Kim Cimino, Personal representative of the Estate of Michael Cimino, and Kim Cimino ex rel. Kim and Michael Cimino's Son v. American Airlines, Inc. ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KIM CIMINO, PERSONAL REPRESENTATIVE OF THE ESTATE OF
MICHAEL CIMINO, and KIM CIMINO ex rel. KIM AND MICHAEL
CIMINO’S SON,
Appellants,
v.
AMERICAN AIRLINES, INC., a Delaware limited liability company,
Appellee.
No. 4D14-2445
[January 20, 2016]
Appeal from the State of Florida, Florida Commission on Human
Relations; L.T. Case No. 2014-00810.
Chris Kleppin, Chelsea A. Lewis and Julie Dumbroff of Glasser &
Kleppin, P.A., Plantation, for appellants.
Thomas Mead Santoro and Jason D. Berkowitz of Jackson Lewis P.C.,
Miami, for appellee.
PER CURIAM.
Kim Cimino, as the personal representative of Michael Cimino’s estate
and in her capacity as the surviving spouse of Michael Cimino and natural
guardian of their son, appeals the Florida Commission on Human
Relations’ (“FCHR”) dismissal of the Charge of Discrimination (“Charge”)
she filed on behalf of her deceased husband. We reverse, as section
760.02, Florida Statutes (2014) provides that a “legal representative” is
entitled to file a complaint for discrimination.
According to the Charge, Mr. Cimino, a non-Hispanic, was
discriminated against by his Hispanic supervisor. The Charge detailed a
long series of alleged discrimination based on race, national origin, and
ethnicity by American Airlines (“Employer”), which eventually led to Mr.
Cimino’s termination. A few days after his termination, Mr. Cimino
committed suicide. Mrs. Cimino then filed the Charge with the United
States Equal Employment Opportunity Commission (“EEOC”) and the
FCHR, alleging that Mr. Cimino had been discriminated against by
Employer in violation of the Florida Civil Rights Act (“FCRA”). She argued
that Mr. Cimino’s wrongful termination, and the hostility and
discrimination that preceded it, led him to commit suicide. The FCHR
dismissed the Charge, stating it lacked the authority to investigate the
complaint since Mr. Cimino had not initiated the Charge before his death.
This appeal followed.
The purpose of the FCRA is “to secure for all individuals within the state
freedom from discrimination because of race, color, religion, sex,
pregnancy, national origin, age, handicap, or marital status.” § 760.01(2),
Fla. Stat. (2014). “Any person aggrieved by a violation of ss. 760.01–
760.10 may file a complaint with the commission within 365 days of the
alleged violation . . . .” § 760.11(1). An “‘[a]ggrieved person’ means any
person who files a complaint with the [FCHR].” § 760.02(10). Under the
statute, “‘[p]erson’ includes an individual, association, corporation, joint
apprenticeship committee, joint-stock company, labor union, legal
representative, mutual company, partnership, receiver, trust, trustee in
bankruptcy, or unincorporated organization; any other legal or commercial
entity; the state; or any governmental entity or agency.” § 760.02(6)
(emphasis added). Mrs. Cimino filed her FCRA charge in her capacity as
the personal representative of Michael Cimino’s estate.
The FCRA is modeled after Title VII of the Civil Rights Act of 1964, Jones
v. Bank of Am., 985 F. Supp. 2d 1320, 1327 (M.D. Fla. 2013), and it is
usually construed in conformity with that federal statute. Byrd v. BT
Foods, Inc., 26 So. 3d 600, 605 (Fla. 4th DCA 2009). As noted in the
dissenting opinion, federal courts have interpreted Title VII to prohibit the
personal representative of an employee’s estate from initiating a complaint
for discrimination. See, e.g., Wright ex rel. Wright v. United States, 914 F.
Supp. 2d 837 (S.D. Miss. 2012); Pueschel v. Veneman, 185 F. Supp. 2d
566, 571 (D. Md. 2002).1 However, the interpretation of Title VII by a
federal court is merely persuasive authority for Florida courts interpreting
the Florida statute. Patterson v. Consumer Debt Mgmt. & Educ., Inc., 975
So. 2d 1290, 1291 (Fla. 4th DCA 2008). Moreover, the cases cited in the
dissenting opinion and in Wright2 involved employment discrimination
1But see Collins v. Vill. of Woodridge, 96 F. Supp. 2d 744 (N.D. Ill. 2000) (personal
representative brought claim for sexual harassment under Title VII on behalf of
deceased). It is not clear from the facts of Collins whether the deceased initiated
the complaint prior to her suicide.
2 The cases cited in Wright for the proposition in both Wright and Pueschel that
“[w]hile a complaint initiated by a federal employee may survive her death, the
estate of that employee has no right to file a complaint,” Wright, 914 F. Supp. 2d
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claims raised by federal employees. As noted in Wright, Title VII provides
the exclusive remedy for federal employee discrimination claims. Wright,
914 F. Supp. 2d at 840. Part of the rationale for dismissing the federal
equal employment opportunity (“EEO”) complaint of the widower in Wright
was the inability of the decedent to first exhaust administrative remedies
with the EEO division of her agency. Id. at 840–41. There is no such
requirement for non-federal employees under either Title VII or the FCRA.
The starting point for statutory interpretation is, and always has been,
the actual language of the statute. Knowles v. Beverly Enters.-Fla., Inc.,
898 So. 2d 1, 5 (Fla. 2004); Conservation All. of St. Lucie Cnty. Inc. v. Fla.
Dep’t of Envtl. Prot., 144 So. 3d 622, 624 (Fla. 4th DCA 2014). “If the
language is clear and unambiguous, there is no need to resort to the rules
of statutory construction; ‘the statute must be given its plain and obvious
meaning.’” Conservation All., 144 So. 3d at 624 (quoting Samples v. Fla.
Birth-Related Neurological, 40 So. 3d 18, 21 (Fla. 5th DCA 2010)).
The pertinent statutory language clearly provides that any “person
aggrieved” may file a complaint and that a “person” includes an
“individual” as well as a “legal representative.” §§ 760.11(1), 760.02(6),
(10), Fla. Stat. The use of the word “includes” in a definitional section “is
usually taken to mean that it may include other things as well.” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
226 (2012). For example, the statute’s reference to a “legal representative,”
as well as a joint-stock company, labor union, trustee in bankruptcy, etc.,
as entities that may be aggrieved parties with standing to file an FCRA
claim provides support for conferring standing on a “personal
representative” (to the extent that “personal representative” is not
subsumed into the term “legal representative”).
Moreover, it cannot be said that Mrs. Cimino was not an “individual”
capable of being “aggrieved” by discrimination purportedly directed at her
husband prior to his death. It is not a leap in logic to find that a statute
that permits an aggrieved “trustee in bankruptcy” to file an FCRA charge
would similarly permit a widow acting in her capacity as personal and legal
representative of the deceased’s estate to do so. See Thompson v. N. Am.
Stainless, LP, 562 U.S. 170, 178 (2011) (holding that “the term ‘aggrieved’
in Title VII incorporates this [“zone of interests”] test, enabling suit by any
plaintiff with an interest ‘arguably [sought] to be protected by the statute’”
(citation omitted)).
at 842, all involved charges filed by the estates of deceased federal employees
that got no further in the federal employee administrative process than the EEOC.
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The FCRA “shall be construed according to the fair import of its terms
and shall be liberally construed to further the general purposes stated [in
chapter 760] and the special purposes of the particular provision
involved.” § 760.01(3), Fla. Stat.; see Joshua v. City of Gainesville, 768 So.
2d 432, 435 (Fla. 2000) (holding that the FCRA must be construed broadly
in favor of remediation). Giving the FCRA its plain and obvious meaning,
a personal representative can initiate an FCRA complaint alleging
discrimination on behalf of the deceased former employee. Therefore, we
reverse the dismissal of the present Charge of Discrimination.
Reversed and remanded.
WARNER and FORST, JJ., concur.
STEVENSON, J., dissents with opinion.
STEVENSON, J., dissenting.
I respectfully dissent. I would defer to the agency’s interpretation of the
statute, which is not clearly erroneous.
“Because the Commission is charged by the Legislature to investigate
complaints of discrimination under the Florida Civil Rights Act, its
interpretation of the Act is entitled to due deference from this court.”
Crane v. Lifemark Hosp. of Fla., Inc., 149 So. 3d 718, 722 (Fla. 3d DCA
2014) (citation omitted), review denied, 171 So. 3d 115 (Fla. 2015). This
court is not to “depart from the contemporaneous construction of a statute
by a state agency charged with its enforcement unless the construction is
‘clearly erroneous.’” Verizon Fla., Inc. v. Jacobs, 810 So. 2d 906, 908 (Fla.
2002).
I disagree with the majority’s conclusion that the FCHR’s interpretation
of the statute is clearly erroneous. First, the FCHR’s conclusion that a
personal representative of a decedent’s estate is not a “legal representative”
of the deceased for all purposes is consistent with the specific and limited
duties and powers of a personal representative as set forth in the Florida
Probate Code. See §§ 733.602, 733.608, Fla. Stat. (2014). Second, the
FCHR’s interpretation of the statute is in conformity with federal case law
interpreting similar language in Title VII. See, e.g., Wright ex rel. Wright v.
United States, 914 F. Supp. 2d 837 (S.D. Miss. 2012) (Title VII claim cannot
be brought by personal representative of employee’s estate where the
employee did not initiate the complaint for discrimination prior to death);
Pueschel v. Veneman, 185 F. Supp. 2d 566, 571 (D. Md. 2002) (recognizing
“that the survivor of a deceased federal employee has no standing to file
an EEO complaint on behalf of that former employee,” but personal
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representative of deceased employee can be substituted as plaintiff if
deceased employee initiated complaint prior to death).
Here, Mr. Cimino did not initiate a complaint prior to his death. The
question of whether a “personal representative” is a “legal representative”
of the decedent in the context of the FCRA is not as “plain and obvious” as
the majority suggests. As such, deferring to the FCHR’s interpretation of
the statute, consistent with that of the federal cases, Mrs. Cimino, as
personal representative of her deceased husband’s estate, could not
initiate the discrimination complaint. Accordingly, I would affirm the
FCHR’s dismissal of the Charge.
* * *
Not final until disposition of timely filed motion for rehearing.
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