The Southern District of Florida recently held that to establish a prima facie case under the Florida Private Whistleblower Act (FWA), § 448.102(3), Fla. Stat., a plaintiff must show an actual violation of a law, rule or regulation. Graddy v. Wal–Mart Stores E., LP, No. 5:16-CV-9-OC-28PRL (M.D. Fla. Feb. 14, 2017).

Background

Upon becoming suspicious about the authenticity of a prescription, a Company pharmacist contacted the prescribing doctor’s office and allegedly learned that the prescription was fraudulent.  The police were notified, a sting operation in which the pharmacist participated was conducted, and the suspected forger was arrested.  Subsequently, the Company conducted an investigation into the pharmacist’s involvement in the sting operation.  Concluding that the pharmacist violated Company policy, which prohibits pharmacists from complying with law enforcement requests to dispense medicine pursuant to fraudulent prescriptions during a sting operation, the Company terminated the pharmacist’s employment.  The pharmacist filed suit against the Company under the FWA alleging she was retaliated against for opposing its allegedly unlawful policy which prevented pharmacists from dispensing medication pursuant to a fraudulent prescription in cooperation with a sting operation.  The Company moved for summary judgment.

Ruling

The court granted the Company summary judgment, holding that because the policy did not violate the law, the pharmacist could not establish a prima facie case.  Recognizing the apparent conflict between the Florida Fourth and Second District Courts of Appeal regarding the proper standard to establish the protected activity prong of an FWA claim, the court concluded that the Florida Supreme Court would side with the Second District, which had adopted the actual violation standard. Compare Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 916 (Fla. 4th DCA 2013) (stating that an employee’s good faith, objectively reasonable belief that the law was violated is sufficient to state an FWA claim), with Kearns v. Farmer Acquisition Co., 157 So. 3d 458, 465 (Fla. 2d DCA 2015) (rejecting Aery and holding that, to state an FWA claim, an employee must show that she objected to an actual violation of law or that she refused to participate in activity that would have been an actual violation of law). The court focused on the plain language of the FWA, which provides that an employee must show that she “[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.”  § 448.102(3), Fla. Stat. (emphasis added).  The court also compared the text of the FWA with another section of the FWA, which contains protection for participation in an investigation into an “alleged violation,” as well as the Florida Public Sector Whistleblower Act, which protects public employees who disclose information about “[a]ny violation or suspected violation of any federal, state, or local law, rule, or regulation.” § 112.3187(5)(a), Fla. Stat.

Implications

This decision raises the bar for FWA plaintiffs proceeding in federal courts, making it clear that employees are not protected under the FWA unless they complain about the employer’s activities, policies or practices that are unlawful.  Note that such a requirement does not exist in a range of other state whistleblower protection statutes.