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Kyle Dudek is an associate in the Tort & Insurance Litigation division. A large part of his practice is dedicated to serving as counsel for state and municipal entities involved in civil rights litigation. Kyle defends government actors against claims for false arrest, malicious prosecution, excessive force, and retaliation under the First Amendment. In the private sector, Kyle defends individuals and entities in cases involving employment law, premises liability, professional malpractice, subrogation rights, automobile liability, and wrongful death. In addition, Kyle has experience handling insurance coverage disputes.

Kyle’s practice before joining Henderson Franklin also afforded him extensive time in the courtroom. He served as a law clerk for the Honorable G. Steve Agee in the U.S. Court of the Appeals for the Fourth Circuit, the Honorable James C. Cacheris in the U.S. District Court for the Eastern District of Virginia, and the Honorable Andrew Baxter in the U.S. District Court for the Northern District of New York. Kyle also previously worked as an associate for a law firm in Northern Virginia.

Kyle is a member of the Florida, Virginia, and New York Bars. He is admitted to practice before all state courts in Florida, Virginia and New York, as well as the Middle District of Florida, the Northern District of New York, the Eastern District of Virginia, and the United States Court of Appeals for Fourth Circuit.

Kyle has been recognized for his professional achievements and was named a “Rising Star" by Florida Super Lawyers magazine in 2018.

Kyle graduated magna cum laude from George Mason University School of Law, where he served on the Articles Committee for the Journal of Law, Economics & Policy. He was also an active member of the business law society, first as the treasurer and then president. While attending Cornell University, Kyle was a teaching assistant and nationally certified peer tutor.

Kyle grew up in Syracuse, New York and relocated to Southwest Florida to join the Henderson Franklin legal team. He currently resides in Fort Myers with his wife, Casey. When not working, Kyle enjoys golfing and walking his dog.

Articles

The Americans with Disabilities Act (the “ADA”) has been a tremendous source of litigation since its passage nearly thirty years ago. The ADA was originally put in motion to provide equal access to physical locations and services. It generally requires establishments to provide people with disabilities easy access to a business. But in 2016, the ADA began to include websites. The ultimate goal of the ADA is to eliminate exclusivity and offer an equal experience to all people. Thus, the logic goes, businesses should be inviting to everybody via physical location and website.

Over the past year, plaintiff attorneys have developed a cottage industry by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired. From 2017-18, lawsuits targeting website compliance have increased by 177%, with more than 2,000 filed in 2018. Often times the same disabled individual (with the same attorney) will file these claims. They seek an injunction to make the company’s website ADA accessible and attorneys’ fees. A nominal settlement will quickly follow (typically a few thousand dollars) with the vast majority of this going to the attorney. Florida is a breeding ground for this drive-by litigation, and it is frustrating the federal courts. See Price v. Escalante – Black Diamond Golf Club LLC, No. 5:19-CV-22-OC-30PRL, 2019 WL 1905865, at *1 (M.D. Fla. Apr. 29, 2019).

Lack of Guidance


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Title VII Requires Administrative Exhaustion

Before an employee alleging employment discrimination under Title VII may file a lawsuit in federal court, she must first exhaust administrative remedies by bringing formal charges with the Equal Employment Opportunity Commission (EEOC) or an equivalent state agency. This administrative-exhaustion process is designed to allow the EEOC to step in, and also gives the parties an opportunity at early settlement. If the EEOC decides not to take the case, it must issue a “right-to-sue letter,” which is evidence that the administrative exhaustion requirement has been satisfied. The employee then has 90 days to file suit.

There has long been a circuit split on how to treat discrimination claims that were never raised with the EEOC but later find their way into a plaintiff’s lawsuit. Several appeals courts treated this failure as an affirmative defense that could be waived by the employer if not timely asserted. The competing approach was to treat administrative exhaustion as a jurisdictional requirement. Meaning the defense could not be waived, thereby permitting employers (and the court) to raise the issue at any time. Prior to the Supreme Court weighing in the on the matter, the Eleventh Circuit fell into the latter camp. See, e.g., Bloodworth v. Colvin, 17 F. Supp. 3d 1245, 1250 (N.D. Ga. 2014) (“[I]n the Eleventh Circuit, administrative exhaustion is a jurisdictional prerequisite to Title VII actions.”) (citing Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir.1999)).

Background – Fort Bend County v. Davis, No. 18-525


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In 1966, the EEOC began requiring companies with 100 or more employees to compile employment data by race/ethnicity, gender, and job category. Dubbed EEO-1 Reports, these surveys were meant to provide a snapshot of how many racial and ethnic minorities and women were working in a company.

EEO-1 Reports Expanded

During President Obama’s tenure, the EEO-1 Report was broadened into two components. Component 1 would include the same information always collected, while Component 2 would include W-2 wage information for employees by race, ethnicity, and sex. Although designed to target pay discrimination, Component 2 was viewed as overly burdensome. Data compilation would take countless hours, while the human error rate was sure to increase on account of the significantly expanded form.


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Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on “sex.” Most federal courts have interpreted Title VII to exclude sexual orientation discrimination. The Eleventh Circuit falls into this camp. Since its predecessor’s 1979 decision in Blum v. Gulf Oil Corp., 597 F.2d 936, 937 (5th Cir. 1979), the Eleventh Circuit has steadfastly held to its view that “discharge for homosexuality is not prohibited.” Id. The rationale being that Title VII speaks only of a person’s sex and not sexual orientation. Against this textual backdrop, it is the legislature’s job to extend Title VII if it sees fit. See Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017) (discussing view that sexual orientation is not a cognizable claim under Title VII.

Circuit Split


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A plaintiff asserting a discrimination claim under Title VII must make a preliminary showing that her claims have merit. She can do so in a variety of ways, one of which is by navigating the familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another “similarly situated” individual. The Eleventh Circuit has long grappled with the question of just how “similarly situated” a plaintiff and her comparators must be – waffling between a standard of  “nearly identical” and “same or similar.”

This confusion came to an end last week in Lewis v. City of Union City, Ga., No. 15-11362 (11th Cir. Mar. 21, 2019), when the Eleventh Circuit sitting en banc held that a plaintiff must demonstrate she and the comparators are “similarly situated in all material respects.” Although the nomenclature is new, the court’s analysis of this standard is a win for employers. As the dissenting judges proclaimed,

[t]oday, the Majority Opinion drops an anvil on the employer’s side of the balance.”

The Facts


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The First Amendment is commonly understood as protecting the right to free speech. But the First Amendment does not impact the ability of private citizens and organizations to punish or limit speech. This is why it’s permissible for a private employer to fire an employee for engaging in speech the employer disapproves of – private employers have the right to manage their employees as they see fit.

The situation grows more complicated when the government is the employer. Like any other employer, the government has a legitimate interest in maintaining efficient offices and agencies, which often requires managing and disciplining employee speech. At the same time, however, public sector employees have a protected right to free speech under the First Amendment.

The law attempts to balance these two interests noted above by differentiating between private and official speech. The First Amendment only protects government employees when they are speaking as a private citizen about matters of public concern. If the government employee’s speech is instead part of their official job duties, they can be disciplined or fired for what they say.

Private v. Official Speech Test


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