STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER OF DISMISSAL

This cause came to be heard by telephone conference call on Respondent’s Motion to Remand filed March 18, 2008, on Petitioner’s response thereto filed March 31, 2008, and on Respondent’s Notice of Supplemental Authority filed April 2, 2008. The facts set forth in this Order are undisputed.

Respondent’s motion is based on two theories. First, Respondent argues that Petitioner’s Petition for Relief was not filed within 365 days of the last date of the alleged discrimination as required by Section 760.11(1), Florida Statutes (2007), and is, consequently, time-barred as a matter of law. Second, Respondent argues that Petitioner has specifically released any claims under the Florida Civil Rights Act by his execution of a Separation Agreement dated March 1, 2005 (the Separation Agreement).

Prior to March 1, 2005, Petitioner was employed by Respondent. The act of discrimination at issue in this proceeding allegedly occurred in February 2005. On March 1, 2005, Petitioner and Respondent executed the Separation Agreement, which terminated Petitioner’s employment with Respondent. The Separation Agreement provided for Respondent to pay Petitioner the sum of $480,000.00, less all required payroll deductions, in three installments. The first and second installments, in the total sum of $240,000.00, have been paid to Petitioner by Respondent.

A dispute exists between Petitioner and Respondent as to whether the third installment in the amount of $240,000.00 is due from Respondent to Petitioner. On or about June 13, 2007, Petitioner filed suit against Respondent in the Palm Beach County Circuit Court seeking, in Count I, damages for Respondent’s alleged breach of the Separation Agreement and, in Count II a Declaratory Judgment as to a provision of the Separation Agreement. Petitioner’s complaint in Circuit Court does not seek to rescind the Separation Agreement.

Paragraph 1 of the Separation Agreement provides for the payments to be made by Respondent to Petitioner. Paragraph 2 of the Separation Agreement provides, in part, as follows:

2. In return for the consideration provided in Paragraph 1 of this Agreement, Employee [Petitioner] does hereby

unconditionally release, discharge and hold Employer [Respondent] . . . (hereafter referred to a Released Parties) harmless from and covenants not to sue upon, each and every action, claim, right, liability, charge or demand of any kind or nature that Employee had, has now or might hereafter claim to have against Released Parties as of the date of the execution of this Agreement including, but not limited to, any and all claims in connection with his employment relationship, terms and conditions of his employment (including compensation and benefits) and the termination of his employment relationship and the surrounding circumstances thereof, and further from any actions, claims, rights, liabilities, charges or demands of any nature whatsoever which may be raised pursuant to any law, constitution, statute, regulation, or any common law theory, whether in tort, contract, equity or otherwise (with all of the foregoing collectively referred to as “Claims(s)”). Specifically included in Employee’s release of claims are all employment Claims for injury to Employee, including, but not limited to, those arising under the . . . Civil Rights Act of 1866, 1871, 1964, and 1991, as amended . . . the Florida Civil Rights Act of 1992, and the Florida Whistleblower’s Act. . . .

The subject complaint of discrimination was brought by Petitioner pursuant to the Florida Civil Rights Act of 1992, as amended. Pursuant to the Separation Agreement, Petitioner has released any claims he has or had under that Act. Unless and until a court of competent jurisdiction permits Petitioner to rescind the Separation Agreement, he is precluded from bringing this complaint of discrimination.

The Florida Commission on Human Relations transmitted the subject Petition for Relief on February 7, 2008. Included in the package were the Petition for Relief, dated February 5, 2008, a Determination of No Cause dated January 2, 2008, and an Amended Employment Complaint dated August 16, 2007. Respondent correctly argues that the 365-day deadline for the filing of claims of discrimination set forth in Section 760.11(1), Florida Statutes (2007), is a statute of limitation. A statute of limitations may be tolled pursuant to the provisions of Section 95.051, Florida Statutes (2007), or by the application of the doctrine of equitable tolling.

For the reasons argued by Respondent, the undersigned rejects Petitioner’s argument that the payment of the first two installments of the amounts provided in the Separation Agreement serve to toll the 365-day deadline pursuant to the provisions of Section 95.051(1)(f), Florida Statutes (2007).

The doctrine of equitable tolling of a statute of limitations can be applied in very limited circumstances. A judicially created doctrine, equitable tolling was described in Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988), as being applicable “when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” 523 So. 2d at 1134.

Given the factual nature of equitable tolling, one cannot enumerate all of the circumstances in which it may be available. Without an evidentiary hearing to provide Petitioner with an opportunity to factually establish his theory that the statute of limitations has been tolled by the doctrine of equitable tolling, it is inappropriate at this juncture to dismiss this proceeding on the ground that the matter is time-barred.

In light of the determination that Petitioner has released his claims under the Florida Civil Rights Act of 1992, it is unnecessary to conduct such an evidentiary hearing.

The premises considered, it is ORDERED:

That DOAH Case No. 08-0684 is closed, and jurisdiction of this proceeding is relinquished to the Florida Commission on Human Relations with the recommendation that a final order of dismissal be entered based on Petitioner’s release of his rights to bring such action by the Separation Agreement.

DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 8th day of April, 2008.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jonathan A. Berkowitz, Esquire Cohen, Norris, Scherer, Weinberger &

Wolmer

712 U.S. Highway One, Suite 400 North Palm Beach, Florida 34408

Alexander del Russo, Esquire Carlton Fields

Post Office Box 150

West Palm Beach, Florida 33402

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 08-000684

Orders for Case No: 08-000684