01-004449 Joanne Whitaker Mcshane vs. Brevard County Sheriff`s Department Status: Closed Recommended Order on Friday, February 14, 2003.

Summary: Commission does not have jurisdiction to enforce terms of settlement agreement approved by a federal court; Petitioner cannot prove prima facie case of retaliation by a former employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOANNE WHITAKER MCSHANE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4449

)

BREVARD COUNTY SHERIFF'S )

OFFICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Thi s cause came before Daniel M. Kilbride, Administrative

Law Judge, Division of Administrative Hearings, upon the

Stipulated Facts, proposed Conclusions of Law and Memoranda of

Law submitted by the parties in Tallahassee, Florida.

APPEARANCES

For Petitioner: William R. Amlong, Esquire

Amlong & Amlong, P.A.

500 Northeast Fourth Street

Second Floor

Fort Lauderdale, Florida 33301 - 1154

For Respondent: Keith C. Tischle r, Esquire

Powers, Quaschnick, et. al.

1669 Mahan Center Boulevard

Post Office Box 12186

Tallahassee, Florida 32317 - 2186

STATEMENT OF THE ISSUE

Whether the Flor ida Commission on Human Relations (FCHR)

properly issued a Determination: No Jurisdiction, on October 1,

2001, relating to Petitioner's two - count Charge of

Discrimination dated April 30, 1999.

PRELIMINARY STATEMENT

On or about May 4, 1999, Petitioner filed a Charge of

Discrimination with FCHR directed against Respondent, which

denied the allegations. On October 1, 2001, FCHR issued a

Determination: No Jurisdiction and advised Petitioner that she

had 35 days to file a Petition for Relief in order to challen ge

FCHR's determination. Petitioner timely filed her Petition for

Relief, and this matter was referred to the Division of

Administrative Hearings (DOAH) for a formal hearing.

On February 15, 2002, the undersigned Administrative Law

Judge issued a Recommen ded Order of Dismissal to which the

Respondent timely filed exceptions. On November 8, 2002, FCHR

entered an Order Remanding Petition for Relief from an Unlawful

Employment Practice, and this case was re - opened.

Following a case management conference, the parties agreed

to submit stipulated findings of fact, followed by memoranda of

law and proposed conclusions of law in lieu of a formal hearing.

On December 20, 2002, the parties submitted the Stipulated Facts

of Petitioner and Respondent. Following the granting of a

Motion for Extension of Time, the parties submitted their

proposals on January 9 and 10, 2003, respectively. All

submittals have been given careful consideration in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Joanne McSha ne, Petitioner, was employed with the

Brevard County Sheriff's Office, Respondent, from October 1981

to December 1982.

2. After Petitioner's employment with Respondent was

terminated, Petitioner filed a complaint with FCHR and the

United States Equal Empl oyment Opportunity Commission (EEOC)

alleging disparate treatment based upon her gender, among other

things. Thereafter, Petitioner brought a civil action based on

her charges in the United States District Court for the Middle

District of Florida, and the parties to that action settled

Petitioner's lawsuit in 1986.

3. On or about April 30, 1999, Petitioner executed a

Charge of Discrimination that was filed on or about May 4, 1999,

with FCHR. It provides in pertinent part:

I was retaliated against by my f ormer

employer Brevard County Sheriff's Office

(BCSO) at least between the months of

October 19, 1998 and March 4, 1999, because

of my prior Title VII lawsuit against them

. . . . The BCSO provided misleading,

derogatory and some false information,

defam ing me, to my most recent employer

which resulted in my being discriminated

against by my most recent employer . . . .

I determined subsequently that the BSCO

provided not only a bad reference, but also,

provided information which was misleading,

false an d could not be considered part of

any personnel file, nor any public record.

I have been retaliated against and defamed

by Brevard County Sheriff's Office for my

participation in a Title VII lawsuit against

them years ago, in violation of . . .

applicable state statutes . . . .

4. Respondent denied some of Petitioner's allegations

contained in the Charge of Discrimination and filed affirmative

defenses to others.

5. On or about October 1, 2001, FCHR issued a Notice of

Determination: No Jurisdiction findi ng that it did not possess

jurisdiction over the claims of Petitioner as set forth in her

charge. The Notice of Determination specifically stated that

"[since] the Commission lacks jurisdiction over the Complaint of

Discrimination, the determination will not address the merits of

the allegations contained in the complaint." The Notice of

Determination instructed Petitioner that a Request for

Hearing/Petition for Relief "must be filed within 35 days of

mailing of this notice." It prescribed, through enclo sing a

Petition for Relief form, what the contents needed to be.

Neither the Determination: No Jurisdiction, nor the Notice of

Determination advised Petitioner that she had the right to bring

a civil action in federal or circuit court or any other rights.

Thus, Petitioner, acting pro se , filed a Request for

Hearing/Petition for Relief that sought review of the merits as

well as the threshold issue of jurisdiction.

6. On or about January 15, 2002, through counsel who had

recently appeared, Petitioner fil ed a Suggestion of Absence of

Jurisdiction, arguing that the Florida Civil Rights Act (FCRA)

provided two, and only two, circumstances under which a

complainant who has filed an administrative charge of

discrimination with FCHR either can or must proceed

a dministratively by electing a hearing before DOAH: One, "[i]n

the event that the commission determines that there is

reasonable cause to believe that a discriminatory practice has

occurred," Section 760.11(4), Florida Statutes, the complainant

"may" reque st a DOAH hearing in lieu of filing a civil action,

in which case the election of remedies is irreversible; and Two,

"[i]f the commission determines that there is not reasonable

cause to believe that a violation of the Florida Civil Rights

Act of 1992 has occurred," the complainant may only proceed to

court if she prevails through a process that begins with a DOAH

hearing. Section 760.11(7), Florida Statutes. Petitioner

asserted that because neither of these conditions precedent to

invoking DOAH's jurisdi ction had been met in this case, DOAH had

no basis to assert jurisdiction over the merits of the case and

must remand it to FCHR.

7. On February 15, 2002, the undersigned Administrative

Law Judge issued a Recommended Order of Dismissal, finding that

neith er of the conditions precedent to DOAH's jurisdiction

established by Section 760.11(4) or (7), Florida Statutes, had

been satisfied and recommended that FCHR resume jurisdiction to

complete its investigation or to permit Petitioner to elect her

remedies pu rsuant to Section 760.11(8), Florida Statutes.

8. On November 8, 2002, FCHR entered an Order Remanding

Petition for Relief from an Unlawful Employment Practice back to

DOAH for the purpose of resolving disputed issues of material

fact regarding whether FC HR has jurisdiction of this matter.

9. Upon review of the complete record in this matter,

including the Stipulated Facts of Petitioner and Respondent, it

appears that there are no disputed facts that relate to the

issue of whether FCHR has jurisdiction in this matter.

CONCLUSIONS OF LAW

10. In view of the Order Remanding Petition for Relief

from an Unlawful Employment Practice, dated November 8, 2002,

the Division of Administrative Hearings has jurisdiction of the

subject matter and the parties to this a ction, pursuant to

Sections 120.569, 120.57(1), 760.06(12), and 760.11(14), Florida

Statutes, and Rules 60Y - 5.008(3) and 60Y - 4.016, Florida

Administrative Code.

11. The burden is on the party asserting the affirmative

of an issue in an administrative proc eeding. Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977). Therefore, in

order to prevail in this proceeding, Petitione r is required to

prove the jurisdiction of FCHR. Petitioner has not met her

burden in this case.

12. In Petitioner's charge to FCHR, Petitioner relies upon

two elements. First, Petitioner asserts that Respondent

breached the terms of a settlement agreem ent between Petitioner

and the present Sheriff's predecessor in office (C.W. Miller)

when: (1) the present Sheriff or his predecessor in office

failed to destroy materials contained in Petitioner's personnel

files as a part of the settlement agreement; an d (2) the present

Sheriff disclosed to the Monroe County Sheriff materials found

in Petitioner's personnel file related to her previous

discipline or claims against the present Sheriff's predecessor

in office that either were not to be disclosed or were

un favorable to Petitioner. Second, Petitioner asserts

Respondent acted in retaliation for her previously filing a

charge of discrimination against the present Sheriff's

predecessor in office in the 1980's when the Sheriff provided

information to the Monroe County Sheriff's Office that

Petitioner alleges to be unfavorable.

13. Regardless of which aspect of Petitioner's claim is

considered, FCHR properly declined to exercise jurisdiction.

To the extent Petitioner asserts that Respondent breached the

terms of a settlement agreement between Petitioner and the

present Sheriff's predecessor in office, Petitioner cannot

proceed before FCHR on these claims. Enforcement of a

settlement agreement is not within the jurisdiction conferred

upon FCHR under Chapter 76 0, Florida Statutes. There is no

provision found in Sections 760.01, 760.04, 760.05 or 760.06 of

the Florida Statutes that provides FCHR with jurisdiction to

enforce settlement agreements that are violated, even if those

agreements arise out of a charge o riginally filed with FCHR. In

this instance, the settlement agreement arose out of litigation

in the federal court system. It is not the role of FCHR to

usurp the jurisdiction of federal or state courts to enforce

matters occurring during the course of p roceedings in the court

system. Moreover, there is no provision found in Section

760.07, 760.10 or 760.11, Florida Statutes, that would make the

breach of a settlement agreement an unlawful employment

practice. Thus, FCHR properly declined to exercise ju risdiction

over this aspect of Petitioner's charge.

14. Section 760.10(7), Florida Statutes, provides in

pertinent part:

It is an unlawful employment practice for an

employer . . . to discriminate against any

person because that person has opposed any

pra ctice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

This section mirrors the lang uage found in the comparable

provisions of Title VII of the federal act.

15. In order to prove a prima facie case, Petitioner must

establish the following elements: (a) Petitioner engaged in

protected opposition to discrimination; (b) Petitioner was

disa dvantaged by action of the employer simultaneously with, or

subsequent to, such opposition; and (c) there is a casual

connection between the protected activity and the adverse

employment action. Morgan v. City of Jasper , 959 F.2d 1542 at

1547 (11th Cir. 1 992).

16. Taking Petitioner's charge at face value, it fails to

allege sufficient facts to establish a prima facie case of

retaliation. Using the above - referenced standards, FCHR had a

sufficient basis for the denial of jurisdiction. Petitioner's

own al legations illustrate the absence of any facts that can

meet the test to establish a claim of retaliation. The alleged

retaliatory activities took place long after the termination of

her employment with Respondent and was therefore not an adverse

employmen t action. Under Section 760.10(7), Florida Statutes,

it is the employer's discharge or other employment impairment

that evidences actionable retaliation, and not events 12 years

subsequent to and unrelated to her employment. Koelsch v.

Beltone Elec. Corp . , 46 F.3d 705, 709 (7th Cir. 1995); and Reed

v. Shepard , 939 F.2d 484, 492 - 93 (7th Cir. 1991).

RECOMMENDATION

Based upon the Stipulations of Fact and Conclusions of Law,

it is hereby

RECOMMENDED that the Florida Commission on Human Relations

enter a final order finding that it lacks jurisdiction over the

charges of Petitioner and dismiss the Petition.

DONE AND ENTERED this 14th day of February, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrativ e 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 Administrat ive Hearings

this 14th day of February, 2003.

COPIES FURNISHED :

William R. Amlong, Esquire

Amlong & Amlong, P.A.

500 Northeast Fourth Street

Second Floor

Fort Lauderdale, Florida 33301 - 1154

Denise Crawford, Agency Clerk

Florida Commission on Human Rel ations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Keith C. Tischler, Esquire

Powers, Quaschnick, et. al.

1669 Mahan Center Boulevard

Post Office Box 12186

Tallahassee, Florida 32317 - 2186

Cecil Howard, General Counsel

Florida Commissio n 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 th is Recommended Order should be filed with the agency that

will issue the Final Order in this case.