13-000814 Albert B. Balzanti vs. Shared Solutions And Services, Inc., Arrow Electronics Status: Closed Recommended Order on Friday, April 12, 2013.

Summary: Petitioner barred from prosecuting employment discrimination claim due to release. Claim accrued on or before termination. Failure to tender back consideration is ratification of release.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT BALZANTI , )

)

Petitioner , )

)

vs. ) Case No. 13 - 0814

)

SHARED SOLUTIONS AND SERVICES, )

INC./ARROW ELECTRONICS , )

)

Respondent . )

)

RECOMMEN DED ORDER OF DISMISSAL

On March 27, 2013, Respondent filed a Motion to Relinquish

Jurisdiction and Memorandum of Law. Petitioner filed a response

on April 8, 2013. In response to an Order to Produce entered

March 27, 2013, Respondent filed an affidavit on April 11, 2013.

Respondent essentially contends that the case should be

dismissed because Petitioner has released the claim set forth in

his Petition for Relief. Petitioner counters that he was not

aware of the discriminatory act until after the term ination of

his employment, so he should not be held to any release.

APPEARANCES

Petitioner: Albert Balzanti, pro se

4547 Northwest 93rd Avenue

Fort Lauderdale, Florida 33351

Respondent: Holly A. Dincman , Esquire

Melissa F. Sale , Esquire

Coppins, Monroe, Adkins & Dincman, P.A.

1319 Thomaswood Drive

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether the claim of employment discrimination

contained in the P etition for Relief must be dismissed due to

Petitioner's execution of a release at the time of his

termination from employment.

PRELIMINARY STATEMENT

On August 2, 2012, Petitioner filed with the Florida

Commission on Human Relations a Charge of Discriminat ion against

Respondent. The Charge of Discrimination alleges that

Petitioner was laid off on August 15, 2011. Two days later, the

supervisor who laid off Petitioner allegedly called him and said

that he had been laid off because "the Jew from New York ha ted

the Italian from New York." The Charge of Discrimination

alleges discrimination on the basis of his Italian national

origin.

On February 1, 2013, the Florida Commission on Human

Relations issued a Determination: No Cause.

On March 7, 2013, Petitio ner filed a Petition for Relief,

alleging that he was terminated due to his Italian national

origin . Concerning his execution of a release, Petitioner

alleges that he did so before he learned of the discriminatory

statement and discriminatory animus that dro ve his termination.

Petitioner alleged that he would not have signed the release, if

he had known of these facts.

On March 27, 2013, Respondent filed a Motion to Relinquish

Jurisdiction, which includes a copy of the entire Severance

Agreement and Release signed by Petitione r on August 17, 2011

(Release).

By subsequent affidavit , Respondent established that

Petitioner did not exercise his right to revoke the Release, and

Petitioner has never tendered back to Respondent the severance

payment.

FINDING S OF F ACT

1. Effective August 15, 2011, Petitioner's employment with

Respondent was terminated . Two days later, Petitioner signed

and delivered the Release .

2. In the Release, Respondent agreed to pay Petitioner

"severance pay" of about $5 , 000, net several items, provided

Petitioner did not exercise his right to revoke the agreement

within the seven days following execution, as provided by the

Release. Petitioner did not revoke the agreement, and

Respondent discharged its obligations under the Release.

3. In exchange, Petitioner agre ed to release Respondent

from any and all charges, complaints,

claims, liabilities, obligations, promises,

sums of money, agreements, controversies,

damages, actions, suits, rights, demands,

sanctions, costs . . ., losses, debt s, and

expenses of any nature whatsoever, existing

on, or at any time prior to, the date

hereof, in law, in equity or otherwise,

which [Petitioner] . . . had or [has] by

reason of any fact, matter, cause or thing

whatsoever. This Release includes . . . a

release of all claims or causes of action

arising out of or related to [Petitioner]'s

employment and/or separation from employment

with [Respondent] and . . . claims or causes

of action arising under any federal, state

or local law, including . . . Title V II of

the Civil Rights Act of 1964 . . .."

4. Even taken as true, the above - quoted statement is not,

on its face, evidence of discrimination based on national origin

because it does not reveal that the speaker acted on his hatred

of Petitioner; it merely describes hatred, the national origin

or religion of the speaker, and the national origin of

Petitioner. However, for the purpose of ruling on Respondent's

Motion to Relinquish Jurisdiction, it is assumed that a Jewish

supervisor fired Petitioner on the ground of national origin.

More importantly, perhaps, is the fact that, after concluding

that his termination had constituted unlawful discrimination,

Petitioner has not tender ed back to Respondent the severance

payment , nor has he offered to do so .

CO NCLUSIONS OF LAW

5 . The Division of Administrative Hearings has

jurisdiction. §§ 120.569, 120.57(1), and 760.11(7), Fla. Stat.

6 . In its Motion to Relinquish Jurisdiction, Respondent

has raised a threshold issue concerning whether the R elease bars

the p resent proceeding. It does.

7 . A party may release his claims of discrimination

against an employer. See, e.g., Wastak v. Lehigh Valley Health

Network , 342 F.3d 281 (3d Cir. 2003).

8. A former employee may not escape the effect of a

release by claimi ng that elements of the claim did not occur

until after termination, such as when the employer replaced him

with a younger worker. The claim of discrimination accrues on

the date of discharge, not on the later date that the discharged

employee becomes awa re, or should become aware, of the existence

and source of an injury. Id. at 286 - 87.

9 . A release of liability under employment discrimination

laws is enforceable unless it is ambiguous or the product of

mutual mistake. Anzueto v. Washington Metropolita n Area Transit

Authority , 357 F. Supp. 2d 27, 30 - 33 (D.C. D.C. 2004). The

Release is unambiguous , and Respondent , of course, does not

suggest that it entered into the agreement on the basis of

mistake.

10 . As it is clear that Petitioner signed the Releas e,

received consideration for doing so, and now seeks to prosecute

this proceeding in breach of the Release, it is his burden to

raise and prove an affirmative defense to the Release in order

to set it aside . Faris v. Williams WPC - 1, Inc. , 332 F.3d 316,

3 22 - 23 (5th Cir. 2003). He has not raised such a defense to the

Release . Even if he had, Petitioner would not be able to prove

the defense unless he has returned the consideration that he

received under the agreement because his failure to have done so

ra tifies the agreement. Id. ; Cheung v. New York Palace Hotel ,

2005 U.S. Dist. LEXIS 34659 (E.D. N.Y. 2005). See also Hampton

v. Ford Motor Co. , 56 1 F.3d 709, 717 (7th Cir. 2009) (if settin g

aside of release is treated under theory of rescission, rather

tha n ratification, employee must still tender back to the other

party -- or at least offer to do so -- the consideration that he

received for the release) .

1 1 . Absent any suggestion that Petitioner has tendered

back the consideration that he has received for the Release, he

is unable even to raise an affirmative defense to the Release .

Because t here are no i mpediments to its enforcement, the Release

precludes Petitioner 's prosecution of this proceeding.

RECOMMENDATION

I t is RECOMMENDED that the Florida Commission o n Human

Relations enter a final order dismissing the Petition for

Relief.

DONE AND ENTERED this 12th day of April, 2013, in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Adm inistrative 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 12th day of April, 2013.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Albert B. Balzanti

4857 Northwest 93rd Avenue

Fort Lauderdale, Florida 33351

Holly A. Dincman, Esquire

Me lissa F. Sale, Esquire

Coppins, Monroe, Adkins,

and Dincman, P.A.

1319 Thomaswood Drive

Tallahassee, Florida 32308

Cheyanne Costilla, Interim General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 3 2301

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 O rder in this case.