Background
Clint Shannon Gessner worked as a welder mechanic at a Gulf Power Company plant in Pensacola, Florida for a decade. During that time, he raised a series of workplace safety objections with supervisors, including concerns about hydrogen line repairs near running turbines, improper purging of natural gas lines, coal dust buildup, and other hazards. In 2018, Gulf Power terminated Gessner following multiple formal reprimands, citing his use of racially disparaging language in a workplace meeting as the final precipitating event.
Gessner sued Gulf Power and its parent, Southern Company, under Florida’s private sector Whistle-Blower’s Act, section 448.102(3), Florida Statutes, alleging he was fired in retaliation for objecting to employer practices he believed violated state and/or federal law. The trial court granted summary judgment for the employer, finding that the statute requires an employee to show an objection to an actual violation of law — not merely a suspected one — and that Gessner had not produced sufficient evidence to meet that standard. The First District Court of Appeal affirmed, aligning with the Second District but certifying conflict with the Fourth District, which had applied a “good faith, objectively reasonable belief” standard borrowed from federal Title VII retaliation jurisprudence.
The Florida Supreme Court accepted jurisdiction to resolve the certified conflict among the district courts of appeal.
The Court’s Holding
The Florida Supreme Court held that to prevail on a retaliation claim under section 448.103 alleging a violation of section 448.102(3), an employee must prove by a preponderance of the evidence that the employer’s activity, policy, or practice is — by definition — in violation of a law, rule, or regulation. The Court rejected both competing standards: it disapproved the Fourth District’s “good faith, objectively reasonable belief” test adopted in Aery v. Wallace Lincoln-Mercury, LLC, and it also disapproved any reading of the statute requiring proof of a completed, adjudicated violation, as the First District had suggested.
Analyzing the text of the statute, the Court reasoned that the word “is” in section 448.102(3) functions as a definitional copula — equating the employer’s conduct with conduct that constitutes a legal violation — rather than as a descriptor of present, objective existence. This means protection attaches when the employer’s conduct is legally defined as a violation, whether or not it has already occurred or been adjudicated. An employee need not show the violation was completed or proven in a prior proceeding, but must show more than a personal belief that the law was broken.
Applying that standard, the Court affirmed summary judgment against Gessner. He presented evidence only that he raised safety concerns and believed them to be illegal, which the statute does not treat as sufficient. His alternative argument that the practices violated OSHA’s General Duty Clause was raised only through conclusory assertions and was insufficient to survive summary judgment. The Court approved the First and Second District decisions to the extent consistent with its opinion and disapproved Aery.
Key Takeaways
- Florida’s private-sector Whistle-Blower’s Act, section 448.102(3), requires an employee to prove that the employer’s conduct is legally defined as a violation of law — not merely that the employee reasonably believed it was unlawful.
- The statute does not require proof of a completed or adjudicated violation; an employee may object to prospective illegal conduct before it occurs, and that objection is still protected so long as the conduct would constitute a legal violation.
- The “good faith, objectively reasonable belief” standard applied by the Fourth District in Aery — borrowed from federal Title VII retaliation doctrine — is inconsistent with the text of Florida’s Whistle-Blower’s Act and is expressly disapproved.
- Conclusory assertions that conduct violated a statute, without specifying how each element of the violation is met, are insufficient to defeat a motion for summary judgment.
- Florida’s public-sector whistleblower statute and minimum wage retaliation scheme use broader language protecting employees who report “suspected” violations or “alleged noncompliance”; the Legislature’s choice not to use similar language in section 448.102(3) is significant.
Why It Matters
This decision resolves a long-running split among Florida’s district courts of appeal and establishes a clear, uniform standard for private-sector whistleblower claims statewide. By rejecting the “reasonable belief” test, the Court places Florida’s private whistleblower statute on narrower footing than its public-sector counterpart and than the federal Title VII retaliation framework — meaning employees who report safety or legal concerns must be able to point to conduct that actually constitutes a legal violation, not simply conduct they genuinely but mistakenly believed to be unlawful.
For employers and defense counsel, the ruling strengthens the ability to obtain early dismissal of whistleblower claims when the plaintiff cannot identify a specific, applicable legal violation — not just a general safety concern. For plaintiffs’ counsel, it underscores the importance of tying safety complaints to identifiable statutory or regulatory requirements at the outset of litigation, before summary judgment, and of preserving alternative legal theories (such as OSHA General Duty Clause arguments) through every stage of appellate proceedings.