De Armas v. Ross, 95-1922

• Decision Date: 16 October 1996
• Docket Number: No. 95-1922,95-1922
• Citation: 680 So.2d 1130
• Parties: 12 IER Cases 767, 21 Fla. L. Weekly D2218 Jorge De ARMAS, Appellant, v. Calvin ROSS, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1130

680 So.2d 1130

12 IER Cases 767, 21 Fla. L. Weekly D2218

Jorge De ARMAS, Appellant, v. Calvin ROSS, et al., Appellees.

No. 95-1922.

District Court of Appeal of Florida Third District.

Oct. 16, 1996.

Robles & Gonzalez and Ervin A. Gonzalez and Rafael Pozo, Miami. for appellant.

A. Quinn Jones, III, and Leon M. Firtel and Kathryn S. Pecko, Miami, for appellees.

Before NESBITT, COPE and GERSTEN, JJ.

NESBITT, Judge.

Plaintiff-appellant Jorge De Armas appeals a final order dismissing his complaint as to certain individual defendants. ¹ We affirm the order under review in its entirety.

Appellant has been employed as a City of Miami police officer since May of 1988. On December 19, 1994 appellant filed an amended complaint against the City and four individual officers alleging a violation of section 112.3187, Florida Statutes (1993), of the Whistle-blower's Act. The individual defendant-officers ("officers") filed a motion to dismiss the amended complaint arguing in part that the Act only contemplated an action against the employer, namely the City, and not the officers. The trial court granted the motion and dismissed the complaint with respect to the officers.

Appellant points to subsections (2) and (3) of section 112.3187, and contends that the plain language of these provisions indicates that the officers were properly named as defendants. Subsections (2) and (3) provide in pertinent part:

(2) LEGISLATIVE INTENT.--It is the intent of the Legislature to prevent agencies or independent contractors from taking retaliatory action against an employee who reports to an appropriate agency violations of law on the part of a public employer or independent contractor that create a substantial and specific danger to the public's health, safety, or welfare.

. . . . .

(3) DEFINITIONS.--As used in this act, unless otherwise specified, the following words or terms shall have the meanings indicated:

(a) "Agency" means any state, regional, county, local, or municipal government entity, whether executive, judicial, or legislative; any official, officer, department, division, bureau, commission, authority, or political subdivision therein;....

(emphasis added). Appellant asserts that the highlighted language expresses the Legislature's clear intent to "subject individual officers and officials to liability for retaliatory action." We disagree.

While legislative intent is our primary concern in interpreting the statute, Prudential Ins. Co. of Am., Inc. v. Baitinger, 452 So.2d 140 (Fla. 3d DCA 1984), "it is a cardinal rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole. From a view of the whole law in pari materia, the Court will determine legislative intent." State v. Gale Distribs., Inc., 349 So.2d 150, 153 (Fla.1977).

We apply the foregoing principle to the instant case to answer what are in reality two questions. First, whether the officers are proper defendants in their individual capacities. Second, whether the officers are proper defendants in their official capacities.

We are convinced from a reading of section 112.3187, that the Legislature did not intend to subject officials or officers of an agency to suit in their individual capacities for alleged violations of the Act. Specifically, subsection (9) makes it clear that the relief afforded under the Act is against the entity that the official represents or of which he or she is the head. ² Cf. Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991)(holding individual capacity suits under Title VII inappropriate as relief granted "is against the employer, not individual employees whose actions would constitute a violation of the Act"); Gardiner v. Dotson, No. CV94-H-1894-NE, 1994 WL 520885 (N.D.Ala. Sept.19, 1994)(same under Americans with Disabilities Act). Thus, we affirm the lower court's dismissal of the amended complaint with respect to the officers in their individual capacities.

Finally, we address whether the officers were properly named as defendants in their official capacities given that the City of Miami itself was also named as a defendant. As noted in the Busby case, supra, brought to our attention by appellees' counsel:

Because suits against a municipal officer sued in his official capacity and direct suits against municipalities are functionally equivalent, there no longer exists a need to bring official-capacity actions against...