RIBA v. WAL-MART STORES EAST, L.P.

8/6/2019 RIBA v. WAL-MART STORES EAST, L.P.

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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.

_______________________________/

O R D E R

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Appx. 491 (11th Cir. 2009) (unpublished).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 orotherwise discriminate against an employee, or expel a customer or inviteefor exercising his or her constitutional right to keep and bear arms or forexercising the right of self-defense as long as a firearm is never exhibited oncompany 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 inorder 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 RodgersM. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

Case No. 3:10cv112/MCR/EMT


RIBA v. WAL-MART STORES EAST, L.P.

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