STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RHUEBEN GOLPHIN,

Petitioner,

vs.

WAL-MART STORES, INC.,

Respondent.

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) Case No. 03-3146

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RECOMMENDED ORDER OF DISMISSAL

This matter came on for consideration without hearing on October 6, 2003, on the Motion to Dismiss of Respondent,

Wal-Mart Stores, Inc.; and having considered the pleadings and argument of Respondent as stated in its motion; and no response having been filed by Petitioner, the following findings of fact are made:

1. On or about November 20, 2000, Petitioner filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Florida Commission on Human Relations ("FCHR").

2. In the Charge of Discrimination (given number 151A10358 by the EEOC), Petitioner alleged:

   Approximately September 14, 2000, I was injured on the job and no Injury Report was made and I was not placed on light duty. On October 26, 2000, I was demoted from my

   position as Sales Associate, to the position of People Greeter.

   
   

3. On November 22, 2000, the EEOC, pursuant to a worksharing agreement, forwarded the Charge of Discrimination (number 151A10358) to the FCHR, advising that it had received "the referenced charge and indicated this Agency's intention not to initially investigate the charge."

4. On August 11, 2003, the FCHR forwarded Petitioner a Notice of Dismissal and Right to Sue, which referenced "EEOC CASE NO. 151A10358" and advised as follows:

   The case was dual-filed with the EEOC, and the EEOC issued its determination that it was unable to conclude that the information obtained establishes violations of the statutes. Therefore, pursuant to the authority of Woodham v. Blue Cross & Blue Shield of Florida, 2002 WL 3125992(Fla.), the case is dismissed and Complainant may pursue this claim in the Division of Administrative Hearings within 35 days of the date of this dismissal, or in civil court within 1 year from the date of this dismissal provided such time period is not more than 4 years from the date the alleged violations occurred.

   
   

5. On or about August 20, 2003, Petitioner filed a Petition for Relief to which he assigned "FCHR No. 151A10358." The Petition for Relief alleged the following:

   I was assaulted and robbed walking home from work at University West Wal-Mart on June 2, 2001. Since then, I have had monumental problems with equilibrium, never ending and exacerbating ear pain, severe and permanent hearing loss and anxiety attack. . . .

6. The allegations of the Petition for Relief, predicated on an assault which occurred while walking home on June 2, 2001, are unrelated to the Charge of Discrimination predicated on an injury on the job of September 14, 2000, and a resulting demotion.

Based on the foregoing Findings of Fact, it is RECOMMENDED that:

The Florida Commission on Human Relations enter an order dismissing the Petition for Relief. Petitioner's factual allegations of discrimination contained in his Charge of Discrimination (a demotion in 2000) limit the allegations for which relief is sought in a Petition for Relief emanating from a Right to Sue letter concluding agency action related to those particular allegations of discrimination.

In the instant case, the Petition for Relief alleges discrimination related to an assault in 2001 and, therefore, cannot be the basis for a Petition for Relief emanating from a Right to Sue letter related to a factual situation that occurred in 2000. See Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970); Gaston v. Home Depot USA, Inc.

129 F. Supp. 2d 1355, 1365 (S.D. Fla. 2001).

DONE AND ENTERED this 7th day of October, 2003, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 7th day of October, 2003.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Rhueben Golphin

Post Office Box 172052 Tampa, Florida 33672-0052

Tammie L. Rattray, Esquire Ford & Harrison, LLP

101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602-5133

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: 03-003146

Orders for Case No: 03-003146