DAVIS

v.

BIG BEND HOSPICE, INC.

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2023-2932 _____________________________

SHAZET DAVIS,

Appellant,

v.

BIG BEND HOSPICE, INC.,

Appellee. _____________________________

On appeal from the Circuit Court for Leon County. Lee Marsh, Judge.

August 20, 2025

WINOKUR, J.

Shazet Davis filed an employment discrimination suit against her former employer, Big Bend Hospice, following her termination. The trial court granted summary judgment in Big Bend Hospice’s favor, finding that the action was time-barred. But because Davis’ cause may still accrue under section 760.11(8), Florida Statutes, we reverse.

I

Davis was working for Big Bend Hospice when she underwent open heart surgery in October 2019, and was on medical leave afterward. Davis’ leave expired on January², 2020. When she did

3

III

Davis argues three reasons the trial court erred in granting summary judgment. (1) FCHR did not comply with the requirements of section 760.11(8); (2) The trial court disregarded Joshua, which controls the outcome; and (3) The trial court incorrectly relied on Aleu v. Nova Southeastern Univ., Inc., 357 So. 3d 134 (Fla. 4th DCA 2023), which reached a wrong conclusion of law. While we disagree that Joshua controls, we agree with Davis that the FCHR did not comply with the statute and that Aleu incorrectly applies the statute. Accordingly, we certify conflict with Aleu. A Under the Florida Civil Rights Act of 1992 (FCRA), a person has several options available after the filing of a discrimination charge with FCHR. First, if FCHR finds that reasonable cause exists, the aggrieved person may file either a civil or administrative action. See § 760.11(4), Fla. Stat. Second, if the FCHR finds that no reasonable cause exists, the aggrieved person may then seek an administrative review. See § 760.11(7), Fla. Stat. And third, if the FCHR takes no action on a complaint within 180 days, the aggrieved person may operate as if the FCHR found reasonable cause and proceed under section 760.11(4). See § 760.11(8)(a), Fla. Stat. Here, the FCHR took no action, so subsection (8) applies. Section 760.11(8) reads as follows: If the commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days after the filing of the complaint: (a) An aggrieved person may proceed under subsection (4) as if the commission determined that there was reasonable cause.

4 (b) The commission shall promptly notify the aggrieved person of the failure to conciliate or determine whether there is reasonable cause. The notice shall 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 within¹ year after the date the commission certifies that the notice was mailed. (c) A civil action brought by an aggrieved person under this section must be commenced within¹ year after the date the commission certifies that the notice was mailed pursuant to paragraph (b). (emphasis supplied). Note that when FCHR fails to act on the complaint, it must “promptly notify” the aggrieved person of the right to proceed under subsection (4). See § 760.11(8)(b)–(c), Fla. Stat. The statute establishes clear directions and deadlines when FCHR makes a timely determination. But how these subsections establish a deadline for filing suit when FCHR does not determine reasonable cause within 180 days is less clear. Indeed, the parties advance differing analyses regarding the operation of section 760.11(8), which we address in turn. Davis’ reading of section 760.11(8) incorporates Joshua. Joshua held that “the statute of limitations for causes of action based on statutory liability, section 95.11(3)(f), applies . . . where the Commission has not made a reasonable cause determination within 180 days.” 768 So. 2d at 439. According to Davis, when the FCHR does not act within the prescribed 180 days and does not furnish notice to the aggrieved person (complainant), the limitation period applicable to statutory liability applies, in accordance with Joshua. Under Davis’ reading, until the FCHR certifies that it has provided a complainant with notice of why it did not act within the required 180 days, a complainant is subject to section 95.11(3)(e)’s four-year limitation period, starting on the 181st day after the filing of a discrimination complaint with the FCHR.

8 Sheridan v. State, Dep’t of Health, 182 So. 3d 787, 793 (Fla. 1st DCA 2016). This reading of section 760.11(8) may seem at odds with paragraph (8)(a). A complainant cannot be both subject to a oneyear limitation period from the 181st day, see §§ 760.11(8)(a), 760.11(4), 760.11(5), Fla. Stat., and also a one-year limitation period from the date of the FCHR’s notice. See § 760.11(8)(b)–(c). But these provisions can be harmonized. We conclude that a complainant may proceed as if reasonable cause has been determined by the FCHR when the commission does not act within 180 days but only after the FCHR has served the aggrieved person with the requisite notice under section 760.11(8)(b). Thus, the trial court erred in granting Big Bend Hospice’s motion for summary judgment because under section 760.11(8), Davis’ claim was not time-barred. Because Davis is still waiting on FCHR to complete its ministerial duty of notification and certification, the administrative process has not yet been concluded.² D Davis also argues the trial court improperly relied on the Fourth District’s decision in Aleu. We agree. In Aleu, the complainant filed a discrimination complaint with the EEOC, and eventually the EEOC issued a right-to-sue letter. 357 So. 3d at 135. The Aleu court found that the right-to-sue letter acted as the FCHR’s notice under section 760.11(8) and triggered the one-year limitation period of that subsection. Id. at 141. Because, unlike the complainant in Joshua, the complainant had received notice of the result of the investigation, the Aleu court held that Joshua did not apply. Id. at 141. Aleu recognized that the FCRA expressly defines “the commission” only as FCHR. See id. at 137 (noting that the applicable statutes “refer to a determination by ‘the commission’—

9 defined as the ‘Florida Commission on Human Relations’ in section 760.02(2), Florida Statutes (2015)[.]”). But despite this clear definition, the Aleu court concluded that “‘the commission’ in this context may include the EEOC[.]” Id. We disagree that we are free to substitute clear statutory terms in this manner. Section 760.02(2) provides the sole definition that we require: FCHR is “the commission” as that term is used in chapter 760. See § 760.02(2), Fla. Stat. We cannot decide for ourselves what constitutes “the commission” simply because the identified statutory entity has failed to comply with its statutory duties. See Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001) (“[I]t is a basic principle of statutory construction that courts ‘are not at liberty to add words to statutes that were not placed there by the Legislature.’” (citations omitted)). The Aleu court justified its decision by reading a different part of section 760.11, which permits an aggrieved person to file a complaint with the EEOC “in lieu of” FCHR. See § 760.11(1), Fla. Stat. It thus concluded that “logically the determination of that complaint may be made by the EEOC under sections 760.11(3), (4)(a)–(b), (5), (7), and (8).” Id. at 138. We disagree.³

10 The provision cited by the Aleu court simply provides an alternate means to calculate the date of filing for the purpose of determining whether an administrative discrimination complaint is timely. See § 760.11(1), Fla. Stat. (“Any person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with [FCHR] within 365 days of the alleged violation. . . . The date the complaint is filed with [FCHR] for purposes of this section is the earliest date of filing with the [EEOC], the fair-employment-practice agency, or [FCHR].”). The “in lieu of” provision meets this specific purpose; it is not meant to permit FCHR to relinquish all of its statutory responsibilities to a federal agency. See, e.g., Mitchell v. Palm Beach Cnty. Sch. Bd., 127 So. 3d 707, 708 n.1 (Fla. 4th DCA 2013) (“A determination by the EEOC is not a determination by the FCHR.” (citation omitted)); Jones v. Lakeland Reg’l Med. Ctr., 805 So. 2d 940, 941 (Fla. 2d DCA 2001) (reiterating that an EEOC “notice and dismissal of rights does not amount to a ‘no cause’ finding [by the FCHR] under the [FCRA]” (citation omitted)).⁴ Thus, Ramos, too, fails to lend support to Davis’ position.⁴ In spite of our disagreement with Aleu, the Fourth District’s reasoning in Mitchell appears sound. There, the Fourth District correctly concluded—based on the same statutory language—that a determination by the EEOC is not a determination by the FCHR. See Mitchell, 127 So. 3d at 708 n.1.

11 760.11(8)(b), we certify conflict with Aleu v. Nova Southeastern Univ., Inc., 257 So. 3d 134 (Fla. 4th DCA 2023).5,6 IV Accordingly, the trial court’s order granting Big Bend Hospice’s summary judgment motion is REVERSED.⁷ We certify conflict with the Fourth District’s decision in Aleu, and the Second District’s decision in Ramos.

12

REVERSED, CONFLICT CERTIFIED.

LEWIS, J., concurs; TANENBAUM, J., concurs in the opinion but dissents from certification. _____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Marie A. Mattox and Ashley N. Richardson of Marie A. Mattox, P.A., Tallahassee, for Appellant.

Reynaldo Velazquez and Stepanka Rubio of Jackson Lewis, P.C., Miami, for Appellee.