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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

KEITH RIBA, Plaintiff, v. Case No. 3:10cv112/MCR/EMT

WAL-MART STORES EAST, L.P., Defendant. _______________________________/ ORDER Pending before the court is Defendant Wal-Mart Stores East, L.P.s motion to dismiss Count III of the First Amended Complaint in this employment discrimination suit, (doc. 14), which Plaintiff Keith Riba opposes (doc. 16). The complaint alleges that Riba, while working at Wal-Mart, used force out of self defense and in an attempt to detain a shoplifting suspect pursuant to store policy. Riba asserts that representatives of Wal-Mart placed in his personnel file false accusations that he had violated store policy, and he asserts he was wrongfully disciplined and terminated on that basis and that he was treated disparately because of his age. Count I of the First Amended Complaint alleges a claim of age discrimination, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 623 et seq., and 42 U.S.C. 2000e; Count II alleges a state law claim of defamation of character and slander; and Count III alleges wrongful termination in violation of Fla. Stat. 790.251(4)(e). Defendant moves to dismiss Count III for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), asserting that the plain language of the statute on which Riba bases his wrongful termination claim is limited to protecting an employees right to keep a firearm in his or her vehicle on the property of his or her employer, see Fla. Stat. 790.251(4)(e), which is not at issue in this case.

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Under Florida law, an at-will employee may be terminated at any time for any reason and no action may be maintained for breach of the employment contract. Bruley v. Village Green Mgmt Co., 592 F. Supp. 2d 1381, 1385 (M.D. Fla. 2008), affd, 333 Fed. Appx. 491 (11th Cir. 2009) (unpublished). Florida law provides no action for the common law tort of wrongful termination. Id. (citing Rosensweig v. Morgan Stanley & Co., 494 F.3d 1328, 1335 (11th Cir. 2007)). Plaintiff concedes that there is no public policy exception to this rule unless Florida law explicitly provides one. Plaintiff asserts the legislature has created such an exception for the general right of self defense within Floridas Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008. Within that Act, employers are prohibited from violating the constitutional rights of any customer, employee, or invitee as provided in paragraphs (a) - (e), and paragraph (e) specifically states as follows: (e) No public or private employer may terminate the employment of or otherwise discriminate against an employee, or expel a customer or invitee for exercising his or her constitutional right to keep and bear arms or for exercising the right of self-defense as long as a firearm is never exhibited on company property for any reason other than lawful defensive purposes. Fla. Stat. Fla. Stat. 790.251(4)(e). Plaintiff urges that the phrase, or for exercising the right of self-defense, creates a broad exception to at-will employment by establishing a statutory right of self defense by any means (not limited to a firearm in a motor vehicle), protected by the right to bring a wrongful termination suit. The court disagrees. Plaintiff would create a new cause of action unrelated to the firearm purpose of the Act, by carving out an isolated phrase and attributing a broad meaning to it. This reading would contravene basic rules of statutory construction. See Larimore v. State, 2 So.2d 101, 114 (Fla. 2008) (We cannot read a statutory subsection in isolation, but must read it within the context of the entire section in order to ascertain legislative intent for the provision. (internal marks omitted)). The purpose of this statute is to prohibit employers from precluding employees from bringing guns to work, provided employees have valid permits and keep the guns stored in their vehicles. Bruley, 592 F. Supp. 2d at 1386. It creates an exception to at-will employment
Case No. 3:10cv112/MCR/EMT

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only in this limited context. See id.; see also Fla. Retail Federation, Inc. v. Attorney Gen. of Fla., 576 F. Supp. 2d 1281, 1295-96 (N.D. Fla. 2008) (construing the statute to apply only to situations where an employee with a valid permit has a gun secured in a vehicle in a parking lot) (subsequent history omitted). The statute does not create a cause of action for wrongful termination involving self defense in the workplace generally. Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain only a short and plain statement showing that the pleader is entitled to relief, but the plaintiff must plead facts from which the court can draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). The complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), cert. denied, 534 U.S. 1129 (2002). The facts alleged in Count III do not state a cause of action under Florida law. Thus, dismissal for failure to state a claim is required. Accordingly, it is hereby ORDERED that the motion to dismiss Count III of the First Amended Complaint (doc. 14) is hereby GRANTED, and Count III is dismissed with prejudice.

DONE AND ORDERED this 26th day of August, 2010.

s/

M. Casey Rodgers

M. CASEY RODGERS UNITED STATES DISTRICT JUDGE

Case No. 3:10cv112/MCR/EMT