Clint Shannon Gessner v. Southern Company

── Clint Shannon Gessner v. Southern Company ── Court: Supreme Court of Florida Date: May 28, 2026 Category: General Supreme Court of Florida ____________ No. SC2024-1835 ____________ CLINT SHANNON GESSNER, Petitioner, vs. SOUTHERN COMPANY, et al., Respondents. May 28, 2026 COURIEL, J. Clint Shannon Gessner sued his employer, claiming he was fired because he objected to alleged workplace safety problems that he believed violated the law. We must decide whether section 448.102(3), Florida Statutes, requires that Gessner prove he objected to or refused to participate in an “actual violation” of law, or alternatively, that he need only prove that he possessed a “good faith, objectively reasonable belief” that the actions to which he objected were illegal. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.  We hold that, to prevail in a retaliation claim under section 448.103, Florida Statutes, alleging a violation of section 448.102(3), an employee must establish by a preponderance of the evidence that the employer’s activity, policy, or practice is in violation of law—that is, it constitutes a violation of the law—not that the employer has already in fact violated the law, nor that the employee reasonably believed the employer violated the law. I A Florida is an employment-at-will state. This means that “where the term of employment is discretionary with either party or indefinite, then either party for any reason may terminate it at any time and no action may be maintained for breach of the employment contract.” DeMarco v. Publix Super Mkts., Inc., 360 So. 2d 134, 136 (Fla. 3d DCA 1978) (citations omitted), aff’d, 384 So. 2d 1253, 1254 (Fla. 1980) (adopting the district court’s reasoning). Accordingly, the “common law tort for retaliatory discharge has never been recognized within this state.” Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994) (citing Scott v. Otis Elevator Co., 572 So. 2d 902, 903 (Fla. 1990)). In Florida, for an employee to -2- maintain a cause of action for wrongful discharge, the employee must rely on a contractual or statutory exception to his or her at- will employment. One such statutory exception became law with the enactment of Florida’s private sector Whistle-Blower’s Act in 1991. See §§ 448.101-.105, Fla. Stat. It was an amendment to the public sector Whistle-Blower’s Act of 1986 and has remained unchanged since. See ch. 91–285, §§ 4-8, Laws of Fla. We have said the statute “prohibits private sector employers from taking retaliatory personnel action against employees who ‘blow the whistle’ on employers who violate the law or against employees who refuse to participate in violations of the law and provides employees a civil cause of action for such retaliation.” Arrow Air, 645 So. 2d at 423 (footnotes omitted). Specifically, section 448.103 creates a cause of action for an employee who is the object of employer conduct prohibited by section 448.102. And section 448.102 prohibits three types of retaliation. Subsection (1) prohibits an employer from retaliating against an employee who discloses to the government the employer’s illegal activity. Subsection (2) prohibits an employer -3- from retaliating against an employee who assists in a government investigation into the employer’s alleged violation of law. And subsection (3) prohibits an employer from retaliating against an employee because the employee “[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.” This case involves the third prohibition. B In 2008, Gessn