         Case: 15-11796    Date Filed: 05/13/2016   Page: 1 of 10


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-11796
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 2:14-cv-14341-RLR



JASON DAVIS,

                                                         Plaintiff - Appellant,


                                 versus


BOB EVANS FARMS, LLC,
VIGEN AVANES,

                                                      Defendants - Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (May 13, 2016)
              Case: 15-11796    Date Filed: 05/13/2016    Page: 2 of 10




Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Jason Davis appeals following the district court’s order granting summary

judgment to defendant Bob Evans Farms, LLC (“Bob Evans”) on Davis’s

discrimination claim arising under the Florida Civil Rights Act (“FCRA”), Fla.

Stat. §§ 760.01 et seq., for failure to exhaust administrative remedies. After

careful consideration, we affirm.

                                          I.

      Davis filed a complaint against his former employer, Bob Evans, and his

former superior, Vigen Avanes, in Florida state court. His complaint contained

two claims: (1) a state-law claim against Bob Evans for disparate treatment on

account of sex and (2) a state-law claim against Avanes for defamation. Bob

Evans removed the action to federal court on the basis of diversity jurisdiction.

The notice of removal alleged that Davis was a resident of Florida, that Bob Evans

was an Ohio limited liability company, and that Bob Evans’s parent company was

a Delaware corporation with its principal place of business in Ohio. Neither the

complaint nor the notice of removal specified Avanes’s citizenship.

      Davis subsequently filed an amended complaint in the district court,

alleging claims against Bob Evans under both the FCRA and 42 U.S.C. § 1981 for



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disparate treatment on account of sex. The amended complaint also retained

Davis’s claim against Avanes for defamation.

      Bob Evans filed a motion to dismiss the amended complaint, arguing that the

district court should dismiss Davis’s FCRA claim because he had failed to exhaust

his administrative remedies and his § 1981 claim because § 1981 applies to claims

of discrimination on account of race, not sex. In response to that motion, Davis

conceded that he had failed to state a claim under § 1981 because it prohibits only

racial discrimination. He continued, however, to dispute Bob Evans’s contention

that he had failed to exhaust the administrative remedies for his FCRA claim.

      Following a hearing on the motion to dismiss, the district court noted that

Davis had withdrawn his § 1981 claim and, as a result, denied as moot Bob

Evans’s motion to dismiss that claim. It then turned to Davis’s FCRA claim. With

the consent of both parties, the district court converted Bob Evans’s motion to

dismiss into a motion for summary judgment, which the court granted. The court

also remanded Davis’s defamation claim to Florida state court. In an order

memorializing this ruling, the court specified that Davis’s FCRA claim was barred

because Davis had failed to exhaust his administrative remedies before filing suit.

Davis filed a timely notice of appeal.

      On appeal, Davis raised two arguments: (1) the district court lacked subject

matter jurisdiction to hear his lawsuit because the parties were not completely



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diverse, and (2) the district court erred in granting Bob Evans summary judgment

on his FCRA claim for failure to exhaust administrative remedies. In response to

Davis’s first argument, Bob Evans filed a motion to correct its notice of removal to

cure its defective jurisdictional allegations or, in the alternative, remand the case to

the district court to determine the citizenship of the parties. A panel of this court

denied the motion as unnecessary after determining that the district court had

federal question jurisdiction when it entered judgment in Bob Evans’s favor. Thus,

the only issue remaining on appeal is whether the district court erred in granting

summary judgment to Bob Evans on Davis’s FCRA claim. We conclude that it did

not.

                                           II.

       “We review the district court’s grant of summary judgment de novo,

applying the same legal standards that bound the district court, and viewing all

facts and reasonable inferences in the light most favorable to the nonmoving

party.” Cruz v. Publix Super Mkts., Inc., 428 F.3d 1379, 1382 (11th Cir. 2005)

(internal quotation marks omitted). Summary judgment is appropriate when there

is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). “We also review the district

court’s interpretation of a statute and the application of law de novo.” Pugliese v.

Pukka Dev., Inc., 550 F.3d 1299, 1302 (11th Cir. 2008).



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      The FCRA “provides for a private right of action for violation of any Florida

discrimination statute.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173,

1204 (11th Cir. 2007). As a prerequisite to bringing such an action, however, a

claimant must follow the specific administrative procedures set forth in § 760.11.

These procedures require claimants to first file a complaint with the Florida

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

violation. Fla. Stat. § 760.11(1). If the Commission determines that there is

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

violation of the [FCRA],” the claimant may either bring a civil action or request an

administrative hearing. Id. § 760.11(4). If, however, the Commission issues a “no

cause” determination concluding that there is no reasonable cause to believe a

violation has occurred, “the claimant must request an administrative hearing within

thirty-five days or the claim will be barred.” Cisko v. Phx. Med. Prods., Inc., 797

So. 2d 11, 12 (Fla. Dist. Ct. App. 2001); accord Fla. Stat. § 760.11(7). “If the

[Commission] does not decide whether there is reasonable cause on a complaint

within 180 days of the filing of the complaint, the claimant may file a civil action

at any point thereafter before the applicable statute of limitations expires.” Cisko,

797 So. 2d at 12-13; accord Fla. Stat. § 760.11(8).

      The parties disagree about whether Davis properly followed these

procedures. As required by the FCRA, Davis, with the assistance of counsel, filed



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a sex discrimination charge with the Commission against Bob Evans alleging

essentially the same facts that he later alleged in his amended complaint. After 174

days, the Commission issued a no cause determination finding that no reasonable

cause existed to believe that an unlawful employment practice had occurred and

notifying Davis that his charge would be dismissed unless he requested an

administrative hearing. This notice was mailed to Davis’s residence. Davis’s

attorney never received a copy, although Davis does not dispute that he personally

received the determination. When Davis subsequently failed to request an

administrative hearing within 35 days, the Commission issued a notice of dismissal

disposing of his charge.

      Davis’s attorney contacted the Commission to request rescission of the

dismissal. The Commission acceded to the request and rescinded the notice of

dismissal, noting that it inadvertently had issued the notice of dismissal to Davis

and not his legal representative. The Commission then reissued the underlying no

cause determination, 237 days after Davis filed his initial charge. Davis elected

not to request an administrative hearing in response to the new determination,

however, opting instead to file suit in state court. As a result, the Commission

issued a second notice of dismissal of Davis’s charge.

      Bob Evans contends, and the district court ultimately concluded, that

because Davis never responded to the Commission’s second notice of dismissal



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with a request for an administrative hearing, he failed to exhaust his administrative

remedies and was barred under § 760.11(7) from filing a claim in state or federal

court. We agree. In interpreting the FCRA’s requirements, we “first look at the

actual language used in the statute.” Woodham v. Blue Cross & Blue Shield of

Fla., Inc., 829 So. 2d 891, 897 (Fla. 2002). We are also “guided by the [Florida]

Legislature’s . . . directive that the [FCRA] be liberally construed in reaching our

decision.” Id. (internal quotation marks omitted). If, however, “the [statutory]

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. of St. Lucie Cty. Inc. v. Fla. Dep’t of Envtl. Prot., 144 So. 3d

622, 624 (Fla. Dist. Ct. App. 2014) (internal quotation marks omitted).

      As a general matter, the text of the FCRA is clear: a claimant who receives

a no cause determination from the Commission and fails to request an

administrative hearing is barred from subsequently pursuing that claim in court.

Fla. Stat. § 760.11(7); see also Sheely, 505 F.3d at 1205. Davis argues, however,

that because the Commission failed to render a decision within the allotted 180

days, he was entitled to pursue his claim in state court. Fla. Stat. § 760.11(8).

Davis supports this contention in two ways. First, he argues that, because the

Commission’s initial determination was sent to his residence rather than to his

attorney, it was defective and failed to satisfy the requirements of the FCRA. Id.



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Second, he contends that even if the initial notice he received satisfied the FCRA’s

requirements, it “became moot when the Commission chose to rescind its order of

dismissal and amend its determination.” Appellant Br. at 22. In essence, Davis

argues that the Commission’s true determination was the amended one sent after

the expiration of the 180 day deadline.

      The problem with both these arguments is that neither finds any support in

the text of the FCRA. Even assuming Davis is correct that the Commission was

required to notify his attorney of its determination, nothing in the FCRA’s text

supports the inferential leap that the Commission’s issuing notice of its

determination to the claimant himself within the 180 day window failed to satisfy

the Commission’s obligation to render a timely decision. The Commission need

only “conciliate or determine whether there is reasonable cause on any complaint

. . . within 180 days of the filing of the complaint” to bar a claimant who fails to

request an administrative hearing from filing a civil action. Fla. Stat. § 760.11(8).

This broad language requires only that the Commission make a determination

within 180 days. The Commission did just that, as reflected in the initial

determination sent to Davis. Although the Commission is required to notify the

claimant of its determination, nothing in the FCRA expressly requires that a

claimant (or his attorney) receive notice of the Commission’s determination within

the 180 day timeframe.



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      Davis’s second contention fails for much the same reason. True, the

Commission rescinded its initial notice of dismissal and issued an amended

determination outside of the 180 day window. But prior to doing so, it had issued

a determination regarding “whether there [was] reasonable cause on [Davis’s]

complaint . . . within 180 days of the filing of [his] complaint,” which is all the

FCRA requires. Fla. Stat. § 760.11(8). And although the Commission did issue

an amended determination, it never rescinded its initial determination of no

reasonable cause. It only rescinded its notice of dismissal.

      Davis might have a stronger argument if the Commission had altered, in

some substantive way, its decision in the amended determination. Cf. Gitlitz v.

Compagnie Nationale Air Fr., 129 F.3d 554, 557 (11th Cir. 1997) (finding that

plaintiff’s receipt of a second right to sue letter on his federal age discrimination

claim did not extend the deadline to file suit in district court because the second

letter did not alter the substance of the original determination). But the

Commission’s amended determination was the same as its initial conclusion that

no reasonable cause existed to believe that Bob Evans had committed an unlawful

employment practice against Davis. We thus reject Davis’s argument that the

Commission’s amended determination somehow implicitly nullified its initial

determination for purposes of deciding whether the Commission issued a timely

decision.



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         Lastly, we note that by issuing an amended determination the Commission

in no way impeded Davis from pursuing his claim. Davis never contends that he

lacked adequate notice and opportunity to request an administrative hearing

following the Commission’s determination. To the contrary, he received actual

notice of the Commission’s initial determination and failed to request a hearing

within 35 days. Acknowledging that it should have notified Davis’s attorney, the

Commission gave him yet another opportunity when it issued an amended

determination that reset the 35 day deadline. Despite this second chance, Davis

and his counsel elected not to request a hearing. Davis points to no circumstances

that prevented him from making such a request. Presumably, he declined to

request a hearing believing that, because the 180 day window in which the

Commission had to make a determination had expired, he had no obligation to do

so. A misconception of law, however, does not excuse a claimant from the clear

requirements of the FCRA.

                                          III.

         Upon review of the record and consideration of the parties’ briefs, we

conclude that the district court committed no error in granting summary judgment

to Bob Evans on Davis’s FCRA claim. We therefore affirm the district court’s

order.

         AFFIRMED.



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