Opinion
No. 2D21-3991
06-09-2023
Trena Michelle REDDICK, Appellant, v. UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, Appellee.
Patrice A. Pucci of Patrice A. Pucci, P.A., St. Petersburg, for Appellant. Jason A. Pill and Raquel Ramirez Jefferson of Phelps Dunbar LLP, Tampa, for Appellee.
Patrice A. Pucci of Patrice A. Pucci, P.A., St. Petersburg, for Appellant.
Jason A. Pill and Raquel Ramirez Jefferson of Phelps Dunbar LLP, Tampa, for Appellee.
MORRIS, Chief Judge. Trena Michelle Reddick appeals from a final summary judgment entered in favor of the University of South Florida Board of Trustees (USF) in Reddick's discrimination action. Because we conclude that the Florida Commission on Human Relations (FCHR) failed to give Reddick proper notice of her rights in relation to the discrimination action, Reddick's due process rights were violated thereby requiring us to reverse.
BACKGROUND
Reddick, an African American woman, worked for USF's police department. Her supervisor was a Caucasian man. In 2017, USF provided Reddick with notice that she would not be reappointed to her position; the notice was signed by Reddick's supervisor.
In May 2018, Reddick filed a charge of discrimination pursuant to chapter 760 of the Florida Statutes with the FCHR. She alleged discrimination on the basis of race, color, gender, and disability. In March 2019, the FCHR sent a letter to Reddick informing her that because more than 180 days had passed from the time she filed her complaint and because the FCHR had not yet made its determination as to whether there was reasonable cause to believe that discrimination had occurred, Reddick had four options. Those options were (1) permit the FCHR to continue its investigation and ultimately render a determination of reasonable cause or no reasonable cause; (2) file a civil action; (3) file a petition for relief and proceed with an administrative hearing with the Division of Administrative Hearings (DOAH); or (4) withdraw her complaint. The letter did not indicate that if Reddick elected one of the options, she was later foreclosed from electing another. In fact, the letter stated that if Reddick elected to have the FCHR continue its investigation but then subsequently decided to change her election, she needed to notify the assigned FCHR investigator. The letter did not cite to any portion of section 760.11, Florida Statutes (2018). However, the letter provided that if Reddick failed to make an election, the investigation would continue until the FCHR made its determination. Reddick did not respond to the letter, and the FCHR continued its investigation.
The record suggests that there was an earlier version of the same letter. But there is no dispute about the date of the letter, and the parties cite to the March 2019 version. Consequently, that is the version we rely on in this opinion.
Section 760.11 was amended in 2020, but those changes are not applicable to this appeal. See ch. 2020-153, § 3, Laws of Fla.
In June 2019, the FCHR sent Reddick a Notice of Determination of No Reasonable Cause (June 2019 Notice) as well as the actual Determination of No Reasonable Cause. The June 2019 Notice only indicated one option available to Reddick: to request an administrative hearing with DOAH by filing a petition for relief within thirty-five days of the date that the determination was signed. The Notice further provided that "[t]his determination of no reasonable cause will become final if Complainant does not file a Petition for Relief within 35 days, and the [FCHR] will dismiss the complaint."
Based on the June 2019 Notice, Reddick sought an administrative hearing with DOAH, though she always maintained that she preferred to pursue a civil action over administrative action. In September 2019, Reddick filed a pro se motion to withdraw her petition with DOAH in order to pursue a civil action. The DOAH administrative law judge (ALJ) entered an order informing Reddick that she must withdraw her pro se motion or it would be treated as a voluntary dismissal; the ALJ also warned her that her position—that she could withdraw from the administrative action and pursue a civil action—was contrary to Florida law. In October 2019, Reddick filed a pro se motion to proceed with the DOAH petition, but she noted that she was only doing so because she was concerned that a dismissal would prevent her from pursuing a civil action. Reddick subsequently retained counsel who, in December 2019, notified DOAH of Reddick's withdrawal from the administrative process and her election to pursue a civil action. DOAH thereafter dismissed Reddick's petition, closed the file, and relinquished jurisdiction back to the FCHR.
In April 2020, Reddick filed her complaint against USF, alleging discrimination based on her race, color, gender, and disability. USF filed a motion to dismiss based on a lack of subject matter jurisdiction, asserting that because Reddick had already petitioned for relief with DOAH, that was her exclusive remedy. USF's motion was denied, and it thereafter filed its answer and affirmative defenses, denying Reddick's allegations.
In October 2020, USF filed its motion for summary judgment alleging that the trial court lacked subject matter jurisdiction based on Reddick's initial election to file a petition for relief with DOAH; USF maintained that that option was Reddick's exclusive remedy. Ultimately, the trial court granted USF's motion and dismissed Reddick's complaint with prejudice. The trial court explained that the FCHR's March 2019 letter satisfied the notice requirements set forth in section 760.11(4) and (8) because it informed Reddick that the FCHR had not made a reasonable cause determination within 180 days and that Reddick was entitled to proceed under section 760.11(4). The trial court also noted that the March 2019 letter informed Reddick that she could elect one of the four options referenced in the letter, with options two and three informing Reddick that she could either file a civil action or request an administrative hearing with DOAH; the trial court found that options two and three corresponded with the options available under section 760.11(4). The trial court further explained that pursuant to section 760.11(4), once Reddick elected to proceed with an administrative hearing, it became the exclusive remedy available to her and thus foreclosed her ability to file a civil action. The trial court concluded that Reddick was afforded due process through the FCHR's March 2019 letter and through the ALJ's order advising her that if she withdrew from the administrative process, she would not be able to pursue a civil action.
ANALYSIS
We review a final summary judgment de novo. Rodriguez v. Avatar Prop. & Cas. Ins. Co. , 290 So. 3d 560, 562 (Fla. 2d DCA 2020). When reviewing a final summary judgment, "we must consider the evidence in the light most favorable to the nonmoving party, and if the record raises the slightest doubt that an issue might exist, we must reverse the summary judgment." Buck-Leiter Palm Ave. Dev., LLC v. City of Sarasota , 212 So. 3d 1078, 1081 (Fla. 2d DCA 2017) (first citing Atria Grp., LLC v. One Progress Plaza, II, LLC , 170 So. 3d 884, 886 (Fla. 2d DCA 2015) ; and then citing Stroud by Schuette v. Strawn , 675 So. 2d 646, 647 (Fla. 2d DCA 1996) ).
Procedural due process imposes constraints on governmental decisions that
deprive individuals of liberty or property interests. County of Pasco v. Riehl, 620 So. 2d 229, 231 (Fla. 2d DCA 1993). It serves as a vehicle to insure fair treatment through the proper administration of justice where substantive rights are at issue. Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948 (Fla. 2001) (citing Dep't of Law Enforcement v. Real Prop., 588 So. 2d 957, 960 (Fla. 1991) ). Procedural due process requires both fair notice and a real opportunity to be heard "at a meaningful time and in a meaningful manner." Keys Citizens, 795 So. 2d at 948 (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ). The specific parameters of the notice and opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding. Keys Citizens, 795 So. 2d at 948 (citing Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) ); see also Borden v. Guardianship of Borden–Moore, 818 So. 2d 604, 607 (Fla. 5th DCA 2002).
Massey v. Charlotte County , 842 So. 2d 142, 146 (Fla. 2d DCA 2003) ; see also Schimenti v. Sch. Bd. of Hernando Cnty. , 73 So. 3d 831, 833 (Fla. 5th DCA 2011) ("Due process is flexible and calls for such procedural protections as the particular situation demands." (citing Morrissey v. Brewer , 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) )). "An individual's procedural due process rights are violated when a deprivation of a right has occurred without notice and an opportunity to be heard." Joshua v. City of Gainesville , 768 So. 2d 432, 438 (Fla. 2000). "When assessing whether or not a violation of due process has occurred, ‘a court must first decide whether the complaining party has been deprived of a constitutionally protected liberty or property interest.’ " Id. (quoting Econ. Dev. Corp. v. Stierheim , 782 F.2d 952, 953-54 (11th Cir. 1986) ). If there has been no deprivation of a protected interest, "there can be no denial of due process." Id. (quoting Stierheim , 782 F.2d at 954 ).
In this case, Reddick's right to relief is governed by section 760.11. Section 760.11(3) provides in relevant part that where a person files a charge of discrimination, the FCHR "[w]ithin 180 days of the filing of the complaint ... shall determine if there is reasonable cause to believe that discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992 [hereinafter Florida Civil Rights Act]." Section 760.11(8) provides that "[i]n the event that the [FCHR] fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the [FCHR] determined that there was reasonable cause." Section 760.11(4), in turn, provides that where the FCHR has determined that there is reasonable cause to believe that discrimination has occurred in violation of the Florida Civil Rights Act, an aggrieved person may either bring a civil action against the party named in the complaint or request an administrative hearing under sections 120.569 and 120.57 of the Florida Statutes.
There is no dispute that the FCHR failed to render a reasonable or no reasonable cause determination within 180 days of the filing of Reddick's complaint. Thus pursuant to section 760.11(8), Reddick had a vested right to pursue a civil action or seek an administrative hearing as set forth in section 760.11(4). This right has been deemed a protected property interest. See Joshua , 768 So. 2d at 439 ; see also Logan v. Zimmerman Brush Co. , 455 U.S. 422, 430-31, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (agreeing that "a state-created right to redress discrimination" is a constitutionally protected property interest). Consequently, prohibiting a claimant from seeking relief for violations of the Florida Civil Rights Act before sufficient due process has been afforded, which includes "both notice and the opportunity to be heard[,] constitutes a deprivation of constitutionally protected rights." Joshua , 768 So. 2d at 439. A claimant's "constitutionally protected rights should not be denied because the [FCHR] failed to [provide] adequate notice." Id . While this case does not involve a complete prohibition on Reddick's constitutionally protected right to seek relief for a violation of the Florida Civil Rights Act, it does involve prohibiting Reddick from utilizing the procedure of her choice to address her claim. For that reason, she was entitled to adequate notice of her options before such a restriction was imposed.
See Woodham v. Blue Cross & Blue Shield of Fla., Inc. , 829 So. 2d 891, 898-99 (Fla. 2002) (analyzing section 760.11(3), (4), (7), and (8), and concluding that when read together, the provisions "clearly establish[ ] that whenever the FCHR fails to make its determination within 180 days, even if the untimely determination is made before the filing of a lawsuit, the claimant may proceed to file a lawsuit under subsection (4)"). While Woodham was decided on a different basis, its analysis of section 760.11, especially subsections (4) and (8), supports the conclusion that Reddick had a vested right to seek relief under subsection (4). See also Van Hoek v. McKesson Corp ., No. 8:17-cv-02447-T-02AAS, 2020 WL 533940 at *6 (M.D. Fla. 2020) (finding the reasoning of Woodham persuasive and concluding that where the FCHR failed to issue its reasonable or no reasonable cause determination within 180 days after the complaint was filed, the claimant was free to proceed under section 760.11(4) ). Although this point is not disputed by USF, we note that the rights afforded to claimants under subsection (4) are different than the rights afforded under subsection (7). Specifically, section 760.11(4) provides that a claimant may either bring a civil action or request an administrative hearing where the FCHR determines that there is reasonable cause to believe a discriminatory practice has occurred. In contrast, section 760.11(7), which applies when the FCHR makes a no reasonable cause determination, provides that in that situation, "the [FCHR] shall dismiss the complaint," and it permits claimants to request an administrative hearing within thirty-five days of the date of the determination. Section 760.11(7) further provides that "[i]f the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred." Subsection (7) goes on to state that if an ALJ finds that a violation of the Florida Civil Rights Act has occurred, he or she shall issue a recommended order, and the FCHR then has a specified time in which to adopt, reject, or modify the recommended order. Finally, subsection (7) provides that if, in the final order, the FCHR determines that a violation of the Florida Civil Rights Act has occurred, the claimant may bring a civil action under subsection (5) as if there has been a reasonable cause determination or accept the affirmative relief offered by the FCHR, but not both. Thus subsection (7) does not provide a claimant the option to pursue a civil action immediately upon a no reasonable cause determination; rather, a claimant may only do so where an ALJ finds a violation of the Florida Civil Rights Act which is then adopted by the FCHR in a final order.
Though Joshua was decided on a different basis—involving the issue of the statute of limitations where the FCHR has not made a reasonable or no reasonable cause determination within 180 days—we do not find that that factual distinction renders the due process principles discussed therein inapplicable to this case. See Joshua , 768 So. 2d at 433.
We acknowledge that nothing in section 760.11(4) explicitly states that the FCHR must notify a claimant of his or her options when proceeding under that subsection. However, to construe that subsection to mean that the FCHR has no such obligation, especially where the FCHR fails to make a reasonable or no reasonable cause determination within 180 days as required by section 760.11(3) —resulting in a claimant's ability to proceed under section 760.11(4) —is contrary to the legislature's directive to liberally construe the statute so as "to preserve and promote access to the remedy intended." Joshua , 768 So. 2d at 435.
For due process purposes, a notice is adequate if it reasonably conveys the required information and provides a reasonable time for parties to appear and present their positions before the factfinder. See Keys Citizens , 795 So. 2d at 948 ; Carmona v. Wal-Mart Stores, E., LP , 81 So. 3d 461, 464 (Fla. 2d DCA 2011). The problem in this case is that the FCHR's March 2019 letter failed to clearly inform Reddick as to what her options were. While that letter did indicate, in options two and three, that Reddick could pursue a civil action or seek an administrative hearing, it also informed her that she could continue to wait for the FCHR to make its reasonable or no reasonable cause determination (option one) or withdraw her complaint (option four). It further informed her that if she failed to make an election from one of those four options, the FCHR would continue its investigation. Crucially, that notice did not contain the same exclusivity language that section 760.11(4) contains. That is, it did not inform Reddick that if she elected one of the options, she was later foreclosed from making a different election. In fact, it suggested the opposite by providing that if Reddick elected to have the FCHR continue its investigation but later decided to change her election, she needed to notify the FCHR investigator assigned to her case. While USF contends that the "changing of election" option only applied where a claimant permitted the FCHR to continue its investigation and that it "preserved the exclusivity between requesting an administrative hearing or filing a civil action," we question how a claimant would infer that from the letter, especially where the letter failed to even reference section 760.11(4), the section then applicable to Reddick's claim.
Subsection (4) provides in relevant part that "[t]he 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 pursuant to this act." While both parties make extensive arguments about whether this language prevented Reddick from pursuing a civil action once she elected to proceed with the administrative process, we need not reach that issue due to our determination that Reddick's due process rights were violated by the insufficient March 2019 letter.
Contrary to the trial court's finding, Reddick was not informed—pursuant to section 760.11(8) —that because the FCHR failed to make its reasonable or no reasonable cause determination within 180 days, she was permitted to proceed under section 760.11(4) as if the FCHR determined there was reasonable cause to believe that a violation of the Florida Civil Rights Act had occurred. Nor was she informed that section 760.11(4) contained exclusivity language. And while the trial court found that options one (permitting the FCHR to continue its investigation) and four (withdrawing her complaint) were consistent with Reddick's options under section 760.11, we conclude that the inclusion of option one was confusing at best. Because Reddick was, at that time, permitted to proceed under subsection (4) as if the FCHR determined there was reasonable cause to believe a violation of the Florida Civil Rights Act had occurred, there would be no need to permit the FCHR to continue its investigation. This only further supports our conclusion that the March 2019 letter did not constitute adequate notice of Reddick's rights under section 760.11(4) and (8).
We note that in its order, the trial court solely addressed the adequacy of the notice in the March 2019 letter. The trial court did not address the June 2019 Notice. Our disposition is based on the trial court's erroneous conclusions that the March 2019 letter satisfied the requirements of section 760.11(4) and (8) and that Reddick was afforded adequate due process. However, we note that the June 2019 Notice did not cure the inadequacies of the March 2019 letter. This is because the June 2019 Notice did not inform Reddick that she was still entitled, pursuant to section 760.11(4), to pursue a civil action. Rather, it is apparent that the June 2019 Notice was based on section 760.11(7), and it solely informed Reddick of her right to seek an administrative hearing as provided in that subsection. As we have explained herein, the rights afforded in section 760.11(4) are different than the rights afforded in section 760.11(7). Thus the June 2019 Notice was not sufficient to rectify the problematic March 2019 letter.
For these reasons, the trial court erred by granting final summary judgment in favor of USF. Accordingly, we reverse and remand for further proceedings.
Reversed and remanded.
CASE, JAMES, R., ASSOCIATE SENIOR JUDGE, Concurs.
ATKINSON, J., Concurs in result only.
Atkinson, Judge, Concurring in result only.
I agree with the majority that Reddick was not provided with satisfactory notice. However, I contend that the reversible error was ultimately of a different character. The trial court did err when it considered the notice requirements to have been satisfied by FCHR's March 2019 letter announcing that it had not yet made a reasonable cause determination; however, the effectual error was later denying Reddick the choice to make an election under section 760.11(4), Florida Statutes (2018), based on the mistaken conclusion that her right to such election had been extinguished when she responded to FCHR's June 2019 letter sent pursuant to section 760.11(7).
The trial court's conclusion that the March 2019 letter satisfied the notice requirement was erroneous. Moreover, the FCHR's subsequent June 2019 letter contradicted the March 2019 letter and affirmatively misled Reddick with regard to her procedural rights. Regardless of its contents, the March 2019 letter could not satisfy the FCHR's obligation to provide notice to Reddick because it was sent before the FCHR made a determination as to whether or not there was reasonable cause. The applicable version of section 760.11 requires the FCHR to provide the requisite notice after it makes a determination of whether or not there is reasonable cause: "When the commission determines whether or not there is reasonable cause, the commission by registered mail shall promptly notify the aggrieved person and the respondent of the reasonable cause determination, the date of such determination, and the options available under this section."See § 760.11(3) (emphasis added).
In 2020, section 760.11 was amended to add an additional notice requirement that arises when the FCHR fails to make a reasonable cause determination within 180 days after the complaint was filed. See § 760.11(8)(b), Fla. Stat. (2020) (requiring the FCHR to "promptly notify the aggrieved person of the failure to conciliate or determine whether there is reasonable cause [within the 180-day time limit]" and to "provide the options available to the aggrieved person under subsection (4) and inform the aggrieved person that he or she must file a civil action within 1 year after the date the commission certifies that the notice was mailed").
The March 2019 letter was accurate in at least one respect: it notified Reddick that she could at that time proceed by administrative hearing or civil action. This was true due to the passing of the 180 days without the FCHR having made a reasonable cause determination. See § 760.11(4). But that does not satisfy the statutory requirement that when the FCHR determines whether or not there is reasonable cause, it must "promptly notify" her of "the options available under this section"—i.e., notify her of all her options after the FCHR's determination has been made. See § 760.11(3).
It is at that point—after the FCHR has taken action affecting her interests—that the notice requirement is statutorily required under section 760.11(3) but also most necessary: what rights the aggrieved person has depends on what determination has been made by the FCHR—administrative hearing or civil action if the determination is that there is reasonable cause, § 760.11(4), versus only an administrative hearing if the determination is that there is no reasonable cause, § 760.11(7). See Burnett Int'l Coll. v. Bd. of Nursing , 316 So. 3d 763, 766 (Fla. 1st DCA 2021) ("Due process requires that a person with substantial interests being determined by an agency must be given notice sufficient to provide a clear point of entry." (citing Capeletti Bros., Inc. v. State, Dep't of Transp. , 362 So. 2d 346, 348 (Fla. 1st DCA 1978) )); cf. § 120.569(1), Fla. Stat. (2018) ("Parties shall be notified of any order, including a final order. ... Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68 ; shall indicate the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply.").
After the FCHR finally made its untimely determination of no reasonable cause, it was required to notify Reddick of her procedural rights. See § 760.11(3) (requiring that an aggrieved person be "promptly notif[ied]" "[w]hen the commission determines whether or not there is reasonable cause" of "the options available under this section"); cf. Perry v. Dep't of Child. & Fams. , 220 So. 3d 546, 550 (Fla. 3d DCA 2017) ("[T]he relevant administrative rules expressly establish a SNAP recipient's 'clear point of entry' into the administrative hearing process as occurring when DCF makes a determination regarding the person's actual receipt of SNAP benefits, rather than when DCF makes a preliminary determination that might affect those benefits in the future."). However, the June 2019 letter the FCHR sent after it made its determination regarding reasonable cause did not comply with the notice requirement in section 760.11(3) because it did not inform Reddick of all the options that were available to her at that time—including both administrative proceedings and a civil action. See § 760.11(3) (requiring the FCHR notify an aggrieved person of "the options available under this section"). Due to the untimeliness of the FCHR's reasonable cause determination, the "available" "options" of which notice was required pursuant to section 760.11(3) included not only the right to an administrative proceeding, but also a right to file a civil action. See § 760.11(8) (allowing "an aggrieved person [to] proceed under subsection (4)" and make an election between a civil action and an administrative hearing "as if the commission determined that there was reasonable cause" when FCHR has "fail[ed] to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint"). Instead, the FCHR sent Riddick a point-of-entry letter notifying her of the agency action affecting her interests but providing her with only the options available under section 760.11(7) to an aggrieved person on whose claim the FCHR has made a timely determination of no reasonable cause within 180 days. The June 2019 letter offered only an administrative hearing, absent which her claim would be barred, and failed to notify her of her right to proceed under section 760.11(4), which offered the additional option of filing a civil action.
Because the June 2019 letter did not notify Reddick of all her options available under the statute, it could not have served to satisfy the FCHR's statutory notice requirement. The June 2019 letter—the only one that temporally could satisfy the notice requirement under the applicable version of the statute—did not comply with the statutory requirement to notify the aggrieved person of the already made "reasonable cause determination" and all of the aggrieved person's "options available under this section." § 760.11(3). In other words, the March 2019 letter was statutorily premature, and the June 2019 letter was statutorily underinclusive.
As such, Reddick never got the notice to which she was statutorily entitled—notice occurring after the agency action affecting her interests and fully informing her of all the procedural rights that had arisen as a consequence of that agency action. After 180 days has passed without the FCHR having made a determination of whether there is reasonable cause, nothing in the statute suggests that Reddick's right to file either a civil action or request an administrative hearing under section 760.11(4) is later terminated by a subsequent, untimely determination letter. See § 760.11(8) ("In the event that the commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the commission determined that there was reasonable cause."). While USF concedes that Reddick's right to proceed under section 760.11(4) by filing a civil action was not extinguished, it argues that Reddick did make an election under section 760.11(4) —to proceed at DOAH—after receiving the June 2019 letter and that this election was "exclusive"—i.e., final and irrevocable—pursuant to the language of 760.11(4). See § 760.11(4) ("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 pursuant to this act."). USF is mistaken.
In order to invoke the exclusivity clause in favor of its argument that Reddick's initial response to the June 2019 letter constituted an irrevocable election, USF must argue that the FCHR and Reddick were operating under section 760.11(4) when the FCHR sent the June 19 letter and Reddick responded to it. That argument fails. The FCHR's June 2019 letter was an agency action letter providing a point of entry under section 760.11(7) after announcing that it had affected Reddick's interests by denying reasonable cause. The letter specifically invoked section 760.11(7), provided Reddick with only the option to proceed at an administrative hearing, and informed her that her claim would be barred if she did not request such a hearing within thirty-five days. See § 760.11(7) ("If the commission determines that there is not reasonable cause to believe that a violation ... has occurred, the commission shall dismiss the complaint. The aggrieved person may request an administrative hearing under ss. 120.569 and 120.57, but any such request must be made within 35 days of the date of determination of reasonable cause .... If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred."). The previously provided March 2019 letter alerting Reddick of procedural rights that included those found in section 760.11(4) —sent prematurely in derogation of the notice requirement of the applicable version of the statute, see § 760.11(3) —cannot transform the subsequent June 19 letter offering limited procedural rights under section 760.11(7) into something it was not.
Thus, Reddick's response to the June 2019 letter was not an election under section 760.11(4) ; rather, it was a response to an agency action letter filed pursuant to section 760.11(7) offering only a point of entry to an administrative proceeding. As such, the exclusivity clause of section 760.11(4) was not applicable.
USF's position creates a heads-I-win-tails-you lose predicament for Reddick: if operating under section 760.11(7), Reddick is only entitled to an administrative hearing; if operating under section 760.11(4), then Reddick made an exclusive election to proceed at an administrative hearing. However, the parties were always operating under section 760.11(3), which included the statute's notice requirement and demands that after making a determination, the FCHR must promptly notify the aggrieved person of all her options under the statute; the FCHR never did that. By the time of the June 2019 letter—the only correspondence that could possibly serve as the postdetermination notice required by section 760.11(3) —the FCHR had already failed to make a determination within 180 days, and Reddick had a right to a civil action under section 760.11(4) by virtue of the clause in section 760.11(8) allowing her to operate as though there had been a determination that there was reasonable clause.
USF, the FCHR, and the trial court have erroneously treated Reddick's initial decision to proceed in an administrative hearing as an "exclusive" election made pursuant to section 760.11(4). But the FCHR sent a section 760.11(7) letter; section 760.11(7) does not contain the exclusivity provision; and Reddick's response to the June 2019 (subsection (7) point-of-entry) letter was not irrevocable and did not foreclose her right under section 760.11(4) to file a civil action—which she explicitly reserved the right to do when she initially responded to the June 2019 subsection (7) letter . The election described in section 760.11(7) does not include an exclusivity clause, presumably because it is not a choice at all—it is a deadline within which an aggrieved person must invoke the only option available to her when the FCHR has made a timely determination that there is no reasonable cause. Under section 760.11(7), an aggrieved person can request an administrative hearing within thirty-five days or have her claim barred. In other words, at the time she responded to the June 2019 subsection (7) letter, she was not making an "exclusive" section 760.11(4) election—she was merely responding to the section 760.11(7) point-of-entry notice in an abundance of caution (as her explicit reservation of the right to file a civil action indicated).
In effect, USF has sought to turn the FCHR's statutory non-compliance to its advantage by capitalizing on the FCHR's failure to provide the fully informative statutory notice that was required in section 760.11(3) and capitalizing on the FCHR's untimeliness by invoking the exclusivity requirement applicable to an election made under section 760.11(4), which is only relevant when the FCHR has failed to make its reasonable cause determination by the 180-day deadline. But neither USF nor the FCHR can have its cake and eat it too. The FCHR cannot send a section 760.11(7) no-reasonable-cause determination letter to an aggrieved person and treat the aggrieved person's response to that letter as a section 760.11(4) election based on the untimeliness (past the 180-day deadline) of its reasonable cause determination. The trial court did not lack subject matter jurisdiction to hear Reddick's civil action because Reddick had not made an "exclusive" election under section 760.11(4) to proceed in an administrative proceeding.
Despite the insufficiency of the notice Reddick received, she always reserved, and never lost, her statutory right to proceed in a civil action. The trial court's error was not merely a failure to recognize the statutory and constitutional insufficiency of the FCHR's notice to Reddick. Ultimately it erred by failing to recognize Reddick's right to make the section 760.11(4) election when she did; by mistakenly treating Reddick's response to the Hobson's choice presented in the June 2019 (subsection (7) point-of-entry) letter as an "exclusive" election under section 760.11(4), the trial court erroneously foreclosed Reddick's right to ever actually exercise her section 760.11(4) election at all. Because Reddick never made an "exclusive" election under section 760.11(4) to proceed at an administrative proceeding, the trial court had subject matter jurisdiction to hear her claim in a civil action, and it erred by granting USF's motion to dismiss.