DEFENDING FLORIDA EMPLOYERS: WHISTLEBLOWER ACT CLAIM AND CONSTRUCTIVE DISCHARGE

Florida’s Whistleblower’s Act, governing private sector employers, prohibits the employer from taking “retaliatory personnel action” against an employee because the employee “[o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” Section 448.102(3), Florida Statutes. The statute defines “retaliatory personnel action” as “the discharge, suspension, or demotion by an employer of an employee or any other adverse employment action taken by an employer against an employee in the terms and conditions of employment.” In Kearns v. Farmer Acquisition Co., 157 So.3d 458 (Fla. 2d DCA 2015), Florida’s Second District Court of Appeal explained that to state a claim under Florida’s Whistleblower’s Act, a plaintiff must allege sufficient facts to show that “he engaged in statutorily protected expression; he suffered an adverse employment action; and the adverse employment action was causally linked to statutorily protected activity.” Florida and federal courts analyze retaliatory discharge actions under Florida’s Whistleblower’s Act under the same standards as a retaliation claim under Title VII of the federal Civil Rights Act of 1964. Peter Mavrick is a Miami employment attorney, who defends businesses and their owners against employment law claims asserting employment discrimination and retaliation as well as claims for overtime wages and other related claims. The Mavrick Law Firm also represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

Following common sense, there would be two types of employment terminations: (1) the employer “fires” (i.e., terminates) the employee or (2) the employee quits. Over time, courts created an exception the situation where the employee quits and, under certain factual circumstances, treated it as if the employer fired the employee. Courts refer to such a situation as “constructive discharge,” meaning in truth the employee quit his or her employment, but the courts will treat interpret the quitting as an employer firing the employee. To prove “constructive discharge” is an uphill battle for the employee. Rutledge v. Sun Trust Bank, 262 F.App’x 956 (11th Cir. 2008), explained that to establish that a voluntary resignation (i.e., quitting) amounts to a constructive discharge, the employee must show that the working conditions were so intolerable that a reasonable person in his position would have felt compelled to resign. This is an exceedingly high standard. The United States Court of Appeals for the Eleventh Circuit in Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001), explained that the standard to prove constructive discharge is actually “higher than the standard for proving a hostile work environment.”

Federal courts have held that only extreme circumstances warrant a finding of constructive discharge. For example, Poole v. Country Club of Columbus, Inc., 129 F.3d 551 (11th Cir. 1997), held that a plaintiff was constructively discharged when she was “[s]tripped of all responsibility, given only a chair and no desk, and isolated from conversations with other workers.” As another example, in Meeks v. Comput. Assocs. Int’l, 15 F.3d 1013 (11th Cir. 1994), the federal appellate court affirmed the district court’s finding of constructive discharge when the plaintiff, a woman returning from maternity leave, was given an unjustified unsatisfactory work evaluation and written warning, and was then summoned to a meeting with her male supervisors, where they physically intimidated her and screamed in her face such that she was hit with their spit). By contrast, Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974 (11th Cir. 2003), held that a withdrawn reprimand, an offer to transfer the employee to another managerial role, and accurate statements of coworkers to the employee that the employer planned to fire him, among other conduct, was not sufficient to establish constructive discharge due to the fact the working conditions were not intolerable. Similarly, Hill v. Winn-Dixie Stores, Inc., 934 F.2d 1518 (11th Cir. 1991), held that a written reprimand, criticism from supervisors, and withdrawal of customary support did not create intolerable working conditions to warrant a finding of constructive discharge, particularly when the employer made efforts to rectify the situation.

Under Florida’s Whistleblower’s Act, as under Florida and federal civil rights laws prohibiting employment discrimination and retaliation, where the employee does not prove constructive discharge, the potentially recoverable damages are sometimes non-existent and at other times significantly less than when the employer terminates the employee. As in all cases, there is no recoverable damage unless the employee proves all elements of the claim.

Peter Mavrick is a Miami employment lawyer, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.