Defining the Hourglass–When Is a Claim Under the Florida Civil Rights Act Time Barred?
In 1992, the Florida Legislature amended the Human Rights Act of 1977. Now called the Florida Civil Rights Act of 1992 (FCRA), the amendments changed many of the procedural rules associated with filing a claim under the FCRA. This article will focus on the statute of limitations for filing a civil action under the FCRA.
Under the FCRA, a claimant must file a complaint with the Florida Commission on Human Relations (“commission”) within one year of an employer’s alleged violation.1 W ithin 180 days of filing the complaint, the commission should determine if reasonable cause exists to believe that a covered discriminatory practice has occurred.2 Once notified of the commission’s determination of reasonable cause, the claimant must file his or her civil action within 365 days or request an administrative hearing within 35 days.3 If the commission instead determines that there is no cause to believe the employer’s conduct has violated the FCRA, the claimant may only file for an administrative hearing.4 This too must be done within 35 days of being notified of the commission’s determination.5
All is well if the commission is timely and makes an express finding as to cause. However, what happens if the commission fails to return a determination within 180 days? “In the event that the commission fails to determine whether there is reasonable cause. . . within 180 days of the filing of the complaint, an aggrieved person may proceed. . . as if the commission determined that there was reasonable cause.”6 T hough clear on its face, the provision presents a court with the following dilemma: Does use of the phrase “may proceed” indicate legislative intent to preserve the FCRA’s time restrictions on civil actions brought under the act?
The issue is brought into focus by another provision of the FCRA which states “a civil action brought under this section shall be commenced no later than one year after the date of determination of reasonable cause by the commission.”7
Clearly, the claimant may proceed with his or her civil action when the commission is nonresponsive. However, if the claimant remains passive and simply waits for the commission’s response, should the claim fall back into the general statute of limitations for statutory claims or be subject to the more restrictive time limits imposed by the FCRA? This very question is currently being presented to the Florida Supreme Court.8 The First and Fourth district courts of appeal have both certified the question.
In Joshua v. City of Gainesville, 24 Fla. L. Weekly D550, 1999 WL 71523 (Fla. 1st DCA 1999), the First District Court of Appeal, noting that pro se claimants could be misled by the permissive language of the FCRA, certified this issue for review by the Florida Supreme Court. However, the Joshua court stated that when taken as a whole, the FCRA’s tone and procedural structure seem to favor a clear filing limit of one year.
Should the courts view a claimant who disregards his or her right to proceed, passively waiting for the commission’s determination of reasonable cause, as having been misled or instead as the beneficiary of an ambiguous detour?
From Milano to Adams
Only a handful of decisions have addressed this question. However, these decisions have been unanimous in holding plaintiffs to the one- year limit.9 Most noteworthy are the decisions in Milano v. Moldmaster, Inc., 703 So. 2d 1093 (Fla. 4 th DCA 1997); Joshua v. City of Gainesville, 24 Fla. L. Weekly D550, 1999 WL 71523 (Fla. 1st DCA 1999); and Adams v. Wellington Regional Medical Center, Inc., 727 So. 2d 1139, 1140 (Fla. 4th DCA 1999).
In Milano, the Fourth District Court of Appeal upheld the trial court’s determination that the one- year limitation on filing a civil action began to run at the expiration of the 180-day period in which the commission was to make a determination of reasonable cause.10 The court reasoned that a claimant should not enjoy an open-ended time extension that would essentially render the statutory limitation meaningless.11
The Joshua case also held, on the authority of Milano, that the plaintiff was subject to the one-year limit.12 The court noted that “where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.”13 In that case, the successful appellee argued that use of “may” in subsections (4) and (8) denotes the legislature’s intent to establish a procedural process.14 Under both subsections, the statute provides a claimant with options from which to elect a course of action.
Finally, the Adams court, citing Milano, also rejected the plaintiff’s argument in favor of the general four-year filing limit.15 The court in Adams certified the same question put before the Florida Supreme Court in Joshua.16
Though the cases are unanimous in holding plaintiffs to the one-year filing deadline, the fact that two courts have certified the same question demonstrates an arguable ambiguity in the FCRA’s time limitation provisions. As could be expected, employers generally read the statute to mandate, or at least imply, a one-year limit during which an employee may file a civil action. However, given an untimely response by the commission, claimants prefer the more open-ended four-year time frame.
The confusion is understandable. Advocates who support an elastic filing period controlled exclusively by the timeliness of the commission’s determination of reasonable cause can hang their collective hat on the harsh result that befalls an unwary pro se claimant. In essence, a claimant might think that the validity of the claim will be enhanced if the commission provides an actual response.
Equally concerned, the adverse party might argue that a claimant, having filed a claim under the FCRA, has an interest in seeing that the case be heard in an orderly and expeditious fashion. Accordingly, if the pro se claimant was able to comprehend the procedural process outlined in the FCRA, the claimant should not later claim to be ignorant of his or her right to proceed when the commission is not timely with its response. A discussion of relevant case law, due process, and statutory construction brings into focus the issue and a practical solution.
Relevant Case Law
The Milano court cites Lewis v. Conners Steel Co., 673 F.2d 1240, 1242 (11th Cir. 1982), for the proposition that a claimant should not have an elastic time extension that renders other FCRA provisions meaningless.17 In Lewis, a Title VII case, the action was deemed time barred because the plaintiff failed to bring a civil suit within the statutory period following issuance of a notice of right to sue by the Equal Employment Opportunity Commission (EEOC).18
It is clear that parts of the FCRA are patterned after Title VII.19 Beside the express references to Title VII within the statute, the FCRA’s cause determination provision is analogous to the EEOC’s Notice of Right to Sue.20 However, unlike its federal counterpart, the FCRA does not require an actual determination. Rather, the statute allows a claimant to proceed without a determination when the commission has not responded within the statutory period of 180 days.21
Proponents of either side of the FCRA time limitation issue can claim that Lewis provides support to their argument. Employers can cling to the Milano decision and assert the necessity of keeping the procedural framework in tact. Likewise, claimants may argue that Title VII expressly provides that the EEOC provide written notice to a claimant and, thus, places the claimant on notice.22 If the Florida Supreme Court were to hold that a claimant’s duty to file is triggered upon the expiration of the commission’s 180-day window, then the only notice to the claimant would be the FCRA language itself. Both arguments are persuasive, but neither addresses the question of legislative intent.
Another case of interest is Hullinger v. Ryder Truck Rental, Inc., 548 So. 2d 231 (Fla. 1989). In Hullinger, the plaintiff filed a complaint with the commission pursuant to F.S. §760.10 (1983). The Florida Supreme Court held that the trial court erred in finding the plaintiff’s claim time-barred. The court stated that Hullinger’s age discrimination claim arose from a statutory right and was thus governed by the four-year filing limitation of F.S. §95.11(3)(f) instead of the two-year limit in §95.11(4)(c).23
As the Joshua court noted, however, there are two reasons that Hullinger no longer controls.24 First, the case was decided before the Florida Legislature enacted the 1992 Amendments to the FCRA. Second, as a general rule, “a more specific statute covering a particular subject controls over another statute covering the same subject in more general terms. Even where the specific statute provides for a shorter period of limitations.”25 F.S. §760.11(5) expressly states that a civil action brought under the FCRA must commence no later than one year after the date of determination by the commission. (See chart above illustrating the various time limitations asserted in the Joshua case).
Due Process Concerns
The FCRA’s procedural framework seems to take a permissive tone on whether the claimant is subject to the same one-year filing deadline that governs claimants who receive an express determination of reasonable cause.26 This has triggered a debate over whether the statute provides adequate notice to plaintiffs, especially those who proceed pro se. After evaluating the ramifications, the due process argument cuts both ways.
A claimant might argue that his or her case should not be time barred given the confusionover what the FCRA’s time limitations actually mean, and the lack of adequate notice. Employers, however, may also lay claim to the FCRA’s lack of clarity. For example, an employer could assert that it has relied on the statutory framework and a string of case law that clearly limits the filing of a civil actions to one year. In response to a plaintiff’s procedural due process argument, the employer, arguing substantive due process concerns, can demonstrate that the FCRA is unconstitutionally vague.
Because a claimant and his or her employer share in the mutual benefit and frustration of successfully asserting constitutional challenges, neither party can realistically triumph. Were the arguments to succeed, the claimant would no longer be time-barred, but the employer would then have a corresponding challenge of its own. Both parties gain nothing but further delay. Since the arguments arise from the ambiguous language of the FCRA, consistency would require a court to simultaneously rule that both litigants have asserted legitimate constitutional rights.
Ambiguous statutes are the playground of the creative legal mind. The current controversy contains the makings of a first-year law lecture on the difference between “may” and “shall.” While the due process argument weighs in favor of the pro se employee-claimant, concern for maintaining the statutory framework of the FCRA is equally one-sided in favor of the employer’s position.
The claimant’s best argument is that both the common and legal meaning of “may” is that the stated option is permissive. Likewise, “shall” denotes a mandate. The FCRA intertwines the two by the repeated use of “may” in outlining the necessary steps a claimant must follow to vindicate his or her civil rights under the FCRA.
In understanding the legislative intent behind the FCRA, it is important to look at several of its provisions. Specifically, it is necessary to focus on the use of “may,” the procedural framework, and the requirement that a litigant facilitate an efficient resolution of his or her claim. The following provisions of §760.11 set forth the procedural guidelines a claimant must follow.
(1) Any person aggrieved by a [FCRA] violation. . . may file a complaint with the commission within 365 days of the alleged violation. . . The person who allegedly committed the violation may file an answer. . . within 25 days.
(4) In the event that the commission [issues a determination of reasonable cause], the aggrieved person may either:
(a) Bring a civil action. . . [or]
(b) Request an administrative hearing.
* * *
(5). . . . A civil action brought under this section shall be commenced no later than one year after the date of. . . [the commission’s determination of reasonable cause].
* * *
(7) If the commission [finds that a determination of reasonable cause is unwarranted and dismisses the claim],. . . The aggrieved person may request an administrative hearing,. . . but any such request must be made within 35 days. . . If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred. . . In the event the final order issued by the commission determines that a violation. . . occurred, the aggrieved person may bring, within one year of the date of the final order, a civil action under subsection (5) as if there has been a [determination of reasonable cause] or accept the affirmative relief offered by the commission, but not both.
(8) In the event that the commission fails to conciliate or determine. . . within 180 days of the. . . complaint, an aggrieved person may proceed under subsection (4), as if the commission determined that there was reasonable cause.
(13) Final orders of the commission are subject to judicial review. . . The commission’s [determination of reasonable cause] is not final agency action that is subject to judicial review. . . In the event the order of the court determines that a violation. . . has occurred, the court shall remand the matter to the commission. . . The aggrieved party has the option to accept the relief offered by the commission or may bring, within 1 year of the date of the court order, a civil action under subsection (5) as if there has been a reasonable cause determination.
When read together, the FCRA provides a measured pathway for the remedy of a civil rights violation.
The may versus shall argument begins to fragment when a claimant is forced to support his or her assertion by reaching outside the FCRA to general time limitations placed on statutory causes of action. Most damaging is the repetitive nature in which the FCRA requires a claimant to act within one year or less of: the alleged civil rights violation, a commission’s determination, the final outcome of an administrative hearing, or a court order.27 It is questionable whether the legislature intended to create so many meaningless provisions by knowingly providing for a claimant to operate outside the framework of §760.11.
In another context, one observation is clear—the permissive tone of “may” is not mutually exclusive with an employer’s use of the filing limitation defense. The permissive option contained in “an aggrieved person may proceed”28 could be read to suggest that the claimant has the option to continue seeking a remedy under the FCRA or choose abandoning his or her claim. This disqualifies an open-ended reading of the section, while remaining consistent with other provisions of the FCRA. As an illustration, subsection (13) affords the claimant the option to pursue his or her claim with language that parallels that in subsection (8).29
What Makes Sense?
Given the concern over improper notice to unwary claimants and the understandable confusion with the statutory language, the answer may sit outside of any provision discussed thus far. A review of the following provision allows for a simple, yet unexplored solution: “(14) The commission may adopt, promulgate, amend, and rescind rules to effectuate the purposes and policies of this section and to govern the proceedings of the commission under this section.”
The commission has express authority to promulgate rules to “effectuate the purpose and policies” of the FCRA. To bring about an instant resolution, the commission could adopt a policy of sending a form letter to claimants upon receipt of a claim. The form letter would address the various options available under the FCRA and the corresponding time limitations under current law. A commission letter would also remove due process concerns, while maintaining the integrity of the FCRA’s time limitations.
The Florida Supreme Court will have the final say as to whether claimants must adhere to the Milano rule,30 cited in Joshua, or instead enjoy a more open-ended filing period. However, the commission could significantly alter the nature of the debate. Unfortunately, if the commission does not improve its correspondence policies, the Supreme Court will be forced to chose among 1) tainting the FCRA framework with an outside time provision, 2) upholding Joshua based on the principle that citizens are presumed to know the law,31 or 3) overturning the disputed provisions as being too vague—igniting the need for legislative action. The court cannot mandate that the commission exercise its authority under the FCRA. As a result, the suggested resolution rests squarely in the hands of the commission.
1 Fla. Stat. §760.11(1). Unless otherwise stated, all chapter and section references are to Florida Statutes (1998).
2 Fla. Stat. §760.11(3).
3 Fla. Stat. §760.11(4).
4 Fla. Stat. §760.11(7). If the administrative law judge finds that a violation of the FCRA has occurred, then the commission is once again granted the authority of “adopting, rejecting, or modifying” the recommended order. If the administrative law judge finds that a violation of the FCRA has not occurred, then the claimant no longer has a remedy at the circuit court level, but instead can request review by the district court of appeal under Fla. Stat. §120.68.
6 Fla. Stat. §760.11(8).
7 Fla. Stat. §760.11(5).
8 The Florida Supreme Court was scheduled to hear oral argument in Joshua v. City of Gainesville, 24 Fla. L. Weekly D550, 1999 WL 71523 (Fla. 1st D.C.A. 1999) on November 3, 1999 (Case No. 94,935).
9 See Milano v. Moldmaster, Inc., 703 So. 2d 1093 (Fla. 4th D.C.A. 1997); Joshua v. City of Gainesville, 24 Fla. L. Weekly D550, 1999 WL 71523 (Fla. 1st D.C.A. 1999); Adams v. Wellington Regional Medical Center, Inc., 727 So. 2d 1139, 1140 (Fla. 4th D.C.A. 1999); Crumbie v. Leon County School Bd., 721 So. 2d 1211, 1212 (Fla. 1st D.C.A. 1998); Kalkai v. Emergency One, 717 So. 2d 626 (Fla. 5th D.C.A. 1998); Digiro v. Pall Aeropower Corp., 19 F. Supp. 2d 1304, 1309 (M.D. Fla. 1998); Daughtery v. City of Kissimmee, 722 So. 2d 288 (Fla. 5th D.C.A. 1998).
10 Milano, 703 So. 2d at 1094.
11 Milano, 703 So. 2d at 1095.
12 Joshua, 23 Fla. L. Weekly D550.
13 Joshua, 23 Fla. L. Weekly D550 (quoting Forsythe v. Long Boat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992)).
15 Adams, 727 So. 2d at 1140.
16 Both cases certify the following question: “Does Fla. Stat. §760.11(5) (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 Fla. Stat. §760.11(8) (1995), so that an action file beyond the one-year period is time-barred?” Joshua, 23 Fla. L. Weekly D550; Adams, 727 So. 2d at 1140.
17 Milano, 703 So. 2d at 1095.
18 Lewis, 673 F.2d at 1241.
19 Fla. Stat. §760.11 (5)–(7).
20 Compare Fla. Stat. §760.11 with 42 U.S.C. §2000e-5 (1991).
21 Fla. Stat. §760.11(8).
22 42 U.S.C. §2000e-5(b) (1991).
23 Hullinger, 548 So. 2d at 232–233.
24 Joshua, 23 Fla. L. Weekly D550.
25 Joshua, 23 Fla. L. Weekly D550 (quoting Sheils v. Jack Eckerd Corp., 560 So. 2d 361, 363 (Fla. 2d D.C.A. 1990), and Dubin v. Dow Corning Corp., 478 So. 2d 71 (Fla. 2d D.C.A. 1985)).
26 Fla. Stat. §760.11(8).
27 See generally Fla. Stat. §760.11.
28 Fla. Stat. §760.11(8), (13).
30 Milano, 703 So. 2d at 1094 (holding that the one-year limitation on filing a civil action began to run at the expiration of the 180 day period in which the commission was to make a cause determination).
31 See In re Will of Martell, 457 So. 2d (Fla. 2d D.C.A. 1979); Green v. Quincy State Bank, 368 So. 2d 241 (Fla. 1st D.C.A. 1979).
Meenu T. Sasser is an associate in the West Palm Beach office of Gunster, Yoakley, Valdes-Fauli & Stewart, P.A. Her practice includes commercial and intellectual property litigation. Ms. Sasser received a Bachelor of Science degree, cum laude and with honors, from the College of William and Mary in 1992 and a Juris Doctor degree from the University of Pennsylvania Law School in 1995.
Stafford N. Shealy was a summer associate in the West Palm Beach office of Gunster, Yoakley, Valdes-Fauli & Stewart, P.A. during 1999. He graduated from the University of Florida in 1996 with a B.S. in civil engineering. Mr. Shealy attended Campbell University School of Law before transferring to the College of Law at Florida State University and will receive his J.D. in May 2000.
This column is submitted on behalf of the Labor and Employment Law Section, Robert J. Sniffen, chair, and F. Damon Kitchen, editor.