STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

GEORGIE BREVILLE, EEOC Case No. NONE

Petitioner, FCHR Case No. 2011-02551

v. DOAH Case No. 13-0027

FLORIDA DEPARTMENT OF ECONOMIC FCHR Order No. 13-030 OPPORTUNITY,

Respondent.

                                                                   /

ORDER REMANDING CASE TO ADMINISTRATIVE LAW JUDGE FOR FURTHER PROCEEDINGS ON PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

This matter is before the Commission for consideration of the “Order on Respondent’s Motion to Relinquish Jurisdiction,” dated February 6, 2013, issued in the above-styled matter by Administrative Law Judge Suzanne Van Wyk.

Findings of Fact and Conclusions of Law

Judge Van Wyk’s order was issued in response to “Respondent’s Motion to Relinquish Jurisdiction.”

The order reflects that in that motion Respondent argues that Petitioner’s complaint is untimely, having been filed beyond the statute of limitations for claims of employment discrimination under the Florida Civil Rights Act of 1992.

The Administrative Law Judge found that Petitioner’s cause of action in this matter began to run on September 20, 2010, the date Petitioner was notified of her termination, rather than October 1, 2010, the effective date of her termination and that, therefore, Petitioner’s complaint, filed with the Commission on September 29, 2011, was untimely, having been filed more than 365 days after September 20, 2010.

While we agree with the Administrative Law Judge’s treatment of the “termination” issue, we note that the complaint contains allegations other than unlawful termination. Respondent’s Motion to Relinquish Jurisdiction argues that none of these allegations are alleged to have occurred between September 29, 2010 and October 1, 2010. The Administrative Law Judge granted Respondent’s motion without specific mention of these allegations.

Parenthetically, while the proceeding before the Administrative Law Judge is de novo (See Section 120.57(1)(k), Florida Statutes (2012)), we note that the Commission’s Investigative Memorandum, placed before the Administrative Law Judge by Petitioner as an attachment to the Petition for Relief and by Respondent as an attachment to “Respondent’s Motion to Relinquish

Filed May 1, 2013 11:42 AM Division of Administrative Hearings

FCHR Order No. 13-030

Page 2

Jurisdiction,” states “…none of Complainant’s allegations besides the discharge occurred within this three day time period…” of September 29, 2010 to October 1, 2010.

Nevertheless, in our view, the record as it existed before the Administrative Law Judge did not contain filings / evidence on which to conclude that none of the allegations set out in the complaint were timely. While this finding may be the eventual outcome, we conclude the matter should be remanded to the Administrative Law Judge for further proceedings on the Petition for Relief with regard to allegations other than Petitioner’s termination that may have occurred within 365 days of the filing of the complaint.

In so doing, we recognize that the Petition for Relief may not contain allegations that were not initially contained in the complaint of discrimination. See, Bratcher v. City of High Springs, FCHR Order No. 11-091 (December 7, 2011), and cases cited therein.

We adopt the Administrative Law Judge’s finding as to when Petitioner’s cause of action for unlawful termination began to run in this matter and conclude that the complaint was untimely as to the allegation of unlawful termination. Accord, McCann v. University of Central Florida, 19 F.A.L.R. 1486 (FCHR 1995).

Exceptions

Petitioner filed a document with the Commission on or about February 8, 2013, in the form of an e-mail to the Clerk of the Commission.

There is no indication that this document was served on Respondent as is required by Fla.

Admin. Code R. 28-106.104(4) and Fla. Admin. Code R. 28-106.110. However, the Commission published the document to the Respondent, and placed the document in the record of this case, through the issuance of a Notice of Ex Parte Communication, mailed to the parties on February 13, 2013.

Generally, the document excepts to the Administrative Law Judge’s relinquishing jurisdiction of the case to the Commission for issuance of a final order of dismissal, and suggests that Petitioner felt she had more time than she was given to respond to Respondent’s Motion to Relinquish Jurisdiction.

Given our disposition of this case by this Order, we find it unnecessary to specifically rule on Petitioner’s exception document.

Remand

This Order disposes of all motions pending before the Commission, including

“Complainant’s Motion to Reinstate Complaint,” received by the Commission on March 7, 2013.

The Petition for Relief and Complaint of Discrimination are REMANDED to the Administrative Law Judge for further proceedings as indicated above.

FCHR Order No. 13-030

Page 3

DONE AND ORDERED this 1st day of        May           , 2013. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson; Commissioner Onelia Fajardo-Garcia; and Commissioner James Johns

Filed this 1st day of        May           , 2013, in Tallahassee, Florida.

                        /s/                                      Violet Crawford, Clerk

Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Georgie Breville

2678 Southwest 14th Drive Gainesville, FL 32608

Florida Department of Economic Opportunity c/o Michael B. Golen, Esq.

107 East Madison Street Tallahassee, FL 32399

Suzanne Van Wyk, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 1st day of        May           , 2013.

By:        /s/                                         Clerk of the Commission

Florida Commission on Human Relations

Crawford, Violet

From: Sent: To: Subject:

Georgie Breville <brev.georgie@gmail.com> Friday, February 08, 2013 4:09 PM

Crawford, Violet

Breville v/s DOE FCHR No 201102551/DOAH #13-0027

Dear Ms. Crawford:

This message is to seek clarification and a written response regarding the substance of our recent telephone conversation yesterday (February 7, 2013).

As you know, the administrative judge in the DOAH case #13-0027 issued a dismissal of my complaint on the basis of being untimely filed. The order also stated that I the time had elapsed for a response from me to the Respondent's Motion to Dismiss and that therefore, DOAH could issue the dismissal. I was under the impression that the rules allowed me 30 days to respond to Respondent's Motion, in which case the time has not yet elapsed for my response.

As I discussed with you, Respondent has repeatedly mis-characterized my complaint as being merely about my termination. I have repeatedly stated that my complaint is about a continuing violation that included harassment that continued into my final day of employment.

Inasmuch as the DOAH proceedings are de nova, any ultimate ruling cannot be limited by the generalised statements contained in my petition, so a dismissal on the basis of a lack of evidence is inappropriate when rendered before the time for discovery has closed. I understood that the DOAH record had to be developed "de nova" and any DOAH ruling would not be dependent upon the FCHR record which was woefully inadequate.

During our phone conversation, you directed me to send my interrogatories/request for production to you at FCHR not the Respondent because of the dismissal. You also stated that you would refer my case back to FCHR for some purpose. I also checked under my docket in the eALJ website, the last posting was 'Case Closed'

Would you kindly clarify for me what you see as being the current posture of my case? to date. I am self represented.

Should I send the the requests for discovery to the Respondent? Should I file a Motion for Reconsideration of the Dismissal Order? Given the fact of the Dismissal Order, won't Respondent simply ignore my requests for discovery? What relief can FCHR provide since it has issued a finding of no cause which triggered my right to petition DOAH?

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Thank you for your assistance. Sincerely,

Georgie M. Breville

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Docket for Case No: 13-000027

Orders for Case No: 13-000027