Private sector Florida Whistleblower Act opposition claims: is an actual violation required to be engaged in statutorily protected activity?

• Author: Marichal, Carlo D.

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, non-retaliatory 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. [section]1202, et seq., the Florida Civil Rights Act (FCRA), F.S. [section]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...