STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMAN JEFFREY McKINNEY, )

)

Petitioner, )

)

vs. ) Case No. 00-2308

)

GULF POWER COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion to Dismiss before the Division of Administrative Hearings by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: R. John Westberry, Esquire

Holt & Westberry, P.L. 1108-A North 12th Avenue Pensacola, Florida 32501

For Respondent: Ralph A. Peterson, Esquire

Beggs & Lane, LLP Post Office Box 12950

Pensacola, Florida 32576 STATEMENT OF THE ISSUE

The issue is whether Petitioner's Charge of Discrimination states a cognizable claim under the Florida Civil Rights Act of 1992, as amended in Sections 760.01-760.11 and 509.092, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner Norman Jeffrey McKinney (Petitioner) filed an amended Charge of Discrimination with the Florida Commission on Human Relations (FCHR) on March 31, 2000. Said charge alleged that Respondent Gulf Power Company (Respondent) had committed an unlawful employment act by retaliating against him for reporting incidences of harassment by union members.

By letter dated April 27, 2000, FCHR advised Petitioner that it would not be able to pursue an investigation.

Specifically, FCHR stated that Petitioner's allegation did not involve a violation of the Florida Civil Rights Act of 1992, as amended. FCHR gave Petitioner 30 days to advise whether the decision not to investigate was based on incorrect information.

On May 8, 2000, Petitioner filed a request for an administrative hearing. FCHR referred this matter to the Division of Administrative Hearings on May 31, 2000.

On June 9, 2000, Respondent filed a Motion to Dismiss.

Said motion alleged that Petitioner's Charge of Discrimination failed to state a claim upon which relief could be granted. The motion requested that the case be dismissed with prejudice on grounds that FCHR lacked subject matter jurisdiction.

On June 14, 2000, Respondent filed a Supplemental Memorandum in Support of Motion to Dismiss. A copy of FCHR's April 27, 2000, letter was attached to the memorandum.

On June 14, 2000, Respondent filed a Motion for Stay and for Expedited Disposition of Respondent's Motion to Dismiss.

On June 20, 2000, the undersigned issued an Order to Show Cause requiring Petitioner to respond in writing to Respondent's Motion to Dismiss. A show cause order, amended as to style only, was issued on June 29, 2000.

On June 30, Petitioner filed a Motion to Amend Complaint. Respondent filed a Response to Petitioner's Reply and Motion to Amend Complaint on July 7, 2000. Oral argument was heard in a telephone conference on July 20, 2000. For the reasons set forth below, Petitioner's Motion to Amend Complaint is hereby denied.

FINDINGS OF FACT

1. Petitioner filed his original Charge of Discrimination with FCHR on March 6, 2000. He filed his amended charge on March 31, 2000, after talking to FCHR's staff on the telephone.

2. Petitioner alleges that he experienced harassment and retaliation in the workplace because he "supported a co-worker Gary Farrell in reporting to the company about harassment he was receiving from Union Business Manager, Joe Nobles and past Job Steward, Richard Mason for quitting Local Union 1055."

3. Petitioner's charge also alleges the following:

   
   

   Joe Nobles and Richard Mason retaliated against me by influencing most of the union members in the department to ostracize us by

   not talking to us or cooperating with us. Some co-workers have come to me and said they were told not to associate or cooperate with me, because I supported co-worker Gary Farrell in reporting harassment to Corporate Office.

   
   

4. Petitioner's complaint did not allege discrimination or retaliation based on his race, color, religion, national origin, sex, age, handicap and/or marital status.

5. Petitioner was given an opportunity to amend his complaint before the FCHR and failed to do so.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

7. Section 760.10(1), Florida Statutes, states as follows in pertinent part:

   1. It is an unlawful employment practice for an employer:

      
      

      * * *

      
      

      (b) To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

8. Section 760.10(7), Florida Statues, states as follows:

   
   

   It is an unlawful practice for an employer, an employment agency, a joint labor- management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

   
   

9. Section 760.10(7), Florida Statues, only makes it unlawful to discriminate against a person who has opposed any practice which is a unlawful employment practice under Florida's Civil Rights Act of 1992. The facts described in Petitioner's charge fail to allege retaliation for any basis covered by this act which includes race, color, religion, national origin, sex, age, handicap and/or marital status.

10. Petitioner's Motion to Amend Complaint states that he inadvertently failed to allege facts relative to retaliation for complaint(s) to Respondent of discrimination based on his religious beliefs and convictions. However, Petitioner had an opportunity to amend his charge for a third time after receiving the April 27, 2000, letter from FCHR. He did not take advantage of that opportunity.

11. There is no authority for allowing Petitioner to amend his charge after FCHR referred the case to the Division of

Administrative Hearings. Petitioner is not entitled to a formal hearing on issues that were never presented to FCHR.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing Petitioner's Charge of Discrimination.

DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2000.

COPIES FURNISHED:

Ralph A. Peterson, Esquire Beggs & Lane, LLP

Post Office Box 12950 Pensacola, Florida 32576-2950

R. John Westberry, Esquire Holt & Westberry, P.A. 1108-A North 12th Avenue Pensacola, Florida 32501

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

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: 00-002308

Orders for Case No: 00-002308