STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD M. SWINDLE, )

)

)

Petitioner, )

)

vs. ) CASE NO. 92-1594

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for consideration on Respondent's Motion To Dismiss the Petitioner's Motion For Petition For Relief From An Unlawful Employment Practice.

The foregoing Motion was served on April 1, 1992, and filed with the Division of Administrative Hearings on April 1, 1992. The Motion asserts that Petitioner's Petition For Relief fails to state a cause of action and that Petitioner is estopped from relitigating issues previously decided in a prior action between the parties. The Petitioner has not responded to this Motion.

After a careful review of the Petition, it is clear that the Petition does not identify disputed issues of material fact, does not identify a cause of action or legal theory upon which relief is sought, asserts that "the Complainant does not know why he was terminated," asks the Florida Commission On Human Relations (Commission) to speculate as to why the Petitioner was terminated, and ultimately, simply requests the Commission "to do a complete and thorough investigation."

Clearly, the Petitioner has failed to allege sufficient facts which, if proven, would make out a cause of action entitling Petitioner to relief pursuant the Human Rights Act, Sections 760.01 through 760.10, Florida Statutes. On its face, the Petition is not clearly amendable inasmuch as it states that Petitioner is not sure why he was terminated. However, assuming arguendo that since the original Charge Of Discrimination filed with the Commission, upon which the Commission found a Determination of No Cause, states that the Petitioner was discriminated against because of his handicap, that if Petitioner was allowed to amend his Petition the charge would be based on handicap.

Assuming this to be the case, then an allegation of discrimination on the basis of handicap constitutes an allegation that the alleged motivation for Petitioner's discharge from employment was pretextual, i.e., Petitioner was discharged because of his handicap rather than his job performance.

This issue has already been fully litigated in Gerald M. Swindle v.

Southwest Florida Water Management District, Case No. 90-5803, Final Order 91- 17, entered by the Southwest Florida Water Management District on March 22,

1991, wherein it was found that Petitioner's dismissal was based entirely upon Petitioner's poor job performance and that Petitioner had failed to present any evidence to show that poor job performance was not the sole reason for his termination.

Thus, even if Petitioner were permitted to amend his Petition, he could not amend it to make the allegation necessary to support a claim under Section 760.10, Florida Statutes, as the issue of pretext and the real reason for his discharge from his employment have been fully and finally litigated. The doctrine of estoppel by judgment would bar any such claim. Federal Deposit Insurance Corp. v. Hemmerle, 592 So.2d 1110 (4 DCA Fla. 1991).

It is, accordingly,

Recommended that the Commission enter a Final Order dismissing the petition with prejudice.

DONE AND ENTERED this 26th day of May, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1992.

COPIES FURNISHED:

Mark P. Graves, Esquire Joseph W. Carvin, Esquire

205 Brush Street Post Office Box 1427 Tampa, FL 33602

Gerald M. Swindle

133 Poinsettia Circle Port Charlotte, FL 33952

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113

Margaret Jones Agency Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 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: 92-001594

Orders for Case No: 92-001594