DEFENDING FLORIDA EMPLOYERS: PROTECTED ACTIVITY IN RETALIATION CLAIMS

Most employment discrimination statutes like Title VII of the Civil Rights Act of 1964, the Florida Civil Rights Act (FCRA), and the ADA prohibit retaliation for opposing discrimination. To prevail under a retaliation claim, the employee must prove he or she engaged in a “statutorily protected activity.” Kiernan v. ReviveMed305, LLC, 412 So. 3d 156 (Fla. 3d DCA 2025), is a recent decision exemplifying how an employer can defeat an employee’s retaliation claim by demonstrating the employee was not engaged in a statutorily protected activity. The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

An employee must establish a prima facie case for retaliation to prevail. A prima facie case of retaliation can be established when the employee demonstrates he or she (1) engaged in a statutorily protected activity; (2) suffered an adverse employment action, and (3) the adverse employment action was causally connected to the protected activity. Buade v. Terra Grp., LLC, 259 So. 3d 219 (Fla. 3d DCA 2018). The first element usually requires evidence demonstrating the employee opposed a discriminatory activity by reporting the discrimination to his or her employer. See Carter v. Health Management Associates, 989 So. 2d 1258 (Fla. 2d DCA 2008) (opposition to discriminatory activity usually involves making complaints to management). Absent proof of a discriminatory activity, the employee’s claim will likely fail.  

Lodging a complaint regarding a discriminatory practice is usually insufficient to qualify as a protected activity as demonstrated by Kiernan. In Kiernan, an employee sued for retaliation under the FCRA after being terminated. The employee alleged she engaged in a statutorily protected activity because she complained to her supervisor that her supervisor’s friend made sexual comments to her at a work event. The supervisor “rolled his eyes” in response. The employer moved for summary judgment based on the allegations because the employee failed to demonstrate the existence of a statutorily protected activity. The motion was granted because the employee had to “show that she had a good faith, reasonable belief that the employer was engaged in unlawful employment practices.” Specifically, the employee must demonstrate “(1) she subjectively believed her employer engaged in an unlawful practice, and (2) her belief was objectively reasonable in light of the facts and record presented.” An employee cannot make the requisite showing by proffering a single act of discrimination because the behavior must be severe and pervasive. Small v. City of Hollywood, 661 F. Supp. 3d 1187 (S.D. Fla. Feb. 28, 2023) (holding that complaints of a single instance of “uncalled for, ugly, racist statements are not the kind of activity protected by Title VII”); Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999) (holding that a hostile environment claim requires proof of “severe and pervasive” conduct); Smart v. City of Miami Beach, Fla., 933 F. Supp. 2d 1366 (S.D. Fla. March 26, 2013) (holding single occurring instances of harassment were not severe and pervasive). Therefore, the employee’s inability to demonstrate the existence of additional discriminatory acts precluded the employee from obtaining relief against the employer.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.