The World of Retaliation After Robinson v. Shell Oil
I n the ever-expanding world of litigation between employers and their employees, there is
no larger protected class than those individuals who are shielded from retaliatory actions for taking part in the labyrinthical civil rights and whistle blower protection systems. While it is obvious an employer should not be free to fire an employee for filing a claim based on the Florida Civil Rights Act or reporting illegal activity to the appropriate government agency, what is not so obvious is what actions are protected, which actions by the employer might constitute retaliation, and how many people, other than the main complainant, are covered. In fact, recent decisional law extends this protection to people who are no longer working at the accused employer’s business.
This article explores the parameters in which the practitioner must operate when analyzing and litigating disputes concerning alleged retaliation from both the plaintiff and defense perspectives. Because the Florida Civil Rights Act largely mirrors the federally equivalent laws in both style and purpose, federal case law is applicable.1 A s a bottom line, though, all “employees” are protected.
Robinson: An Expanded Definition of “Employees”
While prospective2 a nd current employees have always been covered by anti-retaliation provisions, the use of the expression “employee” has recently been expanded. In the spring of 1997, a unanimous U.S. Supreme Court announced Robinson v. Shell Oil, 117 S. Ct. 843 (1997), holding the retaliation proscriptions of Title VII applied to former employees as well as current employees and applicants.3
Factually, the Robinson plaintiff was terminated after filing an EEOC charge.4 T he former employer later gave the plaintiff an unfavorable job reference to a prospective employer.5 T he plaintiff sued under Title VII, 42 U.S.C. §704(a), contending the bad reference was in retaliation for the EEOC charge. The lower court held former employees were not covered by Title VII and dismissed this action. The Robinson court reversed the lower court’s ruling and held the term “employee” includes former employees.6 A ccordingly, anti-retaliation provisions of the various laws now apply equally to prospective employees,7 c urrent employees,8 a nd former employees.9 T his holding is consistent with the public policy behind the various laws, which is to enable employees to engage in protected activities without fear of retaliation.10
The Major Florida Laws
Even though an employee generally does not have a property interest in a particular job11 a nd the common law of Florida did not historically recognize the tort of retaliatory discharge,12 t here are now several statutes in place to protect employees from retaliation of most any sort.13 T he two major legislative dictates are the Private Sector Whistle Blower Retaliation Act and the Florida Civil Rights Act of 1992.
The Whistle Blower Protection Act, F.S. §448.102, prohibits an “employer”14 f rom taking retaliatory personnel action against an employee because the employee has: 1) disclosed in writing and under oath to an appropriate government agency an “activity, policy or practice that is violative of a law, rule or regulation” provided the employee first raises the issue in writing with the employer and gives the employer a chance to remedy the situation;15 2 ) provided information or testimony to a government agency investigating an allegedly improper practice;16 o r 3) “[o]bjected to or refused to participate in, any activity, policy or practice of an employer which is a violation of law, rule or regulation.”17
As opposed to the more specific anti-retaliation portions of employment-related laws, §448 protects employees from retaliatory adverse employment action for reporting any improper practice to law enforcement agencies, whether they relate to the employer/employee relationship or not. Enacted in 1991, the act has been interpreted relatively infrequently.18 B ut, as with F.S. §760, the Florida Civil Rights Act of 1992, it would seem logical that case law concerning the federal whistle blower would be instructive, at least until the state body of law becomes more fully developed. Though there is debate as to whether the employee must give the employer a written notice and a chance to correct the deficiency before bringing suit as outlined at §448.103(c),19 i t is clear the employer is prohibited from taking adverse retaliatory action against the employee if that employee has filed a written complaint, assisted in an investigation, or simply voiced a complaint to the employer about a practice in question. Similar reasoning, with more interpretive law, is found in the Florida Civil Rights Act of 1992.
As a general matter, that act protects employees against unfavorable treatment “because of [an] individual’s race, color, religion, sex, national origin, age, handicap, or marital status.”20 S ection 760.10(7) (1997) provides:
It is an unlawful employment practice for an employer. . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, because that person made a charge, testified, assisted, or participated in any matter in an investigation, proceeding or hearing under this section.
The anti-retaliation language largely mirrors that found in the various federal statutes.21 Employee rights and the obligation of employers in Florida are set out in a balance-shifting analysis similar to that found in the national laws. More specifically, the plaintiff has the first burden of coming forward with a prima facie case.22 Assuming the plaintiff clears this initial hurdle, the burden then shifts to the employer to articulate a nondiscriminatory reason for the adverse job action. Finally, the plaintiff has the opportunity to prove that the defendant’s articulated reason is pretextual.23 The prima facie case encompasses three elements.
•The Prima Facie Case: Protected Activity
Initially, the plaintiff must show he or she has engaged in a protected activity. These activities can range from filing or threatening to file a formal charge24 to voicing an informal complaint to a supervisor about an employment practice.25
Quite importantly, the plaintiff does not need to show that the challenged employment practice is truly illegal or discriminatory. It is sufficient that the complaining employee has a good faith belief that the activity is improper.26 It also should be noted that the plaintiff does not have to be the one to initiate a charge or question a practice to be protected. Those employees taking part in investigations initiated by others are covered as well.27
However, not all actions are protected. Simple disagreements with the morality or correctness of an employer’s action do not give rise to anti-retaliation protection.28 Similarly, employees who are found to have engaged in actual wrongdoing often are unable to prove their actions, such as stealing documents from a supervisor, are protected.29
Finally, the prospective plaintiff must take some affirmative action to disseminate the complaint. That is, the employee who writes a note to himself or herself concerning allegedly improper actions by the employer cannot, without more, contend writing the note constitutes protected activity.30 Interestingly, though, an employee who is perceived to have engaged in a protected activity when he or she did not actually take such action is still protected as if the employee had voiced a complaint or filed a charge alleging an improper practice.31
•The Prima Facie Case: Adverse Action
Assuming the employee has engaged in a protected activity, that individual must then prove he or she was subjected to an adverse employment action. While termination is the most obvious adverse action,32 other less apparent conduct can subject the employer to liability. For example, a pattern of treatment,33 such as canceling a retirement party,34 withholding a bonus,35 changing the scope and conditions of a job,36 or altering the employee’s work to make it appear less acceptable are potentially actionable wrongs.37 Additionally, the adverse action does not have to be directly against the employee who has taken part in the reporting system. That is, reassigning an employee’s boyfriend because she reported an improper employment practice has been found to be an adverse job action against the woman voicing the complaint.38
Naturally, however, not everything an employer does which is not welcomed by the employee, even one who has engaged in protected activity, is improper. For example, an employee may be transferred away from an allegedly harassing supervisor;39 a performance appraisal can reflect legitimate changes in job proficiency;40 and other discipline can be meted out for violation of company rules.41 Courts have prudently recognized that even an employee who engages in protected activity does not have carte blanche to engage in subsequent unsatisfactory or improper acts, as the protected activity does not convey immunity to the employee, either retroactively or prospectively.42
•The Prima Facie Case: Causation
After the employee proves he or she has engaged in a protected activity and suffered an adverse job action, the law still requires proof of causation. That is, the plaintiff must show the employer took the adverse action as a result of the employee’s protected activity. It is this final stage of the prima facie case that often is the most difficult to prove, as there are several factors which determine whether the causal link necessary for the plaintiff to succeed at trial has been shown.
Initially, there must be proof that the individual who took the adverse action was aware of the protected activity, as the law presumes there can be no proximate cause if the employer’s representative knows of no reason to retaliate.43 From a timing standpoint, it almost goes without saying that adverse actions which predate a protected activity cannot be causally related.44
The analysis is not so pristine for adverse actions which follow protected activity. In fact, though there is not absolute temporal cutoff, it is at least logistically true to say that adverse actions taken closer in time to the protected activity are more easily proven to be causally related. Aside from that statement of the obvious, courts have held that a six-month delay between the protected activity and the adverse action breaks the chain of causation,45 and more than one year is not so remote in time as to preclude liability.46 Clearly, a case-by-case analysis is employed,47 and factors other than time will likely be considered by courts and factfinders in determining whether a plaintiff has presented a prima facie case of retaliation.
Once a plaintiff has presented a prima facie case, the burden then shifts to the defendant/employer to articulate a nonretaliatory reason for the adverse action. The analysis is analogous to the burden-shifting protocol used in Title VII cases where there is no direct evidence of discrimination.48 At this second stage, the employer must offer evidence which tends to disprove the allegation of retaliation. For example, a plaintiff’s refusal to report to work,49 insubordination50 or other breaches of company policies,51 economic necessity,52 unrelated personality clashes,53 and the plaintiff’s medically based inability to return to work54 have all been accepted as nonretaliatory bases for adverse employment actions. However, if the defendant/employer does not come forward with sufficient proof of legitimate reasoning behind the adverse action, the plaintiff wins. If the employer does meet its burden, the analysis goes to the third and final stage.
In the final stage of the legal analysis in retaliation claims, the burden shifts back to the plaintiff to prove the defendant’s articulated reasoning is pretextual. Referring back to the prima facie case may be sufficient, but additional evidence may be offered at this last stage.55 Importantly, the plaintiff need only show retaliation was a factor in the employer’s decision to take the adverse action. That is, because an employer had multiple reasons for taking the adverse action is no defense if one of the reasons was to retaliate against the employer for engaging in protected activity.56
If the plaintiff has met all mandated burdens, he or she is entitled to damages, including compensatory and punitive awards. Attorneys’ fees are also generally awarded.57
Almost everyone who has business contact with an employer is a potential plaintiff in a retaliation suit. While only those over 40 can sue for ADEA violations, and gender discrimination is virtually limited to females, and race claims are based on race, there is no such restricted class boundary with retaliation suits. Friends and associates of employees with more traditional civil rights claims are protected. Even former employees are afforded similar rights after Robinson. Prospective employees have always been protected. Accordingly, both employers and employees must be mindful of their rights and obligations arising out of the numerous laws already in place to protect employees from unlawful retaliatory practices. The numerous statutes on point, the growing body of interpretive case law, and the sound public policy behind the laws command nothing less than full understanding and compliance by all participants in the working world as well as practitioners on both sides of the fray. q
1 Fredette v. BVP Management Associates, 905 F. Supp. 1034 (M.D. Fla. 1995), and Kelley v. K. D. Construction of Florida, Inc., 866 F. Supp. 1046 (S.D. Fla. 1994).
2 See Hall v. City of Brawley, 887 F. Supp. 1333 (S.D. Cal. 1995).
3 Robinson, 117 S. Ct. at 848.
4 Id. at 845.
7 Hall, 887 F. Supp. at 1341.
8 Hill v. Winn Dixie Stores, Inc., 721 F. Supp. 1226 (N.D. Fla. 1989) (Jury Protection Act).
9 Baiton v. Carnival Cruise Lines, Inc., 661 So. 2d 313 (Fla. 3d D.C.A. 1995) (State Whistle Blower Protection Act).
10 Holt v. JTN Industries, Inc., 89 F.3d 1224 (5th Cir. 1996).
11 Jett v. Dallas Independent School District, 798 F.2d 748 (5th Cir. 1986).
12 Mitchell v. Consolidated Freightway Corporation of Delaware, 747 F. Supp. 1446 (N.D. Fla. 1990).
13 In addition to the Whistle Blower Protection Act and the Florida Civil Rights Act, the following Florida statutes have anti-retaliation provisions: Fla. Stat. §440.205 (workers’ compensation); Fla. Stat. §42.21(2) (occupational safety and health); Fla. Stat. §40.271 (jury service); and Fla. Stat. §112.3187 (disclosure to inspector general).
14 “Employer” is defined as an individual or entity that employs 10 or more people. Fla. Stat. §448.102(3) (1997).
15 Fla. Stat. §448.102(1) (1997).
16 Fla. Stat. §448.102(2) (1997).
17 Fla. Stat. §448.102(3) (1997).
18 See Barton v. Carnival Cruise Lines, Inc., 661 So. 2d 313 (Fla. 3d D.C.A. 1995); and Martin County v. Edenfield, 609 So. 2d 27 (Fla. 1992).
19 For contrasting views regarding whether the employee who wishes to use Florida’s Whistle Blower Protection Act must give written notice, see Tuschman, Another Look at the Notice Requirements of the Florida Private Sector Whistle Blower’s Act, 71 Fla. B.J. 43 (Nov. 1997) (author concludes employee should be required to provide employer with written notice of alleged violations); and Levine, Baiton v. Carnival Cruise Lines: An Important Decision in the Evolution of Florida’s Whistle Blower’s Act, 70 Fla. B.J. 59 (May 1996) (in which the author concludes no written notice is necessary).
20 Fla. Stat. §760.10(1)(a) (1997).
21 Illustrative federal statutes are found at 31 U.S.C.A. §5328 (Whistle Blower Protection Act); 29 U.S.C. §623(d) (Age Discrimination in Employment Act); 42 U.S.C. §§12101 et seq. (Americans With Disabilities Act); 42 U.S.C. §2000e-3(a) (Title VII) and 29 U.S.C. §1140 (Employee Retirement Income and Security Act).
22 O’Bryan v. KTIV Television, 64 F.3d 1188, 1193 (8th Cir. 1995).
23 See supra, notes 49 through 55 and accompanying text.
24 See, e.g., Hedgepeth v. Kaiser Foundation, 76 F.3d 386 (9th Cir. 1996); and Morales v. Merit Systems Protection Board, 932 F.2d 800 (9th Cir. 1991).
25 See, e.g., Aman v. Cort Furniture Rental Corporation, 85 F.3d 1074 (3d Cir. 1996); and Rollins v. State of Florida Department of Law Enforcement, 868 F.2d 397 (11th Cir. 1989).
26 See, e.g., Trent v. Valley Electric Association, 41 F.3d 524, 526 (9th Cir. 1994); and Meeks v. Computer Associates International, 15 F.3d 1013 (11th Cir. 1994).
27 Padilla v. Metro-North Commuter Rail, 92 F.3d 117 (2d Cir. 1996).
28 See, e.g., Evans v. Kansas City, Missouri School District, 65 F.3d 98 (8th Cir. 1995); and Pierce v. Texas Department of Criminal Justice, Institutional Division, 37 F.3d 1146 (5th Cir. 1994).
29 See, e.g., O’Day v. McDonnell Douglas Helicopter Company, 79 F.3d 756 (9th Cir. 1996), and Johnson v. Honeywell Information Services, Inc., 955 F.2d 409 (6th Cir. 1992).
30 See, e.g., Wiehoff v. GTE Directories Corporation, 61 F.3d 588 (8th Cir. 1995), and Addison v. Gwinnett County, 917 F. Supp. 882 (N.D. Ga. 1995).
31 San Bernadino Public Employee’s Association v. Stout, 946 F. Supp. 790 (C.D. Cal. 1996). This protection for those misperceived to have engaged in protected activity is similar to the rationale used in the Americans With Disabilities Act concerning perceived disabilities. 42 U.S.C. §12102(2)(C).
32 See Baiton v. Carnival Cruise Lines, Inc., 661 So. 2d 313 (Fla. 3d D.C.A. 1995).
33 See, e.g., Marx v. Schnuck Markets, Inc., 76 F.3d 324 (10th Cir. 1996).
34 See, e.g., Passer v. American Chemical Society, 935 F.2d 322 (D.C. Cir. 1991).
35 See, e.g., Goodman v. Heitman Financial Services, 894 F. Supp. 1166 (N.D. Ill. 1995).
36 See, e.g., Jett v. Dallas Independent School District, 798 F.2d 748 (5th Cir. 1986); and Clark v. Commonwealth of Pennsylvania, 885 F. Supp. 694 (E.D. Pa. 1995).
37 See, e.g., Mack v. W.R. Grace Company, 578 F. Supp. 626 (D.C. Ga. 1983).
38 See, e.g., Fernot v. Crafts Inn, Inc., 895 F. Supp. 668 (D. Vt. 1995).
39 McCoy v. Macon Water Authority, 966 F. Supp. 1209 (N.D. Ga. 1997).
40 See, e.g., Worthy v. Widnall, 900 F. Supp. 475 (N.D. Ga. 1995).
41 See, e.g., Carlson v. American Meter Company, 896 F. Supp. 952 (D. Neb. 1995).
42 See, e.g., Wytraal v. Saco School Board, 70 F.3d 165 (1st Cir. 1995); and Petitti v. Commonwealth of Massachusetts Department of Mental Health, 859 F. Supp. 33 (D. Mass. 1993).
43 See, e.g., Addison v. Gwinnett County, 917 F. Supp. 802 (N.D. Ga. 1995); and EEOC v. Carolina Freight Carrier Corporation, 723 F. Supp. 734 (S.D. Fla. 1989).
44 See, e.g., Dibble v. Regents of the University of Maryland System, 89 F.3d 828 (4th Cir. 1996); and Yerdin v. Teamsters Local 1149, et al., 886 F. Supp. 226 (N.D.N.Y. 1995).
45 See, e.g., Balletti v. Sun-Sentinal Company, 909 F. Supp. 1539 (S.D. Fla. 1995).
46 Harrison v. Metropolitan Government of Nashville, 80 F.3d 1107 (6th Cir. 1996).
47 See, e.g., Tericich v. Climatrol, Inc., 523 So. 2d 684 (Fla. 3d D.C.A. 1988) (employer not liable for retaliation under Fla. Stat. §440.205 as it was not economically feasible to return the employee to his old job).
48 See, e.g., Hazel v. U.S. Postmaster General, 7 F.3d 1 (1st Cir. 1993).
49 See, e.g., Savko v. Port Authority of Allegheny County, 800 F. Supp. 275 (W.D. Pa. 1992).
50 See, e.g., Johnson v. Honeywell Information Services, Inc., 955 F.2d 409 (6th Cir. 1992); Taylor v. Washington Metropolitan Area Transit Authority, 922 F. Supp. 665 (D.D.C. 1996); and Hill v. Winn Dixie Stores, Inc., 721 F. Supp. 1226 (N.D. Fla. 1989).
51 Tericich v. Climatrol, Inc., 523 So. 2d 684 (Fla. 3d D.C.A. 1988).
52 Shobat v. Blue Cross/Blue Shield of Rochester Area, 925 F. Supp. 977 (W.D.N.Y. 1996) (not actionable where employee indicated he had “run-ins” with supervisor after voicing earlier complaints of anti-Semitism against that supervisor).
53 See, e.g., Tericich v. Climatrol, Inc., 523 So. 2d 684 (Fla. 3d D.C.A. 1988) (employer did not have to hold job indefinitely for employer who had been out of work for over one year).
54 Harriston v. Gainesville Sun Publishing Company, 9 F.3d 913 (11th Cir. 1993).
55 Bigge v. Albertson’s Inc., 894 F.2d 1497 (11th Cir. 1990).
56 Fla. Stat. §760.11(5) (1997).
Bradley R. Johnson is a board certified civil trial lawyer who serves as special counsel with Foley & Lardner in Jacksonville in its labor and employment department. Mr. Johnson graduated from Duke University, cum laude, and the University of Florida College of Law, with honors.
Kevin E. Hyde is a partner with Foley & Lardner in Jacksonville, where he serves in the labor and employment department. Mr. Hyde is the chair-elect of The Florida Bar’s Labor and Employment Law Section, and he is the former editor and chair of that section’s Publications Committee. Mr. Hyde is a graduate of the University of South Florida, magna cum laude, and the University of Florida College of Law, with honors.
This article is submitted on behalf of the Labor and Employment Section, David J. Linesch, chair, and F. Damon Kitchen, editor.