City of Riviera Beach v. Fitzgerald

492 So. 2d 1382, 11 Fla. L. Weekly 1873
CourtDistrict Court of Appeal of Florida
DecidedAugust 27, 1986
Docket84-2730
StatusPublished
Cited by7 cases

This text of 492 So. 2d 1382 (City of Riviera Beach v. Fitzgerald) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Riviera Beach v. Fitzgerald, 492 So. 2d 1382, 11 Fla. L. Weekly 1873 (Fla. Ct. App. 1986).

Opinion

492 So.2d 1382 (1986)

CITY OF RIVIERA BEACH, a Florida Municipal Corporation, and William "Boone" Darden, Appellants,
v.
James FITZGERALD, Appellee.

No. 84-2730.

District Court of Appeal of Florida, Fourth District.

August 27, 1986.

*1383 Michael B. Davis of Davis Critton Hoy & Diamond, West Palm Beach, for appellants.

Philip M. Burlington of Edna L. Caruso, P.A., and Montgomery, Searcy and Denney, P.A., West Palm Beach, for appellee.

DELL, Judge.

The City of Riviera Beach and William "Boone" Darden (Darden) appeal from a final judgment awarding Appellee James Fitzgerald (Fitzgerald) damages in an action brought under 42 U.S.C. § 1983.

This suit arose because appellants failed to promote Police Lieutenant Fitzgerald to the rank of captain in the Riviera Beach Police Department. In May of 1981, one of the police department's three captains announced that he would resign within two weeks. On May 21, 1981, Darden requested that the Civil Service Board submit an eligibility list for promotion. Prior to Darden's request for an eligibility list, the Civil Service Board had voted to change the "time in grade" requirement for captain from one year to three years. This change made Charles Napier, one of the police department's five lieutenants, ineligible to take the examination for promotion. Napier filed a civil service grievance, and while it was pending, Fitzgerald and the three remaining lieutenants took the written and oral portions of the examination. Fitzgerald and two other lieutenants passed the written portion of the examination. The Civil Service Board's chief examiner departed from prior policy and utilized professional law enforcement officers from outside the Riviera Beach Police Department to conduct the oral review. Fitzgerald received the only passing grade on the oral examination. On September 12, 1981, the Civil Service Board submitted a certified eligibility list which included the names of all four lieutenants, but reflected that only Fitzgerald had a passing score on both the written and oral portions of the examination.

Darden exercised his option under Section 2-50(c), Riviera Beach Code, to reject the promotion list because it certified only one eligible candidate (Fitzgerald) for promotion to the rank of captain. He did not, however, comply with the corresponding requirement of Section 2-50(d), Riviera Beach Code, which required a written statement explaining his reasons for rejecting the promotion list. Darden testified that he did not wish to recommend a promotion from a single candidate list, and that the city manager had advised him that because of the grievance previously filed by Charles Napier, the city manager would not agree to a promotion from the September 12 list. Darden permitted Lieutenant *1384 Napier to continue as acting captain.[1] Fitzgerald timely filed a civil service grievance which the city manager denied on October 16, 1981. Two days before the city manager's denial of appellee's grievance, the City Commission removed the civilian members from the Civil Service Board and replaced them with new members. Fitzgerald requested a hearing before both the previous board members and the new members of the Civil Service Board, but never received a hearing on his grievance.

The newly-constituted board investigated Lieutenant Napier's grievance and voted to change the "time in grade" back to one year and to return to the policy of using Riviera Beach personnel to conduct oral examinations. As a result of the changes, Lieutenant Napier became eligible to take the examination for promotion. Napier took the written examination, and the remaining lieutenants, including Fitzgerald, exercised the option of using their previous scores rather than retaking the written examination. Napier failed the written examination. Fitzgerald and two other lieutenants successfully completed the oral portion of the examination. Darden selected Lieutenant Roberts, one of the successful applicants, for promotion to captain.

Fitzgerald filed suit claiming appellants had acted in violation of 42 U.S.C. § 1983. He alleged a denial of due process by the City of Riviera Beach for its refusal to grant him a Civil Service Board hearing on his grievance, and by Darden's failure to promote him to captain when he was "at the top of the promotional eligibility list." He also alleged a denial of equal protection on grounds of discrimination and arbitrary conduct in his rejection. He claimed both compensatory and punitive damages. The trial court entered a directed verdict against Fitzgerald on his claim for punitive damages, and Fitzgerald abandoned his claim for mental anguish and suffering. The jury awarded Fitzgerald $45,000 for lost wages and $125,000 for denial of due process of law, but found in favor of appellants on Fitzgerald's claim for denial of equal protection.

Appellants contend that they should have received a directed verdict because Fitzgerald failed to establish a deprivation of a constitutionally-protected right to promotion to captain, and he failed to demonstrate that he had made timely application to the Civil Service Board for review of his grievance. They also argue that the trial court erred when it instructed the jury that it could award damages on grounds other than compensation for actual damages, and that the trial court should have granted a new trial because of an excessive verdict.

Fitzgerald brought his claim exclusively under 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The due process clause of the fourteenth amendment provides that no state shall deprive a person of life, liberty or property without due process of law. Fitzgerald claimed below that appellants deprived him of a property interest in violation of his substantive and procedural due process rights. Appellants argue that Fitzgerald failed to present any evidence which established a deprivation of a protected property interest.

The question of whether a promotion constitutes a property interest has been addressed in Schwartz v. Thompson, 497 F.2d 430 (2d Cir.1974) and International Association of Firefighters v. City of Sylacauga, *1385 436 F. Supp. 482 (N.D.Ala. 1977). In Schwartz, the court found that the appellant had no property interest in the promotion he sought, but stated in dicta that "one can conceive of circumstances where a promotion would be virtually a matter of right — for example, where it was solely a function of seniority or tied to other objective critera... ." 497 F.2d at 433. In Firefighters, the court found the Civil Service Board deprived the firefighters of a protected property interest in the promotional procedures prescribed by state law and stated:

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Bluebook (online)
492 So. 2d 1382, 11 Fla. L. Weekly 1873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-riviera-beach-v-fitzgerald-fladistctapp-1986.