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Home / Complaints / Final Orders / Final Orders 2013 / FCHR Order No. 13-030

FCHR Order No. 13-030

Date of Release: 05/01/2013

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

GEORGIE BREVILLE

EEOC Case No. NONE

Petitioner

FCHR Case No. 2011-02551

 

DOAH Case No. 13-0027

v.

 

FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY

FCHR Order No. 13-030

Respondent

 

ORDER REMANDING CASE TO ADMINISTRATIVE LAW JUDGE

FOR FURTHER PROCEEDINGS ON PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

This matter is before the Commission for consideration of the “Order on Respondent’s Motion to Relinquish Jurisdiction,” dated February 6, 2013, issued in the above-styled matter by Administrative Law Judge Suzanne Van Wyk.

Findings of Fact and Conclusions of Law

Judge Van Wyk’s order was issued in response to “Respondent’s Motion to Relinquish Jurisdiction.”

The order reflects that in that motion Respondent argues that Petitioner’s complaint is untimely, having been filed beyond the statute of limitations for claims of employment discrimination under the Florida Civil Rights Act of 1992.

The Administrative Law Judge found that Petitioner’s cause of action in this matter began to run on September 20, 2010, the date Petitioner was notified of her termination, rather than October 1, 2010, the effective date of her termination and that, therefore, Petitioner’s complaint, filed with the Commission on September 29, 2011, was untimely, having been filed more than 365 days after September 20, 2010.

While we agree with the Administrative Law Judge’s treatment of the “termination” issue, we note that the complaint contains allegations other than unlawful termination. Respondent’s Motion to Relinquish Jurisdiction argues that none of these allegations are alleged to have occurred between September 29, 2010 and October 1, 2010. The Administrative Law Judge granted Respondent’s motion without specific mention of these allegations.

Parenthetically, while the proceeding before the Administrative Law Judge is de novo (See Section 120.57(1)(k), Florida Statutes (2012)), we note that the Commission’s Investigative Memorandum, placed before the Administrative Law Judge by Petitioner as an attachment to the Petition for Relief and by Respondent as an attachment to “Respondent’s Motion to Relinquish

FCHR Order No. 13-030

Page 2

Jurisdiction,” states “…none of Complainant’s allegations besides the discharge occurred within this three day time period…” of September 29, 2010 to October 1, 2010.

Nevertheless, in our view, the record as it existed before the Administrative Law Judge did not contain filings / evidence on which to conclude that none of the allegations set out in the complaint were timely. While this finding may be the eventual outcome, we conclude the matter should be remanded to the Administrative Law Judge for further proceedings on the Petition for Relief with regard to allegations other than Petitioner’s termination that may have occurred within 365 days of the filing of the complaint.

In so doing, we recognize that the Petition for Relief may not contain allegations that were not initially contained in the complaint of discrimination. See, Bratcher v. City of High Springs, FCHR Order No. 11-091 (December 7, 2011), and cases cited therein.

We adopt the Administrative Law Judge’s finding as to when Petitioner’s cause of action for unlawful termination began to run in this matter and conclude that the complaint was untimely as to the allegation of unlawful termination. Accord, McCann v. University of Central Florida, 19 F.A.L.R. 1486 (FCHR 1995).

Exceptions

Petitioner filed a document with the Commission on or about February 8, 2013, in the form of an e-mail to the Clerk of the Commission.

There is no indication that this document was served on Respondent as is required by Fla. Admin. Code R. 28-106.104(4) and Fla. Admin. Code R. 28-106.110. However, the Commission published the document to the Respondent, and placed the document in the record of this case, through the issuance of a Notice of Ex Parte Communication, mailed to the parties on February 13, 2013.

Generally, the document excepts to the Administrative Law Judge’s relinquishing jurisdiction of the case to the Commission for issuance of a final order of dismissal, and suggests that Petitioner felt she had more time than she was given to respond to Respondent’s Motion to Relinquish Jurisdiction.

Given our disposition of this case by this Order, we find it unnecessary to specifically rule on Petitioner’s exception document.

Remand

This Order disposes of all motions pending before the Commission, including “Complainant’s Motion to Reinstate Complaint,” received by the Commission on March 7, 2013.

The Petition for Relief and Complaint of Discrimination are REMANDED to the Administrative Law Judge for further proceedings as indicated above.

FCHR Order No. 13-030

Page 3

DONE AND ORDERED this 1st day of May , 2013.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Onelia Fajardo-Garcia; and

Commissioner James Johns

Filed this 1st day of May , 2013,

in Tallahassee, Florida.

/s/

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Georgie Breville

2678 Southwest 14th Drive

Gainesville, FL 32608

Florida Department of Economic Opportunity

c/o Michael B. Golen, Esq.

107 East Madison Street

Tallahassee, FL 32399

Suzanne Van Wyk, 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 1st day of May , 2013.

By: /s/

Clerk of the Commission

Florida Commission on Human Relations