13-004136 Dale Steven Tharp vs. Lockheed Martin Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, January 3, 2014.

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

DALE STEVEN THARP , EEOC Case No. 450201302271

Petitioner, FCH R C a s e No. 2013 - 01407

v. DOAH Case No. 13 - 4136

LOCKHEED MARTIN, FCHR Order No. 14 - 00 5

Respondent.

__________________________________/

ORDER REMAND ING PETITION FOR

RE LIEF FROM A N UNLAWFUL EMPLOYMENT PRACTICE

This matter is before the Commission for consideration of th e Ð Amended Order Closing

File and Relinquishing Jurisdiction , Ñ dated January 3 , 2014 , issued in the above - styled matter by

Administ rat iv e L aw Judge Diane Cleavinger .

Findings of Fact and Conclusions of Law

While dismissal of this action for lack of jurisdiction may be the ultimate dispo sition of the

case , we conclude that such an action is premature, and remand the matter to the Administrative

Law Judge for further proceedings.

On December 2, 2013, Judge Cleavinger issued an ÐOrder to Show CauseÑ which stated:

ÐAfter a review of the file it does not appear that the Division of Administrative Hearings has

jurisdiction in this matter. The Petitioner does not reside in Florida. The RespondentÓs corporate

headquarters are not located in Florida. Further, none of the actions complained about appear to

have occurred in Florida.Ñ The ÐOrder to Show CauseÑ directs that ÐÈthe parties shall, no later

than 5:00 p.m. ET, on December 20, 2013, provide a statement in writing setting forth facts

sufficient to demonstrate DOAHÓs jurisdiction in this matter.Ñ

On December 16, 2013, Petitioner responded with a letter to Judge Cleavinger, and on

December 20, 2013, Respondent responded by filing ÐRespondentÓs Motion to Dismiss the

Petition for Relief for Lack of Jurisdiction.Ñ

The ÐAmended Order Closing File and Relinquishing JurisdictionÑ again restates the three

issues set out above, raised in the ÐOrder to Show Cause,Ñ and states, ÐWhile PetitionerÓs

response to the Order to Show Cause showed some training for PetitionerÓs job assignment

occur red in Florida, that training was not related to the allegations of discrimination involved in

this action. Moreover, such a temporary assignment does not create a nexus to Florida that

would give rise to Florida jurisdiction over a permanent job assignme nt outside of Florida.Ñ

Therefore, Judge Cleavinger concluded that the Division of Administrative Hearings Ðdoes

not have jurisdiction in this matter under either chapter 760 or 120, Florida StatutesÈÑ

FCHR Order No. 14 - 005

Page 2

It would seem to us that whether jurisdiction exists in this cas e is a dispute of material fact

that needs to be litigated.

We agree with the Administrative Law Judge that some ÐnexusÑ to Florida must exist to

create jurisdiction . We note that the original charge of discrimination is brought against

Lockheed Martin of Melbourne, Florida. We are concerned that this issue was not fully litigated.

In concluding that no jurisdiction exists, the Administrative Law Judge relies on

PetitionerÓs response to the ÐOrder to Show Cause.Ñ I n our view, the concerns set out in the

ÐOrder to Show CauseÑ are not dispositive of the issue of jurisdiction. First, there is no

requirement that a person bringing an action under the Florida Civil Rights Act of 1992 be a

ÐresidentÑ of Florida. See Section 760.10(1)(a), Florida Statutes (2012), which prohibits

discrimination against Ðindividuals , Ñ and does not limit protection to residents of th e state of

Florida; see also, Potasek v. Florida State University , DO AH Case No. 93 - 7083, FCHR Case No.

93 - 3992 (FCHR Order No. 95 - 013, April 17, 1995) , a case brought under the Human Rights Act

of 1977, in which a resident of Princeton, New Jersey, brought a discrimination action against the

university for fa iling to hire her for a position for which she had applied. Second, there is no

requirement in the Florida Civil Rights Act of 1992 that an employerÓs headquarters be located in

Florida in order for its employees to be protected by the statute. See Section 760.02(6) a nd (7),

Florida Statutes (2012) , read collectively to determine the definition of a covered Ðemployer . Ñ

Finally, in some instances, the protections of the Florida Civil Rights Act of 1992 can be applied

to actions that have occurred outside the state of F lorida , even to permanent assignments outside

the state of Florida . See Parry v. Outback Steakhouse of Florida, Inc. , 2006 WL 2919018 (M.D.

Fla. 2006) and Cartwright v. Florida Department of Revenue , DOAH Case No. 06 - 2131, FCHR

Case No. 2005 - 02800 (F CHR O rder No. 07 - 018, March 16, 2007 ).

We conclude that Petitioner has not had the opportunity to establish the employment

relationship between Petitioner and Lockhe ed Martin of Melbourne, Florida. While the ÐOrder

to Show CauseÑ directs Petitioner t o provide a written statement setting forth facts sufficient to

demonstrate DOAHÓs jurisdiction, and the Administrative Law Judge found PetitionerÓs response

to be insufficient, the ÐOrder to Show CauseÑ identifies , and the ÐAmended Order Closing File

and Relinquishing JurisdictionÑ relies on, criteria that are not actually dispositive of whether

jurisdiction exists.

We conclude the matter should be remanded to the Administrative Law Judge for further

proceedings on the issue of jurisdiction and o n the Petition for Relief if jurisdiction is found to

exist.

Exceptions

Neither party filed exceptions to the Administrative Law JudgeÓs ÐAmended Order Closing

File and Relinquishing Jurisdiction.Ñ

FCHR Order No. 14 - 005

Page 3

R emand

The Petition for Relief and Complai nt of Discrimination are REMAND ED to the

Administrative Law Judge for further proceedings on the Petition for Rel ief consistent with this

Order.

DONE AND ORDERED this 26 th day of March , 2014 .

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissi oner Mario M. Valle , Panel Chairperson;

Commis sioner Donna Elam ; and

Commis sioner Michael Keller

Filed this 26 th day of March , 2014 ,

in Tallahassee, Florida.

/s/

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 1 00

Tallahassee, FL 32301

(850) 488 - 7082

Copies furnished to:

Dale Steven Tharp

Post Office Box 1296

Greenville, TX 75403

Lockheed Martin

c/o Lara J. Peppard , Esq .

Ogletree, Deakins, Nash,

Smoak and Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa, FL 33602

Diane Cleavinger , Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 14 - 005

Page 4

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

addressees this 26 th day of March , 2014 .

By: /s/

Clerk of the Commission

Florida Commission on Human Relations