McRae v. Douglas
| Decision Date | 30 September 1994 |
| Docket Number | No. 94-61,94-61 |
| Citation | 644 So.2d 1368 |
| Parties | 19 Fla. L. Weekly D2083 Kenneth D. McRAE, Appellant, v. Taylor DOUGLAS, as Sheriff of Putnam County, Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert C. Widman of Nelson, Hesse, Cyril, Smith, Widman, Herb, Causey & Dooley, Sarasota, and Joseph W. Little, Gainesville, for appellant.
Phillip P. Quaschnick of Powers, Quaschnick, Tischler & Evans, Tallahassee, for appellee.
McRae appeals from two orders, which together dismissed his four count complaint filed against Taylor Douglas, as sheriff of Putnam County.
On June 17, 1993, McRae filed a four count complaint for damages against the sheriff. By first amended complaint, McRae alleged that he had been employed by the sheriff as a correctional officer and deputy sheriff from June 1, 1988 until he was fired on August 29, 1990. He alleged his employment was terminable only upon a showing of just cause and that he possessed a constitutionally protected property interest in his job.
McRae alleged that in 1990, certain inmates at the county jail alleged to the sheriff that he, McRae, had introduced contraband including marijuana, into the county jail and/or provided marijuana to an inmate. McRae was, following his termination, criminally charged with having committed these acts but was acquitted following a jury trial. McRae alleged that not only was he terminated from employment without pre-termination notice or an opportunity to be heard, but he was not reinstated following the verdict in the criminal action.
Count I alleged breach of an employment contract. Count II alleged violation of section 112.532, et. seq., Florida Statutes (Police Officers' Bill of Rights) in connection with the sheriff's investigation of the charges. Count III alleged a deprivation of due process of law of protected property rights in his public employment in violation of the Florida Constitution. Count IV similarly alleged a violation of 42 U.S.C. Sec. 1983.
The sheriff moved to dismiss the amended complaint on numerous grounds, including that it is time barred, that the Police Officers' Bill of Rights does not apply to sheriffs, deputy sheriffs or correctional officers appointed by sheriffs, nor does it authorize a suit for money damages, and that McRae failed to allege ultimate facts establishing a legally recognizable property interest in his position.
The trial court dismissed Counts I, III and IV on the basis that the two year statute of limitations found in section 95.11(4)(c), Florida Statutes concerning actions to recover unpaid wages applies and that those counts are time barred because the action was not commenced until some thirty months after McRae was terminated. As to Count II, the court ruled that to the extent it could be construed to state a claim for other than wages and related damages, it is deficient because it lacks a plain statement of the ultimate facts supporting viable relief. Count II was ultimately dismissed with prejudice.
Section 95.11, Florida Statutes, provides in relevant part as follows:
Actions other than for recovery of real property shall be commenced as follows:
* * * * * *
* * * * * * (c) An action to recover wages or overtime or damages or penalties concerning payment of wages and overtime.
McRae argues that this provision is inapplicable because Counts III and IV are not mere claims for recovery of unpaid wages 1 but rather are claims for damages for wrongful discharge in violation of the plaintiff's federal and state constitutional rights of due process of law. McRae asserts that the four year statute of limitations found in section 95.11(3)(p) () applies.
The order, in dismissing Counts III and IV relied on Broward Builders Exchange, Inc. v. Goehring, 231 So.2d 513 (Fla.1970), wherein the supreme court stated that all actions for unpaid back wages, however accruing, as well as suits for damages and penalties accruing under the laws respecting the payment of wages and overtime are governed by Florida's two year statute of limitations. The order also relied on two federal decisions, McGhee v. Ogburn, 707 F.2d 1312 (11th Cir.1983) and McWilliams v. Escambia County School Board, 658 F.2d 326 (5th Cir.1981). McWilliams holds that a 42 U.S.C. Sec. 1983 action against a school board alleging that a termination was the result of employment discrimination is governed by the two year limitation period found in section 95.11(4)(c) because such an action is essentially one for recovery of lost wages even though the plaintiff asks for more than just back pay. In McGhee, the Eleventh Circuit held that the two year limitations period likewise applies to an employment due process claim brought under 42 U.S.C. Sec. 1983. The court explained:
Goehring suggests that no matter how an employment termination suit is characterized, Florida law dictates that the two-year statute applies. McWilliams holds that even though Sec. 95.11(4)(c) may appear on its face to be limited to actions for the recovery of back-pay, it applies to Sec. 1983 employment suits in which the plaintiff requests legal and equitable relief. The district court properly dismissed the action as time-barred.
However, in Scott v. Otis Elevator Co., 524 So.2d 642 (Fla.1988), our supreme court ruled that an action for wrongful discharge brought pursuant to section 440.205, Florida Statutes 2 is not covered by section 95.11(4)(c), Florida Statutes. The court explained:
The instant action for retaliatory discharge under section 440.205 is not a "suit for wages" for the purposes of section 95.11(4)(c). We recognize that in the absence of a controlling federal statute of limitations, the Fifth and Eleventh Circuit Courts of Appeal, relying on Goehring, have applied the two-year wage statute of limitations set forth in section 95.11(4)(c) to federal statutory causes of actions for discriminatory employment termination. [McGhee ]; [McWilliams ]. We did not intend this result. Indeed, we found it difficult in Goehring, "to conceive of a claim for wages which does not in some manner arise from a contract expressed or implied." 231 So.2d at 514.
Retaliatory discharge is tortious in nature. [Citation omitted]. States adopting this tort generally consider it grounded on intent rather than negligence, allowing recovery of emotional distress and punitive damages as well as lost wages in appropriate cases. Prosser and Keeton on the Law of Torts Sec. 130, at 1029 (5th ed. 1984). Florida law does not recognize a common law cause of action for retaliatory discharge. See Smith v. Piezo Technology & Professional Administrators, 427 So.2d 182 (Fla.1983). The legislature, however, enacted section 440.205 subsequent to Goehring, creating distinct limited statutory cause of action for retaliatory discharge in the area of workers compensation. Claims under section 440.205 must be brought within the four-year statute of limitations set forth in section 95.11(3)(f) for statutory causes of action.
Since Scott, the supreme court has applied a four year statute of limitations to a statutorily grounded age-based wrongful discharge claim. See Hullinger v. Ryder Truck Rental, Inc., 548 So.2d 231 (Fla.1989). While both Scott and Hullinger involved state statutory causes of action, the court in Hullinger clarified the purpose behind the two year statute of limitations in section 95.11(4)(c):
The two-year statute of limitations in section 95.11(4)(c) pertains to "[a]n action to recover wages or overtime or damages or penalties concerning payment of wages and overtime." This statute and its predecessor were intended to cover claims for wages or overtime earned for services rendered, see Azaroglu v. Jordan, 270 So.2d 422 (Fla. 3d DCA 1972), cert. denied, 275 So.2d 12 (Fla.1973), or claims for improper withholding of wages such as during periods of suspension. See Gow v. County of Dade, 371 So.2d 493 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1195 (Fla.), cert. denied, 449 U.S. 850, 101 S.Ct. 139, 66 L.Ed.2d 61 (1980). Hullinger's claim is based upon a wrongful discharge. The fact that his damages may include or even be limited to recovery for such quantifiable injuries as the wages he lost had he not been discharged does not mean that his claim is one "to recover wages."
Counts III and IV are claims essentially alleging wrongful discharge and are not simply actions to recover lost wages. Under the language in Hullinger, neither count would fall within the two year limitations period found in section 95.11(4)(c). Rather Count IV being an action founded on federal "statutory liability" would fall within the four year statute of limitations in section 95.11(3)(f) 3 (as would Count II alleging a violation of section 112.532 (Police Officers' Bill of Rights)). Count III, alleging a violation of the Florida Constitution would fall within the four year limitation in section 95.11(3)(p) (). Counts II and III are not time barred.
The causes of action alleged in Counts III and IV are predicated on purported violations of McRae's state and federal constitutional rights to due process of law in his termination as deputy sheriff/corrections officer. These counts allege that McRae has been deprived of a property interest in his position without due process of law under the United States and Florida Constitutions.
An individual may, in a public employment context, establish entitlement to procedural due process under the United States and Florida Constitutions, by showing a property interest in his or her position. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Perry v. Sindermann,...
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