on 10/12/2005. (Baker, David) (Entered: 10/12/2005)
183 NOTICE by United States Equal Employment Opportunity Commission of Withdrawal of Muslima Lewis and Cheryl Cooper as Counsel of Record (Lewis, Muslima) (Entered: 10/18/2005)
184 CERTIFICATE of readiness sent to USCA re: 151 Notice of appeal,,, 166 Notice of appeal. ROA consists of: volume of pleadings: 6 volume of transcripts: 7 volume of exhibits: 5 Folders. USCA number: 05-13448-EE (VEF, ) (Entered: 12/05/2005)
RECORD on appeal sent to USCA re 151 Notice of appeal,,, 166 Notice of appeal. Transmittal includes certified copy of docket sheet, volume of pleadings: 6, volume of transcripts: 7, volume of exhibits: 5 Folders. USCA number 05-13448-EE (VEF, ) (Entered: 12/05/2005)
ACKNOWLEDGMENT by USCA of receiving COR & ROA on 12/8/05 re 151 Notice of appeal, 166 Notice of appeal. USCA number: 05-13448-EE. (VEF, ) (Entered: 12/13/2005)
185 Judgment issued as the MANDATE of USCA 11/1/06 & EOD 5/11/06 affirming the district court ruling as to 166 Notice of appeal filed by United States Equal Employment Opportunity Commission, 151 Notice of appeal, filed by Federal Express Corporation USCA number: 05-13448-EE. (VEF, ) (Entered: 11/06/2006)
186 ORDER of USCA EOD 10/31/06, denying the appellant's motion to strike appellee Maines's fee motion. Appellee Maine's motion for appellate attorney's fees is granted as to entitlement. The issue of the amount to be awarded is herby transferred to district court as to 166 Notice of appeal filed by United States Equal Employment Opportunity Commission, 151 Notice of appeal, filed by Federal Express Corporation USCA number: 05-13448-EE. (VEF, ) (Entered:

18 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

11/10/2006
11/17/2006 11/17/2006
11/21/2006 11/22/2006 11/29/2006 11/30/2006 12/11/2006 12/12/2006 12/20/2006 12/21/2006

11/06/2006)
187 MOTION for attorney fees Renewed Motion by Ted Maines. (Attachments: # 1 Exhibit A1 - Fees Billing Summary# 2 Exhibit B1 - Schwartz Affidavit# 3 Exhibit C1 - Wedmore Affidavit# 4 Exhibit D1 - Miner Affidavit# 5 Exhibit E1 Augello Affidavit# 6 Exhibit F1 - Sheppard Affidavit# 7 Exhibit G1 - Ball Affidavit# 8 Exhibit H1 - Judge Case's Order Approving Multiplier)(Schwartz, Jill) (Entered: 11/10/2006)
188 NOTICE of Appearance by Marcia K. Lippincott on behalf of Ted Maines (Wedmore, Andrew) Modified on 11/20/2006 (IGC). (Entered: 11/17/2006)
189 MOTION for attorney fees Appellate by Ted Maines. (Attachments: # 1 Exhibit A - Exhibit Cover Sheet# 2 Exhibit 1 - Schwartz Affidavit# 3 Exhibit 2 Wedmore Affidavit# 4 Exhibit 3 - Augello Affidavit# 5 Exhibit 4 - Lippincott Affidavit# 6 Exhibit 5 - Carlyle Affdavit# 7 Exhibit 6 - Moses Affidavit# 8 Exhibit 7 - FedEx Appellate Brief# 9 Exhibit 8 - Maines Appellate Brief)(Wedmore, Andrew) (Entered: 11/17/2006)
190 MOTION for Extension of Time to File Memorandum in Opposition to Plaintiff/Intervenor's Motion for Attorney's Fees and Costs of Two Weeks, Until December 12, 2006 by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 11/21/2006)
191 ENDORSED ORDER granting 190 Motion for Extension of Time to File. Signed by Judge David A. Baker on 11/22/2006. (Baker, David) (Entered: 11/22/2006)
192 Unopposed MOTION for Extension of Time to File Memorandum in Opposition to Plaintiff/Intervenor's Motion and Memorandum to Set and Award Appellate Attorney Fees by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 11/29/2006)
193 ENDORSED ORDER granting 192 Motion for Extension of Time to File. Signed by Judge David A. Baker on 11/30/2006. (Baker, David) (Entered: 11/30/2006)
194 Joint MOTION for Extension of Time to File Memoranda in Opposition to Plaintiff/Intervenor's Motion for Attorney's Fees by Federal Express Corporation. (O'Gorman, Daniel) (Entered: 12/11/2006)
195 ENDORSED ORDER granting 194 Motion for Extension of Time to File. No further extensions should be sought absent a showing of extraordinary good cause. Signed by Judge David A. Baker on 12/12/2006. (Baker, David) (Entered: 12/12/2006)
196 NOTICE of Settlement of Plaintiff/Intervenor's Motions for Attorneys Fees and Costs by Federal Express Corporation, Ted Maines (O'Gorman, Daniel) (Entered: 12/20/2006)
197 ENDORSED ORDER denying as moot 187 Motion for attorney fees; denying as moot 189 Motion for attorney fees. Signed by Judge David A. Baker on 12/21/2006. (Baker, David) (Entered: 12/21/2006)

19 of 20

6/5/2007 4:26 PM

Electronic Case Filing | U.S. District Court - Middle District of Florida -... https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?416706858184113-L_3...

PACER Service Center

Transaction Receipt

PACER Login:
Description:
Billable Pages:

06/05/2007 17:27:12

hs0328 Client Code: eeoc

Docket Report

Search Criteria:

6:02-cv-01112-JA-DAB

12

Cost:

0.96

20 of 20

6/5/2007 4:26 PM

 </s> Jury Orders Federal Express to Pay $1.57 Million In Employment Bias S...

http://www.eeoc.gov/press/12-22-04.html

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE December 22, 2004

For Further Information Contact: Federico Costales, District Director (305) 530-6001
Delner Franklin-Thomas Regional Attorney (305) 530-6116 (305) 240-1017 (cell)
Michael Farrell Supervisory Trial Attorney (305) 530-6001

JURY ORDERS FEDERAL EXPRESS TO PAY $1.57 MILLION IN EMPLOYMENT BIAS SUIT BY EEOC

EEOC and Plaintiff's Counsel Score Victory for White Senior Manager Retaliated Against for Lodging Discrimination Complaint
ORLANDO, Fla. - In a trial ending today, a jury in Federal District Court for the Middle District of Florida in Orlando returned a $1.57 million dollar verdict in favor of the U.S. Equal Employment Opportunity Commission (EEOC), Ted Maines and his private counsel, Jill Schwartz & Associates, P.A., in their workplace discrimination lawsuit against Memphis, Tenn.-based shipping giant Federal Express Corporation for violating Title VII of Civil Rights Act of 1964.
The jury found Federal Express liable for retaliation and the constructive termination of Maines, a 21-year employee of the company, and awarded him $201,000 in back pay and $1,370,000 in compensatory damages for emotional pain and distress. Maines, who is white, sought to promote an African American and a Hispanic, both longtime Federal Express employees, to supervisory positions, but was rebuffed and retaliated against by a corporate management official who favored a white female recently employed by Federal Express.
Maines began his career with Federal Express more than two decades ago answering telephones in their customer call center and rose through the ranks over the years to Senior Manager of the Customer Account Service Department in Orlando. After the jury verdict was read, he commented:
"I feel vindicated for trying to do the right thing," said Maines. "As a senior manager for one of the world's most recognized companies, I tried promoting people based on merit and their qualifications for the job, regardless of what their skin color, race or ethnicity happened to be. When I saw that management was engaging in what I believed was discrimination against individuals I selected for promotion, I thought that calling the Legal Department was the right thing to do. For that, I was met with harsh retaliation by corporate management which nearly ruined my life and career. I am grateful for the EEOC and my attorneys, Jill Schwartz and Andrew Wedmore, for their efforts on my behalf to ensure that justice was done and the rule of law prevailed."
The suit (Case 6:02-CV-1112-ORL-28DAB), filed by EEOC in September of 2002, alleged that Federal Express violated the law when it retaliated against Maines after he consulted the company's in- house legal department at corporate headquarters on or about February 7, 2001. At the time, Maines reported what he reasonably believed to be discriminatory employment practices on the part of one of the company's vice presidents who rejected his attempt to promote an African American and Hispanic employee to the supervisory level.
Approximately one week later, as a result on his speaking out, Federal Express gave Maines the following ultimatum: either accept a demotion of five pay grade levels and report to his subordinate, or be issued a strongly worded warning letter and face immediate termination for any subsequent "mistake."
When Maines advised the company that he could not reasonably accept either "option," Federal Express immediately issued a disciplinary warning letter containing a threat of termination as well as a verbal admonishment stating that the vice president wanted him to know that the very next mistake he makes

1 of 2

6/5/2007 4:31 PM

Jury Orders Federal Express to Pay $1.57 Million In Employment Bias S...

http://www.eeoc.gov/press/12-22-04.html

would be his last as a Federal Express employee. Thereafter, Maines was subjected to intense scrutiny, including electronic monitoring. He believed that his phones were monitored and his work was subjected to a heightened level of review. As a result of his being targeted by Federal Express for retaliatory conduct, the terms and conditions of Maines' employment became so intolerable that he was forced to resign (constructive discharge).
Delner Franklin-Thomas, EEOC's Miami Regional Attorney who oversees the federal agency's litigation in the state of Florida, said Maines should be applauded for his willingness and courage to speak out against what he reasonably believed to be discrimination by a high ranking Federal Express officer. "Maines spoke to the Federal Express legal department because he sincerely believed that a Black and Hispanic employee were being deprived of promotions due to a company vice president's discriminatory desire to promote a recently hired white employee into the vacant management position."
Federico Costales, Director of the EEOC's Miami District Office, noted: "It is unfortunate that Federal Express, in this instance, failed to exhibit model corporate responsibility by addressing the concerns raised by Maines, but instead launched a campaign of unlawful retaliation against him. This jury's million dollar verdict sends a strong message to Federal Express and other employers that EEOC will vigorously prosecute employers who chose to retaliate against employees who engage in conduct protected by the federal anti-discrimination laws."
Private counsel Jill Schwartz, who joined with EEOC to represent Maines' interests in this matter, said: "This was a blatant example of prohibited retaliation in the workplace. The outcome of this case sends a clear message that retaliation has serious consequences. We can never stop discrimination in the workplace if the very people who have the courage to oppose it are silenced."
Title VII of the 1964 Civil Rights Act prohibits an employer from taking adverse action against an individual for exercising his or her right to complain about behavior reasonably believed to violate Title VII which prohibits discrimination on the basis of race, color, sex, religion or national origin.
In addition to enforcing Title VII, the EEOC enforces the Age Discrimination in Employment Act, which protects workers age 40 and older from discrimination based on age; the Equal Pay Act of 1963, which prohibits sex-based wage discrimination; the Rehabilitation Act of 1973, which prohibits employment discrimination against people with disabilities in the federal sector; Title I of the Americans with Disabilities Act, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; and sections of the Civil Rights Act of 1991. Further information about the Commission is available on the agency's web site at www.eeoc.gov.
This page was last modified on December 22, 2004.

Return to Home Page

2 of 2

6/5/2007 4:31 PM

 </s> US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

05-13448-EE U.S. E.E.O.C. v. Federal Express Corporation

Closed
Docket #: 05-13448-EE Short Style: U.S. E.E.O.C. v. Federal Express Corporation Docket Date: 06/22/2005 Lead Case:
Agency: Nature of Suit: Civil Rights: Employment
Misc. Type: Clerk: Wiegmann, Brenda
Clerk Phone: (404) 335-6174

District Information

Docket #: 02-01112-CV-ORL-28-DAB Judge: John Antoon, II

Dkt Date: 09/27/2002

District: Florida-Middle

NOA Date: 06/17/2005

Office: MFL-Orlando

Secondary Case Information

Docket #: Judge: David A. Baker Dkt Date: / /
Case Relationships

Docket #

Short Style

Relation Status

05-14108-EE U.S. E.E.O.C. v. Federal Express Corporation Cross

Closed

Pending Motions
No Pending Motions

1 of 9

6/5/2007 4:53 PM

US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

05-13448-EE U.S. E.E.O.C. v. Federal Express Corporation
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-AppelleeCross-Appellant,
TED MAINES, Intervenor-Plaintiff-
Appellee,

versus
FEDERAL EXPRESS CORPORATION,
Defendant-AppellantCross-Appellee.

2 of 9

6/5/2007 4:53 PM

US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court OF Appeals FOR the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

05-13448-EE U.S. E.E.O.C. v. Federal Express Corporation

Appellant Federal Express Corporation Address Not On File Appellant Brief Filed filed on 10.17.2005 Record Excerpts filed on 10.17.2005 E-Brief Tendered: Appellant filed on 10.17.2005 Reply/Cross-Appellee Brief filed on 12.12.2005 E-Brief Tendered: Appellant-Cross Appellee Reply Brief filed on 12.12.2005 Fees: Paid on 06.17.2005
Appellee U.S. Equal Employment Opportunity Commission Address Not On File
Ted Maines Address Not On File

Appellant Attorney
Jay Lloyd Grytdahl Federal Express Corporation 3620 HACKS CROSS RD FL 3 BLDG B MEMPHIS, TN 38125-8800 (901) 434-8590 Fax: (901) 434-9278 jlgrytdahl@fedex.com No Briefing Information Found.
Appellee Attorney
James M. Tucker 1801 L ST NW WASHINGTON, DC 20507-0001 (202) 663-4870 Fax: (202) 663-7090 james.tucker@eeoc.gov E-Brief Tendered: Appellee filed on 11.16.2005 Appellee/Cross Appellant Brief Filed filed on 11.17.2005 Record Excerpts filed on 12.16.2005 E-Brief Tendered: Appellee-Cross Appellant Reply Brief filed on 01.18.2006 Reply Brief Filed filed on 01.19.2006
Marcia K. Lippincott Marcia K. Lippincott, P.A. PO BOX 953693 LAKE MARY, FL 32795-3693 (407) 688-2700 Fax: (407) 688-1159 marcy@appellatepartner.com E-Brief Tendered: Appellee filed on 11.27.2005 Appellee Brief Filed filed on 11.29.2005
Jill S. Schwartz Jill S. Schwartz & Assoc., P.A.

3 of 9

6/5/2007 4:53 PM

US Court of Appeals for the Eleventh Circuit
Initial Service Daniel O'Gorman Ford & Harrison, LLP 300 S ORANGE AVE STE 1300 ORLANDO, FL 32801-3379 (407) 418-2303 Fax: (407) 418-2327 dogorman@fordharrison.com Kay Lynne Wolf Ford & Harrison, LLP 300 S ORANGE AVE STE 1300 ORLANDO, FL 32801-3379 (407) 418-2300 Andrew G. Wedmore 180 PARK AVENUE, SUITE 200 WINTER PARK, FL 32789-7401 (407) 647-8911 awedmore@schwartzlawfirm.net Michael J. Farrell 2 S. Biscayne Blvd, 2700 One Biscayne Tower Miami, FL 33131 (305) 530-6010 Cheryl A. Cooper 2 S BISCAYNE BLVD STE 2700 MIAMI, FL 33131-1811 (305) 530-6001 Fax: (305) 536-4494 cheryl.cooper@eeoc.gov Delner Franklin-Thomas 2 S BISCAYNE BLVD STE 2700 MIAMI, FL 33131-1811 (305) 530-6010 Gwendolyn Y. Reams 2 S. Biscayne Blvd. Suite 2700 Miami, FL 33131(305) 530-6010

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
180 N PARK AVE STE 200 WINTER PARK, FL 32789-7401 (407) 647-8911 jschwartz@schwartzlawfirm.net No Briefing Information Found.
Anne Noel Occhialino 1801 L ST NW WASHINGTON, DC 20507-0001 (202) 663-4724 No Briefing Information Found.

4 of 9

6/5/2007 4:53 PM

US Court of Appeals for the Eleventh Circuit
Maria Teresa Rodriguez 2 S BISCAYNE BLVD STE 2700 MIAMI, FL 33131-1811 (305) 530-6010 Fax: (305) 536-4494
Nicholas M. Inzeo 2 S BISCAYNE BLVD STE 2700 MIAMI, FL 33131-1811 (305) 530-6010
Muslima Lewis 2 S BISCAYNE BLVD STE 2700 MIAMI, FL 33131-1811 (305) 530-6001 Muslima.Lewis@eeoc.gov

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

05-13448-EE U.S. E.E.O.C. v. Federal Express Corporation

File Date

Entry

Party

Pending

06/17/2005

Fee Status: Paid Corporation

(06/17/05)

for

Federal

Express

Federal Express Corporation

No

DKT2 (Docketing Notice) issued. To:O'Gorman, Daniel;

c:Cooper, Cheryl A.; c:Farrell, Michael J.;

06/23/2005 c:Franklin-Thomas, Delner; c:Grytdahl, Jay Lloyd; c:Inzeo,

No

Nicholas M.; c:Lewis, Muslima; c:Reams, Gwendolyn Y.;

c:Rodriguez, Maria Teresa; c:Schwartz, Jill+

06/24/2005 Probable Jurisdiction Noted:

Federal Express Corporation

No

06/28/2005 Appearance Form Submitted.

Jay Lloyd Grytdahl

No

06/28/2005 Civil Appeal Statement Form: (Atty: Jay Lloyd Grytdahl)

No

07/01/2005 Appearance Form Submitted.

Anne Noel Occhialino

No

07/01/2005 Transcript Order Form: (Atty: Jay Lloyd Grytdahl)

Federal Express Corporation

No

07/05/2005 Appearance Form Submitted.

Jill S. Schwartz No

5 of 9

6/5/2007 4:53 PM

US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX

07/08/2005

Court Reporter Rolland

Financial

Arrangements;

Ct.

Reporter

Tony

No

Court Reporter Acknowledgement: Ct. Reporter Tony

07/12/2005 Rolland; 12/13 - 12/16/04 trial - 12/8/05 pre-trial, voir dire

No

and opening/closing statements

DKT2 (Docketing Notice) issued. To:Farrell, Michael J.;

c:Cooper, Cheryl A.; c:Franklin-Thomas, Delner;

08/01/2005 c:Grytdahl, Jay Lloyd; c:Inzeo, Nicholas M.; c:Lewis,

No

Muslima; c:O'Gorman, Daniel; c:Occhialino, Anne Noel;

c:Reams, Gwendolyn Y.; c:Rodriguez, Maria+

08/01/2005 Probable Jurisdiction Noted: (Atty: Jill S. Schwartz)

U.S. Equal

Employment Opportunity

No

Commission

08/05/2005 Transcript Order Form:

U.S. Equal

Employment Opportunity

No

Commission

08/05/2005 Motion for Extension to File Transcript:

Anthony Rolland

No

08/05/2005 Court Reporter Financial Arrangements:

Anthony Rolland

No

08/08/2005 Civil Appeal Statement Form:

U.S. Equal

Employment Opportunity

No

Commission

08/11/2005

Motion for Extension 8/29/05. (SKE)

to

File

Transcript

is

GRANTED

to

No

MOT2 (Notice of court action) issued. To:Rolland,

08/11/2005 Anthony; c:Grytdahl, Jay Lloyd; c:Occhialino, Anne Noel;

No

c:Schwartz, Jill S.; c:Sheryl L. Loesch

08/11/2005 Court Reporter Acknowledgement:

Anthony Rolland

No

08/25/2005 Appearance Form Submitted.

Marcia K. Lippincott

No

08/29/2005 Notice of Transcript Filing Rec. from Ct. Rptr.:

Anthony Rolland

No

08/29/2005 Transcript Filed in D.C. (12/8/04 thru 12/16/04):

Anthony Rolland

No

09/06/2005 Notice of Transcript Filing Rec. from Ct. Rptr.:

Anthony Rolland

No

09/06/2005 Transcript Filed in D.C. (12/22/04, 4/14/05 hrgs):

Anthony Rolland

No

09/12/2005 Briefing Notice Issued

No

6 of 9

6/5/2007 4:53 PM

US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX

BR1CIV (Letter confirming brief due date) issued.

09/12/2005 To:Grytdahl, Jay Lloyd; c:Lippincott, Marcia K.;

No

c:Occhialino, Anne Noel; c:Schwartz, Jill S.

10/17/2005 Appellant Brief Filed: (Atty: Jay Lloyd Grytdahl)

Federal Express Corporation

No

10/17/2005 Record Excerpts: (Atty: Jay Lloyd Grytdahl)

Federal Express Corporation

No

30pages

10/17/2005

E-Brief Federal

Tendered: Appellant Express Corporation

by

Jay

Lloyd Grytdahl for

Federal Express Corporation

No

Attorney Changed for: Ted Maines From: Jill S. Schwartz

10/28/2005 (407) 647-8911 jschwartz@schwartzlawfirm.net To:

Ted Maines No

Lippincott, Marcia K..

MOT2 (Notice of court action) issued. To:Lippincott,

11/01/2005 Marcia K.; c:Grytdahl, Jay Lloyd; c:Occhialino, Anne

No

Noel; c:Schwartz, Jill S.

U.S. Equal

11/09/2005

Motion to File Excess Pages: (Atty: Anne Noel Occhialino)

Employment Opportunity

No

Commission

The motion to file briefs in excess of the page limits, filed

11/16/2005

by Appellee-Cross Appellant EEOC and Appellant-Cross-Appellee-Federal Express,

is

GRANTED.

No

JFD

MOT2 (Notice of court action) issued. c:Cooper, Cheryl

A.; c:Farrell, Michael J.; c:Franklin-Thomas, Delner;

11/16/2005 c:Grytdahl, Jay Lloyd; c:Inzeo, Nicholas M.; c:Lewis,

No

Muslima; c:Lippincott, Marcia K.; c:O'Gorman, Daniel;

c:Occhialino, Anne Noel; c:Reams, Gw+

U.S. Equal

30pages

11/16/2005

E-Brief Tendered: Appellee by Anne Noel Occhialino for U.S. Equal Employment Opportunity Commission

Employment Opportunity

No

Commission

U.S. Equal

11/17/2005

Appellee/Cross Occhialino)

Appellant

Brief

Filed:

(Atty:

Anne

Noel

Employment Opportunity

No

Commission

30pages

11/27/2005

E-Brief Tendered: Ted Maines

Appellee

by Marcia

K.

Lippincott for

Ted Maines

No

11/29/2005 Appellee Brief Filed: (Atty: Marcia K. Lippincott)

Ted Maines No

Motion to Adopt Appellant-Cross-Appellee's Record 11/29/2005 Excerpts and to file Supplemental Record Excerpts "as
is"(Atty: Anne Noel Occhialino)

U.S. Equal

Employment Opportunity

No

Commission

12/08/2005 Certificate of Readiness

No

12/08/2005 Record on Appeal

No

7 of 9

6/5/2007 4:53 PM

US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX

12/08/2005 Exhibits

No

12/12/2005 Reply/Cross-Appellee Brief: (Atty: Jay Lloyd Grytdahl)

Federal Express Corporation

No

30pages

12/12/2005

E-Brief Tendered: Appellant-Cross Appellee Reply Brief by Jay Lloyd Grytdahl for Federal Express Corporation

Federal Express Corporation

No

12/14/2005 Appearance Form Submitted.

James M. Tucker

No

U.S. Equal

12/14/2005

Motion for Tucker)

Extension

to

File

Reply

Brief:

(Atty:

James

M.

Employment Opportunity

No

Commission

Aple-X-Aplt EEOC's Motion to Adopt... record excerpts

12/16/2005 and to file a supplement record excerpts consisting of one

No

document.... is GRANTED.(EEC)

MOT2 (Notice of court action) issued. To:Tucker, James

12/16/2005 M.; c:Grytdahl, Jay Lloyd; c:Lippincott, Marcia K.;

No

c:Occhialino, Anne Noel; c:Schwartz, Jill S.

12/16/2005 Record Excerpts: (Atty: James M. Tucker)

U.S. Equal

Employment Opportunity

No

Commission

The Equal Employment Opportunity Commission's motion

12/19/2005 for an extension to file it's Reply Brief, until and including

No

January 19, 2006, is GRANTED FMH.

MOT2 (Notice of court action) issued. c:Grytdahl, Jay

12/19/2005 Lloyd; c:Lippincott, Marcia K.; c:Occhialino, Anne Noel;

No

c:Schwartz, Jill S.; c:Tucker, James M.

E-Brief Tendered: Appellee-Cross Appellant Reply Brief

01/18/2006 by James M. Tucker for U.S. Equal Employment

21pages

Opportunity Commission

U.S. Equal Employment Opportunity Commission

No

01/19/2006 Reply Brief Filed: (Atty: James M. Tucker)

U.S. Equal

Employment Opportunity

No

Commission

05/04/2006 Oral Argument Scheduled: 05/04/06

No

Jay Lloyd Grytdahl argued for Appellant; Marcia K.

05/08/2006 Lippincott argued for Appellee; Anne Noel Occhialino

No

argued for Appellee

05/11/2006 Judgment Entered

No

OPIN1A (Notice of issuance of opinion) issued. each party

bears their own costs on appeal. c:Alfred T. Goodwin;

05/11/2006 c:Anne Noel Occhialino; c:Baker, David A.; c:James M.

No

Tucker; c:Jay Lloyd Grytdahl; c:Jill S. Schwartz; c:John

Antoon, II; c:Marcia K. Lippin+

8 of 9

6/5/2007 4:53 PM

US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX

05/11/2006 Opinion Reissued Amended opinion issued 8/31/06.

No

05/11/2006 Opinion Issued 05-14108x.

No

05/24/2006

Motion for Rehearing K. Lippincott)

to

Correct

Decision:

(Atty:

Marcia

Ted Maines

No

06/09/2006 Petition for Attorney's Fees:: (Atty: Marcia K. Lippincott) Ted Maines No

06/22/2006

Motion to Strike Motion for Attorney Fee: (Atty: Jay Lloyd Grytdahl)

Federal Express Corporation

No

06/23/2006

Over the Phone Extension to File Response Motion Granted by BFW Until 7/5/06.

to

Atty

Fee

No

07/05/2006 Response to Motion to Strike: (Atty: Marcia K. Lippincott) Ted Maines No

07/05/2006 Response to Motion for Attorney Fees

No

Aple Maines' mot to correct this Court's opinion to reflect

08/28/2006

that he did not file a cross-appeal GRANTED. A corrected opinion

in this matter will issue

is

No

separately.(GBT/RB/GOODWIN)

MOT2 (Notice of court action) issued. c:Anne Noel

08/28/2006 Occhialino; c:James M. Tucker; c:Jay Lloyd Grytdahl;

No

c:Jill S. Schwartz; c:Marcia K. Lippincott

Aplt's motion to strike Aple Maines' fee motion is

DENIED. Aple Maines' mo for appellate atty's fees is

10/31/2006 GRANTED as to entitlement. The issue of the amount to be

No

awarded is hereby TRANSFERRED to the district

court.(GBT/RB/GOODWIN)

MOT2 (Notice of court action) issued. To:Sheryl L.

10/31/2006 Loesch; c:Anne Noel Occhialino; c:James M. Tucker; c:Jay

No

Lloyd Grytdahl; c:Jill S. Schwartz; c:Marcia K. Lippincott

11/01/2006

Record and 5fldexh

Exhibits

Returned

to

District

Court:

13vroa,

No

11/01/2006 CASE CLOSED-Mandate Issued

No

11/01/2006 Mandate Issued

No

MDT1 (Letter issuing mandate) issued. To:Sheryl L.

11/01/2006

Loesch; c:James

c:Anne Noel Occhialino; c:Baker, David A.; M. Tucker; c:Jay Lloyd Grytdahl; c:Jill S.

No

Schwartz; c:Marcia K. Lippincott

Send Comment

PACER Service Center

Transaction Receipt

PACER Login: Description: Billable Pages:

06/05/2007 17:56:12

hs0328

Client Code:

docket sheet Case Number:

6

Cost:

eeoc 05-13448-EE 0.48

Change Client Code View Billing History

Search

9 of 9

6/5/2007 4:53 PM

 </s> U.S. Equal Emploment Opportunity Com’n v. Federal..., 180 Fed.Appx. 865...

180 Fed.Appx. 865 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Eleventh Circuit Rules 36-2, 36-3. (Find CTA11 Rule 36-2 and Find CTA11
Rule 36-3) United States Court of Appeals,
Eleventh Circuit.
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee, Cross-Appellant, Ted Maines, Intervenor-Plaintiff-Appellee,
v. FEDERAL EXPRESS CORPORATION, Defendant-Appellant-Cross-Appellee.
No. 05-13448. | May 11, 2006.
Synopsis Background: Equal Employment Opportunity Commission (EEOC) and employee brought action against employer claiming retaliation in violation of Title VII. The United States District Court for the Middle District of Florida granted judgment for employee after jury verdict in his favor. Parties appealed.
Holding: The Court of Appeals held that EEOC was not entitled to injunctive relief against employer.
Affirmed.
Attorneys and Law Firms
*866 Jay Lloyd Grytdahl, Federal Express Corporation, Memphis, TN, for Defendant-Appellant-Cross-Appellee.
Anne Noel Occhialino, EEOC, Washington, DC, for Plaintiff-Appellee-Cross-Appellant.
Jill S. Schwartz, Jill S. Schwartz & Assoc., P.A., Winter Park, FL, Marcia K. Lippincott, Marcia K. Lippincott, P.A., Lake Mary, FL, for Intervenor-Plaintiff-Appellee.
Appeals from the United States District Court for the Middle District of Florida. D.C. Docket No. 02-01112-CV-ORL-28-DAB. Before TJOFLAT, BARKETT and GOODWIN,* Circuit

Judges.

*

Honorable Alfred T. Goodwin, United States Circuit

Judge for the Ninth Circuit, sitting by designation.

Opinion
PER CURIAM:
Federal Express (“FedEx”) appeals a jury verdict finding in favor of Theodore Maines, its onetime employee on his claim of retaliation in violation of Title VII. Fed Ex asserts that it was entitled to a judgment in its favor as a matter of law. Maines cross appeals, asserting that the district court abused its discretion when it denied Maines’ motion for front pay, limiting his award to backpay and compensatory damages. Finally, the Equal Employment Opportunity Commission (“EEOC”), Maines’ co-plaintiff in this litigation, appeals the district court’s denial of nearly all the injunctive relief it requested. We find no reversible error.
First, judgment as a matter of law should be granted only when, viewing the evidence in the light most favorable to the nonmoving party, the facts and inferences point so strongly in favor of one party that reasonable persons could not arrive at a contrary verdict. See Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988). We do not find that to be the case here. When viewed in the light most favorable to Maines, the evidence was sufficient to support the jury’s finding of retaliation.
We also find no merit to Maines’ claim for front pay. Prevailing Title VII plaintiffs are presumptively entitled to either reinstatement or front pay as part of Title VII’s remedial “make whole” policy. The district court properly held that reinstatement was not feasible in this case. Moreover, we do not find that the facts on this question are so overwhelmingly skewed toward Maines that a reasonable judge *867 could not have found that the presumption in Maines’ favor had been overcome.
Finally, we find no abuse of discretion in the denial of the EEOC’s claim for injunctive relief. This Court has indicated its agreement with the Seventh Circuit that “the EEOC is normally entitled to injunctive relief where it proves discrimination against one employee and the employer fails to prove that the violation is not likely to recur.” U.S. E.E.O.C. v. Massey Yardley, 117 F.3d 1244, 1253 (11th Cir.1997) (citing EEOC v. Harris Chernin, 10 F.3d 1286, 1291 (7th Cir.1993)). Mindful of the prophylactic purposes of the such relief, the court concluded that “the violation is not likely to recur,”
1

U.S. Equal Emploment Opportunity Com’n v. Federal..., 180 Fed.Appx. 865...

stating that the retaliation “was an isolated incident by a single manager who is no longer employed by FedEx.” We find no error in that determination.
AFFIRMED.

Parallel Citations
2006 WL 1288614 (C.A.11 (Fla.))
	
  

2


[CONTENT] September 27, 2002 | Miami | the Equal Employment Opportunity Commission | Title VII | Federal Express Corporation | District Court | the Middle District | Florida ||| EEOC | two ||| October 10, 2002 | the Florida Whistleblower Act ||| April 13, 2004 | Federal Express | October 13, 2004 ||| December 13, 2004 ||| four days | 201,010.30 | $1.37 million |||  ||| 350,000 |||  ||| second | December 22, 2004 ||| the same day |||  ||| May 5, 2005 | Maitland | Florida |||  ||| the U.S. Court of Appeals | the Eleventh Circuit | the Eleventh Circuit ||| the Eleventh Circuit ||| May 11, 2006 | the Eleventh Circuit ||| E.E.O.C. v. Federal Express Corp. | 180 | Fed ||| 865 | 11th Cir | 2006 [SUMMARY] On September 27, 2002, the Miami office of the Equal Employment Opportunity Commission filed a lawsuit under Title VII against Federal Express Corporation in the U.S. District Court for the Middle District of Florida.  The EEOC alleged that the defendant had violated the complainant's rights by constructively discharging him in retaliation for complaints of racial discrimination that he made on behalf of two interviewees.  On October 10, 2002, the complainant intervened in the case as a plaintiff, alleging that he was entitled to punitive damages under the Florida Whistleblower Act.

On April 13, 2004, Federal Express asked the court for summary judgment, but the district court denied that motion on October 13, 2004.  After several failed attempts to settle through mediation, the case went to trial on December 13, 2004.  After four days at trial, the jury issued a verdict in favor of the plaintiffs, awarding the complainant $201,010.30 in lost wages and $1.37 million in compensatory damages for emotional pain and mental anguish.  The defendants asked the court to reverse the verdict by issuing judgment as a matter of law in their favor, or, in the alternative, to grant them a new trial.  The court denied these motions, but it did grant their further motion to reduce the compensatory damage award to $350,000.  The plaintiff was given his choice of either accepting this reduced amount or going to a new trial on the compensatory damage award.  

A second jury trial was held on the issue of punitive damages on December 22, 2004.  On the same day, the jury found that the plaintiff was not entitled to punitive damages.  The complainant reached a later settlement with the defendant regarding his fees and costs.

Meanwhile, the district court issued another order on May 5, 2005, denying the plaintiff's request for front pay, but issuing an injunction against the defendants that required them to redistribute their anti-discrimination policy to all management officials with supervisory authority over employees at its Maitland, Florida location.  After this decision was issued, the plaintiff decided to accept the reduced compensatory damages award.

The defendants appealed all of these judgments to the U.S. Court of Appeals for the Eleventh Circuit, asking the Eleventh Circuit to grant them judgment as a matter of law.  The plaintiff cross-appealed, asked the Eleventh Circuit to award him front pay.  On May 11, 2006, the Eleventh Circuit found that the district court's decisions had no reversible error, and they held that the lower court's rulings would stand.  E.E.O.C. v. Federal Express Corp., 180 Fed.Appx. 865 (11th Cir. 2006).

