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On November 20, 2024, Florida’s First District Court of Appeal (“First DCA”) rendered its opinion in Gessner v. Southern Company & Gulf Power Company, No. 1D2023-2297 (1st DCA Nov. 20, 2024).[1] In the opinion, the First DCA addressed whether under Florida’s Private Sector Whistleblower’s Act (“FWA”), section 448.101, et seq., Florida Statutes, a plaintiff must show “that he objected to, or refused to participate in, an actual violation of a law, rule, or regulation by his employer in order to be protected nder the FWA from employment retaliation, as opposed to showing only a good faith, reasonable belief that a violation occurred.”[2] The trial court had determined that the plaintiff had to show he objected to an actual violation and granted summary judgment in favor of the defendants.[3]

The First DCA did not provide many pertinent background facts in Gessner, except to say that the plaintiff alleged that “he was discharged in retaliation for objecting to certain practices ‘that were in violation of state and/or federal laws or that he reasonably and objectively believed were in said violation.’”[4] The trial court rejected the plaintiff’s claim that “he needed to present evidence of a good-faith, objectively reasonable belief that his employer’s actions were illegal, not proof that an actual violation occurred.”[5] In making his argument, the plaintiff relied upon the Fourth District Court of Appeal’s (“Fourth DCA”) decision in Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA 2013).[6] The defendants relied upon, and the trial court agreed, with the Second District Court of Appeal’s (“Second DCA”) reasoning in Kearns v. Farmer Acquisition Co., 157 So. 3d 458 (Fla. 2d DCA 2015), that “in order to be protected under the private sector FWA as set forth in section 448.102(3), an employee must show that an employer committed an actual violation of a law, rule, or regulation.”[7] The First DCA thus faced the question of whether to agree with the Aery opinion or the Kearns opinion.

Ultimately, the First DCA determined that it agreed with the Second DCA. The court quoted extensively from the Kearns opinion and a federal court opinion cited by the Kearns court.[8] In agreeing with Kearns that “a plaintiff in a private sector FWA action brought pursuant to section 448.102(3) must establish that he or she objected to, or refused to participate in, an activity, policy, or practice of the employer that is an actual violation of a law, rule, or regulation,” the First DCA asserted that it was “guided first and foremost by the plain language of section 448.102(3).”[9] The court determined that “[h]ad the Legislature wished to provide the same whistleblower protection for private sector employees who disclose suspected violations of law as it did for public sector employees under section 112.3187(5)(a) (which provides that reporting of “[a]ny violation or suspected violation” of a law, rule, or regulation is covered under the statute), it certainly could have done so.”[10] As relevant in Gessner, the FWA provides protection where an individual “[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.”[11]

The court further noted that “a number of federal district courts have approved the reasoning in Kearns and not Aery,” although the court did not acknowledge that federal district courts have also sided with the Aery court.[12] The court concluded its analysis but contending that “[i]t is not for us to judge the reasoning behind the Legislature’s decision in the private sector employment arena.”[13] The First DCA thus affirmed the summary judgment entered in favor of the defendants in the lower court.[14]  The court did certify conflict with the Fourth DCA, meaning that the Florida Supreme Court may accept jurisdiction to resolve the conflict if it chooses.[15]

It is hoped that the Florida Supreme Court will indeed accept jurisdiction if Gessner seeks review by Florida’s highest Court.  There is clearly a conflict among the district courts and the federal courts, and guidance is needed for both litigants and practitioners. We will continue to monitor this issue and will provide an update once it is available.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion is available at the following link: https://1dca.flcourts.gov/content/download/2443663/opinion/Opinion_2023-2297.pdf (last visited Dec. 3, 2024).

[2] Gessner, at *2.

[3] Id., at *1.

[4] Id., at *2.

[5] Id.

[6] Id.

[7] Id.

[8] See id., at *4-7.

[9] Id., at *8.

[10] Id.

[11] § 448.102(3), Fla. Stat. (2024).

[12] Gessner, at *8-9; see, e.g., Rivera v. Spirit Airlines, Inc., 2020 U.S. Dist. LEXIS 15286 (S.D. Fla. Jan. 30, 2020), at *2 (“Despite the different approaches, ‘Aery remains the controlling law on the issue because the discussion concerning the actual violation standard in Kearns was only in dicta.’” (citations omitted)).

[13] Gessner, at *9.

[14] Id., at *9.

[15] Id.

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