08-004878 Susie M. Walton Banks vs. Department Of Corrections Status: Closed Recommended Order on Thursday, October 30, 2008.

Summary: FCHR does not have that it lacked jurisdiction over employment discrimination claim because Respondent was not the Petitioner`s employer. The petition does not allege any disputed facts as to this issue. Recommend dismissal of petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSIE M. WALTON BANKS, )

)

Petitioner, )

)

vs. ) Case No. 08-4878

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This case is before the undersigned based upon the motion

to dismiss filed by Respondent on October 9, 2008, and

Petitioner’s response to the Order to Show Cause filed on

October 24, 2008. No hearing is necessary.

APPEARANCES

For Petitioner: Susie M. Walton Banks, pro se

2503 Northeast 10th Terrace

Gainesville, Florida 32609

For Respondent: Mark Henderson, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether the Petition for Relief should be

dismissed for lack of jurisdiction because Respondent was not

Petitioner’s employer.

PRELIMINARY STATEMENT

On or about February 15, 2008, Petitioner filed a Charge of

Discrimination (the complaint) with the Florida Commission on

Human Relations (FCHR). FCHR investigated the complaint, and on

September 4, 2008, FCHR issued a “Determination: No Jurisdiction

(No Employment Relationship).” On September 24, 2008,

Petitioner filed a Petition for Relief (the petition) with FCHR.

On September 29, 2008, FCHR referred the petition to the

Division of Administrative Hearings (DOAH). The referral was

received by DOAH on September 30, 2008.

On October 9, 2008, Respondent filed a Motion to Dismiss or

in the Alternative for Judgment on the Pleadings. On

October 10, 2008, the undersigned entered an Order to Show Cause

directing Petitioner to show cause in writing as to why the

petition should not be dismissed.

On October 24, 2008, Petitioner filed her response to the

Order to Show Cause. Due consideration has been given to that

filing. No hearing is necessary.

FINDINGS OF FACT

1. The complaint alleged that Petitioner was the victim of

employment discrimination based upon her race.

2. The employers identified in the complaint were

Respondent and Civigenics/Community Education Centers

(Civigenics).

3. The determination issued by FCHR with respect to

Respondent stated in pertinent part: 1 /

The Commission lacks jurisdiction over the

Complaint of Discrimination because the

Respondent is not the Complainant’s

employer. The investigation revealed that

Civigenics/Community Education Center, not

Respondent, is the proper Respondent in this

case.

4. The petition does not allege that Respondent was

Petitioner’s employer. Rather, the petition “give[s]

acknowledgement to the determination [of] no jurisdiction” and

then focuses on the merits of Petitioner’s discrimination

complaint.

5. Respondent argues in its motion to dismiss that

“Petitioner acknowledges and therefore, concedes the validity of

FCHR’s no jurisdiction determination in her request for relief.”

6. The Order to Show Cause entered on October 10, 2008,

stated in pertinent part:

The petition does not appear to raise any

disputed issues of fact as to whether DOC

was Petitioner’s employer. That is the only

issue properly before the undersigned in

this case based upon the “no jurisdiction”

determination issued by the Florida

Commission on Human Relations (FCHR).

Petitioner is entitled to a de novo hearing

on the issue of whether DOC was her

employer. If it is determined that DOC was

her employer, then the case will be returned

to FCHR with a recommendation that it

investigate the merits of Petitioner’s

discrimination complaint against DOC.

[Endnote omitted]. If it is determined that

DOC was not Petitioner’s employer, then the

case will be returned to FCHR with a

recommendation that the petition be

dismissed based upon a lack of jurisdiction.

That said, Petitioner is only entitled to a

formal administrative hearing at the

Division of Administrative Hearings (DOAH)

if there are disputed issues of fact as to

whether DOC was Petitioner’s employer. If

there are no disputed issues of fact, then

DOAH must relinquish jurisdiction back to

FCHR. See § 120.57(1)(i), Fla. Stat. As

stated above, the petition does not appear

to raise any disputed issues of fact on this

issue; rather, it “give[s] acknowledgement

to the determination of no jurisdiction” and

then focuses on the merits of the

discrimination complaint.

7. The Order to Show Cause directed Petitioner to:

show cause in writing as to why DOC’s Motion

to Dismiss should not be granted and/or

Petitioner shall file an amended petition

that identifies the factual basis upon which

Petitioner contends that DOC was her

employer.

8. The Order advised Petitioner that:

Failure to respond to this Order and/or

failure to identify any disputed issues of

fact as to whether DOC was Petitioner’s

employer will result in a Recommended Order

of Dismissal or an Order closing DOAH’s file

and relinquishing jurisdiction to FCHR.

9. Petitioner’s response to the Order to Show Cause stated

in pertinent part:

This is response to the Order to Show Cause,

Case #08-4878.

I am submitting in response to this order

the attachments of a notice of hearing to be

held in this case at the Board of County

Commissioners, Community Treasures [sic]

Room, First Floor, County Administration

Building, 12 Southeast First Street, on

December 1, 2008, at 1:00 p.m., Gainesville,

FL. I am also submitting a copy of the

Order of Pre Hearing Instructions. All

information as required will be provided at

the times ordered.

10. The response does not allege any facts that might

establish that Respondent was Petitioner’s employer.

11. The pleadings do not raise any disputed issues of

material fact concerning whether Respondent was Petitioner’s

employer.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes (2008).

13. In reviewing a motion to dismiss, all of the factual

allegations in the petition must be accepted as true. See

St. Francis Parkside Lodge of Tampa Bay v. Dept. of Health &

Rehabilitative Servs. , 486 So. 2d 32, 34 (Fla. 1st DCA 1986).

14. To state a claim for employment discrimination under

Section 760.10, Florida Statutes (2007), Petitioner must allege

facts to show that Respondent was her employer. Otherwise, FCHR

does not have jurisdiction over the complaint. See , e.g. , Enzor

v. Florida Developers, Inc. , Case No. 08-1228 (DOAH July 10,

2008; FCHR Sep. 16, 2008); Kelly v. Florida Crown Workforce

Board, Inc. , Case No. 06-0483 (DOAH Mar. 23, 2006; FCHR May 24,

2006).

15. There are circumstances where courts “look beyond the

nominal independence of an entity and ask whether two or more

ostensibly separate entities should be treated as a single,

integrated enterprise when determining whether a plaintiff's

'employer' comes within the coverage of Title VII.” See Lyes v.

City of Rivera Beach , 166 F.3d 1332, 1341 (11th Cir. 1999).

16. The petition does not allege any facts that might

implicate those circumstances or that might otherwise establish

that Respondent was Petitioner’s employer. Rather, the petition

was Petitioner’s employer, not Respondent.

17. Normally, dismissal of a petition is, at least once,

without prejudice. See § 120.569(2)(c), Fla. Stat.

18. However, dismissal of the petition with prejudice is

appropriate in this case because the Order to Show Cause gave

Petitioner an opportunity to file “an amended petition that

identifies the factual basis upon which Petitioner contends that

DOC was her employer,” but Petitioner failed to do so.

19. Alternatively, because the pleadings do not raise any

disputed issues of material fact as to whether Respondent was

Petitioner’s employer, it is appropriate to relinquish

jurisdiction over the petition to FCHR for entry of a final

order after an informal hearing, if necessary. See

§ 120.57(1)(i), Fla. Stat.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, Respondent’s motion to dismiss is granted, the final

hearing scheduled for December 1, 2008, is cancelled, and it is

RECOMMENDED that FCHR issue a final order dismissing the

petition with prejudice.

DONE AND ENTERED this 30th day of October, 2008, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October, 2008.

ENDNOTE

1 / FCHR issued a separate “no cause” determination with respect

to Civigenics. The petition filed by Petitioner challenging

that determination is pending as DOAH Case No. 08-4875.

COPIES FURNISHED :

Susie M. Walton Banks

2503 Northeast 10th Terrace

Gainesville, Florida 32609

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mark Henderson, Esquire

Department of Corrections 7000

2601 Blair Stone Road

Tallahassee, Florida 32399

Walt McNeil, Secretary

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

Kathleen Van Hoene, General Counsel

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

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.