The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
The Issue Whether this cause is barred by a release of all claims.
Findings Of Fact On January 16, 2019, on her last day of employment with Respondent, Petitioner executed a General Release. Petitioner does not dispute that she signed the General Release, which states, in pertinent part: I knowingly and voluntarily release and forever discharge [Respondent] of and from any and all claims, known and unknown, anticipated and unanticipated, asserted and unasserted, which I have or may have against the [Respondent] as of the date of execution of this General Release. These released claims include, but are not limited to, any alleged violation of ... Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Family and Medical Leave Act; ... [and] the Florida Civil Rights Act[.] * * * By signing below, I am knowingly and freely waiving and releasing all claims I may have against the [Respondent]. I further affirm I have been given a sufficient amount of time to consider whether to sign this General Release. The subject complaint of discrimination was brought by Petitioner, after she signed the General Release, pursuant to the FCRA, which is specifically referenced as a released claim in the General Release. By executing the General Release, Petitioner released Respondent from the claims that were the basis for her complaint of discrimination. Petitioner asserts that the General Release was signed under duress, she did not give up her rights because she had not yet received her final paycheck or belongings, and that there is no proof that she received consideration for signing the general release.
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 dismissing Kathy L. McKethan’s Petition for Relief due to a lack of jurisdiction. DONE AND ENTERED this 28th day of October, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 28th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Keith L. Hammond, Esquire Law Office of Keith L. Hammond, P.A. Post Office Box 547873 Orlando, Florida 32854 (eServed) Kathy McKethan Post Office Box 953304 Lake Mary, Florida 32795 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 1075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether the Division of Administrative Hearings retains jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1), Florida Statutes, if the Charge of Discrimination has not been filed with the Florida Commission on Human Relations within 180 days of the occurrence of the alleged unlawful employment practice, pursuant to the provisions of Rule 60Y-5.001(a), Florida Administrative Code.
Findings Of Fact Petitioner is a white male, who was 58 years of age at the relevant time, and is a former associate professor in the School of Communications at the University of Central Florida. In 1988-89, Petitioner was an untenured professor, with tenure decisions pending the following year. Petitioner alleges that the director of his department began practicing a pattern of discriminatory conduct by placing false information in his evaluation file which ultimately affected his rating and with the intent to deny him tenure. On October 8, 1990, Petitioner discovered that the ratings for 1989-90 had been changed by the director of the department. As a result of this action, Petitioner filed a grievance with the United Faculty of Florida (UFF). Petitioner did not file a charge of discrimination with the Florida Commission on Human Relations (FCHR) as a result of this event. On May 16, 1991, Petitioner acknowledged receipt of an evaluation by the Chair of the department which Petitioner alleges was inaccurate and incorrect. As a result of this action, Petitioner filed a grievance with the union and with the President's office on June 7, 1991. A Settlement of the grievance was signed on September 6, 1991. On January 8, 1992, Petitioner discovered that the settlement had not been implemented by the university. On July 19, 1991, Petitioner was denied tenure and offered a terminal contract, which indicated that it would not be renewed beyond the indicated date. On August 26, 1991, Petitioner accepted the contract. On March 30, 1992, Petitioner filed with the FCHR a Charge of Discrimination. Petitioner alleged that UCF committed age discrimination against him by filing improper evaluations of his teaching performance in 1990 and again in 1991, and that as a result of that unlawful employment practice he was improperly denied tenure and placed on a terminal contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief filed by Petitioner in FCHR Case No. 92-3504 and DOAH Case No. 93-6414 for failure to timely file his original Charge of Discrimination. DONE AND ENTERED this 29th day of April, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 29th day of April, 1994. COPIES FURNISHED: Scott Silzer, Esquire University of Central Florida P. O. Box 160015 Orlando, Florida 32816-0015 Mr. Guy McCann 1510 Mizell Avenue Winter Park, Florida 32789 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Suite 240 Building F Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road, Suite 240 Building F Tallahassee, Florida 32303-4149
The Issue Whether the Division of Administrative Hearings has subject matter jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1)(b)10., Florida Statutes for costs and attorney's fees, if a decision of a case on appeal to the District Court of Appeal has not been rendered. Whether the Division of Administrative Hearings has subject matter jurisdiction for petition for attorney's fees and costs under the provisions of Section 57.111, Florida Statutes, if a decision of a case on appeal to the District Court of Appeal has not been rendered.
Findings Of Fact On December 29, 1994, the undersigned Hearing Officer issued a Recommended Order in the underlying case of Preferred Services, Inc. v. Department of Health and Rehabilitative Services and Wekiva Center Partnership, DOAH Case No. 94-4890BID, a bid dispute matter in which the Petitioner was not the prevailing party. The decision in the Recommended Order, which upheld the Department's action, was adopted by the Secretary in a Final Order, dated January 23, 1995. Petitioner timely filed a notice of appeal of the Final Order to the Florida Fifth District Court of Appeal, under the provisions of Section 120.68, Florida Statutes (1993). The court, in the matter of Preferred Services, Inc. v. Department of Health and Rehabilitative Services, DCA Case No. 95-0461, has not rendered a decision as of the date of this Order. On May 17, 1995, Petitioner filed its Motion for Attorneys Fees and Costs with the Clerk of the Division of Administrative Hearings seeking reimbursement under the alternate provisions of Sections 57.111 and 120.57(1)(b)10., Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the Petitioner's Motion for Attorney's Fees and Costs in Case No. 95-2537F is DISMISSED without prejudice, for lack of jurisdiction, and this case is closed. DONE AND ENTERED this 15th day of June, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of June, 1995. COPIES FURNISHED: Terrence William Ackert, Esquire Post Office Box 2548 Winter Park, Florida 32790 Eric D. Dunlap, Esquire Assistant District 6 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Suite S-827 Orlando, Florida 32801 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Division of Administrative Hearings has jurisdiction to hear this cause, alleging that Respondent Employer has committed an unlawful employment practice against Petitioner.
Findings Of Fact Following a July 28, 2003, "Notice of Determination: No Jurisdiction," by the Florida Commission on Human Relations, Petitioner filed a Petition for Relief as more fully described below. On or about September 3, 2003, the matter was referred to the Division of Administrative Hearings. It appearing on the face of the referral package that Respondent did not regularly employ 15 persons and that therefore Respondent did not qualify as an "employer" under Chapter 760, Florida Statutes, a September 12, 2003, Order was entered scheduling a telephonic hearing for October 1, 2003, and permitting the filing of any documents in support of the parties' respective positions. Respondent's "Submission of Materials in Support of Dismissal of Petition and Supporting Memorandum of Law" was served by United States Mail on September 25, 2003. It contained a prayer for dismissal. Pursuant to Rule 28-106.204, Florida Administrative Code, Petitioner was entitled to respond in writing by October 6, 2003. Petitioner did not respond. Respondent's "Supplemental Motion to Dismiss for Lack of Jurisdiction" was served upon Petitioner by hand-delivery, by United States Mail, and by "e-mail" on September 26, 2003. Per Rule, Petitioner was entitled to file a written response by October 8, 2003. Petitioner did not respond. A Corrected Order entered September 26, 2003, permitted the parties until October 7, 2003, to submit any documents tending to support or refute jurisdiction by the Division of Administrative Hearings over this cause. This Order also rescheduled the telephonic hearing for October 9, 2003. Petitioner filed nothing in response to either the September 12, 2003, Order or the September 26, 2003, Corrected Order. At the October 9, 2003, telephonic conference call, Respondent appeared through counsel. The opening of hearing was delayed five minutes, but Petitioner did not appear. Thereafter, oral argument upon all Motions proceeded without Petitioner. Petitioner still had not called in to the meet-me telephone number after 15 minutes, and the telephonic hearing was concluded. In an abundance of caution, an Order to Show Cause was entered on October 10, 2003, giving Petitioner 10 days in which to show cause, in writing, filed with the Division, why this cause should not be dismissed for lack of jurisdiction. Petitioner has filed nothing. Therefore, Respondent's documentation, including but not limited to: Respondent's accountants’ affidavits and its payroll journals, unemployment tax returns, and a payroll schedule, may be presumed true and accurate. All the documentation supports a finding that Respondent never employed more than 14 people for any one week in the year 2001 and employed 15 or more employees for only one week (December 21-28, 2002) in the year 2002.
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 dismissing this cause for lack of jurisdiction. DONE AND ENTERED this 30th day of October, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Truman Jeffery Mayfield 902 Phillips Street Jacksonville, Florida 32207 Robert G. Riegel, Jr., Esquire Ryan R. Fuller, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203
