Skip to Main Content. Please Contact Us if there is anything we can do to improve the Accessibility of this site.
  • Search:

Right menu

Left menu


Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-034

FCHR Order No. 09-034

Date of Release: 04/09/2009

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. 09-034

   

ORDER REMANDING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

AND DENYING WITHOUT PREJUDICE

“PETITIONER’S MOTION TO SET EVIDENTIARY HEARING

BEFORE COMMISSIONER”

This matter is before the Commission for consideration of the Order Declining Remand, dated February 3, 2009, issued in the above styled matter by Administrative Law Judge Daniel Manry, and for consideration of “Petitioner’s Motion to Set Evidentiary Hearing Before Commissioner,” received by the Commission on February 23, 2009.

Preliminary Matters

This is the second time this case is before a Panel of Commissioners.

Judge Manry issued a Recommended Order of Dismissal in the matter, dated September 11, 2008.

The issue before the Administrative Law Judge at that time, and before the first Commission Panel, was whether the Division of Administrative Hearings and the Commission had jurisdiction over the allegations in the third Charge of Discrimination filed against Respondent 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, the Federal Court became Petitioner’s exclusive remedy. Recommended Order of Dismissal, Pages 1 and 2.

A Commission Panel consisting of Commissioners Donna Elam, Anice R. Prosser, and Billy Whitefox Stall concluded that the record as it existed before them did not contain competent substantial evidence to support the Administrative Law Judge’s finding that the Federal District Court had retained jurisdiction over the discrimination and retaliation claims set

FCHR Order No. 09-034

Page 2

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. An “Order Remanding Petition for Relief from an Unlawful Employment Practice,” FCHR Order No. 09-007, so indicating was issued by the Commission on January 13, 2009.

Findings of Fact and Conclusions of Law

Judge Manry’s “Order Declining Remand,” currently before the Commission, declines the remand of the Commission set out in FCHR Order No. 09-007, issued by the Commission on January 13, 2009.

Our reading of this Order suggests that it does not preclude subsequent administrative proceedings in this matter. Judge Manry writes, “Alleged incidents of discrimination and retaliation in the third Charge of Discrimination which the Court determines in a subsequent evidentiary hearing to be beyond the scope of the Court’s ancillary jurisdiction in the existing federal lawsuit may, or may not, be fair game for disposition in an administrative hearing. At this juncture, however, no such incidents of alleged discrimination exist because the Court has not found in a separate evidentiary hearing that any of the alleged incidents of discrimination and retaliation in the third Charge of Discrimination fall outside the Court’s ancillary jurisdiction.” Order Declining Remand, ¶ 26.

“Petitioner’s Motion To Set Evidentiary Hearing Before Commissioner,” currently before the Commission suggests that there was a federal Court proceeding in this matter in December 2008, after the issuance of the initial “Recommended Order of Dismissal” in this matter, but prior to the Commission’s “Order Remanding Petition for Relief from an Unlawful Employment Practice” and, obviously, prior to the “Order Declining Remand” currently before the Commission. See Filing, page 7.

It would appear that rulings from this federal Court proceeding could relate to whether “alleged incidents of discrimination and retaliation in the third Charge of Discrimination” have been determined by the Court “to be beyond the scope of the Court’s ancillary jurisdiction” in that lawsuit. It would also appear from the record of this matter that no opportunity to provide such evidence was afforded Petitioner prior to the issuance of the Order Declining Remand. Certainly no opportunity to present such evidence would have existed after the issuance of the Recommended Order of Dismissal and prior to the Commission’s deliberations hearing on the matter and subsequent issuance of its Order Remanding Petition for Relief from an Unlawful Employment Practice because proceedings before the Commission following the issuance of a Recommended Order are “nonevidentiary.”

In short, as indicated above, although the Order Declining Remand indicates “the Court has not found in a separate evidentiary hearing that any of the alleged incidents of discrimination and retaliation in the third Charge of Discrimination fall outside the Court’s ancillary jurisdiction,” there appears to have been no opportunity given for the presentation of evidence regarding this issue.

FCHR Order No. 09-034

Page 3

Consequently, consistent with our previous Order Remanding Petition for Relief from an Unlawful Employment Practice, which concluded that the record as it existed before the Commission did not contain competent substantial evidence to support the Administrative Law Judge’s finding that the Federal District Court had retained jurisdiction over the discrimination and retaliation claims set out in Petitioner’s third Charge of Discrimination, and consistent with the Order Declining Remand currently before the Commission, which suggests that further administrative proceedings in the matter could be appropriate upon a showing that the federal Court has determined that claims in the third Charge of Discrimination are beyond the federal Court’s ancillary jurisdiction, we conclude the matter should be remanded to the Administrative Law Judge for the taking of evidence as to whether such a determination has actually been made by the federal Court, since no opportunity to present such evidence has yet been given the parties.

Exceptions

Neither party filed exceptions to the Administrative Law Judge’s Order Declining Remand.

Remand and Denial of Motion

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

Because of the remand directed by this Order, “Petitioner’s Motion to Set Evidentiary Hearing Before Commissioner” is DENIED without prejudice.

DONE AND ORDERED this day of , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Onelia A. Fajardo, Panel Chairperson;

Commissioner Watson Haynes, II; and

Commissioner Anice R. Prosser

Filed this day of , 2009,

in Tallahassee, Florida.

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

FCHR Order No. 09-034

Page 4

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 _______ day of , 2009.

By:

Clerk of the Commission

Florida Commission on Human Relations