PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
No. 97-2428 ELEVENTH CIRCUIT
2/18/03
THOMAS K. KAHN
D.C. Docket No. 96-865-CIV-ORL-19
CLERK
ROSARIO DONATO,
Plaintiff-Appellant,
versus
AMERICAN TELEPHONE AND TELEGRAPH COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(July 23, 1998)
Before ANDERSON and BLACK, Circuit Judges, and HOEVELER*, Senior District Judge.
*Honorable William M. Hoeveler, Senior U.S. District Judge for the Southern District of
Florida, sitting by designation.
HOEVELER, Senior District Judge:
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO
ARTICLE V, SECTION 3(b)(6) OF THE FLORIDA CONSTITUTION. TO THE
SUPREME COURT OF FLORIDA AND THE HONORABLE JUSTICES THEREOF:
This case raises the issue of whether a discharged employee can assert a claim
under the Florida Civil Rights Act, Florida Statutes §760.10, for marital status discrimination
in employment practices where the employee allegedly was discharged in retaliation for the
actions of his spouse. We have studied the question and conclude that this case presents
an important issue of Florida law that has not been addressed by the Supreme Court of
Florida. Accordingly, we believe the issue is appropriate for resolution by Florida's highest
court, and defer our decision in this case pending certification of the question to the
Supreme Court of Florida. To frame this issue for the Court’s review we offer the following.
This case is brought by Rosario Donato, alleging that he was the victim of marital
status discrimination when AT&T terminated his employment shortly after Mr. Donato’s
wife, a former AT&T employee, sued AT&T. Mr. Donato filed his complaint in 1996 under
the Florida Civil Rights Act, which, inter alia, protects employees from discrimination based
on marital status.
In March 1992, Mrs. Lynda Donato filed a claim against AT&T. On October 21,
1993, the Florida Commission on Human Relations concluded that there was reasonable
cause to support Mrs. Donato’s initial allegations of sex discrimination and retaliation by
AT&T. She was discharged from her position with AT&T in February 1994, and filed a
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federal action in August 1994, alleging sex discrimination and retaliatory discharge. In
October 1994, Mrs. Donato applied for a temporary clerical position in the division of AT&T
which employed her husband. During a meeting with manager Al Facini, she disclosed her
lawsuit against AT&T and was told that she was “over-qualified” for the open position.
In November 1994, Mr. Donato was informed that his position as a Systems Analyst
was placed “at risk”, allegedly due to Mr. Donato’s poor performance. He also was told by
his supervisor, Frank Minardi, that his position was being eliminated (although Mr. Donato
alleges that another employee subsequently was assigned to perform all of his duties). On
November 15, 1994, just two days before his thirtieth-year anniversary with AT&T, Mr.
Donato was discharged.
Mr. Donato filed a charge of discrimination on July 17, 1995, which the EEOC did
not timely resolve. He then filed a single-count complaint in state court on July 3, 1996,
seeking reinstatement, compensation, and punitive damages up to $100,000. AT&T
removed the case to federal court on the basis of diversity and then moved to dismiss the
case, arguing that the Act only protects marriage status in general and does not prohibit
discrimination against a person because he or she is married to a particular person, e.g.
a foreign citizen, a disabled person, or a troublemaker. The District Court granted AT&T’s
motion in a brief order issued February 21, 1997, and upon Mr. Donato’s failure to amend
his complaint, the case was dismissed with prejudice on March 11, 1997. This appeal
followed.
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The issue here is whether Mr. Donato has stated a cause of action under the Florida
Civil Rights Act, Florida Statutes §760.10(1)(a). The Act provides:
(1) It is an unlawful employment practice for an employer:
(a) To discharge or to fail or refuse to hire any individual, or otherwise to
discriminate against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such individual’s ...
marital status.
Fla. Stat. §760.10(1)(a). Marital status, however, is not defined in the Act or in any other
Florida anti-discrimination statute, and both parties advance conflicting interpretations.
Mr. Donato argues that the term “marital status” in the Act is ambiguous and must
be construed broadly so as to effectuate the purpose of the Act (i.e. to prohibit
discrimination). See Fla. Stat. §760.01(3) (Act must be “liberally construed to further the
general purposes stated in this section and the special purposes of the particular provision
involved.”). According to Mr. Donato, “marital status” encompasses not just the status of
being married, as opposed to being single, but also the status of being married to a
particular person. Under his suggested construction, adverse employment actions which
are taken due to the identity of one’s spouse are as illegal as those taken against a person
solely because they are or are not a married person.
In contrast, AT&T argues that the statutory language is clear: marital “status” is the
object of the protection, not marriage to a particular person. AT&T asserts that a claim
does not exist where an individual alleges unlawful discharge because of his or her
spouse’s identity, as compared to the simple “status” of being married.
Few reported decisions exist in Florida to guide this court’s interpretation of the
statute. In 1986, Florida’s Second District Court of Appeal affirmed a Florida Commission
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on Human Relations ruling that an individual had a cause of action for marital status
discrimination where he was fired because he married a co-worker. Owens v. Upper
Pinellas Ass’n for Retarded Citizens, 8 Fla. Admin. L. Rep. 438 (Sept. 10, 1985), aff’d sub
nom., Upper Pinellas Ass’n for Retarded Citizens v. Florida Commission on Human
Relations, 495 So. 2d 754 (Fla. 2d Dist. Ct. App. 1986). Two years later, the Fifth District
Court of Appeal reversed a Commission ruling (which had rejected the decision of an
administrative hearing officer) and found that an employer’s discharge of an employee in
order to keep that employee’s husband, who was a former employee, away from the work
premises was not discrimination on the basis of marital status. National Industries v.
Florida Commission on Human Relations, 527 So. 2d 894 (Fla. 5th Dist. Ct. App. 1988).
The decision in National Industries is a narrow one, merely upholding a hearing officer’s
uncontroverted finding of fact that the discharge was based on a legitimate business reason
(keeping the discharged employee’s husband away from the workplace). While the
employee’s marriage to the disruptive person provided the link to justify the cathartic action,
presumably the result would have been the same had the relationship been that of parent
and child or brother and sister.
In 1992, the Florida Legislature effectively overruled the Owens decision when it
amended the Act to allow employers to discharge employees when acting pursuant to an
anti-nepotism policy. Mr. Donato argues that the Florida Legislature’s response to the
Owens decision demonstrates that the status of being married to a particular person is
actionable under the Act. Mr. Donato contends that the Florida Legislature’s decision to
carve out an anti-nepotism exception demonstrates that individuals had a cause of action
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for discrimination based on marriage to a particular person, otherwise there would not have
been a need to amend the Act.
As there is little precedential authority within the state, the court has reviewed
decisions from states with similar anti-discrimination statutes. Several state courts have
expressly limited “marital status” discrimination to those situations in which one’s
claimed discrimination is a result of being single, married, divorced or widowed. See,
e.g., Miller v. C.A. Muer Corp., 420 Mich. 355, 363 (1984) (relevant inquiry is “if one is
married rather than to whom one is married”); Cybyske v. Independent School District
No. 196, Rosemount-Apple Valley, 347 N.W. 2d 256, 261 (Minn. 1984) (no
discrimination on marital status where person not hired due to husband’s political views,
action was not “directed at the institution of marriage itself”); Thomson v. Sanborn's
Motor Express, Inc., 154 N.J. Super. 555, 561 (N.J. Super. Ct. App. Div. 1977)
(upholding policy excluding relatives from working in same department as not directed
toward “married people”); Manhattan Pizza Hut, Inc. v. New York State Human Rights
Appeal Board, 51 N.Y. 2d 506, 511 (N.Y. 1980) ("marital status" means the social
condition enjoyed by an individual by reason of his or her having participated in
marriage; rejected New York Human Rights Division’s position that marital status should
be construed broadly to "embrace the identity or situation of the individual's spouse").
The Illinois Human Rights Act, which contains a similar anti-discrimination provision to
that contained in the Florida Civil Rights Act, defines marital status as "’the legal status
of being married, single, separated, divorced or widowed.’" Talley v. Washington
Inventory Service, 37 F.3d 310, 311 (7th Cir. 1994) (quoting the Illinois Human Rights
Act, 775 ILCS 5/1-103(J)).
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Courts in other states appear to interpret general prohibitions on marital status
discrimination more broadly. See, e.g., Magula v. Benton Franklin Title Co., 131 Wash.
2d 171, 182 (Wash. 1997) (noting that prior to 1993 legislative amendment which
defined “marital status” as the legal status of being married, Washington courts
employed broad interpretation and found actions based on spousal conduct constituted
discrimination on basis of marital status); Ross v. Stouffer Hotel Company (Hawaii) Ltd.,
72 Haw. 350, 355 (Haw. 1991) (policy requiring discharge of one employee if they marry
another person working in same department is discrimination on basis of marital status);
Thompson v. Board of Trustees, School District No. 12, Harlem, Blaine County, 192
Mont. 266, 271 (Mont. 1981) (“marital status” includes the identity and occupation of
one’s spouse such that rule against spouses working within same school system was
violative of state anti-discrimination statute).
It can be argued that “marital status” should be broadly defined in light of other
policies which encourage and support the institution of marriage, e.g., spousal
communication privileges, higher standard deduction for federal income tax purposes,
expressions of public concern at high divorce rates, etc. See Katrina R. Kelly, Marital
Status Discrimination in Washington: Relevance of the Identity and Actions of an
Employee’s Spouse, 73 Wash. L. Rev. 135, 153 (1998) (noting that Washington
statutes reflect a policy favoring marriage, one which supports a broad interpretation of
marital status anti-discrimination provisions).
In the end, we are unable to divine in which direction the Florida Supreme Court
will determine to proceed. We are certain, however, that this is a question best
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answered by that Court. Thus, the court hereby certifies the following question to the
Supreme Court of Florida:
Can an individual proceed under the Florida Civil Rights Act by alleging that he
was discharged, in violation of the prohibition on marital status discrimination,
because he is married to an individual who filed suit against his employer?
Our statement of the question is not meant to limit the scope of inquiry by the
Supreme Court of Florida. Hamilton ex rel. Hamilton v. Cannon, 80 F.3d 1525, 1535
(11th Cir.1996) (phrasing used in the certified question does not restrict consideration of
the problems involved). The entire record in this case, together with copies of the
parties' briefs, is transmitted herewith.
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