Fifth DCA: No Pre-Suit Notice Required for Employee's Retaliation Claim Against Public Employer
Section 440.205, Fla. Stat., prohibits an employer from retaliating against an employee "by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law," and the Florida Supreme Court has held that an employer's violation of this statute creates a private cause of action against the employer and in favor of the aggrieved employee. See Smith v. Piezo Technology, 427 So.2d 182 (Fla. 1983).
Where the defendant in a tort claim is the State of Florida or one of its political subdivisions, §768.28(6), Fla. Stat., requires that notice be given to the state before the action is commenced. So is a civil proceeding alleging a violation of §440.205 a "tort" claim? In Kelley v. Jackson Co. Tax Collector, 745 So.2d 1040 (Fla. 1st DCA 1999), the First District Court of Appeal said yes and therefore dismissed the employee's claim for failure to comply with §768.28(6)'s notice provisions.
But in Bifulco v. Patient Business & Financial Services, Inc., decided on 1/2/2009, the Fifth District disagreed, reversing the summary final judgment entered by the trial court against the employee/plaintiff and certifying conflict with Kelley and with the Third District's decision in Osten v. City of Homestead, which had agreed with Kelley.
