16-003635 Maurice G. Hargrove, Sr. vs. American Staff Management, Inc. Status: Closed Recommended Order on Wednesday, September 28, 2016.

Summary: Because Petitioner executed a general release, the Florida Commission on Human Relations has no jurisdiction in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAURICE G. HARGROVE, SR. ,

Petitioner ,

vs. Case No. 16 - 3635

AMERICAN STAFF MANAGEMENT, INC. ,

Respondent .

/

RECO MMENDED ORDER OF DISMISSAL

This cause came on for consideration without an evidentiary

hearing for the reasons set forth below.

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On December 11, 2015, Mau r ice G. Hargrove, Sr.

(ÐMr. HargroveÑ) , filed an Employment Charge of Discrimination

(Ðthe Charge of DiscriminationÑ) with the Florida Commission on

Human Relations (Ðthe CommissionÑ) alleging that American Staff

Management (ÐASMÑ) discriminated against hi m due to his

disability, in violation of the Flo rida Civil Rights Act of

1992, s ections 760.01 through 760.11, Florida Statutes ( 2014).

Mr. Hargrove stated in his Charge of Discrimination that :

I believe I was discriminated against on the

basis of disabi lity by my former employer,

American Staff Management. I began my

employment with Respondent on April 16,

2014, and wor k ed as a Stocker until my

unlawful termination on May 23, 2015. On

June 18, 2014, I was injured on the job

while pulling a heavy pallet on the floor.

I was cleared to return to work under light

duty restrictions in October 2014, but was

told by Ms. Debbie (LNU) there was nothing

for me to do. In May 2015, I was informed

by my doctor that I had reached my maximum

medical improvement (MMI ) and was declared

permanently disabled. Respondent, in

coordination with their workerÓs

compensation carrier, made no attempt to

accommodate my disability and terminated my

employment effective May 23, 2015. It is my

firm belief I was terminated solely due to

my disability.

The Commission assign ed Case No. 201600313 to

Mr. HargroveÓs case.

On June 15, 2016, the Commission determined that there was

no reasonable cause to believe that an unlawful employment

practice had occurred. The Commission explain ed its reasoning

as follows:

[ASM] is a professional employment

organization (PEO), providing administrative

support, including payroll and WorkerÓs

Compensation support, to KES Grocery d/b/a

Save - a - Lot (KES). KES hired [Mr. Hargrove]

on April 16, 2014, a nd [he] was injured on

the job on June 18, 2014. [Mr. Hargrove]

was out of work on WorkerÓs Compensation

until May 2015, when he asked KES to return

to work with light duty restrictions.

According to [Mr. Hargrove], a

representative of KES denied the req u est.

[ASM] asserts and [Mr. Hargrove] does not

dispute that KES hired [Mr. Hargrove] and

that [Mr. Hargrove] worked within the

grocery store performing the functions of

the grocery store. Thus, it is obvious KES

employs [Mr. Hargrove]. Additionally, th e

evidence in the record demonstrates that KES

and [ASM] are not a single employer and are

not joint employers. [ASM] submitted its

contract for services. The contract

language confirms [ASM]Ós position that it

did not have any ownership or control over

KESÓs business or operations and did not

have any control over [Mr. Hargrove]Ós work

at the grocery. For that reasons [sic] ,

there is no basis for liability in [ASM].

In addition to notifying Mr. Hargrove of its decision, the

Commission advised him th at he could challenge its determination

by requesting an administrative hearing before the Division of

Administrative Hearings (ÐDOAHÑ) .

Mr. Hargrove timely filed a Petition for Relief request ing

an administrative hearing, and the Commission referred the

instant case to DOAH on June 23, 2016.

On August 15, 2016, ASM filed a Motion to Dismiss alleging

that Mr. Hargrove had si gned a document releasing ASM from any

claim relating to hi s Ð employment Ñ with ASM. The document in

question is entitled ÐGeneral Release of All Claims Ñ (Ðthe

General ReleaseÑ) and was atta ched to the Motion to Dismiss.

Mr. Hargrove responded to the Motion t o Dismiss by filing a

m otion asking the undersigned to allow him to amend his Petition

for Relief by adding KES as a Responde nt. 1/

The undersigned considered the Motion to Dismiss during a

telephonic conference convened on September 13, 2016.

UNDISPUTED FACT S

1. On July 26, 2016, Mr. Hargrove executed the General

Release.

2. The General Release refers to workers Ó compensat ion

case n o. 14 - 27830 and lists June 18, 2014, as the date of the

accident.

3. T he General Release lists Mr. Hargrove as the

Ðemployee/claimantÑ and notes that he was represented by Bruce

Alexander Minnick of the Minnick Law Firm.

4. In addition, th e General Release lists ASM as the

Ðemployer.Ñ

5. A provision within the body of the General Release

states the following:

As further consideration for the lump sum

payment, the Claimant releases, settles and

waives any and all claims whether or not

asser ted, including but not limited, to

those claims asserted in the pending

Complaint with the Florida Commission on

Human Relations, case number 201600313 and

the pending EEOC Charge number 15D201600185,

against the Employers or any of their

officers, agents, servants, Employees,

directors, successors, assigns and any other

person or entity without any limitation

including any and all past, present or

future claims as to the Americans with

Disabilities Act, wrongful discharge,

violation of the Florida Civil Ri ghts Act of

1992, and Title VII of the Civil Rights Act

of 1964 claims or lawsuits, or any other

claims, causes of action, demands,

obligations, complaints, damages, costs or

liabilities of any kind or nature whatsoever

whether asserted or not asserted, kn own or

unknown, contingent or non - contingent,

whether based upon tort, contract, statutory

or other civil penalties that Maurice

Hargrove, Sr. may have, could have asserted

or may arise in the future against [ ASM ] .

The Claimant stipulates that he was

cons idered returning to work within the

reasonable accommodations, provided by the

Employer, but is unable to do so, even with

the reasonable accommodations without

imposing an undue hardship on the Employer.

The Employer agrees to pay the Claimant

$500.00 f o r this release/settlement/waiver,

which is in addition to the $7,500.00

settlement amount contained in the attached

440.20(11)(c), (d) and (e) lump sum

settlement paperwork.

6. Mr. Hargrove has not asserted that he did not execute

the General Release s erving as the basis for AS M Ós Motion to

Dismiss.

7. Mr. Hargrove has not asserted that the General Release

serving as the basis for ASMÓs Motion to Dismiss is not the

document he signed.

8. Mr. Hargrove has not asserted that the General Release

se rving as the basis for ASMÓs Motion to Dismiss was procured

through any improper means such as fraud or duress.

9. Mr. HargroveÓs only response to the Motion to Dismiss

wa s a request that he be allowed to amend his Charge of

Discrimination by adding KES as a respondent.

10. By executing the General Release, Mr. Hargrove released

ASM from the claim that was the basis for his Charge of

Discrimination.

CONCLUSIONS OF LAW

1 1 . The Division of Administrative Hearings has

jurisdiction over the subject mat ter and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2016).

1 2 . The Commission forwarded this matter for the

assignment of an Administrative Law Judge to conduct Ðall

necessary proceedingsÑ and issue a recommended order.

1 3 . S ection 760.10, Florida Statutes (2014), part of the

Florida Civil Rights Act of 1992, as amended, provides in

pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or o therwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

14. I t is settled law that a person may waive his or her

right to pursue an employment discrimination claim. See , gen . ,

Puentes v. UPS , 86 F.3d 196, 198 (11 th Cir. 1996).

15. As found above, Mr. Hargrove released ASM from the

claim that was the basis for his Charge of Discrimination.

Accordingly, Mr. Hargrove has no cognizable claim under the

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

has no jurisdiction in this matter. This conclusion is

consistent with results reached in previous DOAH cases. See

Bovea v. Mercantile Commerce b ank , Case No. 09 - 0 394 (Fla. DOAH

June 30, 2009; FCHR Sept. 22, 2009)( concluding Ðbased on the

findings of fact herein, that Mr. Bovea released Commercebank, as

an affiliate of Banco Universal, from all claims he might have

against them in the Settlement Agreement he executed January 8,

2008. Mr. Bovea, therefore, has no claims cognizable under the

Florida Civil Rights Act of 1992, as amended, and the FCHR has no

jurisdiction in this matter.Ñ); Wunderlich v. WCI Communities ,

Inc. , Case N o . 08 - 0 684 (Fla. DOAH April 8, 2008; FCHR July 1,

2008)(stating Ð[t]he subject complaint of discrimination was

brought by Petitioner pursuant to the Florida Civil Rights Act of

1992, as amended. Pursuant to the Separation Agreement,

Petition er has released any claims he has or had under that Act.

Unless and until a court of competent jurisdiction permits

Petitioner to rescind the Separation Agreement, he is precluded

from bringing this complaint of discrimination.Ñ); Parys v.

MacFarlane, Fer guson & McMullen, P.A. , Case No. 10 - 8309 (Fla.

DOAH Dec. 9, 2010; FCHR March 2, 2011)( concluding that Ð[u]nder

Florida law and FCHR precedent, PetitionerÓs release of claims

against Respondent means that Petitioner has no claims cognizable

under the Florid a Civil Rights Act of 1992, as amended, and the

FCHR has no jurisdiction in this matter.Ñ).

16. Finally, e ven if Mr. Hargrove was asserting that the

General Release was procured through improper means , such as

fraud or duress, the Commission has previo usly determined that it

lacks jurisdiction to determine the validity of settlement

agreements. See Wunderlich v. WCI Communities, Inc. , FCHR Order

No.08 - 040 (July 1, 2008)(noting that Ðin the absence of a showing

of legislative authority to Ògo behindÓ a settlement agreement by

the parties in order to determine whether a settlement by the

parties resulted from just or unjust pressure, it must be

concluded that in the face of the existing settlement agreement

between the parties the case should be dismissed .Ñ) .

RECOMMENDATION

Based on the foregoing Undisputed Fact s and Conclusions of

Law, it is RECOMMENDED that a f inal o rder be entered by the

Florida Commission on Human Relations dismissing Maurice G.

Hargrove, Sr.Ós , Petition for Relief from employment

di scrimination due to a lack of jurisdiction.

DONE AND ENTERED this 2 8 th day of September , 2016, in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearings

T he 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 2 8 th day of September, 2016

ENDNOTE

1/ Mr. Ha rgroveÓs m otion was denied through a separately issued

Order.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Amy Michele Darby, Esquire

Gordon & Rees, LLP

400 North Ashley Drive

Tampa, Florida 33604

(eServed)

Maurice Hargrove, Sr.

1672 Sunny Hill Boulevard

Chipley, Florida 32428

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Fl orida 32399

(eServed)

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

w ill issue the Final Order in this case.