In a recent decision by the Fifth District Court of Appeal, the court held that the proper causation standard in retaliation claims brought under Florida’s Private Whistleblower Act (“FWA”) is but-for causation. This represents a shift from the previous standard in Florida, which applied the motivating factor test. This change brings Florida’s FWA retaliation standard in line with the federal standard for proving employment-based retaliation under Title VII. Further, requiring plaintiffs to prove but-for causation in FWA retaliation cases is advantageous for defendants since this standard requires a greater showing than the motivating factor test.
In the case of Chaudhry v. Adventist Health System Sunbelt, Inc., No. 5D18-2380, 45 Fla. L. Weekly D2443, 2020 WL 6370333, at *1 (Fla. 5th DCA Oct. 30, 2020), the plaintiff, Dr. Ahmad Chaudhry, was a surgeon who formerly worked at Adventist Health System Sunbelt, Inc., d/b/a Florida Hospital (“Florida Hospital”). Dr. Chaudhry was hired to be a part of Florida Hospital’s then-new heart and lung transplant program.However, problems quickly arose between Dr. Chaudhry and other members of the program, namely its director, Dr. Bittner.Dr. Chaudhry raised numerous issues he had with Dr. Bittner to various members of Florida Hospital’s administration; these actions disgruntled Florida Hospital, leading to Dr. Chaudhry being labeled a “troublemaker” and “not a team player.”
Shortly before a site visit by representatives of the United Network for Organ Sharing (“UNOS”), Dr. Chaudhry made one final plea to Florida Hospital’s administration to investigate Dr. Bittner. In so doing, Dr. Chaudhry threatened to expose what he believed to be the legal violations that were occurring during the upcoming UNOS visit. Rather than investigate as Dr. Chaudhry requested, Florida Hospital instead terminated him without cause, pursuant to the provisions of his contract. Dr. Chaudhry’s credentials and access privileges were also swiftly revoked by Florida Hospital, in order to ensure he could not disrupt the UNOS visit. At trial, Florida Hospital admitted that gaining UNOS approval was key to the long-term financial success of the fledgling transplant program, and that not receiving this approval could potentially cost the program millions in revenue. Dr. Chaudhry brought suit against Florida Hospital for retaliation under the FWA, pursuant to section 448.102(3), Florida Statutes, alleging Florida Hospital had terminated him in retaliation for what he perceived to be his engagement in protected activity, i.e., threatening to expose Florida Hospital to UNOS.
At trial, the parties argued over the proper causation standard to be given to the jury. Dr. Chaudhry’s counsel argued for application of the standard jury instructions, which would have allowed a jury verdict in Dr. Chaudhry’s favor if the jury found that Florida Hospital’s “intent to punish [Dr. Chaudhry] for engaging in protected activity was a ‘motivating factor,’ even if it was not the only reason, for terminating him.” Chaudhry, 2020 WL 6370333, at *4. Florida Hospital’s counsel, on the other hand, requested the court use instructions that applied a but-for causation standard, relying on a then-recent decision by the Supreme Court. See Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). In Nassar, the Supreme Court held, inter alia, that “Title VII retaliation claims must be proved according to traditional principles of but-for causation.” 570 U.S. at 360. Despite this, the trial court in Chaudhry decided to use the standard jury instructions applying the motivating factor test and the jury ultimately returned a verdict in favor of Dr. Chaudhry awarding past and future damages. Both parties appealed, with Florida Hospital arguing, in relevant part, that the trial court abused its discretion in failing to adopt the Nassar but-for causation standard.
Prior to Chaudhry, courts in Florida had previously adopted the Nassar standard of but-for causation in contexts other than FWA retaliation claims. For example, in Palm Beach County School Board v. Wright, 217 So. 3d 163, 163 (Fla. 4th DCA 2017), the Fourth District Court of Appeal reversed an adverse judgment entered against an employer in a Florida Civil Rights Act (“FCRA”) retaliation claim, holding that Nassar compelled the court to adopt a but-for causation standard. And while before Chaudhry no Florida court had considered the effect of Nassar on FWA retaliation claims, the federal courts that had had generally recognized that Nassar mandated a change in the causation standard. See, e.g., Ramirez v. Bausch & Lomb, Inc., 546 F. App’x 829, 833 n.2 (11th Cir. 2013) (noting that on remand, the district court “may need to consider whether [the plaintiff] ha[d] sufficiently satisfied ‘but for’ causation in [the] case”).
In Chaudhry, the Fifth District observed that, while the Nassar Court held that motivating factor was the appropriate test for status-based employment discrimination, the more demanding but-for standard was to be applied in employment retaliation cases involving employees who allegedly engaged in protected activities. Chaudhry, 2020 WL 6370333, at *5. The court also noted that “the anti-retaliation statute under consideration in Nassar, Title VII of the Civil Rights Act of 1964 . . . just like the [FWA] . . . in relevant part forbids retaliatory employment action taken ‘because’ an employee engaged in specified protected conduct.” Id. Accordingly, the Fifth District held that it “agree[d] with the Fourth District’s conclusion in Wright and [found] that Nassar requires the use of a ‘but for’ rather than a ‘motivating factor’ causation standard when analyzing claims under Florida’s Whistle Blower’s Act.” Id. The court thus found that the trial court had abused its discretion in not giving the instructions requested by Florida Hospital and remanded for a new trial on liability and causation using the appropriate but-for jury instruction.
While Chaudry represents a shift in the landscape for FWA retaliation claims, the decision by the Fifth District should not come as a surprise. Florida courts have often held that claims brought under the FWA are analyzed in a similar fashion as federal claims brought under Title VII, that is, using the McDonnell Douglas burden shifting framework. See, e.g., Griffin v. Deloach, 259 So. 3d 929, 931–32 (Fla. 5th DCA 2018); Kearns v. Farmer Acquisition Co., 157 So. 3d 458, 462 (Fla. 2d DCA 2015); Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 913 (Fla. 4th DCA 2013). Given the similarity in analyses courts engage in on both the state and federal level, it only makes sense that the causation standards align. Such was the conclusion of the Fourth District in Wright when examining a FCRA claim—another section of Florida law that, like the FWA, was patterned after Title VII—and so too was the conclusion of the Fifth District in Chaudhry.
Chaudhry’s holding is a victory for defendants and employers, since but-for causation requires a greater showing than motivating factor. However, counsel should be cognizant of the fact that the current standard jury instructions still reflect the now-outdated motivating factor test. See In re Standard Jury Instructions in Civil Cases–Report No. 2011–01 (Unlawful Retaliation), 95 So. 3d 106, 110 (Fla. 2012) (defining, in section 415.6, “[p]rotected activity [as] a legal cause” of an adverse employment action “if the protected activity was a motivating factor” in the defendant’s decision). Given this discrepancy, lawyers defending against FWA retaliation claims should be prepared to argue the impact of Chaudhry and warn that failure to use but-for causation instructions will result in a reversal on appeal. Counsel should also be aware of the limits of Chaudhry’s holding, in that Chaudhry was a private whistleblower claim, not a public whistleblower claim. And while some courts may be hesitant to extend this holding to public whistleblower actions, counsel can allay those concerns by arguing that Florida’s public and private whistleblower causes of action “follow[] a similar framework and analysis.” Chaudhry, 2020 WL 6370333 at *3 n.1. Compare Griffin, 259 So. 3d at 931–32 (analyzing a public whistleblower claim using the McDonnell Douglas framework), with Kearns, 157 So. 3d at 462 (analyzing a private whistleblower claim using the same framework).
