       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

          SCOTT ISRAEL, SHERIFF OF BROWARD COUNTY,
                           Appellant,

                                     v.

                           ANTHONY CASTRO,
                               Appellee.

                              No. 4D14-414

                             [March 25, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No.
CACE09027861.

  Carmen Rodriguez of Law Offices of Carmen Rodriguez, P.A., Palmetto
Bay, for appellant.

  Teri Gutman Valdes of Teri Gutman Valdes LLC, Coral Gables, for
appellee.

WARNER, J.

   The Sheriff of Broward County appeals a final summary judgment
finding appellee, Anthony Castro, was wrongfully terminated from his
position as deputy sheriff. The Sheriff contends that the court erred in
finding that Castro was not required to exhaust his administrative
remedies pursuant to a collective bargaining agreement between the
Sheriff and the deputies. Concluding that Castro was required, and failed,
to exhaust administrative remedies under the agreement, we reverse.

   After Anthony Castro’s employment as a deputy sheriff was terminated,
he sued the Sheriff of Broward County for declaratory and injunctive relief.
Castro alleged he was hired as a deputy sheriff cadet in February 2007,
and was promoted to deputy sheriff on September 27, 2007, at which time
he began serving a one-year probationary period. On October 8, 2008, he
was advised in a memorandum that the probationary period would be
extended by six months. Then, in January 2009, he was allegedly
terminated due to a failure to meet probationary standards.
   Castro alleged that, under the governing collective bargaining
agreement (“CBA”), the standard probationary period for new members
was twelve months, and the Sheriff could extend this period only for an
additional six months prior to the expiration of the original twelve-month
period. Because he had continued working beyond the probationary
period before the Sheriff had attempted to extend it, he alleged that he was
no longer a probationary employee and should not have been considered
terminable at will. The complaint generally alleged that he had exhausted
available administrative remedies or that doing so would be futile. Castro
requested that the court declare that he had attained permanent status
and order his reinstatement with back pay and benefits.

    After the Sheriff responded to the complaint, both sides moved for
summary judgment. The Sheriff argued the questions relating to the
probationary provisions of the CBA should be determined by an arbitrator
pursuant to Article 33 of the CBA and section 447.401, Florida Statutes
(2009), which requires public employers to establish grievance procedures.
Moreover, the Sheriff argued, for a probationary deputy to be entitled to
continue in employment as a deputy, the Sheriff was required to take some
affirmative action. Because the Sheriff had not taken any action during
the probationary period, the Sheriff contended Castro had no expectation
of continued employment.

    At the hearing on summary judgment, Castro argued that under the
Broward County Code, since he had completed his probationary period as
defined in the CBA, he could not be fired unless he was afforded the
procedural due process protections. Despite his reliance on the CBA to
establish his status, he claimed he was not asking the court to interpret
it. He maintained that the issue was one governed by the County Code
and therefore not subject to arbitration.

    The Sheriff argued that Castro should have followed the grievance and
arbitration procedure of the CBA, and because he had failed to do so, he
could not show that he had exhausted administrative remedies. Castro
responded that he could not have filed a grievance, because the Sheriff
contended that he was a probationary employee, and probationary
employees were not entitled to utilize the grievance procedure. The Sheriff
replied that Castro still could have filed a grievance and, if it had been
denied on the grounds that he was a probationary employee, he could have
filed a complaint alleging he had no remedy.

   The court entered summary judgment for Castro, denying the Sheriff’s
cross-motion. The court ruled that Castro “was not required to exhaust
his administrative remedies pursuant to the CBA based on management’s

                                     2
position that he was a probationary employee pursuant to the Broward
County Code[.] [Castro] completed his probationary period and was not
able to be subjected to dismissal without notice and right to appeal.” The
court directed Castro’s reinstatement and awarded him back wages,
attorney’s fees and costs. The Sheriff appeals.

   The Sheriff argues that Castro was required to utilize the grievance
procedure outlined in the CBA before filing suit, and thereby exhaust his
administrative remedies. The CBA grievance procedure provides for
arbitration, and the Sheriff argues that Castro’s claim that his
probationary status had ended and even the question of arbitrability itself
are properly subject to arbitration. Because Castro failed to do so within
the time frame provided in the CBA, the Sheriff argues, his lawsuit is
precluded. Castro, on the other hand, contends that the CBA provisions
do not apply.

   “The weight of authority holds that, before resorting to the courts, ‘one
must pursue and exhaust any extra judicial or administrative remedy
which may provide the relief sought.’” Miami Ass’n of Firefighters Local
587 v. City of Miami, 87 So. 3d 93, 96 (Fla. 3d DCA 2012) (quoting City of
Miami v. Fraternal Order of Police, 378 So. 2d 20, 23 (Fla. 3d DCA 1979)).
Thus, “actions for breach of [CBAs] may not be maintained unless the
complaining employee or his union first attempts and exhibits the ‘use of
the contract grievance procedure agreed upon by employer and union as
the mode of redress.’” Id. (quoting Republic Steel Corp. v. Maddox, 379
U.S. 650, 652 (1965)) (affirming dismissal of firefighters’ complaint
because of failure to exhaust administrative remedies); see, e.g., Public
Health Trust v. Hernandez, 751 So. 2d 124, 125 (Fla. 3d DCA 2000) (former
county employee’s motion to compel arbitration should have been denied
because employee violated CBA grievance provisions by seeking immediate
arbitration in circuit court, instead of completing four-step grievance
procedure; holding, “It is a well settled principal that a party, when bound
by a [CBA], must exhaust any administrative remedy prior to litigating in
court.”); Town of Lauderdale-By-The-Sea v. Behan, 629 So. 2d 1102, 1102
(Fla. 4th DCA 1994) (“[A]ppellee was bound by the terms of the [CBA]
between the parties to submit his grievance and any request for remedies
to arbitration. . . . Hence we find the trial court erred in ordering the
appellee reinstated to his employment with full back pay. If the appellee
seeks further relief, he must proceed under the terms for arbitration set
out in the parties’ agreement.”).

  Under the Broward County Code of Ordinances, deputy sheriffs are
public employees subject to Chapter 447 of the Florida Statutes. See


                                     3
Broward County Code of Ordinances, Sec. 18-6(e)(1)-(2).1           Section
447.401, Florida Statutes (2009), requires public employers to “negotiate
a grievance procedure to be used for the settlement of disputes between
employer and employee, or ground of employees, involving the
interpretation or application of a collective bargaining agreement [CBA].”
Article 33 of the CBA governing the Broward County deputy sheriffs
establishes such a grievance procedure and provides the procedure must
be used to resolve questions involving interpretation of the CBA:

       33.1: . . . [T]he parties hereto agree that they will promptly
             attempt to adjust all complaints, disputes, controversies
             or other grievances arising between them involving
             questions of interpretation or application of the terms
             and provisions of this Agreement as provided herein.

       33.2: A grievance shall be defined as any controversy or dispute
             arising between the parties involving questions of
             interpretation or application of the terms and
             provisions of this Agreement.

(Emphasis added.)

   The issue on which Castro sought a declaratory judgment was whether,
at the time his employment was terminated, he was a probationary
employee or a permanent employee. If the latter, his employment could
not have been terminated “except for just cause and after notice and a
hearing, through an arbitration or similar process which assures the
deputy sheriff procedural due process.”        Broward County Code of
Ordinances, Sec. 18-6(d)(2). And if he had achieved permanent status, he
could not have been fired, as he was, for failure to successfully complete
the probationary period.

   Section 18-6 of the Broward County Code defines a deputy sheriff as a
law enforcement officer who has, inter alia, “completed a satisfactory
probationary period[.]” Broward County Code of Ordinances, Sec. 18-
6(b)(2). The code does not specifically define the probationary period, only
stating it is “that period of time designated by the sheriff[.]” Broward
County Code of Ordinances, Sec. 18-6(b)(3). Instead, Article 40 of the CBA


1The code is available online at the following address:
https://www.municode.com/library/fl/broward_county/codes/code_of_ordinan
ces?nodeId=PTIICOOR_CH18LAEN_ARTIINGE_S18-6PESTCEEMSH


                                      4
governing employment of Fort Lauderdale deputy sheriffs defines the
probationary period as twelve months, and allows extension of the period:

    40.2:   The standard probationary period for all new
            bargaining unit members will be twelve (12) months
            of continuous . . . employment from the date that the
            bargaining unit member obtains certification and is
            working as a full-time bargaining unit member of [the
            Sheriff’s Office].   Bargaining unit members will be
            considered probationary until they have performed the
            duties of a full-time certified law enforcement deputy for
            twelve (12) consecutive months. Prior to the expiration
            of this time period, the Sheriff shall either: (1) approve
            retention of the bargaining unit member, at which time
            the bargaining unit member shall be granted permanent
            status; or (2) extend the bargaining unit members
            probation for up to an additional six (6) months; or (3)
            in the event the Sheriff shall fail to approve retention, the
            bargaining unit member shall automatically be separated
            from employment, said separation being absolutely final,
            with no rights of appeal to any authority including either
            the grievance/arbitration procedure contained herein, or
            any disciplinary review process established by the
            Sheriff’s policy and procedure.

(Emphasis added). The CBA also provides that, during the probationary
period, newly hired officers do not have the right to file grievances:

    40.3:   During a newly hired bargaining unit member’s
            probationary period, he/she serves at the will and
            pleasure of the Sheriff. Accordingly, a newly hired
            probationary bargaining unit member may not grieve, or
            otherwise challenge by any other available procedure,
            any decision involving discipline and/or discharge.

   Whether Castro was a probationary employee or a permanent employee
depends on the interpretation of Article 40 of the CBA. Although Castro
states that he is seeking a determination of rights under the County Code,
because the code defines the probationary period as one designated by the
Sheriff, the CBA provides the method of determining Castro’s status.
Moreover, Castro contended that at the time of his termination he was a
permanent employee. Therefore, as such, he should have filed a grievance
regarding his termination under the CBA procedures.


                                     5
   City of Miami v. Fraternal Order of Police Lodge No. 20 of City of Miami,
378 So. 2d 20, 23 (Fla. 3d DCA 1979), supports a finding that Castro had
to first pursue grievance and arbitration procedures of the CBA. There,
two police officers were summarily discharged during their probationary
status. They disagreed with their superiors as to whether they were
entitled to a pre-termination advisory hearing before a disciplinary review
board under the governing CBA. Disregarding grievance and arbitration
procedures under the CBA, the officers filed suit for reinstatement and
back pay because of the failure to provide a hearing. The trial court
entered a judgment for the officers, finding their failure to exhaust
administrative remedies was not dispositive, because the officers relied on
their supervisor’s instructions that they would have no right to a hearing
as probationary employees.

    On appeal, the Third District reversed. It concluded that the dispute
involved the interpretation and application of the CBA and thus was
subject to the grievance procedure in the agreement. It rejected the
officer’s contention that officers did not have to pursue an administrative
remedy as a result of their superiors’ position that, as probationary
employees, they were not entitled to an arbitration hearing. The court
noted:

    [T]hese statements [by the superiors] were no more than
    expressions of the employer’s position on the Merits of the issue
    in contention, concerning which the [union and the two officers]
    obviously held the opposite view.          At no time, did any
    representative of the city indicate that it would not submit the
    issue of who was right in that controversy to the grievance-
    arbitration procedure or would not abide by the resulting
    decision. . . . It would be a strange doctrine indeed under which
    an employee could 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.
    Such a rule would render the exhaustion principle itself entirely
    meaningless.

Id. at 25. The court also reasoned, “Analytically and temporally, acts by
an employer which are alleged to be substantive breaches of a [CBA] . . .
cannot also serve as anti-remedial acts constituting employer repudiation
of the grievance and arbitration procedure established for the resolution
of those earlier substantive breaches.” Id.

   Similarly, the dispute as to Castro’s status unquestionably required an
interpretation of the CBA provisions. Thus, it was subject to arbitration

                                     6
under the CBA. That the Sheriff claimed that Castro was a probationary
employee and not entitled to arbitration did not relieve Castro of the
obligation to file a grievance. After all, as he claimed he was a permanent
employee, he would necessarily be subject to the grievance and arbitration
procedure in the CBA.

   We follow Fraternal Order and reverse the trial court’s summary
judgment. Because Castro failed to exhaust his administrative remedies,
we remand and direct entry of a judgment in favor of the Sheriff.

CIKLIN and GERBER, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                    7
