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March 4, 2016 by admin

Employer-employee relations — Whistleblowers — Complaint sufficiently alleged causal connection between employee’s objection to or refusal to participate in employer’s illegal activity, policy, or practice and adverse employment action

41 Fla. L. Weekly D472a

Top of Form

Employer-employee
relations — Whistleblowers — Complaint sufficiently alleged causal connection
between employee’s objection to or refusal to participate in employer’s illegal
activity, policy, or practice and adverse employment action — Civil rights —
Age discrimination — Allegations that defendant was over 40 years of age, that
he was employer’s oldest engineer at time of termination, that new hires were
generally 10-20 years younger, that he was qualified to do job for which he was
rejected, and that boss had told him several months before his termination that
he didn’t “want any of those slow old guys around here any more” were
sufficient to withstand motion to dismiss
VAUGHN USHER, Appellant, v. NIPRO
DIABETES SYSTEMS, INC., and NIPRO MEDICAL CORPORATION, Appellees. 4th District.
Case No. 4D14-4766. February 24, 2016. Appeal from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Mily Rodriguez Powell, Judge;
L.T. Case No. CACE-09-027326 (03). Counsel: Karen Coolman Amlong and Jennifer
Daley of Amlong & Amlong, P.A., Fort Lauderdale, for appellant. Nina Greene
of Genovese Joblove & Battista, P.A., Miami, for appellees.

(PER CURIAM.) We reverse the
order dismissing Vaughn Usher’s various complaints with prejudice for failure
to state causes of action. The pleadings attempted to state claims under
Florida’s whistleblower act and for age discrimination under Florida’s Civil
Rights Act of 1992.

Section 448.102(3), Florida
Statutes (2009) precludes an employer from taking “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.” “ ‘Law, rule, or regulation’ includes
any statute or ordinance or any rule or regulation adopted pursuant to any
federal, state, or local statute or ordinance applicable to the employer and
pertaining to the business.” § 448.101(4), Fla. Stat. (2009).

To state a claim under the
statute, Usher was required to plead “ ‘1) that [ ]he objected to or refused to
participate in any illegal activity, policy or practice of [Nipro]; 2) [ ]he
suffered an adverse employment action; and 3) the adverse employment action was
causally linked to h[is] objection or refusal.’ ” Aery v. Wallace
Lincoln-Mercury
, LLC, 118 So. 3d 904, 915 (Fla. 4th DCA 2013) (quoting Gleason
v. Roche Labs., Inc.
, 745 F. Supp. 2d 1262, 1270 (M.D. Fla. 2010)); see
also Rivera v. Torfino Enters., Inc.
, 914 So. 2d 1087, 1089 (Fla. 4th DCA
2005).

Usher’s complaint pleaded violations of sections of the
Federal Food, Drug, and Cosmetic Act with respect to the insulin pump appellee
manufactured. Usher further alleged that “documentation and testing was out of
compliance with FDA requirements” and that all the products for sale were
illegal “because documentation was ‘bogus’ in that the testing was not done as
prescribed and the testing protocols were not properly validated.” His
complaint cited relevant portions of the United States Code and the Code of
Federal Regulations. Combined with allegations of the adverse employment action
and the causal connection between Usher’s objections the adverse employment
action, the complaint sufficiently stated a cause of action under the
whistleblower statute.

We also find that Usher stated a
claim under section 760.10(1)(a), Florida Statutes (2009). He pleaded that he
was over 40 years of age, that at 54 he was appellee’s oldest engineer at the
time of termination, that new hires were generally 10-20 years younger, and
that he was qualified to do the job for which he was rejected. See, e.g.,
Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012).
He pleaded that, several months before his termination, his boss told him, “I
don’t want any of those slow old guys around here any more.” 

Reversed and remanded.
(WARNER and LEVINE, JJ., concur. GROSS, J., concurs specially with opinion.)

__________________

(GROSS, J., concurring
specially.) At this point, it is not necessary that we reconsider language in Aery
v. Wallace Lincoln-Mercury, LLC
, 118 So. 3d 904, 915 (Fla. 4th DCA 2013),
that may conflict with the thoughtful analysis in Kearns v. Farmer
Acquisition, Co.
, 157 So. 3d 458 (Fla. 2d DCA 2015). Appellant’s complaint
pleaded actual violations of Federal statutes and regulations.

* * *

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