ANDRE WHITE,

v.

AUTOZONE INVESTMENT CORPORATION, D/B/A AUTOZONE AUTO PARTS,

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.

2 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 June⁴, 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 September⁹, 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

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.

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.”

(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

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

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

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.”)

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

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

CONCLUSION

15

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.