FHP Officer Files Civil Lawsuit Against More Than 100 Officers

The Florida Highway Patrol trooper at the center of firestorm after she pulled over a speeding cop at gunpoint said fellow law enforcement officers have created a "life-threatening" situation that caused her to be in such fear for her safety she has become a "hermit."

Trooper Donna "Jane" Watts' 69-page lawsuit, filed in federal court Friday, seeks more than $1 million in damages. She is suing more than 100 police officers and agencies, and the Department of Highway Safety and Motor Vehicles. The suit alleges 88 law enforcement officers from 25 jurisdictions illegally accessed her personal information more than 200 times, violating her privacy. Labor Employment Attorney Florida

Watts made national news in October 2011 when she pulled over off-duty Miami Police Officer Fausto Lopez for speeding in his marked patrol car on Florida's Turnpike in Broward County.

She followed him for seven minutes and later wrote in a report that he was darting in and out of lanes at speeds exceeding 120 mph. She approached his cruiser with her gun drawn, yelling, and then handcuffed him. Labor Employment Attorney Florida

Lopez, who regularly averaged more than 100 mph on his drive between Miami and his home in Coconut Creek, was fired in September.

But in the months after the incident, officers looked up information such as her home address, picture, Social Security number, date of birth, and detailed vehicle description in a database available to police officers, according to her lawsuit.

The suit alleges the police agencies — including the Broward Sheriff's Office, Lauderhill and Hollywood Police — did not properly train their officers, who used the information they received to intimidate Watts. None of the agencies were able to comment Monday. Labor Employment Attorney Florida

Other agencies have already settled with her and so are not named in the lawsuit, according to Watts' attorney Mirta Desir. Margate, for example, settled for $10,000 after two of its police officers accessed her private information, said Margate city attorney Gene Steinfeld.

The two Margate officers each received a letter of reprimand as punishment.

"The law had indeed been broken," said Steinfeld on Monday.

Watts said after the incident she received random calls on her home and cell phones, some threatening. Pranksters ordered pizza delivery to her house, according to the suit. Watts, who lives on a cul-de-sac, said several vehicles would also stop in front of her driveway or idle on her street.

The suit states that Watts has been so upset about the privacy violations that she has "started to experience physical symptoms to include dry heaves and nausea when performing basic activities such as opening her mailbox, starting her ignition, or when being followed by a law enforcement vehicle for no apparent reason."

Watts began opening her mailbox from the side instead of from the front in case there was something in it. Labor Employment Attorney Florida

The suit states that Watts' supervisors "do not believe that it would ever be safe for her to return to road patrol" and that Watts believes if she ever need police backup in an emergency, it would not be provided. More than a dozen troopers from her own agency also looked up her personal information.

She is also in the process of moving, according to the suit.

"This is an invasion of privacy," Desir said. "Law enforcement does have access to information most residents don't and with that level of access there should come a certain amount of care. ... This is something that is not supposed to be done."

When Watts pulled over Lopez, the incident was caught on the trooper's dashboard camera. "This is not a first-time occurrence with y'all," Watts told Lopez after pulling him over. "Y'all come from that way all the time, this Miami police car, and we never catch it." Labor Employment Attorney Florida

Lopez apologized and tried to explain he was running late. "With all due respect ...," he said, but Watts cut him off. "You don't respect me, sir," she said. "You don't respect these people out here."

Dental Assistant Fired For Being Too Good Looking.

After working as a dental assistant for ten years, Melissa Nelson was fired for being too "irresistible" and a "threat" to her employer's marriage.
"I think it is completely wrong," Nelson said. "I think it is sending a message that men can do whatever they want in the work force."

On Friday, the all-male Iowa State Supreme Court ruled that James Knight, Nelson's boss, was within his legal rights when he fired her, affirming the decision of a lower court. Labor Employment Miami Florida
"We do think the Iowa Supreme Court got it completely right," said Stuart Cochrane, an attorney for James Knight. "Our position has always been Mrs. Nelson was never terminated because of her gender, she was terminated because of concerns her behavior was not appropriate in the workplace. She's an attractive lady. Dr. Knight found her behavior and dress to be inappropriate."

For Nelson, a 32-year-old married mother of two, the news of her firing and the rationale behind it came as a shock. Labor Employment Miami Florida

"I was very surprised after working so many years side by side I didn't have any idea that that would have crossed his mind," she said.

The two never had a sexual relationship or sought one, according to court documents, however in the final year and a half of Nelson's employment, Knight began to make comments about her clothing being too tight or distracting.
"Dr. Knight acknowledges he once told Nelson that if she saw his pants bulging, she would know her clothing was too revealing," the justices wrote. Florida Discrimination Lawyer

Six months before Nelson was fired, she and her boss began exchanging text messages about work and personal matters, such as updates about each of their children's activities, the justices wrote.
The messages were mostly mundane, but Nelson recalled one text she received from her boss asking "how often she experienced an orgasm."

Nelson did not respond to the text and never indicated that she was uncomfortable with Knight's question, according to court documents.

Soon after, Knight's wife, Jeanne, who also works at the practice, found out about the text messaging and ordered her husband to fire Nelson.

The couple consulted with a senior pastor at their church and he agreed that Nelson should be terminated in order to protect their marriage, Cochrane said.

On Jan. 4, 2010, Nelson was summoned to a meeting with Knight while a pastor was present. Knight then read from a prepared statement telling Nelson she was fired.
"Dr. Knight felt like for the best interest of his marriage and the best interest of hers to end their employment relationship," Cochrane said.

Knight acknowledged in court documents that Nelson was good at her job and she, in turn, said she was generally treated with respect.

"I'm devastated. I really am," Nelson said.

When Nelson's husband tried to reason with Knight, the dentist told him he "feared he would have an affair with her down the road if he did not fire her."

Paige Fiedler, Nelson's attorney, said in a statement to ABC News affiliate KCRG that she was "appalled" by the ruling. Florida Discrimination Lawyer

"We are appalled by the Court's ruling and its failure to understand the nature of gender bias.," she wrote.
"Although people act for a variety of reasons, it is very common for women to be targeted for discrimination because of their sexual attractiveness or supposed lack of sexual attractiveness. That is discrimination based on sex," Fiedler wrote. "Nearly every woman in Iowa understands this because we have experienced it for ourselves."

Law Office of Lowell J. Kuvin, LLC - Labor and Employment Attorneys

Florida Minimum Wage Increases January 1, 2013

On November 2, 2004, Florida voters approved a constitutional amendment that created Florida's minimum wage. The minimum wage applies to all employees in the state who are covered by the federal minimum wage. Florida law requires a new minimum wage calculation each year on September 30, based on the Consumer Price Index. If that calculation is higher than the federal rate (which is currently $7.25 per hour), the state's rate then would take effect the following January.

Florida's minimum wage is currently $7.67 per hour, effective January 1, 2012. According to our discussions with state officials, beginning January 1, 2013, Florida's minimum wage will be $7.79 per hour, which is a 1.5% (or $0.12) increase from last year due to the change in the Consumer Price Index.

Employers of "tipped employees" who meet eligibility requirements for the tip credit under the Fair Labor Standards Act (FLSA) may count tips actually received as wages under the FLSA. However, the employer must pay "tipped employees" a direct wage. Effective January 1, 2013, the new minimum wage for tipped employees should become $4.77 per hour plus tips. Labor Employment Miami Florida

The state is scheduled to issue a press release today, confirming the rates. In deciding whether the federal or state minimum wage applies, federal law directs that businesses must pay the higher of the two. The Florida minimum wage will prevail over the federal rate until (and unless) the federal minimum wage becomes higher than the state rate. Labor Employment Miami Florida

Employers must pay their employees the hourly state minimum wage for all hours worked in Florida. The definitions of "employer," "employee," and "wage" for state purposes are the same as those established under the FLSA.

An employee who has not received the lawful minimum wage after notifying his or her employer and giving the employer 15 days to resolve any claims for unpaid wages may bring a civil action in a court of law against an employer to recover back wages plus damages and attorneys' fees. The state attorney general may also bring an action to enforce the minimum wage. Labor Employment Miami Florida

Whistleblowing in Florida Pays

Until last Tuesday, Jason G. Wolk was just another accountant. Now, he's the Million Dollar Whistleblower.

The 45-year-old last week became the first private citizen in Broward County to walk away with money — in his case, $1 million — under a county whistleblower law that's been on the books for 10 years. The False Claims Ordinance that made him a millionaire offers a reward to informants who think the county is being ripped off by a vendor, and can help prove it.

Wolk, a former part-owner of Peaches Entertainment Corp., lives in Weston with his wife.

He took on a $130 million parking company whose founder, Bill Bodenhamer Jr., is a political bigwig in Broward, a frequent campaign contributor and a member of the Downtown Development Authority.

Ultimately, Wolk lost his job with the company, USA Parking Associates, which denied any wrongdoing or overbilling.

But when the documents are signed and the ink is dry, Wolk's bank account will receive an electronic fund transfer from USA Parking of $1,008,000.00.

A lawsuit filed by Broward County in the case lays out what Wolk went through, and what he found.

A controller for USA Parking, Wolk was working on the parking contracts the company held at the county's two biggest business enterprises: Fort Lauderdale-Hollywood International Airport and Port Everglades.

It was August 2007, and the company's general manager told him that a $69,719 insurance invoice to Broward County had been fabricated, created on template stationary for the Willis Corroon Insurance Brokerage of Nashville, according to the lawsuit.

The county paid it.

Wolk complained right away. He refused to participate, confronting the general manager and then doing something some employees might find courageous: He typed out a note to the president and CEO of Central Parking Corp., the parent company in Nashville, "requesting that the fraud be stopped,'' the lawsuit says.

His note was forwarded to the company's attorney.

No one answered him.

Two days later, he got a surprise visit.

A top official from the Nashville headquarters showed up to see him unannounced, along with the local human resources director. His conversation with the official — the vice president and chief internal auditor for Central Parking Corp. — only served to confirm the use of fictional invoices, Wolk later told the county.

Wolk wrote the company vice president an "accusatory email'' the next day.

He got a response, an email saying that Broward County hadn't "been cheated out of any money,'' and that the false invoices were "being addressed going forward.''

Wolk set to work doing a little more research, and his concerns grew. A few weeks later, he sent another email to the auditor.

Silence.

What Wolk felt he'd uncovered was an overbilling of insurance to the county over a period of five years.

He and the county say that while the parking company pretended to buy insurance for employees and to bill the county for it, the company really didn't buy the insurance at all. Rather, the parking firm was largely self-insured, charging the county rates it considered competitive and enjoying discounts that weren't passed back to Broward County taxpayers as required.

Wolk's allegations of fictional insurance invoices led the county to sue the Fort Lauderdale-founded company for $47 million.

The county accused the company of "submitting false, fraudulent and inflated claims'' on its contracts at the airport and Port Everglades.

The company, which denies any wrongdoing, settled the lawsuit for $6 million in a deal approved Tuesday by the Broward County Commission. Wolk's piece of the settlement was a little more than $1 million.

The county will get $3.4 million. Wolk's attorney, Atlee Wampler III in Miami, will get $1.5 million.

USA Parking and its parent company, Central Parking Corp., said the county was never overcharged but that it settled the case "to avoid the delay, expense, inconvenience and uncertainty'' of litigation, the settlement says.

Wolk wasn't allowed to comment on the settlement — nor were his lawyer, county officials or USA Parking officials, they said. They're bound by a gag order.

Bodenhamer couldn't be reached despite two calls to his cellphone, an email and a call to his office.

USA Parking and its parent company were recently bought by a third parking company, Standard Parking Corp., and its officials encouraged an "expeditious resolution,'' said Robert M. Toy, executive vice president of operations for Central Parking.

Standard Parking is seeking a contract with the county for parking at the airport. And USA parking still has the contract at Port Everglades.

"The companies did not admit any facts or liability, and are precluded by the provisions of the settlement agreement from commenting on either the litigation or the terms of its settlement,'' Toy said.

Broward County commissioners unanimously approved the unprecedented settlement on Tuesday, without a word.

And then just as silently, they took away the contract that USA Parking has held at the airport for 16 years. The contract expired this month, but because of Wolk's allegations, Aviation Director Kent George said he didn't want USA Parking staying on month-to-month while a new parking operator is found.

County officials didn't respond to questions about whether USA Parking and its parent companies can continue doing business with Broward County.

Pepsi Beverages pays $3.1M in racial bias case

WASHINGTON (AP) — Pepsi Beverages Co. will pay $3.1 million to settle federal charges of race discrimination for using criminal background checks to screen out job applicants — even if they weren't convicted of a crime.

The settlement announced Wednesday with the Equal Employment Opportunity Commission is part of a national government crackdown on hiring policies that can hurt blacks and Hispanics.

EEOC officials said the company's policy of not hiring workers with arrest records disproportionately excluded more than 300 black applicants. The policy barred applicants who had been arrested, but not convicted of a crime, and denied employment to others who were convicted of minor offenses.

Using arrest and conviction records to deny employment can be illegal if it's irrelevant for the job, according to the EEOC, which enforces the nation's employment discrimination laws. The agency says such blanket policies can limit job opportunities for minorities with higher arrest and conviction rates than whites.

The company has since adopted a new criminal background policy and plans to make jobs available to victims of the old policy if they are still interested in jobs at Pepsi and are qualified for the openings.

"I commend Pepsi's willingness to reexamine its policy and modify it to ensure that unwarranted roadblocks to employment are removed," EEOC Chairwoman Jacqueline Berrien said in a statement.

Pepsi Beverage spokesman Dave DeCecco said the company's criminal background check policy has always been neutral and that the EEOC did not find any intentional discrimination. He said after the issue was first raised in 2006, the company worked with the EEOC to revise its background check process "to create a workplace that is as diverse and inclusive as possible."

"We are committed to promoting diversity and inclusion and we have been widely recognized for our efforts for decades," DeCecco said.

He said the new policy would take a more "individualized approach" in considering the applicant's criminal history against the particular job being sought.

Pepsi Beverages is PepsiCo's beverage manufacturing, sales and distribution operating unit in the United States, Canada and Mexico.

Under the settlement, the company will provide the EEOC with regular reports on its hiring practices and offer antidiscrimination training to its hiring personnel and managers.

About 73 percent of major employers report that they always check on applicants' criminal records, while 19 percent do so for select job candidates, according to a 2010 survey by the Society for Human Resource Management.

But increased federal scrutiny of such policies has led some companies to reevaluate their hiring process. Pamela Devata, a Chicago employment lawyer who has represented companies trying to comply with EEOC's requirements, said there has been an uptick over the past year in EEOC charges over the use of background checks.

"The EEOC has taken a very aggressive enforcement posture on the use of criminal background and criminal history," Devata said.

The commission held a special meeting on the topic last summer, and Devata said employers have been expecting the EEOC to issue more specific guidance.

EEOC officials have said, for example, that an old drunken driving conviction may not be relevant to a clerical job, but a theft conviction may disqualify someone from working at a bank.

Julie Schmid, acting director of the EEOC's Minneapolis office, said the EEOC recommends that employers consider the nature and gravity of offenses, the time that has passed since conviction or completion of a sentence, and the nature of the job sought.

"We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance" with antidiscrimination laws, Schmid said in a written statement.

Rare but Grudging Judicial About-Face in Bias Case

“It’s a nice Christmas present, isn’t it?” said U. W. Clemon, Alabama’s first black federal judge.

Mr. Clemon, who stepped down from the bench in 2009 after three decades of service, was talking about an extraordinary about-face this month from the federal appeals court in Atlanta. He was home with a cold, but he sounded delighted to have played a part in persuading the court that some words still carry the sting of oppression, even in the modern South.

“The court now understands,” Mr. Clemon said, “the unwillingness of black men to go back to being called ‘boy.’ ”

Last year, the United States Court of Appeals for the 11th Circuit ruled that there were no racial overtones when a white manager at a Tyson chicken plant in Gadsden, Ala., called adult black men working there “boy.”

“The usages were conversational” and “nonracial in context,” the majority wrote in a 2-to-1 decision that overturned a jury verdict of about $1.4 million in an employment discrimination case brought by a black Tyson employee, John Hithon.

The decision prompted Mr. Clemon and 10 other civil rights leaders to file a brief. Among the signatories were giants of the civil rights movement like the Rev. Fred L. Shuttlesworth, who survived beatings and bombings in Alabama and who died in October, and Andrew Young, a former mayor of Atlanta and ambassador to the United Nations.

The brief urged the court to reconsider, making the case that “boy” retains its venom. For evidence, the brief drew on personal experiences, history, literary classics like “To Kill a Mockingbird” and “Native Son,” and the writings of the Rev. Dr. Martin Luther King Jr.

“Boy,” the brief said, is either a proxy for or “at the very least a close cousin” of the most charged racial epithet.

On Dec. 16, more than a year after the initial decision, the appeals court reversed course. The new ruling was opaque and grudging, but Mr. Clemon said he welcomed it, particularly since it is very unusual for a federal appeals court panel simply to change its mind. “I don’t recall it ever happening,” said Mr. Clemon, who graduated from law school in 1968.

Judge Edward E. Carnes wrote the new decision, now for a unanimous panel. He said the court had reconsidered the evidence in the case and “we now reach a different conclusion.”

Stephen B. Bright, the president of the Southern Center for Human Rights, was less magnanimous than Mr. Clemon. He said the case demonstrated “how judges manipulate facts and law to make a case come out the way they want it to.”

“The new opinion flatly contradicts the first one in several places,” Mr. Bright said.

The new decision followed unflattering news coverage of the earlier one and might have been prompted by the possibility of a rebuke from the full 11th Circuit.

On the other hand, the panel had dug in its heels in the face of earlier criticism in the long-running case, including from the Supreme Court.

In 2005, for instance, the appeals court said the meaning of “boy” depended on whether there was an adjective attached.

“The use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discriminatory intent,” the court said. But “the use of ‘boy ’alone is not evidence of discrimination.”

The Supreme Court unanimously reversed the 2005 decision the following year. “The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage,” the justices said in an unsigned opinion.

That admonition was rejected by the 11th Circuit panel last year. Then it was embraced this month, though with little enthusiasm.

“The verdict could have gone either way,” Judge Carnes wrote, “and it went Hithon’s way.”

In the end, the new decision upheld a compensatory award to Mr. Hithon of about $365,000. But the decision struck down a $1 million award of punitive damages, saying the manager in question, who supervised 1,400 workers, was not high enough in Tyson’s corporate hierarchy for his actions to be attributed to the company, which in any event had a policy against discrimination.

A Tyson spokesman did not respond to two requests for comment.

Judge Carnes thought it worthwhile to drop a footnote criticizing the civil rights leaders’ brief, saying it had made a minor error in reciting the facts of the case. “Although we welcome amicus curiae briefs that are helpful, misstatements of fact are not helpful,” Judge Carnes wrote, using the Latin term for friend of the court.

Judge Carnes also took a swipe at Mr. Hithon’s trial lawyer, who had elicited testimony at trial about the meaning of “boy.”

“You know,” Anthony Ash, a black Tyson worker, testified in 2007, “being in the South, and everybody know being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”

“You might as well use the N-word if you are going to say that,” Mr. Ash added.

Then the lawyer uttered the word itself. Saying it, Judge Carnes wrote, was “an improper attempt to inflame the jury.”

There are classier ways to own up to mistakes. Some judges like to quote Justice Felix Frankfurter, as Judge Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit did when he changed his mind in 1994 in a libel suit against this newspaper.

“Wisdom too often never comes,” Justice Frankfurter wrote, “and so one ought not to reject it merely because it comes late.”

By ADAM LIPTAK NYT