10-008308 Jessica Miles vs. Macfarlane, Ferguson And Mcmullen, P.A. Status: Closed Recommended Order on Thursday, December 9, 2010.

Summary: Petitioner signed release of claims against Respondent, which is not cognizable under the Fla. Civ. Rights Act; recommend, without evidentiary hearing, dismissal of Petition for Relief from employment discrimination due to lack of jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSICA MILES , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8308

)

MACFARLANE, FERGUSON AND )

MCMULLE N, P.A. , )

)

Respondent . )

)

RECOMMENDED ORDER OF DIS MISSAL

This cause came on for consideration without an evidentiary

hearing for the reasons set out below.

STATEMENT OF THE ISSUE

Whether this cause is barred by a release of all claims.

PRELIMINARY STATEMENT

On February 5, 2010, Petitioner, Jessica Miles

( " Petitioner " ), filed a n Employment C omplaint of D iscrimination

with the Florida Commission on Human Relations ( " FCHR " ) alleging

that Respondent, MacFarlane, Ferguson and McMullen, P.A.

( " Respondent " ), discriminated against Petitioner due to her

gend er and her pregnancy, in violation of the Florida Civil

Rights Act of 1992, Sections 760.01 through 760.11, Florida

Statutes (2008).

On July 27, 2010, the FCHR determined that there was no

reasona ble cause to believe that it had jurisdiction because the

complainant had signed a general release. The FCHR's N otice of

D etermination was sent to Petitioner with a point of entry to

request an administrative hearing by filing a Petition for

Relief ("Petition") with the FCHR within 35 days of the date of

the N ot ice of D etermination.

On August 19, 2010, Petitioner timely filed a Petition with

the FCHR. On August 25, 2010, the FCHR forwarded the P etition

to the Division of Administrative Hearings for the assignment of

an administrative law judge to conduct all ne cessary proceedings

and submit a recommended order to the FCHR.

In response to an initial order by the undersigned

regarding scheduling the final hearing, the parties separately

indicated that only a short hearing would be necessary, because

the sole is sue presented was whether Petitioner's general

release of claims constituted a bar to the FCHR's jurisdiction

and to administrative proceedings on Petitioner's Petition .

On September 21, 2010, the undersigned issued an O rder to

S how C ause stating that the parties appear to be in agreement ,

that there are no disputed issues of material fact , and that the

sole issue presented was a legal question regarding

jurisdiction. The parties were each given an opportunity to

respond, to address whether any disputed i ssues of material fact

had been raised for resolution in an evidentiary hearing, and ,

if not, to address whether a recommended order of dismissal

should be entered based on the lack of jurisdiction as a matter

of law.

The parties each timely filed their l egal arguments on

jurisdiction. Neither party disputed the suggestion that no

disputed issues of material fact had been raised for resolution

in an evidentiary hearing. Accordingly, a telephonic hearing

was scheduled and held on November 9, 2010, for arg ument on the

legal question presented.

UNDISPUTED FACTS

1. Petitioner admits that she signed a severance agreement

with Respondent, which included a release of claims against

Respondent.

2. Petitioner's Petition does not allege any disputed

issues of material fact. For example, the Petition does not

contend that Petitioner was not acting knowingly or voluntarily

when she executed a release of claims.

3. Instead, the Petition asserts that the FCHR is not

bound by Petitioner's release of claims. That is the only basis

upon which the Petition disputes the FCHR's determination of no

jurisdiction. Petitioner contends in her Petition that the FCHR

has the right and obligation to independently prosecute the

complaint of discrimination.

C ONCLUSIONS OF LAW

4. The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. 1

5. The FCHR forwarded this matter for the assignment of an

A dministrative L aw J udge to conduct "all necessary proceedings"

and issue a recommended order.

6. The parties acknowledge that there are no disputed

issues of material fact for resolution in an evidentiary

hearing. Instead, the parties agree that the sole legal

question presented is wheth er Petitioner's admitted execution of

a general release of all claims operates as a bar to FCHR

jurisdiction and to administrative proceedings.

7. The FCHR has already conclusively resolved this legal

question against Petitioner's position. Further, eve n if

Petitioner had alleged that her severance agreement with a

release of claims was invalid, that allegation would not be

cognizable in this proceeding.

8. In Wunderlich v. WCI Communities, Inc. , Case

No. 08 - 0684 (DOAH April 8, 2008), the Administrativ e Law Judge

entered a Recommended Order of Dismissal on the basis of

undisputed facts similar to the undisputed facts in this case.

In that case, Mr. Wunderlich executed a "separation agreement,"

which included a release of claims, terminating his employm ent

with WCI Communities. Mr. Wunderlich , thereafter , filed a

complaint of discrimination with the FCHR, asserting that WCI

Communities had engaged in an unlawful employment practice while

Mr. Wunderlich was employed there. Following the FCHR's

determina tion of no reasonable cause, Mr. Wunderlich filed a

P etition for R elief, alleging a dispute based upon WCI

Communities' failure to pay all installments due under the

separation agreement. The Recommended Order of Dismissal

determined that Mr. Wunderlich h ad released any claims he had

under the Florida Civil Rights Act of 1992, as amended, and

further, "Unless and until a court of competent jurisdiction

permits Petitioner to rescind the Separation Agreement, he is

precluded from bring ing this complaint of d iscrimination."

Wunderlich , Recommended Order at 3.

9. The FCHR's Final Order (FCHR Order No. 08 - 040) adopted

the Administrative Law Judge's recommendation of dismissal. In

ruling on exceptions, the FCHR set s forth a detailed discussion

of the FCHR pre cedent on the subject of a complainant's release

of claims, as follows:

The Administrative Law Judge concluded

that Petitioner, through entering into a

Separation Agreement, released his claims

under the Florida Civil Rights Act of 1992

against Responden t. . .

Essentially, the exceptions document

argues that Respondent is in br each of the

Separation Agreement. . .

In a case in which Petitioner argued that

she had not received the money she was

entitled to under a settlement agreement and

Responden t argued that the money agreed to

had been paid, a Commission panel stated:

"Whether Petitioner received what she was

entitled to under the Settlement and Release

Agreement is not an issue appropriately

before the Commission in our view. Rather

the issue before the Commission is whether

there is competent substantial evidence in

the record to support the Administrative Law

Judge's finding that claims brought forth in

this matter have been released by

Petitioner." Keeley v. Millers SuperValue

Store , FCHR O rder No. 03 - 057 (July 24,

2003).

In conclusions of law adopted by a

Commission panel, it has been stated,

"Enforcement of a settlement agreement is

not within the jurisdiction conferred upon

FCHR under Chapter 760, Florida

Statutes. . . McShane v. Brev ard County

Sheriff's Office , FCHR Order No. 03 - 040

(July 3, 2003) . . .

Further, in a case in which a Petitioner

alleged that he was unjustly pressured to

sign a settlement agreement, a Commission

panel adopted an Administrative Law Judge's

conclusion t hat in the absence of a showing

of legislative authority to "go behind" a

settlement agreement by the parties in order

to determine whether a settlement agreement

by the parties resulted from just or unjust

pressure, it must be concluded that in the

face o f the existing settlement agreement

between the parties the case should be

dismissed. Cotter v. Gambro Renal Products,

Inc. , FCHR Order No. 03 - 087 (December 29,

2003).

Finally, in a case in which a Petitioner

alleged that he executed a settlement

agree ment under duress and without benefit

of legal counsel, and in which the

Administrative Law Judge concluded that the

Division of Administrative Hearings "has no

authority to interpret, enforce, or nullify

a private contract," a Commission panel

stated, "If , as suggested by Keeley and

McShane , supra , the Commission is without

jurisdiction to enforce settlement

agreements entered into in cases brought

pursuant to the Florida Civil Rights Act of

1992, in our view, it would logically follow

that the Commission is without jurisdiction

to determine the validity of those

agreements." Howard v. Colomer, USA , FCHR

Order No. 06 - 084 (September 18, 2006).

Based on the foregoing, we conclude that

the Commission has no authority to interpret

whether Respondent is in b reach of the

Separation Agreement. It is undisputed that

the agreement released Petitioner's Florida

Civil Rights Act of 1992 claims against

Respondent.

Accordingly, the FCHR dismissed the P etition for R elief and

complaint of discrimination with prejudic e.

10. More recently, in Bovea v. Mercantile Commercebank ,

Case No. 09 - 0394 (DOAH June 30, 2009), the Administrative Law

Judge recommended dismissal, for lack of jurisdiction of

Mr. Bovea's P etition for R elief from employment discrimination,

because Mr. B ovea had released his claims against Commercebank.

In that case, as here, Mr. Bovea had signed a general release

agreeing to forego any claims against his employer, but later

filed a complaint with the FCHR. The FCHR investigated

Mr. Bovea's complaint of employment discrimination and issued a

determination of no jurisdiction. Mr. Bovea filed a P etition

for R elief, alleging that he did not knowingly or voluntarily

release his claims. After an evidentiary hearing, the

Administrative Law Judge found that M r. Bovea failed to prove

his challenge to the validity of his release and concluded as

follows: "Mr. Bovea, therefore, has no claim cognizable under

the Florida Civil Rights Act of 1992, as amended, and the FCHR

has no jurisdiction in this matter." Bovea , Recommended Order

at 19.

11. In its Final Order (FCHR Order No. 09 - 089), the FCHR

adopted the Administrative Law Judge's recommendation of

dismissal for lack of jurisdiction based on the release.

However, the FCHR commented in its C onclusions of L aw th at in

accordance with its precedent discussed in the Wunderlich Final

Order, supra , the FCHR would not have jurisdiction to determine

the validity of Mr. Bovea's release in any event. Final Order

at 2.

12. In this case, Petitioner fails to address thes e

indistinguishable final orders of the FCHR. Instead,

Petitioner's argument is based solely on the premise that a

complainant's release of claims would not operate as a bar to

the federal Equal Employment Opportunity Commission's ( " EEOC " )

separate prosec ution of a discrimination charge. Petitioner

filed materials regarding the EEOC's authority and policies

about releases to support its argument. But as Respondent aptly

points out in its Reply to Petitioner's Response to Order to

Show Cause, the scope of the EEOC's authority and the EEOC's

policies about releases are irrelevant. The FCHR's authority

and jurisdiction under the Florida Civil Rights Act of 1992, as

amended, must be addressed by reference to Florida law. As

detailed in Respondent's reply, t he structure and authority of

the EEOC and the FCHR are different.

13. With respect to claims of employment discrimination,

the FCHR has specific authority to receive complaints,

investigate, conciliate, and make initial determinations, but

FCHR does not , itself , have authority to initiate administrative

proceedings or enforcement actions in court. See §§ 760.05,

760.06, and 760.11, Fla. Stat. In contrast, with respect to

claims of housing discriminatory practices under the Fair

Housing Act, the FCHR is expressly given the statutory authority

and discretion to institute civil actions in court and to

initiate administrative proceedings. §§ 760.34(7)(a) and

760.35(3)(a)1., Fla. Stat.

14. Thus, Petitioner's argument that the FCHR has the

power to independe ntly prosecute a claim of employment

discrimination, even though the aggrieved party has released her

claims against the employer, must be rejected as contrary to

law. Under Florida law and FCHR precedent, Petitioner's release

of claims against Respondent means that Petitioner has no claims

cognizable under the Florida Civil Rights Act of 1992, as

amended, and the FCHR has no jurisdiction in this matter.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDE D that a final order be entered by the Florida

Commission on Human Relations dismissing Petitioner, Jessica

Miles' , P etition for R elief from employment discrimination for

lack of jurisdiction.

DONE AND ENT ERED this 9th day of December , 2010 , in

Tallahassee , Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of December , 2010 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2010 version. Although the current vers ions

of these statutes are cited, they have not been amended during

any time pertinent to this case.

COPIES FURNISHED :

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

De nise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

David J. Linesch, Esquire

The Linesch Firm

700 Bee Pond Road

Palm Harbor, Florida 34683

Frank E. Brown, Esquire

MacFarlane, F erguson & McMullen, P.A.

Post Office Box 1531

Tampa, Florida 33601

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.