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The Florida Civil Rights Act (FCRA) requires that an employee-plaintiff comply with an administrative procedure with the Florida Commission of Human Relations (FCHR) prior to filing suit.  The purpose of this requirement is to reduce the number of discrimination lawsuits by filtering clearly meritless claims and attempting to resolve disputes before a civil lawsuit may be filed.  These requirements are mandatory.  Often an employee-plaintiff will fail to fulfill these requirements because of impatience, negligence, or a lack of appreciation of the consequences of noncompliance.  Employers can successfully defend against a plaintiff-employee’s failure to abide by these procedures and obtain dismissal of FCRA claims.  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The FCRA creates a mandatory administrative process that must be fulfilled before a plaintiff may file suit.  Maggio v. Florida Dept. of Labor & Employment Sec., 899 So. 2d 1074 (Fla. 2005) (“Under certain circumstances, the Act creates a statutory right to maintain a civil cause of action when a violation occurs. However, the Act first requires that the claimant comply with a set of presuit administrative procedures”).  The system was purposefully designed to limit the amount of discrimination lawsuits by filtering meritless claims and resolving disputes before lawsuits are filed.

Every charging party goes through initial screening by FCHR.  The statute seeks to avoid further congesting court dockets and also to avoid the impact on employers of having to defend against non-meritorious claims, by requiring an initial determination of cause before a litigant may go to circuit court.  Those whose claims are found to lack merit in the initial screening are protected from having their claims extinguished by having the opportunity to get that ruling reversed in the administrative process to which this plaintiff objects.

Accordingly, the FCRA makes strict compliance with the administrative process mandatory before FCRA claims may be brought to court.  A defendant employer that can recognize these procedural shortcomings may be able to prevail on FCRA counts on that basis alone.

A critical part of the FCRA administrative process is FCHR’s determination at the conclusion of its investigation.  The FCHR will issue a letter to the plaintiff which will provide whether the FCHR has found that there is cause to believe that an illegal act occurred.  If cause is found, the employee plaintiff has two options, as described in § 760.11(4), Florida Statutes:

(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.

The election by the aggrieved person of filing a civil action or requesting an administrative hearing under this subsection is the exclusive procedure available to the aggrieved person under this act.

It is a plaintiff’s decision whether to pursue a civil suit or have an administrative hearing.  “Once an election is made, however, it is the exclusive procedure available to the aggrieved person pursuant to the act.”  Gore v. Cmty. Blood Centers of S. Florida, Inc., 890 So. 2d 520 (Fla. 4th DCA 2005).  An employee who makes a § 760.11(4) election to have the matter heard administratively cannot undo that election via a voluntary dismissal to pursue the matter in court.  This is explicit within Fla. Admin. Code r. 60Y-5.008 (7), which in pertinent part states, “[a] Petition for Relief may be dismissed by the Petitioner without order of the administrative law judge […]. The dismissal operates with prejudice with respect to Petitioner’s Chapter 760, F.S., administrative remedies and constitutes final agency action.”

“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.”  Davis v. Bob Evans Farms, LLC, 649 Fed. Appx. 869, 872 (11th Cir. 2016) (affirming dismissal of claims when no cause determination); e.g. Jones v. Bank of Am., 985 F. Supp. 2d 1320, 1329–30 (M.D. Fla. 2013) (dismissing claim for failure to exhaust administrative remedies because Plaintiff failed to fulfill § 760.11(7) administrative hearing).

A plaintiff that elects to pursue a lawsuit must do so within one year of the issuance of the cause determination letter from the FCHR.  § 760.11(5), Fla. Stat. (“A civil action brought under this section shall be commenced no later than 1 year after the date of determination of reasonable cause by the commission”).  This one-year deadline is a statute of limitation that must be filed as a prerequisite to filing suit.  Ross v. Jim Adams Ford, Inc., 871 So. 2d 312, 315 (Fla. 2d DCA 2004) (“The administrative process required by section 760.11 is a presuit procedure, not an element of the cause of action”).

Peter Mavrick is a Fort Lauderdale employment lawyer.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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