12-003964 Dayna R. Provost vs. Florida Department Of Children And Families Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, January 9, 2013.

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

DAYNA R. PREVOST , EEOC Case No. 15D201200485

Petitioner, FCHR C ase No. 2012 - 0 1669

v. DOAH Case Nos. 13 - 1641

12 - 3964

FLORIDA DEPARTMENT OF CHILDREN

AND FAMILIES , FCHR Order No. 13 - 049

Respondent.

__________________________________/

FINAL ORDER DISMISSING PETITION F OR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

This matter is before the Commission for consideration of th e Ð Order Rejecting Remand

from Florida Commission on Human Relations, Relinquishing Jurisdiction and Closing File , Ñ

dated May 10 , 2013 , is sued in the above - styled matter by Administ rat ive La w Judge Linzie F.

Bogan .

Findings of Fact and Conclusions of Law

The Order before the Commission reflects that the matter had come before the

Administrative Law Judge on the CommissionÓs ÐOrde r Rem anding Case to Administrative L aw

Judge for Further Proceedings on Petition for Relief,Ñ FCHR Order No. 13 - 028, dated April 4,

2013.

The Order before the Commission notes that the CommissionÓs remand order disagrees

with the Administrative L aw JudgeÓs conclusion set out in an ÐOrder Closing File and

Relinquishing Jurisdiction,Ñ dated January 9, 2013, that the case should be dismissed for lack of

jurisdiction due to the operation of the doctrine of collateral estoppel. In the O rder currently

before the Commission, the Administrative Law Judge concluded that, under the Administrative

Procedure Act, the application of the do ctrine of collateral estoppel i s not a conclusion of law

within the substantive jurisdiction of the Commission. Therefore, regardless of the CommissionÓs

disagreement with the Administrative Law JudgeÓs application of the doctrine of collateral

estoppel to this case, the Administrative Law Judge rejected the CommissionÓ s remand order that

had directed further proceedings on th e Petition for Relief, and the Administrative Law Judge

relinquished jurisdiction of the case back to the Commission.

The Administrative Procedure Act states that in reviewing a Recommended Order of an

Administrative Law Judge an administrative a gency ÐÈmay reject or modify conclusions of law

over which it has substantive jurisdictionÈÑ Section 120.57(1)(l), Florida Statutes (2012).

FCHR Order No. 13 - 049

Page 2

Case law suggests that the application of the doctrine of collateral esto ppel by an

Administrative Law Judge is not a conclusion of law within the Ðsubstantive jurisdictionÑ of an

administrative agency. See, Deep Lagoon Boat Club, Ltd. v. Sheridan , 784 So. 2d 114 0 (Fla. 2 nd

DCA 2001).

For reasons set out in the Commi ssionÓs remand order issued earlier in this case, FCHR

Order No. 13 - 028, we believe that the Administrative Law Judge committed an error of law in

applying the doctrine of collateral estoppel to this case.

Nevertheless, case law indicates that it is an appeals court, rather than the administrative

agency, that has jurisdiction to correct an error of law of an Administrative Law Judge which is

not within the Ðsubstantive jurisdictionÑ of the administrative agency . See, G.E.L. Corporation v.

Depart ment of Environmental Protection, et al. , 875 So. 2d 1257 (Fla. 5 th DCA 2004).

Exceptions

Neither party filed exceptions to the Administrative Law JudgeÓ s Ð Order Rejecting

Remand from Florida Commission on Human Relations, Relinquis hing Jurisdiction and Closing

Fil e . Ñ

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the

appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this

Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in

Section 120.68, Florida Statutes , and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 23rd day of July , 2013 .

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissione r Gilbert M. Singer , Panel Chairperson;

Commissioner Lizzette Romano ; and

Commis sioner Mario M. Valle

Filed this 23rd day of July , 2013 ,

in Tallahassee, Florida.

FCHR Order No. 13 - 049

Page 3

/s/

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkwa y, Suite 1 00

Tallahassee, FL 32301

(850) 488 - 7082

Copies furnished to:

Dayna R. Prevost

c/o Joseph M. Herbert, Esq.

2033 Main Street, Suite 600

Sarasota, FL 34237

Florida Department of Children and Families

c/o Eugenie G. Rehak , Esq.

Post Office Box 60085

Fort Myers, FL 33906

Linzie F. Bogan , Adminis trative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed

addressees this 23rd day of July , 2013 .

By: /s/

Clerk of the Commission

Florida Commission on Human Relations