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Employers typically are not liable for alleged retaliatory acts against their current or former employees when the employee is not qualified for the employment position. This is true under both Florida and federal law governing retaliation claims. The Florida Civil Rights Act of 1992 (FCRA) provides that it is unlawful for “an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation under this section.” Section 760.10 of the FCRA also governs claims arising over an employer’s “denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge” and “threats, reprimands, negative evaluations, [and] harassment[.]” Donovan v. Broward County Bd. Of Com’rs, 974 So. 2d 458 (Fla. 4th DCA 2008).  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The FCRA was modeled after its federal law counterpart, Title VII of the Civil Rights Act of 1964, which prohibits employers with more than 15 employees from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Federal and state courts in Florida analyze FCRA claims under the same framework as Title VII claims. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253 (11th Cir. 2010).

To establish a prima facie case for retaliation under Title VII, a plaintiff must show that he or she: (1) engaged in statutorily protected activity, (2) suffered an adverse reaction, and (3) the adverse reaction was causally related to the protected activity. Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121 (11th Cir. 2020). Title VII prohibits an employer from retaliating against “any . . . [employee] . . . because [s]he has opposed any practice made an unlawful employment practice” by Title VII, “or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121 (11th Cir. 2020). A plaintiff must satisfy the same elements to establish a retaliation claim under the FCRA. Russell v. KSL Hotel Corp., 887 So. 2d 372 (Fla. 3d DCA 2004). Once the prima facie case is established, it creates a “presumption that the adverse action was the product of an intent to retaliate.” Bryant v. Jones, 575 F.3d 1281 (11th Cir. 2009).

To rebut the presumption, the employer must then articulate a legitimate, non-discriminatory reason for the employment action. The employer can meet this burden by demonstrating it engaged in the alleged retaliatory act because the employee was unqualified or underperforming. See Winegard v. W.S. Badcock Corp., 2008 WL 1848787 (M.D. Fla. Apr. 23, 2008). If the employee provides “such a reason, the presumption is rebutted, and the plaintiff must then demonstrate that the “proffered reason was merely a pretext to mask [retaliatory] actions.” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121 (11th Cir. 2020).

An employer cannot be held liable for alleged retaliatory acts if the individual claiming retaliation was not qualified for his or her job in the first place. Thus, to satisfy the third element, a plaintiff must demonstrate their qualifications to work. In determining a plaintiff’s work qualifications, courts focus on whether the plaintiff possessed the skills and background necessary to perform their job. Clark v. Coats & Clark, Inc., 990 F.2d 1217 (11th Cir. 1993). For example, in Humphrey v. Sec’y, U.S. Dept. of Homeland Security, the Eleventh Circuit Court of Appeals concluded that an employee established a prima facie case of retaliation under Title VII because he, in part, demonstrated he was qualified for his employment position. 597 Fed. Appx. 571 (11th Cir. 2014). Humphrey determined that the employee was a “qualified individual” in the Title VII context because “he asserted his ‘Supervisory Test scores show[ed] very high qualifications for promotions.’”

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

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