Christopher Ounjian v. Globoforce, Inc.

USCA11 Case: 22-12590     Document: 48-1        Date Filed: 12/12/2023   Page: 1 of 16




                                                                [PUBLISH]
                                       In the
                 United States Court of Appeals
                          For the Eleventh Circuit

                            ____________________

                                     No. 22-12590
                            ____________________

        CHRISTOPHER OUNJIAN,
                                                          Plaintiff-Appellant,
        versus


        GLOBOFORCE, INC.,
        d.b.a. Workhuman,
        a.k.a. Globoforce Group PLC,
        a.k.a. Globoforce Limited,


                                                        Defendant-Appellee.
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        2                           Opinion of the Court                  22-12590

                                 ____________________

                     Appeal from the United States District Court
                         for the Northern District of Florida
                      D.C. Docket No. 3:22-cv-04575-TKW-MJF
                              ____________________

        Before WILLIAM PRYOR, Chief Judge, ABUDU, Circuit Judge, and
        BARBER, * District Judge.
        BARBER, District Judge:
                 Appellant Christopher Ounjian alleged that when he ob-
        jected to unlawful conduct by his employer, appellee Globoforce,
        Inc., it retaliated against him and forced him to resign. Ounjian filed
        suit against Globoforce, alleging he was constructively discharged
        and seeking damages under the Florida Private Whistleblower Act
        and Florida Deceptive and Unfair Trade Practices Act. The district
        court dismissed Ounjian’s complaint with prejudice, holding that
        Ounjian failed to allege facts constituting a constructive discharge
        for purposes of the Florida Private Whistleblower Act and failed to
        allege damages cognizable under the Florida Deceptive and Unfair
        Trade Practices Act. We agree with the district court that the com-
        plaint failed to state a claim for relief under either statute. Ounjian
        did not seek leave to amend, and any amendment would have been



        * Honorable Thomas P. Barber, United States District Judge for the Middle
        District of Florida, sitting by designation.
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        22-12590               Opinion of the Court                          3

        futile. Accordingly, we affirm the district court’s dismissal of the
        complaint with prejudice.
                                 I. BACKGROUND
               Because this is an appeal from an order dismissing a com-
        plaint, we recount the facts alleged in the complaint, accept them
        as true, and construe them in the light most favorable to Ounjian.
        See Ingram v. Kubik, 

, 1247 (11th Cir.), cert. dismissed,
        

 (2022).
                Christopher Ounjian worked as a Global Account Executive
        for Globoforce, Inc. Globoforce sells its clients “reward and recog-
        nition services” by which they can provide their employees with
        “recognition points” that can be used to buy gift cards and mer-
        chandise on a website operated by Globoforce. Beginning in early
        2019, Ounjian came to believe the company was misrepresenting
        the value of its services to clients and potential clients, principally
        by telling them that the merchandise on its website was priced at
        market value, when in fact many of the items on the website re-
        flected a substantial markup, resulting in hidden profits for Glo-
        boforce. Ounjian raised this issue with the company’s manage-
        ment, but upon receiving no satisfactory answer, he began provid-
        ing clients and potential clients with information he regarded as
        more truthful, including the actual markup on website merchan-
        dise.
               Ounjian alleged that following his objections and his provid-
        ing truthful information to clients, Globoforce’s management re-
        taliated against him. Specifically, in July and August 2021, Tom
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        4                      Opinion of the Court                  22-12590

        Vitkofsky, the Vice President of Sales, leveled unwarranted criti-
        cism at Ounjian regarding his performance, attitude, and “negativ-
        ity.” Vitkofsky also notified Ounjian that the company was consid-
        ering transferring him from his position as Global Account Execu-
        tive to a position as Senior Enterprise Sales Executive, which Oun-
        jian viewed as a demotion and believed would have required sub-
        stantially more work than his current position. Ounjian objected to
        the proposed change because, among other reasons, his wife had
        serious medical issues that would prevent him from handling the
        increased workload. Vitkofsky passed this confidential family
        health information to the company’s human resources depart-
        ment, in violation of Globoforce’s internal policies. An HR repre-
        sentative then contacted Ounjian ostensibly to “check in” with him
        to make sure he was “all right” but in reality, to attempt to “sell”
        Ounjian on accepting the demotion or to establish a pretext for ter-
        minating him as a “disgruntled” employee.
               When Ounjian continued to object to the proposed transfer,
        Vitkofsky told him that his options were to accept the transfer or
        be terminated. Globoforce, however, withdrew the threatened
        transfer when Ounjian and his counsel advised the company he re-
        garded its actions as unlawful retaliation. Ounjian nevertheless re-
        signed the next month. His salary at Globoforce had exceeded $1
        million a year, and he took a position at a different company mak-
        ing only $350,000 a year.
               Ounjian filed suit in district court alleging that he was con-
        structively discharged in retaliation for his objections and refusal to
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        22-12590                Opinion of the Court                          5

        participate in the company’s unlawful conduct and asserting claims
        for relief under the Florida Private Whistleblower Act and the Flor-
        ida Unfair and Deceptive Trade Practices Act. Globoforce moved
        to dismiss the complaint with prejudice on the ground that it failed
        to state a claim for relief. The district court granted the motion,
        holding that the complaint failed to allege facts showing that Oun-
        jian was constructively discharged or was the subject of any other
        retaliatory personnel action as required for a claim under the Flor-
        ida Private Whistleblower Act. The district court also held that
        Ounjian failed to allege unfair or deceptive conduct directed at con-
        sumers, as opposed to conduct directed at Ounjian himself as an
        employee, and failed to allege damages cognizable under the Flor-
        ida Deceptive and Unfair Trade Practices Act. Ounjian did not seek
        leave to amend, and the district court therefore dismissed the com-
        plaint with prejudice.
                           II. STANDARD OF REVIEW
               We review the grant of a motion to dismiss under Rule
        12(b)(6) de novo, accepting the allegations in the complaint as true
        and construing them in the light most favorable to the plaintiff.
        Chabad Chayil, Inc. v. Sch. Bd. of Miami-Dade Cnty., 

 (11th Cir. 2022). “To survive a motion to dismiss, a complaint
        must contain sufficient factual matter, accepted as true, to state a
        claim to relief that is plausible on its face.” Dukes Clothing, LLC v.
        Cincinnati Ins. Co., 

 (11th Cir. 2022) (internal quo-
        tations and citation omitted). The complaint must “plead[ ] factual
        content that allows the court to draw the reasonable inference that
        the defendant is liable for the misconduct alleged.” 

 We may
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        6                       Opinion of the Court                  22-12590

        affirm the district court’s judgment on any ground supported by
        the record. Lucas v. W.W. Grainger, Inc., 

, 1256 (11th Cir.
        2001).
                                  III. DISCUSSION
                This diversity case involved the application of two Florida
        statutes. The complaint included a third count under Massachu-
        setts law, pleaded as an alternative in the event the court found Flor-
        ida law did not apply. The district court concluded that Florida law
        applied and dismissed the third count. That ruling is not challenged
        on appeal, and Florida law therefore controls our analysis. On state
        law issues, we are bound by decisions of the Florida Supreme
        Court. Pincus v. Am. Traffic Sols., Inc., 

 (11th Cir.
        2021). When that court has not spoken, we must follow decisions
        of Florida’s intermediate appellate courts, “absent some persuasive
        indication that the state’s highest court would decide the issue oth-
        erwise.” 

 (internal quotations and citation omitted).


                         A. Florida Private Whistleblower Act
               The first count of Ounjian’s complaint asserted a claim un-
        der the Florida Private Whistleblower Act (“FPWA”). The FPWA in
        relevant part prohibits an employer from taking a “retaliatory per-
        sonnel action against an employee because the employee has . . .
        [o]bjected to, or refused to participate in,” conduct that violates a
        law, rule, or regulation. 

(3). Thus, the elements
        of an FPWA claim are: (1) protected activity, (2) a retaliatory per-
        sonnel action and (3) a causal connection between the two. See id.;
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        22-12590                Opinion of the Court                           7

        Kearns v. Farmer Acquisition Co., 

 (Fla. Dist. Ct.
        App. 2015); Pennington v. City of Huntsville, 

, 1266 (11th
        Cir. 2001) (setting forth elements of a retaliation claim under Title
        VII). An FPWA claim is analyzed under the same standards as a Ti-
        tle VII retaliation claim. See, e.g., Sierminski v. Transouth Fin. Corp.,
        

 (11th Cir. 2000); Chaudhry v. Adventist Health Sys.
        Sunbelt, Inc., 

, 813 (Fla. Dist. Ct. App. 2020). We as-
        sume arguendo that Ounjian sufficiently alleged that he engaged in
        protected activity and focus our analysis on the second and third
        elements.
                The district court held that Ounjian’s complaint failed to al-
        lege the second element, a retaliatory personnel action. A “[r]etali-
        atory personnel action” is defined as a “discharge, suspension, or
        demotion by an employer of an employee or any other adverse em-
        ployment action taken by an employer against an employee in the
        terms and conditions of employment.” 

(5). To
        meet this requirement, the complaint must allege facts showing the
        employer took an action that was “materially adverse,” that is, one
        that caused injury or harm that would dissuade a reasonable em-
        ployee from engaging in the protected activity. See Burlington N. &
        Santa Fe Ry. Co. v. White, 

 (2006) (discussing “ma-
        terially adverse” for purposes of Title VII retaliation claims).
              The complaint alleged two types of retaliatory actions. First,
        Ounjian identified specific acts consisting of (1) a few instances of
        informal verbal criticism of Ounjian’s attitude and performance,
        (2) the improper disclosure to Globoforce’s human resources
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        8                          Opinion of the Court                       22-12590

        department of family health information Ounjian shared with
        Vitkovsky, and (3) a threatened demotion. Second, Ounjian alleged
        that because he faced the choice of participating in unlawful activ-
        ity or resigning, his resignation amounted to a constructive dis-
        charge.
                The district court ruled that the specific acts alleged did not
        amount to retaliatory personnel actions under the FPWA, and
        Ounjian does not challenge that ruling. Instead, he focuses on his
        allegation that he was constructively discharged. Constructive dis-
        charge requires plausible allegations the employer intentionally
        created conditions so “intolerable” that a reasonable employee
        would feel compelled to resign. See Fitz v. Pugmire Lincoln-Mercury,
        Inc., 

 (11th Cir. 2003) (constructive discharge under
        Title VII). This is an “onerous task” and requires pervasive and se-
        vere conduct by the employer going beyond that required for a hos-
        tile work environment claim. Bryant v. Jones, 

, 1298–
        99, 1307 (11th Cir. 2009) (constructive discharge under 

, which has the same requirements as Title VII). 1 The exist-
        ence of a constructive discharge is determined under an objective,




        1
         A hostile work environment requires a workplace “permeated with discrimi-
        natory intimidation, ridicule, and insult, that is sufficiently severe or pervasive
        to alter the conditions of the victim’s employment and create an abusive work-
        ing environment.” Tonkyro v. Sec’y, Dep’t of Veterans Affs., 

        (11th Cir. 2021) (internal quotations omitted).
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        22-12590               Opinion of the Court                         9

        “reasonable employee” standard, not by reference to a plaintiff’s sub-
        jective feelings. See White, 548 U.S. at 68–69.
                The alleged instances of criticism, improper disclosure of
        personal information, and withdrawn demotion threat, taken indi-
        vidually or collectively, do not meet the high bar for stating a con-
        structive discharge claim. Ounjian does not argue they do. Instead,
        he attempts to bypass the standard altogether by arguing that a con-
        structive discharge necessarily occurs whenever an employee re-
        signs because an employer engages in unlawful conduct and re-
        quires or requests that the employee participate. In support of this
        argument, Ounjian relies on a non-controlling Florida federal dis-
        trict court decision that involved far more severe and pervasive con-
        duct by the employer, and on federal decisions from other states
        that do not represent the law of Florida.
               Additionally, the timeline of events alleged in Ounjian’s
        complaint negates any inference he was “compelled” to resign.
        Ounjian continued to participate in the sales practices he objected
        to as unlawful for at least two years, from March 2019 to March
        2021. He obviously was not compelled to resign during that entire
        period. While Ounjian’s complaint included a conclusory allega-
        tion that Globoforce “insisted” he “go along with the illegal mis-
        representations as a condition of continued employment,” his spe-
        cific factual allegations instead described only a lack of responsive-
        ness to his questions and lack of approval for the disclosures he pro-
        posed. Ounjian concedes on appeal that Globoforce never “actually
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        10                      Opinion of the Court                  22-12590

        forced him to send out fraudulent proposals before his resigna-
        tion.”
               The allegations in Ounjian’s complaint make clear that he
        acted on his own volition and provided accurate information to cli-
        ents. He alleged that when he began to do so in March 2021, Glo-
        boforce took actions Ounjian regarded as retaliatory, but none
        caused him any cognizable harm, much less reasonably compelled
        him to resign. When the company threatened him with demotion,
        instead of resigning, he asserted his legal rights, and Globoforce
        withdrew the threat. There is no allegation that the company took
        any further action or made any further threat from that point until
        Ounjian resigned. Ounjian, having admittedly never been forced to
        participate in unlawful conduct, and having persuaded his em-
        ployer to withdraw the only significant adverse action it had threat-
        ened, was not faced with circumstances so “intolerable” that a rea-
        sonable employee in his position would be compelled to resign.
                Ounjian argues that Globoforce’s retaliatory actions, while
        not independently actionable, show that Globoforce intended to
        terminate him if he refused to participate in the improper conduct,
        and that it would have done so in the future had he not resigned.
        The FPWA, however, does not prohibit retaliatory intentions,
        plans, or motives; it prohibits “retaliatory personnel action[s].” 

 (emphasis added). Nor can a claim of constructive
        discharge be based on speculation about future actions an em-
        ployer might take. Fitz, 

. Even if, at one point in time,
        an employer harbors a desire or even devises a plan to take some
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        22-12590                Opinion of the Court                       11

        adverse action, “[t]he employer might never carry out the plan for
        several reasons,” including a change in its view of the situation or
        the receipt of legal advice that the planned action would trigger
        liability. 

 at 978 n.4.
                Another problem relates to the third element of Ounjian’s
        FPWA claim, causation. The FPWA requires a “retaliatory person-
        nel action” taken “because the employee has . . . [o]bjected to or re-
        fused to participate” in the unlawful conduct. 

(3)
        (emphasis added). Accordingly, there must be a causal connection
        between the protected activity and the adverse employment ac-
        tion—that is, the desire to retaliate must be a “but-for” cause of the
        adverse action. See Chaudhry, 305 So. 3d at 817 (quoting Univ. of Tex.
        Sw. Med. Ctr. v. Nassar, 

 (2013)). And nothing in
        Ounjian’s complaint plausibly suggests that the creation or contin-
        ued existence of the alleged improper sales practices constituted
        retaliation for Ounjian’s protected activity. To the contrary, the
        practices Ounjian argues drove him to resign necessarily existed
        prior to Ounjian’s objections to them. Thus, Globoforce engaged
        in the practices that prompted his resignation despite his objections,
        not because of them. To hold that the mere continued existence of
        practices to which an employee objects allows the employee to re-
        sign and assert an FPWA claim would read the retaliation element
        out of the statute. The district court correctly concluded that the
        complaint failed to state a claim for relief under the FPWA.
                   B. Florida Deceptive and Unfair Trade Practices Act
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        12                      Opinion of the Court                   22-12590

                Plaintiff’s second count asserted a claim under the Florida
        Deceptive and Unfair Trade Practices Act (“FDUTPA”). FDUTPA
        prohibits “[u]nfair methods of competition, unconscionable acts or
        practices, and unfair or deceptive acts or practices in the conduct
        of any trade or commerce.” 

(1). A person “who
        has suffered a loss as a result of a violation” may bring an action
        and recover “actual damages,” plus attorney’s fees and court costs.
        

(2). To assert a claim under FDUTPA, a plaintiff
        must allege (1) a deceptive or unfair act in the conduct of trade or
        commerce; (2) causation; and (3) actual damages. See, e.g., KC Lei-
        sure, Inc. v. Haber, 

 (Fla. Dist. Ct. App. 2008).
                A plaintiff need not be a consumer to assert a FDUTPA
        claim. See Stewart Agency, Inc. v. Arrigo Enters., Inc., 

 (Fla. Dist. Ct. App. 2019); Off Lease Only, Inc. v. LeJeune Auto
        Wholesale, Inc., 

, 869 n.2 (Fla. Dist. Ct. App. 2016);
        Bailey v. St. Louis, 

 (Fla. Dist. Ct. App. 2016); Car-
        ibbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach Cnty., Inc.,
        

 (Fla. Dist. Ct. App. 2015). However, the plaintiff
        must “prove that there was an injury or detriment to consumers.”
        Caribbean Cruise Line, 

 (emphasis omitted); see also
        Stewart Agency, 

 (“While an entity does not have to
        be a consumer to bring a FDUTPA claim, it still must prove the
        elements of the claim, including an injury to a consumer.”).
               The “actual damages” required for a FDUTPA claim have
        been defined as “‘the difference in the market value of the product
        or service in the condition in which it was delivered and its market
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        22-12590                 Opinion of the Court                           13

        value in the condition in which it should have been delivered ac-
        cording to the contract of the parties.’” Smith v. 2001 S. Dixie High-
        way, Inc., 

 (Fla. Dist. Ct. App. 2004) (quoting Rol-
        lins, Inc. v. Heller, 

 (Fla. Dist. Ct. App. 1984)). Con-
        sequential damages are not available. 

               The district court dismissed the FDUTPA count on two
        grounds. First, the court ruled that while a FDUTPA plaintiff need
        not be a consumer, the plaintiff must allege an unfair or deceptive
        practice directed at consumers. Ounjian’s FDUTPA claim, how-
        ever, was based on alleged adverse personnel actions directed at
        him, not at consumers. Second, the court ruled that the damages
        Ounjian sought, which resulted from the loss of his employment,
        were not cognizable as “actual damages” under FDUTPA.
                The conclusory allegations of Ounjian’s FDUPTA count, as
        the district court noted, allege conduct directed at Ounjian, rather
        than conduct directed at and injurious to consumers. However, the
        complaint’s general allegations assert that Globoforce made mis-
        representations to its customers, and we will assume arguendo these
        allegations sufficiently assert deceptive or unfair actions in the con-
        duct of trade or commerce that injured or were likely to injure con-
        sumers. We will further assume the more doubtful proposition that
        the connection between the unfair or deceptive conduct towards
        consumers and Ounjian’s loss of employment is sufficiently direct
        to support a cause of action for Ounjian under FDUTPA. We focus
        instead on the simplest and narrowest grounds supporting the dis-
        trict court’s dismissal of the complaint, FDUTPA’s requirement of
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        14                      Opinion of the Court                    22-12590

        “actual damages.” See Royal Palm Vill. Residents, Inc. v. Slider, 

 (11th Cir. 2023) (“[W]e are a federal court sitting in diver-
        sity. Presented with two possible ways of resolving this case, we
        rely upon the narrow ground in order to decide as little Florida law
        as is necessary to the result.” (internal quotations and citation omit-
        ted)).
                Relying on the decision of Florida’s Second District Court of
        Appeal in Smith, 

, the district court held that Oun-
        jian’s requested damages resulting from the loss of his employ-
        ment with Globoforce are not cognizable under FDUTPA. In
        Smith, a car dealership employee sued the dealership under
        FDUTPA, alleging the dealership wrongfully terminated her when
        she purchased a used car from another dealership. 

. She
        alleged the employer’s action violated a Florida statute prohibiting
        termination based on an employee’s doing business or not doing
        business with any merchant, and that it thereby also violated
        FDUTPA. 

 She sought an injunction reinstating her employment
        and damages relating to her loss of employment. 

 The dealership
        moved to dismiss, arguing that the complaint really sought dam-
        ages for wrongful termination under the “guise” of a FDUTPA
        claim. The trial court dismissed the complaint with prejudice. 

               The Fourth District Court of Appeal affirmed, holding the
        plaintiff had failed to allege a loss recoverable under FDUTPA.
        FDUTPA allows a person who has suffered a loss due to a violation
        to recover “actual damages,” which consist of the “difference in the
        market value of the product or service in the condition in which it
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        22-12590               Opinion of the Court                         15

        was delivered and its market value in the condition in which it
        should have been delivered according to the contract of the par-
        ties,” and excludes consequential damages. 

 (internal quo-
        tations and citation omitted). The court held the plaintiff’s com-
        plaint failed to allege damages cognizable under FDUTPA. 

 The
        court also rejected her claim for injunctive relief reinstating her em-
        ployment because the loss of employment was an indirect and con-
        sequential result of the alleged violation, i.e., the requirement that
        employees purchase vehicles only from the dealership. 

                Ounjian’s FDUTPA count sought damages for loss of em-
        ployment. The district court accordingly held that Smith was “bind-
        ing on the Court and it forecloses Plaintiff’s FDUTPA claim.” Oun-
        jian does not dispute that Smith, if applied, required dismissal of his
        FDUTPA claim. He suggests instead that Smith’s holding does not
        reflect the current law of Florida. Specifically, he relies on federal
        district court cases allowing FDUTPA claims in the employment
        context, which, in turn, rely on Florida cases beginning with Carib-
        bean Cruise Line in 2015 that hold the 2001 amendments to
        FDUTPA expanded the statute’s reach to allow claims by non-con-
        sumers. The damages limitation applied by Smith, Ounjian argues,
        no longer reflects Florida law because such a limitation would ef-
        fectively preclude FDUTPA claims by non-consumers.
               There is a tension between the reasoning and result in Smith
        and the cases allowing FDUPTA claims by non-consumers, and the
        Florida courts may, at some point in the future, resolve this tension
        by expanding the scope of FDUTPA damages. But they have not
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        16                     Opinion of the Court                22-12590

        done so yet. Smith has not been overruled, and the cases recogniz-
        ing the viability of FDUTPA claims by non-consumers—Stewart,
        Caribbean Cruise Line, Bailey, and Off-Lease—do not disagree with or
        criticize Smith. Absent a contrary decision from the Florida Su-
        preme Court, or a persuasive indication that the Florida Supreme
        Court would decide the issue differently, we are bound to apply
        Smith and affirm the district court’s dismissal of Ounjian’s
        FDUTPA claim. See, e.g., Nunez v. Geico Gen. Ins. Co., 

 (11th Cir. 2012).
               Finally, the district court correctly dismissed Ounjian’s com-
        plaint with prejudice. A district court may dismiss a complaint with
        prejudice where the plaintiff fails to request leave to amend, or
        where the complaint could not be more carefully drafted to state a
        valid claim. See Wagner v. Daewoo Heavy Indus. Am. Corp., 

 (11th Cir. 2002) (en banc). Both aspects are present here.
        Ounjian did not request leave to amend. The allegations of his 341-
        paragraph complaint were detailed and comprehensive. The flaws
        requiring dismissal inhered in the nature of the claims Ounjian as-
        serted, rather than a correctible pleading deficiency.
                                IV. CONCLUSION
              We AFFIRM the judgment in favor of Globoforce.