20-004258 Kathy L. Mckethan vs. Winter Park Imports, D/B/A Lexus Of Orlando Status: Closed Recommended Order on Wednesday, October 28, 2020.

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

filing of the complaint and that , pursuant to sections 760.11(4) and (8),

Petitioner was entitled to either: (1) b ring a civil action against the person

named in the complaint in any court of competent jurisdiction within one

year of the date of the notice; or (2) r equest an administrative hearing with

the Division of Administrative Hearings (DOAH) under sections 120 .569 and

120.57, Florida Statutes, by filing a Petition for Relief (Petition) within 35 days of the date of the notice.

On September 18, 2020 , Petitioner timely filed a Petition with FCHR,

request ing an administrative hearing before DOAH. On September 22 , 2020 ,

FCHR forwarded the Petition to DOAH for the assignment of an

Administrative Law Judge to conduct all necessary proceedings required

under the law and submit recommended findings to FCHR.

On September 23, 2020, the undersigned issued an Initial Or der to

facilitate the scheduling of the final hearing . In response, on September 28,

2020 , Respondent filed Respondent ’ s Motion to Dismiss (Mot ion) in which

Respondent asserted that Petitioner and Respondent entered into a Dispute

Resolution Agreement in w hich they agreed to mediate and, if necessary,

arbitrate, any disputes between them, including disputes based on the types

of claims Petitioner attempts to bring in her Petition for Rel ief. Further,

Respondent asserted that Petitioner signed a General Rele ase on January 16,

2019, her last day of employment with Respondent, in which she released Respondent from any and all claims she had or might have had as of the date

of her ex ecution of the General Release. Copies of the Dispute Resolution

Agreement and t he General Release were attached as exhibits to the Motion.

The undersigned treated Respondent ’ s Motion as a motion to relinquish

jurisdiction pursuant to section 120.57(1)(i), based on the documen ts attached

to the motion. The documents raise d a threshol d question of whether the

undersigned has jurisdiction to address the disputed facts raised in the

Petition for Relief, or whether, instead, Petitioner ’ s claim is barred by the

General Release or cannot be heard in this tribunal because of Petitioner ’ s

agr eement to arbitrate.

On October 8, 2020, the undersigned issued an Order to Show Cause in

which Petitioner was directed to file a written response to the Order setting

forth material facts that dispute Respondent ’ s assertion that Peti tioner has

released her claim through the signing of a General Release and agreed to

final and binding arbitration to resolve disputes under the FCRA , as

suggested by the documents attached to Respondent ’ s Motion.

On October 22, 2020, Petitioner timely responded to the Orde r to Show

Cause by filing Petitioner ’ s Response to Show Cause Order and Respondent’ s

Motion to Dismiss (Response). In the Response, Petitioner made specific

allegations regarding Respondent’s purported discriminatory conduct and asserted that the General R elease was signed under duress, she did not give

up her rights because she had not yet received her final paycheck or her

belongings from Respondent, and that there is no proof that she received

consideration for signing the General Release. Specifically, Petitioner asserts

that there is no proof she was given “the $10 to keep quiet.”

Due consideration has been given to Petitioner ’ s R esponse to the Order to

Show Cause. No hearing is necessary.

All sta tutory references are to the 201 8 version of the Flori da Statutes.

F INDINGS OF F ACT

1. On January 16, 2019, on her last day of employment with Respondent,

Petitioner executed a General Release.

2. Petitioner does not dispute that she signed the General Release, which

states, in pertinent part:

I knowingly and voluntaril y release and forever

discharge [Respondent] of and from any and all

claims, known and unknown, anticipated and

unanticipated, asserted and unasserted, which I

have or may have against the [Respondent] as of

the date of execution of this Gen eral Release . These

released claims include, but are not limited to, any alleged violation of .. . Title VII of the Civil Rights

Act of 1964; the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Family and Medical Leave Act; .. . [and] the Florida

Civil Rights Act [ . ]

* * *

By signing below, I am knowingly and freely waiving and releasing all claims I may have

against the [Respondent]. I further affirm I have

been given a sufficient amount of time to consider whether to sign this General Release.

3. The subject complaint of discrimination was brought by Petitioner , after

she signed the General Release, pursuant to the FCRA, which i s specifically

referenced as a released claim in the General Release .

4. By executing the General Release, Petitioner released Respondent from

the claim s that were the basis for her complaint of discrimination .

5. Petitioner asserts that the General Release was signed under duress,

she did not give up her rights because she had not yet rec eive d her final

paycheck or belongings, and that there is no proof that she received

consideration for signing the general release.

C ONCLUSIONS OF L AW

6. DOAH has jurisdiction over the parties and the subject matter of this

cause pursuant to sectio ns 120.569 and 120.57(1).

7. The FCRA prohibits discrimination in the workplace. See §§ 760.10 and

760.11, Fla. Stat. Section 760.10(1)(a) states that it is an unlawful

employment practice for an employer:

To discharge or to fail or refuse to hire any

individual, or otherwise to discriminate against any individual with respect to compensation, terms,

conditions, or privileges of employment, because of

such individual ’ s race, color, religion, sex,

pregnancy, national origin, age, handicap, or marital status.

8. The is sue at hand is whether Petitioner’s execution of the G eneral

Release operates as a bar to FCHR’s jurisdiction or the undersigned having

authority to resolve this matter on the merits in an administrative

proceeding. FCHR has already conclusively resolved t his le gal question, as

set forth below, and, u nless and until a court of competent jurisdiction

permits Petitioner to rescind the General Release, s he is precluded from

bringing this complaint of discrimination in this administrative proceeding .

9. It 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

(11th Cir. 1996).

10. As found above, Petitioner released Respondent from any claim

brought under the FCRA . Accor dingly, FCHR has no jurisdiction in this

matter. This conclusion is consistent with result s reached in previous DOAH

Recommended Orders and FCHR Final Orders .

11. In Keeley v. Millers Super Value Store , Case No. 02 - 4727 ( Fla. DOAH

Jan. 21, 2003 ; FCHR July 24, 2003 ), the Administrative Law Judge entered a

Recommended Order of Dismissal on the basis that by entering into a release

agreement, Peti tioner waived her rights under s ection 760.11, to prove that

Respondent discriminated against her based on her race and/or disability. In

Keeley , the Petitioner did not dispute that she sign ed the release discharging

R espondent from all legal and equitable claims of any nature that she h ad or

may have had against R espondent.

12. I n Wunderlich v. WCI Communities, Inc. , Case No. 08 - 0684 ( Fla.

DOAH Apr. 8, 2008 ; FCHR July 1, 2008 ) , the Administrative Law Judge

entered a Recommended Order of Dismissal determining that Mr.

Wunderlich had released any claims he had under FCRA, and further,

“[u] nless and until a court of comp etent jurisdiction permits Petitioner to

rescind the Separation Agreement, he is precluded from bringing th is

complaint of discrimination.” FCHR ’ s Final Order (FCHR Order No. 08 - 040)

adopted the Administrative Law Judge ’ s recommendation of dismissal. In

ru ling on exceptions, F CHR set s forth a detailed discussion of FCHR

precedent 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 Ac t of 1992 against Respondent.

* * *

Essentially, the exceptions document argues that

Respondent is in breac h 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 Respondent argued that

the money agreed to had been pa id, a Commission

panel stated: “ Whether Petitioner received what

she was entitled to under the Settlement and

Release Agreemen t 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 suppo rt the Administrative Law Judge’ s finding

that claims brought forth in this m atter ha ve been

released by Petitioner.” Keeley v. Millers

SuperValue Store , FCHR Order No. 03 - 057 (July

24, 2003).

In conclusions of law adopted by a Commiss ion

panel, it has been stated, “ Enforcement of a

settlement agreement is not within the jurisdic tion

conferred upon FCHR under Chapter 760, Florida

Statutes … McShane v. Brevard County Sheriff ’ s

Office , FCHR O rder No. 03 - 040 (July 3, 2003).

* * *

Further, in a case in which a Petitioner alleged

that he was unjustly pressured to sign a sett lement

agreement, a Commission panel adopted an Administrative Law Judge ’ s conclusion that in the

absence of a showi ng 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 of 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 agreement under duress and without benefit of le gal counsel, and in which

the Administrative Law Judge concluded that the

Divis ion of Administrative Hearings “ has no

authority to interpret, enforce, or nullify a private

contrac t,” 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

th e validity of those agreements.” Howard v.

Colomer, USA , FCHR Order No. 06 - 084 (September

18, 2006).

Based on the foregoing, we co nclude that the

Commission has no authority to interpret whether Respondent is in breach of the Separation

Agreement. It is undisputed that the agreement

released Petitioner ’ s Florida Civil Rights

Act of

1992 claims against Respondent.

13. Petitioner has asserted that the General Release was procured under

duress, that she signed it before receiving her last paycheck and that there is

no proof she received consideration for the execution. FCHR has previously

determined that it lacks jurisdiction to determi ne the validity of settlement

agreements. See Wunderlich v. WCI Communities, Inc. , FCHR Order No. 08 -

040 (July 1, 2008)(noting that “in the absence of a showing of legislative authority to ‘ go behind ’ a settlement agreement by the parties in order to

deter mine 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.”).

14. In accordance with Florida law and FCHR pre cedent, Petitioner’ s

claims are barred by the General Release and FCHR does not have

jurisdiction in this matter.

15. Based on the finding above, a determination of whether Petitioner ’ s

claim could be heard in this tribunal (if it had not been released) b ecause of

Petitioner ’ s agreement to arbitrate is unnecessary .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations enter a

Final Order dismissing Kathy L. McKethan ’s Petition for Relief due to a lack

of jurisdiction.

D ONE A ND E NTERED this 28th day of October , 2020 , in Tallahassee, Leon

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

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 28th day of October , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Keith L. Hammond, Esquire

Law Office of Keith L. Hammond, P.A.

Post Office Box 547873

Orlando, Florida 32854

(eServed)

Kathy McKethan

Post Office Box 953304

Lake Mary, Florida 32795

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

1 075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.