Pintado v. Miami-Dade County Housing Agency

20 So. 3d 929, 2009 Fla. App. LEXIS 14519, 2009 WL 3101050
District Court of Appeal of Florida·Decided September 30, 2009·No. 3D09-812·Published·Cited by 4 cases

Opinions

ROTHENBERG, J.

Juan M. Pintado appeals from a final summary judgment entered in favor of Miami-Dade County Housing Agency (“Agency”), based on his failure to file his lawsuit asserting a claim under the Whistle-blower’s Act (“Act”), § 112.3187, Fla. Stat. (2007), within 180 days of the County Manager’s letter terminating his employment with the Agency. We affirm.

Pintado was employed by the Agency as a Construction Manager 2. In January 2002, Pintado sent a letter to County Manager Steve Shiver, accusing the chief of the planning section of violating the “cone of silence” ordinance as to bids for Miami-Dade County business. On March 20, 2002, Pintado was issued a Disciplinary Action Report (“DAR”) by a supervisor regarding his performance, and a meeting regarding the DAR was scheduled before the Agency’s Deputy Director for April 2, 2002. After receiving the DAR, Pintado called the Deputy Director’s office, stating that police officers should be present at the meeting because he was going to “beat” the supervisor who issued the DAR, and probably break things in the Deputy Director’s office. Pintado was then relieved of duty.

Pintado was issued another DAR, which was amended on May 20, 2002, asserting, in part, that he violated the County’s Administrative Order Against Workplace Vio[931] lence by threatening the supervisor. On May 20, 2002, the Agency’s Director terminated Pintado for threatening the supervisor who issued the initial DAR.

Pintado appealed the Director’s decision, and a hearing was conducted pursuant to Miami-Dade County’s civil service ordinance and the whistle-blower’s ordinance. Following a hearing, the hearing examiner issued a report on November 11, 2002, concluding that Pintado’s behavior violated the workplace violence order; rejecting Pintado’s whistle-blower claim; and recommending that Pintado be reinstated without back pay.

On January 7, 2003, the County Manager issued a final determination letter, stating that he was accepting the hearing examiner’s finding that Pintado’s conduct violated the workplace violence order, but was rejecting the hearing examiner’s recommendation that Pintado be reinstated without back pay, and instead, was sustaining Pintado’s dismissal from service with Miami-Dade County.

Pintado filed a petition for writ of certio-rari before the Miami-Dade Circuit Court, Appellate Division, arguing that the County Manager violated the Act. After the Circuit Court denied the petition on September 23, 2003, Pintado filed an appeal in this Court, which was treated as a petition for writ of certiorari. This Court denied the petition on September 22, 2004.

On November 10, 2004, Pintado filed a civil action against the Agency in federal court, asserting a count under the Act. Ultimately, on September 25, 2007, the Eleventh Circuit Court of Appeals concluded that the federal court did not have jurisdiction over the state law claim.

On October 2, 2007, Pintado filed a complaint in Miami-Dade Circuit Court, asserting that the Agency violated his rights under the Act by terminating his employment in retaliation for the letter he sent to the County Manager. The Agency filed a renewed motion for summary judgment, arguing in part that the whistle-blower’s claim was barred by the 180-day statute of limitations set forth in section 112.3187(8)(b). The trial court granted the motion for summary judgment, finding that the whistle-blower’s claim was time-barred because Pintado failed to raise the claim within 180 days of the County Manager’s decision, as required by section 112.3187(8)(b).1 Pintado’s motion for rehearing was denied, and thereafter, final summary judgment was entered in favor of the Agency. Pintado’s appeal followed.

The issue that Pintado has asked this Court to determine — whether the 180-day period set forth in section 112.3187(8)(b) of the Act is mandatory or permissive — was not raised below, and therefore, was not properly preserved for appellate review. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)). Even if properly preserved for appellate review, we conclude that Pintado’s whistle-blower’s claim was time-barred as he failed to assert it in a civil action within 180 days of the County Manager’s final determination letter.

[932] Section 112.3187(8)(b) provides in pertinent part as follows:

Within 180 days after entry of a final decision by the local governmental authority, the public employee who filed the complaint may bring a civil action in any court of competent jurisdiction. If the local governmental authority has not established an administrative procedure by ordinance or contract, a local public employee may, within 180 days after the action prohibited by this section, bring a civil action in a court of competent jurisdiction.

In the instant case, it is undisputed that the County Manager issued his final determination letter on January 7, 2003, and that Pintado first asserted the public sector whistle-blower’s claim under the Act in a civil action filed in federal court on November 10, 2004. Thus, if the 180-day period set forth in section 112.3187(8)(b) is mandatory, the trial court properly determined that Pintado’s whistle-blower’s claim was time-barred.

Pintado argues that pursuant to section 112.3187(8)(b), he “may” bring a whistle-blower’s claim within 180 days, but is not required to do so within that time period. Pintado’s interpretation of subsection (8)(b) is unreasonable. Section 112.3187(8)(b) simply provides that the public employee may, but is not required to, file a whistle-blower’s claim under the Act “after entry of a final decision by the local governmental authority” or after the action prohibited under the Act, if the “local governmental authority has not established an administrative procedure.” However, if the public employee opts to file a civil action asserting a whistle-blower’s claim under the Act, the claim must be filed within 180 days.

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Pintado v. Miami-Dade County Housing Agency, 20 So. 3d 929, 2009 Fla. App. LEXIS 14519, 2009 WL 3101050 (Fla. Ct. App. 2009).

20 So. 3d 929 (Pintado v. Miami-Dade County Housing Agency) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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