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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-007

FCHR Order No. 09-007

Date of Release: 01/13/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

DE’ANTHONY SHAMAR

EEOC Case No. 15D200700863

Petitioner

 

v.

FCHR Case No. 2007-02580

   

CITY OF SANFORD

DOAH Case No. 08-1926

Respondent

FCHR Order No. 09-007

   

ORDER REMANDING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

This matter is before the Commission for consideration of the Recommended Order of Dismissal, dated September 11, 2008, issued in the above-styled matter by Administrative Law Judge Daniel Manry.

The Commission scheduled a deliberation hearing on the matter for November 20, 2008.

At Respondent’s request, and with no indicated objection by Petitioner, the deliberation hearing was continued by the Commission in an order dated November 12, 2008.

Pursuant to notice, public deliberations were held on January 9, 2009, by means of Communications Media Technology (namely, telephone) before this panel of Commissioners. The public access point for these telephonic deliberations was the Office of the Florida Commission on Human Relations, 2009 Apalachee Parkway, Suite 200, Tallahassee, Florida, 32301. At these deliberations, the Commission panel determined the action to be taken on the Recommended Order of Dismissal.

Findings of Fact and Conclusions of Law

The Administrative Law Judge concluded that the Petition for Relief in this matter should be dismissed because “once the federal court issued an order retaining jurisdiction over both the retaliation claims and allegations of discrimination, the latter being the subject of this proceeding, the federal court became Petitioner’s exclusive remedy pursuant to Subsection 760.11(4), Florida Statutes (2007). Neither DOAH nor the Commission may exercise authority in excess of that legislatively delegated in terms of the statute.” Recommended Order of Dismissal, Page 1 and 2.

The Florida Civil Rights Act of 1992 indicates that if the Commission fails to determine whether there is reasonable cause on any complaint within 180 days of the filing of the complaint, the aggrieved person may proceed under Section 760.11(4), Florida Statutes, as if the Commission determined that there was reasonable cause. Section 760.11(8), Florida Statutes (2007).

FCHR Order No. 09-007

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The section of the Florida Civil Rights Act of 1992 referred to above states, “In the event the [C]ommission determines that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992, the aggrieved person may either: (a) Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or (b) Request an administrative hearing under ss. 120.569 and 120.57. The election by the aggrieved person of filing a civil action or requesting an administrative hearing under this subsection is the exclusive procedure available to the aggrieved person pursuant to this act.” Section 760.11(4), Florida Statutes (2007).

The Florida Civil Rights Act of 1992 further states, “A civil action brought under this section shall be commenced no later than 1 year after the determination of reasonable cause by the [C]ommission. The commencement of such action shall divest the [C]ommission of jurisdiction of the complaint, except that the [C]ommission may intervene in the action as a matter of right.” Section 760.11(5), Florida Statutes (2007).

In discussing these statutory provisions, it has been stated that, “…the quoted language essentially admonishes the Commission that it may take no further action on a complaint once the aggrieved person has properly invoked a court’s jurisdiction [emphasis added].” Torres v. Sweet Tomatoes Restaurant, DOAH No. 00-3018, FCHR No. 20-02137, Order Denying Motion to Dismiss, issued by Administrative Law Judge Lawrence P. Stevenson, December 18, 2000.

The question before the Administrative Law Judge in this matter, and now before the Commission, is, in our view, do the Division of Administrative Hearings and the Commission have jurisdiction over the allegations in the third Charge of Discrimination and subsequent Petition for Relief filed by the Petitioner, given the pending suit filed by Petitioner in Federal District Court?

The Administrative Law Judge concluded that the Federal District Court retained jurisdiction over both the retaliation claims and claims of discrimination set out in Petitioner’s third Charge of Discrimination and subsequent Petition for Relief, and that under Section 760.11(4), Florida Statutes, set out above, the Federal Court became Petitioner’s exclusive remedy. Recommended Order of Dismissal, Pages 1 and 2.

A review of the Order of the Federal District Court in which such retention of jurisdiction ostensibly occurred, reveals that the Federal District Court did not really “retain jurisdiction” over either the retaliation claims or the discrimination claims found in the third Charge of Discrimination and subsequent Petition for Relief. See Order, dated July 17, 2008, attached as Attachment 3 to “Petitioner’s Memorandum in Support of Its Exceptions to Recommended Order by Administrative Law Judge Manry and Request for Expedited Review.”

Rather, the Order makes no mention of the discrimination charges other than to say that the Order is addressing only “those new allegations that, on their face, appear retaliatory.” See Order, footnote 3. With regard to allegations of retaliation, the Court indicates, “If Mr. Shamar continues to be retaliated against after filing two EEOC charges and the instant law suit, then surely the conciliatory purpose of the exhaustion requirement would not be served by requiring him to file a third charge for the acts arising out of those filings. The wrinkle here, however, is that even though Mr. Shamar might not have been required to file a third EEOC charge based on

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more recent retaliatory acts, he did so…Given that Mr. Shamar may not have needed to file his third EEOC charge at all, at least with respect to some of his subsequent allegations, and given that the agency’s determination merely advises the EEOC as to whether it should dismiss the claim or issue a right-to-sue letter, the Court cannot conclude that Mr. Shamar’s allegations of subsequent retaliation are barred from this Court’s consideration merely because they are currently pending before an administrative judge…The Court will, however, entertain a motion to stay the current proceedings until the administrative hearing is complete so that both the administrative judge and this Court are not simultaneously considering the same allegations and so as not to frustrate any possible conciliatory efforts that might arise out of that procedure.” See Order, Pages 3 and 4.

Clearly, in our view, the Federal District Court has not retained jurisdiction over the “discrimination” claims in the case currently pending before the Commission. And while the Federal District Court seems to be indicating that it might have jurisdiction over the “retaliation” claims, the Court states it is willing to allow the administrative process to proceed so as to not be considering the same allegations as the Administrative Law Judge. Even making the assumption that the retaliation claims from the third Charge of Discrimination and subsequent Petition for Relief could properly be before the Court, the Court in its Order appears to be relinquishing jurisdiction to the administrative process of those claims, not retaining jurisdiction for itself.

We conclude that the record as it exists does not contain competent substantial evidence to support the Administrative Law Judge’s finding that the Federal District Court has retained jurisdiction over the discrimination and retaliation claims set out in Petitioner’s third Charge of Discrimination, and that the matter should, therefore, be remanded to the Administrative Law Judge for further proceedings on the Petition for Relief related to both the claims of discrimination and retaliation set out therein. See, Section 120.57(1)(l), Florida Statutes (2007), authorizing an agency to modify or reject findings of fact contained in recommended orders if the findings are not based upon competent substantial evidence.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order of Dismissal in a document entitled, “Exceptions to Recommended Order by Administrative Law Judge Manry and Request for Expedited Review,” received by the Commission on September 22, 2008. The exceptions document was accompanied by a memorandum entitled, “Petitioner’s Memorandum in Support of Its Exceptions to Recommended Order by Administrative Law Judge Manry and Request for Expedited Review.”

In these two documents, Petitioner excepts to the Administrative Law Judge’s finding that the Federal District Court retained jurisdiction of the discrimination and retaliation allegations set out in the matter currently before the Commission, requests that the matter be set for an evidentiary hearing before a member of the Commission, because, “[i]t is apparent that the Florida Department of Administrative Hearings does not wish to hear this case…[Petitioner]

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submits that he will not receive a fair and impartial hearing before an Administrative Law Judge,” and requests attorney’s fees as the prevailing party in the exceptions.

For reasons set out in this Order, above, Petitioner’s exceptions are accepted to the extent they except to the Administrative Law Judge’s finding that the Federal District Court retained jurisdiction of the discrimination and retaliation allegations set out in the matter currently before the Commission.

We deny the request that the matter be set for hearing before a Commissioner. While this case is proceeding as if a “cause” determination had been issued by the Commission and, therefore, such an assignment would be permissible (see Section 760.11(6), Florida Statutes (2007)), the mere fact that an Administrative Law Judge has made a ruling against one of the parties in a case is not evidence that the Administrative Law Judge is biased against the party. See, generally, Assily v. Memorial Hospital of Tampa, FCHR Order No. 05-059 (May 31, 2005), citing Garrepy v. Department of Environmental Protection, FCHR Order No. 01-024 (April 19, 2001) and Palmer v. Agency for Health Care Administration, 20 F.A.L.R. 1234, at 1236, Order of Administrative Law Judge Mary Clark (June 21, 1996), and stating, “To be entitled to recusal, a movant must show more than that the Administrative Law Judge has entered some orders against the position of the movant – rather the movant must have a well-grounded fear that he would not receive a fair hearing. The fears of judicial bias must be objectively reasonable.”

We deny Petitioner’s request for attorney’s fees as the prevailing party in the exceptions. The Commission has the authority to award attorney’s fees to an ultimately prevailing Petitioner in a case under Sections 760.11(6) and (7), Florida Statutes (2007), but these statutory sections do not provide the authority for the Commission to award attorney’s fees for simply prevailing on exceptions.

Remand

This matter is hereby REMANDED to the Administrative Law Judge for further proceedings on the Petition for Relief consistent with this Order.

DONE AND ORDERED this 13th day of January , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Anice R. Prosser; and

Commissioner Billy Whitefox Stall

Filed this 13th day of January , 2009,

in Tallahassee, Florida.

FCHR Order No. 09-007

Page 5

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

De’Anthony Shamar

c/o Robert W. Rasch, Esq.

Robert W. Rasch, P.A.

201 Live Oak Lane

Altamonte Springs, FL 32714

City of Sanford

c/o Douglas T. Noah, Esq.

Dean, Ringers, Morgan & Lawton, P.A.

Post Office Box 2928

Orlando, FL 32802-2928

Daniel Manry, Administrative 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 13th day of January , 2009.

By:

Clerk of the Commission

Florida Commission on Human Relations