Third District Court of Appeal State of Florida
Opinion filed December 20, 2017. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-2790 Lower Tribunal No. 15-12643 ________________
Delroy Jackson, Appellant,
vs.
Kleen 1, LLC, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge.
Remer & Georges-Pierre, Jason S. Remer and Tyler A. Stull, for appellant.
Michael A. Pancier (Pembroke Pines), for appellee.
Before ROTHENBERG, C.J., and LAGOA and EMAS, JJ.
EMAS, J. Delroy Jackson, the plaintiff below, appeals the final judgment rendered in
accordance with the motion for directed verdict filed by his former employer,
Kleen 1, LLC, the defendant below. For the reasons that follow, we affirm in part
and reverse in part.
BACKGROUND AND PROCEDURAL HISTORY
Jackson was employed by Kleen 1 for less than one week. A few days into
his employment, Jackson alleges that his supervisor made several discriminatory
racial comments toward him,1 and when Jackson later reported this behavior to
Kleen 1’s vice president, he was fired. Jackson also contends that while working
for Kleen 1, he was given a disproportionate amount of duties compared to other
non-black or non-Jamaican employees.
Jackson filed a lawsuit against Kleen 1, alleging three separate violations of
Florida’s Civil Rights Act:2 racial discrimination (Count I); national origin
discrimination (Count II); and retaliatory discharge (Count III). All three claims
were tried before a jury. Jackson sought damages for lost wages and for emotional
pain and mental anguish.
At trial, Jackson testified that when his supervisor made the discriminatory
racial comments toward him he felt “very bad” and “angry, mad.” Jackson
1 In his complaint, Jackson describes himself as “a black male of Jamaican origin.” 2 Chapter 760, §760.01 et seq., Florida Statutes (2016).
2 introduced no evidence or testimony as to how he felt after Kleen 1 terminated him
some three days after the discriminatory racial comments were made.
At the close of Jackson’s case, Kleen 1 moved for a directed verdict,
asserting Jackson had failed to present sufficient evidence to establish a prima
facie case. The court reserved ruling on the motion. Thereafter, the jury returned a
verdict, finding in favor of Kleen 1 on the racial and national origin discrimination
claims (Counts I and II), but found in favor of Jackson on his retaliatory discharge
claim (Count III). The jury awarded no damages to Jackson for lost wages, but
awarded him $8,500 for emotional pain and mental anguish.
Kleen 1 renewed its motion for directed verdict as to the retaliatory
discharge claim, asserting Jackson’s testimony was untrustworthy and
uncorroborated. Further, Kleen 1 contended there was no evidence to support an
award of $8,500 for emotional pain or mental anguish, especially given that the
sole evidence was Jackson’s testimony that he “felt bad” when the discriminatory
racial comments were made.
After a hearing, the trial court agreed that the jury found a retaliatory
purpose behind Jackson’s termination, but determined there was insufficient
evidence to support the damages award for emotional pain and mental anguish.
Jackson’s counsel agreed that there was not an “abundance” of evidence, but that
his client did testify that he felt bad, and argued this was sufficient to support the
3 $8,500 award. Nonetheless, the trial court granted Kleen 1’s motion to enter
judgment in accordance with its prior motion for directed verdict, and entered final
judgment in favor of Kleen 1. This appeal followed.
DISCUSSION AND ANALYSIS
On appeal, Jackson contends that the trial court erred in two respects: (1) by
directing a verdict on the retaliatory discharge claim where there was evidence to
support the jury’s determination in favor of Jackson on that claim; and (2) by
finding that there was insufficient evidence to support an award of damages for
emotional pain and mental anguish.
Upon our de novo review, Frieri v. Capital Investment Services, Inc., 194
So. 3d 451, 455 (Fla. 2016), we agree with Jackson that the trial court erred in
directing a verdict on the retaliatory discharge claim, and reverse those portions of
the order and final judgment granting directed verdict.
Section 760.10(7), Florida Statutes (2016) provides:
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, or participated in any manner in an investigation, proceeding, or hearing under this section.
In order to establish a prima facie claim of retaliatory discharge, a plaintiff
“must demonstrate the following elements: (1) a statutorily protected expression;
4 (2) an adverse employment action; and (3) a causal connection between the
participation in the protected expression and the adverse action.” Russell v. KSL
Hotel Corp., 887 So. 2d 372, 379 (Fla. 3d DCA 2004).3 Viewing the evidence in a
light most favorable to Jackson, as we must, id., we conclude that there was
sufficient evidence to support the jury’s finding that Jackson proved his retaliatory
discharge claim.
However, we hold that the trial court properly determined there was
insufficient evidence to support the jury’s damages award of $8,500, and conclude
that the evidence was insufficient to support any award of damages for emotional
pain or mental anguish.
“Any award for emotional injury greater than nominal damages must be
supported by evidence of the character and severity of the injury to the plaintiff’s
emotional well-being.” Salinas v. O’Neill, 286 F.3d 827, 830 (5th Cir. 2002). A
“failure to establish ‘actual injury’ with sufficient evidence will result in the award
of only nominal damages.” Brady v. Fort Bend Cty., 145 F.3d 691, 718 (5th Cir.
1998) (also noting that “‘hurt feelings, anger and frustration are a part of life,’ and
3The elements for an employment retaliation claim under Florida law is the same as those for claims brought under federal law. Juback v. Michaels Stores, Inc., 143 F. Supp. 3d 1195 (M.D. Fla. 2015). Thus, “decisions construing Title VII are applicable when considering claims of discrimination under the Florida Civil Rights Act.” Jiles v. United Parcel Service, Inc., 360 Fed. Appx. 61, 63 (11th Cir. 2010) (quoting Harper v. Blockbuster Entm’t Corp., 139 F. 3d 1385, 1387 (11th Cir. 1998)).
5 [are] not the types of harm that could support a mental anguish award.” (quoting
Patterson v. P.H.P. Healthcare Corp., 90 F. 3d 927, 940 (5th Cir. 1996))). See
also, Akouri v. State of Fla., Dep’t of Transp., 408 F.3d 1338, 1345 (11th Cir.
2005) (reiterating that “although a plaintiff's testimony, standing alone, can support
an award of compensatory damages for emotional distress based on a constitutional
violation, ‘the testimony must establish that the plaintiff suffered demonstrable
Free access — add to your briefcase to read the full text and ask questions with AI
Third District Court of Appeal State of Florida
Opinion filed December 20, 2017. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-2790 Lower Tribunal No. 15-12643 ________________
Delroy Jackson, Appellant,
vs.
Kleen 1, LLC, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge.
Remer & Georges-Pierre, Jason S. Remer and Tyler A. Stull, for appellant.
Michael A. Pancier (Pembroke Pines), for appellee.
Before ROTHENBERG, C.J., and LAGOA and EMAS, JJ.
EMAS, J. Delroy Jackson, the plaintiff below, appeals the final judgment rendered in
accordance with the motion for directed verdict filed by his former employer,
Kleen 1, LLC, the defendant below. For the reasons that follow, we affirm in part
and reverse in part.
BACKGROUND AND PROCEDURAL HISTORY
Jackson was employed by Kleen 1 for less than one week. A few days into
his employment, Jackson alleges that his supervisor made several discriminatory
racial comments toward him,1 and when Jackson later reported this behavior to
Kleen 1’s vice president, he was fired. Jackson also contends that while working
for Kleen 1, he was given a disproportionate amount of duties compared to other
non-black or non-Jamaican employees.
Jackson filed a lawsuit against Kleen 1, alleging three separate violations of
Florida’s Civil Rights Act:2 racial discrimination (Count I); national origin
discrimination (Count II); and retaliatory discharge (Count III). All three claims
were tried before a jury. Jackson sought damages for lost wages and for emotional
pain and mental anguish.
At trial, Jackson testified that when his supervisor made the discriminatory
racial comments toward him he felt “very bad” and “angry, mad.” Jackson
1 In his complaint, Jackson describes himself as “a black male of Jamaican origin.” 2 Chapter 760, §760.01 et seq., Florida Statutes (2016).
2 introduced no evidence or testimony as to how he felt after Kleen 1 terminated him
some three days after the discriminatory racial comments were made.
At the close of Jackson’s case, Kleen 1 moved for a directed verdict,
asserting Jackson had failed to present sufficient evidence to establish a prima
facie case. The court reserved ruling on the motion. Thereafter, the jury returned a
verdict, finding in favor of Kleen 1 on the racial and national origin discrimination
claims (Counts I and II), but found in favor of Jackson on his retaliatory discharge
claim (Count III). The jury awarded no damages to Jackson for lost wages, but
awarded him $8,500 for emotional pain and mental anguish.
Kleen 1 renewed its motion for directed verdict as to the retaliatory
discharge claim, asserting Jackson’s testimony was untrustworthy and
uncorroborated. Further, Kleen 1 contended there was no evidence to support an
award of $8,500 for emotional pain or mental anguish, especially given that the
sole evidence was Jackson’s testimony that he “felt bad” when the discriminatory
racial comments were made.
After a hearing, the trial court agreed that the jury found a retaliatory
purpose behind Jackson’s termination, but determined there was insufficient
evidence to support the damages award for emotional pain and mental anguish.
Jackson’s counsel agreed that there was not an “abundance” of evidence, but that
his client did testify that he felt bad, and argued this was sufficient to support the
3 $8,500 award. Nonetheless, the trial court granted Kleen 1’s motion to enter
judgment in accordance with its prior motion for directed verdict, and entered final
judgment in favor of Kleen 1. This appeal followed.
DISCUSSION AND ANALYSIS
On appeal, Jackson contends that the trial court erred in two respects: (1) by
directing a verdict on the retaliatory discharge claim where there was evidence to
support the jury’s determination in favor of Jackson on that claim; and (2) by
finding that there was insufficient evidence to support an award of damages for
emotional pain and mental anguish.
Upon our de novo review, Frieri v. Capital Investment Services, Inc., 194
So. 3d 451, 455 (Fla. 2016), we agree with Jackson that the trial court erred in
directing a verdict on the retaliatory discharge claim, and reverse those portions of
the order and final judgment granting directed verdict.
Section 760.10(7), Florida Statutes (2016) provides:
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, or participated in any manner in an investigation, proceeding, or hearing under this section.
In order to establish a prima facie claim of retaliatory discharge, a plaintiff
“must demonstrate the following elements: (1) a statutorily protected expression;
4 (2) an adverse employment action; and (3) a causal connection between the
participation in the protected expression and the adverse action.” Russell v. KSL
Hotel Corp., 887 So. 2d 372, 379 (Fla. 3d DCA 2004).3 Viewing the evidence in a
light most favorable to Jackson, as we must, id., we conclude that there was
sufficient evidence to support the jury’s finding that Jackson proved his retaliatory
discharge claim.
However, we hold that the trial court properly determined there was
insufficient evidence to support the jury’s damages award of $8,500, and conclude
that the evidence was insufficient to support any award of damages for emotional
pain or mental anguish.
“Any award for emotional injury greater than nominal damages must be
supported by evidence of the character and severity of the injury to the plaintiff’s
emotional well-being.” Salinas v. O’Neill, 286 F.3d 827, 830 (5th Cir. 2002). A
“failure to establish ‘actual injury’ with sufficient evidence will result in the award
of only nominal damages.” Brady v. Fort Bend Cty., 145 F.3d 691, 718 (5th Cir.
1998) (also noting that “‘hurt feelings, anger and frustration are a part of life,’ and
3The elements for an employment retaliation claim under Florida law is the same as those for claims brought under federal law. Juback v. Michaels Stores, Inc., 143 F. Supp. 3d 1195 (M.D. Fla. 2015). Thus, “decisions construing Title VII are applicable when considering claims of discrimination under the Florida Civil Rights Act.” Jiles v. United Parcel Service, Inc., 360 Fed. Appx. 61, 63 (11th Cir. 2010) (quoting Harper v. Blockbuster Entm’t Corp., 139 F. 3d 1385, 1387 (11th Cir. 1998)).
5 [are] not the types of harm that could support a mental anguish award.” (quoting
Patterson v. P.H.P. Healthcare Corp., 90 F. 3d 927, 940 (5th Cir. 1996))). See
also, Akouri v. State of Fla., Dep’t of Transp., 408 F.3d 1338, 1345 (11th Cir.
2005) (reiterating that “although a plaintiff's testimony, standing alone, can support
an award of compensatory damages for emotional distress based on a constitutional
violation, ‘the testimony must establish that the plaintiff suffered demonstrable
emotional distress, which must be sufficiently articulated; neither conclusory
statements that the plaintiff suffered emotional distress nor the mere fact that a
constitutional violation occurred supports an award for compensatory damages’”)
(quoting Price v. City of Charlotte, 93 F.3d 1241, 1254 (4th Cir. 1996)).
Further, and independently, the sole testimony at trial on this issue—that
Jackson felt “very bad,” “angry,” and “mad”—related only to the discriminatory
comments (i.e., Counts I and II, for which the jury found in favor of Kleen 1).
Jackson offered no evidence in support of any emotional damages he allegedly
suffered as a result of the retaliatory discharge.4
CONCLUSION
Accordingly, we reverse in part the trial court’s order granting motion for
directed verdict, and final judgment entered thereon, with directions to enter an
amended final judgment in accordance with the jury’s verdict on Count III— that
4 Although Jackson did assert that he lost wages as a result of the retaliatory discharge, the jury awarded no damages to Jackson in that regard.
6 Jackson proved that he engaged in protected activity and that Kleen 1 terminated
Jackson’s employment because of his protected activity. We affirm the trial
court’s order granting motion for directed verdict, and final judgment, insofar as it
determined that the evidence at trial failed to support the jury’s award of damages.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for the
trial court to enter an amended order granting in part and denying in part the
motion for directed verdict and to render an amended final judgment consistent
with that amended order and with this opinion.