M | APPEAL | OPENING BRIEF (Makere v Allstate; §1981, 1985, EPA, FCRA, Title VII)

“...this court reviews purely legal questions de novo, a district court’s factual findings for clear error, and, in most cases, a district court’s application of the guidelines to the facts for “due deference””

“[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”

“In sum, the record establishes that the FCHR rendered timely “No Cause” determinations on [Employee X’s state] charges... As such, [Employee X] is administratively barred under section 760.11(7) of the Florida Statutes from pursuing his [state] claims here. The Court will [dismiss] Counts I-III of the Complaint and dismiss the [state] claims in their entirety.”

“As set forth above, the FCHR issued a “No Cause” determination regarding the 2019 FCHR Charge on October 18, 2019, within the 180-day period.”

“[Employee X] filed a second charge of discrimination with the [state agency], which was received on April 26, 2019.”

Materiality of Error

“(3)...Within 180 days of the filing of the complaint, the [FCHR] shall determine if there is reasonable cause to believe that discriminatory practice has occurred...”

“(4)... In the event that the commission determines that there is reasonable cause ... the aggrieved person may either:

(a) Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or

(8) In the event that the commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the commission determined that there was reasonable cause.”

“Reading the relevant provisions of the statute together clearly establishes that whenever the FCHR fails to make its determination within 180 days, even if the untimely determination is made before the filing of a lawsuit, the claimant may proceed to file a lawsuit under subsection (4).”

“As stated above, unless the FCHR fails to issue a determination in 180 days, a claimant must successfully complete the administrative review process before he can pursue a claim in court.”

The Correct Starting Date is the Only Starting Date

“On the same day the complaint is filed with the commission, the commission shall clearly stamp on the face of the complaint the date the complaint was filed with the commission... If the date the complaint is filed is clearly stamped on the face of the complaint, that date is the date of filing.”

“However, she filed her Complaint on December 27, 2021 – which, according to section 760.11(1), is the date of filing because of the clear file stamp from FCHR.”

“A district court’s conclusions as to res judicata are conclusions of law, and are thus reviewable de novo by this Court.”

“Notably, the record shows that contrary to [Employee X]’s argument, the [state hearing officer] made substantive findings on numerous allegations that were otherwise untimely or not raised in the underlying Charge.”

  “[Employer] argues, as it did below, that [employee] sustained no prejudice from the trial court’s erroneous ruling, because, in fact, the [removed] issue of racial discrimination in the refusal to reemploy “was tried thoroughly” in a trial lasting four days, with “at least 80%” of the questions relating to the issue of “race.””

“...”

“We cannot agree that the dismissal of [employee’s race] claim was harmless error”

“...”

“[Employee] should have been accorded the right to prepare his case and plan the strategy of trial with the knowledge that the [excluded race] cause of action was properly before the [Lower Tribunal]. Accordingly, we remand the case for trial of [employee]’s claim of racial discrimination consistent with the views set forth below.”

“In short, on the retrial, [employee] must be given a full and fair opportunity to demonstrate by competent evidence [of Employer X’s discrimination]”

“Procedural due process includes the right to reasonable notice and an opportunity to be heard [citations omitted] In the present case, the [lower tribunal] afforded GTECH a full and fair opportunity to contest the proposed agency action on any relevant ground, including the potential bias of the evaluation committee members.”

“...”

“Here, the parties were afforded due process of law”

“We have held that res judicata can be applied only if all of four factors are shown: "...(2) there must have been a final judgment on the merits; ... and (4) both cases must involve the same causes of action."”

“Likewise, in this Circuit, collateral estoppel can apply only "when the parties are the same (or in privity) [and] if the party against whom the issue was decided had a full and fair opportunity to litigate the issue in the earlier proceeding."”

“Consequently, we are not required to defer to the administrative law judge. Because the case involves a pure issue of law, we review the order by the de novo standard of review.”

“the principle that an act done at a later time is deemed by law to have occurred at a prior time, often for purposes of the statute of limitations or rules of procedure permitting amendment of pleadings.”

“Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.”

“(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;”

“(4) Relation Back of Certain Complaints. A complaint which would not otherwise be timely may be filed if it:

(a) States that another complaint naming the same respondent is properly before the Commission and identifies that other complaint, and

(b) Alleges the same or additional facts which describe an unlawful employment practice related to or growing out of the subject matter of the other, identified complaint, and

(c) Would have been timely if filed at the time of, or other time subsequent to, the filing of the other, identified complaint. A complaint under this subsection may be filed by a new complainant and shall relate back to the date the other, identified complaint was first received.”

“A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received.”

“Plaintiff Melissa Maledy, a former city revenue clerk, brings this lawsuit... under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-54, and the Equal Pay Act (EPA), 29 U.S.C. § 206(d)... Because she filed her amended complaint over three years after her termination, her FMLA claims are barred unless they "relates back" to her original complaint filed on March 22, 2010."'Relation back' causes an otherwise untimely claim to be considered timely by treating it as if it had been filed when the timely claims were filed." Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000). Under Fed.R.Civ.P. 15(c)(1)(B), an "amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading."”

“Consequently, we are not required to defer to the administrative law judge. Because the case involves a pure issue of law, we review the order by the de novo standard of review.”

“The pleading standard should not be confused with the evidentiary standard; detailing all evidence in a pleading or attaching evidence to a pleading could run afoul of the “short and plain statement” requirement. Presenting arguments and all evidence in a complaint generally is improper.”

“[A] motion to dismiss should concern only the complaint’s legal sufficiency, and is not a procedure for resolving factual questions or addressing the merits of the case.”

“A district court abuses its direction if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous.”

“We conclude that the ALJ erred in assigning little weight to Wang and Anderson's opinions, erred in her characterization of General's opinion, and failed to offer specific, clear, and convincing reasons for discrediting part of Garrison's testimony. We further conclude that the district court abused its discretion”

“...”

“We reverse the judgment of the district court”

“Consequently, we are not required to defer to the administrative law judge. Because the case involves a pure issue of law, we review the order by the de novo standard of review.”

“Federal court decisions on issues of state law are not binding on and have limited precedential effect in state courts. Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79, 82 L. Ed. 2d 1188, 58 S. Ct. 817 (1938).”

“Absent a special consideration, a determination arising solely under one statute should not automatically be binding when a similar question arises under another statute... This is because the purposes, requirements, perspective and configuration of different statutes ordinarily vary. This case provides an excellent example of the differences in two statutes. Racial discrimination in employment is an unfair labor practice that violates Section 8(a)(1) of the National Labor Relations Act if the discrimination is unjustified and interferes with the affected employees' right to act concertedly for their own aid or protection... In contrast, racial discrimination in employment is prohibited by Title VII without reference to the effect on the employees' right to unite. Hence, certain discriminatory practices that are valid under the National Labor Relations Act may be invalid under Title VII...

Similarly, the United States Senate rejected a proposed amendment which would have made Title VII the exclusive means of relief for most discriminatory employment practices. 110 Cong. Rec. 13650-52 (1964). This action is some evidence at least that Congress, realizing the differences between Title VII and other statutes directly or indirectly proscribing racial discrimination in employment, did not intend for a decision under one such provision to bar automatically a suit under another statutory scheme.”

“Abuse-of-discretion review of the likelihood of a miscarriage of justice is analogous to the abuse-of-discretion review of Rule 11 sanctions... In the present circumstances, where the subject of our review for an abuse of discretion is an appellate court's conclusion that a threatened miscarriage of justice is sufficient to justify recalling the mandate, I believe that we similarly must give some deference to the Court of Appeals's preliminary analysis that there may have been a misapplication of a legal standard, even though we would not defer to it if we were addressing the ultimate question on the merits, whether a trial court had committed legal error.”

“A district court abuses its direction if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous.”

““...in determining whether there was a ‘departure from the essential requirements of law’ reviewing courts have inquired:

(1) whether the lower court proceeded ‘according to justice’ or deprived the petitioner of fundamental rights, resulting in serious and material injury or gross injustice;

(2) whether the judgment is authorized by law or is invalid, illegal, essentially irregular, or prejudicial;

(3) whether the court rendering judgment lacked jurisdiction;

(4) whether the circuit court’s appellate judgment violates established principles of law;

(5) whether the judgment results in a substantial injury to the legal rights of the petitioner;

(6) whether the judgment constitutes a palpable miscarriage of justice;

or (7) whether the lower court applied the wrong rule of law to the evidence””

“Thus, the Court has found a denial of equal protection where the procedures implementing a neutral statute operated to exclude persons from the venire on racial grounds... decisions of this Court have been concerned largely with discrimination. Since the Fourteenth Amendment protects an accused throughout the proceedings bringing him to justice, Hill v. Texas, 316 U. S. 400, 406 (1942), the State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at "other stages in the selection process,

...

In this case, petitioner made a timely objection to the prosecutor's removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed.”

“Cooper’s petition for a writ of certiorari asked us to decide whether the Court of Appeals reviewed the constitutionality of the punitive damages award under the correct standard and also whether the award violated the criteria we articulated in Gore. We granted the petition to resolve confusion among the Courts of Appeals on the first question. [4] 531 US 923 (2000). We now conclude that the constitutional issue merits de novo review.”

“If the commission determines that there is not reasonable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, the commission shall dismiss the complaint. The aggrieved person may request an administrative hearing...

If the administrative law judge finds that a violation of the Florida Civil Rights Act of 1992 has occurred, he or she shall issue an appropriate recommended order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including back pay. Within 90 days of the date the recommended order is rendered, the commission shall issue a final order...

In the event the final order issued by the commission determines that a violation of the Florida Civil Rights Act of 1992 has occurred, the aggrieved person may bring, within 1 year of the date of the final order, a civil action under subsection (5) as if there has been a reasonable cause determination or accept the affirmative relief offered by the commission”

“This is not to say that economic factors may not be considered, for example, in choosing the methods used to provide meaningful access. But the cost of protecting a constitutional right cannot justify its total denial.”

“...”

“The District Court initially held only that petitioners had violated the "fundamental constitutional guarantee," ibid., of access to the courts. It did not thereupon thrust itself into prison administration. Rather, it ordered petitioners themselves to devise a remedy for the violation, strongly suggesting that it would prefer a plan providing trained legal advisors. Petitioners chose to establish law libraries, however, and their plan was approved with only minimal changes over the strong objections of respondents. Prison administrators thus exercised wide discretion within the bounds of constitutional requirements in this case. The judgment is Affirmed.”

“Access to the courts is a fundamental precept of our system of government. No citizen, regardless of his transgressions, is ever to be legally consigned to the total and unreviewed power of any single branch of government. To make the system work, to maintain the proper checks and the proper balance, no person subject to the power of government can be denied communication with or access to each of the three spheres of governmental authority.”

“conflicting with some provision of the Constitution. A statute found to be unconstitutional is considered void or as if it had never been, and consequently all rights, contracts or duties that depend on it are void. Similarly, no one can be punished for having refused obedience to the law once it is found to be unconstitutional.”

“The Circuit Court held the [state] statute unconstitutional as infringing on the freedom of the press, and dismissed the action. The Florida Supreme Court reversed, holding that the statute did not violate constitutional guarantees, and that civil remedies, including damages, were available, and remanded to the trial court for further proceedings.”

“...”

“Appellant contends the statute is void on its face because it purports to regulate the content of a newspaper in violation of the First Amendment.”

“...”

“It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the [statute is unconstitutional]. It is so ordered.”

“Consequently, we are not required to defer to the administrative law judge. Because the case involves a pure issue of law, we review the order by the de novo standard of review.”

“a plain error that impacts substantial rights and impairs the fundamental fairness of a proceeding.”

“Our case law equates manifest injustice with the plain error standard of review. United States v. McClendon, 195 F.3d 598, 603 (11th Cir. 1999) (per curiam). To demonstrate manifest injustice, a petitioner must demonstrate

(1) that there was error;

(2) that was plain;

(3) that affected his substantial rights; and

(4) that affected the fundamental fairness of the proceedings.”

“The court added that not granting relief would result in "manifest injustice" to the non-party importer of record, which was likely to be rendered insolvent unless the entries were reliquidated at the proper, lower duty rate.”

“In short, on the retrial, [employee] must be given a full and fair opportunity to demonstrate by competent evidence [of Employer X’s discrimination]”

“...”

“[Employee] should have been accorded the right to prepare his case and plan the strategy of trial with the knowledge that the [excluded race] cause of action was properly before the [Lower Tribunal]. Accordingly, we remand the case for trial of [employee]’s claim of racial discrimination consistent with the views set forth below.”

“The most recent Eighth Circuit opinion dealt primarily with the defendants' assertions that KPERS's claims were time barred by K.S.A. 60-512 and K.S.A. 60-513(a) and suggested that KPERS's contention that its claims are not subject to any statute of limitations may not be relitigated under the law of the case doctrine. (Slip opinion at 16). Nevertheless, the opinion stated the law of the case doctrine does not apply when it results in manifest injustice”