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People's Law Guide


Florida Appellate Court Decides That Employer Did Not Unlawfully Retaliate Against Employee

Peter Maverick


A Florida appellate court recently decided that an employee failed to meet his burden of proof that he was retaliated against by his employer.

Under Florida law, "[i]t 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 Florida's anti-discrimination law.

Similar to the burden shifting analysis found in a race discrimination claim, in a retaliation claim the employee must prove a prima facie case of discrimination. If a prima facie case is proven, the burden shifts to the employer to proffer a legitimate reason for the adverse action. The burden then shifts back to the employee to show the legitimate reason proffered was a pretext for the prohibited retaliatory conduct.

To establish a prima facie case of retaliation, the employee must show that: (1) he engaged in a statutorily protected expression; (2) there was an adverse employment action; and (3) there was a causal connection between the participation in the protected expression and the adverse action.

The court determined that the employer prevailed because the employee failed to submit sufficient proof of retaliation. The employee had argued that he was not recommended by a search committee for the position of director based upon his allegation that he was being terminated from his position as associate controller because of his race. He made this accusation of race discrimination to the vice president of human resources and a supervisor, before the committee considered his application.

However, the employee had a major flaw in his case: the employee never submitted any evidence that the search committee knew of the allegations and therefore had cause to retaliate. One of the two persons to whom he made the accusation was not a part of the search committee, and therefore did not participate in the process. The other person to whom the employee made the accusation was a part of the search committee, but he recused himself from any discussions or decisions regarding the employee because the employee had previously worked for him. There was no evidence that that second person who recused from the committee expressed any opinion about the employee or provided any knowledge of the claim of racial discrimination to the search committee.

The court explained that in order to satisfy the "causal connection" prong of the prima facie case of retaliation, the plaintiff must, at a minimum, generally establish that the employer was actually aware of the protected expression at the time the defendant took the adverse employment action. Moreover, while awareness of protected expression may be premised upon circumstantial evidence, the plaintiff must show a defendant's awareness with more evidence "than mere curious timing coupled with speculative possibilities." Because there was no evidence that the search committee was aware the employee had complained of racial discrimination, the employee failed to prove his case.

Attorney Peter Maverick represents management and business owners in employment and labor law. Mr. Maverick has successfully represented many businesses in court as well as in responding to threatened legal action. This article is intended for information purposes only and is not legal advice. This article is not a substitute for legal advice tailored to a particular client's situation. Peter T. Maverick can be reached at: Website:; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email:

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