STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD R. PILARSKI, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3384

)

THE KIRCHMAN CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on October 6, 1992, in Orlando, Florida.

APPEARANCES

For Petitioner: Tobe Lev, Esquire

Post Office Box 2231 Orlando, Florida 32802

For Respondent: Gary R. Dorst, Esquire

J. Cheney Mason, Esquire

One DuPont Centre, Suite 2100

390 North Orange Avenue Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issue for disposition is whether Petitioner's complaint of discrimination pursuant to Section 760.10, F.S. should be dismissed for lack of jurisdiction, as provided in a notice dated March 30, 1992.

PRELIMINARY STATEMENT

In response to the March 30, 1992 notice from the Executive Director of the Florida Commission on Human Relations (FCHR), Petitioner requested a formal administrative hearing, stating that material facts were in dispute.

The case was referred to the Division of Administrative Hearings (DOAH) on June 2, 1992 and was set for hearing on August 20, 1992. The hearing was continued once when Respondent obtained new counsel.

At the hearing Petitioner testified in his own behalf and presented the additional testimony of James Little, James Burdine Lumpkin, Jr., and David A. Moreau. Without objection, Petitioner's exhibits #1-4 were received in evidence.

Respondent presented no testimony nor exhibits.

A transcript was filed and Petitioner filed a proposed recommended order on October 22, 1992. Respondent filed a written "summation" on November 30, 1992.

The findings of fact proposed by Petitioner are substantially adopted herein.

FINDINGS OF FACT

1. Leonard R. Pilarski resides in Altamonte Springs, Florida, and from January 1986 until March 1991 was employed at the Kirchman Corporation. His salary as a manager was $60,000.00 at the time of termination. He has had four years of formal college education.

   
   

2. The Kirchman Corporation's headquarters are in Altamonte Springs, Florida. The corporation creates and furnishes computer software for the financial services industry. It employs from two to three hundred personnel, depending on the time of year.

   
   

3. At the time that he was recruited by the Kirchman Corporation and after hiring, during orientation, Pilarski was told of the company's benefits package, including various insurance policies, vacation and a sabbatical package.

   
   

4. The sabbatical package was a four week extra vacation with an additional four weeks pay, after every five years of service. The package is described in a brochure given to Pilarski in an orientation session shortly after his employment in January 1986. The brochure provides the sabbatical is

   
   

   "...to recognize those who have dedicated themselves to our corporate objectives. The Kirchman Corporation recognizes outstanding performance with a paid sabbatical of four (4) weeks after every five (5) years of service.

   This is in addition to their earned vacation".

   
   

   (Petitioner's exhibit #1)

   
   

   Vacations for 3-5 years service were three weeks, "to reward our valued associates for their contributions".

   
   

   (Petitioner's exhibit #1)

   
   

5. Prior to his termination in 1991 Pilarski was never told that his performance was poor. Rather, in September 1990 he was called in and given a pay increase from $48,600.00 to $60,000.00 because, he was told, a competitor software company was recruiting and Kirchman did not want to lose its key employees.

   
   

6. Some employees took their sabbatical as soon as the five years service was completed. Others waited and received the equivalent lump sum pay upon their termination with the company.

   
   

7. When he was terminated on March 6, 1991, Pilarski had served five years and had not taken his sabbatical nor his three weeks vacation. On March 7, 1991, he was given a letter stating that he would receive an "exit package" of one-month's pay, over an eight-week period. The letter included a release form for him to sign and return.

8. Concerned that he was entitled to substantially more, he was able to contact Ken Kirchman by telephone on March 8th. Pilarski told him he had passed his five-year anniversary and was entitled to his sabbatical package, plus his three weeks vacation. Kirchman did not contest the entitlement, but said he did not realize that he had reached that level. He indicated that Pilarski would be sent a new agreement the following week.

   
   

9. Another letter was delivered on March 11, with an attached release form showing $12,692.35 as the amount of the exit package. This accurately reflected the value of the sabbatical package and Pilarski's three-week vacation. The March 11th letter is virtually the same as the March 7th letter with considerable detail devoted to the obligation of a former employee to honor prior agreements regarding disclosure of confidential or proprietary information. Like the prior letter, the March 11th letter gave Pilarski until 5:00 p.m. the next day to execute and return the release form.

   
   

10. The release form provides,

    
    

    RELEASE

    
    

    1. Release. In consideration of an exit package in the amount of $12,692.35 (less deductions required by law), I release The Kirchman Corporation, its subsidiary companies and their agents and employees ("You") from all claims in connection with my employment and the termination of my employment, including claims under federal and state fair employment practice or discrimination laws, laws pertaining to breach of employment contract or wrongful termination or any other laws relating to my employment with You and the termination of my employment. This does not release You from any obligations for benefits which may be due me as of the date of the termination of my employment under any of Your employee benefit plans, such as, but not limited to, the medical insurance plan, life insurance plan or long term disability insurance plan. This also does not release You from claims I may have currently or in the future with respect to matters covered by state workmen's compensation laws or unemployment benefit laws.

       
       

    2. Future Matters. Unless as the result of a matter specifically excepted from this release, I will not bring any lawsuit or file any charge or claim against You in any court or before any government agency relating to my employment or the termination of my employment.

       
       

    3. Review and Signature. I further state that I have carefully read this Release, that I have had an opportunity to consider it and

       the option to talk to an attorney, and that I fully understand its final and binding effect; that the only promises made to me to sign this Release are those stated in this Release, and that I am signing this document voluntarily. I understand and agree to the terms of this Release.

       
       

    4. I agree that if I become associated in any way with any entity engaged in the development and/or marketing of financial software while my exit package is being paid, I will so advise you and that any future payments will cease. However, if I have received any part of my exit package, this release will still be effective and binding.

       
       

       (Petitioner Exhibit #3)

       
       

11. Pilarski was reluctant to sign the release. He strongly felt that he had been wrongfully terminated and felt that the payment being offered was no more than that to which he was already entitled. Through an associate he was able to reach an attorney, Herb Miller, with Akerman, Senterfit and Eidson, in Miami and faxed him the release. By telephone, the attorney indicated that the benefits were protected by federal law, that the trade secrets covenant was overly restrictive and that the release would not hold up in court.

    
    

12. In reliance on this necessarily cursory consultation and under some financial pressure due to family obligations, Pilarski signed the waiver and returned the form by the deadline. He subsequently received the funds.

    
    

13. In a complaint dated June 18, 1991, filed with the Florida Commission on Human Relations, Pilarski alleged that Kirchman discriminated against him based on a perceived handicap, defective heart valve implants. The complaint states that the company's reason given for his termination was that he lied on his application by failing to inform the company of his previous surgery.

    
    

14. As provided above, FCHR issued a notice of dismissal stating:

    
    

    No Jurisdiction. Complaint waived statutory right to pursue the Human Rights Act of 1977 cause of action by contractually releasing Respondent from all claims and causes of action arising out of the allegations contained within the complaint.

    Rule 22T-9.006(11), F.A.C.

    
    

    CONCLUSIONS OF LAW

    
    

15. The DOAH has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.

    
    

16. The sole issue here is whether the release signed by Petitioner should be set aside. The report of the FCHR upon which the Executive Director's notice of dismissal was based, provides:

    The Commission, in its consideration of private releases not overseen by a fair employment agency, has determined the following

    
    

    "As a general rule, a private unsupervised release should be honored by the Commission if the following conditions are met:

    1. The employee fully understood the effect of the release;

    2. The employee signed the release voluntarily;

    3. The employee received identifiable consideration, not otherwise due to him, in return for signing the release; and

    4. The release purports to waive claims sufficiently referred to as 760 claims (in understandable language).

    
    

    Although the report itself cites no specific cases nor agency rules upon which those criteria are based, they are consistent with Florida law on the validity of releases (see generally, 10 Fla. Jur. 2nd, Compromise Accord and Release, sections 24-33) and with federal statutes and common law, as cited by Petitioner.

    
    

17. Petitioner proved by competent, nonrebutted evidence that the funds he received in his "exit package" were no more that those to which he was already entitled. He received no consideration for his release.

    
    

18. Respondent argues that because there was no written employment contract for the five-year sabbatical benefit, any oral agreement is barred by the statute of frauds.

    
    

    Section 725.01, F.S., provides, in pertinent part:

    
    

    No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.

    
    

19. This is not an action brought on the oral agreement for the sabbatical package. More significantly however, Leonard Pilarski has already completed his five years employment and it is well-established that complete performance by an employee of an oral contract of employment, which by its very terms cannot be performed within one year, removes the otherwise barred contract from the operation of the statute of frauds. Hiatt v. Vaughn, 430 So. 2d 597 (Fla. 4th DCA 1983).

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED:

That the FCHR reinstate Petitioner's complaint, proceed expeditiously to complete its investigation and make its determination of reasonable cause or no reasonable cause, as provided in Rule 22T-9.004, F.A.C.

DONE AND RECOMMENDED this 8th day of January, 1993, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1993.

COPIES FURNISHED:

Tobe Lev, Esquire

P.O. Box 2231 Orlando, FL 32802

Gary R. Dorst, Esquire

J. Cheney Mason, Esquire

One DuPont Centre, Suite 2100

390 N. Orange Avenue Orlando, FL 32801

Margaret A. Jones, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4113

Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-003384

Orders for Case No: 92-003384