ANDRE WHITE v. AUTOZONE INVESTMENT CORPORATION, D/B/A AUTOZONE AUTO PARTS

• Court: District Court of Appeal of Florida
• Decided: June 15, 2022
• Docket: 21-0598
• Status: Published

Opinion

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

7 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

12 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

14 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.