Clint Shannon Gessner v. Southern Company

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

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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

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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, Gessner went to work as a welder mechanic at a Gulf

Power Company plant in Pensacola. Ten years later, Gulf Power

fired him. It did so after placing Gessner on a kind of probation

following multiple formal reprimands. Gessner’s use of racially

disparaging language during a meeting proved to be the last straw.

Gulf Power told Gessner that the episode was the precipitating

event for his termination.

Gessner then sued Gulf Power and its parent, Southern

Company, saying he was fired in retaliation for his objections to the

companies’ alleged practices of exposing employees to unsafe

environments “that were in violation of state and/or federal laws or

that he reasonably and objectively believed were in said violation.”

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After discovery, Gulf Power, joined by Southern Company,

moved for final summary judgment. They argued, in part, that

Gessner could not establish that he had objected to actual

violations of laws, rules, or regulations. In response, Gessner

contended that he need not have objected to actual violations of law

“[a]s long as [he] proffered evidence that he objected to conduct that

he believed violated the law.” Specifically, Gessner claimed he

objected to accidents suffered by other employees, requiring

hydrogen line repairs while generator turbines were running, 1

improperly purging natural gas lines, allowing coal dust build-up

and gunite leakage, 2 stopping furnace fans with wooden blocks,

scheduling outage work during major demolition projects, and

modifying tools, among “other safety objections.”

Alternatively, Gessner argued that the activities to which he

1. The plant where Gessner worked generates power using
natural gas combustion turbines. Natural gas pipelines provide
additional natural gas to the plant. During Gessner’s tenure, the
plant also generated power with coal.

2. Gunite is “a building material consisting of a mixture of
cement, sand, and water that is sprayed onto a mold.” Gunite,
Merriam-Webster’s Collegiate Dictionary (10th ed. 1998) [hereinafter
Webster’s Dictionary].

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objected violated the Occupational Safety and Health Act (OSHA)

General Duty Clause, 29 U.S.C. § 654(a)(1). 3 But Gessner has since

abandoned this argument, having failed to raise it in his briefings

before this Court. See Fla. R. App. P. 9.120(f) (“[I]f the petitioner . . .

intends to raise issues for review in the supreme court independent

of those on which jurisdiction is based, the petitioner . . . must

identify those issues in the statement of the issues included in their

brief on jurisdiction.”).4

The trial court found that, to be protected by section

448.102(3), an employee must show that he or she blew the whistle

on an actual, not suspected, violation of law. Using this standard,

the trial court found that Gessner presented insufficient evidence

3. “To prove a violation of the General Duty Clause, the
Secretary [of Labor] must establish that: (1) a condition or activity
in the workplace presented a hazard; (2) the employer or its
industry recognized the hazard; (3) the hazard was causing or likely
to cause death or serious physical harm; and (4) a feasible and
effective means existed to eliminate or materially reduce the
hazard.” UHS of Del., Inc. v. Sec’y of Lab., 140 F.4th 1329, 1338
(11th Cir. 2025).

4. Gessner also argued in his summary judgment motion that
his conduct was protected under section 448.102(2) because he
claimed to have contacted OSHA officials while they were allegedly
investigating his plant. But Gessner did not advance this claim on
appeal.

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from which a jury could conclude that he objected to a practice that

constituted such a violation.

The First District Court of Appeal affirmed. See Gessner v. S.

Co., 396 So. 3d 908, 914 (Fla. 1st DCA 2024). It held that to sue an

employer pursuant to section 448.102(3), an employee “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.” Id. at 913. In so holding, the

First District aligned itself with the Second District Court of Appeal

in Kearns v. Farmer Acquisition Co., 157 So. 3d 458 (Fla. 2d DCA

2015), and certified conflict with the Fourth District Court of Appeal

in Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th

DCA 2013).

In Aery, the Fourth District applied an analysis used by

federal courts reviewing retaliation claims under Title VII of the Civil

Rights Act. 118 So. 3d at 912-13 (citing United States ex rel. Vargas

v. Lackmann Food Serv., Inc., 510 F. Supp. 2d 957, 968 (M.D. Fla.

2007) (deciding that to establish a prima facie claim under the

Whistle-Blower’s Act, the requisite elements for Title VII retaliation

claims apply)). In so doing, the Fourth District relied on the federal

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standard for what a plaintiff must prove to establish a Title VII

retaliation claim: the plaintiff’s good faith, objectively reasonable

belief that he or she is protected by the statute. See id. at 916.

In Kearns, the Second District examined the text of section

448.102(3), finding it lacked a “good faith, objectively reasonable”

belief standard, and concluded that an employee “must prove that

he objected to an actual violation of law or that he refused to

participate in activity that would have been an actual violation of

law.” 157 So. 3d at 465.

While this case was pending, the Fifth District Court of Appeal

aligned itself with the First and Second Districts, certifying conflict

with the Fourth District. See Drozd v. Amatus Health, LLC, 406 So.

3d 384, 386 (Fla. 5th DCA 2025).

We granted jurisdiction to resolve the conflict.

II

A

We review statutory interpretation questions de novo. See

Ripple v. CBS Corp., 385 So. 3d 1021, 1027 (Fla. 2024).

We begin with the text. “[T]he words of a governing text are of

paramount concern, and what they convey, in their context, is what

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the text means.” Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d

942, 946 (Fla. 2020) (quoting Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 56 (2012)).

A statute’s “language should be given its plain and ordinary

meaning.” Somers v. United States, 355 So. 3d 887, 891 (Fla. 2022)

(quoting Debaun v. State, 213 So. 3d 747, 751 (Fla. 2017)). Its

meaning “is determined by reference to the language itself, the

specific context in which that language is used, and the broader

context of the statute as a whole.” Conage v. United States, 346 So.

3d 594, 598 (Fla. 2022) (quoting Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997)).

Section 448.102 states:

An employer may not take any retaliatory personnel
action against an employee because the employee has:

....

(3) 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.

§ 448.102(3), Fla. Stat.

This section creates an exception to Florida’s employment-at-

will rule. It prohibits the employer from penalizing an employee in

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retaliation for his or her objection to or refusal to participate in the

employer’s illegal activity. We can determine the prohibition’s

elements from the text. See, e.g., State v. Ecker, 311 So. 2d 104,

106 (Fla. 1975) (determining the elements of Florida’s loitering

statute directly from its text); Taylor v. Mem’l Health Sys., Inc., 770

So. 2d 752, 753-54 (Fla. 5th DCA 2000) (basing the elements of a

Whistle-Blower’s Act claim on the text of section 448.102(1)). That

is, for a violation of section 448.102(3) to occur: (1) an employee

must “object[] to, or refuse[] to participate in” an “activity, policy, or

practice”; (2) the “activity, policy, or practice” must be “of the

employer”; (3) the employer’s “activity, policy, or practice” must be

“in violation of a law, rule, or regulation”; and (4) the employer must

retaliate against the employee “because” of the employee’s objection

or refusal to participate in the employer’s illegal activity.

Importantly, section 448.102(3) uses “is” to connect the employer’s

“activity, policy, or practice” to a “violation of a law, rule, or

regulation.”

Section 448.103(1)(a) adds that “[a]n employee who has been

the object of a retaliatory personnel action in violation of this act

may institute a civil action in a court of competent jurisdiction for

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relief.” So, to bring a claim under section 448.103, alleging a

violation of section 448.102(3), an employee must have objected to

or refused to participate in an employer’s activity or policy that is in

violation of law.

We use “is” as the present tense third-person singular case of

the verb “to be.” See Is, Compact Oxford English Dictionary (2d ed.

2007) [hereinafter Oxford Dictionary]; Is, Webster’s Dictionary. Here,

there are two relevant ordinary uses of that verb. First, “is” can

mean “to have an objective existence: have reality or actuality.” Be,

Webster’s Dictionary; see also Is, Oxford Dictionary (“That which

exists, that which is; the fact or quality of existence.”). That’s how

Vin Scully used the word on September 9, 1965, in Los Angeles,

when he said “the mound at Dodger Stadium right now is the

loneliest place in the world.” Vin Scully, 1965: Los Angeles Dodgers

1, Chicago Cubs 0, in The Baseball Reader 273, 274 (Charles

Einstein ed. 1980). The word refers to, or describes the fact or

quality of existence of, a thing.

But second, “is” can be definitional. It can mean “to equal in

meaning: have the same connotation as . . . [or] to have identity

with.” Be, Webster’s Dictionary. So it is that John Keats used it:

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“[b]eauty is truth, truth beauty—that is all / Ye know on earth, and

all ye need to know.” John Keats, Ode on a Grecian Urn, in John

Keats and Percy Bysshe Shelley: Complete Poetical Works 185, 186

(1932). The verb equates two ideas that share the same meaning.5

While both uses of the verb are semantically available to a

reader of this statute (that is, one could plausibly choose one or the

other in trying to understand what the statute means), the

whistleblowing context of section 448.102(3) provides its correct

construction—the reading that gives correct legal effect to the

statute. 6 An ordinary speaker of English would reasonably

understand that the “is” in section 448.102(3) is not an “is” of

objective existence—the first kind we described above. That is

5. Of course, there are other uses of “is.” One might use it to
signify something occupying a place (e.g., “the milk is on the table”).
See Be, Webster’s Dictionary (defining one use of “be” as “to have,
maintain, or occupy a place, situation, or position”). Or one might
use it to refer to an occurrence (e.g., “the concert is tonight”). See
id. (defining another use of “be” as “to take place: occur”). These
are generally cases of the “objective existence” use of the verb.

6. See Lawrence B. Solum, The Unity of Interpretation, 90 B.U.
L. Rev. 551, 568-72 (2010) (describing the process of interpretation
as discovering the semantically available meanings of a statute and
the process of construction as determining the statute’s legal effect
from those semantically available options).

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because not every application of section 448.102(3) requires the

objective existence of an illegal act. For example, an employee who

“object[s] to” or “refuse[s] to participate” in an illegal act may do so

before the act happens—that is, before the illegal act is in the

objective state of existing. § 448.102(3), Fla. Stat. In this scenario,

the correct meaning of the verb can be ascertained from one

sequence of events to which the statute speaks: the one in which an

employee is penalized for objecting to an employer’s activity or

policy that has not yet transpired. In that case—indeed, even when

an employee is penalized for blowing the whistle on an activity that

has already transpired, or a policy already in place—the words of

the statute do not require an adjudication about whether the

subject of the employee’s grievance is in fact in violation of the law.

Because the statute speaks to these circumstances as well as to

circumstances in which conduct in violation of law has already

occurred, we deduce that the meaning of the verb is the second one

we have described—one of definition. See Alachua County v.

Watson, 333 So. 3d 162, 169 (Fla. 2022) (citing Niz-Chavez v.

Garland, 593 U.S. 155, 160 (2021) (exhausting all textual and

structural clues enables us to find the correct reading of a statute)).

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To illustrate, we return to a hypothetical situation this Court

posed in Golf Channel v. Jenkins, 752 So. 2d 561, 567 (Fla. 2000):

“[C]onsider an employee who is terminated on the spot by his

supervisor for refusing to dump hazardous waste in a waterway.”

Id. (alteration in original) (quoting Jenkins v. Golf Channel, 714 So.

2d 558, 563 (Fla. 5th DCA 1998)). The hypothetical employer has

yet to be in the objective state of having dumped waste into the

waterway. But the ordered act is still, definitionally, in violation of

law, as it violates the Florida Litter Law. § 403.413(6)(c), Fla. Stat.

(“Any person who dumps . . . hazardous waste . . . is guilty of a

felony of the third degree . . . .”). The hypothetical employee is thus

protected by the statute when he objects to the dumping instruction

regardless of whether the employer fails to ultimately carry it

through without the employee.

The word “is” in section 448.102(3) equates two concepts: the

conduct or policy of an employer about which an employee may

complain without fear of reprisal under the statute, and a matter

that is in violation of law. This is the verb in its definitional usage,

the second one we described above. An employee need only object

to an activity or practice that is, in the definitional sense, in

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violation of law in order to be protected under the statute.

To be sure, an employer need not have directed the plaintiff

employee to himself participate in the illegal activity for the

employee to be protected by section 448.102(3). The employee may

object to the employer’s illegal activity carried out by the employer

or its other agents. See, e.g., Taylor, 770 So. 2d at 753, 754

(finding a hospital employee pled a prima facie whistleblower claim

when she objected to a physician’s illegal examinations of female

patients). Indeed, “the plain and unambiguous terms of the Private

Whistle Blower Act state that an employee has protection under the

Act for objecting to unlawful acts of his employer,” which can

include the “illegal activity of either the [employer] or anyone acting

within the legitimate scope of their employment or that the

[employer] ratified the illegal conduct of its employees.” Sussan v.

Nova Se. Univ., 723 So. 2d 933, 934 (Fla. 4th DCA 1999) (emphasis

omitted). But construing the statute as it applies to the completed

conduct of the employer (i.e., not involving the whistleblower’s

decision to cooperate or object) does not change our interpretation

of its words. In that construction, the verb “is” continues to refer to

conduct that is illegal as a matter of definition, and not as a matter

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of present condition, as even in that sequence of events no

adjudication or other finding of illegality is likely to have occurred.

See, e.g., Taylor, 770 So. 2d at 754 (finding the physician’s

examinations to which the plaintiff objected “may be in violation

of sections 458.331(1)(j) and 458.359, Florida Statutes (1995),

which forbids sexual misconduct in the practice of medicine”); cf.

Schultz v. Tampa Elec. Co., 704 So. 2d 605, 606 (Fla. 2d DCA 1997)

(finding a plaintiff failed to state a whistleblower cause of action

because his disagreement with the employer’s conservation efforts

did not amount to an “activity, policy, or practice of [the employer]

that violates a law, rule, or regulation”).

We reason from all this that section 448.102(3) does not

require an employee to prove that the employer is, at the moment

the employee is discharged, in the act of violating the law, that the

employer has already violated the law, or that any authority has

found the employer to have done so. Consider, as relevant

statutory context, section 448.102(1), which prohibits an employer

from retaliating against an employee who:

Disclosed, or threatened to disclose, to any appropriate
governmental agency, under oath, in writing, an activity,
policy, or practice of the employer that is in violation of a

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law, rule, or regulation. However, this subsection does
not apply unless the employee has, in writing, brought
the activity, policy, or practice to the attention of a
supervisor or the employer and has afforded the employer
a reasonable opportunity to correct the activity, policy, or
practice.

(Emphasis added.)

The italicized caveat suggests that a violation cannot require

an adjudication before it can be the basis of an employee’s claim,

for it would make no sense for the law to allow a reasonable

opportunity to correct conduct that has already resulted in an

adjudication. The words after “[h]owever” in section 448.102(1)

would have little meaning if we read the statute otherwise. And “[i]t

is a cardinal rule of statutory interpretation that courts should

avoid readings that render part of a statute meaningless.” Golf

Channel, 752 So. 2d at 565 (quoting Forsythe v. Longboat Key

Beach Erosion Control Dist., 604 So. 2d 452, 456 (Fla. 1992)). Thus,

it stands to reason that section 448.102(1) does not require the

employer to have been adjudicated guilty before an employee may

seek its protection.

We presume “violation” means the same thing in section

448.102(3) as it does in section 448.102(1). See Lab’y Corp. of Am.

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v. Davis, 339 So. 3d 318, 324 (Fla. 2022) (rejecting the petitioner’s

proposed meaning of “reimburse” because it “r[an] up against the

‘presumption of consistent usage’ ” (quoting Scalia & Garner, supra,

at 170)). So, we surmise a violation in section 448.102(3) must not

require a completed or proven violation before the employee may

bring a claim. Indeed, section 448.102(3) does not include the word

“actual.” In sum, because “we cannot go beyond the plain meaning

and inject extra statutory requirements that the legislature did not

enact,” Steak N Shake, Inc. v. Ramos, 415 So. 3d 107, 112 (Fla.

2025), we decline to inject a requirement that an employee show an

actual violation into section 448.102(3).

But for similar reasons, we also reject the view that we are to

read into the statute the requirement that an employee plead his or

her “good faith, objectively reasonable” belief in an employer’s

violation. Section 448.102(3) does not mention the employee’s

subjective state of mind. And “this Court . . . is not ‘at liberty to

add words . . . that were not placed there by the Legislature.’ ”

Statler v. State, 349 So. 3d 873, 879 (Fla. 2022) (second omission in

original) (quoting McDade v. State, 154 So. 3d 292, 297 (Fla. 2014)).

The Legislature included subjective language in other

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whistleblowing schemes. Florida’s public whistleblower statute

protects employees who blow the whistle on “[a]ny violation or

suspected violation” of law. § 112.3187(5)(a), Fla. Stat. (emphasis

added). And Florida’s minimum wage scheme requires employers to

notify their employees that they may not penalize the employees for

filing a “complaint about an employer’s alleged noncompliance with

lawful minimum wage requirements.” § 448.109(3)(a)1., Fla. Stat.

(emphasis added). We read related statutes together. See 1944

Beach Boulevard, LLC v. Live Oak Banking Co., 346 So. 3d 587, 593

(Fla. 2022) (“[S]tatutes relating to the same subject or object [are]

construed together to harmonize the statutes . . . .” (quoting Fla.

Dep’t of State v. Martin, 916 So. 2d 763, 768 (Fla. 2005))). The

Legislature could have included similar words in section

448.102(3).7 It did not. 8

7. Section 448.102(2) uses “alleged” when it prohibits
retaliation against an employee who assists in a government
investigation into an “alleged violation of a law, rule, or regulation
by the employer.” A violation here is, by nature, “alleged” because
during an investigation, there has yet to be a determination of guilt.
This further informs us that the Legislature is intentional when it
uses “alleged.”

8. Section 448.102(3) does not prohibit adverse employment
action against an employee who refuses to participate in lawful

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Moreover, because section 448.103 creates a civil cause of

action, it makes sense to read section 448.102(3) in light of the

typical civil pleading standards. See S. Fla. Water Mgmt. Dist. v. RLI

Live Oak, LLC, 139 So. 3d 869, 872 (Fla. 2014) (analyzing section

373.129(5), Florida Statutes, which created civil penalties, in light

of traditional civil pleading standards). To survive a motion to

dismiss, a plaintiff must plead the “ultimate facts showing that the

pleader is entitled to relief.” Fla. R. Civ. P. 1.110(b)(2). And

“[w]hether a prima facie case has been pled depends on the

sufficiency of the plaintiff’s allegations of fact.” Suzmar, LLC v. First

Nat’l Bank of S. Miami, 388 So. 3d 852, 855 (Fla. 3d DCA 2023)

(quoting Alvarez v. E & A Produce Corp., 708 So. 2d 997, 999-1000

(Fla. 3d DCA 1998)). In assessing a motion to dismiss, a Florida

court must accept the complaint’s well-pled allegations as true. See

Aguilera v. Inservices, Inc., 905 So. 2d 84, 87 (Fla. 2005).

activity. Returning to our hypothetical employee in Golf Channel,
752 So. 2d at 567, if, in the course of litigation, it were to be
determined that the hypothetical barrels emptied into a waterway
contained not waste but only water, assuming no other prohibition
on pouring it out, that employer’s activity could not be the basis for
a penalized employee’s recovery. This would be true even if the
employee had a subjective belief that the barrels contained waste.

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Here, to survive a motion to dismiss for a section 448.102(3)

claim, an employee must plead ultimate facts about the employer’s

“activity, policy, or practice” that, if proven, would be in violation of

law. A plaintiff must establish each textual element in section

448.102(3) discussed above by a preponderance of the evidence,

including the fact that the activity, policy, or practice to which he or

she objected is, by definition, in violation of a law. See RLI Live

Oak, 139 So. 3d at 872 (“Traditionally, a preponderance of the

evidence standard is the applicable burden of proof in civil cases.”).

B

Gessner’s claim did not survive a motion for final summary

judgment, which “operates as any other final judgment.”

Gulfstream Park Racing Ass’n v. MI-V1, Inc., 286 So. 3d 315, 318

(Fla. 4th DCA 2019). To survive such a motion, after the movant

“shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law,” the

nonmovant must identify sufficient evidence supporting the

existence of a genuine triable issue of material fact. Fla. R. Civ. P.

1.510(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986) (“[T]here is no issue for trial unless there is sufficient

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evidence favoring the nonmoving party for a jury to return a verdict

for that party.” (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391

U.S. 253, 288-89 (1968))).9 The trial court found that Gessner

presented insufficient evidence from which a jury could conclude

that he objected to actual violations of law. We disapprove of the

trial court’s and the First District’s construction of “actual violation”

to the extent it requires a completed unlawful action or adjudication

of illegality in order for a plaintiff to sustain his or her burden at

this stage of the proceedings. Nonetheless, the trial court correctly

held that Gessner was not entitled to relief. 10 At that stage,

9. Florida adheres to the federal summary judgment
standard. See In re Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So.
3d 192, 193 (Fla. 2020) (“[W]e align Florida’s summary judgment
standard with that of the federal courts . . . .”).

10. Under this Court’s “tipsy coachman” doctrine, an
appellate court may “affirm a trial court that ‘reaches the right
result, but for the wrong reasons’ so long as ‘there is any basis
which would support the judgment in the record.’ ” Robertson v.
State, 829 So. 2d 901, 906 (Fla. 2002) (quoting Dade Cnty. Sch. Bd.
v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999)). The
doctrine’s name comes from Oliver Goldsmith’s poem Retaliation:

The pupil of impulse, it forc’d him along,
His conduct still right, with his argument wrong;
Still aiming at honour, yet fearing to roam,
The coachman was tipsy, the chariot drove home.

Carraway v. Armour & Co., 156 So. 2d 494, 497 (Fla. 1963).

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Gessner was required to show a genuine triable issue of material

fact as to whether any “activity, policy, or practice” to which he

objected was, by definition, a “violation of a law, rule, or regulation.”

§ 448.102(3), Fla. Stat. He did not. Gessner only presented

evidence that he raised several safety concerns with supervisors at

Gulf Power. He argued that he believed those safety concerns were

violations of the law and that his belief should be sufficient to

survive a motion for summary judgment. But the statute requires

more. It requires that he prove, by a preponderance of the

evidence, that the activities to which he objected are, definitionally,

in violation of law.

Gessner alternatively asserted that the safety issues that he

raised violated OSHA’s General Duty Clause, but he did so only

through conclusory statements, not specifying how his safety

concerns met the elements of a General Duty Clause claim. And

“support of summary judgment may not be based on . . .

conclusions of law.” Fla. Dep’t of Fin. Servs. v. Associated Indus.

Ins. Co., 868 So. 2d 600, 602 (Fla. 1st DCA 2004). In any event,

Gessner did not argue that, here. He raised a single issue: whether

section 448.102(3) requires he demonstrate his objective,

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reasonable belief that Gulf Power was violating the law or

demonstrate that Gulf Power was in actual violation of law. And

today we answer that section 448.102(3) requires that a plaintiff

prove more than his or her subjective belief in an employer’s

violation of law. To prevail in a retaliation claim under section

448.103 alleging a violation of section 448.102(3), an employee

must establish that the employer’s activity, policy, or practice to

which the employee objected is, by definition, in violation of law.

III

Because Gessner has no remedy under sections 448.103 and

448.102(3), we approve the First District’s decision below to the

extent that it is consistent with this opinion. We similarly approve

Kearns and Drozd to the extent that each is consistent with this

opinion. We disapprove Aery.

It is so ordered.

GROSSHANS, FRANCIS, and SASSO, JJ., concur.
MUÑIZ, C.J., concurs in result with an opinion.
LABARGA, J., concurs in result.
TANENBAUM, J., recused.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

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MUÑIZ, C.J., concurring in result.

I agree with the majority’s approval of the judgment below and

with its rejection of the “reasonable belief” standard announced in

Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA

2013). Whatever its merits as a matter of policy, the “reasonable

belief” standard cannot be reconciled with the text of section

448.102(3).

I do not join the majority’s opinion, however, because its

analysis overly depends on preemptively addressing hypothetical

facts involving an employee’s objection to conduct that has not yet

occurred. It is undisputed that this case involves only completed

conduct. Situations involving conduct that has not yet occurred

(but would be illegal if it did) could raise difficult questions about

when or whether such conduct qualifies as an “activity, policy, or

practice of the employer,” as required by the text of section

448.102(3). Applying section 448.102(3) to nonexistent conduct

could also create dissonance with section 448.102(1), which refers

to “an activity, policy, or practice of the employer that is in violation

of a law, rule, or regulation,” and then speaks to the employer

having a “reasonable opportunity to correct the activity, policy, or

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practice.” It is not obvious that something that does not already

exist can be “corrected.”

I would stick to applying the statute to the facts of this case

and save hypothetical applications for another day. To decide this

case, it is enough to say that Gessner loses because he objected

only to employer conduct that is not “in violation of a law, rule, or

regulation.”

Application for Review of the Decision of the District Court of Appeal
Certified Direct Conflict of Decisions

First District - Case No. 1D2023-2297

(Escambia County)

Ashley N. Richardson of Marie A. Mattox, T.A., Tallahassee, Florida,

for Petitioner

Alan Lawson, Jason Gonzalez, Jessica Slatten, and Mathew D.
Gutierrez of Lawson Huck Gonzalez, PLLC, Tallahassee, Florida;
and Christin M. Russell of Florida Power & Light Law Department,
Juno Beach, Florida,

for Respondent Gulf Power Company

Russell F. Van Sickle of Phelps Dunbar LLP, Pensacola, Florida,

for Respondent Southern Company

Richard E. Johnson of the Law Office of Richard E. Johnson,
Tallahassee, Florida,

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for Amicus Curiae National Employment Lawyers Association,
Florida Chapter

Eric J. Holshouser and Cristine M. Russell of Rogers Towers, P.A.,
Jacksonville, Florida,

for Amicus Curiae Academy of Florida Management Attorneys,
Inc.

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