08-000684 Robert Wunderlich vs. Wci Communities, Inc. Status: Closed Recommended Order on Tuesday, April 8, 2008.

Summary: The subject petiiton for relief of alleged discrimination should be dismissed because Petitioner executed an agreement that waived his rights under the Florida Civil Rights Act of 1992.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT WUNDERLICH, )

)

Petitioner, )

)

vs. ) Case No. 08-0684

)

WCI COMMUNITIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came to be heard by telephone conference call on

Respondent’s Motion to Remand filed March 18, 2008, on

Petitioner’s response thereto filed March 31, 2008, and on

Respondent’s Notice of Supplemental Authority filed April 2,

2008. The facts set forth in this Order are undisputed.

Respondent’s motion is based on two theories. First,

Respondent argues that Petitioner’s Petition for Relief was not

filed within 365 days of the last date of the alleged

discrimination as required by Section 760.11(1), Florida

Statutes (2007), and is, consequently, time-barred as a matter

of law. Second, Respondent argues that Petitioner has

specifically released any claims under the Florida Civil Rights

Act by his execution of a Separation Agreement dated March 1,

2005 (the Separation Agreement).

Prior to March 1, 2005, Petitioner was employed by

Respondent. The act of discrimination at issue in this

proceeding allegedly occurred in February 2005. On March 1,

2005, Petitioner and Respondent executed the Separation

Agreement, which terminated Petitioner’s employment with

Respondent. The Separation Agreement provided for Respondent to

pay Petitioner the sum of $480,000.00, less all required payroll

deductions, in three installments. The first and second

installments, in the total sum of $240,000.00, have been paid to

Petitioner by Respondent.

A dispute exists between Petitioner and Respondent as to

whether the third installment in the amount of $240,000.00 is

due from Respondent to Petitioner. On or about June 13, 2007,

Petitioner filed suit against Respondent in the Palm Beach

County Circuit Court seeking, in Count I, damages for

Respondent’s alleged breach of the Separation Agreement and, in

Count II a Declaratory Judgment as to a provision of the

Separation Agreement. Petitioner’s complaint in Circuit Court

does not seek to rescind the Separation Agreement.

Paragraph 1 of the Separation Agreement provides for the

payments to be made by Respondent to Petitioner. Paragraph 2 of

the Separation Agreement provides, in part, as follows:

2. In return for the consideration

provided in Paragraph 1 of this Agreement,

Employee [Petitioner] does hereby

unconditionally release, discharge and hold

Employer [Respondent] . . . (hereafter

referred to a Released Parties) harmless

from and covenants not to sue upon, each and

every action, claim, right, liability,

charge or demand of any kind or nature that

Employee had, has now or might hereafter

claim to have against Released Parties as of

the date of the execution of this Agreement

including, but not limited to, any and all

claims in connection with his employment

relationship, terms and conditions of his

employment (including compensation and

benefits) and the termination of his

employment relationship and the surrounding

circumstances thereof, and further from any

actions, claims, rights, liabilities,

charges or demands of any nature whatsoever

which may be raised pursuant to any law,

constitution, statute, regulation, or any

common law theory, whether in tort,

contract, equity or otherwise (with all of

the foregoing collectively referred to as

“Claims(s)”). Specifically included in

Employee’s release of claims are all

employment Claims for injury to Employee,

including, but not limited to, those arising

under the . . . Civil Rights Act of 1866,

1871, 1964, and 1991, as amended . . . the

Florida Civil Rights Act of 1992, and the

Florida Whistleblower’s Act. . . .

The subject complaint of discrimination was brought by

Petitioner pursuant to the Florida Civil Rights Act of 1992, as

amended. Pursuant to the Separation Agreement, Petitioner has

released any claims he has or had under that Act. Unless and

until a court of competent jurisdiction permits Petitioner to

rescind the Separation Agreement, he is precluded from bringing

this complaint of discrimination.

The Florida Commission on Human Relations transmitted the

subject Petition for Relief on February 7, 2008. Included in

the package were the Petition for Relief, dated February 5,

2008, a Determination of No Cause dated January 2, 2008, and an

Amended Employment Complaint dated August 16, 2007. Respondent

correctly argues that the 365-day deadline for the filing of

claims of discrimination set forth in Section 760.11(1), Florida

Statutes (2007), is a statute of limitation. A statute of

limitations may be tolled pursuant to the provisions of Section

95.051, Florida Statutes (2007), or by the application of the

doctrine of equitable tolling.

For the reasons argued by Respondent, the undersigned

rejects Petitioner’s argument that the payment of the first two

installments of the amounts provided in the Separation Agreement

serve to toll the 365-day deadline pursuant to the provisions of

Section 95.051(1)(f), Florida Statutes (2007).

The doctrine of equitable tolling of a statute of

limitations can be applied in very limited circumstances. A

judicially created doctrine, equitable tolling was described in

Machules v. Department of Administration , 523 So. 2d 1132 (Fla.

1988), as being applicable “when the plaintiff has been misled

or lulled into inaction, has in some extraordinary way been

prevented from asserting his rights, or has timely asserted his

rights mistakenly in the wrong forum.” 523 So. 2d at 1134.

Given the factual nature of equitable tolling , one cannot

enumerate all of the circumstances in which it may be available.

Without an evidentiary hearing to provide Petitioner with an

opportunity to factually establish his theory that the statute

of limitations has been tolled by the doctrine of equitable

tolling, it is inappropriate at this juncture to dismiss this

proceeding on the ground that the matter is time-barred.

In light of the determination that Petitioner has released

his claims under the Florida Civil Rights Act of 1992, it is

unnecessary to conduct such an evidentiary hearing.

The premises considered, it is ORDERED:

That DOAH Case No. 08-0684 is closed, and jurisdiction of

this proceeding is relinquished to the Florida Commission on

Human Relations with the recommendation that a final order of

dismissal be entered based on Petitioner’s release of his rights

to bring such action by the Separation Agreement.

DONE AND ENTERED this 8th day of April, 2008, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of April, 2008.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jonathan A. Berkowitz, Esquire

Cohen, Norris, Scherer, Weinberger &

Wolmer

712 U.S. Highway One, Suite 400

North Palm Beach, Florida 34408

Alexander del Russo, Esquire

Carlton Fields

Post Office Box 150

West Palm Beach, Florida 33402

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.