PATRICK COMPETELLI, APPELLANT,
v.
CITY OF BELLEAIR BLUFFS, APPELLEE

Fla. 2d DCA | 2013-05-15
No. 2D12-2462
ALTENBERND and MORRIS, JJ., Concur.
113 So. 3d 92 Florida District Court of Appeal, Second District (2013) Positive Treatment
Cited by 14 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Patrick Competelli, former fire chief of Belleair Bluffs, appealed a summary judgment dismissing his whistleblower retaliation claim under Florida's public employee whistleblower statute. The court reversed, finding genuine issues of material fact regarding whether his termination was retaliatory or for legitimate reasons, precluding summary judgment.


Holding

The court held that Competelli made a prima facie showing of whistleblower retaliation and that summary judgment was improper because genuine issues of material fact remained regarding whether the City's stated reason (failure to follow direction) or retaliation (for raising safety concerns) motivated his termination.


Headnotes

[1] A trial court may enter summary judgment only when the record shows no genuine issues of material fact and the movant is entitled to judgment as a matter of law.

[2] If the evidence raises any issue of material fact, is conflicting, permits different reasonable inferences, or tends to prove the issues, it should be submitted to the ju…

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Key Quotes

“If the record reflects the existence of any genuine issue of material [*93] fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.”

Establishes the stringent standard for summary judgment in Florida, requiring all inferences to favor the non-moving party.

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Facts & Procedural History

In May 2009, the Mayor directed Competelli to review fire service consolidation options. Competelli initially recommended merger with Largo Fire Depar…

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Opinion of the Court
LaROSE, Judge.

LaROSE, Judge.

This is a whistleblower case. Patrick Competelli, the former fire chief of the City of Belleair Bluffs, sued the City for violation of Florida’s public employee whis-tleblower act, sections 112.3187-.31895, Florida Statutes (2009). The trial court entered a final summary judgment for the City. Mr. Competelli seeks reversal. We have jurisdiction. See Fla. R.App. P. 9.030(b)(1)(A). Because genuine issues of material fact remain for resolution, we reverse.

Our review is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Makryllos v. Citizens Prop. Ins. Corp., 103 So.3d 1032, 1034 (Fla. 2d DCA 2012). A trial court may enter a summary judgment only when the record shows that no genuine issues of material fact remain and that the movant is entitled to judgment as a matter of law. Makryllos, 103 So.3d at 1033 (citations omitted). “If the record reflects the existence of any genuine issue of material *93fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979) (citing Mejiah v. Rodriguez, 342 So.2d 1066 (Fla. 3d DCA 1977)). The burden on these points rested with the City as the movant. See Fla. R. Civ. P. 1.510; Pinchot v. First Fla. Banks, Inc., 666 So.2d 201, 201-02 (Fla. 2d DCA 1995) (citing Snyder).

The City urges us to adopt the burden-shifting analysis employed by federal courts typically in employment discrimination cases. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (applying burden-shifting analysis in employment discrimination case involving disparate treatment). We decline the invitation. The Florida standard for summary judgment is well entrenched:

The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and that the court must draw every possible inference in favor of the party against whom a summary judgment is sought. A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.
If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.

Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (internal citations omitted); see also Bruno v. Destiny Transp., Inc., 921 So.2d 836, 839-40 (Fla. 2d DCA 2006) (citing Moore).

Mr. Competelli claims that the City retaliated against him because, despite his original support for consolidating City fire services with those of another government entity, he had a change of heart and disclosed his safety and other concerns about such consolidation to City officials. If true, such retaliation may run afoul of section 112.3187:

(4) ACTIONS PROHIBITED.—
(a) An agency or independent contractor shall not dismiss, discipline, or take any other adverse personnel action against an employee for disclosing information pursuant to the provisions of this section.
(b) An agency or independent contractor shall not take any adverse action that affects the right or interests of a person in retaliation for the person’s disclosure of information under this section.
(5) NATURE OF INFORMATION DISCLOSED. — ...
(a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public’s health, safety, or welfare.
(b) Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.

The public whistleblower statute is remedial, and courts should construe it broadly. See Irven v. Dep’t of Health & Rehabilitative Servs., 790 So.2d 403, 405-06 (Fla.2001); Dahl v. Eckerd Family Youth Alts., Inc., 843 So.2d 956, 958-59 (Fla. 2d DCA 2003) (citing Martin Cnty. v. Edenfield, *94609 So.2d 27, 29 (Fla.1992); Hutchison v. Prudential Ins. Co. of Am., Inc., 645 So.2d 1047, 1049 (Fla. 3d DCA 1994)).

To set forth a prima facie claim of retaliatory discharge, Mr. Competelli had to show that he made a disclosure protected by the statute and that he was discharged. See § 112.3187(2), (4), (5).1 The legislature instructs us that the statute is to prevent agencies and independent contractors from taking retaliatory action against an employee who reports danger to the public’s health, safety, or welfare or who alleges improper use of governmental office, gross waste of funds, or other abuse or gross neglect of duty. See § 112.3187(2). Mr. Competelli urges us to see the causal connection between his termination and his criticism of the City’s proposed course of action; the City claims that it fired him for not following directions. See § 112.3187(10) (“It shall be an affirmative defense to any action brought pursuant to this section that the adverse action was predicated upon grounds other than, and would have been taken absent, the employee’s or person’s exercise of rights protected by this section.”).

The trial court concluded that Mr. Com-petelli’s discharge was “predicated on grounds other than, and would have been taken absent[,] the fact that Mr. Competel-li raised alleged concerns ... which allegedly constituted a violation or suspected violation of law, gross mismanagement, or malfeasance.” Thus, the trial court concluded that the City did not violate the whistleblower act. On our record, however, that result is not preordained.

In May 2009, the City’s Mayor instructed Mr. Competelli to review fire service options, including continued operation by the City, joining another fire rescue district, or contracting with Largo Fire Rescue. In response to the Mayor’s directive, Mr. Competelli compiled a report concluding that merger with the Largo Fire Department would best serve the City’s citizens.

The contemplated merger would require citizen approval through referendum. Various City commissioners sought further information about the financial impact of the merger and alternatives if a referendum failed. Despite his earlier position, in early August 2009, Mr. Competelli emailed the Mayor expressing safety and other concerns with a speedy merger. He recommended delaying a merger for a year in order to address these concerns. Obviously disappointed with the change of heart, the Mayor immediately suspended Mr. Competelli and scheduled a City Commission meeting for the next day. The Mayor took the position that Mr. Competelli would not follow his direction to move forward with consolidation. At the meeting, two commissioners agreed with the Mayor, resulting in Mr. Competelli’s termination. It is not lost upon us that the Mayor’s ire followed quickly on the heels of Mr. Competelli’s plea for moving forward with caution. Whatever other factual issues may remain unresolved, we cannot ignore the fact that the parties offer *95differing versions as to the motivation for the termination.

Mr. Competelli made a prima facie showing of a violation of the whistleblower act. Notwithstanding the City’s affirmative defense that it fired Mr. Competelli for failing to follow direction, we cannot say that the facts were so crystallized as to foreclose Mr. Competelli from moving forward to trial. Genuine issues of material fact remain as to the cause of the termination. Accordingly, we must reverse the final summary judgment.2

Reversed and remanded for further proceedings.

ALTENBERND and MORRIS, JJ., Concur.


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  • Norman v. Dci Biologicals Dunedin, LLC, 301 So. 3d 425 (Fla. 2d DCA 2020)
  • Greene v. Twistee Treat U S a, 302 So. 3d 481 (Fla. 2d DCA 2020)
    …cord reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Competelli v. City of Belleair Bluffs, 113 So. 3d 92, 92–93 (Fla. 2d DCA 2013) (quoting Snyder v. Cheezem Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979)). If there are no issues of material fact, the record must further establish that the movant is entitled to judgment as a matter of law. Abe…
  • Pratus v. Marzucco's Constr. & Coatings, Inc., 310 So. 3d 146 (Fla. 2d DCA 2021)
    …n favor of the nonmoving party, and if the record reflects the possibility of any issue of fact or "raises even the slightest doubt that an issue might exist, summary judgment is improper." Id. at 483 (quoting Competelli v. City of Belleair Bluffs, 113 So. 3d 92, 92-93 (Fla. 2d DCA 2013)). "A party seeking summary judgment in a negligence action has a more onerous burden than that borne in other types of cases." Watts v. Goetz, No. 2D19-1002, 2020 WL 6153418, at *3 (Fla. 2d DCA Oct. 21, 2020) (quoting Pit…

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