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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-071

FCHR Order No. 09-071

Date of Release: 06/30/2009

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. 09-071

   

ORDER REMANDING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

AND DENYING WITHOUT PREJUDICE

PETITIONER’S “RENEWED MOTION FOR HEARING BY COMMISSIONER

OR, IN ALTERNATIVE, TO FILE MANDAMUS ACTION AGAINST

DEPARTMENT (SIC) OF ADMINISTRATIVE HEARINGS”

This matter is before the Commission for consideration of the Order Declining Second Remand, dated April 21, 2009, issued in the above styled matter by Administrative Law Judge Daniel Manry, “Petitioner’s Memorandum In Support Of Its Exceptions To Order Declining Second Remand By Administrative Law Judge Manry, Request For Expedited Review And Renewed Motion For Hearing By Commissioner Or, In Alternative, To File Mandamus Action Against The Department Of Administrative Hearings,” received by the Commission on April 30, 2009, and “Respondent, City of Sanford’s, Response to Petitioner’s Memorandum In Support Of Its Exceptions to Order Declining Second Remand By Administrative Law Judge,” filed with the Division of Administrative Hearings on May 6, 2009.

Preliminary Matters

This is the third 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

FCHR Order No. 09-071

Page 2

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 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.

Judge Manry issued an “Order Declining Remand,” dated February 3, 2009, stating, “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.

A Commission Panel consisting of Commissioners Onelia A. Fajardo, Watson Haynes, II, and Anice R. Prosser, concluded, consistent with the Commission’s 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 then before the Commission, which suggested that further administrative proceedings in the matter could be appropriate upon a showing that the federal Court had determined that claims in the third Charge of Discrimination are beyond the federal Court’s ancillary jurisdiction, that the matter should be remanded to the Administrative Law Judge for the taking of evidence as to whether such a determination had actually been made by the federal Court, since no opportunity to present such evidence had yet been given the parties. An “Order Remanding Petition for Relief from an Unlawful Employment Practice and Denying Without Prejudice ‘Petitioner’s Motion to Set Evidentiary Hearing Before Commissioner’,” FCHR Order No. 09-034, so ordering was issued by the Commission on April 9, 2009.

Findings of Fact and Conclusions of Law

Judge Manry’s “Order Declining Second Remand,” currently before the Commission, declines the remand of the Commission set out in FCHR Order No. 09-034, issued by the Commission on April 9, 2009.

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This order appears to decline the Commission’s remand for two reasons. First the order indicates, “The Second Order of Remand does not state a factual basis which satisfies the statutory prerequisites for DOAH to conduct a 120.57 proceeding. For example, the Second Order of Remand does not state that the parties dispute the federal court’s determination of the court’s ancillary jurisdiction or that any such dispute between the parties involves a material fact.” Second, the order states, “Nor does the Second Order of Remand state that all of the parties have agreed to confer jurisdiction on DOAH in the absence of a disputed issue of material fact.”

In our view, the parties, themselves, resolve these issues through representations contained in the filings made subsequent to the issuance of the Order Declining Second Remand.

“Petitioner’s Memorandum In Support Of Its Exceptions To Order Declining Second Remand By Administrative Law Judge Manry, Request For Expedited Review And Renewed Motion For Hearing By Commissioner Or, In Alternative, To File Mandamus Action Against The Department Of Administrative Hearings”(hereafter “Petitioner’s filing”), was received by the Commission on April 30, 2009.

“Respondent, City of Sanford’s, Response to Petitioner’s Memorandum In Support Of Its Exceptions to Order Declining Second Remand By Administrative Law Judge” (hereafter “Respondent’s filing”), was filed with the Division of Administrative Hearings on May 6, 2009.

disputed issue of material fact

With regard to whether there exists a disputed issue of material fact, Petitioner’s filing excepting to the Order Declining Second Remand indicates “the ALJ knew that there was a dispute between the parties regarding a material fact.—i.e. what claims were before the Federal Court…However, instead of acknowledging that he was well aware of the dispute between the parties regarding the scope of issues presented before the federal court, the ALJ claims that DOAH does not have jurisdiction because ‘the Second Order of Remand does not state a factual basis’-i.e. that the Second Order of Remand doesn’t specifically reference the dispute that the ALJ already knew existed.”

Respondent’s filing urges, “Respondent respectfully suggests that the FCHR amend its Order Remanding Petition for Relief to correct the deficiencies noted by the ALJ,” implying that it does not disagree that a disputed issue of material fact exists.

Based on the foregoing, the Commission finds and concludes that a disputed issue of material fact exists in this matter as to whether the federal Court has determined that claims in the third Charge of Discrimination are beyond the federal Court’s ancillary jurisdiction. This fact is material because its resolution determines whether the Commission and the Division of Administrative Hearings have jurisdiction of the allegations contained in Petitioner’s third Charge of Discrimination.

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agreement to confer jurisdiction in absence of disputed issue of material fact

With regard to the Second Order of Remand’s failure to state that all of the parties have agreed to confer jurisdiction on DOAH in the absence of a disputed issue of material fact, we note that Petitioner’s filing requests that the Commission pursue a Mandamus action against the Division of Administrative Hearings to assign an Administrative Law Judge to hear the case.

Respondent’s filing also states, “Petitioner’s request to have the allegations contained in his third Charge of Discrimination reviewed by an ALJ was an exclusive remedy election conferred by Florida Statute § 760.11(4). Petitioner was permitted to request an administrative hearing under Florida Statute §§ 120.569 and 120.57. Therefore, once Petitioner elected to request an administrative hearing, sections 120.569 and 120.57, Florida Statutes, govern the Petition for Relief…Here, FCHR exercised its statutory authority to refer the Petition to the ALJ. However, the Florida Commission on Human Relations (FCHR) Order Remanding the Petition for Relief was deficient for the reasons stated below…Based on the foregoing, Respondent respectfully suggests that the FCHR amend its Order Remanding Petition for Relief to correct the deficiencies noted by the ALJ.”

Based on the foregoing, the Commission finds and concludes that the parties both agree to confer jurisdiction on DOAH even in the absence of a disputed issue of material fact.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Order Declining Second Remand, received by the Commission on April 30, 2009.

For reasons stated above, Petitioner’s exception to the Administrative Law Judge’s Order Declining Second Remand is accepted to the limited extent that it excepts to the Administrative Law Judge’s declining the Commission’s remand as set out in FCHR Order No. 09-034.

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 request contained in its exceptions document to set an evidentiary hearing before a Commissioner, or in the alternative for the Commission to pursue a Mandamus action against the Division of Administrative Hearings, is DENIED without prejudice.

DONE AND ORDERED this 30th day of June , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

FCHR Order No. 09-071

Page 5

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Watson Haynes, II; and

Commissioner Patty Ball Thomas

Filed this 30th day of June , 2009,

in Tallahassee, Florida.

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

FCHR Order No. 09-071

Page 6

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 30th day of June , 2009.

By:

Clerk of the Commission

Florida Commission on Human Relations