The Issue Whether Respondent, Home Depot, is liable to Petitioner for unlawful discrimination in employment based on race, in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11 and 509.092, Florida Statutes.
Findings Of Fact Petitioner did not attend the final hearing. Petitioner’s counsel appeared at the final hearing and moved for continuance ore tenus, stating that Petitioner was taking a final exam and that neither Petitioner nor her counsel was aware the exam date conflicted with the hearing date when the hearing was set. Respondent, who had traveled from Orlando to attend the final hearing, opposed Petitioner’s Motion. Upon consideration of Petitioner’s Motion, Respondent’s argument against a continuance, the fact that there was no emergency, and the motion was untimely under Florida Administrative Code Rule 28-106.210 (“Except in cases of emergency, requests for continuance must be made at least five days prior to the date noticed for the hearing”), as well as the circumstances outlined above, Petitioner’s Motion for Continuance was DENIED. Following the denial of Petitioner’s Motion for Continuance, Petitioner’s counsel stated that Petitioner was his only witness. Petitioner’s counsel offered no evidence into the record.
Recommendation Based upon the foregoing, and Petitioner having failed to meet her burden of proof, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order dismissing this case. DONE AND ENTERED this 27th day of December, 2012, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2012. COPIES FURNISHED: Chelsie J. Flynn, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 Sheldon Jerome Vann, Esquire Law Offices Of Sheldon J. Vann and Associates 841 Prudential Drive Jacksonville, Florida 32207 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner waived his statutory rights to pursue a cause of action under the Florida Civil Rights Act of 1992 when he signed a post-termination agreement containing a general release of all claims against the Respondent, thus rendering the Florida Commission on Human Relations without jurisdiction.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Bovea was employed by Mercantil Banco Universal ("Banco Universal"), a Venezuelan corporation, from October 27, 1986, to June 15, 2003. During this time, Mr. Bovea worked in Venezuela, and he eventually became manager of the Banco Universal's call center, which handled inquiries from customers. Mr. Bovea also earned an undergraduate degree and a master's degree in business administration. Mr. Bovea was promoted and transferred to Miami, Florida, where, on June 16, 2003, he began working as the manager of the call center for Commercebank, which is incorporated in the United States. Upon his separation from Banco Universal, Mr. Bovea was paid the employment benefits that were due to him under Venezuelan law for his employment that commenced in October 1986 and ended on June 15, 2003. In 2005, Mr. Bovea was promoted to manager of global electronic banking operations for both Commercebank in Florida and Banco Universal in Venezuela. He had a supervisor in Venezuela, Hilda Monsalve, and also one in Miami, Florida, Herbie Folgueira. After he was promoted in 2005, Ms. Monsalve told Mr. Bovea that she wanted him to work with her in Venezuela at Banco Universal and that he should request a transfer from Commercebank. Ms. Monsalve continued to ask him to transfer to Venezuela during 2005, 2006, and 2007, and Mr. Folgueira, Mr. Bovea's supervisor at Commercebank in Miami, also told him during this time that he would have to go back to Venezuela. Mr. Bovea did not request the transfer because he wanted to remain in Miami, and he chose to search for a different position with Commercebank in Miami. Finally, Ms. Monsalve told Mr. Bovea in or around September 2007 that his opportunity to transfer to Venezuela would expire on December 31, 2007. Mr. Bovea met several times with Magdalena Mata, Commercebank's Human Relations Manager, to discuss any job vacancies that he might fill with Commercebank in Miami. Mr. Bovea's final meeting with Ms. Mata was on December 20, 2007, when Ms. Mata reviewed the vacant positions and told him that there was nothing available for him at that time. Ms. Mata advised Mr. Bovea that he had until December 31, 2007, to find a position with Commercebank or his employment would be terminated. At the December 20, 2007, meeting, Ms. Mata gave Mr. Bovea a document entitled "Separation Agreement," and she read the entire document to Mr. Bovea and explained it to him. The Separation Agreement provided that Mr. Bovea would be separated from employment with Commercebank and all its affiliated companies effective December 31, 2007. It also provided that Commercebank would pay Mr. Bovea six weeks' base salary, less payroll deductions, "in full satisfaction of any and all claims" and that this sum "is not a benefit to which Employee would otherwise be entitled as a result of Employee's employment" with Commercebank and its affiliated companies. Ms. Mata advised Mr. Bovea that he had 21 days, or until January 10, 2008, in which to sign the Separation Agreement and return it to her. Ms. Mata also told Mr. Bovea that, if he obtained another position at Commercebank, the Separation Agreement would be invalid. Mr. Bovea asked Ms. Mata if he was entitled to any benefits under Venezuelan law. She told him she was not familiar with Venezuelan law. She later telephoned him and told him he should speak with her counterpart in Venezuela, Jose Gregorio Silverio, to discuss any benefits to which he would be entitled as a result of his employment between June 2003 and December 2007. Mr. Bovea left for vacation in Venezuela on December 21, 2007, and he contacted Mr. Silverio at the Banco Universal. Mr. Silverio arranged to meet with Mr. Bovea early on the morning of January 8, 2008, the day Mr. Bovea was to leave Venezuela to return to Florida. Mr. Bovea believed that he and Mr. Silverio would discuss any benefits to which he might be entitled under Venezuelan labor and employment law. Mr. Bovea and Mr. Silverio were acquainted because they had worked together through the years he had been employed by Banco Universal, but they were not friends. As a result of their relationship as colleagues, Mr. Bovea trusted Mr. Silverio, and, as described by Mr. Bovea, the meeting was cordial and friendly. Mr. Bovea estimated that his meeting with Mr. Silverio lasted about one hour. Mr. Silverio began the meeting by advising Mr. Bovea that the purpose of the meeting was to discuss his employment situation. After Mr. Bovea told Mr. Silverio his story about what had happened, Mr. Silverio produced a document that Mr. Bovea was to sign and a check. Mr. Silverio told Mr. Bovea that the purpose of the document, which was a settlement agreement, and the check was to protect the company and its image. The settlement agreement was presented to Mr. Bovea in Spanish, his native language. The first paragraph of the settlement agreement stated in pertinent part that Mr. Bovea and Banco Universal, identified in the settlement agreement as the "COMPANY," "agreed, based on our freedom to contract, to sign this document describing the reason for voluntarily terminating our employment relationship, in accordance with the settlement agreement regulating the economic aspects of voluntarily [sic] termination of the employment relationship."1 The first clause of the Background section of the settlement agreement, on page one of the document, confirmed that Mr. Bovea had been employed by Banco Universal in Venezuela and by Commercebank in the United States, both of which were owned by Mercantil Servicios Financieros C.A. ("Mercantil"), and the second clause provided the Mr. Bovea's employment extended from October 27, 1986, through December 31, 2007, the inclusive dates of his employment with Banco Universal and Commercebank. The settlement agreement provided that Mr. Bovea agreed, in exchange for the payment of 175,000 Strong Bolivars, or approximately $81,000.00, that he had no further claims against Banco Universal or any other company or entity related to Banco Universal, "based on its activities, nor for any other item" and that the purpose of the settlement amount was "to finally resolve all claims, disagreements, and disputes between the EMPLOYEE and the COMPANY." The settlement agreement also provided that Mr. Bovea released the COMPANY, as well as any other entity or parent, subsidiary, or related company, without any remaining pending obligation or responsibility between the parties. In addition, it is deemed that the settlement indemnity set forth in this document resolves any difference that could arise based on activities at institutions forming the group of companies [known as] MERCANTIL SERVICIOS FINANCIEROS C.A. The settlement agreement contains several other provisions to the same effect. At the January 8, 2008, meeting, Mr. Silverio and Mr. Bovea discussed benefits that might be due Mr. Bovea under Venezuelan law. Mr. Silverio told Mr. Bovea that, as set out in the settlement agreement, he was entitled to no benefits in addition to those he had received in June 2003, when he left his employment with Banco Universal and moved to the United States to work at Commercebank in Miami, Florida. Mr. Silverio also told Mr. Bovea that he was owed nothing under Venezuelan law as a result of his employment with Commercebank in Miami. Mr. Silverio advised Mr. Bovea that the check accompanying the settlement agreement, which was in the amount of 175,000 Strong Bolivars, or about $81,000.00, was the best deal Mr. Bovea could get because, even if Mr. Bovea was owed benefits under Venezuelan law, they would be less than the amount he was being offered. Mr. Silverio also told Mr. Bovea that he needed to sign the settlement agreement that day or it would be withdrawn. Mr. Bovea asked Mr. Silverio whether he could sign the settlement agreement presented to him by Mr. Silverio and the Separation Agreement presented to him by Ms. Mata in Miami. Mr. Silverio told him that the two documents were "mutually exclusive." Mr. Bovea testified that he believed this meant that the agreements were "complementary" and that he had the option of signing both. Mr. Bovea asked Mr. Silverio if he could consult his attorney regarding the settlement agreement, and Mr. Silverio told him that he could call his attorney but that he could not take the document outside of the bank. Mr. Bovea did not, however, have an attorney in Venezuela, so he had no one to call. Mr. Silverio told Mr. Bovea that he had arranged for an independent attorney, Ingrid Zuleima Castro Aldana, to be present to answer any questions Mr. Bovea might have about the settlement agreement. According to Mr. Bovea, Ms. Aldana did not enter the room until after he had signed the settlement agreement, but, in any event, Mr. Bovea did not ask her any questions regarding the document. Mr. Silverio gave Mr. Bovea the opportunity to review the settlement agreement, and Mr. Bovea looked through it. Mr. Bovea understood that the settlement agreement was a legal document that was a binding agreement, but he also noted that it was lengthy and complex. A Notary Public was present and prepared a certification statement in which he indicated that Sergio E. Rodriguez Bastardo, Mr. Bovea, and Ms. Aldana were present in the room when he arrived, together with two witnesses; there is no indication that Mr. Silverio was present at the signing. The Notary Public acknowledged in the statement that he had received a copy of the settlement agreement on January 7, 2008, for his review and that the parties all attested that the signatures appearing on the document were theirs and that the contents of the document were true. In Venezuela, a Notary Public is an employee of the government and must be a lawyer with at least five years' experience. It is the responsibility of the Notary Public to review the documents presented to him and to be prepared to answer questions about the documents. Mr. Bovea did not ask the Notary Public any questions about the settlement agreement. After signing the settlement agreement, Mr. Bovea received a check for 175,000 Strong Bolivars, which he cashed. Mr. Bovea has not returned or offered to return this money.2 At the January 8, 2008, meeting, Mr. Bovea, who was single, discussed with Mr. Silverio his belief that he had been discriminated against because of his marital status, especially by Ms. Monsalve, his supervisor at Banco Universal in Venezuela. Mr. Bovea and Mr. Silverio discussed Mr. Bovea's complaints of discrimination, and Mr. Bovea told Mr. Silverio that he thought he had a claim for employment discrimination under the laws of Florida and of the United States. Mr. Bovea had previously, on or about July 2007, discussed his claims that he was the object of employment discrimination with Mr. Silverio, and he told Mr. Silverio that he believed his termination was to retaliate against him because of his discrimination complaints. On or about January 10, 2008, Mr. Bovea telephoned Ms. Mata and told her that he was not going to sign the Separation Agreement she had offered to him in Miami. Summary The evidence presented by Mr. Bovea is insufficient to establish with the requisite degree of certainty that he did not knowingly and voluntarily release all claims against Banco Universal and Commercebank by signing the settlement agreement presented to him by Mr. Silverio and taking the check presented to him in the amount of 175,000 Strong Bolivars. Mr. Bovea presented himself through his testimony as being confused by everything that "happened" to him, but it is also clear from his testimony that he was very aware of his situation. He knew his employment with Commercebank and its affiliates would terminate on December 31, 2007; he knew that the document Ms. Mata presented to him and discussed with him in detail on December 20, 2007, was a separation agreement; and he knew that, in exchange for a severance payment, the Separation Agreement provided that he would release Commercebank and its affiliates from any claims he might have against them should he sign the agreement.3 Mr. Bovea's testimony that, when he met with Mr. Silverio on January 8, 2008, he was unaware that his employment with Commercebank and Banco Universal was terminated and that he was confused about the purpose and effect of the settlement agreement presented to him by Mr. Silverio is not persuasive. Mr. Bovea is an experienced businessman, having earned a master's degree in business administration and having been in middle management with Banco Universal and Commercebank for many years. Mr. Bovea was given the opportunity to read the document; to call a lawyer of his choice regarding the document; and to ask questions about the document of an independent lawyer retained on his behalf by the bank. The document clearly states in numerous places that the purpose of the settlement agreement was to settle all claims Mr. Bovea might have against Banco Universal and its affiliates, which would include Commercebank, in return for 175,000 Strong Bolivars and that the effect of the document was to resolve all "claims, disagreements, and disputes" Mr. Bovea might have with Banco Universal and its affiliates. This language appears in bold typeface under the section of the document entitled "SETTLEMENT." Mr. Silverio gave Mr. Bovea the opportunity to read the settlement agreement presented to him on January 8, 2008, and to contact his lawyer, but the amount of time Mr. Silverio gave Mr. Bovea was inordinately short. Nonetheless, the amount of time Mr. Bovea had to review the document and the opportunity he had to consult with an independent lawyer was, under the circumstances, adequate to apprise Mr. Bovea that he would be giving up his claims against Banco Universal and its affiliates. It is clear from his testimony that Mr. Bovea was aware that the Separation Agreement presented to him by Ms. Mata on December 20, 2007, included a release of any claims he might have against Commercebank and its affiliates, and he had had ample time to consider the terms of the Separation Agreement. During the January 8, 2008, meeting, Mr. Silverio and Mr. Bovea discussed the relationship between the Separation Agreement presented to Mr. Bovea in Miami and the settlement agreement Mr. Silverio had presented to him, and Mr. Bovea's primary concern was whether he could sign the Separation Agreement and receive the six weeks' of salary pursuant to that document and also sign the settlement agreement presented by Mr. Silverio and receive the approximately $81,000.00 offered in that agreement. Mr. Bovea testified that Mr. Silverio told him the Separation Agreement presented to him by Ms. Mata and the settlement agreement presented to him by Mr. Silverio were "complementary" and "mutually exclusive." The use of these two terms is contradictory, since "complementary" means that one document supplements the other, while "mutually exclusive" means that either document excludes the other. Both agreements, however, expressly provide that they govern the employment relationship between Mr. Bovea and both Banco Universal and Commercebank, as affiliates of one another. Given the level of Mr. Bovea's education and the clear intention expressed in the documents themselves that the Separation Agreement and the settlement agreement each apply to both Banco Universal and Commercebank, Mr. Bovea's testimony that he thought the one agreement applied only to his employment in the United States and the other applied only to his employment in Venezuela, especially since he had dual employment in the United States and Venezuela from 2005 until his termination in December 2007, is not creditable. With respect to the sufficiency of the consideration paid to Mr. Bovea under the settlement agreement, Mr. Bovea presented no evidence to establish the amount to which he was entitled under Venezuelan law. He merely expressed his belief that he was entitled to much more than the 175,000 Strong Bolivars he accepted upon signing the settlement agreement and stated that he had filed suit in Venezuela claiming that the amount he accepted was inadequate under Venezuelan law. In the absence of a verdict in the Venezuelan case, it was incumbent upon Mr. Bovea to provide proof that the consideration paid under the settlement agreement was much less than the amount to which he was entitled. Finally, although the settlement agreement presented to Mr. Bovea by Mr. Silverio indicated that it would be presented to a labor official in the Venezuelan government "to approve this settlement so that it may be deemed as res judicata," the failure of Banco Universal to obtain the signature of a labor official does not affect the legal validity of the settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Gabriel Bovea released his claims for employment discrimination and retaliation against Commercebank and dismissing Mr. Bovea's Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 30th day of June, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 30th day of June, 2009.
The Issue Whether Petitioner is entitled to attorneys’ fees under 57.111, Florida Statutes.
Findings Of Fact After waiting for approximately 15 minutes after 9:00 a.m. on May 9, 2016, at the undersigned's directions, the undersigned’s assistant contacted Petitioner's counsel by telephone. During that conference call, Petitioner's counsel advised that he had received the Notice of Hearing scheduling this case, but that he had erroneously failed to properly calendar the hearing. Petitioner’s counsel was advised that the parties should assemble as scheduled on May 10, 2016. Following the phone call, Petitioner’s counsel filed Petitioner’s Counsel’s Apology to the Court & Opposing Party, in which Petitioner’s counsel took responsibility for failing to appear. Thereafter, on May 10, 2016, at 8:00 a.m., Respondent’s counsel filed Respondent’s Motion to Dismiss for Failure to Prosecute. When the final hearing was reconvened at 9:00 a.m., May 10, 2016, Petitioner's counsel appeared with co-counsel, his client’s representative, and witnesses. The undersigned heard argument on Respondent’s Motion to Dismiss for Failure to Prosecute. As noted in the Motion to Dismiss for Failure to Prosecute, “Petitioner has continually confounded these proceedings by failing to timely file affidavits to initiate these [consolidated] cases [and] failing to timely respond to discovery.” It is further found that Petitioner’s failure to appear as properly noticed on May 9, 2016, was without good cause, and Petitioner failed to prosecute the case as scheduled. As the proponent of its claim for attorney’s fees and costs under section 57.111, Florida Statutes, Petitioner had the initial burden of proof to demonstrate by a preponderance of the evidence that it qualifies for relief under section 57.111. By failing to appear for the May 9, 2016, hearing, Petitioner failed to meet its burden. Upon consideration of Respondent’s Motion to Dismiss for Failure to Prosecute, as well as Petitioner’s Counsel’s Apology to the Court & Opposing Party, and further considering the pleadings, motions, and procedural posture of this case and the underlying proceedings, Respondent’s Motion to Dismiss for Failure to Prosecute was GRANTED.
The Issue Whether subject signs were properly permitted and which subject sign on Hacienda Drive was also unsightly and not permitted.
Findings Of Fact Subject signs were not properly permitted and subject sign on Hacienda Drive was also unsightly.
The Issue Whether subject sign violates the set-back requirements and whether said signs are properly permitted.
Findings Of Fact Sign violates the sat-back requirement of Chapter 479. Sign has no current permit.
The Issue The issue presented is whether Florida Administrative Code Rule 69O-170.105(1)(d), is an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent Office of Insurance Regulation (formerly the Florida Department of Insurance) regulates the insurance industry in Florida. Petitioner Service Insurance Company is an insurance company duly licensed and regulated by Respondent Office. During its regular session, the 1996 Florida Legislature added Subsection (6) to Section 627.062, Florida Statutes, effective January 1, 1997. That Subsection provided as follows: (6)(a) After any action with respect to a rate filing that constitutes agency action for purposes of the Administrative Procedure Act, an insurer may, in lieu of demanding a hearing under s. 120.57, require arbitration of the rate filing. Costs of arbitration shall be paid by the insurer. (b) Arbitration under this subsection shall be conducted pursuant to the procedures specified in ss. 682.06-682.10. Either party may apply to the circuit court to vacate or modify the decision pursuant to s. 682.13 or s. 682.14. The department shall adopt rules for arbitration under this subsection, which rules may not be inconsistent with the arbitration rules of the American Arbitration Association as of January 1, 1996. [Emphasis added.] Assumedly in anticipation of the effective date of the new arbitration option, on November 8, 1996, the Department of Insurance published in the Florida Administrative Weekly its notice of development of proposed rules for rate filing arbitration pursuant to Section 627.062(6), Florida Statutes. On February 28, 1997, the Department published its proposed rules. Proposed Rule 4-170.105 was entitled "Costs, Expenses and Fees of the Arbitration" and read as follows: Notwithstanding anything to the contrary in the Florida Arbitration Code or in the AAA Rules, all costs, expenses and fees of a rate filing arbitration shall be paid by the initiating party. For purposes of these rules, costs, expenses and fees of a rate filing arbitration include, but are not limited to, the following items: Filing fees payable to the American Arbitration Association pursuant to the AAA Rules incidental to the rate filing arbitration. Service, processing, hearing, postponement/cancellation, travel, hearing room rental and/or any other administrative fee, charge or expense referred to in the Florida Arbitration Code, in the AAA Rules, or elsewhere. Court reporter costs, expenses and fees for an expedited transcript of all arbitration hearings, and all costs associated with the taking by any party of a deposition of any expert or non-expert witnesses. Expert witness fees, costs and expenses, for any expert or experts retained by any party or by the arbitration panel, including all costs, expenses and fees related to the taking by any party of a deposition of any such expert witness(es), and all costs, expenses and fees related to the appearance and testimony of such expert or experts during the arbitration hearing. Payments to, for, or on behalf of each of the members of the arbitration panel in compensation for their services and in reimbursement of all reasonable and necessary expenses incurred by each in connection with the arbitration proceeding. Any other cost or expense incurred by any party to the arbitration and deemed by such incurring party to be necessary for an effective and proper presentation of such party’s case to the arbitration panel, except that each party shall bear its own attorneys’ fees. [Emphasis added.] Following a rule development workshop conducted by the Department of Insurance on December 4, 1996, Attorney David A. Yon sent a letter dated December 10 to the Bureau Chief of the Department's Bureau of P & C Forms and Rates regarding his concerns with several provisions of the proposed rules. As relevant to this proceeding, Yon advised the Department that: Section 627.062(6)(a) states that the "[c]ost of arbitration shall be paid by the insurer." Presumably, this provision would require the insurer to pay arbitration fees and perhaps the costs of the hearing room. However, rule 4-150.05 [sic], as drafted, provides that the insurer shall pay "all costs, expenses and fees of a rate filing arbitration" and describe [sic] in detail the type of costs that insurers will have to bear. These costs include the Department's expert witness fees and any other expenses deemed by the Department to be reasonably necessary in preparing its case. We strongly object to this provision and believe it exceeds the Department's statutory authority. As a result of Attorney Yon's concerns, a Department attorney directed a Memorandum dated January 22, 1997, to the Director of Insurer Services regarding the Department's authority to interpret the word "costs" to mean "all costs." While acknowledging that the Department's expansion of the word "costs" to include "costs, expenses, and fees" conflicted specifically with AAA Rule 49, which required that the expenses of any witnesses shall be paid by the party producing the witness, he concluded that the AAA Rule was "eclipsed" by the rate filing arbitration enabling statute. No citation is provided for that conclusion, nor is the concept of "eclipsed" explained. The Memorandum further acknowledges that the section in the Florida Arbitration Code relating to the payment of costs was specifically made inapplicable to rate filing arbitration by the Legislature. After concluding that AAA Rule 49 was "eclipsed" and that the costs rule in the Florida Arbitration Code did not apply, the attorney concluded that the enabling statute must mean "all costs." The attorney explained that the Department's interpretation would be reasonable because if the rate filing arbitration were a civil action instead, the trial judge would have discretion to consider the reasonableness of the amount and the necessity of the expense in determining the taxation of costs. The attorney concluded that the Department's interpretation of costs to mean "all costs" and to mean "costs, expenses, and fees" was reasonable. Since the Department's interpretation was reasonable, the proposed rule on costs, expenses, and fees, therefore, did not exceed powers delegated to the Department by the Legislature, in the opinion of the author of the Memorandum. Following a public hearing on the proposed rules conducted by the Department on March 28, 1997, Attorney Yon, on behalf of the American Insurance Association and the Florida Insurance Council, sent a letter to the Bureau Chief of the Department's Bureau of P & C Forms and Rates on April 8, 1997. As relevant to this proceeding, Yon advised the Department that: As addressed at the workshop, all interested parties are concerned with proposed rule 4- 170.105, which requires insurers to bear all costs, other than attorneys' fees, associated with arbitrations. The breadth of the proposed rule contravenes the intent of section 627.062, Florida Statutes, and is not consistent with general arbitration practices, including the American Arbitration Association Rules. The statute provides at paragraph (6)(a) that, "Costs of arbitration shall be paid by the insurer." The "cost [sic] of arbitration" refers to those costs associated with conducting arbitration proceedings, not the costs of the parties in presenting their case at such proceedings. The first draft of the statute provided that the department and the insurer would each appoint an employee to the arbitration panel. There was concern that this would not make for the most effective arbitration and the language was modified to provide for nonemployees [sic]. As a result, it was agreed that the insurer would bear the costs of arbitration, with the clear implication being that cost referred to the cost of using nonemployed [sic] arbitrators. This language never contemplated that the insurer would have to pay for the department's costs of putting on its own case, including hiring expert witnesses. Finally, this provision of the rule is clearly contrary to Rule 49 of AAA's Commercial Arbitration Rules. That provisions [sic] states: The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the arbitration, including required travel and other expenses of the arbitrator, AAA representatives, and any witness and the cost of any proof produced at the direct request of the arbitrator, shall be borne equally by the parties, unless they agree otherwise or unless the arbitrator in the award assesses such expenses or any part thereof against any specified party or parties. We therefore request that the department revise the rule to eliminate the requirement that insurers pay all costs related to arbitrations and clarify that the rules do not require insurers to fund preparation of the department's arbitration cases. On April 9, 1997, the Regional Manager for the Southern Region of the Alliance of American Insurers sent a letter to an attorney for the Department noting certain concerns with the Department's proposed rate filing arbitration rules. Among the concerns raised was the following: Our reading of Chapter 627.062(6)(a), FS[,] shows that an insurer pay only arbitration costs rather than all costs. We note that a requirement to pay all costs without consent by either party is inconsistent with commercial arbitration rules (see AAA Rule 49, specifically page 18 and 21 relative to administrative fees and hearing fees and page 22 relative to postponement/cancellation and processing fees). By letter dated April 16, 1997, a Staff Attorney for the Joint Administrative Procedures Committee (JAPC) requested the Department's Division of Legal Service to explain a number of concerns the Committee had with the proposed rules. As to the rule under challenge in this proceeding, JAPC questioned the Department's statutory authority to include the American Arbitration Association in the arbitration process contemplated by Section 627.062(6), Florida Statutes. The May 16, 1997, reply states that: "Since the statute mandates conformity to the AAA rules, we wrote the rule to be consistent with the AAA rules." The Department filed for adoption its proposed rate filing arbitration rules on August 11, 1997, and the rules became effective August 31, 1997. No changes were made to Rule 4-170.105 in its substance or language from the version published in February except for internal changes to the subsection numbers within the Rule. Under that re-numbering, Subsection (4) of the proposed Rule became Subsection (1)(d). The 2008 Legislature amended Section 627.062(6), Florida Statutes, by deleting the rate filing arbitration option and requiring that any administrative proceeding arising from the denial of a rate filing be expedited. § 10, ch. 2008-66, Laws of Fla. The amendment, effective July 1, 2008, was approved by the Governor on May 28, 2008. Admitted as joint exhibits in this proceeding were the awards from two rate filing arbitrations involving Petitioner and the Office of Insurance Regulation. In American Arbitration Association Case No. 33 195 Y 00356 07, Petitioner's demand for arbitration was filed August 20, 2007, but the arbitration hearing did not take place until February 4-6, 2009. Prior to the arbitration hearing, on November 5, 2008, Petitioner filed with the arbitrators a motion relating to the allocation of costs of the Office's proposed outside expert witness. The motion challenged the validity of the same rule at issue in this proceeding requiring that Petitioner pay all costs, including those of the Office's experts. The arbitrators ruled that AAA Rule 49, which provides that the expenses of witnesses be paid by the party producing the witness, controlled. The Office filed a motion a few days prior to the arbitration hearing seeking to have Petitioner pay the Office's expert witness costs incurred prior to the time Petitioner challenged in the arbitration the applicability of Rule 69O- 170.105 [formerly Rule 4-170.105 under the Department of Insurance]. In the Award entered April 24, 2009, the Chief Arbitrator ordered Petitioner to pay the fees, costs, and expenses of the Office's outside expert witness incurred prior to September [sic] 5, 2008. One arbitrator dissented from that requirement, and one arbitrator dissented from the entire Decision and Award. The Award required Petitioner to pay the costs allocated to it within 30 days of receipt of invoices. No evidence was offered as to when Petitioner received an invoice from or for the Office's outside expert witness. In American Arbitration Association Case No. 33 195 Y 00357 07, the arbitration hearing occurred on February 6-8, 2008. The Award was signed by two arbitrators, one of whom dissented, on June 2, 2008, and by the third arbitrator on June 4, 2008. The Award does not specifically address the payment of the costs, fees, and expenses of expert witnesses. The Award addressed in the arbitration described in Paragraphs numbered 12-14 of this Final Order, however, refers to the Award described in this Paragraph and notes that Petitioner by letter dated July 23, 2008, advised the Office that it was refusing to pay the fees and costs of the Office's expert in that related arbitration. The letter itself refers to the arbitration described in this Paragraph. On August 5, 2008, Respondent Office filed with the Division of Administrative Hearings an Order to Show Cause against Petitioner, seeking to suspend or revoke Petitioner's Certificate of Authority to transact insurance for violating Rule 69O-170.105. Service requested an administrative hearing, and the matter is currently pending before DOAH in Case No. 08- 005961. That case has been placed in abeyance pending the outcome of this rule challenge.
The Issue The issue is whether the time limit that would otherwise bar Petitioner’s claim of alleged discrimination in violation of Subsection 760.10(1), Florida Statutes (2006),1 is tolled by the doctrine of equitable tolling.
Findings Of Fact Respondent is a public university located in Gainesville, Florida. Petitioner was an employee of Respondent until October 11, 2006, when Respondent terminated Petitioner’s employment on the grounds that Petitioner had allegedly participated in the falsification of employee time records. Respondent deleted Petitioner’s name from the payroll records and stopped paying Petitioner. No continuing employment relationship existed after October 11, 2006. Respondent notified Petitioner of the proposed termination of employment by letter dated August 25, 2006. Respondent conducted two predetermination conferences on September 5 and October 5, 2006. Petitioner was represented by counsel in each predetermination conference.2 Shortly after the termination of Petitioner’s employment on October 11, 2006, Petitioner, through his attorney, filed a grievance against Respondent. The grievance was resolved against Petitioner in a final arbitration decision that was issued on October 3, 2007. Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (the Commission) on December 27, 2007, approximately 442 days after Respondent terminated Petitioner from his employment on October 11, 2006. Subsection 760.11 requires Petitioner to have filed the Charge of Discrimination within 365 days of the alleged unlawful employment practice that occurred on October 11, 2006. A preponderance of the evidence does not support a finding that the factual prerequisites for equitable tolling are present in this case. For the reasons stated hereinafter, a preponderance of the evidence does not show that Petitioner was misled or lulled into inaction, was in some extraordinary way prevented from asserting his rights, or timely asserted his rights mistakenly in the wrong forum. Petitioner did not mistakenly assert his claim of discrimination in the arbitration proceeding. The grievance decided by arbitration did not allege that Respondent discriminated against Petitioner. Nor did Petitioner allege discrimination at anytime prior to the termination of his employment, including the two predetermination conferences. Respondent did not mislead or lull Petitioner into inaction. Respondent did not represent to Petitioner that Petitioner had to wait until the conclusion of the arbitration proceeding before Petitioner could file a claim of discrimination. When Petitioner filed the grievance and participated in the arbitration, Petitioner was represented by counsel. At no time did either Petitioner or his attorney contact Respondent and ask if he could, or could not, file a claim of discrimination during the arbitration proceeding. Respondent did not, in some extraordinary way, prevent Petitioner from asserting his claim of discrimination. Respondent did not delay the arbitration unnecessarily. The delay in the arbitration was caused, in relevant part, by the unavailability of counsel for Petitioner. The first available date for all of the arbitrators was April 19, 2007. On April 17, 2007, one of the arbitrators cancelled the arbitration for medical reasons. The next available date for all of the arbitrators was August 31, 2007. The arbitration hearing occurred on August 31, 2007. The arbitrators issued the decision on October 3, 2007. The Charge of Discrimination which Petitioner filed with the Commission on December 27, 2007, does not raise any fact that was not known to Petitioner before the expiration of 365 days after the termination of employment on October 11, 2006. By July 19, 2006, Petitioner was aware of the facts on which Petitioner bases his claim of a hostile work environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Charge of Discrimination as untimely for the reasons stated in this Recommended Order. DONE AND ENTERED this 20th day of July, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2009.
