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April 6, 2017 by admin

Civil rights — Employment discrimination — Retaliation — Plaintiff of Vietnamese origin alleging she was dismissed from her employment in retaliation for emails complaining of what plaintiff perceived as hostile work environment — Court recedes from prior precedent which utilized “wholly unrelated” standard, which required a plaintiff to prove only that protected activity and negative employment action were not completely unrelated — Remand for new trial

42
Fla. L. Weekly D785a
Top of Form

Civil
rights — Employment discrimination — Retaliation — Plaintiff of Vietnamese
origin alleging she was dismissed from her employment in retaliation for emails
complaining of what plaintiff perceived as hostile work environment — U.S.
Supreme Court changed causation standard for Title VII retaliation claims when
it held that a plaintiff making a retaliation claim must establish that
protected activity was a “but-for-cause” of adverse action by employer — Because
Florida courts follow federal law when examining Florida Civil Rights Act
retaliation claims, this change required change to causation standard for FCRA
claims — Court recedes from prior precedent which utilized “wholly unrelated”
standard, which required a plaintiff to prove only that protected activity and
negative employment action were not completely unrelated — Remand for new
trial

PALM
BEACH COUNTY SCHOOL BOARD, Appellant, v. LEHA (“BONNIE”) WRIGHT, Appellee. 4th
District. Case No. 4D16-112. April 5, 2017. Appeal from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Lisa S. Small, Judge; L.T.
Case No. 502010CA030544XXXXMB. Counsel: Julie Ann Rico, Office of General
Counsel, and Jean Marie Middleton and Sean Fahey, West Palm Beach, for
appellant. Isidro M. Garcia of Garcia Law Firm, P.A., West Palm Beach, for
appellee.

EN
BANC

(MAY,
J.) The Palm Beach County School Board appeals an adverse judgment on a
retaliation claim. It argues the trial court erred in its instruction to the
jury on causation. We agree and reverse. Because this requires us to adopt a
new standard on causation in line with the United States Supreme Court’s
decision in University of Texas Southwestern Medical Center v. Nassar,
133 S. Ct. 2517 (2013), and recede from our prior decision in Guess v. City
of Miramar
, 889 So. 2d 840 (Fla. 4th DCA 2004), we issue this opinion en
banc.

The
plaintiff is of Vietnamese origin and worked in the Information Technology
Department for over ten years under a series of annual contracts. She
experienced hostile encounters with her supervisor, who criticized her accent
and complained that she could not understand the plaintiff. This caused the
plaintiff to email her supervisor and the Board of Directors about what she
perceived as a hostile work environment.

The
plaintiff never received a response from either her supervisor or the school
board. But, soon thereafter she received a letter notifying her that her
contract would not be renewed for the next school year. She was ordered not to
report to work without explanation.

The
plaintiff ultimately filed a Verified Second Amended Complaint, alleging three
counts. The first count alleged three Florida Civil Rights Act [FCRA]
violations for discrimination, a hostile work environment, and harassment,
based on race and national origin. Count two alleged a FCRA violation for
retaliation. Count three alleged a violation of the 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 claim of race and national origin discrimination.
There was no objection to this ruling. 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 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 and harassment claims in count one and the count three
whistleblower claim. This left the discrimination based on race and national
orign claim in count one and the count two 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 court entered final
judgment awarding the plaintiff $206,000.

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. The trial court denied the school
board’s motion for new trial. The school board now appeals.

The
school board argues 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
plaintiff responds that the trial court was bound by the causation standards
set forth in Carter and Guess. The plaintiff also argues that the
school board acquiesced to using the Carter causation standard during
the charge conference. The school board replies that it never stipulated to
using the Carter causation standard, but only agreed to language once
the court had ruled against the school board’s proposed instruction.

We
have de novo review. D’Angelo v. Fitzmaurice, 863 So. 2d 311, 313 (Fla.
2003).

“[A]
long-standing rule of statutory construction in Florida recognizes that if a
state law is patterned after a federal law on the same subject, the Florida law
will be accorded the same construction as given to the federal act in the
federal courts.” State v. Jackson, 650 So. 2d 24, 27 (Fla. 1995). We 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.” Guess,
889 So. 2d at 849 n.2; see also Carter, 989 So. 2d at 1262; Hinton v.
Supervision Int’l, Inc.
, 942 So. 2d 986, 989 (Fla. 5th DCA 2006); Russel
v. KSL Hotel Corp.
, 887 So. 2d 372, 379 (Fla. 3d DCA 2004). Any changes to
federal case law on Title VII interpretation necessitates a change in the
interpretation of the FCRA.

The
U.S. Supreme Court changed the causation standard for Title VII retaliation
claims in Nassar. There, the Court held that “[t]he text, structure, and
history of Title VII demonstrate that a plaintiff making a retaliation claim
under § 2000(e)3(a) must establish that his or her protected activity was a
but-for-cause of the alleged adverse action by the employer.” Nassar,
133 S. Ct. at 2534 (emphasis added). “Title VII retaliation claims must be
prove[n] according to traditional principles of but-for causation, not the
lessened causation test” for status-based discrimination. Id. at 2533.

Because
“Florida courts follow federal case law when examining FCRA retaliation
claims[,]” this change to Title VII retaliation claims required a change to the
causation standard for FCRA retaliation claims. Carter, 989 So. 2d at
1262. The FCRA must be given the same construction as Title VII post-Nassar.

Nassar
sounded
the end of the “wholly unrelated” standard from Olmsted v. Taco Bell Corp.,
141 F.3d 1457, 1460 (11th Cir. 1998). Olmsted had required the causal
link under Title VII to “be construed broadly” and “‘a plaintiff merely ha[d]
to prove that the protected activity and the negative employment action are not
completely unrelated.’ ” Olmsted, 141 F.3d at 1460 (citation omitted).

Nassar
requires
Title VII retaliation claims to employ a “but-for” causation standard. That
standard must be applied with equal force to FCRA retaliation claims.1 We therefore recede from our prior
precedent in Guess, which utilized the “wholly unrelated” standard from Olmsted.
Guess, 889 So. 2d at 843. The Guess causation standard is simply
no longer valid after Nassar.2

Reversed
and remanded for a new trial on the retaliation claim only.
(CIKLIN,
C.J., WARNER, GROSS, TAYLOR, DAMOORGIAN, GERBER, LEVINE, CONNER, FORST,
KLINGENSMITH and KUNTZ, JJ., concur.)

__________________

1The
school board alternatively argues the trial court erred in using Eleventh
Circuit’s Civil Pattern Jury Instruction 4.21, modified to include the Guess
language, instead of Jury Instruction 4.22. In light of our holding, Jury
Instruction 4.22 correctly states the proper causation standard for retaliation
claims under the FCRA.

2We
note the trial court was required to instruct the jury on the Guess
“wholly unrelated” causation standard at the time of trial based on the
existing case law from this court. See Bunn v. Bunn, 311 So. 2d 387, 389
(Fla. 4th DCA 1975) (“[A]n appellate court’s decision on issues properly before
it and decided in disposing of the case, are, until overruled by a subsequent
case, binding as precedent on courts of lesser jurisdiction.”).

* *
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