Koren v. Sch. Bd. of Miami–Dade Cnty.

• Decision Date: 07 June 2012
• Docket Number: No. SC10–2366.,SC10–2366.
• Citation: 97 So.3d 215
• Parties: Justin KOREN, Petitioner, v. SCHOOL BOARD OF MIAMI–DADE COUNTY, et al., Respondents.
• Court: Florida Supreme Court

97 So.3d 215

33 IER Cases 1783

Justin KOREN, Petitioner,

v.SCHOOL BOARD OF MIAMI–DADE COUNTY, et al., Respondents.

No. SC10–2366.

Supreme Court of Florida.

June 7, 2012.

Thomas E. Elfers, Miami, FL, for Petitioner.

Luis M. Garcia and Jorge A. Lopez of School Board of Miami–Dade County, Miami, FL, for Respondent.

PERRY, J.

Justin Koren seeks review of the decision of the Third District Court of Appeal in Koren v. School District of Miami–Dade County, 46 So.3d 1090 (Fla. 3d DCA 2010), on the ground that it expressly and directly conflicts with the decision of the Second District Court of Appeal in Gibbons v. State Public Employees Relations Commission, 702 So.2d 536, 537 (Fla. 2d DCA 1997), on the standard to apply when reviewing an unfair labor practice (ULP) charge for a statement of a prima facie case. We have jurisdiction. Seeart. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we quash the decision of the Third District below and remand with instructions to reinstate the charge for further proceedings.

FACTS AND PROCEDURAL HISTORY

Koren was a teacher at Southwood Middle School, where he had worked as a language arts teacher since 2005. In February 2008, he assisted a security guard, Kimberly Morris, in drafting a charge of harassment for sexual orientation against the School District and the school principal, Deborah Leal. After learning about Morris's complaint, Leal summoned Koren to a meeting in her office. Leal confronted Koren about the Morris complaint, insinuating that he was the author of the complaint. She questioned Koren about whether he believed that the contents of the Morris complaint were true, and if that was why his behavior toward Leal had changed. Koren filed a charge against the School Board of Miami–Dade County alleging unfair labor practices violations pursuant to sections 447.501(1)(a) and (d), Florida Statutes (2008).

In his ULP charge, Koren alleged that after that meeting Leal began to retaliate against him—subjecting him to two groundless disciplinary actions and transferringhim, without explanation, to a school twenty-four miles away.¹ Koren filed his initial ULP charge against the School Board on February 9, 2009. The General Counsel of the Public Employees Relations Commission (PERC) dismissed the charge with leave to amend. The General Counsel found that Koren failed to prove by a preponderance of the evidence that his protected conduct was “a substantial and motivating factor” in Leal's alleged retaliatory actions. Koren subsequently filed two more charges, both of which were summarily dismissed by the General Counsel. Koren appealed to PERC, which approved the dismissals.

Koren appealed the summary dismissals to the Third District. The Third District affirmed, stating that “[a]fter a thorough reading of the record, we cannot say that the events set forth in Koren's complaints rise to the level of retaliation or employment discrimination contemplated by sections 447.501(1)(a) and (d), Florida Statutes (2008) and conclude that the record reveals no basis for finding a prima facie violation of that statute.” Koren, 46 So.3d at 1093 (citing Sch. Bd. of Lee Cnty. v. Lee Cnty. Sch. Bd. Employees, Local 780, AFSCME, 512 So.2d 238 (Fla. 1st DCA 1987)). The Third District found that although “the two parties had disagreements, there is just not sufficient evidence of animus, or relation of adverse events to Koren's participation in a protected activity, necessary to sustain the allegations of unfair labor practices as set forth by statute and case law.” Id. (citing Lawrence v. Wal–Mart Stores, Inc., 236 F.Supp.2d 1314 (M.D.Fla.2002)). Because we find that the actions alleged in Koren's claim were sufficient to establish a prima facie violation of section 447.501 we conclude that the Third District incorrectly affirmed PERC's dismissal of Koren's charges.

Koren's complaint filed against the School Board of Miami–Dade County alleged violations pursuant to sections 447.501(1)(a) and (d). Section 447.501(1)(a), Florida Statutes (2008), provides:

Public employers or their agents or representatives are prohibited from interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

§ 447.501(1)(a), Fla. Stat. (2008). Section 447.501(1)(d) provides:

Public employers or their agents or representatives are prohibited from discharging or discriminating against a public employee because he or she has filed charges or given testimony under this part.

§ 447.501(1)(d), Fla. Stat. (2008). Section 447.503, Florida Statutes (2008), outlines the requirements for filing a ULP complaint, including that the complaint “shall contain a clear and concise statement of facts constituting the alleged unfair labor practice,” make specific reference to the provisions alleged to have been violated, and be accompanied by sworn statements and documentary evidence sufficient to establish a prima facie violation. § 447.503(1), Fla. Stat. (2008). Section 447.503 then requires that PERC “review the charge to determine its sufficiency.” § 447.503(2), Fla. Stat. (2008).

Relying on Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977), PERC determined that Koren's complaint was insufficient. Pasco provides:

In order to determine whether the evidence sustains a charge alleging an unfair labor practice, when it is grounded upon an asserted violation of protected activity, the following general principles should be considered by the hearing officer and by PERC:

(1) In any such proceeding the burden is upon the claimant to present proof by a preponderance of the evidence that (a) his conduct was protected and (b) his conduct was a substantial or motivating factor in the decision taken against him by the employer.

(2) If the hearing officer determines the decision of the employer was motivated by a non-permissible reason, the burden shifts to the employer to show by a preponderance of the evidence that notwithstanding the existence of factors relating to protected activity, it would have made the same decision affecting the employee anyway. In considering the employer's explanation, the examiner should attempt to strike an equitable balance between the rights of an employer whose duty, as here, is to promote the efficiency of public services through its public employees, and the rights of a non-tenured public school teacher to be secure in his employment, free from discrimination due to his union activity.

(3) PERC, when reviewing the hearing officer's recommendations, shall evaluate them pursuant to the procedure set forth by Section 120.57(1)(b) 9, requiring generally that before PERC reject or modify the hearing officer's findings of fact that it first determine from a review of the entire record the findings were not based on competent substantial evidence.

Pasco, 353 So.2d at 117–18 (footnotes omitted). As noted by the Pasco court, the “preponderance of the evidence” standard “is the usual burden upon the charging party at agency proceedings.” Id. at 117 n. 5 (citing Florida Dep't of Health & Rehab. Servs. v. Career Serv. Comm'n, 289 So.2d 412, 415 (Fla. 4th DCA 1974)). We do not disagree that this is the appropriate standard to be applied before an administrative tribunal. See also School Bd. of Lee Cnty. v. Lee Cnty. School Bd. Employees, Local 780, AFSCME, 512 So.2d 238, 239 (Fla. 1st DCA 1987) (“In proving a violation of section 447.501(1)(a), an employee must show that his or her otherwise protected activity was a substantial or motivating factor in the employer's decision or action which constituted the alleged violation.”). However, this heightened standard is not appropriate when first determining whether a claimant has stated a prima facie violation in his or her charge.

The only court to provide an explanation of the requirements to establish a prima facie charge alleging a violation of section 447.501(1)(a), (d) has been the Second District Court of Appeal in Gibbons v. State Public Employees Relations Commission, 702 So.2d 536, 537 (Fla. 2d DCA 1997) (“We have been unable to find an opinion from a Florida court setting forth the requirements necessary to establish a prima facie charge alleging a violation of section 447.501(a), (d) and section 447.301(3), (4).”). Relying on federal caselaw, the Gibbons court provided:

[P]roof of a prima facie case of retaliation requires a showing that: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and 3) there is a causal link between the protected activity and the adverse employment action.

Id. at 537. We find this standard appropriate and apply it here. We find that the record demonstrates that Koren established a prima facie charge of a violation of section 447.501.

As for the first prong, there is no dispute from the parties that Koren was engaged in a protected activity and that it is impermissible to retaliate against an employee for engaging in protected activity. Koren's first complaint stemmed from Leal's alleged reaction to his helping Morris draft a complaint. Assisting a fellow employee in drafting a ULP charge is clearly a protected activity under section 447.501.

Koren alleges three actions to satisfy the second prong under Gibbons: (1) that he was falsely accused of job abandonment; (2) that he was falsely charged for the misuse of his password; and (3) that he was involuntarily transferred more than twenty-four miles from his current school. Treated together, we find that the totality of...