AISY ALEU, PHARM. D. v. NOVA SOUTHEASTERN UNIVERSITY, INC.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AISY ALEU, PHARM. D.,
Appellant,
v.
NOVA SOUTHEASTERN UNIVERSITY, INC.,
a Florida not-for-profit-corporation,
Appellee.
No. 4D22-697
[February 15, 2023]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Sandra Perlman, Judge; L.T. Case No. CACE21-
005185(04).
William R. Amlong, Karen Coolman Amlong, and Jennifer Daley of The
Amlong Firm, Fort Lauderdale, for appellant.
Richard A. Beauchamp and Benjamin P. Bean of Panza, Maurer &
Maynard, P.A., Fort Lauderdale, for appellee.
GERBER, J.
Aisy Aleu (“the employee”) appeals from the circuit court’s final
summary judgment in favor of Nova Southeastern University (“the
employer”) on the employee’s statutory civil rights action against the
employer. The employee argues the circuit court erred in finding the
employee’s action was time-barred under the one-year limitation period
provided in section 760.11(5), Florida Statutes (2015) (“A civil action
brought under this section shall be commenced no later than 1 year after
the date of determination of reasonable cause by the commission.”).
According to the employee, under the circumstances of this case, the four-
year limitation period in section 95.11(3)(f), Florida Statutes (2015), for
“[a]n action founded on a statutory liability” should have applied to her
action.
We disagree with the employee’s argument. Therefore, we affirm the
circuit court’s summary judgment.
We will present this case’s procedural history before turning to our
review. Our review will include our reconciliation of: (1) Woodham v. Blue
Cross and Blue Shield of Florida, Inc., 829 So. 2d 891 (Fla. 2002), upon
which the employer primarily relies; and (2) Joshua v. City of Gainesville,
768 So. 2d 432 (Fla. 1984), upon which the employee primarily relies.
Procedural History
On February 16, 2016, the employee filed with the Equal Employment
Opportunity Commission (“EEOC”) a complaint describing acts by which
her employer allegedly had discriminated against her based on sex and
family status, and had retaliated against her after she had complained of
the employer’s discrimination.
By filing her discrimination complaint with the EEOC, the employee
effectively had filed her discrimination complaint with the Florida
Commission on Human Relations (“FCHR”), pursuant to section 760.11(1),
Florida Statutes (2015):
Any person aggrieved by a violation of ss. 760.01-760.10
may file a complaint with the [FCHR] …. In lieu of filing the
complaint with the [FCHR], a complaint under this section
may be filed with the federal Equal Employment Opportunity
Commission …. The date the complaint is filed with the
[FCHR] for purposes of this section is the earliest date of filing
with the Equal Employment Opportunity Commission ….
§ 760.11(1), Fla. Stat. (2015); cf. Wells Fargo Guard Servs. Inc. of Fla. v.
Lehman, 799 So. 2d 252, 254 (Fla. 3d DCA 2001) (“[W]hen a charge is
dually filed with the EEOC and the FCHR, the date of filing with the EEOC
shall also be considered the date of filing with the FCHR.”).
On December 28, 2017, the employee filed with the EEOC a
supplemental discrimination complaint describing other acts by which her
employer allegedly had discriminated against her based on sex, age,
national origin, and family status, and had retaliated against her after she
had complained of the employer’s discrimination.
On June 21, 2018—more than two years after the employee had filed
her original discrimination complaint, but within 180 days of the employee
having filed her supplemental discrimination complaint—the EEOC issued
a “Dismissal and Notice of Rights,” informally known as a “right-to-sue
notice.” The right-to-sue notice informed the employee:
2
On March 11, 2021—nearly three years after the EEOC had issued its
right-to-sue notice to the employee—the employee filed a statutory civil
rights action against the employer for sex and pregnancy discrimination
and retaliation in violation of sections 760.10(1)(a)-(b) and (7), Florida
Statutes (2015), which provide:
(1) It is an unlawful employment practice for an employer:
(a) To discharge or to fail or refuse to hire any individual, or
otherwise to discriminate against any individual with respect
to compensation, terms, conditions, or privileges of
employment, because of such individual’s … sex [or]
pregnancy ….
(b) To limit, segregate, or classify employees or applicants for
employment in any way which would deprive or tend to
deprive any individual of employment opportunities, or
adversely affect any individual’s status as an employee,
because of such individual’s … sex [or] pregnancy ….
(7) It is an unlawful employment practice for an employer …
to discriminate against any person because that person has
opposed any practice which is an unlawful employment
practice under this section, or because that person has made
a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this section.
3
§ 760.10(1)(a)-(b), (7), Fla. Stat. (2015).
The employer filed a summary judgment motion arguing the employee’s
statutory civil rights action was time-barred under section 760.11(5),
Florida Statutes (2015), because the employee had failed to commence the
action no later than one year after the date when the EEOC issued the
right-to-sue notice. See § 760.11(5), Fla. Stat. (2015) (“A civil action
brought under this section shall be commenced no later than 1 year after
the date of determination of reasonable cause by the commission.”).
The employee responded that, under the circumstances of this case,
the four-year limitation period in section 95.11(3)(f), Florida Statutes
(2015), for “[a]n action founded on a statutory liability” should have
applied to her action.
The circuit court entered an order granting the employer’s summary
judgment motion. The circuit court later entered a final judgment in the
employer’s favor. This appeal followed.
Our Review
Our review is de novo. See Volusia County v. Aberdeen at Ormond
Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (standard of review of a
summary judgment is de novo); Hardee County v. FINR II, Inc., 221 So. 3d
1162, 1165 (Fla. 2017) (standard of review for statutory interpretation is
de novo).
Section 760.11, Florida Statutes (2015), provides various time limits by
which an employee may pursue their civil rights claim after having filed
the prerequisite administrative complaint. Which time limit applies
depends upon the type of response which the employee has received from
the administrative commission with whom the employee has filed their
administrative complaint. Section 760.11 describes those responses and
time limits as shown in bold here:
(3) … [T]he commission shall investigate the allegations in the
complaint. Within 180 days of the filing of the complaint, the
commission shall determine if there is reasonable cause to
believe that discriminatory practice has occurred in violation
of the Florida Civil Rights Act of 1992. When the commission
determines whether or not there is reasonable cause, the
commission by registered mail shall promptly notify the
aggrieved person and the respondent of the reasonable cause
4
determination, the date of such determination, and the
options available under this section.
(4) In the event that the commission determines that
there is reasonable cause to believe that a discriminatory
practice has occurred in violation of the Florida Civil Rights
Act of 1992, the aggrieved person may either:
(a) Bring a civil action against the person named in the
complaint in any court of competent jurisdiction; or
(b) Request an administrative hearing under ss. 120.569
and 120.57.
….
(5) … A civil action brought under this section shall be
commenced no later than 1 year after the date of
determination of reasonable cause by the commission. …
….
(7) If the commission determines that there is not
reasonable cause to believe that a violation of the Florida Civil
Rights Act of 1992 has occurred, the commission shall
dismiss the complaint. The aggrieved person may request
an administrative hearing under ss. 120.569 and 120.57,
but any such request must be made within 35 days of the
date of determination of reasonable cause …
(8) In the event that the commission fails to conciliate or
determine whether there is reasonable cause on any
complaint under this section within 180 days of the filing of
the complaint, an aggrieved person may proceed under
subsection (4), as if the commission determined that
there was reasonable cause.
§ 760.11(3), (4)(a)-(b), (5), (7), (8), Fla. Stat. (2015) (emphasis added).
Although the foregoing sections refer to a determination by “the
commission”—defined as the “Florida Commission on Human Relations”
in section 760.02(2), Florida Statutes (2015)—we understand “the
commission” in this context may include the EEOC for two reasons.
5
First, as we stated above, section 760.11(1) provides, in pertinent part:
“In lieu of filing the complaint with the commission, a complaint under
this section may be filed with the federal Equal Employment Opportunity
Commission.” Reading these statutes together, if the complaint may be
filed with the EEOC under section 760.11(1), then logically the
determination of that complaint may be made by the EEOC under sections
760.11(3), (4)(a)-(b), (5), (7), and (8). See Forsythe v. Longboat Key Beach
Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992) (“Where possible,
courts must give full effect to all statutory provisions and construe related
statutory provisions in harmony with one another.”).
Second, as we will describe in more detail below, in Woodham v. Blue
Cross and Blue Shield of Florida, Inc., 829 So. 2d 891 (Fla. 2002), the
Florida Supreme Court applied sections 760.11(3), (4)(a)-(b), (5), (7), and
(8) to the EEOC’s response to a discrimination complaint. At no point did
the supreme court hold that that the EEOC’s response could not be
applied to those statutes. Thus, as the supreme court did in Woodham,
we shall similarly apply sections 760.11(3), (4)(a)-(b), (5), (7), and (8) to the
EEOC’s response in this case. 1
Here, the employer’s motion argued, because the EEOC’s right-to-sue
notice expressly informed the employee that the EEOC was “unable to
conclude that the information obtained establishes violations of the
statutes,” “does not certify that the [employer] is in compliance with the
statutes,” and made “[n]o finding … as to any other issues that might be
construed as having been raised by this charge,” the scenario provided in
section 760.11(8) applied. And proceeding under section 760.11(4) and,
in turn, section 760.11(5), the employee had to commence her civil action
no later than one year after the date when the EEOC had issued the right-
to-sue notice.
We agree with the employer’s argument. The employer’s argument
follows the Florida Supreme Court’s holding in Woodham.
1 In a footnote, the supreme court in Woodham observed that the employee had
“raise[d] the issue that without the FCHR’s adoption or ratification of the EEOC
determination, the EEOC determination [was] not binding on her.” 829 So. 2d at893 n.1. However, the supreme court declined to address that issue because the
issue was “not the basis for our jurisdiction and … beyond the issues necessary
for the resolution of the conflict issue and certified question [presented].” Id.6
1. Woodham v. Blue Cross
In Woodham, an employee filed with the EEOC a discrimination
complaint against her employer. Id. at 892-93. After receiving no response
from the EEOC for over 300 days, the employee requested a right-to-sue
notice from the EEOC. Id. at 893. The EEOC provided the employee with
the same right-to-sue notice which the instant employee received in this
case, stating in pertinent part:
The EEOC issues the following determination: Based upon
its investigation, the EEOC is unable to conclude that the
information obtained establishes violations of the statutes.
This does not certify that the Respondent is in compliance
with the statutes. No finding is made as to any other issues
that might be construed as having been raised by this charge.
Id. The employee then filed a statutory civil rights action in circuit court.
Id.The employer filed a summary judgment motion. Id. In the motion, the
employer argued the right-to-sue notice’s above-quoted statement
constituted the EEOC’s determination that no reasonable cause existed to
believe the employer had committed a statutory civil rights violation. Id.
at 896. Thus, the employer argued, the employee’s receipt of the right-to-
sue notice foreclosed her ability to sue in court, and her only remedy was
to request an administrative hearing within 35 days after receipt of the
notice, as required under section 760.11(7), which she failed to do. Id.The circuit court granted the employer’s motion. Id. at 893. The Third
District affirmed, but certified the following question of great public
importance:
Whether a claimant must pursue the administrative
remedies provided in section 760.11(7), Florida Statutes,
when the claimant has filed a complaint under the Florida
Civil Rights Act … and has received an EEOC “Dismissal and
Notice of Rights” stating: “Based upon its investigation, the
EEOC is unable to conclude that the information obtained
establishes violations of the statutes. This does not certify
that the respondent is in compliance with the statutes. No
finding is made as to any other issues that might be construed
as having been raised by this charge.”?
Id. at 892 (certified question converted to lower case).
7
The supreme court “answer[ed] the certified question in the negative.”
Id. The supreme court later stated its reasoning:
We construe the language of section 760.11(7) to require a
specific determination “that there is not reasonable cause” to
believe a violation occurred. § 760.11(7). The [EEOC’s]
determination in this case was only that it was “unable to
conclude that the information obtained establishes violations
of the statutes.” We cannot and will not equate “unable to
conclude” with a determination that “there is not reasonable
cause.” …
….
[T]he EEOC dismissal and notice of rights form in this case
does not satisfy the requirements of a “no cause”
determination under section 760.11(3) and (7). Without
having received a proper “no cause” determination, [the
employee] was not required to make the subsection (7) request
for an administrative hearing within 35 days. Rather, [the
employee] was permitted to proceed under subsection (4)
“as if the [commission] made a ‘reasonable cause’
determination,” because the [commission] failed to make
a determination either way regarding whether reasonable
cause existed. See § 760.11(8).
Id. at 897 (bold and underline emphasis added).
Woodham controls the instant case. As in Woodham, the EEOC’s
determination in this case was only that it was “unable to conclude that
the information obtained establishes violations of the statutes.” Pursuant
to Woodham, we cannot equate “unable to conclude” with a determination
that “there is not reasonable cause.” Thus, the scenario provided in
section 760.11(8) applies to this case. See § 760.11(8), Fla. Stat. (2015)
(“In the event that the commission fails to conciliate or determine
whether there is reasonable cause on any complaint under this section
within 180 days of the filing of the complaint, an aggrieved person may
proceed under subsection (4), as if the commission determined that
there was reasonable cause.”) (emphasis added). And proceeding under
section 760.11(4) and, in turn, section 760.11(5), the employee had to
commence her civil action no later than one year after the date when the
EEOC had issued the right-to-sue notice.
8
2. Joshua v. City of Gainesville
The employee primarily relies upon the Florida Supreme Court’s earlier
opinion in Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000).
However, Joshua is distinguishable from Woodham and the instant case.
In Joshua, the employee filed with the FCHR a discrimination complaint
against her employer in January 1995. Id. at 433. In July 1995, the
employee filed a supplemental discrimination complaint against her
employer. Id. at 433-34. The commission never responded to the
employee’s complaints. Id. at 434.
In January 1998, the employee filed a statutory civil rights action in
circuit court against the employer based on the allegations raised in the
administrative complaints. Id.The employer filed a motion to dismiss, alleging the employee’s action
was time-barred under section 760.11(5). Id. The employer maintained
the employee should have filed her action by January 1997, which the
employer calculated by adding section 760.11(3)’s 180-day investigation
period to section 760.11(5)’s one-year limitation period. Id.The employee responded that because the commission never responded
to her complaints, section 760.11(5)’s one-year limitation period never
commenced. Id. Instead, the employee contended, section 95.11(3)(f)’s
four-year limitation period for statutory causes of action governed, and she
had filed her statutory civil rights action within that period. Id.The circuit court granted the employer’s motion to dismiss, finding that
the last day of section 760.11(3)’s 180-day period also marked the
beginning of section 760.11(5)’s one-year limitation period, whether or not
the employee receives a reasonable cause determination. Id. The First
District affirmed the dismissal, but certified the following question of great
public importance:
Does the section 760.11(5), Florida Statutes (1995), one-
year statute of limitations for filing civil actions “after the date
of determination of reasonable cause by the commission”
apply also upon the commission’s failure to make any
determination as to “reasonable cause” within 180 days as
contemplated in section 760.11(8), Florida Statutes (1995), so
that an action filed beyond the one-year period is time barred?
Id. at 433 (certified question converted to lower case).
9
The supreme court “answer[ed] this certified question in the negative,”
and held “the general four-year statute of limitations for statutory
violations, section 95.11(3)(f), Florida Statutes (1995), applies to actions
filed pursuant to chapter 760, Florida Statutes, if the [commission] does
not make a reasonable cause determination on a complaint within the 180
days contemplated by section 760.11(8), Florida Statutes (1995).” Id. The
supreme court reasoned, in pertinent part:
[D]espite the language of section 760.11(8), which allows a
complainant to proceed to circuit court without a reasonable
cause determination, the entire statutory scheme seems to
favor exhaustion of administrative remedies prior to court
action. It would appear contrary to that scheme to require a
person to proceed to court without any indication from the
Commission of the progress, or lack thereof, in investigating
the complaint filed with that body.
….
The [Florida Civil Rights] Act demonstrates the
Legislature’s intent that one claiming a deprivation under its
terms would have the Commission make a preliminary
reasonable cause determination, notify the claimant of its
findings, and inform the claimant of the possible next steps
that can be taken. See § 760.11(3), (4). Prohibiting claimants
from seeking redress for statutory violations of this interest
prior to allowing them sufficient procedural due process—
both notice and the opportunity to be heard—constitutes a
deprivation of constitutionally protected rights.
….
[The employee’s] constitutionally protected rights should
not be denied because the Commission failed to give her
adequate notice. A claimant should not be penalized for
attempting to allow a government agency to do its job. Since
the legislative intent is to uproot discrimination, we now seek
to preserve that intent by finding [the employee’s] civil action
timely filed under section 95.11(3)(f).
Id. at 437, 439.
10
Joshua’s facts and reasoning are distinguishable from the instant case
and, therefore, Joshua is inapplicable to the instant case. Unlike the
employee in Joshua who never received “any indication from the
Commission of the progress, or lack thereof, in investigating the
complaint,” the employee in the instant case received a right-to-sue notice
from the EEOC. The right-to-sue notice, in plain language, expressly
informed the employee that the EEOC was “unable to conclude that the
information obtained establishes violations of the statutes,” “does not
certify that the [employer] is in compliance with the statutes,” and made
“[n]o finding … as to any other issues that might be construed as having
been raised by this charge.”
As the supreme court held in Woodham, that plain language falls
squarely under the scenario provided in section 760.11(8). See §
760.11(8), Fla. Stat. (2015) (“In the event that the commission fails to
conciliate or determine whether there is reasonable cause on any
complaint under this section within 180 days of the filing of the complaint,
an aggrieved person may proceed under subsection (4), as if the
commission determined that there was reasonable cause.”) (emphasis
added). Thus, as the employer argues:
[The employee] started her own clock to proceed under
[s]ection 760.11(4), as if the [EEOC] had determined that there
was reasonable cause. Once she actively started that clock,
[the employee] was obligated to commence her suit within one
(1) year. [The employee] failed to do so and, consequently, the
[circuit court] correctly … dismissed [her statutory civil rights
action] with prejudice.
Interestingly, the supreme court, in Woodham, noted its holding in
Joshua. 829 So. 2d at 898. And yet the supreme court still found on
Woodham’s facts that the EEOC’s right-to-sue notice permitted the
employee, pursuant to section 760.11(8), to proceed under section
760.11(4) “as if the [commission] made a ‘reasonable cause’
determination.” Id. at 897.
Conclusion
Based on the foregoing, we affirm the final summary judgment in the
employer’s favor on the employee’s statutory civil rights action. We certify
conflict with Hines v. Whataburger Restaurants, LLC, 301 So. 3d 473 (Fla.
1st DCA 2020). In Hines, the First District held that, pursuant to Joshua,
section 95.11(3)(f)’s four-year limitation period, rather than section
760.11(5)’s one-year limitation period, applied to an employee’s statutory
11
civil rights action, even though the employee had received a notice of
dismissal stating that the employee was provided a right-to-sue notice. Id.
at 475-76. However, our sister court’s review, for whatever reason, did not
mention Woodham, which we conclude is controlling on these facts.
Affirmed. 2
KLINGENSMITH, C.J., and WARNER, J., concur.
* * *
2 In the instant case, the parties’ filings before the circuit court appeared to
suggest the Legislature’s 2020 amendment to section 760.11 applied to the
court’s review. Under the 2020 amendment, section 760.11(8) now provides:
If the commission fails to conciliate or determine whether there is
reasonable cause on any complaint under this section within 180
days after the filing of the complaint:
(a) An aggrieved person may proceed under subsection (4) as if the
commission determined that there was reasonable cause.
(b) The commission shall promptly notify the aggrieved person of
the failure to conciliate or determine whether there is reasonable
cause. The notice shall provide the options available to the
aggrieved person under subsection (4) and inform the aggrieved
person that he or she must file a civil action within 1 year after the
date the commission certifies that the notice was mailed.
(c) A civil action brought by an aggrieved person under this section
must be commenced within 1 year after the date the commission
certifies that the notice was mailed pursuant to paragraph (b).
§ 760.11(8), Fla. Stat. (2020).
However, all of the actions preceding the employee’s statutory civil rights
action in the instant case occurred before the 2020 amendment, commencing
with the employee’s February 2016 administrative complaint, through and
including the EEOC’s June 2018 right-to-sue notice. Therefore, we have not
applied the 2020 amendment to our review in this case.
The employee’s initial brief nevertheless argues that section 760.11 and its
2020 amendment are remedial, and therefore should be applied retroactively.
However, the employee did not raise that argument to the circuit court. We note,
though, that even if we had applied the 2020 amendment to our review in this
case, our conclusion would have remained the same, based on Woodham’s
controlling application to this case’s facts.
12
Not final until disposition of timely filed motion for rehearing.
13