On March 25, 2015, the Circuit Court of the 15th Judicial Circuit in Palm Beach County, Florida denied a motion to dismiss an employee’s complaint alleging that the employer violated the Florida Private-Sector Whistleblower Act (“FWA”) by terminating him in retaliation for refusing to participate in violations of federal banking and tax laws.
The Circuit Court Order denying the motion to dismiss quoted the 4th District Court of Appeal’s (“4th DCA”) decision in Aery vs. Wallace Lincoln-Mercury, 118 So.3d 904, 916 (Fla. 4th DCA 2013), which stated that in pleading a violation of Section 3 of the FWA (s. 448.102(3), Florida Statues), “All that is required is that the ‘employee have a good faith, objectively reasonable belief that his activity is protected by the statute.’” Baker v. Batmasian, 2015 WL 1324856 (Fla. 15th Judicial Circuit), quoting Aery, 118 So.3d at 916.
Separately, the Second District Court of Appeal (“Second DCA”) disagreed with the 4th DCA’s statement of the law in deciding an appeal from a trial court order granting the employer’s motion for directed verdict on grounds that the employee’s evidence did not suffice to create a jury question as to whether the employer violated the FWA. Even though the Second DCA reversed for new trial (given its determination that the employee produced sufficient evidence to show that his employer actually violated the law), it expressly disagreed with Aery vs. Wallace Lincoln-Mercury:
…Florida courts have determined that an employee’s belief that a law, rule, or regulation was violated was insufficient under the FWA when the prohibition did not meet the statutory definition of a law, rule, or regulation.
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Based on a plain reading of the FWA and the reasoning in [White v. Purdue Pharma, Inc., 369 F.Supp.2d 1335, 1336 (M.D.Fla.2005)],we agree with the Employer that under section 448.102(3) Kearns must prove that he objected to an actual violation of law or that he refused to participate in activity that would have been an actual violation of law. Thus, we are not persuaded by the Fourth District’s opinion in Aery.
Kearns v. Farmer Acquisition Co., 2015 WL 574007, *5, 6 (Fla. 2nd DCA February 11, 2015)
The Circuit Court Order denying the employer’s motion to dismiss in Baker v. Batmasian did not discuss this Second DCA decision, evidently because the motion to dismiss that it considered was filed before the Second DCA’s ruling in Kearns v. Farmer Acquisition Co., and the employee before it alleged specific violations of law by his employer.The rulings of the 4th DCA are controlling in the 15th Judicial Circuit.
Assessment of the sufficiency of pleading and proof under the FWA involves analysis of Florida Supreme Court decisions, which have not thus far confronted the point on which the Second and 4th DCA’s disagree, federal cases evaluating claims of retaliation under federal civil rights statutes, and evolving decisions in the trial courts (state and federal), where employees still vigorously insist that Aery v. Wallace correctly states prevailing law.