Florida Bar News

Amendments to jury instructions dealing with employment actions

The Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted to the Florida Supreme Court a report proposing amendments to the following civil jury instructions: 415.4 (Retaliation; Adverse Employment Action); 415.5 (Protected Activity); and 415.8 (Preliminary Issue—Adverse Employment Action).

The Court invites all interested persons to comment on the proposed amendments, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the Court on or before August 15, 2018, with a certificate of service verifying that a copy has been served on the Committee Chair, Laura K. Whitmore, Shook, Hardy & Bacon, 100 N. Tampa Street, Suite 2900, Tampa, Florida 33602, [email protected], and on the Bar Staff Liaison to the Committee, Heather Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, [email protected], as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until September 5, 2018, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT NO. 18-02, CASE NO. SC18-916

Retaliation means [discharging] [or] [demoting] [or] [suspending] [or] [taking certain an adverse employment action against] an employee because the employee engaged in [a] protected activit[y] [ies].]

[An adverse employment action is retaliation if it affects the terms and conditions of employment and would discourage a reasonable employee in [(claimant’s)] position from engaging in [a] [protected activit[y] [ies].] any type of significant action that would make a reasonable employee reluctant to engage in protected activity.]

1. The definitions of retaliation and adverse employment action are derived from F.S. 448.101(5) and case law. Donovan v. Broward Cnty. Bd. of Comm’rs, 974 So. 2d 458, 460 (Fla. 4th DCA 2008) ( citing Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53 (2006) for the proposition that an adverse employment action is any action which that would discourage reasonable employee from making or supporting charge of discrimination); Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53 (2006) (Title VII’s anti-retaliation provision does not confine the actions and harms it forbids to those that are related to the employment or occur at the workplace. Rather, any action, whether or not directly related to work, can form the basis of a retaliation claim, so long as a reasonable employee would consider the action to be materially adverse.).

2. Use the second paragraph of this instruction when the plaintiff claims that the defendant imposed an adverse employment actiontook action other than or in addition to discharge, suspension or demotion and the defendant disputes that such action constitutes an actionable adverse employment action. The trial court should use the second paragraph in conjunction with instruction 415.8.

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Protected activity is:

[disclosing] [or] [threatening to disclose] to (appropriate governmental agency), under oath, in writing, an activity, policy or practice of (defendant) that is in violatedion of(describe law, rule, or regulation)] [or]

< p>[providing information to] [or] [testifying before] (appropriate governmental agency, person, or entity), which was conducting an [investigation,] [hearing] [or] [inquiry] into an alleged violation of (describe law, rule, or regulation) by (defendant)] [or]

< p>[objecting to (defendant’s) activity, policy, or practice that is in violatedion of(describe law, rule, or regulation)] [or] [refusing to participate in (defendant’s) activity, policy or practice that is in violatedion of(describe law, rule, or regulation)] [or] [would have violated] (describe law, rule, or regulation), had (plaintiff) participated.]

1. The bracketed language is derived from F.S. 448.102(1), (2) and (3).

2. AThe law is unsettled as to whether, under F.S. 448.102(3), a claimant must prove an actual violation of law as opposed to a reasonable, good faith belief that a violation of law has occurred. In Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA 2013), the court held that a good-faith objectively reasonable belief is sufficient to state a cause of action. However, in Kearns v. Farmer Acquisition Co., 157 So. 3d 458 (Fla. 2d DCA 2015), the court refused to follow Aery and held that proof of an actual violation was required. Some, all three federal district courts sitting in Florida have held that the plaintiff must prove an actual violation of law. See, e.g., Paulet v. Farlie, Turner & Co., LLC, 2010 WL 2232662, at *2 (S.D. Fla. June 2, 2010); Smith v. Psychiatric Solutions, Inc., 2009 WL 903624, at *7 (N.D. Fla. Mar. 31, 2009); White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335, 1336 (M.D. Fla. 2005), while others have held that a reasonable belief is sufficient; but see Padron v. BellSouth Telecomms., Inc., 196 F. Supp. 2d 1250, 1255 (S.D. Fla. 2002) (in dicta, court noted that plaintiff’s reasonable belief that violation of law occurred is sufficient). The committee takes no position on which standard the trial court must use or whether any additional instructions or modification to the above-language is required.

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On (claimant’s) claim there is a preliminary issue for you to decide. That issue is whether (describe the alleged conduct) was an adverse employment action. An adverse employment action is any type of significant action that would make a reasonable employee reluctant to engage in protected activity.

Use instruction 415.8 in conjunction with the second paragraph in instruction 415.4 when plaintiff claims that the defendant imposed took an adverse employment action other than or in addition to discharge, suspension , or demotion , unless defendant concedes that such other action constitutes an adverse employment action.