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...
