02-001440 Theresa A. Stephenson vs. Lourdes-Norren Mckeen Residence For Geriatic Care, Inc. Status: Closed Recommended Order on Monday, June 10, 2002.

Summary: Final order closing file entered because there are no disputed issues of material fact and Petitioner wishes to abandon her claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THERESA A. STEPHENSON, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1440

)

LOURDES - NORREN MCKEEN RESIDENCE )

FOR GERIATRIC CARE, INC., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

This matter is before the unders igned on Respondent’s

Motion for Summary Final Order (the Motion) filed May 17,

2002. A telephone hearing on the Motion was held on June 3,

2002, by Administrative Law Judge Florence Snyder Rivas.

APPEARANCES

For Petitioner: Theresa A. Stephenson, pro se

7459 Pinedale Drive

Boynton Beach, Florida 33462

For Respondent: Robert J. Sniffen, Esquire

Moyle, Flanigan, Katz, Kolins,

Raymond & Sheehan, P.A.

The Perkins House

118 North Gadsden Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether this matter should be dismissed for lack of

disputed issues of fact and law, and because Petitioner ha s

affirmatively stated she no longer wishes to pursue this

claim.

PRELIMINARY STATEMENT

On or about February 2, 1999, Petitioner, Theresa A.

Stephenson (Petitioner or Stephenson), filed a Charge of

Discrimination with the Florida Commission on Human Rela tions

(FCHR). Petitioner alleged that Respondent discriminated

against her on the basis of her marital status.

On March 4, 2002, FCHR issued a “No Cause Determination”

with respect to the allegations.

Petitioner timely filed a Petition for Relief from an

Unlawful Employment Practice (Petition) on April 2, 2002. The

Petition was transmitted to the Division of Administrative

Hearings (Division or DOAH) on or about April 10, 2002.

The Division issued an Initial Order on April 12, 2002.

After requesting an ex tension of time within which to respond

to the Initial Order, and attempting to coordinate a hearing

schedule with the Petitioner, Respondent filed a unilateral

Response to Initial Order on May 3, 2002. On May 7, 2002, the

undersigned issued a Notice of H earing by Video Teleconference

which scheduled the case for final hearing on June 13, 2002.

Also on May 7, 2002, the undersigned issued an Order of

Pre - hearing Instructions, directing the parties to provide the

names and addresses of the respective witne sses to be called

at the final hearing. Respondent filed its Witness List on

May 28, 2002. Petitioner failed to file a Witness List.

Respondent filed a Motion for Summary Final Order with

eight attached exhibits on May 17, 2002. Petitioner has not

filed a response to said Motion.

At the June 3, 2002, telephonic hearing, Petitioner

stated that she had not filed and did not intend to file a

response to the Motion, and further indicated that she did not

object to an Order being entered granting Respondent’s Motion.

FINDINGS OF FACT

1. Respondent is a non - profit corporation geriatric care

facility.

2. Petitioner was employed by Respondent as a Certified

Nursing Assistant at the time of her termination on August 21,

1998.

3. On or about February 2, 1999, Pe titioner filed a

Charge of Discrimination (Charge) with FCHR. Petitioner

alleged that she was discriminated against on the basis of her

marital status in violation of the Florida Civil Rights Act of

1992, Chapter 760, Florida Statutes (FCRA). FCHR assig ned

Petitioner’s Charge case number 99 - 1079.

4. The FCHR investigated Petitioner’s allegations of

marital status discrimination and, on March 4, 2002, issued a

“No Cause Determination.” The FCHR found that “there is no

reasonable cause to believe that Re spondent discriminated

against [Stephenson] on the basis of marital status

(married).” In its investigation, FCHR concluded that:

Complainant [Stephenson] became very

belligerent toward her supervisor after

Complainant’s husband tried to deliver a

package to her while she was on duty.

Complainant’s husband was told that

visitor’s [sic] are not permitted when

employees are on duty. Complainant was

suspended on July 13, 1998 for one day for

insubordination and for being disrespectful

toward her direct supe rvisor. . . .

Records show that Complainant acknowledged

receipt of Respondent’s policy regarding

visitors. . . .

Respondent provided sworn affidavits from

Complainant’s supervisors and from the

facility’s Assistant Administrator, that

states on August 13, 1998, Complainant

refused to take a 100 year old resident to

the restroom after the resident requested

her assistance several times. The resident

needed to be taken to the restroom

frequently due to her age and the

medication she was taking. Complain ant

told the resident that she had already

taken her ten times in the past five

minutes, and she is not taking her again.

As a result, Complainant was terminated.

Complainant did not take advantage of

Respondent’s grievance procedure nor

harassment polic y to try to resolve any

issues or problems that she may have

experienced.

In regards to Complainant’s allegations

that she was denied severance pay,

according to Respondent’s policy,

employee’s [sic] who are involuntary

discharged are not eligible to rece ive

severance pay. Records show that

Complainant acknowledged receipt of this

policy.

Complainant was contacted telephonically to

determine whether additional information

would be offered to support her

allegations.

Complainant offered no additional

in formation to rebut Respondent’s position.

5. On or about April 3, 2002, Petitioner filed her

Petition with FCHR. FCHR transmitted the Petition to the

Division on April 10, 2002.

6. In or about January 1999, while her Charge was

pending at the FCHR, Pet itioner also filed a worker’s

compensation claim pursuant to Chapter 440, Florida Statues,

alleging that she suffered a workplace injury on August 21,

1998, the same day she was terminated from employment.

7. While Petitioner’s Charge was pending at FCHR,

Petitioner mediated her worker’s compensation claim.

Petitioner’s worker’s compensation claim was settled and

Petitioner received $10,000.00, as a lump - sum settlement.

Petitioner was represented by counsel at the time she settled

the claim. A Stipulatio n was entered into between the

parties.

8. Paragraph 11 of the Stipulation states:

ALL KNOWN ACCIDENTS, INJURIES AND

OCCUPATIONAL DISEASES REVEALED AND ALL

PENDING CLAIMS WITHDRAWN - The Claimant

once again, represents and affirms that all

accidents, inju ries and occupational

diseases known to have occurred or

sustained while employed or allegedly

employed by the employer have been

revealed. All pending or potential claims,

and notices of denial pertaining thereto,

are hereby voluntarily withdrawn, and ar e

hereby considered dismissed with prejudice,

whether previously filed or not. In

consideration for the settlement herein the

Employee hereby also extinguishes all

causes of action or potential of causes of

action, against the Employer and Carrier

includi ng but not limited to any statutory,

common law, State, Federal, and

administrative claims, ADA claims, and

claims for any other alleged on - the - job

accidents with the Employer herein.

9. In Paragraph 12 of the Stipulation, Petitioner also

agreed that she would be prospectively estopped from

challenging the validity of the Stipulation and documents

attached thereto.

10. In Paragraph 2 of the Affidavit attached to the

Stipulation, Petitioner acknowledged under oath that she

understood that the $10,000.00 l ump settlement represented

“full and final settlement of all past, present and future

benefits of every kind and class whatsoever, including medical

treatment under Florida Statue 440 regarding any and all

industrial accidents.” In addition to the settlem ent of

benefits under Chapter 440, Florida Statues, Petitioner also

acknowledged that she understood that “all other causes of

action and claims against the employer and/or carrier are

extinguished and forever barred.”

11. The worker’s compensation Judge of Compensation

Claims approved the Stipulation on or about January 7, 2000.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57, Florida S tatutes.

13. Section 760.11(7), Florida Statutes, provides as

follows in relevant part:

(7) If 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

commission s hall dismiss the complaint.

The aggrieved person may request an

administrative hearing under ss. 120.569

and 120.57, but any such request must be

made within 35 days of the date of

determination of reasonable cause and any

such hearing shall be heard by a n

administrative law judge and not by the

commission or a commissioner.

14. Petitioner’s claim should be dismissed as a matter

of law as well as fact. At the telephone hearing, Petitioner

acknowledged that she had signed the waiver at a time she was

rep resented by counsel. In addition, she stated that she did

not object to an order being entered granting Respondent's

Motion.

15. The extent and operation of a settlement agreement

releasing claims is based on the intent of the parties as

expressed in the language of the agreement itself. Hardage

Enterprises v. Fidesys Corp. , 570 So. 2d 436, 437 - 38 (5th DCA

1990); Prescott v. Kreher , 123 So. 2d 721, 728 (Fla. 2d DCA

1960). Where, as here, the intent of the parties to a

settlement agreement can be deduced from the language actually

employed by the parties, no further construction is needed.

Rather, the intent of the parties is expressed in the

settlement agreement itself and is to be given effect.

Gendzier v. Bilecki , 97 So. 2d 604, 608 (Fla. 1957); Hard age

Enterprises , 570 So. 2d at 437.

16. Accordingly, there are no factual nor legal issues

for resolution in a hearing under Section 120.569 and 120.57,

Florida Statutes. This case is hereby dismissed and the final

hearing scheduled for June 13, 2002, is hereby cancelled.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that FCHR enter a final order

dismissing the Petition for Relief from an Unlawful Employment

Practice filed by Petitioner in this proceeding .

DONE AND ENTERED this 10th day of June, 2002, in

Tallahassee, Leon County, Florida.

____________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 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 10th day of June, 2002.

COPIES FURNISHED:

Theresa A. Stephenson

7459 Pinedale Drive

Boy nton Beach, Florida 33462

Robert J. Sniffen, Esquire

Moyle, Flanigan, Katz, Kolins,

Raymond & Sheehan, P.A.

The Perkins House

118 North Gadsden Street

Tallahassee, Florida 32301

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

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.