Durango Steakhouse, Inc. – Alleges Discrimination While Pregnant. PDA

September 17, 2016

Durango SteakhousePlaintiff prevailed at the 5th District Court on Defendant’s Appeal to the 18th Circuit Court’s decision that the arbitration agreement was unenforceable against Plaintiff alleges Durango Steakhouse discriminated against her while she was pregnant.

After remand, the discrimination claims were resolved.

Here are the complaint and the 5th DCA brief.

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA

,

Plaintiff,
vs. Case No: 05-2008-CA-025417

DURANGO U.S.A., INC. d/b/a
DURANGO STEAKHOUSE and
DURANGO OF COCOA BEACH, INC.

Defendants.
_____________________________________/

AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
JURISDICTION AND PARTIES

Plaintiff, XXXXX, by and through her undersigned counsel, sues Defendants, DURANGO U.S.A., INC. d/b/a DURANGO STEAKHOUSE and DURANGO OF COCOA BEACH, INC., and alleges as follows:
1. This is an action for damages that exceeds $15,000.00, exclusive of costs, interest and attorney’s fees.
2. The unlawful employment practices alleged below were committed within Brevard County, Florida.
3. Plaintiff is a female who resides in Brevard County, Florida, and has at all times material herein resided in Brevard County, Florida
4. Defendants, DURANGO U.S.A., INC. d/b/a DURANGO STEAKHOUSE and DURANGO OF COCOA BEACH, INC., are Florida corporations, and at all times material herein was registered and doing business in the state of Florida.
5. This is an action brought pursuant to Chapter 760 of the Florida Statutes.
6. Defendants employed in excess of fifteen (15) employees during the work weeks in the year culminating in Plaintiff’s termination.
7. Defendants employed Plaintiff as a server from March 26, 2007 through August 6, 2007.
8. Plaintiff indicated to management of Defendants about her pregnancy on or about June 22, 2007.
9. Plaintiff was well qualified for her position as a server.
10. Plaintiff was a member of a protected group because she was pregnant.
COUNT I: PREGNANCY DISCRIMINATION
11. Plaintiff realleges and incorporates paragraphs 1 through 10 above.
12. After Plaintiff reported her pregnancy to management:
(a) She was treated in a disparage fashion concerning her Rotation Schedules, which meant her chance to earn larger tips in more popular sections were denied to her;
(b) Plaintiff was written up and disciplined for things other employees were allowed to do;
(c) Plaintiff would get yelled and cursed at a lot more than non-pregnant employees;
(d) The managers tried to get Plaintiff to quit because she was pregnant; and
(e) Defendants applied its policies and procedures differently towards Plaintiff.
13. As a result, Plaintiff was forced to resign from her position.
14. The Defendants’ actions against the Plaintiff, were in violation of Florida Statutes Chapter 760, were done wantonly, maliciously, willfully and with the intent to do harm to Plaintiff.
15. Plaintiff has retained the undersigned attorney and agreed to pay him a reasonable fee.
16. Plaintiff has exhausted her administrative remedies prior to bringing this action.
17. Plaintiff has complied with all conditions precedent prior to bringing this action.
18. At all times during her employment with Defendants, Plaintiff performed all duties assigned to her in a professionally competent manner.
19. Plaintiff has suffered and continues to suffer grave and severe damage to her financial welfare, by reason of Defendant’s unlawful disparate treatment against the Plaintiff.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendants for all damages to which she may be entitled, including without limitation:
A. Judgment for her back pay (with interest), including all sums of money Plaintiff would have earned, together with such other increases to which she would be entitled, had she not been forced to quit;
B. Compensatory damages, including, but not limited to, damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary loss;
C. Front pay;
D. Punitive Damages;
E. An award of reasonable attorney’s fees and all costs incurred herein; and
F. Such other damages and relief as may be just, equitable, and proper.
COUNT II: HOSTILE WORK ENVIRONMENT
20. Plaintiff realleges and incorporates paragraphs 1 through 19 above.
21. Defendants disciplined and wrote up Plaintiff for things other employees were allowed to do.
22. The manager screamed and cursed at Plaintiff and other employees by constantly using profane language in front of customers.
23. The hostile work environment was created as a result of Plaintiff being pregnant.
24. As a result of the hostile work environment, Plaintiff was forced to resign from her position.
25. The Defendants’ actions against the Plaintiff, were in violation of the Florida Statutes Chapter 760, were done wantonly, maliciously, willfully and with the intent to do harm to Plaintiff.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendants for all damages to which she may be entitled, including without limitation:
A. Judgment for her back pay (with interest), including all sums of money Plaintiff would have earned, together with such other increases to which she would be entitled had she not be forced to quit;
B. Compensatory damages, including but not limited to, damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary loss;
C. Front pay;
D. Punitive damages;
E. An award of reasonable attorney’s fees and costs incurred herein; and
F. Such other damages and relief as may be just, equitable and proper.
COUNT III: DISABILITY DISCRIMINATION

26. Plaintiff realleges and incorporates paragraphs 1 through 25 above.

27. As a result of Plaintiff’s pregnancy, Plaintiff had a bona fide disability.

28. Plaintiff has suffered and continues to suffer severe damage to her financial welfare and her employment prospects by reason of adverse employment actions caused by Durango’s unwillingness to provide a reasonable accommodation.
29. Plaintiff simply wished to be accommodated by having Defendants recognize the weight restrictions placed on Plaintiff by her doctor.
30. Plaintiff was able to perform her job with a reasonable accommodation.
31. Plaintiff has suffered severe mental anguish and emotional distress as a result of Defendants’ discriminatory actions.
32. By not providing Plaintiff reasonable accommodations, Defendants violated Florida Statutes Chapter 760, which makes it unlawful for an employer to discriminate against any person because of their disability with respect to compensation, terms, conditions, or privileges of employment.
33. The conduct of Defendants complained herein was willful, malicious, oppressive, wanton and in complete disregard of the rights of Plaintiff.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendants for all damages to which she may be entitled, including without limitation:
A. Judgment for her back pay (with interest), including all sums of money Plaintiff would have earned, together with such other increases to which she would be entitled had she not be forced to quit;
B. Compensatory damages, including but not limited to, damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary loss;
C. Front pay;
D. Punitive damages;
E. An award of reasonable attorney’s fees and costs incurred herein; and
F. Such other damages and relief as may be just, equitable and proper.
COUNT IV: RETALIATION
34. Plaintiff realleges and incorporates paragraphs 1 through 33 above.
35. Plaintiff gave Defendants notice of the harassment described in this Amended Complaint by reporting it to her supervisors.
36. After Plaintiff reported the harassment, the harassment was enhanced.
37. Defendants failed to take remedial action in response to Plaintiff’s complaints regarding the sexual harassment, hostile work environment, and the retaliation to which Plaintiff was subjected.
38. In the process of retaliating against Plaintiff, Defendant caused Plaintiff to be constructively terminated.
39. The acts alleged in this Complaint constitute a violation of Florida Statutes Section 760.10(7), which states, “It is an unlawful employment practice for an employer** to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted in any manner in an investigation, proceeding or hearing under this section.”
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendants for all damages to which she may be entitled, including without limitation:
A. Judgment for her back pay (with interest), including all sums of money Plaintiff would have earned, together with such other increases to which she would be entitled had she not be forced to quit;
B. Compensatory damages, including but not limited to, damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary loss;
C. Front pay;
D. Punitive damages;
E. An award of reasonable attorney’s fees and costs incurred herein; and
F. Such other damages and relief as may be just, equitable and proper.
DEMAND FOR A JURY TRIAL
Plaintiff demands a jury trial on all issues herein triable by jury.
Dated this 5th day of March, 2009.

THE 5th DCA Brief:

IN THE DISTRICT COURT OF APPEAL OF THE
FIFTH DISTRICT OF FLORIDA

DURANGO STEAKHOUSE,

Appellant,

v. APPEAL No. 5D08-3189
L.T. No. 05-2008-CA-25417
AMANDA PLAINTIFF,

Appellee.
______________________________/

ANSWER BRIEF OF APPELLEE, AMANDA PLAINTIFF

Submitted by:
Maurice Arcadier
Florida Bar No. 131180
Allen & Arcadier, P.A.
2815 W New Haven, Suite 304
Melbourne, Florida 32904
Phone: (321) 953-5998
Fax: (321) 953-6075

TABLE OF CONTENTS

TABLE OF CONTENTS 2

TABLE OF AUTHORITIES 3-4

STATEMENT OF THE CASE AND FACTS 5

SUMMARY OF THE ARGUMENT 6

STANDARD OF REVIEW 7

ARGUMENT 8-12

I. THIS COURT HAS AUTHORITY TO DETERMINE IF AN INVALID AGREEMENT WAS ENTERED BY PLAINTIFF AND DURANGO 8-9

II. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND THE FLORIDA CIVIL RIGHTS ACT ASSERT THE PREVAILING PARTY IS ENTITLED TO ATTORNEY’S FEES REIMBURSED 9-11

III. THE ENTIRE AGREEMENT IS UNENFORCEABLE BECAUSE THE AGREEMENT DID NOT PRODIVDE FERRUZA AN OPPORTUNITY TO RECOVER HER ENTITLED STATUTORY DAMAGES 11-12

CONCLUSION 13

CERTIFICATE OF SERVICE 14

CERTIFICATE OF COMPLAINCE 15

TABLE OF AUTHORITIES

CASES

D’Angelo v. Fitzmaurice,
863 So. 2d 311 (Fla. 2003) 7

Gilmer v. International/Johnson Lane Corp.,
500 U.S. 20 (1991). 10

Global Travel Marketing, Inc. v. Shea,
908 So. 2d 392 (Fla. 1999). 10

Morrison v. Circuit City Stores, Inc.,
317 F.3d 646 (6th Cir. 2003). 10

Paladino v. Avnet Computer Technologies, Inc.,
134 F. 3d 1054 (11th Cir. 1998). 11

Presidential Leasing, Inc. v Krout,
896 So. 2d 938 (Fla. 5th DCA 2005). 7, 11, 12

SA-PG-Ocala, LLC. v. Stokes,
935 So. 2d 1242 (Fla. 5th DCA 2006). 8

Seifert v. U.S. Home Corp.,
750 So. 2d 633 (Fla. 1999). 8

Terminix Int’l Co. L.P. v. Ponzio,
693 So. 2d 104 (Fla. 5th DCA 1997). 8

STATUTES AND ADMINISTRATIVE CODES

9 U.S.C. § 2 (2000) 10

42 U.S.C. § 2000(e)-5(k) 9

Florida Statutes § 760.11(5) 9

RULES

Fla. R. App. P. 9.210(a)(2) 15

STATEMENT OF THE CASE AND FACTS

Appellant, Durango Steakhouse (“Durango”), seeks review of the Circuit Court of the Eighteenth Judicial Circuit’s order denying Durango’s Motion to Compel Arbitration and Stay Action entered on August 13, 2008. The Circuit Court invalidated the Acknowledgement of Arbitration Agreement (“Agreement”) because the Agreement unlawfully eliminated rights afforded to individuals pursuant to Florida Statutes Chapter 760. The issue before this Court is whether the Circuit Court erred denying to stay this action and compel the parties to submit the issues raised in the Complaint to arbitration.
On April 7, 2008, Appellee, Amanda Plaintiff (“Plaintiff”), filed a cause of action in the Circuit Court of the Eighteenth Judicial Circuit based on pregnancy discrimination under Chapter 760 of the Florida Statutes. On May 9, 2008, Durango filed a Motion to Compel Arbitration and to Stay Action. A hearing was held on August 1, 2008 regarding this motion. The Circuit Court denied Durango’s motion and ruled that the Agreement contained an unlawful provision, which rendered the arbitration agreement unenforceable.

SUMMARY OF THE ARGUMENT

The unenforceability of the arbitration agreement entered by Durango and Plaintiff is an issue that was correctly decided by the Circuit Court of the Eighteenth Judicial Circuit. Courts have authority to determine whether a valid arbitration agreement exists when ruling on a motion to compel. As such, the Circuit Court of the Eighteenth Judicial Circuit properly ruled it had authority to determine if a valid arbitration agreement existed.
The Agreement was not valid pursuant to Florida Statutes and Title VII of the Civil Rights Act of 1964. The Agreement required all employment disputes be brought to an arbitrator, and further, the Agreement required both parties to bear their own costs. Both the Florida Statutes and Title VII allow a prevailing plaintiff to recover attorney’s fees; however, the Agreement agreed upon would diminish the rights afforded to Plaintiff under these laws. Thus, the entire Agreement was tainted.

STANDARD OF REVIEW
This appeal reviews the order issued from the Circuit Court of the Eighteenth Judicial Circuit denying Durango’s Motion to Compel Arbitration and to Stay Action. Since the validity of the arbitration agreement is a pure question of law arising from undisputed facts, the Fifth District Court of Appeal reviews these determinations de novo. See Presidential Leasing, Inc., etc., v. Krout, 896 So. 2d 938, 940 (Fla. 5th DCA 2005); see also D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003).

ARGUMENT
I. THIS COURT HAS AUTHORITY TO DETERMINE IF AN INVALID AGREEMENT WAS ENTERED BY PLAINTIFF AND DURANGO

Durango argues this Court should not even determine if the parties entered into a valid arbitration agreement. Instead, Durango maintains an arbitrator should decide whether the arbitration agreement is unenforceable. This assertion completely contradicts precedent maintained by this Court and the Florida Supreme Court. This Court has previously determined “it is the court’s obligation, in deciding a motion to compel arbitration, to determine whether a valid written agreement to arbitrate exists.” SA-PG-Ocala, LLC. v. Stokes, 935 So. 2d 1242, 1243 (Fla. 5th DCA 2006).
Moreover, pursuant to federal statutes and Florida’s arbitration code, there are three elements for a court to consider when ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Terminix Int’l Co. L.P. v. Ponzio, 693 So. 2d 104, 106 (Fla. 5th DCA 1997); see also Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). The issue before the Court here relates to the first element as to whether a valid arbitration agreement existed. Thus, both federal courts and state courts have jurisdiction to determine the validity of an agreement to arbitrate and are not required to defer to the decision of an arbitrator.
II. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND THE FLORIDA CIVIL RIGHTS ACT ASSERT THE PREVAILING PARTY IS ENTITLED TO HAVE ATTORNEY’S FEES REIMBURSED.

The Florida Civil Rights Act contains a section addressing compensation for attorney’s fees. Florida Statutes Section 760.11(5) provides in pertinent part:
In any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs. It is the intent of the Legislature that this provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action.

Title VII of the Civil Rights Act of 1964 allows a prevailing plaintiff to recover attorney’s fees pursuant to 42 U.S.C. § 2000(e)-5(k).
It is clear the Florida Statutes and Title VII of the Civil Rights Act of 1964 allow the prevailing party to recover attorney’s fees. However, in this matter, the Agreement signed by both parties requires any dispute between Durango and Plaintiff arising out of the employment relationship shall be subject to binding arbitration. This statement functions with a later sentence in the Agreement, which mandates each party shall bear their own legal fees. Thus, even if Plaintiff was successful in arbitration against Durango, Plaintiff would not be afforded the same just compensation provided under the Florida Statutes and Title VII of the Civil Rights Act of 1964.
Under the Federal Arbitration Act, federal law and Florida law, the use of arbitration agreements is generally favored by the courts. See Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392, 396 (Fla. 1999). However, the Federal Arbitration Act also states that an arbitration agreement may be ruled unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. § 2 (2000). “It is well established that a party does not forgo the substantive rights afforded by [a] statute [when she agrees to arbitrate a statutory claim but] only submits to their resolution in an arbitral, rather than judicial forum.” ’ Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 670 (6th Cir. 2003) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991)) (quotation omitted). Moreover, the Florida Supreme Court has also cautioned “neither the statutes validating arbitration clauses nor favoring such provisions should be used as a shield to block a party’s access to a judicial forum in every case.” Seifert v. U.S. Home Corp., 750 So 2d at 642. The Agreement Plaintiff signed directly contradicts the rights afforded to her under the Florida Statutes and Title VII of the Civil Rights Act of 1964. Therefore, while arbitration is usually favored by the courts, it should not be mandated here to deprive Plaintiff of rights granted to her by Congress, the Florida Legislature, United States Constituion, Florida Constitution, United States Supreme Court and the Florida Supreme Court.
III. THE ENTIRE AGREEMENT IS UNENFORCEABLE BECAUSE THE AGREEMENT DID NOT PROVIDE PLAINTIFF AN OPPORTUNITY TO RECOVER HER ENTITLED STATUTORY DAMAGES

Durango suggests a blue pencil should be taken to the sentence of the Agreement. (Appellant’s Initial Brief p. 13). The Circuit Court had authority and discretion to take a blue pencil to the last sentence of the Agreement. However, this Agreement does not include a severability clause. Therefore, merely taking a blue pencil to the last sentence is not feasible, and the Circuit Court correctly concluded that the entire Agreement was unenforceable. In any event, blue penciling a document is left to the sound discretion of the Circuit Court.
As this District Court has previously stated, “The presence of an unlawful provision in an arbitration agreement may serve to taint the entire arbitration agreement, rendering the agreement completely unenforceable.” Presidential Leasing, Inc. v. Krout, 896 So. 2d 938, 942 (Fla. 5th DCA 2005); see also Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1058 (11th Cir. 1998). The facts of Presidential Leasing, Inc., which this Court previously ruled upon, are surprisingly similar to the instant dispute. Krout sued Presidential Leasing, Inc. following a purchase of an automobile. Id. at 940. Presidential Leasing, Inc. moved to compel arbitration and stay the action pursuant to the purchase order agreement. Id. However, the purchase order required the purchaser to pay all the costs of the Dealer. Id.
Unlike the facts present in this case, the agreement signed by the parties in Presidential Leasing, Inc. did not address the prevailing party’s attorney’s fees; however, this Court held the requirement that Krout pay the costs of the Dealer frustrated the purpose of the Florida Deceptive and Unfair Trade Practices Act because the Act allows the prevailing party to recover attorney’s fees. Id. at 942. Moreover, this Court held the entire agreement unenforceable based on this one clause in dispute with Florida law and the agreement further requiring all disputes be submitted to arbitration and the agreement further mandating the purchaser to pay for the defendant’s costs. Presidential Leasing, Inc., 896 So. 2d at 942.
In the instant case, the Agreement clearly requires Plaintiff to bear her own costs. Moreover, much like Presidential Leasing, Inc. it forces her to submit any disputes to arbitration. The requirement of Plaintiff bearing all costs incurred is enough to taint the entire Agreement and render it unenforceable as guided by Presidential Leasing, Inc. Further, this Agreement does not contain a severability clause, and under Presidential Leasing, Inc., one unlawful provision may render the entire agreement unenforceable and not require the Court to blue line pencil the sentence as Appellant suggests.
CONCLUSION
Based upon the foregoing facts, law and argument of counsel, Appellee respectfully requests that the order denying Durango’s Motion to Compel Arbitration and Stay Action entered on August 13, 2008 be upheld by this Court.

___________________________
Maurice Arcadier, Esquire
Attorney for Appellee

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and three copies of the foregoing has been sent by Federal Express to The District Court of Appeal of the Fifth District of Florida, 300 South Beach Street, Daytona Beach, Florida 32114. A copy has been sent by U.S. Mail to the Timothy W. Weber, Esquire, Battaglia, Ross, Dicus & Wein, P.A. 980 Tyrone Boulevard, Saint Petersburg, Florida 33710 on this 15th day of October, 2008.

Maurice Arcadier, Esquire
Florida Bar No. 131180
Wayne L. Allen, Esquire
Florida Bar No. 110025
Allen & Arcadier, P.A.
Attorneys for Employer/Appellant
2815 W New Haven, Suite 304
Melbourne, Florida 32904
Phone: (321) 953-5998
Fax: (321) 953-6075

CERTIFICATE OF COMPLAINCE
I HEREBY CERTIFY that the foregoing is in compliance with the font requirements of Florida Rule of Appellate Procedure 9.210.

___________________________
Maurice Arcadier, Esquire
Attorney for Appellee