Washington County School Board, Calhoun County School Board v. Davis

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2023-1096

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WASHINGTON COUNTY SCHOOL

BOARD, CALHOUN COUNTY

SCHOOL BOARD, JACKSON

COUNTY SCHOOL BOARD AND

PANHANDLE AREA EDUCATIONAL

CONSORTIUM, d/b/a PAEC,

Petitioners,

v.

TONY DAVIS,

Respondent.

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Petition for Writ of Certiorari—Original Jurisdiction.

January 23, 2025

PER CURIAM.

The Jackson County School Board (JCSB) petitions for writ of

certiorari seeking to quash the trial court’s denial of its motion for

summary judgment on Respondent Tony Davis’s complaint raising

retaliation claims. JCSB alleges that Mr. Davis failed to comply

with presuit administrative requirements as to certain retaliatory

refusal-to-hire claims, thereby depriving the trial court of

jurisdiction to decide those claims. We conclude that the trial court

departed from the essential requirements of the law by denying

JCSB summary judgment because Mr. Davis failed to timely file a

complaint or charge with regard to the at-issue claims.

Prior to seeking employment with JCSB, Mr. Davis was

previously employed by the Washington County School Board

(WCSB) and the Calhoun County School Board (CCSB). Mr. Davis

also filed suit against WCSB and CCSB alleging in each suit that

the defendant school board violated the Florida Civil Rights Act

(FCRA); Mr. Davis’s suit against WCSB was filed and settled in

2006, and his suit against CCSB was filed in 2014 and settled in

2015. Mr. Davis then applied for several open physical education

and paraprofessional positions with JCSB but was denied

employment.

Mr. Davis then filed the underlying complaint, alleging in part

that JCSB denied him employment as retaliation for filing the

previous suits against WCSB and CCSB. The defendants filed a

motion for summary judgment in which JCSB argued Mr. Davis

failed to exhaust administrative remedies related to three of the

denied employment positions. Specifically, JCSB asserted Mr.

Davis did not timely file charges with the Florida Commission on

Human Relations (FCHR) or the Equal Employment Opportunity

Commission (EEOC) alleging unlawful retaliatory acts as required

per section 760.11(1), Florida Statutes. Section 760.11(1) requires

charges alleging retaliation be filed within 365 days from the date

of the violation, but Mr. Davis filed his claim with the EEOC more

than 365 days after the hiring decisions in three of the jobs he

applied for were made. The trial court denied summary judgment,

stating “[Mr. Davis]’s claims are, in fact, timely pursuant to the

continuing action doctrine and/or was like or related to, or grew

out of, the allegations contained in his EEOC charge.”

On appeal, JCSB seeks certiorari relief arguing the court

departed from the essential requirements of law in denying its

motion for summary judgment because the trial court erred in its

determination that Mr. Davis complied with presuit requirements

and exhausted his administrative remedies. We agree.

To obtain certiorari relief, the petitioner must establish “(1) a

departure from the essential requirements of the law, (2) resulting

in material injury for the remainder of the case (3) that cannot be

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corrected on post judgment appeal.” Fla. Fish & Wildlife

Conservation Comm’n v. Jeffrey, 178 So. 3d 460, 464 (Fla. 1st DCA

2015) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d

812, 822 (Fla. 2004)). “The latter two elements—which are often

collectively referred to as ‘irreparable harm’—are jurisdictional

and must be considered first.” Id. Accordingly, we initially address

whether JCSB demonstrated irreparable harm before analyzing

whether the order on appeal departs from the essential

requirements of the law.

Prior to filing a suit alleging a violation of the FCRA, codified

under chapter 760, Florida Statutes, a plaintiff must file an

administrative charge for the alleged violation with either the

FCHR or the EEOC, thereby fulfilling the requirement to exhaust

administrative remedies. See § 760.11(1), Fla. Stat. The

administrative process is initiated by timely filing a charge of

discrimination with the FCHR “within 365 days of the alleged

violation.” Id.; see also Abadi v. Walt Disney World Parks &

Resorts, 338 So. 3d 1101, 1103 (Fla. 1st DCA 2022). The supreme

court has recognized the granting of certiorari relief is appropriate

to implement legislatively adopted policy concerning prerequisites

which must be followed prior to proceeding with certain claims.

See Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995).

Failure of a plaintiff to comply with presuit requirements

supports certiorari jurisdiction because the statutes cannot be

“meaningfully enforced post-judgment because the purpose of the

pre-suit screening is to avoid the filing of the lawsuit in the first

instance.” See Bradshaw v. Bott, 205 So. 3d 815, 817 (Fla. 4th DCA

2016) (quoting Univ. of Cent. Fla. Bd. of Tr. v. Turkiewicz, 21 So.

3d 141, 145 (Fla. 5th DCA 2009)). “Certiorari review is ‘intended

to fill the interstices between direct appeal and the other

prerogative writs’ and allow a court to reach down and halt a

miscarriage of justice where no other remedy exists; it ‘was never

intended to redress mere legal error.’” Williams v. Oken, 62 So. 3d

1129, 1133 (Fla. 2011) (quoting Broward Cnty. v. G.B.V. Int’l, Ltd.,

787 So. 2d 838, 842 (Fla. 2001)). Here, irreparable harm necessary

for certiorari relief is present because Mr. Davis failed to satisfy

the required administrative remedies.

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It is undisputed that Mr. Davis did not timely file a complaint

or charge with the FCHR or the EEOC alleging discriminatory

hiring practices as to the at-issue positions for which he was denied

employment. JCSB rendered its hiring decisions for Job No. 933

on May 18, 2015, for Job No. 936 on May 21, 2015, and for Job No.

1065 on August 3, 2015. Mr. Davis filed a form charge of

discrimination with the EEOC regarding these positions on

August 3, 2016, well outside the 365-day period for Job Nos. 933

and 936 and one-day past the prescribed period for Job No. 1065.

Despite the untimely filing, Mr. Davis argues that JCSB cannot

demonstrate irreparable harm would follow from the denial of

summary judgment as to those positions because his complaint

would proceed on the remaining claims of retaliatory refusal to

hire. We disagree for two reasons.

First, a base reading of section 760.11(1) supports JCSB’s

position. The subsection directs “any person aggrieved by a

violation” of the FCRA to file a complaint with the FCHR or EEOC

within the prescribed period. § 760.11(1), Fla. Stat. Mr. Davis pled

the hiring decisions for Job Nos. 933, 936, and 1065 were

discriminatory or retaliatory, each representing a singular

violation of the FCRA. Second, despite Mr. Davis’s contention that

irreparable harm cannot occur where an entire claim is not

dispensed, courts may parse out and dismiss claims for which

administrative remedies or presuit requirements were not

exhausted. See, e.g., Stuart v. Jefferson Cnty. Dep't of Hum. Res.,

152 F. App’x 798, 800 (11th Cir. 2005) (where underlying

complaint alleged multiple claims for discrimination in failing to

promote, appellate court affirmed dismissal of singular claim for

failure to timely file EEOC charge within prescribed period);

Gardner v. Madison Cnty. Sch. Bd., No. 4:15cv121-MW/CAS, 2016

WL 9506040, at *2 (N.D. Fla. Jan. 22, 2016); Nelson v. Cnty. of

Pima, No. CV-21-00455-TUC-JCH, 2023 WL 112787 (D. Ariz. Jan.

5, 2023).

We turn to question of whether the order on appeal departs

from the essential requirements of the law. “A departure from the

essential requirements of the law ‘is something more than a simple

legal error’ . . . ‘[t]here must be a violation of a clearly established

principle of law resulting in a miscarriage of justice.’” Sch. Bd. of

Hillsborough Cnty. v. Woodford, 270 So. 3d 481, 484 (Fla. 2d DCA

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2019) (citations omitted). JCSB contends the court plainly erred in

its determination that Mr. Davis’s claims were timely filed

pursuant to the continuing violation doctrine or were like or

related to, or grew out of, the allegations made in his EEOC

charge.

We first address the court’s determination that Mr. Davis

timely filed his charge with EEOC per the continuing violation

doctrine. The Eleventh Circuit recently explained:

A prior violation of a plaintiff’s constitutional rights is not

a continuing violation simply because its effects linger in

the present. Instead, we must “distinguish[] between the

present consequence of a one time violation, which does

not extend the limitations period, and the continuation of

the violation into the present which does. . . . Only

ongoing violations satisfy the continuing violation

doctrine and remain timely despite accruing outside the

statutory limitation period.

Doe as Next Friend of Doe #6 v. Swearingen, 51 F.4th 1295, 1305

(11th Cir. 2022) (citations omitted). Put another way, an allegation

that an act of discrimination represents a continuing violation

requires a continuity between a violative action and subsequent

action such that the latter is a direct extension of the former and

represents one continuous violation. But “discrete discriminatory

acts are not actionable if time barred, even when they are related

to acts alleged in timely filed charges. Each discrete discriminatory

act starts a new clock for filing charges alleging that act.” Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

In Morgan, the Supreme Court determined “42 U.S.C. §

2000e–2 explains in great detail the sorts of actions that qualify as

‘[u]nlawful employment practices’ and includes among such

practices numerous discrete acts.” Id. at 112. “We have repeatedly

interpreted the term ‘practice’ to apply to a discrete act or single

‘occurrence,’ even when it has a connection to other actions.” Id.;

see also Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S.

618, 638 (2007) (“A discrete act of discrimination is an act that in

itself ‘constitutes a separate actionable unlawful employment

practice’ and that is temporally distinct.”). Discrete acts “are easy

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to identify” and include such as practices like “termination, failure

to promote, denial of transfer, or refusal to hire.” Morgan, 536 U.S.

at 114; see also E.E.O.C v. Joe’s Stone Crabs, Inc., 296 F.3d 1265,

1272 (11th Cir. 2002) (discussing the discriminatory basis for a

refusal to hire as “discrete, one-time employment events”);

Williams v. Sch. Bd. of Polk Cnty., Fla., No. 8:14-cv-03199-T-

27AEP, 2015 WL 8773286, at *2 (M.D. Fla. Dec. 14, 2015) (denying

that the refusal to hire constitutes a continual action).

Turning back to the instant appeal, Mr. Davis was refused

employment as to Job Nos. 933, 936, and 1065. The trial court’s

acceptance of his contention that each denial of employment

represents a singular, continuous violation does not accord with

Morgan and its treatment of refusals to hire as discrete acts.

The trial court alternatively concluded that the at-issue hiring

decisions were “like or related to, or grew out of, the allegations

contained in his EEOC charge.” The order on appeal cites for

support Gregory v. Georgia Department of Human Resources, 355

F.3d 1277 (11th Cir. 2004). In Gregory, the plaintiff doctor filed a

presuit discrimination charge with the EEOC alleging

discriminatory termination and then filed with the court a

complaint alleging discriminatory termination and retaliation. Id.

at 1278–79. The Eleventh Circuit determined that the plaintiff’s

failure to allege retaliation in her EEOC charge will not preclude

a cause of action for retaliation in a subsequent complaint because

“[the plaintiff] stated facts from which a reasonable EEOC

investigator could have concluded that what she had complained

about is retaliation[.]” Id. at 1280.

Gregory centered on whether the facts underlying a charge for

discrimination could support a suit alleging retaliation even if

retaliation was not stated in the EEOC charge. Here, the issue is

whether Mr. Davis complied with statutory presuit requirements

and exhausted his administrative remedies for three specific

hiring decisions. Mr. Davis’s EEOC charge form identifies the

discriminatory act at issue as a “continuous action” and states that

he “has applied for 70 or more jobs for which is he qualified for and

has been denied employment due to his prior lawsuits against

county school boards.” Yet under the rationale of Morgan, refusals

to hire are “discrete discriminatory acts are not actionable if time

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barred, even when they are related to acts alleged in timely filed

charges.” Morgan, 536 U.S. at 113. Even though Mr. Davis may

have alleged a continuous action and even if the refusals to hire

may be related, each violation must be timely pled within the

prescribed period. As such, the trial court erred in accepting that

Mr. Davis timely exhausted his administrative remedies based on

the determination that the at-issue hiring decisions related to, or

grew out of, the filed EEOC charge.

As to Mr. Davis’s “tipsy coachman” argument that the

doctrine of equitable modification supports affirmance, we

disagree. Also known as equitable tolling, “the doctrine . . . was

developed to permit under certain circumstances the filing of a

lawsuit that otherwise would be barred by a limitations period.”

Machules v. Dep’t of Admin., 523 So. 2d 1132, 1133 (Fla. 1988). In

other words, “the applicable limitations period [does] not begin to

run ‘until the facts which would support the cause of action are

apparent or should be apparent to a person with a reasonably

prudent regard for his [or her] rights.’” Jones v. Dillard's, Inc., 331

F.3d 1259, 1264 (11th Cir. 2003) (citation omitted). Mr. Davis

asserts the prescribed period must be measured from the date he

learned of the refusal to hire as a discriminatory or retaliatory act

rather than the date the decision was made. We disagree.

“Generally, the tolling doctrine has been applied when the

plaintiff has been misled or lulled into inaction, has in some

extraordinary way been prevented from asserting his rights, or has

timely asserted his rights mistakenly in the wrong forum.”

Machules, 523 So. 2d at 1134; see also Jones v. Wynne, 266 F. App’x

903, 906 (11th Cir. 2008); Manning v. Carlin, 786 F.2d 1108, 1109

(11th Cir. 1986); Fulford v. Miami-Dade Cnty., 219 F. Supp. 3d

1248, 1254 (S.D. Fla. 2016). Here, Mr. Davis does not argue any

action on part of JCSB to conceal certain facts or to mislead Mr.

Davis as to his rights. Rather, he contends that the doctrine

applies because he found out about the alleged discriminatory or

retaliatory basis for his denials of employment “in or around 2016.”

But this reflects a misunderstanding of the foundation required for

an equitable tolling of the limitations period, as there must be

proffered evidence of a concealment, fraud, or misinformation on

part of the petitioner to obscure the basis for the at-issue refusals

to hire. See Bourne v. Sch. Bd. of Broward Cnty., 508 F. App’x 907,

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909 (11th Cir. 2013) (denying equitable modification argument

because plaintiff had “not offered any evidence suggesting that her

late filing was the result of fraud, misinformation, or deliberate

concealment.”); Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023,

1026 (11th Cir. 1994) (“[M]ere suspicion of age discrimination,

unsupported by personal knowledge of discrimination, will not

constitute pretext.”).

Even if Mr. Davis did allege with particularity some

deliberate action on part of JCSB to conceal certain facts, the

record does not support a tipsy coachman argument for equitable

modification. The record shows Mr. Davis already suspected

retaliation or discrimination when JCSB rendered the at-issue

hiring decisions. Specifically, his testimony below suggests he was

immediately suspicious when he was denied employment and so

could have filed an FCRA claim within 365 days of each refusal to

hire.

For the reasons stated above, we grant JCSB’s petition for

writ of certiorari, quash that portion of the order denying JCSB

summary judgment as to the at-issue claims, and remand for

further proceedings.

PETITION GRANTED, ORDER QUASHED, and REMANDED for

further proceedings.

OSTERHAUS, C.J., and ROBERTS and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Bob L. Harris, James J. Dean, and Cameron H. Carstens, Messer

Caparello, P.A., Tallahassee, for Petitioners.

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Marie A. Mattox and Ashley N. Richardson, Marie A. Mattox, P.A.,

Tallahassee, for Respondent.

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