## FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 

### 2/18/03 THOMAS K. KAHN CLERK PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 97-2428

D.C. Docket No. 96-865-CIV-ORL-19

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 J udges, 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:2 CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME CO URT OF FLORIDA, PURSUANT TO ARTICLE V, SECTION 3(b)(6) OF TH E 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 ma rital 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 concl ude 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, a lleging that he was the victim of marital status discrimination when AT&T terminated hi s 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 Relati ons concluded that there was reasonable cause to support Mrs. Donato’s initial allegati ons of sex discrimination and retaliation by AT&T. She was discharged from her positi on with AT&T in February 1994, and filed a3 federal action in August 1994, alleging sex di scrimination and retaliatory discharge. In October 1994, Mrs. Donato applied for a temporary clerical position in the division of AT&T which employed her husband. Du ring 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. Donat o was informed that his pos ition 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 posit ion was being eliminated (although Mr. Donato alleges that another employee subsequently was assigned to perfo rm 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 discriminat ion on July 17, 1995, which the EEOC did not timely resolve. He then filed a single-c ount 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 ma rriage status in general and does not prohibit discrimination against a person because he or s he is married to a particular person, e.g. a foreign citizen, a disabled person, or a troublemaker. T he 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 wit h prejudice on March 11, 1997. This appeal followed.4 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 wit h respect to compensation, terms, conditions, or privileges of employment, because of such individual’s ... marital status. Fla. Stat. §760.10(1)(a). Marital status, howev er, is not defined in t he Act or in any other Florida anti-discrimination st atute, and both parties advance conflicting interpretations. Mr. Donato argues that the term “marital st atus” 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) (A ct 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, “marita l status” encompasses notjust the status of being married, as opposed to bei ng 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 ar e as illegal as those taken against a person solely because they are or are not a married person. In contrast, AT&T argues thatthe statutory language is clear : marital “status” is the object of the protection, not marriage to a part icular 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 affirm ed a Florida Commission5 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 Cit izens 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 empl oyee, 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. 5 th 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 awayfrom the workplace). While the employee’s marriage to the disruptive person provi ded the link to justify the cathartic action, presumably the result would have been the same had the relati onship 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. Donat o argues that the Florida Legi slature’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 t hat the Florida Legislature’s decision to carve out an anti-nepotism except ion demonstrates that indivi duals had a cause of action6 for discrimination based on marriage to a particu lar person, otherwise there would not have been a need to amend the Act. As there is little precedential authority wit hin the state, the court has reviewed decisions from states with sim ilar anti-discrimination statutes . Several state courts have expressly limited “marital status” discriminat ion 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 pers on not hired due to husband’s political views, action was not “directed at the instituti on 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 work ing 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 Divis ion’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, def ines marital status as "’the legal status of being married, single, separated, divorc ed or widowed.’" Talley v. Washington Inventory Service , 37 F.3d 310, 311 (7 th Cir. 1994) (quoting the Illinois Human Rights Act, 775 ILCS 5/1-103(J)).7 Courts in other states appear to interp ret 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 pr ior to 1993 legislative amendment which defined “marital status” as the legal st atus 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 requiri ng 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-di scrimination statute). It can be argued that “marital status” s hould be broadly defined in light of other policies which encourage and support the in stitution of marriage, e.g., spousal communication privileges, higher standard deduc tion for federal income tax purposes, expressions of public concern at high divorce rates, etc. See Katrina R. Kelly, Marital Status Discrimination in Washington: Re levance 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-discr imination provisions). In the end, we are unable to divine in wh ich direction the Florida Supreme Court will determine to proceed. We are certain, however, that this is a question best8 answered by that Court. Thus, the court hereby certifies the following question to the Supreme Court of Florida: Can an individual proceed under the Flori da Civil Rights Act by alleging that he was discharged, in violation of the prohi bition on marital status discrimination, because he is married to an individual who filed suit against his employer? Our statement of the question is not meantto limit the scope of inquiry by the Supreme Court of Florida. Ha milton 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.