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Cleaning contractor refused to hire worker because of his race/national origin, plaintiff claimed

Amount:

$172,195

Type:

Verdict-Plaintiff

State:

Florida

Venue:

Federal

Court:

U.S. District Court, Southern District, West Palm Beach

Case Type:

Employment; Civil Rights; Discrimination – Race; Employment – Race Discrimination; Discrimination – Nationality or National Origin

Case Name:

Fitz Austrum v. Federal Cleaning Contractors, Inc., d/b/a Federal Building Services, Inc.,
No. 9:14-cv-81245-KAM

Date:

February 23, 2016

Parties

Plaintiff(s):

Fitz Austrum (Male, 60 Years)

Plaintiff Attorney(s):

Barry S. Balmuth;
Barry S. Balmuth, P.A.;
Palm Beach Gardens,
FL,
for
Fitz Austrum

Defendant(s):

Federal Cleaning Contractors, Inc.

Defense Attorney(s):

John M. Finnigan;
Finnigan Law Firm, P.A.;
Maitland,
FL,
for
Federal Cleaning Contractors, Inc.

Facts:

In 2014, plaintiff Fitz Austrum, a maintenance worker who is African-American, sued Federal Cleaning Contractors, Inc. doing business as Federal Building Services, Inc., alleging the company had refused to hire him because of his race and/or national origin when he applied for a job. Austrum’s counsel claimed that in April 2013 he applied for a job with Federal Cleaning in anticipation of Federal’s takeover of the cleaning and floor maintenance of the Mall at Wellington Green. Austrum asserted that the Hispanic-American project manager who was in charge of hiring for the work at the mall on Federal’s behalf was responsible for the alleged discrimination. Defense counsel for Federal Cleaning denied all of Austrum’s allegations. The defense contended that the project manager had tried to hire Austrum, but that Austrum had failed to accept its offer because it would require him to work during the day. Federal’s counsel argued that Austrum preferred the overnight shift, which he worked as a shift supervisor with the previous provider of cleaning and floor maintenance to the mall, because it fit his lifestyle and he did not want to change to an earlier shift. The defense also argued that Austrum had to change shifts because it had not budgeted sufficient funds to hire a supervisor on the overnight shift and giving Austrum a non-supervisory position on that shift would result in a pay cut to him. Defense counsel further argued that it instead offered Austrum a position on the morning or afternoon shift as a supervisor. Austrum’s counsel counter-argued that a witness testified that he was hired by Federal as an overnight shift supervisor just eight days after Federal took over the work at the mall, and he was hired at higher rate of pay than what Austrum had been making. Austrum’s counsel argued that if Federal was to give Austrum the same position and rate of pay its new hire was given, it would result in a pay raise, not a pay cut, contrary to the premise that Federal could not have hired Austrum for the overnight shift. Finally, Austrum’s counsel argued there was evidence that contradicted Federal’s assertion that it offered Austrum a position on other shifts and other evidence that Federal’s refusal to hire Austrum was motivated by Austrum’s race and/or national origin.

Injury:

Austrum claimed lost wages of $54,000. Austrum also sought to recover damages for his emotional distress and mental anguish arising out of this inability to help support his family. Austrum also sought punitive damages against Federal Cleaning Contractors, Inc. to deter such conduct in the future. Defense counsel argued that Austrum had not been sufficiently diligent in looking for new work.

Result:

Judge Marra made a ruling that excluded from evidence a finding by the Florida Commission on Human Relations that there was no cause to believe Austrum had been discriminated against. Judge Marra also ruled that, because Federal discarded Austrum’s application for employment in violation of U.S. law and regulations, thereby making it more difficult for Austrum to prove that he was being truthful when he testified that he applied for any position on any shift, the jury should presume that the application was filled out in the way Austrum said it was. Austrum’s counsel argued that if Austrum filled out the application as he said he did, this would tend to contradict the company’s assertion that he was offered a position on the morning or afternoon shifts which he simply chose not to accept. The jury found that Federal Cleaning Contractors, Inc. doing business as Fedeal Building Services, Inc. failed and refused to hire Fitz Austrum. The jury found that Austrum’s race and/or national origin was a motivating factor that prompted Federal Building Services to fail and refuse to hire him for a job with the company. The jury found that Austrum should be awarded damages to compensate for a net loss of wages to the date of the verdict, and awarded him $48,130 for net loss of wages. The jury also found that Austrum should be awarded damages to compensate for emotional pain and mental anguish, and awarded him $24,065. The jury further found that punitive damages should be assessed against Federal in the amount of $100,000. Hence, the total award was $172,195.

Fitz Austrum: $100,000 Personal Injury: Punitive Exemplary Damages; $48,130 Personal Injury: loss of wages; $24,065 Personal Injury: emotional pain and mental anguish

Trial Information:

Judge:

Kenneth A. Marra

Trial Length:

2
 days

Trial Deliberations:

2
 hours

Jury Composition:

4 male/ 3 female

Post Trial:

Fitz Austrum filed a motion seeking an award for front pay, and attorney’s fees and costs.

Editor’s Comment:

This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.