Wednesday, September 7, 2011

3d DCA Watch -- Judge Salter is Back!



Oh goodness it feels like it's been years since I've read a nice, logical, clearly expressed opinion by Judge Salter, and this week the good Judge is back and his singing voice as strong as ever.

Let's dig in:

CRC 603 v. North Carillion:

This is an important case involving escrow deposits for many thousands of Florida condo buyers who got popped when the bubble burst.

Either that or, to paraphrase Judge Ramirez, concurring in result only, sometimes a cigar is just a cigar.

Note to the 3d DCA webmaster (come on Judge, we know who you are!):  as of this writing Judge Ramirez' concurrence cuts off at page 13.

(The rest was probably dicta anyways.)  UPDATE -- FIXED!

I want to make a comment on Judge Salter's opinion -- he takes very difficult subject matter (interpretation of the escrow deposit statute, amendments thereto, and their possible retroactive application to pre-existing purchase contracts; as well as the persuasiveness of a SD FL opinion addressing some of this first) -- and succinctly identifies the issues and addresses them in a very simple yet perfectly logical manner.

To me this is an exemplar for how everyone should try to tackle complex legal matters whether in briefs or opinions.

UTD v. School District of Miami Dade County:

Here Judge Shepherd reviews an order of the Florida Public Employees Relation Commission which found that UTD negotiated preferential benefits for union school employees over non-union employees.  Specifically union employees can get representation at performance evaluation hearings, while the District otherwise forbids such representation.

But how does the UTD control what the District policy is concerning non-union employees?
UTD next argues it had nothing to do with the District’s policy of not allowing employees who are not union members to have a non-union representative at their CFRs. UTD relies on the fact that no evidence has been found of specific discussions between UTD and the District relating to the implementation of the discriminatory provision. However, as UTD must know, “unless the employer is a latter day George Washington, [direct evidence of] discrimination is as difficult of proof as who chopped down the cherry tree.” Thornborough v. Columbus & Greenville R.R. Co., 760 F. 2d 633, 638 (5th Cir. 1985); see also Sch. Bd. of Leon Cnty. v. Hargis, 400 So. 2d 103, 107 (Fla. 1st DCA 1981) (finding direct evidence of discriminatory intent is “seldom present”). For this reason, it is well established in the field of discrimination that circumstantial evidence evaluated in the light of common experience may be relied upon to establish discriminatory motive. See Grigsby v. Reynolds Metals Co., 821 F. 2d 590, 594 (11th Cir. 1987) (noting that “[t]he McDonnell Douglas-Burdine proof structure ‘was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination’”).

In this case, the plain language of the CBA, in tandem with evidence of the District’s and UTD’s implementation of that language, results in the discriminatory conferral of a benefit on union members. OPS District Director Joyce Castro testified she understood the Article XXI “Employee Rights and Due Process” subsections at issue in this case only allow for UTD representation at CFRs, and during the years she has been a District Director, UTD had never appeared on behalf of a non-union member at a CFR. UTD Deputy Chief of Staff Michael Molnar testified that as long as he has been employed by UTD, since 1995, it has been UTD policy to refuse union representation to non-union members at a CFR, with full knowledge non-union members would have no representation at CFRs.  During these years, UTD negotiated at least five successor contracts with the District. It never sought to rectify the discriminatory effect of Article XXI, section 1A on non-union members. Our task on review of the final order before us is directed to whether there is competent substantial evidence in the record to support the hearing officer’s finding of intent, approved by PERC in its Final Order, not whether there is substantial competent evidence to support a different or contrary finding. See Tamiami Trails Tours, Inc. v. King, 143 So. 2d 313, 316 (Fla. 1962). Based upon the record before us, we find there is substantial competent evidence in the record to support the decision of the hearing officer in this case. Only a willing suspension of belief would liberate us to accept UTD’s urging of a different or contrary finding.
How about that, discrimination is proved circumstantially -- good to know!


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