STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANA V. MORALES,

Petitioner,

vs.

JOE BLASO COSMETICS,

Respondent.

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) Case No. 01-2328

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RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, the cause came on for formal hearing before Fred L. Buckine, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on June 28, 2001, by video teleconference at sites in Orlando and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Diana Morlaes, pro se

5456 Regal Oak Circle Orlando, Florida 32810

For Respondent: Linda D. Schoonover, Esquire

Linda D. Schoonover, P.A.

370 CenterPointe Circle Suite 1154

Altamonte Springs, Florida 32701 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated the Florida Civil Rights Act of 1992 by committing unlawful employment practice (discrimination) on the basis of

Petitioner's sex (female), National Origin (Hispanic), handicap when it terminated Petitioner from employment, or on the basis of sexual harassment.

PRELIMINARY STATEMENT

The procedural history, from Petitioner's filing a Charge of Discrimination to this Recommended Order of Dismissal of the Petition with Prejudice, is provided for clarification.

This matter began on or about April 1, 1996, when Petitioner signed a complaint of discrimination that allegedly occurred on May 10, 1995. The "Charge of Discrimination" against Respondent filed with the Florida Commission on Human Relations (FCHR) contains a FCHR stamp date of June 26, 1996. Nevertheless, FCHR's Individual Complaint Log reflects a filing date of April 1, 1996. This confusion of dates set in motion the chain of events that lead to the Administrative Law Judge entering an order "dismissing" the Petition as "untimely filed." Upon review, FCHR "remanded" the Petition for Relief and Complaint of Discrimination to the Division of Administrative Hearings. This Recommended Order of Dismissal with prejudice is based upon an Agreement of Settlement and General Release between the parties submitted after conclusion of the final hearing on this remanded petition.

On April 17, 2000, FCHR, via mail, forwarded its Notice of Determination: No Cause, letter to the wrong mailbox for Petitioner.

On June 28, 2000, Petitioner filed a "Petition for Relief from Unlawful Employment Practice" with FCHR. Notice of Respondent of Filing of Petition For Relief From an Unlawful Employment Practice was provided Respondent on July 21, 2000, by FCHR.

On July 24, 2000, the Petition for Relief, Charge of Discrimination, Determination of No Cause and Notice of Respondent of Filing of Petition For Relief from an Unlawful Employment Practice, was transmitted to the Division of Administrative Hearings (DOAH) for assignment to an Administrative Law Judge. The Petition was assigned DOAH Case No. 00-3020.

On August 8, 2000, Respondent filed a Request for Extension of Time to File Response which was denied on August 11, 2000, by the Administrative Law Judge. On August 10, 2000, Respondent filed an Answer to the Petition For Relief and a Motion To Dismiss Petition.

On September 7, 2000, a Recommended Order of Dismissal of the Petition for Relief was entered by the Administrative Law Judge who found that "Petitioner's complaint was untimely."

On March 21, 2001, FCHR remanded the Petition For Relief and Complaint of Discrimination back to DOAH for further proceeding. FCHR concluded that Petitioner's "late filing" was "excusable neglect." Upon remand, DOAH assigned this cause Case No. 01-2328.

On June 8, 2001, DOAH's Order Reopening Division of Administrative Hearing and a Notice of Hearing, scheduling the final hearing for June 27, 2001, were entered. On June 22, 2001, an Amended Notice of Video Teleconference with sites in Orlando and Tallahassee, Florida, was entered.

At the final hearing, Petitioner testified in her own behalf and submitted eight (PA-PH) exhibits which were accepted in evidence. Respondent presented the testimony of Violeta Limpin, previous employee of Respondent; Elizabeth Caliwag, employee in the Orlando office in 1994; Sally Montijo, previous employee from 1991 through 1998, and Rosemarie Dihn, an employee from Respondent's California office who visited the Orlando office. Respondent submitted thirteen (R1-R13) exhibits that were accepted in evidence.

At the conclusion of the Final Hearing, counsel for Respondent requested an extension of time to file a Proposed Recommended Order thereby waiving the time requirement for entry of the Recommended Order. On July 20, 2001, the Order granting the motion to extend time to file a Proposed Recommended Order

until August 13, 2001, was entered. On July 9, 2001, the transcript was filed.

On August 13, 2001, a Proposed Recommended Order, Motion to Dismiss, and a copy of "Agreement of Settlement and Mutual and General Release" were filed by Respondent's counsel. The Agreement of Settlement and Mutual and General Release, in pertinent part provides, "the parties have resolved all existing material issues of fact between themselves." In consideration of this agreed resolution the parties move for entry of a recommended order of dismissal with prejudice of the Petition for Relief from an Unlawful Employment Practice and Discrimination.

FINDINGS OF FACT

1. As noted above in the Preliminary Statement, the parties have entered into an Agreement of Settlement and Mutual and General Release. Their agreement, in pertinent part, includes the following:

   "DM, on the one hand, and JBF (under the name Joe Blasco Cosmetics), on the other hand, are parties to proceeding which took place before the State of Florida Division of Administrative Hearings, in Case No. 01- 2328, on about June 28, 2001, with respect to DM's claims of discrimination against JBE (the"Action").

   
   

   Each of the parties hereto considers it to be in its best interest, and to its advantage, forever to settle, adjust, and comprise all claims and defenses which have been, or could have been, asserted in connection with the employment relationship,

   the Action, and/or in an other action or proceeding arising out of any employment or other relationship between the parties hereto.

   
   

   The terms of this Agreement are contractual, not a mere recital, and this Agreement is the result of negotiation between the parties, each of whom has participated in the drafting hereof, through each of the parties' respective attorneys.

   
   

   Diana Morales shall dismiss with prejudice Case No. 01-2328 pending before the State of Florida, Division of Administrative Hearings. Diana Morales agrees to execute and file any and all documents necessary to dismiss her claim and advise any and all documents necessary to dismiss her claim and advise any investigative bodies, administrative bodies and/or courts that she has withdrawn, dismissed and resolved any and all claims with Joe Blasco Cosmetics, Joe Blasco Enterprises and/or Joe Blasco."

   
   

2. The parties' stipulated settlement agreement constitutes an informal disposition of all issues in this proceeding.

   CONCLUSION OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapters 120 and 760, Florida Statutes.

4. Section 120.57(4), Florida Statutes, provides as follows:

   (4) INFORMAL DISPOSITION - Unless precluded by law, informal disposition may be made of any proceeding by stipulation, agreed settlement, or consent order.

5. Here, the parties have informally disposed of all issues by entering into an Agreed Settlement and Release and the language of the underscored above requires entry of an order "adopting the agreed settlement."

6. Consistent with Section 120.57(4), Florida Statutes, it is hereby ORDERED:

That the Petition filed in this cause be DISMISSED with prejudice.

DONE AND ENTERED this 16th day of August, 2001, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 16th day of August, 2001.

COPIES FURNISHED:

Azizi M. Dixon, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Diana V. Morales 5456 Regal Oak Circle

Orlando, Florida 32810

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

325 John Knox Road, Building F Suite 240

Tallahassee, Florida 32303-4149

Linda D. Schoonover, Esquire Linda D. Schoonover, P.A.

370 Centerpointe Circle, Suite 1154 Altamonte Springs, Florida 32701

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: 01-002328

Orders for Case No: 01-002328