Maintenance worker cleans up in suit against Wellington mall's janitorial company

By Taryn Phaneuf | Jun 3, 2016

WEST PALM BEACH – A man who accused a cleaning company of refusing to hire him because of his race was awarded approximately $172,000 by a jury.

Fitz Austrum, an African-American maintenance worker, applied for a job with Federal Cleaning Contractors in 2013, anticipating the company’s takeover of cleaning and maintenance at the Mall at Wellington Green. Austrum worked as a supervisor on the overnight shift for the company Federal would replace.

Austrum sued the company, alleging the Hispanic-American project manager, who also worked at the previous company and had expressed a preference for Hispanic workers, was the one responsible for the discrimination.

Federal denied the allegations and offered little in terms of settlement, Barry S. Balmuth, Austrum’s attorney, told the Florida Record. He said Federal offered $10,000 to settle the suit two months before the trial – which was a solid bump up from its original pretrial offer of $800.

“Civil rights laws have a provision which requires a defendant to pay the attorney’s fees of plaintiffs who prevail, and I had $50,000 in attorney’s fees accrued in the case at the time, so it was like offering minus $40,000,” Balmuth said.

Additionally, no one from Federal’s corporate management attended the trial, he added.

Federal claimed it didn’t have money to hire an overnight shift manager and Austrum turned down job offers for other shifts. But Austrum countered that he told Angel Lopez, the project manager, and noted on his application that he was open to any position on any shift.

A couple key procedural decisions helped Austrum prevail in the suit. First, U.S. District Court for the Southern District of Florida Judge Kenneth Marra excluded findings by the Florida Commission on Human Rights, which found that there wasn’t a reason to believe discrimination was part of Federal’s hiring decision, after the judge concluded the investigation wasn’t thorough.

“I think that a government agency's findings might have carried a lot of weight with a jury who, unfortunately, don’t know that the agency does very little investigating,” Balmuth said, adding that Federal’s arguments – that it didn’t have the budget for the position Austrum wanted – didn’t hold up because it hired someone to fill that position eight days after it took over at the mall.

Second, Federal threw away the application paperwork that could have proved whether Austrum had noted an openness to other shifts and positions, which violates federal regulations. Employers are supposed to hold onto applications of the applicants they don’t hire for a year. It was determined that this was Federal’s regular policy and the company didn’t have any malicious intent. Still, without the application, it would be harder for Austrum to prove that he filled it out the way he said he did. The court determined that the jury should be told to presume that Austrum was telling the truth about the application.

“I think the instruction of a presumption that we received based on the discarded employment applications was very helpful,” Balmuth said. “I saw that a couple of blog writers for law firms had picked up on this aspect of the case and were blogging presumably to their clients to urge them to retain records.”

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