DEFENDING FLORIDA EMPLOYERS: DISCRIMINATION CLAIM UNDER MIAMI-DADE COUNTY ORDINANCE

A key recurring issue in defending employers against employment discrimination claims is the requirement that the former employee exhaust administrative remedies. Florida laws governing employment discrimination, including the Florida Civil Rights Act and Florida county ordinances, require the employee to file charge of discrimination with an “administrative agency,” i.e., a government agency that processes and investigates the charge of discrimination, before the employee is allowed to file a lawsuit in a Florida court. The employee must wait for the administrative agency to finish its investigation or other duties, as per the requirements of the applicable statute or county ordinance. This is called “exhaustion of administrative remedy.” If the employee fails to exhaust his or her administrative remedy, this can be grounds for the employer to successfully defend the lawsuit. The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Miami-Dade County has an employment discrimination Ordinance that requires an administrative agency (the “Commission”) to determine whether there is “probable cause” for the employee’s claim. The Ordinance generally requires the Commission to make its determination whether there is “probable cause” within 180 days after the employee’s complaint. Importantly, the Ordinance provides that: “If within one hundred eighty (180) days after a complaint is filed alleging discrimination, the [Commission] 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 [Commission], the issuance of which shall terminate the jurisdiction of the [Commission] and the Board over such a complaint.” Miami-Dade County, Fla., Code of Ordinances, ch. 11A, art. IV, § 28(7)(c). Once a probable cause determination is made, however, the Ordinance requires the employee request a hearing within 15 days of its issuance, otherwise the Commission’s order becomes final.

Florida’s Third District Court of Appeal, in Pacheco v. Waldo Acebo, M.D., P.A., 50 Fla.L.Weekly D456 (Fla. 3d DCA 2025), recently ruled in favor of the employer because the employee failed to exhaust her administrative remedies under Miami-Dade County’s Ordinance. In Pacheco, the Commission issued a “no probable cause” determination, but the employee had a right to appeal and a hearing within 15 days, or the decision would be final and enforceable in circuit court. Instead of appealing and asking for a hearing before the Commission, the employee requested a “right to sue” notice, which the Commission denied on the grounds that such a notice is appropriate only before a determination and here a determination of “no probable cause” had already been issued. Undaunted, the employee filed the lawsuit anyway. The employer successfully argued to the trial Judge that the employee’s case must be dismissed for failure to exhaust the administrative remedy. After the Judge dismissed the case, the employee appealed. The Court of Appeal affirmed, stating in pertinent part: “Because Pacheco did not appeal or request a hearing before resorting to the court for relief, we find the trial court properly dismissed the complaint with prejudice for failure to exhaust administrative remedy.” City of Miami v. Gabela, 390 So.3d 65 (Fla. 3d DCA 2023) (“[W]e must give a statute (or ordinance) the plain and ordinary meaning of the words employed by the legislative body, and courts generally may not insert words or phrases in municipal ordinances in order to express intentions which do not appear…If the plain language of the ordinance is unambiguous, we are required to apply its plain meaning and are without power to construe it in a way which would modify, limit, or extend those express terms”).

By contrast to the Miami-Dade County employment discrimination ordinance, Florida’s state-wide employment discrimination law, the Florida Civil Rights Act (“FCRA”), provides a more lenient administrative exhaustion requirement. The FCRA provides in pertinent part that, “[i]f the commission fails to conciliate or determine whether there is a reasonable cause on any complaint under this section within 180 days after the filing of the complaint: (a) An aggrieved person may proceed [to file a civil action] under subsection (4) as if the commission determined that there was reasonable cause.” Florida Statutes § 760.11(8)(a). In other words, the FCRA allows the employee to file a lawsuit in Florida courts if the commission fails, within 180 days, to make a determination or conciliate, concerning the charge of discrimination filed by the employee.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.