04-003071 Kelvin D. Bodley vs. Orange County, Florida, Code Enforcement Division Status: Closed Recommended Order on Tuesday, January 25, 2005.

Summary: The Florida Commission on Human Relations lacks subject matter jurisdiction to consider allegations of discrimination previously decided by a federal court.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KELVIN D. BODLEY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3071

)

ORANGE COUNTY, FLORIDA CODE )

ENFORCEMENT DIVISION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on October 26, 2004, in

Orlando, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Kelvin D. Bodley, pro se

Post Office Box 6805 07

Orlando, Florida 32686 - 0507

For Respondent: Susan T. Spradley, Esquire

Deborah L. La Fleur, Esquire

Gray Robinson, P.A.

Post Office Box 3068

Orlando, Florida 32802

STATEMENT OF THE ISSUES

The issues for determination are whether the Florida

Commission on Human Relations (Commission or FCHR) lacks

jurisdiction under Chapter 760, Florida Statutes (2003), over

the claims in the Charge of Discri mination because the claims

are barred by the doctrines of collateral estoppel and res

judicata ; the claims are time - barred by Subsections 760.01(1)

and (5), Florida Statutes (2003); or both.

PRELIMINARY STATEMENT

On April 7, 2004, Petitioner filed a Charg e of

Discrimination with the Commission alleging that Respondent

discriminated and retaliated against Petitioner. On July 28,

2004, the Commission issued a Determination: No Jurisdiction,

finding that the Commission did not have jurisdiction over the

cla ims set forth in the Charge of Discrimination.

On August 30, 2004, Petitioner timely filed a Petition for

Relief, by which Petitioner requested an administrative hearing

to challenge the determination that the Commission lacked

jurisdiction over the Char ge of Discrimination. On August 31,

2004, the Commission referred the matter to DOAH to conduct the

hearing.

At the hearing, Petitioner testified, called no other

witnesses, and submitted 59 exhibits for admission into

evidence. In addition, Respondent and Petitioner submitted 19

joint exhibits for admission into evidence. Respondent called

no witnesses. The identity of the exhibits, and the rulings

regarding each, are set forth in the Transcript of the

administrative hearing that was filed with DOAH o n December 27,

2004.

Respondent timely filed a Proposed Recommended Order (PRO)

on January 6, 2005. Petitioner did not file a PRO.

FINDINGS OF FACT

1. Respondent employed Petitioner in Respondent's Code

Enforcement Division as a Program Coordinator from sometime in

November 1999, until Petitioner resigned his employment on

June 13, 2003. On April 2, 2002, while Petitioner was employed

with Respondent, Petitioner filed identical charges of

discrimination simultaneously with the Commission and the United

States Equal Employment Opportunity Commission (EEOC). The

charges alleged that Petitioner's employer discriminated against

Petitioner on the basis of his race through disparate treatment

in pay and promotion, retaliated against Petitioner, and created

a hostile work environment for Petitioner.

2. The EEOC assigned case number 150A201984 to the charge

of discrimination. On April 29, 2002, the EEOC issued a

Dismissal and Notice of Rights.

3. On July 26, 2002, Petitioner filed a civil action in

the Unite d States District Court for the Middle District of

Florida. The initial Complaint and subsequent Amended Complaint

contained the same allegations as those set forth in the charges

of discrimination filed with the Commission and the EEOC. The

complaints a lleged that Petitioner's employer violated Title VII

of the Civil Rights Act of 1991 and the Florida Civil Rights Act

by discriminating against Petitioner on the basis of race,

through disparate treatment in promotion and pay; by retaliating

against Petiti oner; and by creating a hostile work environment.

4. On February 12, 2004, Petitioner voluntarily dismissed

his racial harassment claims in the federal civil case. On

March 17, 2004, the federal court entered a Summary Judgment for

the employer on all re maining claims and dismissed Petitioner's

case with prejudice.

5. The Summary Judgment expressly includes allegations of

discrimination through the date of Petitioner's resignation from

Orange County on June 13, 2003. On or about June 10, 2004,

Petitio ner appealed the Summary Judgment to the United States

Court of Appeals for the Eleventh Circuit. On September 30,

2004, the Eleventh Circuit affirmed the Summary Judgment.

6. On April 7, 2004, Petitioner filed the Charge of

Discrimination over which the Commission determined it has no

jurisdiction. The Charge of Discrimination alleges in its

entirety:

I believe I have been discriminated against

pursuant to Chapter 760 of the Florida Civil

Rights Act, and/or Title VII of the Federal

Civil Rights Act, and/or the Age

Discrimination in Employment Act, and/or the

Americans with Disabilities Act as

applicable:

Once I filed a discrimination complaint

(EEOC # 150A201984) I was retaliated against

and subjected to disparate treatment because

of my race (Black ). Specifically, I was

subjected to different terms and conditions,

demoted and unfairly disciplined. Once I

filed my complaint I was not invited to

attend bi - weekly senior staff meetings and

my job duties were diminished and reassigned

to other staff. In addition, the entire

Citizen Coordination Section which I

supervised was eliminated and I was

transferred to another Division in a

position that had non - supervisory status.

The position provided no opportunity for

promotion and had minimal job duties. I was

unjustifiably given a written reprimand for

rude behavior and being absent without

proper notification. After I grieved the

reprimand it was reduced to an oral warning.

One non - African American supervisor received

numerous pay increases and unwarr anted

promotions. Eventually, he surpassed me in

salary. Another non - African American

supervisor was paid at a higher salary than

myself, but did not qualify for the position

and falsified the employment application. I

filed a complaint with the Orange County

Office of Professional Standards but they

failed to conduct a fair and thorough

investigation. Once I filed my complaint I

was subjected to racial discrimination,

retaliation and subjected to a hostile

working environment from various members of

Co unty Administration which defamed my

character and good name after working in

County government for six years; thus

purposely ruining my career to serve as a

public servant in Orange County government.

Ultimately, I was constructively discharged

on June 1 3, 2003.

Joint Ex. 18.

7. The Commission investigated Petitioner's allegations in

the Charge of Discrimination. The Commission provided

Petitioner with an opportunity to explain how the allegations

differed from the matters that the federal court disp osed of in

the Summary Judgment. Petitioner responded to the Commission in

a timely manner.

8. On July 28, 2004, the Commission determined that it did

not have jurisdiction over the claims in the Charge of

Discrimination. In relevant part, the Commissio n specifically

stated:

1. The Respondent is an employer within the

meaning of one or more of the following

laws: (a) the Florida Civil Rights Act of

1992, as amended, §760, Florida Statutes

(2002); (b) Title VII of the Civil Rights

Act of 1964, as amende d; (c) the Age in

Discrimination in Employment Act (ADEA);

and/or (d) the Americans with Disabilities

Act (ADA), however, all jurisdictional

requirements for coverage have not been met.

2. Federal case law interpreting Title VII

is applicable to cases ar ising under the

Florida Civil Rights Act because the Florida

act was patterned after the federal civil

rights laws. Florida State University v.

Sondel , 685 So. 2d 923, 925 (Fla. 1st DCA

1996).

3. On or about May 17, 2004, the Middle

District of Florida, Orlando Division,

decided the Complainant's claims against

Respondent for discrimination and

retaliation on summary judgment and

dismissed all claims with prejudice. The

failure to promote claim was dismissed for

failure to exhaust administrative remedie s.

Complainant's complaint consists of

substantially the same claims decided by the

civil court.

4. A dismissal of claims with prejudice is

a final order. See Kobluer v. Group

Hospitalization and Medical Services, Inc. ,

954 F. 2d 705 (11th Cir. 1992). As such,

the appellate court has jurisdiction to

decide such issues. Id. See also Solar v.

Merit Systems Protection Bd. , 600 F. Supp.

535 (D.C. Fla. 1985). The Commission does

not have the authority to re - investigate and

re - decide issues that were deci ded by the

civil court, even if the reason for

dismissal was failure to exhaust

administrative remedies. See DOAH Docket

Sheet filed 9 - 1 - 04.

9. The Charge of Discrimination and Petition for Relief in

this proceeding do not allege any acts or violations that were

not raised in, and ruled on, by the federal court in prior

litigation. Several of the allegations refer to matters that

occurred more than 365 days before the filing of the Charge of

Discrimination on April 7, 2004, including allegations contain ed

in the charges of discrimination that Petitioner filed

simultaneously with the Commission and EEOC on April 1, 2002.

Other allegations of discrimination, hostile work environment,

and retaliation through June 13, 2003, when Petitioner resigned

from his employment with Respondent, are included in the Amended

Complaint filed in federal court.

10. It is undisputed that the allegations in this

proceeding concerning demotion and transfer to a non - supervisory

position refer to a transfer to Respondent's Nei ghborhood

Services Division on June 16, 2003. The Summary Judgment

expressly states that the Neighborhood Services Division

"transfer has also become a part of this suit." The Summary

Judgment notes that the transfer to the Neighborhood Services

Division is an incident of retaliation alleged by the employee

and ruled that the transfer was not retaliatory.

11. Petitioner included the transfer in his Initial Brief

to the United States Court of Appeals for the Eleventh Circuit

and also argued that the elim ination of his duties, his

exclusion from key meetings, and the closing of the Citizen

Coordination Section that he had supervised all supported his

retaliation claim . The order affirming the Summary Judgment

considered the issue of the alleged retaliato ry transfer, the

elimination of Petitioner's job duties over time, and an

allegedly unwarranted written reprimand, and determined there

was no retaliation.

12. The Charge of Discrimination in this proceeding

alleges, in relevant part, that the eliminati on of the Citizen

Coordination Section that Petitioner had supervised was

discriminatory and/or retaliatory. The order affirming the

Summary Judgment considered the issue of the elimination of

Petitioner's job duties over time and did not find retaliation .

13. It is undisputed that the allegations in the Charge of

Discrimination in this proceeding refer to a written reprimand

issued by Petitioner's supervisor in March 2003. The written

reprimand was part of the federal litigation, including the

employee' s Statement of Facts in Response to Orange County's

Motion for Summary Judgment and in the employee's supporting

exhibits. The order affirming the Summary Judgment specifically

referred to the written reprimand and did not determine that the

reprimand con stituted retaliation. Moreover, neither DOAH nor

the Commission has statutory authority to consider allegations

concerning the written reprimand because those allegations

involve acts that occurred more than one year before the filing

of the Charge of Dis crimination within the meaning of

Subsection 760.11(1), Florida Statutes (2003).

14. It is undisputed that allegations in the Charge of

Discrimination in this proceeding concerning disparate pay for

two non - African American supervisors referred to high er pay for

supervisors, identified in the record as Mr. Robert Hildreth and

Mr. Ed Caneda, that occurred in March 2002. The federal civil

court previously analyzed Petitioner's claims of pay disparity

related to both supervisors. The court found that Pet itioner

was not similarly situated to either supervisor.

15. The Charge of Discrimination in this proceeding

alleges that Respondent subjected Petitioner to a hostile

working environment when various members of the Orange County

Administration defamed Pet itioner's character and good name.

Petitioner fully addressed the allegations of harassment and

hostile work environment in his response to the motion for

summary judgment in federal court. Petitioner stipulated to a

dismissal with prejudice of his hosti le work environment claims,

and the federal court ruled that Orange County was the

prevailing party on Petitioner's claims for hostile work

environment.

16. It is undisputed that the Charge of Discrimination in

this proceeding does not contain any allegat ions concerning the

failure to promote Petitioner. However, Petitioner did raise

this issue and litigated the issue in federal court.

17. The federal court ruled that Petitioner did not

exhaust his administrative remedies concerning allegations that

Res pondent failed to promote Petitioner and that the claim arose

in January 2002, prior to date when Petitioner filed

simultaneous claims with the EEOC and FCHR. More than two years

passed before Petitioner filed the Charge of Discrimination in

this proceedi ng. Accordingly, Petitioner's claim of promotion

discrimination falls outside the statutory one - year filing

requirement prescribed in Subsection 760.11(1), Florida Statutes

(2003). In any event, the claim that Respondent failed to

promote Petitioner is n ot a new issue that was beyond the scope

of the Summary Judgment.

18. It is undisputed that allegations in the Charge of

Discrimination in this proceeding concerning the alleged failure

of Respondent's Office of Professional Standards (OPS) to

conduct a fair and thorough investigation of his discrimination

complaint referred to an investigation into Petitioner's

complaint in March 2002. OPS issued its final report on July 3,

2002, approximately 21 months before Petitioner filed the

Charge of Discriminat ion in this proceeding. Accordingly, the

complaints about the OPS investigation fall outside the

statutory one - year filing requirement set out in Subsection

760.11(1), Florida Statutes (2003).

19. The federal litigation included identical allegations

co ncerning the OPS investigation. During the federal case,

Petitioner's attorney deposed Mr. William Moore, the manager of

OPS, and questioned Mr. Moore extensively about the way OPS

investigated Petitioner's complaint. In response to the motion

for summar y judgment, Petitioner specifically claimed that the

investigation undertaken by OPS was unfair and discriminatory.

The complaint in the Charge of Discrimination in this proceeding

is not a new issue or claim, but is identical to the issue

litigated in f ederal court.

20. Allegations in the Charge of Discrimination that

Respondent excluded Petitioner from key meetings refer to events

in September 2001. The same allegations were litigated in

federal court. Petitioner outlined his allegations to the

feder al court that allegedly showed his exclusion from key

meetings. Petitioner also appealed the issue of exclusion to

the appellate court. The Charge of Discrimination presents no

new issue, and the issue falls outside the one - year filing

requirement in Sub section 760.11(1), Florida Statutes (2003).

21. It is undisputed that the allegation in the Charge of

Discrimination that Respondent constructively discharged

Petitioner, refers to being demoted, reprimanded, excluded from

meetings, and transferred to the Neighborhood Services Division.

The allegation of constructive discharge is not a new claim, but

is the same claim that was litigated in federal court.

CONCLUSIONS OF LAW

22. DOAH has jurisdiction to determine whether the

Commission has jurisdiction i n this proceeding. §§ 120.57(1)

and 760.11(7), Florida Statutes (2003). DOAH has jurisdiction

over the parties. DOAH provided the parties with adequate

notice of the administrative proceeding.

23. At the hearing, the ALJ admitted all of the exhibits,

with the exception of Petitioner's Exhibits numbered 1.57 and

1.58, into evidence for the limited purpose of determining if

the allegations raised in the Charge of Discrimination are new

claims that were not before the federal court. The ALJ did not

admi t any exhibits to prove a specific allegations of

discrimination.

24. The ALJ reserved ruling on Petitioner's Exhibits 1.57

and 1.58 for disposition in this Recommended Order. The

objections to the admissibility of Petitioner's Exhibits 1.57

and 1.58 a re sustained. Each of the exhibits relates to claims

filed by other employees or former employees of Respondent.

Each is dated June 29, 2004, more than one year after Petitioner

resigned his employment with Orange County and almost three

months after the date of the Charge of Discrimination in this

proceeding. Each is offered solely to show bad character or

propensity on the part of Respondent to retaliate against other

employees.

25. The burden of proof is generally on the party

asserting the affirma tive of the issue. 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), cert. denied , 370

So. 2d 458 (Fla. 1979). Petitione r must show that the Charge of

Discrimination in this proceeding raises new claims that were

not litigated in federal court. For reasons stated in the

Findings of Fact, Petitioner has not met his burden of proof.

26. The doctrine of collateral estoppel b ars Petitioner's

claims. Collateral estoppel is a judicial doctrine that

prevents identical parties from re - litigating issues that have

already been decided. The doctrine of collateral estoppel

applies to administrative proceedings. Hays v. State of

Flo rida, Department of Business Regulations, Division of Pari -

Mutual Wagering , 418 So. 2d 331 (Fla. 3d DCA 1982). The purpose

of collateral estoppel is to bring finality to disputes.

27. The parties and issues in this proceeding are

identical to those liti gated in federal court. The issues in

this proceeding were fully litigated and determined in a contest

that resulted in a final decision by the federal courts.

Department of Health and Rehabilitative Services v. B.J.M. , 656

So. 2d 906 (Fla. 1995); Mobil Oil Corp. v. Shevin , 354 So. 2d

372 (Fla. 1977).

28. The dismissal with prejudice of Petitioner's

discrimination and retaliation claims on summary judgment was a

final order by a federal court of competent jurisdiction. See ,

e.g , Kobluer v. Group Hospita lization and Medical Services,

Inc. , 954 F.2d 705, 708 (11th Cir. 1992) (district court's

dismissal of a case for failure to exhaust administrative

remedies is a final order). Petitioner can not now re - litigate

the same claims through the state administra tive process.

29. The doctrine of res judicata also precludes Petitioner

from using the administrative process to revisit the same claim

between the same parties on the same cause of action. See

Bertone v. Winn - Dixie Stores, Inc. , 1997 Fla. Div. Adm. Hea r.

LEXIS 5695 (Recommended Order Dec. 11, 1997) (federal case filed

for sexual harassment and retaliation barred petitioner from

bringing separate state administrative proceeding for same

claim). Even if Petitioner were to raise an issue in the

administra tive proceeding that was not addressed in federal

court, the doctrine of res judicata precludes Petitioner from

raising such an issue if the issue were known to Petitioner and

could have been raised during the federal litigation. See

Florida Department of Transportation v. Juliano , 801 So. 2d 101,

105 (Fla. 2001). The final judgment of the federal court on the

merits of the same cause of action between the same parties is

conclusive as to every matter that might have been litigated and

determined in that action. See State of Florida v. McBride , 848

So. 2d 287, 290 (Fla. 2003).

30. Subsection 760.11(1), Florida Statutes (2003),

requires Petitioner to file the Charge of Discrimination in

this proceeding within 365 days of the alleged violation.

Subsect ion 760.11(1) is a statute of limitations. See Greene v.

Seminole Electric Coop., Inc. , 701 So. 2d 646, 648 (Fla. 5th DCA

1997). New claims of discrimination or retaliation, if any,

that occurred more than 365 days prior to the date that

Petitioner filed the Charge of Discrimination in this proceeding

are time - barred under Subsection 760.11(1) , Florida Statutes

(2003).

31. The Commission did not retain jurisdiction over the

first charge of discrimination during the federal litigation.

When Petitioner filed his civil compliant with the federal

district court on July 26, 2002, it divested the Commission of

jurisdiction over all related matters. See Sweeny v. Florida

Power and Light Co. , 725 So. 2d 380 (Fla. 3d DCA 1998) (civil

complaint divested Commiss ion of jurisdiction).

32. The Commission's jurisdiction over the first charge of

discrimination was not tolled during the federal lawsuit. See ,

e.g. , Farancz v. St. Mary's Hospital, Inc. , 585 So. 2d 1151,

1152 (Fla. 4th DCA 1991) and Ross v. Jim Adams F ord, Inc. , 871

So. 2d 312, 313 (Fla. 2d DCA 2004) (administrative process under

Chapter 760 does not toll the limitations period). Rather, the

Commission correctly determined that it does not have

jurisdiction over the subject matter of this proceeding.

33. Respondent is not entitled to recover attorney's fees

and costs pursuant to Subsection 760.11(7), Florida Statutes

(2003). The cases cited by Respondent involve litigation on the

merits of alleged discrimination rather than a determination of

jurisdi ction. Even if Respondent were entitled to fees and

costs, Respondent did not submit evidence of the amount of fees

to which it is entitled or the reasonableness of the claimed

amount. Moreover, Petitioner had no opportunity during the

hearing to refute Respondent's claim, the amount of fees and

costs, or the reasonableness of that amount.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a Final Order

dismissing this proceeding for the reasons stated in this

Recommended Order.

DONE AND ENTERED this 25th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, 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 25th day of January, 2005.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Su san T. Spradley, Esquire

Deborah L. La Fleur, Esquire

Gray Robinson, P.A.

Post Office Box 3068

Orlando, Florida 32802

Kelvin D. Bodley

Post Office Box 680507

Orlando, Florida 32686 - 0507

Cecil Howard, General Counsel

Florida Commission on Human Relation s

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 Orde r should be filed with the agency that

will issue the Final Order in this case.