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.
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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 
3

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 
4

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 
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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.
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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 grievancearbitration 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 
7

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.