Third District Court of Appeal
State of Florida
Opinion filed June 15, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-598
Lower Tribunal No. 20-19278
________________
Andre White,
Appellant,
vs.
AutoZone Investment Corporation,
d/b/a AutoZone Auto Parts,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Lourdes
Simon, Judge.
Law Offices of Levy & Levy, P.A., and Chad E. Levy (Sunrise); Diane
Perez, P.A., and Diane P. Perez, for appellant.
Jones Walker LLP, and Laurie M. Riley, for appellee.
Before LOGUE, HENDON and GORDO, JJ.
GORDO, J.
Andre White appeals a trial court’s order granting AutoZone
Investment Corporation d/b/a AutoZone Auto Parts’ motion to dismiss with
prejudice. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Because
we find that section 11A-28(10) of the Miami-Dade County Code establishes
a private cause of action, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Andre White began working for AutoZone in 2015. While he was an
employee, he alleges he was subjected to ongoing verbal abuse due to his
sexual orientation. White made a complaint to the corporate office in May
2019 and was placed on leave pending an investigation. White was
terminated on June 4, 2019.
White subsequently filed a complaint of discrimination with the Miami-
Dade Commission on Human Rights. In August 2020, White received a
notice of right-to-sue from the Commission indicating the investigation was
being terminated for his failure to cooperate with the agency and that he
could pursue his charge further pursuant to Chapter 11A, section 11A-28(10)
of the Miami-Dade County Code within ninety days of receipt of the notice.
On September 9, 2020, White filed a complaint against AutoZone for
sexual orientation discrimination and retaliation in violation of Chapter 11A
of the Miami-Dade County Code. In January 2021, AutoZone filed a motion
2
to dismiss White’s complaint, arguing Chapter 11A does not provide a private
cause of action for employment discrimination. White filed a response to the
motion which asserted the plain language of section 11A-28(10) established
a private cause of action. AutoZone filed a reply asserting section 11A-
28(10) does not create a private cause of action. The trial court heard
argument on the motion and, on January 28, 2021, granted the motion to
dismiss with prejudice finding section 11A-28(10) does not establish a
private cause of action. This appeal followed.
STANDARD OF REVIEW
This Court reviews a trial court’s determination on a motion to dismiss
de novo. Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP,
137 So. 3d
1081, 1089 (Fla. 3d DCA 2014). “The construction of a statute is an issue of
law subject to de novo review.” Aramark Unif. & Career Apparel, Inc. v.
Easton,
894 So. 2d 20, 23 (Fla. 2005).
LEGAL ANALYSIS
White contends the trial court erred in granting the motion to dismiss
because the plain and unambiguous language of section 11A-28(10)(b)
establishes a private cause of action for employment discrimination. We
agree.
3
In 1997, the Miami-Dade County Commission enacted Chapter 11A to
prevent discrimination in housing, credit and financing practices, public
accommodations, employment, family leave and employment in Dade
County service. 1 Article IV of the Chapter deals with employment
discrimination. 2
Section 11A-28 provides procedures for employment discrimination
complaints. Per the terms of the section, after a complaint is filed the director
of the Dade County Equal Opportunity Board or his or her designee shall
conduct an investigation and “prepare a finding related to probable cause
consisting of a final investigative report and recommended order.” See §
11A-28(7)(b), Code of Miami-Dade County. The report would become final
ten days after issuance, unless a hearing was requested pursuant to section
11A-28(9), which provides:
(9) Hearing in front of Equal Opportunity Board.
(a) If within ten (10) days after receipt of the director’s
finding related to probable cause the respondent or
the complainant submits a written request for a
hearing before the board, then such hearing shall be
granted expeditiously. A written request for a hearing
submitted more than ten (10) days after receipt of the
1
The ordinance enacting Chapter 11A repealed a prior version of the Code.
2
Section 11A-25(2) defines Employer as “any person who in the regular
course of business has five (5) or more employees in Dade County in each
of four (4) or more calendar weeks in the current calendar year and any
agent, acting manager, contractor or subcontractor of such person.”
4
director’s finding may be granted only upon a
showing of good cause. The director shall have the
final authority in deciding whether good cause has
been shown. No hearing may be had from the
director’s decision that good cause has not been
shown. No hearing may be had from the director’s
finding of lack of jurisdiction.
...
(e) Upon the conclusion of the hearing, an
adjudicative final order shall be issued and served
upon the parties.
(emphasis added). Unlike other provisions in Chapter 11A, this employment
discrimination article did not provide any procedures for enforcement by
private persons.
In 2006, the Miami-Dade County Commission amended section 11A-
28 to include:
(10) Enforcement by private persons.
(a) If within one hundred eighty (180) days after a
complaint is filed alleging discrimination, the Director
[of the Commission on Human Rights] has been
unable to obtain voluntary compliance with the
provisions of this Article, the aggrieved person may
demand a notice of right-to-sue from the Director, the
issuance of which shall terminate the jurisdiction of
the Director and the Board over such a complaint.
Not later than ninety (90) days following receipt of
the notice of right-to-sue, the aggrieved person
may commence a civil action in a court of
competent jurisdiction against the respondent
named in the complaint.
(b) If, in a private enforcement proceeding under
this Article, the court finds that a discriminatory
5
practice has occurred or is about to occur it may
issue an order prohibiting the practice and providing
affirmative relief from the effects of the practice,
including temporary or permanent injunctive and
other equitable relief, temporary restraining order,
actual and punitive damages, reasonable attorney’s
fees, interest, costs or other appropriate relief.
Section 11A-28(10) (emphasis added).
I. Interpretation of Section 11A-28(10)
“In construing a statute we must begin, and often should end as well,
with the language of the statute itself.” U. S. v. Steele,
147 F. 3d 1316, 1318
(11th Cir.1998); Conn. Nat’l Bank v. Germain,
503 U.S. 249, 253–54 (1992)
(“[I]n interpreting a statute a court should always turn first to one, cardinal
canon before all others. We have stated time and again that courts must
presume that a legislature says in a statute what it means and means in a
statute what it says there.”). “The same logic applies to a local ordinance.”
Vaughn v. Segal,
707 So. 2d 951, 952 (Fla. 3d DCA 1998). When the words
of a statute are unambiguous, “judicial inquiry is complete.” Rubin v. United
States,
449 U.S. 424, 430 (1981).
AutoZone argues nothing in section 11A-28(10) specifically states a
complainant may pursue an employment discrimination claim under Chapter
11A. “In ascertaining the plain meaning of the statute, the court must look to
the particular statutory language at issue, as well as the language and design
6
of the statute as a whole.” K Mart Corp. v. Cartier, Inc.,
486 U.S. 281, 291
(1988); see also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts § 6, at 167 (2012) (stating a “judicial interpreter
[should] consider the entire text, in view of its structure and of the physical
and logical relation of its many parts,” when interpreting any particular part
of the text).
The plain language of the statute clearly creates a private cause of
action. Section 11A-28(10)(a) provides an individual the right to obtain a
“notice of right-to-sue” and once such notice has been obtained that
individual may “commence a civil action in a court of competent jurisdiction.”
Section 11A-28(10)(b) explicitly states a court may issue orders or provide
affirmative relief “in a private enforcement proceeding under this Article.”
Read together, this expressly creates a guideline for private enforcement of
the employment discrimination chapter of the ordinance. 3
3
It is well settled that “[w]hen the language of the statute is clear and
unambiguous and conveys a clear and definite meaning, there is no occasion
for resorting to the rules of statutory interpretation and construction; the
statute must be given its plain and obvious meaning.” A.R. Douglass, Inc.,
v. McRainey,
137 So. 157, 159 (Fla. 1931). That principle aside, even if the
language contained in the section could be considered ambiguous, “the title
of a statute or section can aid in resolving an ambiguity in the legislation’s
text.” I.N.S. v. Nat’l Ctr. for Immigrants’ Rights, Inc.,
502 U.S. 183, 189
(1991). Here, the title of the section resolves any purported ambiguity as to
whether a private cause of action to enforce the Chapter exists because it
clearly states “[e]nforcement by private persons.” Other articles of Chapter
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AutoZone compares section 11A-28(10) to the administrative scheme
of section 760.11(4), Florida Statutes, which provides that if the Commission
on Human Rights determines there is reasonable cause to believe that a
discriminatory practice has occurred “in violation of the Florida Civil Rights
Act of 1992, the aggrieved person may either: (a) Bring a civil action against
the person named in the complaint in any court of competent jurisdiction; or
(b) Request an administrative hearing under ss. 120.569 and 120.57.”
Section 760.11(4), however, is not analogous because section 11A-
28(10)(a) provides enforcement by a private person may commence “[i]f . . .
the Director has been unable to obtain voluntary compliance with the
provisions of this Article” and receipt of a right to sue, not after the
Commission on Human Rights “determines there is reasonable cause to
believe that a discriminatory practice has occurred.” § 760.11(4), Fla. Stat.
There is no prerequisite for an employee to obtain a probable cause
determination prior to commencing a civil action and the plain language
clearly authorizes employees to litigate their claims pursuant to Chapter 11A.
11A have similarly titled sections and subsections which have been found to
create a private right of action. See Francois v. Caribbean Airmail, Inc.,
2002
WL 31465742, at *1 (S.D. Fla. June 18, 2002) (“[T]he sections dealing with
housing, public accommodations, and contract procurement do expressly
provide for private relief.”)
8
Section 11A-28(10) follows an outline of the procedures to be
conducted by the Commission on Human Rights after a complaint is filed.
Based on this structure, and the fact the section specifically provides it
applies where “the Director has been unable to obtain voluntary compliance
with the provisions of this Article,” this section is not meant as an
administrative relief scheme. Rather, the section is meant as a guideline for
a private individual to seek to enforce the employment discrimination article
of Chapter 11A after the Commission on Human Rights has failed to provide
relief.
II. Prior Precedent
AutoZone also argues the trial court’s finding that section 11A-28(10)
does not create a private right of action should be affirmed because other
courts, including this Court, have found this section only allows an employee
to pursue a claim in court against their former employer upon receipt of a
notice of right-to-sue, but cannot assert such a claim under Chapter 11A.
No District Court of Appeal in Florida has explicitly addressed whether
the ordinance creates a private cause of action after its amendment. Other
circuit and federal courts have addressed this ordinance post-amendment
and have cited to a per curiam decision of this Court based on a trial court
order finding section 11A-28 did not create a private cause of action. See
9
Hernandez v. Life Alert Emergency Response, Inc.,
124 So. 3d 931, 931
(Fla. 3d DCA 2013). We start by emphasizing a well-established rule of
jurisprudence—an unelaborated per curiam affirmance has no precedential
value in any other case. See Dep’t of Legal Affairs v. Dist. Court of Appeal,
5th Dist.,
434 So. 2d 310, 313 (Fla. 1983) (“We reiterate that [a per curiam]
decision is not a precedent for a principle of law and should not be relied
upon for anything other than res judicata.”); Berek v. Metro. Dade Cnty.,
396
So. 2d 756, 759 n. 3 (Fla. 3d DCA 1981) (“We do not regard a per curiam
affirmance without opinion as having precedential significance for other
cases, notwithstanding that such an affirmance may establish the law of the
particular case.”); Goldberg v. Graser,
365 So. 2d 770, 773 (Fla. 1st DCA
1978) (“A per curiam affirmance without opinion does not bind the appellate
court in another case to accept the conclusion of law on which the decision
of the lower court was based.”); Mobil Chem. Co., a Div. of Mobil Corp. v.
Hawkins,
440 So. 2d 378, 383 (Fla. 1st DCA 1983) (holding a per curiam
affirmance without written opinion has no precedential value, even in the
deciding court).
While the decision in Life Alert was affirmed by our Court, such action
should not be considered approval of the analysis and conclusions of law on
which the decision of the lower court was based. See Life Alert,
2012 WL
10
12887229, at *1. Per curiam affirmances have no precedential value
because “[t]he rationale and basis for the decision without opinion is always
subject to speculation.” Legal Affairs,
434 So. 2d at 312. “[T]here is no limit
to the grounds that may prompt a per curiam opinion.” Newmons v. Lake
Worth Drainage Dist., for Use & Benefit of Martin,
87 So. 2d 49, 51 (Fla.
1956). “Such uncertainty in itself negates a basis for reliance on an unwritten
decision for guidance or precedence.” Legal Affairs,
434 So. 2d at 313. As
such, our unelaborated per curiam affirmance decision in Hernandez ought
not be cited for the proposition that section 11A-28(10) does not establish a
private cause of action. Hernandez, 124 So. 3d at 931.
We are cognizant of this Court’s finding in De La Campa v. Grifols Am.,
Inc.,
819 So. 2d 940, 943 (Fla. 3d DCA 2002) that Chapter 11A does not
create a private cause of action for employment discrimination.
Id. De La
Campa, however, was issued prior to the 2006 amendment by the
Commission adding section 11A-28(10).
Id. We must give proper
significance to the Commission’s subsequent amendment to the Code
adding an unambiguous section titled “[e]nforcement by private persons.” §
11A-28(10). In revising section 11A-28 to include (10)(a) and (10)(b), it is
evident the Commission intended to include a mechanism affording a
11
charging party the right to pursue a private cause of action for claims of
employment discrimination arising under Chapter 11A.
Other courts, however, have utilized De La Campa to find the amended
version of section 11A-28 creates no private cause of action. These courts
reason that section 11A-28(10) merely provides an administrative relief
scheme relating to employment discrimination matters. State v. Life Alert
Emergency Response,
2012 WL 12887229, at *1 (Fla. Cir. Ct., Miami-Dade
Cnty. Oct. 19, 2019) (citing Id. at 942). When considering the amendment,
the cases rationalize that section 11A-28(10)(a) only “provides for an
administrative relief scheme relating to employment discrimination matters.”
Life Alert,
2012 WL 12887229, at *1; see also Espinoza v. John Bean Techs.
Corp.,
2019 U.S. Dist. LEXIS 176425, at *3–*4 (S.D. Fla., Oct. 9, 2019).
These cases find this section “does allow an aggrieved person to file a
lawsuit independently, but only if the party wishes to pursue the matter
outside of the provisions of the Code.” Life Alert,
2012 WL 12887229, at *1.
We do not believe these cases can be reconciled with the 2006
amendments to Chapter 11A. First, these cases would interpret Chapter
11A’s provisions for obtaining a “notice of right-to-sue” to “commence a civil
action in a court of competent jurisdiction” as providing only the right to sue
under unnamed federal and Florida laws, not under Chapter 11A. But the
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County has no legislative power to require a person to obtain a notice of
right-to-sue from the County before a person can proceed with a cause of
action under federal and Florida laws. If this Court were to utilize the
reasoning in these cases, the requirement in section 11A-28(10)(a) that a
party obtain a notice of right-to-sue prior to commencing a civil action would
be rendered a nullity.
Second, this analysis ignores section 11A-28(10)(b), which discusses
a private enforcement proceeding under the Chapter. If this Court were to
agree that section 11A-28(10)(a) gives a party a right to sue but only “outside
the provisions of the Code,” it would render subsection (b) meaningless. §
11A-28(10). “It is a cardinal rule of statutory interpretation that courts should
avoid readings that would render part of a statute meaningless.” Forsythe v.
Longboat Key Beach Erosion Control Dist.,
604 So. 2d 452, 456 (Fla. 1992).
“Where possible, courts must give full effect to all statutory provisions and
construe related statutory provisions in harmony with one another.”
Id. at
455. The plain and unambiguous language of section (10)(a) and (10)(b)
makes clear that once an aggrieved party has obtained a notice of right-to-
sue it may commence a private enforcement proceeding under this Chapter.
We also note that the facts in Life Alert are distinguishable. The plaintiff
there initially filed a complaint with the Miami-Dade County Commission on
13
Human Relations. Life Alert,
2012 WL 12887229, at *1. Following an
investigation, the director concluded there was probable cause a
discriminatory employment practice had occurred.
Id. This determination
also included a list of recommended remedial actions against the former
employer.
Id. The Director’s determination was not timely appealed by the
employer and the parties subsequently failed to reach a resolution through
conciliation. Thereafter, the plaintiff filed suit with the circuit court.
The plain language of section 11A-28(10)(a) states “[i]f . . . the Director
has been unable to obtain voluntary compliance with the provisions of this
Article, the aggrieved person may demand a notice of right-to-sue from the
Director” and “following receipt of the notice of right-to-sue, the aggrieved
person may commence a civil action in a court of competent jurisdiction
against the respondent named in the complaint.” In Life Alert, there was no
demonstrable non-compliance with the provisions of the Code, and it is
unclear whether the plaintiff ever received a notice of right to sue.
Id. Here,
White received a notice of right to sue from the Commission on Human
Rights after the director was “unable to obtain voluntary compliance.” As
such, White timely commenced a civil action after receipt of a notice of right
to sue. § 11A-28(10)(a).
CONCLUSION
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The plain language of section 11A-28(10)(a) and (b) clearly
establishes an aggrieved individual may pursue a private cause of action
under the Code. Accordingly, we reverse the order dismissing the complaint
with prejudice and remand for further proceedings consistent with this
opinion.
Reversed and remanded.
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