Opinion
CASE NO.: 4:22-cv-00397-RH-MJF
2023-03-17
Akaycia MARBURY, Plaintiff, v. SDH SERVICES WEST, LLC, Defendant.
Marie A. Mattox, Erika Esan Goodman, Mattox Law Firm, Tallahassee, FL, for Plaintiff. Karen Elizabeth Smeda, Ogletree Deakins Nash etc. PC, Tampa, FL, Sarah Jean Kuehnel, Ogletree Deakins, St. Louis, MO, for Defendant.
Marie A. Mattox, Erika Esan Goodman, Mattox Law Firm, Tallahassee, FL, for Plaintiff. Karen Elizabeth Smeda, Ogletree Deakins Nash etc. PC, Tampa, FL, Sarah Jean Kuehnel, Ogletree Deakins, St. Louis, MO, for Defendant. ORDER DENYING THE MOTION TO DISMISS Robert L. Hinkle, United States District Judge
This is an employment-discrimination case. The complaint asserts claims under the Florida Civil Rights Act based on disability discrimination (count 1) and retaliation (count 2). The complaint also asserts a claim under the federal Family and Medical Leave Act (count 3). The defendant has moved to dismiss counts 1 and 2 on the ground that the complaint was filed more than one year after the Equal Employment Opportunity Commission issued a right-to-sue notice. This order denies the motion.
The plaintiff is Akaycia Marbury. She worked for the defendant SDH Services West, LLC until her termination on July 17, 2020.
As a prerequisite to a Florida Civil Rights Act claim, a complainant must file a timely administrative charge. On January 6, 2021, Ms. Marbury filed an administrative charge with both the EEOC and Florida Commission on Human Relations—a permissible dual filing. See Fla. Stat. § 760.11(1). This was timely. The charge asserted Ms. Marbury suffered disability discrimination, retaliation, and a hostile work environment. The charge said this violated the Florida Civil Rights Act, the Americans with Disabilities Act, and Title VII. Ms. Marbury explicitly asked for the charge to be processed by the EEOC, not the FCHR. This was also permissible. The agencies have a work-share agreement under which one or the other—not both—investigates a charge, even when dual-filed. See Fla. Admin. Code r. 60Y-5.002 & 60Y-5.003.
The EEOC did not issue a determination within 180 days. This afforded Ms. Marbury the right to have the EEOC terminate its process and issue a right-to-sue notice. Ms. Marbury exercised that right. The EEOC issued a notice on July 12, 2021. The notice advised Ms. Marbury that she could file a lawsuit under Title VII, the ADA, or another (irrelevant) federal statute, that she could file the lawsuit in federal or state court, and that the deadline for doing so was 90 days after her receipt of the notice. The notice's only mention of any state claim was this: "The time limit for filing suit based on a claim under state law may be different."
The FCHR did nothing.
Ms. Marbury filed this lawsuit in state court on July 18, 2022—a year and six days after issuance of the EEOC right-to-sue notice. SDH removed the action to this court.
Ms. Marbury acknowledges she missed the 90-day window for filing a federal Title VII or ADA claim. She has asserted no such claim in this action. For its part, SDH acknowledges the 90-day window does not apply to state-law claims. But SDH says the deadline for filing the state claims was one year after issuance of the EEOC right-to-sue notice. If that were so, counts 1 and 2 would be untimely.
It is not so.
The background is this. Under Florida law, the FCHR is tasked with determining whether a charge of discrimination is supported by reasonable cause. See Fla. Stat. § 760.11(3). If the FCHR finds no reasonable cause, the complainant may proceed to an administrative hearing. Id. § 760.11(7). If the FCHR finds reasonable cause, the complainant may proceed to an administrative hearing or file a lawsuit in state or federal court. Id. § 760.11(4).
In § 760.11(8), the statute addresses any failure by the FCHR to make a determination within 180 days after the charge was filed. First, the complainant may proceed as if the FCHR found reasonable cause—that is, the complainant may proceed to an administrative hearing or file a lawsuit. Id. § 760.11(8)(a). Second, the FCHR must "promptly notify" the complainant of its failure to make a determination. Id. § 760.11(8)(b). Third, the deadline for filing a lawsuit is one year "after the date the commission certifies that the notice was mailed pursuant to" § 760.11(8)(b). Id. § 760.11(8)(c).
This is the one-year deadline that SDH says Ms. Marbury missed. But the FCHR never issued the required notice, so the one-year period never began to run. Counts 1 and 2 were timely.
In asserting the contrary, SDH says, in effect, that the EEOC notice should be treated as the required FCHR notice. The assertion fails for two reasons.
First, Florida courts have consistently refused to treat an EEOC notice as an adequate substitute for an FCHR notice when, as here, the EEOC notice did not track the language that would be included in a proper FCHR notice. See Sheridan v. Fla. Dep't of Health, 182 So. 3d 787, 791-92 (Fla. 1st DCA 2016); Santini v. Cleveland Clinic Fla., 843 So. 2d 1029, 1032-34 (Fla. 4th DCA 2003); White v. City of Pompano Beach, 813 So. 2d 1003, 1005-07 (Fla. 4th DCA 2002); Cisko v. Phoenix Med. Prods., Inc., 797 So. 2d 11, 13-14 (Fla. 2d DCA 2001). To be sure, federal district court decisions can be cited on both sides of the issue. Compare Segura v. Hunter Douglas Fabrication Co., 184 F. Supp. 2d 1227, 1229-32 (M.D. Fla. 2002) (denying a motion to dismiss and holding an EEOC determination not the same as an FCHR determination) with Henry v. Examworks, Inc., No. 6:19-cv-1603, 2020 WL 10647041, at *3 (M.D. Fla. Mar. 4, 2020) (dismissing Florida claims that were not filed within one year after EEOC dismissal of charges and right-to-sue notice). But as recognized in a decision from this district, the Florida decisions—not any inconsistent federal decisions—are controlling on this state-law issue. See McCarty v. Navy Fed. Credit Union, No. 3:20-cv-5988, 2021 WL 5033496, at *1 (N.D. Fla. Mar. 18, 2021).
Second, the statute requires the FCHR notice to "provide the options available to" the complainant under state law and to "inform" the complainant that any lawsuit must be filed within one year "after the date the commission certifies that the notice was mailed." Fla. Stat. § 760.11(8)(b). The EEOC right-to-sue notice did not provide Ms. Marbury the options available to her under state law and did not mention the one-year deadline. Even had this notice been issued by the FCHR, the notice would not have complied with the statute and would not have been sufficient to trigger the one-year limitations period. See, e.g., Santini, 843 So. 2d at 1034 (requiring adherence to the statute regarding notice and further options).
This leaves counts 1 and 2 subject only to the four-year limitations period applicable to Florida statutory claims in general. See Fla. Stat. § 95.11(3)(f); see also Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). Ms. Marbury filed the complaint well within that period.
IT IS ORDERED:
The motion to dismiss, ECF No. 7, is denied.
SO ORDERED on March 17, 2023.