Opinion
Case No. 3D99-2539.
Opinion filed September 27, 2000. July Term, A.D. 2000.
An Appeal from the Circuit Court for Miami-Dade County, Fredricka G. Smith, Judge; Lower Tribunal No. 96-4850.
Akerman, Senterfitt Eidson, and Nancy A. Copperthwaite; and Lewis, Fisher, Henderson Claxton, and Frederick J. Lewis, for appellant.
Hogg, Ryce Hudson, and Jesse Hogg, for appellee.
Before GERSTEN, and RAMIREZ, JJ., and NESBITT, Senior Judge.
Defendant, Wells Fargo Guard Services, Inc., appeals a final judgment in a disability discrimination case. Because the plaintiff, Daniel Lehman, filed his complaint prematurely, underSweeney v. Florida Power and Light Co., Inc., 725 So.2d 380 (Fla. 3d DCA 1998), we are compelled to reverse.
Lehman was employed as branch manager of the Miami office of the defendant Wells Fargo from 1989 to 1995, when his employment was terminated allegedly for Lehman's failure to satisfy performance/client retention goals set for his branch. Lehman, however, contended that his termination was really based on Wells Fargo's illegal discrimination against him due to his "disability" of cardiomyopathy. Following certain administrative steps described below, Lehman sued Wells Fargo for disability-based discrimination under the Florida Civil Rights Act [FCRA], §§ 760.01-.11, Fla. Stat. (1995). Wells Fargo filed a motion to dismiss the FCRA complaint, alleging that Lehman's complaint was premature because he failed to exhaust his administrative remedies.
The evidence relevant to the motion to dismiss established that after his termination in July 1995, Lehman filed an employment discrimination claim with the United States Equal Employment Opportunity Commission [EEOC] on September 6, 1995, alleging disability discrimination against Wells Fargo. The evidence further showed that the EEOC and the Florida Commission on Human Relations [FCHR], the state entity with authority to investigate discrimination claims under FCRA, operate under a work-sharing agreement which provides for dual filing of discrimination claims. The form Lehman submitted to EEOC, however, did not specifically request dual-filing with FCHR as the box which provided for such request was left blank. In an attempt to correct this omission, Lehman's attorney wrote to EEOC the next day and requested that the claim be dual filed with the FCHR. In fact, Lehman's counsel received a facsimile from EEOC stating that "this should suffice for establishing that Daniel Lehman's charge was dual filed with the FCHR the same day it was filed w/the EEOC." Despite the statement made in the facsimile, for some unexplained reason FCHR did not receive a copy of the Lehman complaint from EEOC until September 25, 1995. Lehman filed his FCRA complaint after receiving a "right to sue" notice from the EEOC dated February 23, 1996, approximately 180 days from the September 6th filing, but less than 180 days from the September 25th receipt of the claim by FCHR. Under Sweeney, we are compelled to hold that the complaint was not filed under the Florida law until the EEOC, acting under its work sharing agreement with the FCHR, forwarded the complaint to the Florida agency on September 25, 1995. See Sweeney, 725 So.2d at 380-81.
Under section 760.11(4)(a), Florida Statutes, an aggrieved person may not bring a civil action under FCRA unless (a) the commission has made an affirmative determination of "reasonable cause to believe that a discriminatory practice ha[s] occurred," or (b) under section 760.11(8), the commission has failed to act on the complaint for 180 days. As in Sweeney, there was no such determination by FCHR and Lehman filed his complaint before the 180 days had elapsed. Thus, the lawsuit was filed prematurely and it should have been dismissed prior to trial. In light of our decision on the dismissal issue, we decline to address the other points on appeal.
We note that the trial court denied Wells Fargo's motion to dismiss without the benefit of our Sweeney decision.
Reversed and remanded.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.