4D03-5033-Brown Distributing Company of West Palm Beach v. Marcell

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State: Florida

Court: Florida Fourth District Court

Docket No: 4D03-5033

Case Date: 01/12/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JANUARY TERM 2005 BROWN DISTRIBUTING COMPANY OF WEST PALM BEACH, a foreign corporation, Appellant, v. GALE L. MARCELL, Appellee. This case arose from the termination of Appellee, Gale Marcell, 51, from employment with Brown. Brown is engaged in the business of distributing alcoholic beverages, primarily beer, throughout Palm Beach County. In June of 2000, Brown contacted an employment agency seeking to fill the position of assistant to the general manager. Brown's general manager, Gary Stumpf, met with Marcell and hired her as a temporary employee on a "temporary-topermanent" basis, with her permanent status to be evaluated and determined after a trial period. According to Stumpf, Marcell was below average in the performance of her tasks. The tasks with which Stumpf had particular complaints related to organization, filing, mail, and telephone calls. Stumpf had reassigned at least a minimal amount of work which Marcell would ordinarily do, to other more competent employees. When it came time to make a determination of Marcell's permanent status, Stumpf did not think she was grasping what the job was about or that she could do all the different tasks that were part of the job. Stumpf did not think she could handle the whole job and found her to be difficult to work with at times. Specifically, Stumpf complained that Marcell had a temper, and that any time Marcell received feedback, she would get defensive and "blow up." Ultimately, Stumpf decided to fire Marcell. He gave her two-weeks notice to obtain new employment so that she would not incur any undue hardship. Stumpf left the office on a preplanned vacation during Marcell's final two weeks. During Stumpf's absence, Marcell had an incident with Yvonne McNaughton, the Tax Audit Supervisor at the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. After the incident, McNaughton called Brown and requested to never have Marcell return to that agency. In response, another Brown supervisor immediately terminated Marcell one week into her two-week notice period.

CASE NO. 4D03-5033

Opinion filed January 12, 2005 Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jorge Labarga, Judge; L.T. Case No. CA 018551 AB, 502001CA008551ZZONAB. Christine D. Hanley and Sally Still of Christine D. Hanley & Associates, P.A., West Palm Beach, for appellant. Arthur Schofield of Arthur T. Schofield, P.A., West Palm Beach, for appellee. ON MOTION FOR REHEARING POLEN, J. We deny appellee's Motion for Rehearing, but substitute the following corrected opinion for our slip opinion issued November 17, 2004. Appellant, Brown Distributing Company, appeals a final order denying its motion to set aside verdict or alternatively motion for new trial in an age discrimination case. Brown challenges the trial court's evidentiary rulings regarding the admission and exclusion of testimony and the failure to give proposed jury instructions on after-acquired evidence and the same actor inference. We reverse and remand for a new trial for the reasons that follow.

Marcell, however, portrays a different story from her work experience at Brown. Marcell claims that Stumpf advised her on numerous occasions that she was doing a good job. This sentiment was corroborated by an employee at the employment agency who had also been informed by Stumpf that Marcell was performing well. Nevertheless, Marcell was informed that she was being let go and thus would not obtain permanent status. Marcell inquired as to the reason for her discharge and Stumpf allegedly replied that it was not her performance but merely that things were "just not clicking. . . . I need somebody that understands me better than my wife." Marcell does acknowledge the incident with McNaughton, but claims that she would not normally have behaved that way had she not just been informed that she was being fired. Prior to trial, Brown moved in limine to exclude certain testimony about dissimilar events remote in time and unrelated to the decision-maker at issue. The trial court denied Brown's motion and admitted the testimony. The trial court did, however, grant Marcell's motion in limine to exclude evidence that she was fired because she was rude to McNaughton and that she was fired at her next job because of a poor attitude. The trial proceeded and after the close of evidence, the trial court denied Brown's proposed jury instructions on after-acquired evidence and the same actor inference. The jury ultimately found that Brown discriminated against Marcell on the basis of her age, awarding her $35,000 in lost wages and $5,000 in compensatory damages. Thereafter, Brown unsuccessfully moved to set aside the verdict and/or a new trial. Brown first challenges the trial court's ruling which allowed Marcell to introduce testimony intended to show a history of discrimination by Brown on the basis of age. Marcell elicited testimony that, one year prior to her employment at Brown, Brown had informed other employees that they were terminated because they were too old. Marcell also introduced testimony that, three years after her employment at Brown

ended, a new Brown supervisor began inquiring as to the age of prospective applicants. We are unpersuaded by Brown's classification of the challenged testimony as improper character evidence. Rather, we focus our attention on Brown's relevance argument. "Relevant evidence is evidence tending to prove or disprove a material fact."

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