Private Sector Florida Whistleblower Act Opposition Claims: Is An Actual Violation Required To Be Engaged in Statutorily Protected Activity?
The employer-employee relationship is contractual in nature.1 Absent an express agreement or statutory provision to the contrary, the employment relationship is terminable at any time by either party, with or without cause.2 Florida does not recognize a common law tort for wrongful termination.3 Thus, there must be an express exception to the at-will employment doctrine, such as a contractual or statutory provision, for an employee to maintain a cause of action for wrongful discharge.4 An example of a statute prohibiting wrongful discharge is the Private Sector Florida Whistleblower Act (FWA).5 To establish a prima facie case of FWA retaliation, the employee must prove 1) he or she engaged in statutorily protected activity; 2) he or she suffered an adverse employment action; and 3) the statutorily protected activity caused the adverse employment action.6
The FWA sets forth three ways an employee can engage in statutorily protected activity. The FWA’s first clause prohibits retaliation against an employee who discloses his or her employer’s activity, practice, or policy that violates a law, rule, or regulation.7 Subsection 1 claims are often referred to as “disclosure claims.”8 Subsection 2 (participation clause)9 prohibits retaliation against an employee who participates in an investigation, hearing, or inquiry into an alleged violation of a rule, law, or regulation.10 The subject of this article is subsection 3 (opposition clause).11 The opposition clause prohibits retaliation against an employee who “[o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.”12
Establishing the “in violation of” element of the opposition clause might, on the surface, sound easy. However, those who assume such simplicity of analysis would be wrong. Florida’s Second and Fourth district courts of appeal have reached different conclusions when interpreting the “in violation of” element for an FWA claim.13 No other district court of appeal has addressed the issue of whether an actual violation of a law, rule, or regulation is required to maintain an FWA opposition claim. Satisfying the “violation” element is crucial because, in its absence, the burden would never shift to the employer to set forth a legitimate, nonretaliatory reason for the adverse employment action.14
The Current Conflict
In Aery v. Wallace Lincoln Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA 2013), the plaintiff-employee filed suit under the FWA’s opposition provision.15 Aery’s employer moved for summary judgment on various grounds, including failure to state a cause of action.16 The trial court granted the employer’s motion for summary judgment, but it did not address whether Aery stated a cause of action.17 The Fourth District Court of Appeal quoted Luna v. Walgreen Co., 575 F. Supp. 2d 1326 (S.D. Fla. 2008): “[A]ll that is required is that the employee have a good faith, objectively reasonable belief that his activity is protected by the statute.”18 Applying this rule, the appellate court held that Aery was engaged in statutorily protected activity when he opposed acts that, if true, appeared to be illegal.19
The Second District Court of Appeal in Kearns v. Farmer Acquisition Co., 157 So. 3d 458 (Fla. 2d DCA 2015), reached a different conclusion. In Kearns, the terminated plaintiff-employee went to trial under the FWA’s opposition clause.20 At trial, the court granted the employer’s motion for directed verdict on grounds that, among other things, Kearns did not satisfy the opposition clause’s “violation” element in that he failed to prove his employer actually violated a law.21 On appeal, the Second District Court of Appeal confirmed that Kearns was required to prove an actual violation of a law, rule, or regulation; in so doing, it applied the clear language of the FWA and relied on the analysis set forth in White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335 (M.D. Fla. 2005).22 Ultimately, the appellate court held that the trial court should not have granted the employer’s motion for directed verdict because Kearns set forth sufficient evidence that would amount to an actual violation.23
Prior to Kearns, courts were bound to follow Aery because all trial courts in Florida are bound by a district court of appeal’s holding absent an interdistrict conflict.24 In addition, federal courts are bound by the state’s intermediary appellate courts unless there is some persuasive indication that the state’s highest court would decide the issue differently.25 The court in Hernandez v. Publix Supermarkets, Inc., 11 F. Supp. 3d 1177, 1183 (S.D. Fla. 2014), noted it was bound by Aery because it was the only Florida intermediate appellate court to have addressed the issue. Hernandez was not the only court to recognize this tenet.26 Going forward, courts not bound by the Second or Fourth district courts may now require an actual violation or allow a reasonable belief to be engaged in protected activity.
Title VII’s Burden-Shifting Framework and the FWA: The Cause of the Confusion
The Aery court relied on Luna when it held that an employee need not prove an actual violation under the FWA’s opposition clause.27 In Luna, the plaintiff alleged that her employer violated the Americans with Disabilities Act (ADA), 42 U.S.C. §1202, et seq., the Florida Civil Rights Act (FCRA), F.S. §760.01, et seq., and the FWA. Specifically, she alleged she was retaliated against in violation of the ADA and FCRA because she argued to her employer that she was engaging in statutorily protected activity when she requested an accommodation. In its order, the trial court analyzed the plaintiff’s claims for retaliation under the ADA, FCRA, and FWA — all in the same vein.28 The trial court noted that an employee can satisfy the “violation” element under the FWA’s opposition clause by showing the employee had a good faith, objectively reasonable belief that her activity was protected by statute.29
Unfortunately, the trial court did not analyze the FWA opposition claim separately from the ADA and FCRA claims. There is no dispute that the “reasonable belief” standard applies in ADA and Title VII cases.30 Presumably, since the Title VII burden-shifting framework applies in FWA retaliation cases, the Luna and Aery courts assumed the “reasonable belief” standard applied in FWA opposition cases as well.31 This is likely the cause of confusion because courts that apply the reasonable belief standard cite to the principle that the Title VII burden-shifting framework applies to FWA retaliation claims.32 Luna and Aery did not refer to the plain language of the FWA’s opposition clause when rendering their opinions.
The Plain Meaning Approach
In contrast, the Kearns court applied the plain meaning approach utilized in White. In White, the parties requested the court clarify what constituted protected activity in FWA opposition claims.33 The court began its analysis by addressing the plain language of the statutory provision.34 The court noted that the legislature chose the word “is” before the phrase “in violation” without providing a qualification for a reasonable belief.35 The court further pointed to the Florida Supreme Court’s notion that “[t]he private sector Whistle-Blower’s Act…prohibits private sector employers from taking retaliatory personnel action against employees who ‘blow the whistle’ on employers who violate the law.”36 Moreover, it cited situations in which courts held that an employee’s reasonable belief that the employer violated a law, rule, or regulation was insufficient when the law the employer allegedly violated was not a law, rule, or regulation as defined by the FWA.37
Reading all of the FWA retaliation provisions also sheds light on whether an actual violation is required for an employee to be engaged in statutorily protected activity under the opposition clause. The FWA’s “participation” clause protects employees who provide information or testify about an alleged violation of a law, rule, or regulation.38 Alleged” is not included in the “opposition” clause in the FWA; thus, it is readily apparent — even based on the plain language — that the legislature intended to require an employee to prove an actual violation to be engaged in statutorily protected activity under the FWA’s opposition clause. A review of other at-will exception statutes may assist in determining whether an actual violation is required under the FWA’s opposition clause.
Interplay With Other At-Will Exception Statutes
• Examples of Florida Statutes — The Florida Public Sector Whistle Blower Act prohibits retaliation against an employee who reports “[a]ny violation or suspected violation of any federal, state, or local law, rule, or regulation.”39 The legislative intent was to prohibit retaliation against employees who report or disclose information.40 Based on the plain language of the public sector FWA, there is no true “opposition” clause.41 Indeed, the public sector FWA protects employees “who refuse to participate in any adverse action prohibited by [the public sector FWA].”42 However, to trigger the public sector FWA, the employee must disclose certain information to a certain individual or entity.43 In addition, the public sector FWA expressly sets forth the nature and the recipient of the information disclosed.44 Due to this ambiguity, courts often analyze public sector FWA opposition claims as disclosure claims.45 Kearns is no exception.46 Moreover, courts have even applied the private sector FWA’s opposition standard in disclosure cases.47 It appears that the opposition clause in the public sector FWA may be satisfied — and the reasonable belief standard invoked — when an employee opposes, in writing to a proper individual or entity, a practice that the employee reasonably believes violates a law, rule, or regulation.48
Florida’s workers’ compensation statute makes it unlawful for an employer to “discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.”49 Courts have interpreted the statute to require a meritorious — as opposed to frivolous or compensable — claim for workers’ compensation benefits to be engaged in statutorily protected activity.50 Consequently, one may argue that the “reasonable belief” standard applies in retaliation claims under Florida’s workers’ compensation law. In addition, the Florida Minimum Wage Act (FMWA) prohibits employers from discriminating or taking adverse actions against any employee in retaliation for exercising his or her right to minimum wage prescribed by Fla. Const. art. X, §24.51 The statute and Florida Constitution do not expressly delineate all rights that would constitute protected activity; instead, they note that rights “include, but are not limited to,” filing complaints and informing any person of the right to minimum wage.52 Unfortunately, there is no precedent on the issue of whether the reasonable belief standard applies in FMWA retaliation cases. However, by applying the plain language of the statute it appears the reasonable belief standard would apply because of the expansive “including, but not limited to” phrase. The FCRA also prohibits discriminating against an employee who “opposed any practice which is an unlawful employment practice under” the FCRA.53 Title VII precedent applies in FCRA claims; thus, it is necessary to review Title VII precedent to ascertain Florida’s stance on whether the “reasonable belief” standard applies in FCRA opposition claims.54
• Examples of Federal Statutes — Title VII’s anti-retaliation provision makes it unlawful for an employer to discriminate against an employee who “opposed any practice made an unlawful employment practice by [Title VII].”55 The ADA’s anti-retaliation is strikingly similar to Title VII in that it prohibits discrimination against an employee who opposed an act or practice that the ADA proscribes.56 Moreover, the Fair Labor Standards Act (FLSA), 29 U.S.C. §201, et seq., prohibits employers from discriminating against an employee who has filed a complaint.57 In Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the U.S. Supreme Court held that an employee’s complaint, however informal, satisfied the “filed” requirement set forth in the FLSA’s anti-retaliation provision so long as a reasonable employer would understand the complaint was tantamount to an employee’s assertion of statutory rights.58 These anti-retaliation statutes do not expressly require an actual violation, but they are construed as only requiring a reasonable belief.59 One thing to note, however, is that the foregoing federal statutes’ opposition clauses relate to a violation of the underlying statute, which is not the case in the FWA.
As opposed to the aforementioned federal at-will exceptions, other federal statutes prohibit retaliation in the workplace for violations of other laws. For example, the False Claims Act (FCA) prohibits retaliation against an employee because of the employee’s “efforts to stop [one] or more violations” under the FCA.60 At least one court has held that the FCA’s opposition clause requires, at a minimum, that the employee had a reasonable belief that the employer’s actions violated the law.61 Similarly, the Sarbanes-Oxley Act (SOX) makes it unlawful for employers to retaliate against employees who “file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation” of the enumerated laws, rules, or regulations.62 The 11th Circuit has held that the reasonable belief standard applies to SOX retaliation cases in which there was not an actual violation of a law, rule, or regulation.63 The expansive meaning of “file” set forth in Kasten would likely apply to SOX claims. In addition, the Dodd-Frank Reform Act makes it unlawful for a covered person or service provider to retaliate against a covered employee because the employee “objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any law, rule, order, standard, or prohibition, subject to the jurisdiction of, or enforceable by, the [b]ureau.”64 Applying the plain meaning of the aforementioned statutes can only lead to one conclusion: The reasonable belief standard applies. Other states’ employment opposition claims follow suit.
• Examples from Other Jurisdictions — In New Jersey, a private sector employer is prohibited from retaliating against an employee who “[o]bjects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes… is in violation of a law, or a rule or regulation promulgated pursuant to law.”65 New Jersey’s law has been interpreted to only require a reasonable belief that the employer violated a law.66 Minnesota’s whistleblower statute prohibits retaliating against an employee who “refuses an employer’s order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason.”67 The plain languages of the statutes do not require an actual violation for an employee to be engaged in statutorily protected activity.
New York prohibits private sector employers from retaliating against an employee who “objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.”68 Notably absent from the New York whistleblower statute is the reasonable belief standard as in Minnesota and New Jersey. New York jurisprudence clearly requires an actual violation.69 In addition, California’s whistleblower statute does not have the reasonable belief standard either; it proscribes an employer from retaliating against an employee for “refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”70 Similarly, Arizona law prohibits retaliation for an employee’s “refusal by the employee to commit an act or omission that would violate the Constitution of Arizona or the statutes.”71 Arizona’s statute has been strictly construed according to the plain language to require an actual violation.72 It is readily apparent that other jurisdictions apply the plain meaning approach when interpreting their respective whistleblower statutes.
A court may only look beyond the plain meaning of a statute if it determines the statute is ambiguous.73 Critics may argue the FWA’s opposition clause is unambiguous in that it does not include a qualifier, such as reasonable belief or suspected. However, at least one court has noted that laws are ambiguous and complex, supporting the argument that a court may look beyond the plain language of the statute.74 Notwithstanding, it appears that the cause to all the confusion is in large part because FWA opposition claims apply the Title VII burden-shifting framework, which, in turn, uses the reasonable belief standard.
Courts not bound by Kearns or Aery may now choose to apply the reasonable belief or “actual violation” standard.75 The same holds true for federal courts.76 At least one federal court post- Kearns acknowledged the interdistrict conflict but disposed of the issue without choosing what standard to apply.77 Thus, absent guidance from the Florida Supreme Court, employers and employees not governed by the Fourth District or Second District courts of appeal do not know what constitutes protected activity under the FWA’s opposition clause. The Florida Supreme Court has hinted that the reasonable belief standard in White is mere dicta.78 One thing is certain. If an employee proves an actual violation, the reasonable belief standard is irrelevant. However, until the Florida Supreme Court rules on the issue, employers and employees alike are left uncertain as to whether the less stringent standard would satisfy the statutorily protected activity prong in FWA opposition claims. In practice, it may be wise for an employer to move to dismiss an FWA opposition claim that does not allege facts that amount to an actual violation of a law, rule, or regulation. Once the court rules on the motion, the parties will know whether the court expects to use the actual violation or reasonable belief standard.
1 See generally Jacobi v. Claude Nolan, Inc., 122 So. 2d 783 (Fla. 1st DCA 1960) (discussing express and implied employment contracts).
2 Iniguez v. American Hotel Register Co., 820 So. 3d 953, 955 (Fla. 3d DCA 2002); Liff v. City of Coca, 745 So. 2d 441 (Fla. 5th DCA 1999).
3 Bass v. Metro Dade Cnty. Dept. of Corrs. & Rehab., 798 So. 2d 835, 836 (Fla. 3d DCA 2001).
4 Laguerre v. Palm Beach Newspapers, Inc., 20 So. 3d 392, 395 (Fla. 4th DCA 2009).
5 Schultz v. Tampa Elec. Co., 704 So. 2d 605, 605 (Fla. 2d DCA 1997). Unless expressly stated to the contrary, “FWA” refers to the Private Sector Florida Whistleblower Act.
6 Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000).
7 Fla. Stat. §448.102(1) (1991).
8 See Golf Channel v. Jenkins, 752 So. 2d 561, 564 (Fla. 2000).
10 Fla. Stat. §448.102(2).
11 Golf Channel, 752 So. 2d at 564.
12 Fla. Stat. §448.102(3).
13 See Aery v. Wallace Lincoln Mercury, LLC, 118 So. 3d 904, 916 (Fla. 4th DCA 2013); but see Kearns v. Farmer Acquisition Co., 157 So. 3d 458, 465 (Fla. 2d DCA 2015).
14 See Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000) (acknowledging that the McDonnell Douglas burden-shifting framework applies in FWA cases).
15 Aery, 118 So. 3d at 916.
16 Id. at 909.
17 See id. at 909-10 (noting that the trial court relied on the doctrine of judicial estoppel and standing).
18 Id. at 916 (quoting Luna v. Walgreen Co., 575 F. Supp. 2d 1326, 1343 (S.D. Fla. 2008)) (quotation omitted).
20 Kearns, 157 So. 3d at 462.
21 Id. at 460.
22 See id. at 464-65.
24 Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992).
25 Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1021 (11th Cir. 2014).
26 See, e.g., Odom v. Citigroup Global Markets, Inc., No. 3:11-cv-75-RS, 2014 WL 6610069 at *5 (N.D. Fla. Nov. 20, 2014).
27 See Aery, 118 So. 3d at 916.
28 Luna, 575 F. Supp. 2d at 1342-43.
29 Id. at 1343.
30 See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998).
31 See Sierminski, 216 F.3d at 950-51 (noting the Title VII retaliation framework applies in FWA retaliation cases).
32 See, e.g., Padron v. BellSouth Telecomms., Inc., 196 F. Supp. 2d 1250, 1255-56 (S.D. Fla. 2002).
33 White, 369 F. Supp. 2d at 1336.
34 Id. at 1337.
36 Id. (quoting Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 423 (Fla. 1994)).
37 Id. at 1337-38 (citing New World Commc’ns. of Tampa, Inc. v. Akre, 866 So. 2d 1231, 1233 (Fla. 2d DCA 2004)).
38 Fla. Stat. §448.102(2).
39 Fla. Stat. §112.3187(5)(a) (2002) (emphasis added). This was noted by the courts in White and Kearns. See Kearns, 157 So. 3d at 465; see also White, 369 F. Supp. 2d at 1337.
40 Fla. Stat. §112.31870(2).
41 See generally Fla. Stat. §112.31870.
42 Fla. Stat. §112.3187(7).
43 Fla. Stat. §112.3187(4)(a)-(c); Lindamood v. Office of State Attorney, Ninth Jud. Cir. of Fla., 731 So. 2d 829, 832 (Fla. 5th DCA 1999).
44 Fla. Stat. §112.387(5)-(6).
45 See, e.g., White, 369 F. Supp. 2d at 1337 (applying the public sector FWA’s disclosure clause in a private sector FWA opposition claim); see also Favero v. Largo Med. Ctr., Inc., No. 02-1086-CI-21, 2004 WL 5762416 (6th Cir. May 21, 2004) (same).
46 Kearns, 157 So. 3d at 464-65.
47 See, e.g., Molenda v. Hoechst Celanese Corp., 60 F. Supp. 2d 1294, 1298-99 (S.D. Fla. 1999).
48 See Crouch v. Public Serv. Com’n, 913 So. 2d 111, 111 (Fla. 1st DCA 2005).
49 Fla. Stat. §440.205(1979).
50 See, e.g., Smalbein v. Volusia Cnty. Sch. Bd., 801 So. 2d 169, 170 (Fla. 5th DCA 2001); see also Noboa v. Sygma Network, Inc., No. 6:10-cv-1753-Orl-36DAB, 2012 WL 1438833 at *5 (M.D. Fla. April 25, 2012); but see Leon v. Tapas & Tintos, Inc., No. 14-21133-CIV, 2014 WL 5032435 at *4 (S.D. Fla. Oct. 8, 2014) (holding the employee failed to state a claim for §440 retaliation because he did not provide sufficient facts to show entitlement to medical benefits).
51 Fla. Stat. §448.110(5) (2005).
52 See id.
53 Fla. Stat. §760.10(7) (1992).
54 See Carter v. Health Mgmt. Assocs., 989 So. 2d 1258, 1264-65 (Fla. 2d DCA 2008) (applying Title VII caselaw in an FCRA case).
55 42 U.S.C. §2000e-3 (1972).
56 See 42 U.S.C. §12203(a) (1990).
57 29 U.S.C. §215(a)(3) (1983).
58 Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335 (2011).
59 Sierminski, 216 F.3d at 950-51; Mann v. Falk, No. 2:11-cv-14432-KMM, 2012 WL 4896726 at *6 (S.D. Fla. Oct. 15, 2012).
60 31 U.S.C. §3730(h)(1) (2010).
61 See Weslowski v. Zugibe, 14 F. Supp. 3d 295, 310-11 (S.D.N.Y. 2014).
62 18 U.S.C. §1514(a)(2) (2010) (emphasis added).
63 See generally Gale v. U.S. Dep’t of Labor, 384 F. Appx. 926 (11th Cir. 2010).
64 12 U.S.C. §5567(a)(4) (2010) (emphasis added).
65 N.J. Stat. §34:19-3(c) (2006) (emphasis added).
66 See generally Turner v. Associated Humane Soc’ys, Inc., 935 A.2d 825 (N.J. Super. Ct. App. Div. 2007).
67 Minn. Stat. §181.932(1)(3) (2013) (emphasis added).
68 N.Y. 740 §2(c) (McKinney 2006).
69 See Khan v. University of N.Y. Health Science Ctr. At Brooklyn, 734 N.Y.S.2d 92, 93 (N.Y. App. Div. 2001).
70 Cal. Labor Code §1102.5(c) (2014); see Edgerly v. City of Oakland, 150 Cal. Rptr. 3d 425, 432 (Cal. Ct. App. 2012).
71 Ariz. Rev. Stat. §23-1501(3)(c)(i) (2012).
72 See Brandon v. Liddy, No. 12-00788-PHX-FJM, 2012 WL 4052372 at *6 (D. Ariz. Sept. 14, 2012).
73 Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008).
74 See Olsen v. Albright, 990 F. Supp. 31, 40 (D.D.C. 1997).
75 Pardo, 596 So. 2d at 666 (discussing the binding authority of opinions rendered by district courts of appeal).
76 Dolgencorp, LLC, 746 F.3d at 1021 (discussing the binding effect of state appellate decisions).
77 Montgomery v. Titan Fla., LLC, No. 8:14-cv-3137-T-26EAJ, 2015 WL 685813 at *3 (M.D. Fla. Feb. 18, 2015).
78 See Fla. Standard Jury Instructions, No. 415.5. Dicta is persuasive and not considered binding. Continental Assur. Co. v. Carroll, 485 So. 2d 406, 408 (Fla. 1986).
Carlo D. Marichal is an associate at Banker Lopez Gassler, P.A. His practice includes defending employers in labor and employment disputes. He graduated magna cum laude from Florida Coastal School of Law, where he was a law review editor.
This column is submitted on behalf of the Labor and Employment Law Section, Frank E. Brown, chair, and Robert Eschenfelder, editor.