STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE E. STOLWORTHY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5273

) GRUMMAN AIRCRAFT SYSTEMS ) DIVISION, )

)

Respondent. )

)

ORDER OF DISMISSAL AND AWARD OF FEES AND COSTS

This matter came on for hearing in St. Augustine, Florida, before the Honorable Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on February 13, 1992. Subsequent to the hearing, Hearing Officer Benton was appointed to the First District Court of Appeals and left the Division. Hearing Officer Diane Cleavinger was thereafter assigned the case.

APPEARANCES

For Petitioner: N. Albert Bacharach, Jr.

115 Northeast Seventh Avenue Gainesville, Florida 32601

For Respondent: Leslie Joyce Goldstein

Grumman Corporation 1111 Stewart Avenue Mail Stop AO8-GHQ

Bethpage, New York 11714 STATEMENT OF THE ISSUE

Whether this matter should be dismissed with prejudice based upon the doctrine of res judicata or collateral estoppel and whether Respondent is entitled to an award of attorney fees and costs.

PRELIMINARY STATEMENT

After issuance of a No Cause determination to Petitioner's initial complaint and No Cause Redetermination to a Request for Redetermination, Petitioner instituted a Petition for Relief with the Division on July 30, 1991.

On January 2, 1992, prior to the Division of Administrative Hearings' hearing, Petitioner commenced an action in Federal District Court, Middle District of Florida, Jacksonville Division, against Respondent. Petitioner's counsel, Mr. Bacharach represents Petitioner/Plaintiff in the federal litigation. Respondent was unaware of the federal action until on or about May 5, 1992, when service was actually effected. Commencement of an ADEA action in

federal court stays any and all state actions and this action was stayed by Hearing Officer Benton after the Division's hearing was held. 29 U.S.C.A. Section 633(a).

Once the Respondent was aware of the ADEA action and its eventual outcome, Respondent filed a Motion for attorney fees and costs and a Motion to Dismiss. Petitioner filed written responses to those Motions. The motions, responses and legal argument contained in those documents have been considered by the Hearing Officer in the preparation of this Order.

FINDINGS OF FACT

1. On January 2, 1992, Petitioner commenced an action in federal district court pursuant to the federal Age Discrimination in Employment Action ("ADEA"),

   29 U.S.C. 621, et seq. The summons and complaint were not served upon Respondent until May, 1992. By statute, the filing of said federal action stayed the matter pending before the Florida Commission on Human Relations. 29

   U.S.C. Section 633(a). Petitioner could have but did not bring an age discrimination claim under Chapter 760, Florida Statutes, in his federal court case.

   
   

2. On February 23, 1993, the United States District Court for the Middle District of Florida entered an order granting summary judgment for Respondent, Grumman Aerospace Corporation against Petitioner George E. Stolworthy. The district court held that "there is simply no evidence that Plaintiff's termination was motivated by a discriminatory intent on the part of the Defendant.

   
   

3. Petitioner appealed the decision of the District Court to the Eleventh Circuit Court of Appeal. On or about February 14, 1994, the Eleventh Circuit affirmed the District Court's order of summary judgment.

   
   

4. Mr. Stolworthy's claim of age discrimination before the Florida Commission on Human Relations arises out of the same common nucleus of operative facts as his age discrimination claim in federal court. Both cases allege age discrimination in the termination of Petitioner's employment.

   
   

5. All of the issues in this case were decided in favor of Respondent by the United States District Court, Middle District of Florida, on February 23, 1993. The district court held that Respondent did not discriminate against Petitioner. The district court's decision was affirmed by the Eleventh Circuit Court of Appeal on February 14, 1994. That decision effectively resolves this matter either through the doctrine of res Judicata or collateral estoppel. Therefore, the Petition for Relief should be dismissed and jurisdiction relinquished to the commission for entry of the appropriate final order.

   
   

6. Finally, Petitioner was aware that he commenced an action against the Respondent herein in federal district court alleging violations of the ADEA and involving the same set of operative facts before the administrative hearing was held in February 13, 1992.

   
   

7. At the time of the hearing, Respondent's counsel was unaware that Petitioner had commenced the aforementioned lawsuit.

   
   

8. Additionally, neither Petitioner nor his counsel advised the Florida Commission on Human Relations or the Hearing Officer of the initiation of the federal lawsuit. Rather, Petitioner, through his counsel, continued to file

   documents with the Division in violation of Section 120.57(1)(b), Florida Statutes.

   
   

9. Specifically, Petitioner pursued the instant action for an improper purpose knowing full well that the agency's jurisdiction should have been suspended, and could only have intended to improperly harass Respondent; to improperly utilize the Divisions hearing process for either discovery for the federal case or a trial run for the federal case; to improperly cause needless increase in the cost of the litigation to Respondent; and to improperly waste this agency's time.

   
   

10. Respondent incurred attorney's fees and costs and expenses in the amount of $13,506.39 dollars.

    
    

11. Moreover, after review of the transcript and evidence in this case it is clear that this action had no basis in fact or law and was therefore frivolous in nature. Therefore Respondent is entitled to an award of attorneys fees and costs in the amount of $13,506.39.

    
    

    CONCLUSIONS OF LAW

    
    

12. A judgment on the merits is conclusive as to all matters which were or could have been determined in an earlier action and is res judicata to the second action. Casines v. Murchek, 766 F.2d 1494 (11th Cir. 1991).

    
    

13. The doctrine of res judicata applies to bar an action when four conditions occur, namely: (1) identity in thing sued for; (2) identity of cause of action; (3) identity of persons and parties to actions; and (4) identity of persons and parties for or against whom the claim is made. Donahue v. Davis, 68 So.2d 163 (Fla. 1953).

    
    

14. The four conditions required to make a matter res judicata are present in the instant case. The claims (age discrimination) and parties are identical. Petitioner is seeking the same relief before the agency that he sought in federal court. In fact, federal cases under the Age Discrimination in Employment Act are followed by the Florida Commission on Human Relations in interpreting the state law.

    
    

15. Petitioner received a final judgment as to the absence of any age discrimination in federal court. Final judgment by a court of competent jurisdiction bars a subsequent suit between the same parties and on the same cause of action not only as to all matters that were litigated in the first proceeding but also as to all issues that could have been litigated. Interstate Pipe Maintenance, Inc. v. FMC Corp., 775 F.2d 1495 (11th Cir. 1985).

    
    

16. Petitioner has attempted to split his claims. The doctrine of res judicata prevents claim splitting and encourages judicial economy. The Division of Administrative Hearings recommended an order of dismissal, involving state handicap discrimination claims, based on a federal court action enjoining the petitioner from pursuing his charge before the Florida Human Relations Commission. See Smith v. Georgia Pacific Corp., 11 FALR 4934 (Fla. Comm'n on Human Relations 1989). The federal court based the injunction on the doctrine of res judicata. The federal court action removed the case from the jurisdiction of the state agency because the actions involved the same claims, because petitioner could have brought state action in federal court and the federal court had already determined the issue in controversy.

17. Therefore, Respondent is entitled to dismissal, with prejudice, of the Petition before the Florida Commission on Human Relations based on the doctrine of res judicata.

    
    

18. In the alternative, Respondent is entitled to a dismissal, with prejudice, based on the doctrine of collateral estoppel, or issue preclusion. The federal district court determined that Respondent did not discriminate against Petitioner. The doctrine of collateral estoppel applies where the causes of action in two suites are different and parties in both suites are identical. City of Tampa v. Lewis, 488 So.2d 860 (2d DCA 1986). Collateral estoppel prevents parties from litigating in a second suit issues common to both causes of action and which were actually adjudicated in the prior litigation. Seaboard Coast Line R. Co. v. Industrial Contracting Co., 260 So.2d 860 (4th DCA 1972). Even if the doctrine of res judicata did not apply, Respondent would be entitled to a dismissal on this independent ground.

    
    

19. Finally, Section 120.57(1)(b), Florida Statutes, states:

    
    

    5. All pleadings, motions, or other papers filed in the proceeding must be signed by a party, the party's attorney, or the party's qualified representative. The signature of a party, a party's attorney, or a party's qualified representative constitutes a certificate that

    he has read the pleading, motion, or other paper and that, to the best of his knowledge, information, and belief formed after reasonable inquiry, it is not interposed for any improper

    purposes, such as to harass or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the hearing officer, upon motion or his own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order

    to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

    
    

20. In this case, commencement of a lawsuit in federal district court alleging violations of ADEA automatically stays all state actions. 29 U.S.C.A. Section 633(a). However, Petitioner never bothered to notify the Respondent, the Hearing Officer or the Commission prior to the Division's hearing so that the administrative process could have been stayed. The continuation of the administrative process by Petitioner, knowing that the federal action was pending was for an improper purpose and violated Section 120.57(1)(b)(5) Florida Statutes.

    
    

21. Additionally, Petitioner filed a frivolous claim.

    
    

22. Therefore, pursuant to Section 120.57(1)(b)(5), Florida Statutes (1991), the award of attorney fees and costs in the amount of $13,506.39 is appropriate in this action.

DONE and ORDERED this 28th day of November, 1994, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 28th day of November, 1994.

COPIES FURNISHED:

N. Albert Bacharach, Jr., Esq.

101 S.E. 2nd Place, Suite 116 Gainesville, FL 32601

Leslie Joyce Goldstein, Esq. 1111 Stewart Avenue

Bethpage, NY 11714

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 Order. Any exceptions to this Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-005273

Orders for Case No: 91-005273