                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA
SANDRA SHERIDAN,
                                    NOT FINAL UNTIL TIME EXPIRES TO
      Appellant,                    FILE MOTION FOR REHEARING AND
                                    DISPOSITION THEREOF IF FILED
v.
                                    CASE NO. 1D15-91
STATE OF FLORIDA,
DEPARTMENT OF HEALTH,

     Appellee.
_____________________________/

Opinion filed January 6, 2016.

An appeal from the Circuit Court for Leon County.
James Roy Bean, III, Senior Judge

Marie A. Mattox, James P. Garrity, and Lisa C. Lambert of Marie A. Mattox, P.A.,
Tallahassee, for Appellant.

Richard E. Johnson of the Law Office of Richard E. Johnson, Tallahassee, and
Michelle Erin Nadeau of Kwall, Showers, Barack & Chilson, P.A., Clearwater, for
Amicus Curiae National Employment Lawyers Association, Florida Chapter, for
Appellant.

Linda Bond Edwards and Brian L. Hayden of Rumberger, Kirk, & Caldwell,
Tallahassee, for Appellee.



RAY, J.

      In this employment discrimination action, Sandra Sheridan appeals a final

summary judgment in favor of the Florida Department of Health for her failure to

satisfy the administrative prerequisites of the Florida Civil Rights Act of 1992
before filing her lawsuit against the Department. We agree with the Department

that Ms. Sheridan’s lawsuit was premature because it was filed before the Florida

Commission on Human Relations was afforded the 180 days provided by statute to

investigate the underlying discrimination charge and determine whether there is

reasonable cause to believe that a discriminatory practice occurred. However, final

summary judgment for the Department was not justified, because the passage of

time cured the problem of the prematurely filed lawsuit. Accordingly, we reverse

final summary judgment for the Department and remand for the trial court to

reinstate the action.

                        I. The Florida Civil Rights Act of 1992

      The Florida Civil Rights Act of 1992 (“FCRA”) is remedial legislation

designed “to secure for all individuals within the state freedom from discrimination

because of race, color, religion, sex, national origin, age, handicap, or marital

status.” § 760.01(2), Fla. Stat. (2012). By its express terms, the FCRA must be

liberally construed to further its general purposes and the special purposes of the

particular provision involved. § 760.01(3). As a corollary, the FCRA’s

administrative preconditions on an individual’s right of access to courts to seek

redress for unlawful discrimination must be narrowly construed in a manner that

favors access. Woodham v. Blue Cross and Blue Shield of Fla., Inc., 829 So. 2d

891, 897 (Fla. 2002).

                                          2
      Prior to filing a civil action alleging discrimination in violation of the FCRA,

the individual seeking relief must file a complaint with the Florida Commission on

Human Relations (“Commission”) within 365 days of the alleged violation and

exhaust the administrative remedies provided by the FCRA. § 760.11(1), (4);

Woodham, 829 So. 2d at 894. Under a worksharing arrangement between the

Commission and the U.S. Equal Employment Opportunity Commission (“EEOC”),

each agency has authorized the other to accept discrimination charges or

complaints on the other’s behalf. In this context, the date the complaint is filed

with the Commission is the earliest date of filing with the EEOC or the

Commission. § 760.11(1).

      Once this filing occurs, the Commission has 180 days to investigate the

allegations in the complaint and determine if reasonable cause exists to believe that

a discriminatory practice has occurred. § 760.11(3). The FCRA contemplates three

possible scenarios at that point:

      (1)    If the Commission determines that “reasonable cause” exists, the

             claimant has two options: (1) bring a civil action in a court of

             competent jurisdiction or (2) request an administrative hearing under

             sections 120.569 and 120.57, Florida Statutes. § 760.11(4).

      (2)    If the Commission determines that “no reasonable cause” exists, it

             must dismiss the complaint. § 760.11(7). At that point, the claimant

                                          3
            may request an administrative hearing before an administrative law

            judge. Id. If the administrative process yields a final order that

            concludes that a violation of the FCRA did occur, the claimant may

            either bring a civil action as if there had been a reasonable cause

            determination or accept the relief offered by the final order. Id.

      (3)   If the Commission fails to conciliate or determine whether there is

            reasonable cause within 180 days of the date the complaint is filed,

            the claimant may proceed with the remedies provided as if the

            Commission determined that there was reasonable cause (i.e., bring a

            civil action or request administrative review). § 760.11(8).

A civil action brought under the FCRA must be filed “no later than 1 year after the

date of determination of reasonable cause by the commission.” § 760.11(5). The

“commencement of such action” divests the Commission of jurisdiction over the

complaint. Id.

                              II. Ms. Sheridan’s Case

      After being terminated from employment with the Department, Ms. Sheridan

filed a charge of discrimination with the EEOC, alleging that she had been the

victim of racial discrimination at the hands of Department employees in violation

of “Chapter 760 of the Florida Civil Rights Act and/or Title VII of the Federal

Civil Rights Act.” Ms. Sheridan designated on the EEOC charge form that she

                                         4
intended the charge to be dual-filed with the Commission. A few weeks later, the

EEOC mailed Ms. Sheridan a “Dismissal and Notice of Rights,” advising that it

was closing its file because the “charge was not timely filed with the EEOC.” With

respect to the right to sue, the form stated:

      You may file a lawsuit against the respondent(s) under federal law
      based on this charge in federal or state court. Your lawsuit must be
      filed WITHIN 90 DAYS of your receipt of this notice; or your right
      to sue based on this charge will be lost. (The time limit for filing suit
      based on a claim under state law may be different.)

      Within ninety days of receipt of the EEOC’s right-to-sue notice, and forty-

four days after filing her charge of discrimination with the EEOC, Ms. Sheridan

filed a complaint in state court alleging one count of race discrimination under the

FCRA. Limited discovery ensued. The Department thereafter filed a motion for

summary judgment, contending that Ms. Sheridan failed to meet the administrative

prerequisites necessary to bring suit under the FCRA. The Department contended

that Ms. Sheridan’s complaint was premature because it was filed before the

Commission made a reasonable cause determination regarding the validity of the

charge and before the expiration of the Commission’s 180-day statutory

investigatory period. This premature filing, the Department argued, divested the

Commission of jurisdiction to act on the charge and prevented the accrual of Ms.

Sheridan’s claim under the FCRA. Moreover, the Department asserted that the

defect of the prematurely filed lawsuit could not be cured by the filing of a new

                                           5
discrimination charge with the Commission because more than 365 days had

passed since the alleged discriminatory act.

      The court granted the motion for final summary judgment, adopting the

arguments and reasoning of the Department. Ms. Sheridan moved for rehearing

before a successor trial judge. After hearing arguments of counsel and reviewing

the record, the court denied the motion for rehearing and entered final judgment in

favor of the Department.

      On appeal, Ms. Sheridan argues that the court erred in granting final

summary judgment for the Department because, as was argued below, she

complied with the administrative prerequisites of the FCRA by dual-filing her

charge of discrimination with the EEOC and the Commission, and by commencing

her civil action against the Department within the 90-day window set forth in the

EEOC’s right-to-sue notice. She contends that the two agencies speak as one under

their worksharing agreement and that the EEOC’s notice was the legal trigger

requiring her to file her lawsuit when she did, even though the requisite 180 days

under the FCRA had not passed. Alternatively, she argues that a prematurely filed

civil action does not divest the Commission of jurisdiction of the discrimination

charge, so the court should have held her case in abeyance pending the passage of

the 180-day period, or dismissed the case without prejudice. By granting summary




                                         6
judgment for the Department, Ms. Sheridan argues, the trial court violated the

FCRA’s mandate for liberal construction and denied her due process.

                                  III. Discussion

      The undisputed facts reveal that Ms. Sheridan timely filed a race

discrimination complaint under the FCRA by dual-filing the charge with the EEOC

and the Commission within one year after the alleged discriminatory act. The

Department does not contend otherwise. The parties disagree, however, on whether

Ms. Sheridan’s civil action based on that charge was prematurely filed against the

Department, and if so, whether the premature filing warranted final summary

judgment against Ms. Sheridan. We review the trial court’s order de novo “to

determine whether there are genuine issues of material fact and whether the trial

court properly applied the correct rule of law.” Glaze v. Worley, 157 So. 3d 552,

553-54 (Fla. 1st DCA 2015).

                                        A.

      The Department contends, and the trial court agreed, that Ms. Sheridan

prematurely filed her lawsuit against the Department by commencing the action

before the Commission made a cause determination on the discrimination charge

or had the opportunity to utilize the full 180-day investigatory period provided by

the FCRA. Conversely, Ms. Sheridan argues that her lawsuit was timely because

under the worksharing agreement between the Commission and the EEOC, the

                                        7
right-to-sue notice issued by the EEOC governed her claims against the

Department under state law as well as federal law. She submits that she was

presented with a Hobson’s Choice of either complying with the 90-day “right to

sue” deadline provided by the EEOC’s notice or waiting for the Commission’s

180-day investigatory period to run. Ms. Sheridan contends that the order granting

summary judgment violated her due process rights because the trial court’s

interpretation of the EEOC’s right-to-sue notice required her to take some other

undefined administrative action to preserve her state law claim.

       We find no merit to Ms. Sheridan’s arguments on this point. The EEOC’s

right-to-sue notice is clear that the 90-day window applies only to claims under

federal law brought in federal or state court. No such claim was made in this case.

The right-to-sue notice also put Ms. Sheridan on notice that “[t]he time limit for

filing suit based on a claim under state law may be different.” Nothing on the face

of the notice reasonably suggests that Ms. Sheridan had only 90 days from receipt

of the notice to bring her state law discrimination claim against the Department in

state court.

       The express language and import of the notice is consistent with the

provisions of the FCRA and applicable case law. The FCRA clearly delineates

when, and under what circumstances, a civil action may be filed for unlawful

discrimination after a charge is timely filed with the Commission. It is only after

                                         8
the Commission determines there is reasonable cause to believe that unlawful

discrimination occurred, or the charge remains unresolved for 180 days, that an

aggrieved party may seek redress in court. § 760.11(4), (8). On the other hand, if

the Commission determines, within the 180-day period, that there is no reasonable

cause, the claimant is limited to review before an administrative law judge under

Chapter 120, Florida Statutes, and cannot file a civil action unless that review is

successful. § 760.11(7). As this Court has previously stated, the framework of the

FCRA “permits those subjected to unlawful workplace discrimination to seek

redress, imposes a preliminary screening procedure to weed out unmeritorious

claims, and avoids having that screening process arbitrarily eliminate the right to

review by allowing those whose charges are not efficiently handled to proceed to

circuit court if no ruling has been rendered in 180 days.” McElrath v. Burley, 707

So. 2d 836, 840 (Fla. 1st DCA 1998) (upholding the constitutionality of the FCRA

against access-to-courts challenge). It is axiomatic that the carefully crafted

administrative regime of the FCRA is frustrated when a claimant acts contrary to

its express terms.

      Because Ms. Sheridan failed to satisfy the administrative preconditions of

the FCRA, she was not authorized by law to commence a civil action against the

Department in the absence of a reasonable cause determination from the

Commission. To hold otherwise would potentially allow a claimant “to

                                        9
successfully circumvent the possibility of a dismissal and being locked into the

sole remedy of an administrative hearing.” Ayers v. Wal-Mart Stores, Inc., 941 F.

Supp. 1163, 1167 (M.D. Fla. 1996).

      Despite the clear and unambiguous procedural requirements of the FCRA,

Ms. Sheridan appears to argue that under the worksharing agreement between the

Commission and the EEOC, the right-to-sue notice issued by the EEOC operated

as a reasonable cause determination by the Commission, opening the door for her

to file her lawsuit without having to wait the requisite 180 days. Ms. Sheridan does

not point to any provision in the worksharing agreement or the FCRA that dictates

that an EEOC determination on a federal claim binds the Commission for purposes

of determining a claimant’s right to proceed with a cause of action under the

FCRA. Even if that arrangement existed, it is not applicable because the EEOC’s

right-to-sue notice was issued in this case because Ms. Sheridan’s federal claim

was not timely filed with the EEOC. The EEOC did not make a cause

determination on Ms. Sheridan’s claim. Accordingly, the right-to-sue notice did

not abrogate the Commission’s statutory mandate to determine if there is

reasonable cause to believe that a discriminatory practice has occurred in violation

of the FCRA. See § 760.11(3). For the same reason, Ms. Sheridan could not rely

on the 90-day deadline announced in the EEOC’s right-to-sue notice to bypass the




                                        10
requirement that she wait 180 days before filing suit in the absence of a reasonable

cause determination from the Commission.

      The Florida Supreme Court’s decision in Woodham v. Blue Cross and Blue

Shield of Florida, Inc., 829 So. 2d 891, 897 (Fla. 2002), supports our conclusion.

In that case, the court held that an EEOC dismissal and right-to-sue notice based on

the EEOC’s determination that it was “unable to conclude” that there was a

violation of the FCRA did not amount to a finding by the Commission that “there

is not reasonable cause” to believe that a violation of the FCRA occurred.

Woodham, 829 So. 2d at 897. Had the EEOC’s determination constituted a “no

cause” determination by the FCHR, the claimant’s only recourse would have been

through administrative review, not the courts. Id. The Court reasoned, however,

that the plain language of section 760.11(7) requires a specific determination “that

there is not reasonable cause” to believe a violation occurred before foreclosing

an individual’s ability to sue in court. Id.

      In this case, as in Woodham, the EEOC did not pass on the validity of the

discrimination charge by making either a cause or a no-cause determination.

Therefore, the EEOC’s right-to-sue notice cannot operate to circumvent the

administrative prerequisites of the FCRA. Because Ms. Sheridan filed her lawsuit

against the Department before obtaining a reasonable cause determination from the




                                           11
Commission or waiting for 180 days to lapse, she failed to exhaust administrative

remedies.

                                         B.

      Ms. Sheridan argues alternatively that if her lawsuit was prematurely filed,

the court should have held the case in abeyance to allow the statutory 180-day

period to run or dismissed the complaint without prejudice. Adopting the

arguments of the Department below, the trial court concluded that once Ms.

Sheridan commenced her civil suit, it divested the Commission of jurisdiction over

Ms. Sheridan’s claim and prevented the accrual of a cause of action under the

FCRA. The Department relied primarily on the Third District Court of Appeal’s

reasoning in Sweeney v. Florida Power and Light Co., 725 So. 2d 380 (Fla. 3d

DCA 1998), to argue that the premature filing of Ms. Sheridan’s complaint was

fatal to her discrimination claim because it made it impossible for the Commission

to have the full 180 days to conciliate and investigate the charge.

      Ms. Sheridan relies on a more recent case from the Third District Court of

Appeal, Jackson v. Worldwide Flight Services, Inc., 960 So. 2d 3 (Fla. 3d DCA

2005), as well as a decision from the United States Court of Appeals for the

Eleventh Circuit, Webb v. Worldwide Flight Service, Inc., 407 F.3d 1192 (11th

Cir. 2005), both of which flatly reject the position that the premature filing of a




                                         12
civil action under the FCRA divests the Commission of jurisdiction. We agree with

Jackson and Webb on this narrow issue.

      The debate between the parties concerning the effect of a prematurely filed

complaint on the Commission’s jurisdiction centers on the interpretation of the

following provision of the FCRA:

      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 commencement of such action shall divest the
      commission of jurisdiction of the complaint, except that the
      commission may intervene in the civil action as a matter of right.

§ 760.11(5) (emphasis added). The Department contends that, under this provision,

the filing of any civil action under the FCRA divests the Commission of

jurisdiction of the discrimination charge, therefore requiring the plaintiff of a

prematurely filed FCRA lawsuit to restart the administrative process by filing a

new charge with the Commission and then waiting for a cause determination or the

expiration of 180 days before initiating a subsequent civil action. We disagree with

the Department’s interpretation of section 760.11(5).

      As Judge Joel F. Dubina wrote for a unanimous panel in Webb v.

Worldwide Flight Service, Inc.:

     The term, “commencement of such action,” in section 760.11(5), refers
     to a civil action that is timely filed “after the date of determination of
     reasonable cause by the commission.” Section 760.11(5) does not
     provide that a civil action that is filed prior to a reasonable cause
     determination, or the equivalent 180 day filing period set forth in
     section 760.11(8), divests the commission of jurisdiction.
                                         13
407 F.3d at 1194. Consistent with the reasoning of the Eleventh Circuit, we

conclude that the Commission is not divested of jurisdiction of a timely filed

discrimination charge when the claimant prematurely files a civil action based on

that charge. In the context of section 760.11(5), only a properly filed civil action

divests the Commission of jurisdiction. Id.; see also Jackson, 960 So. 2d at 5

(distinguishing its earlier decision in Sweeney).

                                          C.

      While a prematurely filed complaint does not, by itself, divest the

Commission of jurisdiction, it does not necessarily follow that the appropriate

disposition in all such cases is for the trial court to hold the lawsuit in abeyance

pending the conclusion of the administrative process. The appropriate disposition

of prematurely filed actions varies depending on the nature of the premature

element and the circumstances surrounding the premature act. Shuck v. Bank of

America, N.A., 862 So. 2d 20, 24 (Fla. 2d DCA 2003). When the premature

element of a claim is curable simply by the passage of time, courts generally

determine that the appropriate disposition is abatement of the action until the cause

matures. Id. (citing Thomas v. Suwannee County, 734 So. 2d 492, 497 (Fla. 1st

DCA 1999)). However, if the action is premature because one of the essential

elements of the claim is contingent upon the occurrence of an event that may or

may not occur, the appropriate disposition is dismissal. Id. at 25.
                                          14
      By design, the administrative exhaustion requirements of the FCRA involve

more than the mere passage of time. They entail a period of investigation and

efforts at conciliation by the Commission, and the potential that a claimant may be

foreclosed from immediate judicial review if the Commission finds “no cause” as

to the underlying discrimination charge. These factors weigh in favor of dismissal

as opposed to abatement. This Court has previously held that when a claimant

requests and obtains a dismissal of her discrimination charge from the Commission

prior to the expiration of the 180-day period, her prematurely filed complaint based

on that charge must be dismissed. Brewer v. Clerk of Circuit Court, Gadsden

County, 720 So. 2d 602, 604-05 (Fla. 1st DCA 1998) (citing Ayers, 941 F. Supp. at

1167).

      In the case before us, however, the undisputed facts favor a resolution that

would allow Ms. Sheridan’s lawsuit to proceed to a resolution on its merits. At the

summary judgment hearing, the record evidence established that the Commission

had not received the underlying charge of discrimination from the EEOC within

the Commission’s 180-day investigatory window and, as a result, the Commission

had not opened a case file or initiated any investigation of the discrimination

charge. In fact, well over a year after Ms. Sheridan filed her charge of

discrimination, the Commission’s Executive Director swore by affidavit that the

Commission had no record of the charge, nor any record of receiving the charge.

                                        15
By the time the Department moved for summary judgment, it was clear from the

record that Ms. Sheridan’s discrimination charge had fallen through the proverbial

cracks of the worksharing arrangement and that the Commission had not and

would not have taken any action on it.

      Under the unique facts of this case, the premature filing of Ms. Sheridan’s

lawsuit was indeed cured by the passage of time before the issue of the premature

filing went before the trial court. The premature filing did not deprive the

Commission of the opportunity to fulfill its statutorily mandated responsibilities

under the Act and, due to the timing of the proceedings in the trial court, did not

threaten to circumvent the possibility of a dismissal by the Commission which

would have foreclosed the option of filing an action in court. Since the passage of

time cured the defect of the prematurely filed complaint, the trial court erred in

granting final summary judgment for the Department. See Thomas, 734 So. 2d at

497 (holding that it was improper for the trial court to dismiss a claim for failure to

comply with a statutory condition precedent, since the passage of time had cured

the problem before the trial court acted on the motion to dismiss); Angrand v. Fox,

552 So. 2d 1113, 1115 (Fla. 3d DCA 1989) (deciding that where the only alleged

defect in the complaint was that it was filed too soon, dismissal would serve no

purpose other than to benefit the clerk by requiring the payment of additional fees).




                                          16
                                   IV. Conclusion

      Consistent with our charge to liberally construe the FCRA so as not to

unduly restrict a citizen’s constitutionally guaranteed access to the courts, we

reverse the order granting final summary judgment for the Department and remand

for the trial court to reinstate Ms. Sheridan’s complaint.

ROBERTS, C.J. and THOMAS, J. CONCUR.




                                          17
