vs.
Respondent.
) Case No. 05-0032
This cause comes on for consideration without an evidentiary hearing for the reasons set out below.
Whether this cause is barred by a release of all claims.
Petitioner filed a Charge of Discrimination with the Florida Commission On Human Relations (FCHR) on or about December 13, 2003, based upon "race" and "national origin."
The charge alleges that the employer removed Petitioner from working on a machine with which Petitioner had been familiar for eight years and assigned him to a machine for which he had not been trained, while the old machine was assigned to "a white person who has been working for less than one year." The original Charge did not contain allegations of lost seniority, pay, benefits, or of unlawful termination.
On or about December 6, 2004, the FCHR entered its "Determination: No Cause," and notified the parties.
On December 27, 2004, Petitioner filed his Petition for Relief, which alleged that the employer constantly assigned Petitioner to very "mterse" [sic.] jobs because the employer wanted Petitioner to leave, and the employer was "neglecting and careless to my needs." The Petition contains no specific allegation of constructive termination, i.e., that Petitioner was somehow forced into leaving Respondent's employ.
The case was referred to the Division of Administrative Hearings (DOAH) on or about January 5, 2005.
On or about January 18, 2005, Respondent responded to the Division's Initial Order by providing potential hearing dates. Petitioner filed no response.
On January 28, 2005, a Notice of Hearing for April 4, 2005, was entered and mailed.
On March 1, 2005, Respondent filed a Motion for Summary Final Order, together with supporting documentation including an affidavit of Joseph W. Standley, the attorney who had represented the Respondent Employer in Petitioner's workers' compensation claim against the employer.
Petitioner did not timely respond in writing to Respondent's Motion, as he is permitted to do by Florida Administrative Code Rule 28-106.204. Therefore, the undersigned
was at liberty to rule upon the pending Motion without a hearing.
Furthermore, pursuant to Chapter 120, Florida Statutes, the pending Motion may be treated as a Motion for a Recommended Order of Dismissal.
However, it was clear to the undersigned that oral argument or further memoranda on the pending Motion would be helpful, due to specific provisions of Chapter 440, Florida Statutes, The Florida Workers' Compensation Act, and the Administrative Code Rules promulgated thereunder.
So, in an abundance of caution, the following provisions were contained in the Order entered March 21, 2005:
The disputed-fact hearing now scheduled for April 4, 2005, is hereby cancelled.
Petitioner Eligio Orellana is hereby granted to and until April 4, 2005, in which to either (a) file a written response in opposition to the Motion or (b) telephone the secretary to the undersigned at the number below to schedule oral argument by telephone.
In the event Petitioner avails himself of neither option above, the Motion will be considered sua sponte.
Petitioner requested of the secretary to the undersigned that oral argument by telephone be scheduled.
Arrangements were made for a telephonic conference with both parties.
However, Petitioner did not appear and participate in the pre-arranged telephonic conference call, so another Order was entered on April 15, 2005. That Order provided as follows:
This cause came on for oral argument of Respondent's Motion for Summary Final Order by a telephonic conference on April 13, 2005.
Despite Petitioner's request for this opportunity, which request was made late, pursuant to the Order entered March 21, 2005, and despite Petitioner agreeing to that date and time for the conference call, Petitioner did not appear by telephone.
Therefore, Respondent was permitted to argue the pending Motion, which will be treated as a motion for a recommended order of dismissal.
The undersigned having heard Respondent's argument, the parties are granted 15 days from date of this Order in which to state, in writing, filed with the Division of Administrative Hearings, their respective positions with regard to the pending Motion, specifically addressing the effect, if any, of Rule 4.143, Florida Workers' Compensation Rules and its successor, Florida Administrative Code Rule 60Q-6.123(1)(c).
Copies of these rules are attached and incorporated herein as Exhibit "A."
Respondent addressed the issues raised by the Petition for Relief, the pending Motion, and the foregoing Order, by timely filing further written argument and exhibits.
Once again, Petitioner filed a paper but it failed to address the issues.
On July 22, 2005, another Order to clarify facts and law was entered, providing Petitioner a last opportunity to be heard. That Order provided:
Petitioner did not file a response in writing to Respondent's Motion for Summary Final Order as permitted by Florida Administrative Code Rule 28-106.204, and did not appear by telephone on April 13, 2005, when oral argument was scheduled for his benefit.
Petitioner did file an explanation, of sorts, as to why he did not appear for the April 13, 2005, conference call, but that explanation did not address the Order entered herein on April 15, 2005, which Order allowed Petitioner to send the undersigned a written argument demonstrating his opposition to the pending Motion.
Respondent responded in writing to the April 15, 2005 Order, as permitted. On its face, that material sets forth good cause why this case should be dismissed, the reason being that Petitioner entered into a full and complete release of Respondent while fully advised by an attorney.
Florida Administrative Code Rule 60Y- 5.006, authorizes dismissal of discrimination complaints on several grounds, including "(2) The complaint has been resolved by negotiated settlement pursuant to subsection 60Y-5.003(10), F.A.C."
However, in an abundance of caution, it
is ORDERED:
Petitioner shall show cause, in writing, filed with the Division of Administrative Hearings, at the address
below the signature line of this document why this cause should not be dismissed.
Specifically, Petitioner is permitted to send a written response (1) stating why any factual allegation contained in any of Respondent's previously filed materials is not true and correct; (2) giving any reason the Confidential Release and Settlement Agreement and Petitioner's Affidavit provided by Respondent should not be presumed valid; and (3) stating any reason this cause should not be dismissed for the reasons put forth by Respondent.
In order to be considered, Petitioner's Response must be filed at the address below not later than August 10, 2005.
On July 28, 2005, Petitioner filed a letter-response dated July 25, 2005, asking to speak to the undersigned and requesting that the case "stay alive" and move forward. Petitioner's letter-response disputed no facts or law asserted by Respondent.
Accordingly, all the facts and documents presented by Respondent are presumed valid, and Respondent's pending Motion may be treated as a motion for recommended order of dismissal, to be determined upon the pleadings, without further evidence.
On February 7, 2005, in a workers' compensation claim by Petitioner against Respondent Employer and the Employer's insurance carrier, Petitioner signed two settlement agreements.
One settlement agreement complied with the requirements of Chapter 440, Florida Statutes, with regard to specific issues cognizable under the Florida Workers'
Compensation Act and was entitled "Joint Stipulation for Settlement under Florida Statutes Sections 440.20(11)(c), (d) and (e) (2001)."
The other settlement agreement, entitled "Confidential Release and Settlement Agreement" was more general and provided in pertinent part:
Payment to Employee. The Employer/Carrier shall pay Employee the lump sum of $500.00 within fourteen (14) business days after Employee executes this Agreement and the Employee's withdrawal of the charge of discrimination, if any, which may be pending and is accepted and acted upon by the EEOC and the JEOC through an administrative dismissal of the charge or within fourteen (14) days of the approval of the Motion for Approval of Attorney's Fees, whichever is later. This settlement is being entered into simultaneously with a settlement of the workers' compensation claim and the consideration outlined above is provided for therein.
[R]eleases and discharges the Employer [Premium Waters, Inc.] and Carrier, and any affiliated and related companies, and their attorneys, officers, directors, shareholders, agents, and employees of any of them, from all claims, actions demands, rights and causes of action (including any right to demand or receive attorney's fees) whether known or unknown by the Employee, that the Employee may have arising out of, based on, or relating directly or indirectly to, the Employee's employment with the Employer or the termination of that employment, the accident dated 06/25/03, and any events occurring during such employment or thereafter until the date of this Agreement. This release and waiver includes, but is not limited to, a release
of any claims, actions, demands, rights or causes of action the employee may have under any federal, state, or local laws or regulations currently in effect and/or applicable to Employee, including, but not limited to Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, Section 1981 of the Civil Rights Act, the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1991, the National Labor Relations Act, Chapter 440 of the Florida Statutes, Chapters 448 and 760 of the Florida Statutes, the Equal Pay Act, Fair Labor ad [sic] Standards Act, the Civil Rights Act of 1871, as amended (42 U.S.C. Section 1983 and 1985), and any other statutory or common law claims including, without limitation claims for negligence, gross negligence, wrongful discharge and/or retaliation under state or federal law, including but not limited to, Fla. Stat. 440.205, and all claims of any nature which were raised or could have been raised in any charge, arising out of the injuries, accident, and employment which are the subject of this settlement, in which the Employee now has, has had, or might ever have against the Employer or Servicing Agent, or any of its or their officers, agents, servants, employees, attorneys, directors, successors, predecessors, assigns, or any other person or entity so connected or related to the Employer or Servicing Agent, without any limitation thereof or thereon in the event the United States government or any of its entities or administrative bodies makes any claim against the Employer, its Servicing Agent, and/or its insurance Carrier, for reimbursement of any medical expenses incurred, or that may be incurred in the future as a result of the workers' compensation accident of 06/25/03, the Employee agrees to indemnify and hold the Employer, its Servicing Agent and/or its insurance Carrier harmless from any such
claims. The Employee further agrees to indemnify and hold harmless the Employer and Carrier against all liabilities, claims, losses and expenses, including reasonable attorney's fees and costs, arising out of the industrial injuries which are the subject of this settlement.
Dismissal/Withdrawal of Charge. As a condition precedent to receipt of payment described in Section 1 hereof, Employee shall deliver to counsel for the Employer/Carrier a copy of an executed document withdrawing the Charge, if any, with evidence that it has been filed with an EEOC and the JEOC. Upon receipt of proof that the EEOC and JEOC have dismissed the Charge, the Employer shall make payment as described above.
There were clearly two types of release contemplated, two types of release executed, and two amounts of money were intended to flow from the Employer to the Petitioner. One amount of money was to be paid upon the Judge of Compensation Claims' approval of the workers' compensation settlement, and
$500.00 was to be paid when Petitioner dismissed his EEOC claim.
The affidavit of Joseph W. Standley, with its attachments, dated February 28, 2005, has established that the foregoing "Confidential Release and Settlement Agreement" (see Finding of Fact 22), was signed by Petitioner, under oath, and was signed by Petitioner's workers' compensation attorney; and that Petitioner's own affidavit averred that he had "read, or .
. . had read to [him], and underst[oo]d the terms of the . . . Confidential Release."
The affidavit of Joseph W. Standley, dated April 28, 2005, and filed with Respondent's May 2, 2005 Memorandum in response to the April 15, 2005 Order herein, established that Mr. Standley represented the employer, Premium Waters, Inc., and its insurance carrier, Cincinnati Casualty, in the settlement of Petitioner's workers' compensation claim in Eligio Orellana,
[Claimant] v. Premium Water[s, Inc., Employer] and Cincinnati Casualty [Carrier], OJCC Case No. 04-029070JDO. Mr. Standley's affidavit is unrefuted that the Claimant in that case (Petitioner herein) had the benefit and assistance of legal counsel throughout his workers' compensation claim, and that Petitioner's attorney received, reviewed, and signed, along with Petitioner, and returned the documents considered in accomplishing the settlement of the workers' compensation case.
Mr. Standley has sworn that Petitioner was represented by counsel throughout the workers' compensation claim, through and including accomplishment of the settlement and approval by the Judge of Compensation Claims, and that as parts of the overall settlement of Petitioner's workers' compensation claim, there were a "Joint Stipulation for Settlement" as required by Chapter 440, Florida Statutes, and a separate "Confidential Release and Settlement Agreement," and an affidavit by Petitioner that he had read, or had read to him, and understood "the terms of the Joint Stipulation for Settlement and [the]
Confidential Release;" that the Confidential Release was signed under oath by Petitioner and Petitioner's attorney; and that "neither the release signed under oath by Petitioner and his attorney, nor Petitioner's affidavit were included among the papers presented to the Judge of Compensation Claims."
Mr. Standley's two affidavits, together with their supporting documents, are unrefuted, because Petitioner did not offer any objection or oppositional response.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding, in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2004).
On their face, the facts as found present a clear prior release of claim, which bars prosecution of the instant cause under Chapter 760, Florida Statutes. Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998); Owen v. Nationwide Mut. Ins. Co., 884 So. 2d 249 (Fla. 2nd DCA 2004); Edenfield v. B & I Contractors, Inc., 624 So. 2d 389 (Fla. 2nd DCA 1993); High v. General Amer. Life Ins. Co., 619 So. 2d 459 (Fla. 4th DCA 1993) rev. den. 629 So. 2d 133 (Fla. 1993). Hardage Enterprises, Inc. v. Fidesys Corp. N.V., 570 So. 2d 436 (Fla. 5th DCA 1990), Sottile v. Gaines Construction Co., 281 So.
2d 558 (Fla. 3rd DCA 1973), rev. den. 289 So. 2d 734 (Fla.
1974).
Petitioner has not raised any legal impediment to this construction.
However, the undersigned raised sua sponte a problem unique to settlements entered into in the Florida Workers' Compensation arena, and accordingly, that issue bears discussion here.
The question posed by the undersigned was,
Whether the 'Confidential Release and Settlement Agreement' signed by Petitioner is legally operative to bar the further prosecution herein of the Petition for Relief pursuant to Chapter 760, Florida Statutes, or is it unenforceable because of the terms of Florida Administrative Code Rule 60Q-6.123.
Florida Administrative Code Rule 60Q-6.123 applies to workers' compensation settlements and provides, in pertinent part:
(1) Settlements under Section 440.20(11)(a) or (b), Florida Statutes.
* * *
(c) Language regarding a general release of all liability or claims shall not be included, and no such general release or separate release shall be attached.
By its plain language, Rule 60Q-6.123(1)(c) applies to settlements under Subsections 440.20(11)(a) or (b), Florida
Statutes. Both these Subsections, by their own clear language, apply only "when a claimant is not represented by counsel."
The obvious thrust of the workers' compensation claims rule is to prohibit employers and insurance carriers, who can afford attorneys, from taking undue advantage of a claimant who, for one reason or another, has not obtained legal representation.
However, Petitioner's workers' compensation claim was not a claim wherein Petitioner was not represented by counsel. He had a lawyer to represent him.
Petitioner's workers' compensation claim was settled, pursuant to Section 440.20(11)(c), Florida Statutes. Florida Administrative Code Rule 60Q-6.123 has no application to Section 440.20(11)(c), Florida Statutes.
For the foregoing reasons, there was no impediment to Petitioner's settling, at the same time he settled his workers' compensation claim with the advice of his attorney, all other claims and potential claims against the Employer, including the instant charge/petition, arising under Chapter 760, Florida Statutes.
Peripherally, it is also noted that a narrow reading of the proscriptive language of Rule 60Q-6.123(1)(c) permits the interpretation that the rule does not prohibit the execution or effectiveness of "a general release of all liability or claims,"
at all, but merely forbids that the general release settlement documents be presented for approval by the Judge of Compensation Claims, who is charged at law solely with the approval or disapproval of the separate workers' compensation settlement documents, but this case does not turn on so narrow a reading.
No pronouncement is made here as to whether the foregoing narrow interpretation is a correct one or whether submission to the Judge of Compensation Claims of a general release, in addition to a workers' compensation claim release, could invalidate either release.
Likewise, no pronouncement is made here as to whether or not a separate general release in a Section 440.20(11)(c) case would be binding if an amount of money did not also pass to the employee, separate and apart from that amount of money which passes to the employee under the Chapter 440 Joint Stipulation, which may solely address workers' compensation benefits.
The Conclusions of Law herein are limited to holding that neither Chapter 440, Florida Statutes, nor Rule 60Q-6.123 prohibited Petitioner, who at all times material was represented by an attorney, from releasing his pending Chapter 760, Florida Statutes, charge/petition and to holding that a valid release of the Chapter 760 claim has occurred.
This record does not reveal whether Petitioner ever collected his separate $500.00, but that is not a material or
controlling fact. Herein, there has been a complete release executed by Petitioner of many different types of claims and potential claims, including but not limited to any claim under Chapter 760, Florida Statutes. Under that general release, Respondent owed Petitioner $500.00 separate and apart from the amounts paid under the workers' compensation case's Joint Stipulation, but that $500.00 was only owed when Petitioner affirmatively acted to dismiss his EEOC claim. Petitioner could not collect his $500.00 on this general release until he actually dismissed his EEOC claim, but that does not render invalid or unenforceable his release of the EEOC claim and all other claims, including his Chapter 760 claim.
It is noted that FCHR and the EEOC have a work-sharing agreement, but that administrative situation is immaterial to the instant proceedings and does not affect these Conclusions of Law.
Under the cases previously cited, Respondent's Motion should be granted and this case dismissed.
Based on the foregoing uncontroverted or undisputed Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination herein.
DONE AND ENTERED this 26th day of August, 2005, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2005.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Russell W. LaPeer, Esquire Landt, Wiechens, LaPeer & Ayres
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.
