Opinion
No. 3D18-2147
12-26-2019
Victor IGWE, Appellant/Cross-Appellee, v. CITY OF MIAMI, Appellee/Cross-Appellant.
Amlong & Amlong, P.A., William R. Amlong, Karen Coolman Amlong, and Ryan C. Brenton (Fort Lauderdale), for appellant/cross-appellee. Victoria Méndez, City Attorney, and Kerri L. McNulty, Sr. Appellate Counsel, for appellee/cross-appellant.
Amlong & Amlong, P.A., William R. Amlong, Karen Coolman Amlong, and Ryan C. Brenton (Fort Lauderdale), for appellant/cross-appellee.
Victoria Méndez, City Attorney, and Kerri L. McNulty, Sr. Appellate Counsel, for appellee/cross-appellant.
Before FERNANDEZ, MILLER and GORDO, JJ.
GORDO, J. Victor Igwe appeals the trial court's order granting the City of Miami's Motion to Set Aside the Verdict and entry of final judgment in favor of the City. The trial court set aside the verdict based upon the jury's finding that Igwe failed to exhaust his administrative remedies, concluding that proceedings before the City's Civil Service Board would not have been futile. On appeal, Igwe contends that he was not a City employee subject to exhaustion requirements. He further argues that even if he were subject to these requirements, the City waived its ability to assert this defense. We affirm finding that the trial court did not abuse its discretion.
Igwe argues that the City is foreclosed from relying on its failure to exhaust defense because this case was previously on appeal before this Court and that decision became the law of this case. See Igwe v. City of Miami, 208 So. 3d 150 (Fla. 3d DCA 2016) ("Igwe I"). However, Igwe I decided only Igwe's entitlement to protected status under the Whistle-blower Act. Thus, the law of the case doctrine is inapplicable and Igwe I has no bearing on the failure to exhaust defense, as it was neither litigated nor decided in that appeal. See Dep't of Transp. v. Juliano, 801 So. 2d 101, 105–06 (Fla. 2001).
FACTS AND PROCEDURAL BACKGROUND
Igwe served two four-year terms as the Independent Auditor General ("IAG") for the City of Miami from May of 2003 to mid-2011. During his time as IAG, Igwe cooperated with the Securities and Exchange Commission in investigating the City. Eventually, Igwe's second term as IAG expired and the City terminated him on June 27, 2011. The Commission launched a nationwide search for another qualified CPA to fill the position.
On October 25, 2011, Igwe filed a lawsuit alleging that he had been illegally terminated in violation of Florida's Whistle-blower Act. See § 112.3187, Fla. Stat. (2019). Igwe contended that the Commission's decision not to renew his contract was in retaliation for his cooperation with the SEC. The complaint alleged Igwe had not sought review from the Board because the proceedings would have been futile.
The City pleaded Igwe's failure to exhaust his administrative remedies as an affirmative defense. That defense was never stricken by the trial court and remained available to the City throughout the pendency of the litigation. When the case proceeded to trial, the defense was argued by the City, controverted by Igwe and included on the verdict form for the jury's consideration.
Although the verdict was in Igwe's favor, the jury also specifically found on the verdict form that Igwe had failed to exhaust his administrative remedies prior to filing the case. Post-trial, Igwe filed a motion to strike the City's exhaustion defense, which the trial court denied. The City then filed a motion to set aside the verdict, based on Igwe's failure to appeal to the Board. The trial court granted that motion and entered judgment in the City's favor finding that Igwe was required to appeal to the Board and that those proceedings would not have been futile. This appeal followed.
STANDARD OF REVIEW
Determinations of futility are left to the trial court's sound discretion and are overturned on appeal only where the trial judge has clearly abused his discretion. See S. Fla. Blood Bank, Inc. v. Futch, 764 So. 2d 724, 725 (Fla. 4th DCA 2000).
LEGAL ANALYSIS
Florida's Whistle-blower Act sets forth requirements for an administrative body's review process. § 112.3187, Fla. Stat. (2019). The City established the Board in order to address all abuses and grievances concerning City employees. See § 36(a), City of Miami Charter (establishing the Board); § 40-128, City of Miami Code of Ordinances (addressing initiation of proceedings by "any employee"). This Court has repeatedly held that the Board satisfies the procedural requirements in the Act for impartial administrative review. See, e.g., Williams v. City of Miami, 87 So. 3d 91, 92 (Fla. 3d DCA 2012) ; Browne v. City of Miami, 948 So. 2d 792, 793 (Fla. 3d DCA 2006) ; City of Miami v. Del Rio, 723 So. 2d 299, 301 (Fla. 3d DCA 1998).
The Whistle-blower Act requires that a claimant exhaust all administrative remedies before filing suit. § 112.3187, Fla. Stat. "Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review." Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Administrative remedies exist to put a government agency or body on notice of a potential claim. The agency or body is then afforded an opportunity to correct any erroneous action it may have taken. Because Igwe failed to raise a claim before the Board, the City lacked notice of his potential claim prior to the commencement of the suit below.
A trial court may "excuse the exhaustion requirement when resort to administrative remedies would be futile or the remedy inadequate." Futch, 764 So. 2d at 725 (citing Counts v. Am. Gen. Life & Accident Ins. Co., 111 F.3d 105, 108 (11th Cir. 1997) ). "To substantiate a claim of futility as an excuse for not exhausting administrative remedies, a claimant must make a clear and positive showing of futility." Id. at 726. A mere allegation from an employee that participation in the administrative process would be futile does not relieve the employee of their obligation to exhaust the remedies provided. See City of Miami v. Fraternal Order of Police Lodge No. 20 of City of Miami, 378 So. 2d 20, 25 (Fla. 3d DCA 1979) (finding that an employee cannot "relieve himself of engaging in the grievance process merely by supinely accepting an adverse decision of his employer as unchallengeable until the filing of an action in court").
The trial court wrote a detailed and well-reasoned order granting the City's Motion, addressing each of Igwe's contentions now reasserted on appeal. After reviewing the record on appeal and relevant transcripts, we find that the trial court did not abuse its discretion. Igwe was a member of the City's unclassified service subject to exhaustion requirements before the Board. See § 36(c)(1)(B), City of Miami Charter (categorizing heads of departments as members of unclassified service); id. at § 48(b) (naming the IAG as the director of the Office of the Independent Auditor General). The City Commission's failure to reinstate Igwe was subject to Board review under the City of Miami Code of Ordinances. See § 36, City of Miami Charter (the Board serves to address any grievances concerning employment with the City). Finally, an appeal to the Board would not have been futile. See § 40-128(b), City of Miami Code of Ordinances (any aggrieved employee may bring a grievance before the Board).
Igwe contests the trial court's futility finding, arguing that Board proceedings would have been futile because the Board could only make a recommendation to the City Manager, not directly to the Commission. The trial court's conclusion, however, was not an abuse of discretion. The Board would have heard Igwe's grievance and reported its findings to the City Manager who would have then made a recommendation to the City Commission. See § 40-128(b)(4), City of Miami Code of Ordinances (requiring the Board to report its findings to the City Manager for consideration of a proper remedy); see also § 16(e), City of Miami Charter (empowering the City Manager to make recommendations to the City Commission). The Board's findings cannot be overturned or disregarded where they are based on competent, substantial evidence. See, e.g., City of Miami v. Jean-Phillipe, 232 So. 3d 1138, 1145 (Fla. 3d DCA 2017) (finding that the City Manager could not reject the Board's recommendation where it was supported by competent, substantial evidence). The Commission was entitled to independent review by the Board and a recommendation from the City Manager. It was not within Igwe's discretion to deprive the City of notice of the potential claim and an opportunity to reconsider its employment decision. For those reasons, the trial court did not abuse its discretion in concluding that Board proceedings would not have been futile.
CONCLUSION
Given the jury's finding that Igwe failed to exhaust his remedies and the trial court's finding that Board review would not have been futile, the trial court's decision to set aside the jury verdict in Igwe's favor and entry of final judgment for the City was well within its discretion.
Affirmed.