STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNIE L. SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1903

)

ORANGE COUNTY, FLORIDA )

CORRECTIONS CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on September 11, 1996, by videoconference. The parties and court reporter participated from the videoconference center in Orlando, Florida. The Administrative Law Judge presided from Tallahassee, Florida.

APPEARANCES

For Petitioner: Annie L. Smith

(representing herself)

For Respondent: Jeffrey J. Newton

Assistant County Attorney Orange County Attorney's Office

Orange County Administration Center

201 South Rosalind Avenue Orlando, Florida 32802

STATEMENT OF THE ISSUE

As provided in an Order and Amended Notice of Hearing entered on July 18, 1996, the issue for disposition is whether Petitioner, Ms. Smith, knowingly and voluntarily, through settlement, waived her right to pursue her charge of discrimination.

PRELIMINARY STATEMENT

On April 19, 1996, the Florida Commission on Human Relations transmitted a Petition for Relief by Annie L. Smith to the Division of Administrative Hearings, with a request that the Division conduct all necessary proceedings and submit a Recommended Order to the Commission.

The Respondent, Orange County, filed an Answer denying each and every allegation of Ms. Smith's petition, and the Administrative Law Judge set the case for hearing.

Shortly thereafter, counsel for Orange County filed an Amended Answer and Affirmative Defense alleging that Ms. Smith, by a release dated April 16, 1996, specifically waived and dismissed her petition with prejudice.

On June 14, 1996, Respondent filed a Motion to Dismiss, attaching Ms.

Smith's purported withdrawal of her case of discrimination based on a lump sum settlement. In a motion hearing conducted by telephone on July 17, 1996. Ms. Smith denied that she settled and asserted her right to proceed on her claim.

Because Ms. Smith's response to the Motion to Dismiss raised a disputed issue of fact, the Administrative Law Judge issued the Amended Notice of Hearing reflecting the issue described above.

At the evidentiary hearing on September 11, 1996, the Respondent presented the testimony of Ms. Smith and offered into evidence Respondent's Exhibits Numbers One and Two, documents signed by Ms. Smith, which appeared to resolve her disputes with Orange County. Those documents were received in evidence.

Ms. Smith testified in her own behalf and presented seven exhibits, received in evidence as Petitioner's Exhibits Numbers One through Seven.

At the close of the hearing, Ms. Smith indicated that she decided to hire counsel and would likely request a copy of the transcript. Later, the Administrative Law Judge learned that neither party requested the transcript. At that point, the parties were given ten days to file Proposed Recommended Orders.

The written statement by Ms. Smith and Proposed Recommended Order by Orange County have been considered in the preparation of this Recommendation.

FINDINGS OF FACT

1. Annie L. Smith is sixty-four years of age and has had formal education and training. At the relevant period she was employed at the Orange County Department of Corrections as a Corrections Officer/Licensed Practical Nurse.

   
   

2. Sometime in 1990 and thereafter, Ms. Smith sustained a series of injuries at work, including a fall from a chair, a fall while working in a shower, some pain while climbing stairs, and a bump on her head on a glass door. She received medical benefits through Workers' Compensation, but some dispute over her further entitlement to compensation for her injuries still existed as of 1994.

   
   

3. Ms. Smith retained counsel and the Workers' Compensation case went to mediation in December 1994. The parties reached an agreement during mediation, but Ms. Smith immediately expressed misgivings about the terms of the agreement.

   
   

4. Throughout 1995, the parties continued to negotiate. During this process Ms. Smith discharged her original attorney and engaged another to represent her in her Workers' Compensation claim. Several settlement conferences were held before the Judge of Compensation Claims.

   
   

5. In January 1995, Annie Smith filed a Charge of Discrimination with the Florida Commission on Human Relations and the Equal Employment Opportunity Commission. She alleged in the Charge, dated January 12, 1995, that on August 17, 1994 she was denied reasonable accommodations for her disability because of discrimination based on her race/Black and disability.

6. On March 20, 1996, the Florida Commission on Human Relations entered its "Notice of Determination: No Cause" on Ms. Smith's Complaint, identified as FCHR Number 95-1153 and EEOC Number 15D950385. The Notice of Determination informed the Complainant that she could request an administrative hearing on the determination by filing a petition for relief within thirty-five days of the date of the notice.

   
   

7. Ms. Smith's Petition for Relief is date-stamped received at the Florida Commission on Human Relations on April 15, 1996. The Petition for Relief, the Charge of Discrimination, and the Commission's Notice of Determination were transmitted to the Division of Administrative Hearings on April 19, 1996.

   
   

8. In the meantime, on April 16, 1996, shortly after she prepared her petition for relief, Ms. Smith executed a Stipulation in Support of Joint Petition for Order Approving a Lump-Sum Settlement, and an affidavit that she settled her Workers' Compensation claim as well as American with Disability Act claims and charges of discrimination.

   
   

9. The settlement documents, which Ms. Smith admits she signed after reading and discussing with her attorney, provide for a lump-sum disbursement of

   $50,000, from which $8,250 would be paid for legal services. The settlement documents specifically reference waiver and dismissal with prejudice of FCHR Charge Number 95-1153 and EEOC Charge Number 15D950380. The settlement documents are in simple, understandable terms. The affidavit executed by Ms. Smith plainly recites her understanding that she is under no compulsion to settle, that she is settling voluntarily and freely, and that she is waiving and giving up rights to pursue her claims.

   
   

10. At the time that Ms. Smith signed the settlement documents she understood that her attorney did not represent her in the discrimination actions. In a letter dated March 28, 1996, he had referred her to another attorney who specializes in discrimination cases. Ms. Smith contacted the other attorney but did not retain other counsel as, according to Ms. Smith, she did not have the funds to pay up front.

    
    

11. Ms. Smith signed the Settlement Agreement, even though she did not really want to waive all of her claims, because she understood that Orange County was only willing to settle everything in one lump-sum. In other words, she understood that she could not settle her Workers' Compensation case and receive that money unless she also waived all of her claims against the county.

    
    

12. From the record in this proceeding, it is impossible to find that the

    $50,000 lump-sum was not consideration for Ms. Smith's waiver of all claims. The settlement documents describe how the sum was arrived as to the Workers'

    Compensation claim. At the time that she executed the settlement, Ms. Smith and the county were aware that the Florida Commission on Human Relations had found "no cause" after investigating her claim. While this does not mean she could never have prevailed after a full evidentiary hearing, the status of her claim at the time of settlement would impact the value of the claim for negotiation and settlement purposes.

    
    

13. Ms. Smith received the lump-sum settlement amount and the attorney's fees were disbursed from the amount. Notwithstanding the disbursement, she states that if she were permitted now to repudiate the settlement and proceed with the claims, she would return all of the $50,000.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

15. Orange County proved that Ms. Smith executed settlement documents that waived her claim that is the subject of this proceeding. Ms. Smith failed to prove that the settlement should be set aside or was invalid.

    
    

16. A claimant may waive her rights to pursue a discrimination claim as long as she knowingly and voluntarily consents to the release. The factors which guide a determination of whether release was knowing and voluntary include: the claimant's education and business experience, the amount of time the claimant considered the agreement before signing it, the clarity of the agreement, the claimant's opportunity to consult with an attorney, the employer's encouragement or discouragement of consultation with an attorney, and the consideration given in exchange for the waiver when compared with the benefits to which the employee was already entitled. Beadle v. City of Tampa,

    42 F. 3rd 633 (U. S. 11th Cir. 1995). See also, Leonard R. Pilarski v. The Kirchman Corporation, DOAH Case Number 92-3384, FCHR Final Order entered September 1, 1993.

    
    

17. Ms. Smith was educated and could read and write; she was sophisticated enough to work in the nursing profession and she was reasonably articulate and knowledgeable in her written documents and her oral presentation at hearing.

She had ample time to consult with counsel and to consider the terms of her settlement, as the process took approximately eighteen months. There is no evidence that the consideration she received was inadequate for purposes of settlement. There is, therefore, no basis to set aside the settlement.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That the Florida Commission on Human Relations enter a Final Order dismissing the Complaint and Petition for Relief in this case.

DONE and ENTERED this 13th day of November, 1996, in Tallahassee, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1996.

COPIES FURNISHED:

Ms. Annie L. Smith 8603 Snowfire Drive

Orlando, Florida 32818

Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Jeffrey J. Newton Assistant County Attorney Post Office Box 1393

Orlando, Florida 32802-1393

Dana Baird General Counsel

Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001903

Orders for Case No: 96-001903