FCRA Retaliation Claims Require Proof of But-For Causation According to Fourth DCA
04.11.17In an en banc decision by the Fourth District Court of Appeal in Palm Beach Cty. Sch. Bd. v. Wright, Case No. 4D16–112, WL 1278072 (Fla. 4th DCA Apr. 5, 2017), the court adopted a new standard on causation for Florida Civil Rights Act (FCRA) retaliation claims, in line with the United States Supreme Court’s decision in Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), which held that a plaintiff making a retaliation claim under Title VII must establish that the employee's protected activity was the but-for-cause of the alleged adverse action by the employer. Thus, Florida courts have begun to retreat from the previous "wholly unrelated" standard of causation for retaliation claims, where a plaintiff merely had to prove that the protected activity and the adverse employment action are not completely unrelated.
In Wright, the defendant school board did not renew the plaintiff’s employment contract. Plaintiff brought various claims under the FCRA and Florida Public Sector Whistleblower Act. During the charge conference, the trial court ruled that the Eleventh Circuit Civil Pattern Jury Instructions (Civil Cases) and federal case law would be used to instruct the jury on the plaintiff’s claim of race and national origin discrimination. The school board then proposed the court follow the Eleventh Circuit Civil Pattern Jury Instruction 4.22 for the retaliation claim. The plaintiff objected and asked the court to rely on Carter v. Health Management Assoc., 989 So. 2d 1258 (Fla. 2d DCA 2008) and Guess v. City of Miramar, 889 So. 2d 840 (Fla. 4th DCA 2004) to charge the jury on the retaliation claim. The court ruled that the Carter language of “not wholly or completely unrelated” together with the language from Eleventh Circuit Civil Jury Instruction 4.21, Retaliation 42 U.S.C. § 1981, would be given.
At trial, the court granted the school board's motion for directed verdict on the hostile environment, harassment and whistleblower claims, which left the discrimination based on race and national origin claim and the retaliation claim for the jury's determination. The jury returned a verdict for the school board on the discrimination claim, but in favor of the plaintiff on the retaliation claim. The trial court entered final judgment, awarding the plaintiff $206,000.
On appeal, the school board moved for a new trial on the retaliation claim, arguing the trial court incorrectly instructed the jury on causation, which resulted in juror confusion and a miscarriage of justice. Specifically, the school board argued that a new trial should be granted because the trial court should have instructed the jury with the causation standard set forth in Nassar because the complaint alleged claims under Title VII, and not under 42 U.S.C. § 1981.
The appellate court agreed, reversing and remanding for a new trial on the retaliation claim only. In doing so, the Fourth DCA held that Nassar requires Title VII retaliation claims to employ a “but-for” causation standard; and that this standard must be applied with equal force to FCRA retaliation claims. The court noted that the Fourth DCA and other Florida districts have recognized that “[t]he FCRA is patterned after Title VII” and that “federal case law on Title VII applies to FCRA claims.” Accordingly, “[a]ny changes to federal case law on Title VII interpretation necessitates a change in the interpretation of the FCRA.”
Employment practitioners have anticipated that state courts would apply the Nassar heightened standard of proof to FCRA retaliation claims; however, the Fourth DCA is the first Florida district court of appeal to formally adopt the new standard. With this ruling, employers will have more protection defending against claims of retaliation by employees.