Gallagher v. Manatee County:The Sovereign Immunity Cap for FCRA Claims Includes Attorneys’ Fees and Costs
The Second District Court of Appeal recently issued a decision which is likely to significantly impact practitioners in the area of employment law regarding the application of the $100,000 cap in F.S. §768.28(5). In Gallagher v. Manatee County, 31 Fla. L. Weekly D339 (Fla. 2d DCA February 1, 2006), the court held that the plaintiff’s attorneys’ fees, costs and expenses, compensatory damages, and back pay award were collectively subject to the limitation on the “total amount of recovery” provided for in F.S. §760.11(5), which adopts by reference the $100,000 cap in F.S. §768.28(5). The holding represents a bright-line decision regarding the scope of the statutory cap applicable to claims under the Florida Civil Rights Act of 1992 (FCRA)1 against governmental entities enjoying the benefits of sovereign immunity.
The case involved a claim by Gallagher against his employer, Manatee County, for gender discrimination and retaliation under the FCRA. Following a jury trial, a verdict was returned in favor of Gallagher, awarding him compensatory damages of $230,000 and back pay of $20,000.2 As is typical in some employment discrimination cases, the total amount awarded for attorneys’ fees ($291,743.75) and costs and expenses ($18,282.50) exceeded the recovery to Gallagher for compensatory damages and back pay.3 The trial court, however, applied the statutory $100,000 cap on the county’s liability. Thus, Gallagher was limited in the amount he could recover from the county in a judgment to $100,000.
On appeal, Gallagher argued that the trial court erred because the $100,000 cap applies only to compensatory damages and not to other monetary awards available under §760.11(5). In support of these contentions, Gallagher asserted that 1) the statutory provisions regarding the cap are ambiguous; and 2) §760.11(5) mandates a liberal construction as required by §760.01(3).4
In rejecting these contentions, the court began its analysis by examining the appropriate statutory framework beginning with §760.11(5), which sets forth in pertinent part the remedies available to persons aggrieved by a violation of the FCRA:
(5) In any civil action brought under this section, the court may issue an order prohibiting the discriminatory practice and providing affirmative relief from the effects of the practice, including back pay. The court may also award compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries, and punitive damages…. The judgment for the total amount of punitive damages awarded under this section to an aggrieved person shall not exceed $100,000. 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…. Notwithstanding the above, the state and its agencies and subdivisions shall not be liable for punitive damages.The total amount of recovery against the state and its agencies and subdivisions shall not exceed the limitation as set forth in s. 768.28(5).5(Emphasis added.)
The court next examined §768.28(5), the statutory provision establishing limitations on the waiver of sovereign immunity for tort liability:
(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.6
The court concluded that the plain meaning of the phrase “total amount of recovery” in §760.11(5) requires that it include all forms of monetary relief, including attorneys’ fees and costs. The court pointed to the dictionary definition of the term “recovery,” which it found to be broad and comprehensive, and indicated that together with the use of the term “total,” the legislature could not have been any clearer in drafting the statute. Specifically, the court stated,
Recoverymeans “the obtaining of right to something by verdict or judgment of a court of law.” Random House Unabridged Dictionary 1613 (2d ed. 1993); see also Black’s Law Dictionary 1302 (8th ed. 2004) (definingrecoveryas “an amount awarded in or collected from a judgment or decree”); cf. Webster’s Third New International Dictionary 1898 (1993) (defining recover [*7] as “to gain by legal process”). Recoveryand its cognate recover are broad and comprehensive terms. There is nothing in the meaning of recovery which suggests that some elements of an award are not part of the recovery which is subject to the cap on liability. The legislature employed a phrase — “thetotal amount of recovery”— that is crystal clear in its inclusiveness.7
However, the court did not rely solely on rules of statutory construction and went on to observe other court decisions and statutes wherein “back pay” and attorneys’ fees and costs were determined to be part of a “recovery.”8 Finally, the court indicated that a direction in §760.11(5) that the provision for attorneys’ fees be interpreted in a manner consistent with federal case law involving a Title VII action does not apply to the issue of whether attorneys’ fees are subject to the cap. The court reasoned that other than containing a provision disallowing an award of punitive damages against the government, the federal statute contains no limitations on recoveries against governmental entities.9
In this author’s opinion, the Gallagher decision is well-reasoned and based on the application of long-standing legal principles. Whether the decision will impact the effectiveness of the remedies provided to a prevailing civil rights plaintiff against a governmental entity enjoying the benefits of sovereign immunity, as the court suggests, remains to be seen. One anticipated outcome from this decision may be an increase in the filing of parallel federal claims under Title VII in conjunction with FCRA claims in state court proceedings. Importantly, Gallagher involved claims for retaliation and gender discrimination under the FCRA only. However, FCRA claims may also often be brought in conjunction with Title VII claims in the same case.
Over the past several years, there has been a trend of employment law practitioners representing employees bringing an increased number of claims against governmental entities in state court based solely on alleged violations of the FCRA, even though parallel claims could perhaps be asserted under Title VII in the same action.10 Perhaps many plaintiff’s practitioners are concerned that governmental defendants will remove such cases to federal court if federal claims are included, and that their chances of defeating summary judgment motions are better if they are able to remain in state court as opposed to litigating in federal court. In addition, perhaps plaintiff’s practitioners do not desire to be subject to the Rule 26 requirement and deadlines often imposed by the federal courts. Regardless of the reasons for preferring state court, there is likely to be an increase in federal claims as a result of the Gallagher decision simply to attempt to avoid the application of the $100,000 cap.
Another possible outcome may be a decrease in the number of proposals for settlement in cases only involving FCRA claims. Whether the statutory cap applies to proposals for settlement in claims brought under FCRA is a novel question, one which does not appear to have been addressed by the courts.11 However, a logical extension of Gallagher is that a proposal for settlement by a plaintiff would be of little effect in an FCRA case as any award for attorneys’ fees pursuant to a proposal for settlement would also be subject to the cap.
1 Fla. Stat. §760.01 et seq. (2005).
2 Gallagher, 31 Fla. L. Weekly D339, *1-3.
3 Commissioner v. Banks, 543 U.S. 426, 438 (2005).
4 Gallagher, 31 Fla. L. Weekly D339, *1-3.
5 Id; quoting Fla. Stat. §760.11(5).
6 Gallagher, 31 Fla. L. Weekly D339, *4; quoting Fla. Stat. §768.28(5).
7 Id. at *6-9.
8 See Berek v. Metropolitan Dade County, 396 So. 2d 756.759 (Fla. 1981); and Pinellas County v. Bettis, 659 So. 2d 1365, 1367 (Fla. 2d D.C.A. 1995), wherein the courts held that the statutory cap includes costs and postjudgment interest. However, it should be noted that the Florida Supreme Court, in Cauley v. City of Jacksonville, 403 So. 2d 379 (Fla. 1981), referred, albeit in dicta, to the cap set forth in §768.28(5) as providing a ceiling for “compensatory recovery.” Nevertheless, Cauley did not involve an FCRA claim, and, therefore, did not involve an interpretation of §760.11(5).
9 Gallagher, 31 Fla. L. Weekly D339, *13-14.
10 Maniccia v. Brown, 171 F.3d 1364, 1368 n.2 (11th Cir. 1999); Brasington v. EMC Corp., 855 So. 2d 1212, 1217 (Fla. 1st D.C.A. 2003).
11 At least two courts have reached different opinions on whether the cap applies to attorneys’ fees in the context of a tort claim. Pinellas County v. Bettis, 659 So. 2d 1365 (Fla. 2d D.C.A. 1995) (indicating in the affirmative); Tramel v. Bass, 707 So. 2d 847 (Fla. 1st D.C.A. 1998) (indicating in the negative). Notably, the Bass court certified the operative question to the Supreme Court, but the case was settled and dismissed before a decision was reached.