STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RACHEL MERRICK, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4269

) THREE RIVERS LEGAL SERVICES, INC., )

)

Respondent. )

)

SUMMARY RECOMMENDED ORDER

This cause came on for consideration upon the pleadings and supporting documentation described infra.

This cause initially arose upon transmittal of a petition alleging discrimination in conditions of employment and termination from employment on the basis of race (black) and sex (female). If proven, these allegations would constitute a violation of the Human Rights Act of 1977, Section 760.10, F.S.

Shortly before the duly noticed final formal hearing, the undersigned received telephoned information that a settlement had been negotiated and signed by all parties. Accordingly, the formal hearing before the Division of Administrative Hearings was informally cancelled and an "Order of Abeyance, Providing for Future Filings" was entered on February 27, 1991.

On March 1, 1991, Respondent filed a "Motion to Enforce Settlement". That motion alleged that a settlement agreement had been completely agreed upon between the parties on February 22, 1991, that documents confirming that agreement had been drafted, approved, and signed by the Petitioner, and that Respondent had changed its position in reliance upon a valid settlement by ceasing preparations for trial and forwarding an agreed sum to Petitioner's agent (attorney). The motion further alleged that the signed settlement documents were being withheld from Respondent by Petitioner's attorney upon Petitioner's instructions. In support of its motion, Respondent submitted copies of an unsigned release and notice of dismissal.

On March 15, 1991, Petitioner responded to Respondent's motion, stating that an informal resolution of this cause had not been agreed upon. Petitioner requested that the formal Section 120.57(1) F.S. hearing for the instant cause be rescheduled.

Also on March 15, 1991, Respondent moved to abate the instant Section 120.57(1), F.S. administrative proceedings pending "imminent action and final determination in an Article V Court of competent jurisdiction," concerning the efficacy and finality of any settlement agreement/release.

Formal hearing herein was rescheduled for approximately 90 days later so that redress in a collateral Circuit Court case might be pursued and yet, failing that, this administrative proceeding could go forward in good order with appropriate intervening time for further discovery. (See the March 26, 1991 Order herein.)

Many pleadings and responses followed. By Order of May 8, 1991, the Petitioner's attorneys' "Amended Motion to Withdraw" was granted; Petitioner's prayer for free legal counsel was denied; formal hearing herein was rescheduled; and, among other rulings, the scope of the formal hearing herein was limited as follows: ". . . only the merits of Petitioner's cause as framed by her petition will be heard."

Respondent filed a "Complaint for Declaratory and Other Relief" in the Circuit Court of the Eighth Judicial Circuit (Three Rivers Legal Services, Inc.

v. Rachel Merrick, Case No. 91-1339CA) seeking specific enforcement of the frequently referenced "settlement agreement" (release). Respondent also filed, on May 29, 1991 a "Motion for Stay of Proceedings" in this administrative forum, representing that the pending Eighth Circuit Court action could be resolved quickly. Attached to Respondent's motion had been copies of the Circuit Court documents and another copy of the unexecuted settlement agreement/release. That motion was denied without prejudice in a May 31, 1991 order. However, on June 12, 1991, Respondent filed herein a "Motion Renewing Motion for Stay of Proceedings." That motion was granted over objection by Order entered herein June 20, 1991.

On September 17, 1991, Respondent filed a status letter and Petitioner filed a "Notice of Motion" to which was attached a fully executed copy of the release she had signed. Apparently this executed copy of the release had been admitted as evidence in the Eighth Circuit Court case.

Further abeyance was granted by a September 23, 1991 Order.

Meanwhile, the October 11, 1991 non-jury trial in the Eighth Circuit Court case was rescheduled for November 20, 1991. It was then rescheduled to February 1991, and finally rescheduled again for August 28, 1991. Further advices from the parties hereto did not further clarify the status of that case.

By Order to Show Cause entered herein on March 10, 1992, the parties were required, among other things, to show cause why this instant administrative proceeding should not be rescheduled for April 15, 1992. The Respondent's response to that order showed that in the collateral Eighth Circuit Court case, Rachel Merrick (Petitioner herein) had been granted leave to file a counterclaim and certain affirmative defenses. Thereafter, all but one of Petitioner's affirmative defenses were struck and her counterclaim was dismissed, but she also was given leave to file amended pleadings in the Eighth Circuit Court case.

By Order of March 26, 1992, the parties herein were again ordered to keep the undersigned advised as to the status of the collateral Eighth Circuit Court case.

On May 18, 1992, Respondent filed a "Report to the Division of Administrative Hearings and Motion to Dismiss" together with attached materials, including a copy of the fully executed release. Petitioner has since filed a response thereto. Both pleadings and their incorporated attachments are to be taken as true and proven for purposes of ruling on Respondent's Motion to Dismiss.

In consideration thereof, it appears that on or about August 28, 1991, Petitioner herein, Rachel Merrick, filed yet another complaint against Respondent and one of its employees in Merrick v. J. Daniel Marsee and Three Rivers Legal Services, Case No. 91-824-CA in the Third Judicial Circuit in and for Columbia County, Florida. The import of this new litigation in the Third Circuit was a further suit by Petitioner against Respondent concerning Petitioner's employment based on "pain and suffering. . . great psychological and emotional damages and loss of ability to work. . . damaged . . . reputation in the community. . . and prevented her from being able to secure employment."

That Third Judicial Circuit lawsuit has now been finalized by a Final Summary Judgment based on the release that Petitioner gave Respondent, in full, final, complete and total settlement of her claim of employment discrimination. The Third Circuit Court's Final Summary Judgment in Merrick v. Marsee and Three Rivers Legal Services is final in that there has been no appeal therefrom and the time for any appeal has run.

The January 6, 1992, Third Circuit Final Summary Judgment reads, in pertinent part, as follows:

"the Court having heard the respective parties, considered entirety [sic] of the record in

this cause, and being otherwise fully advised in the premises finds that there is no genuine issue as to any material fact and that Defendants are entitled to judgment as a matter of law. Specifically, the record in this cause establish [sic] that the Plaintiff has previously released "Three Rivers Legal Services, Inc., and its employees and all other persons, firms. . . "

Petitioner's response to Respondent's pending Motion to Dismiss in the instant administrative cause only puts forth that the instant administrative proceeding pursuant to Section 120.57(1), F.S. deals with discrimination and the Third Circuit Final Summary Judgment does not deal with discrimination, and therefore the instant cause in this administrative forum ought not to be dismissed.

It is true, so far as it goes, that the Third Circuit Court case was premised on a different theory of recovery ("pain and suffering," etc.) than the "unfair employment practice(s)" at issue in the instant case before the Division of Administrative Hearings. However, contrary to Petitioner's assertion, the foregoing Third Circuit Court Final Summary Judgment has determined with finality that the frequently mentioned "settlement agreement/release" precludes Petitioner from pursuing any claim arising out of her employment with Respondent. Consequently, Petitioner may not continue her discrimination claim in the instant forum pursuant to Section 120.57(1), F.S.

However, even if the Third Circuit Final Summary Judgment did not have the foregoing legal effect, it still would have the ultimate effect of resolving the instant proceedings before the Division of Administrative Hearings because of the posture of Respondent's pending motion to dismiss and Petitioenr's response thereto.

Unlike her earlier pleadings, Petitioner Merrick's response to the pending motion has not denied the existence of execution by her of the release, and that renders the release fully capable of being considered by the undersigned.

That executed release now before the undersigned, was signed by Petitioner before two witnesses and a notary and provides, in pertinent part:

It is also understood and agreed that this release is in full and complete settlement of that certain case, presently pending before the Division of Administrative Hearings, concerning FCHR Case No. 89-07539; EEOC Case No. 15D89050, and Case No. 90-4269. [Emphasis supplied]

Since a copy of the executed release has been provided to the undersigned by Respondent and its execution and delivery have not been raised by the Petitioner in her response to the pending motion, and because the Petitioner's response also does not raise any spectre that the Respondent has not complied with its obligations under the terms of the release, 1/ no disputed material facts exist for resolution before the Division of Administrative Hearings, pursuant to Section 120.57(1), F.S. See, Palm Springs General Hospital, Inc. v. Health Care Cost Containment Board, 560 So. 2d 1348 (Fla. 3d DCA 1990). Cf--New

v. Dept. of Banking and Finance, 554 So. 2d 1203 Fla. 1st DCA 1989).

If Petitioner and Respondent have other pending disagreements such as Respondent's need to enforce Petitioner's compliance with the terms of the release or if Petitioner has a dispute with her prior attorneys, those issues are not within the jurisdiction, power, or authority of the Division of Administrative Hearings or this Hearing Officer, and there is no need to delay final resolution of this instant administrative cause until after the Eighth Circuit Court hears and resolves such peripheral issues in its earlier case which is still pending.

RECOMMENDATION

Accordingly, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition herein.

DONE and ENTERED this 12th day of June, 1992, in Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1992.

ENDNOTES

1/ The copy of the release provided by the Respondent appears also to be the one admitted in evidence in the Eighth Circuit Court and in the Third Circuit Court case, and the undersigned notes that prior pleadings, but not the Respondent's motion which is now under consideration, have attached copies of the letters required of Respondent by the terms of the release and a copy of the settlement check endorsed by Petitioner.

COPIES FURNISHED:

Judy R. Collins, Esquire

11 East

University Avenue, Suite 1 Gainesville, Florida 32601

Barbara A. Burkett, Esquire

2830 Northwest 41st Street, Suite 1

Gainesville, Florida 32606

Rachel Merrick 1535 Lake Drive

Lake City, Florida 32055

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 90-004269

Orders for Case No: 90-004269