STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL BERTONE, )

)

Petitioner, )

)

vs. ) Case No. 97-4197

)

WINN-DIXIE STORES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

On December 1, 1997, Respondent filed its motion for recommended summary disposition and memorandum of law. The motion was served by mail on Petitioner on November 25, 1997.

The motion and Petitioner's need to respond promptly had been addressed in a telephone conference on October 14, 1997. At that conference, described in an order entered October 20, 1997, Petitioner was given 30 days to obtain counsel. The Administrative Law Judge cautioned that at the end of the 30 days, she would rule on any pending motions after expiration of the Rule 60Q-2.016, Florida Administrative Code, deadline.

The deadline has passed; Petitioner has filed no objection nor other response to the motion; and no one has filed an appearance on his behalf. The motion for recommended summary disposition is GRANTED.

Finding of Fact

The following facts from the record and parties' pleadings are uncontroverted.

1. Petitioner, Michael Bertone, was employed by Respondent, Winn Dixie, in October 1994. He was terminated on April 14, 1995.

2. On May 22, 1995, Michael Bertone filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) alleging that Winn Dixie discriminated against him by allowing him to be sexually harassed and by discharging him for insisting that corrective action be taken. He also alleged discrimination based on his age and gender in violation of Title VII and the Age Discrimination in Employment Act (ADEA). (EEOC Case No.

   150-95-2636)

   
   

3. On June 19, 1995, EEOC issued its Notice of Right to Sue based on a determination that the EEOC could not complete its process within 180 days.

4. On August 14, 1995, Michael Bertone filed his hand- written complaint in the U.S. District Court for the Middle District of Florida. This pleading, dated August 9 and 10, 1995, alleges that Winn Dixie violated his constitutional and statutory civil rights by discrimination, sexual harassment, and retaliation. The pleading attached the EEOC Notice of Right to Sue and a charge of discrimination dated July 21, 1995, which alleged discrimination in violation of Title VII, based on sexual harassment and retaliation.

5. A copy of that same charge of discrimination dated July 21, 1995, was received at the Florida Commission on Human Relations (FCHR) on August 15, 1995, and was assigned Case No. 95-2767.

6. On February 27, 1996, U.S. District Judge Anne Conway entered her order dismissing Michael Bertone's federal complaint in Case No. 95-839-CIV-ORL-22 for failure to prosecute. The order followed a notice to show cause, a response by Plaintiff, and a report and recommendation by the U.S. Magistrate.

7. On May 10, 1997, Michael Bertone executed an FCHR form referencing FCHR Case No. 95-2767 and EEOC No. 15D-95-0988. The form requires a simple check-off of one of several options and reflects Mr. Bertone's desire to withdraw his charge and pursue a petition to proceed with an administrative hearing as provided in Section 760.11(4)(b) and (8), Florida Statutes. Another option described on the form, but not selected by Mr. Bertone, is to withdraw his charge and obtain a right to sue in federal court or to file a civil action in state court.

8. FCHR received Michael Bertone's Petition for Relief on August 25, 1997, and forwarded it, the complaint in FCHR Case No. 95-2767, and the option form described above to the Division of Administrative Hearings for "all necessary proceedings" and a recommended order.

   Conclusions of Law

9. In its memorandum of law attached to the motion for summary recommended disposition Respondent cites ample authority to establish that the Petitioner is barred by res judicata from bringing this administrative action. The dismissal for failure to prosecute is by a court of competent jurisdiction; it is a final judgment on the merits; the parties are identical; and the prior and present causes of action are the same. Israel Discount Bank Ltd. v. Entin, 951 F.2d 311 (U.S. 11th Cir 1992)

10. As to this latter element, identity of causes of action, Respondent candidly cites Andujar v. National Property and Casualty Underwriters, 659 So. 2d 1214 (Fla. 4th DCA 1995), which held that Title VII (Federal Civil Rights Act) and Chapter 760, Florida Statutes (Florida Civil Rights Act of 1992) created separate and distinct causes of actions and an aggrieved person could litigate federal and state claims separately and consecutively in federal and state court.

11. It is unnecessary to adopt Respondent's thorough argument of why Andujar is flawed and not controlling. A later case, Dalbon v. Women's Specialty Retailing Groups, 674

So. 2d 799 (Fla. 4th DCA 1996) limits the holding of Andujar to circumstances when the plaintiff did not present his or her state claim to the federal court under the doctrine of pendent jurisdiction. In this case, Michael Bertone did submit to the

U.S. District Court his same complaint filed with FCHR. 1/

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That the Florida Commission on Human Relations enter its Final Order dismissing Michael Bertone's petition for relief against Winn-Dixie.

DONE AND ORDERED this 11th day of December, 1997, in Tallahassee, Leon County, 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 11th day of December, 1997.

ENDNOTE

1/ The complaint, filed simultaneously with FCHR and the federal district court, does not cite Section 760.01, et seq. (The Florida Civil Rights Act of 1992). The first specific reference to the state statute, according to the record at the Division of Administrative Hearings, is in the form executed by Michael Bertone on May 5, 1997. The pre-printed "Petition for Relief" form, completed by Mr. Bertone and filed with FCHR in August 1997, also references the Florida Civil Rights Act of 1992.

Assuming that this is a separate cause of action from that presented to the federal court in August 1995, Mr. Bertone's state action is time-barred by Section 760.11(1), Florida Statutes: "Any person aggrieved by a violation of Sections

760.01 - 760.10 may file a complaint with the commission within

365 days of the alleged violation "

COPIES FURNISHED:

Michael Bertone 2539 Antilles Drive

Winter Park, Florida 32792

John P. McAdams

Carlton Fields Ward Emmanuel Smith & Cutler, P.A.

Post Office Box 3239 Tampa, Florida 33601-3239

Vivian Cocotas

Carlton Fields Ward Emmanuel Smith & Cutler, P.A.

Post Office Box 1171 Orlando, Florida 32802-1171

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

325 John Knox Road

Tallahassee, Florida 32303-4149

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-004197

Orders for Case No: 97-004197