PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF APPEALS
No. 98-4449 ELEVENTH CIRCUIT
________________________ 03/23/99
D. C. Docket No. 96-8365-Civ-DKTH THOMAS K. KAHN
CLERK
SHELLY SINCLAIR,
Plaintiff-Appellant,
versus
DE JAY CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 23, 1999)
Before COX and BARKETT, Circuit Judges, and FAY, Senior Circuit Judge.
BARKETT, Circuit Judge:
Shelly Sinclair appeals from the district court’s grant of summary judgment to De Jay
Corporation (“De Jay”) on Sinclair’s claim of sexual harassment in violation of the Florida Civil
Rights Act of 1992 (“FCRA”),
Fla. Stat. Ann. § 760.01-760.11.1 Sinclair argues that the district
court erred in concluding that De Jay was not a statutory employer for purposes of the FCRA
because it did not employ fifteen employees in the State of Florida. We reverse.
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Sinclair makes no federal claims. This case is before the court on the basis of diversity
jurisdiction.
BACKGROUND
This suit arises out of allegations of sexual harassment at De Jay. Sinclair alleged that
Steven Sadler, a manager at De Jay, sexually harassed her and that her complaints to
management did not remedy the situation. Instead, she alleged that her supervisor, James
Bologeorges, retaliated against her for complaining about the harassment. She also alleged
religious discrimination by De Jay.
Sinclair filed this action in the Palm Beach County Circuit Court alleging that De Jay
violated the Florida Civil Rights Act. De Jay, a Tennessee corporation, removed the case to
federal district court. There is no dispute that De Jay employs more than fifteen employees.
Indeed, it concedes that, at any given time, it employs approximately 100 employees. The
district court nonetheless granted summary judgment to De Jay, concluding that De Jay could be
considered a statutory employer for purposes of the Florida Civil Rights Act only if it employed
more than fifteen employees in the State of Florida. Sinclair then filed this appeal.
DISCUSSION
Our starting point is the plain language of the statute. Section 760.02(7) defines an
“employer” for purposes of the Florida Civil Rights Act as “any person employing 15 or more
employees for each working day in each of 20 or more calendar weeks in the current or
preceding calendar year, and any agent of such a person.”
Fla. Stat. Ann. § 760.02(7). Sinclair
argues that this language does not require that all the employees be employed in Florida, so long
as the employer has at least fifteen employees. She argues that the district court erred in
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supplementing the definition of employer with the additional requirement that fifteen employees
be employed in Florida. We agree.
The language of the FCRA is plain and unambiguous. It requires a plaintiff to show that
the defendant is a “person employing 15 or more employees for each working day in each of 20
or more calendar weeks in the current or preceding calendar year, and any agent of such a
person.” Nothing in the statute’s plain language requires a showing that fifteen employees were
employed in the State of Florida. By its own admission, De Jay employs approximately 100
employees at any given time. De Jay therefore falls squarely within the statutory definition. We
are obliged to give effect to the plain language of § 760.02(7). As the Florida Supreme Court
has long held, “when the language of a statute is unambiguous and conveys a clear and ordinary
meaning, there is no need to resort to other rules of statutory construction; the plain language of
the statute must be given effect.” Starr Tyme, Inc. v. Cohen,
659 So. 2d 1064, 1067 (Fla. 1995).
The district court offered three reasons for its conclusion, notwithstanding the plain
language of § 760.02(7), that a Florida employer must employ fifteen employees in Florida in
order to be an employer within the meaning of the FCRA. De Jay relies on these arguments on
appeal. We consider them in turn.
First, examining the general purposes of the FCRA, the district court concluded that
“counting employees of a foreign corporation who are working in other states is profoundly
inconsistent with the parochial concerns of the FCRA.” However, as noted earlier, when the
language of a statute is plain and unambiguous, it is inappropriate to resort to any examination of
purpose to interpret meaning. City of Miami Beach v. Galbut,
626 So. 2d 192, 193 (Fla. 1993)
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(“[W]here a statute is clear and unambiguous . . . a court will not look behind the statute’s plain
language for legislative intent.”). Moreover, De Jay’s argument in this regard fails fairly to
address the legislative intent of the FCRA. It focuses solely on one side of the employment
relationship and says nothing about the very purpose of the FCRA – protecting Floridians within
the State from invidious discrimination. There is nothing in the FCRA to support the
interpretation that De Jay suggests.
Second, the district court looked to the decision of the Florida Commission on Human
Relations in Palermo v. Kuppenheimer Mfg. Co., Inc., 11 F.A.L.R. 4860 (May 2, 1989), which it
read as holding that out-of-state employees should not be counted for purposes of determining
whether the defendant is a statutory employer. De Jay argues that Palermo controls because it
represents the views of an agency, and, is therefore entitled to deference. We find Palermo
inapplicable.
In Palermo, a pro se litigant claimed that his employer discriminated against him based
on religion and national origin. The hearing officer noted in his report and recommendation that
Palermo called himself as his sole witness and failed to introduce any evidence that his employer
met the statutory definition of “employer” set forth in § 760.02(7). Based on this total lack of
evidence, the hearing officer stated that “there was no showing that Respondent is an employer
within the meaning [of the FCRA]. Absent proof that Respondent employed at least 15
employees in Florida during the relevant time period, there is no basis to consider whether
Respondent violated the provisions of [the FCRA].” 11 F.A.L.R. at 4866. De Jay reads this
language as an affirmative statement that an employer who does not employ fifteen persons in
the State of Florida is exempt from the FCRA. Yet nothing in either the hearing officer’s
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recommendations or the Commission’s order indicates any intent to abrogate the plain language
of the statute or any justification for so doing. In our view, the only plausible reading of the
hearing officer’s words is that Palermo’s error was in failing to provide any proof of his
employer’s status at all, and that the addition of the words “in Florida” was totally gratuitous.
We also note that the language in a hearing officer’s report and recommendation in a
particular case does not constitute an agency interpretation to which we owe deference. It is the
statutory constructions of the agency charged with enforcement, not that of individual hearing
officers, to which deference may be owed, and there was no interpretation on the question before
us by the Florida Commission on Human Relations in Palermo. See Ameristeel Corp. v. Clark,
691 So.2d 473, 477 (Fla. 1997) (“[A]n agency’s interpretation of a statute it is charged with
enforcing is entitled to great deference.”). Indeed, appearing here as amicus curiae, the Florida
Commission on Human Relations takes the opposite position and emphasizes that the language
in Palermo was clearly dicta. In any case, even assuming, as the district court did, that Palermo
holds that non-Florida employees should be excluded from the count of employees, we would
give no deference to that interpretation because it runs counter to the plain language of the
FCRA. See Legal Envtl. Assistance Found. v. Board of County Comm’rs of Brevard County,
642 So. 2d 1081, 1083-84 (Fla. 1994).
Finally, we reject De Jay’s argument that we should interpret the FCRA as some district
courts have interpreted comparable language in Title VII. Those district courts have held that
foreign employees of foreign corporations doing business in the United States should not be
counted for purposes of Title VII and other federal anti-discrimination laws. This argument, too,
fails because the plain and unambiguous language of the FCRA requires only that an employer
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employ fifteen persons to qualify as a statutory employer under the FCRA. It says nothing about
where the employees must work.
Moreover, the Second Circuit recently rejected the decisions on which De Jay relies. In
Morelli v. Cedel,
141 F.3d 39 (2d Cir. 1998), the Second Circuit held that foreign employees of
foreign corporations should be counted in determining whether the defendant is a statutory
employer for purposes of the Age Discrimination in Employment Act. The court in Morelli
rejected the argument made here by De Jay that an unprotected employee should not be counted,
explaining that “there is no requirement than an employee be protected by the ADEA to be
counted . . . . The nose count of the employees relates to the scale of the employer rather than to
the extent of the protection.”
Id. at 44-45. The Morelli court also found that the purpose of
excluding small employers from the ADEA – “the burdens of compliance and potential litigation
costs” – does not “suggest[] that whether a foreign employer is subject to the ADEA should turn
on the size of its U.S. operations alone.”
Id. at 45. Even assuming, as De Jay argues, that
Morelli was wrongly decided, we are not inclined to compare relations between the United
States and foreign countries to the relations between states.
Accordingly, we hold that, for purposes of the Florida Civil Rights Act, an employer is a
statutory employer based on the total number of its employees, not the number of its employees
in Florida. The judgment of the district court is, therefore, REVERSED and the case is
REMANDED to the district court for proceedings consistent with this opinion.
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