United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on Defendant's Motion
to Dismiss Plaintiff's Amended Complaint for Failure to
State a Claim (Doc. 30) filed on March 6, 2018. Plaintiff
filed a Response in Opposition (Doc. 37) on March 20, 2018.
For the reasons set forth below, the Motion is granted.
Deisy Garcia alleges to be a whistleblower under the Florida
Whistleblower Act. Fla. Stat. § 448.102 (FWA).
She claims that Defendant unlawfully fired her for filing a
police report when her supervisor instructed her not to do
so. (Doc. 19, ¶ 11). Plaintiff is currently proceeding
on a one-count Amended Complaint. (Id.)
her termination, Plaintiff was employed as a custodian at
Parkside Elementary School for seven years. (Doc. 19, ¶
5). Remberto Yero was Plaintiff's supervisor. Ymilsis
Acosta was Yero's wife who accused Yero of having an
affair with Plaintiff. (Id., ¶¶ 5-7). As a
result, on September 14 and 15, 2015, Acosta went to both
Plaintiff's home and the school to confront and threaten
Plaintiff. (Id., ¶¶ 8-9). After Acosta
attempted to attack Plaintiff, Yero instructed Plaintiff not
to call the police or file a report against Acosta.
(Id., ¶ 11). Fearing her safety, Plaintiff
refused Yero's request and called the police who prepared
a police report on September 16, 2015. (Id.,
¶¶ 12-13). Plaintiff also reported the incident to
the school. (Id., ¶ 12). Later that afternoon,
Defendant's Area Manager told Plaintiff she was being
transferred to North Naples Middle School, more than 18 miles
from Parkside Elementary. (Id., ¶ 14).
Defendant did not provide a reason for the transfer, but
advised Plaintiff that she would be terminated if she did not
agree. (Id., ¶ 15).
of these events, Plaintiff sought medical care and was
diagnosed with convulsive epilepsy. (Doc. 19, ¶
17). On September 26, 2015, due to her medical diagnosis and
restrictions, Plaintiff contacted Defendant and requested to
transfer to a school closer to her home. (Id.,
¶ 18). Defendant refused her request and advised her
that either she went to work at North Naples Middle or she
would be terminated. (Id., ¶ 19). Plaintiff
alleges she was constructively terminated.
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). This
obligation “requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted). In
addition, to survive a motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure, the factual
allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative
level.” Id. at 555; see also
Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th
Cir. 2010). Like its counterpart above, Rule 12(b)(6)
requires more than “unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). But, “[l]egal conclusions without
adequate factual support are entitled to no assumption of
truth.” Mamani v. Berzain, 654 F.3d 1148, 1153
(11th Cir. 2011) (citations omitted). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Factual allegations
that are merely consistent with a defendant's liability
[also] fall short of being facially plausible.”
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337
(11th Cir. 2012) (internal citations omitted). The Court
engages in a two-step approach: “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Iqbal, 556 U.S.
Florida Whistleblower Act provides that “[a]n employer
may not take any retaliatory personnel action against an
employee because the employee has ... objected to, or refused
to participate in, any activity, policy, or practice of the
employer which is in violation of a law, rule, or
regulation.” Fla. Stat. § 448.102(3). A FWA
retaliatory discharge claim is analyzed via the same
framework as retaliation claims brought pursuant to Title VII
of the Civil Rights Act. Turner v. Inzer, 521
Fed.Appx. 762, 764 (11th Cir. 2013). Therefore, to state a
claim for retaliatory discharge under the FWA, a plaintiff
must allege that: (1) she engaged in an activity protected by
the FWA, (2) she suffered an adverse employment action, and
(3) a causal connection existed between the protected
activity and the adverse employment action. Id.
Defendant claims that Plaintiff's allegations do not
support the first element.
satisfy the first element of the above-mentioned standard, a
plaintiff is “required to show that he objected to or
refused to participate in (i) an illegal activity, policy, or
practice of an employer, (ii) illegal activity of anyone
acting within the legitimate scope of their employment, or
(iii) illegal activity of an employee that has been ratified
by the employer.” Aery v. Wallace Lincoln-Mercury,
LLC, 118 So.3d 904, 916 (Fla. Dist. Ct. App. 2013)
(citation omitted). Defendant's first argument is that
Plaintiff has failed to state a whistleblower claim because
nowhere does the Amended Complaint allege illegal conduct;
thus, Plaintiff did not engage in statutorily protected
activity. In her Response, Plaintiff cites the criminal
statute governing threats and extortion, Fla. Stat. §
836.05, and relies on Aery, which held that an
employee must only demonstrate that she held a good faith,
reasonable belief that the actions of the employer violated
the law, not that their actions actually did. 118 So. at 916.
appears to be a split of authority on the issue of whether a
whistleblower must protest an actual violation of law in
order to have protection under the FWA. Florida's Fourth
District Court of Appeals has concluded that the FWA does not
require a plaintiff to prove that he objected to or refused
to engage in a genuine violation of a law, rule, or
regulation, but only that he had a good faith, objectively
reasonable belief that his activity was protected by the
statute. See Aery, 118 So.3d at 916. In
contrast, Florida's Second District Court of Appeals
found that a plaintiff must have “objected to an actual
violation of law or...refused to participate in an activity
that would have been an actual violation of law.”
Kearns v. Farmer Acquisition Co., 157 So.3d 458, 465
(Fla. Dist. Ct. App. 2015). Although the Aery
decision has so far prevailed in federal district courts,
see, e.g., Canalejo v. ADG, LLC, No.
8:14-cv-17-T-MAP, 2015 WL 4992000, at *1-2 (M.D. Fla. Aug.
19, 2015), these decisions do not offer definitive guidance
since the matter remains unsettled at the state level,
see McMahan v. Toto, 311 F.3d 1077, 1080
(11th Cir. 2002). But the Court need not weigh in on this
issue today. Even assuming Defendant's position is
correct, Plaintiff has identified conduct that could
potentially stand in violation of Florida law.
next argues that, even if Plaintiff complained of unlawful
conduct as required, her FWA claim must still be dismissed
because she reported only illegal acts committed outside the
course and scope of Yero's employment. The Court agrees
that the FWA was intended to encourage the reporting of
violations by any employee acting with the scope of their
employment or at the direction of the company. SeeBostain v. Westgate Lakes LLC, No.
6:11-cv-134-PCF-DAB, 2011 WL 2433503, at *3 (M.D. Fla. June
14, 2011). SeeKelleher v. Pall Aeropower
Corp., No. 8:00-CV-365-T-26EAJ, 2001 WL 485119, at *7
(M.D. Fla. Feb. 8, 2001) (finding that an employer was not
responsible for an employee's threats and ...