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EEOC/Administrative Defense

Before a discrimination case (on the basis of race, sex, ethnicity, pregnancy, age, disability, etc.) can be filed in state or federal court, the employee must first exhaust his or administrative remedies, which typically entails the filing of a charge of discrimination with the requisite administrative agency within the statute of limitations period, and then waiting a period of time before bringing suit. 

If the employee desires to bring suit in state court in Florida under the Florida Civil Rights Act (which allows suits on the bases set forth above), they would file the charge of discrimination with the Florida Commission on Human Relations.  They must do so within 365 days of the alleged adverse employment action about which they are complaining, and they then must wait 180 days before bringing suit, to attempt to give the Florida Commission on Human Relations the requisite time to investigate the matter.  If the FCHR issues a no-cause determination, that is, a determination that no discrimination, harassment, and/or retaliation occurred, the employee is limited to an administrative appeal of this determination to the Division of Administrative Hearings, which simply gives the employee the right to be heard.  Thus, the employee is essentially deprived of a remedy to sue in court.

If the employee desires to bring suit in federal or state court, under any of the federal statutes that provide for bringing federal discrimination claims (Title VII of the Civil Rights Act of 1964--which prohibits discrimination based on race, pregnancy, gender, or national origin--the Age Discrimination in employment Act--which prohibits discrimination on the basis of age--or the Americans with Disabilities Act--that prohibits discrimination on the basis of disability), he or she can file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).  They must do so within 300 days of the alleged adverse employment action of which they are complaining, and they must wait to file suit until the EEOC issues a Notice of Right to Sue, and thereafter they must file within ninety (90) days of receipt of such notice.  Whatever finding the EEOC makes, they are not barred from bringing suit.

Our firm handles the defense of such charges.  We have successfully handled many such charges in the past, and some of our successes are documented below.

Cases in Which "No-Cause" Determinations Were Obtained from Administrative Agencies

              •  Allen v. Bennett Auto Supply, Inc., BCHRD Charge No. EM 247-05-10

The charging party filed his Charge of Discrimination on May 10, 2010. The charge indicated (in the "Cause of Discrimination Based on" section) that the employment discrimination at issue in this matter involved race. The charge included only legal conclusions, and conspicuously absent from the charge were any factual allegations that support those legal conclusions. The legal conclusions stated in the charge were as follows: 1) a disparate treatment claim for his termination, based on race, and the only facts given were that he was engaged in excessive tardiness (and terminated for that) while non-African Americans were allowed to engage in excessive tardiness, and work through lunch.

The investigating agency was the Broward County Human Rights Division. The fact that the Charge of Discrimination did not contain one single fact that supports the Charging Party's claims spoke volumes concerning the complete lack of merit of his claims. As set forth below in more detail, the Charging Party could not possibly: 1) prove a disparate treatment claim with respect to his termination, as he was replaced by an African-American (Amy Williams), who was in turn replaced by a black male (Frank Denson), and because the decision-maker, Gary Dupuis, has recently (both before and after the Charging Party's termination) hired other African-Americans (as assistant store managers); 2) the decision-maker both hired and fired Charging Party, and if he was racist, he never would have hired an African-American in the first place, much less hired two others shortly after Charging Party's termination; and 3) excessive tardiness is unacceptable, because it fundamentally interferes with Bennett Auto's business plan of timely delivering parts to its customers, which timeliness its customers demand. For these reasons, Bennett Auto requested that the Broward County Human Rights Division enter a no-cause finding with respect to the Charging Party' Charge of Discrimination.

After conducting an investigation (the investigator was African-American), which included questioning numerous of witnesses from Bennett Auto, the Broward County Human Rights Division entered a "no-cause" finding, holding that Bennett Auto did not engage in race discrimination toward the charging party. The no-cause finding limits the charging party' remedies under the Florida Civil Rights Act to administrative remedies, and requires that the charging party, if he desires to file suit, to file it in federal court. The charging party did not file a lawsuit in this case.


             •  Harrison v. Bennett Auto Supply, Inc., EEOC No. 15M-2010-00027; FEPA No. 1000040

The charging party filed her Charge of Discrimination on November 13, 2009. The charge indicated (in the "Cause of Discrimination Based on" section) that the employment discrimination at issue in this matter involved race. The only box checked off is the "race" box. The charge included little other than legal conclusions. The legal conclusions stated in the charge were as follows: 1) a hostile work environment harassment claim based on and race; and 2) a disparate treatment claim for her termination, based on race. The Charge of Discrimination did include allegations that the epithet "nigger" was used on the job toward the charging party.

The investigating agency was the Palm Beach County Office of Equal Opportunity. The charging party could not possibly: 1) have had a claim of racial harassment against Bennett Auto, because she never complained of harassment pursuant to Bennett Auto' anti-harassment policy, and therefore never gave Bennett Auto a chance to rectify any allegedly harassing environment; and 2) prove a disparate treatment claim with respect to her termination, because she was not properly performing her job, was still in her probationary period, and because the decision-maker, Frank Scalise, hired her weeks before he fired her, and has recently (before the charging party' termination) hired other black employees. For these reasons, Bennett Auto requested that the Office enter a no-cause finding with respect to the Charging Party' Charge of Discrimination.

After conducting an investigation, the Palm Beach County Office of Equal Opportunity entered a no-cause finding, holding that Bennett Auto did not engage in race discrimination or harassment toward the charging party. The no-cause finding limits the charging party's remedies under the Florida Civil Rights Act to administrative remedies, and requires that the charging party, if he desires to file suit, to file it in federal court. The charging party did not file a lawsuit in this case.


            •  Michelle Davis v. Bennett Auto Supply, Inc., BCHRD Charge No. EM 205-4-05

The charging party filed her Charge of Discrimination on April 13, 2005. The charge indicated (in the "Cause of Discrimination Based on" section) that the employment discrimination at issue in this matter involves race and sex. The charge included only legal conclusions, and conspicuously absent from the charge were any factual allegations that support those legal conclusions. The legal conclusions stated in the charge were as follows: 1) a hostile work environment harassment claim based on both sex and race; 2) a disparate treatment claim for her termination, based on both race and sex, and 3) that she was subject to disparate treatment because of her sex and race with respect to her hours of work, a promotion, and taking time off.

The investigating agency was the Broward County Human Rights Division. The Charging Party could not possibly: 1) have had a claim of sexual or racial harassment against Bennett Auto, because she never complained of harassment pursuant to Bennett Auto' anti-harassment policy, and therefore never gave Bennett Auto a chance to rectify any allegedly harassing environment; 2) prove a disparate treatment claim with respect to her termination, as she was replaced by a black female, and because the decision-maker, Jeff Barnick, has recently (before the Charging Party's termination) hired still other black females; and 3) prove a promotion claim because she never applied for a promotion (and there were no promotions available), prove a disparate treatment claim with respect to time off or hours worked, because she was not treated any differently than the other drivers who worked with her at store #3. For these reasons, Bennett Auto requested that the Division enter a no-cause finding with respect to the charging party's Charge of Discrimination, and it did. The no-cause finding limits the charging party's remedies under the Florida Civil Rights Act to administrative remedies, and requires that the charging party, if he desires to file suit, to file it in federal court. The charging party did not file a lawsuit in this case.


            •  Kenneth Arugu v. Broward Sheriff' Office, FCHR No. 2005-02514; BSO Claim No. GC52POL7501

The charging party filed his Charge of Discrimination in July, 2005. The charging party alleged in his Charge of Discrimination that due to his national origin (African Nigerian) he was discharged and was not reinstated by BSO even after he was cleared of criminal charges, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Florida Civil Rights Act of 1992, Florida Statutes § 760.01 et seq.

The investigating agency was the Florida Commission on Human Relations. The Charging Party identified three "comparators" in his Charge of Discrimination, who he alleged engaged in similar conduct as he, but who were not fired by BSO. The Commission noted that the three "comparators" were not true comparators, because the facts involving the situations of their discipline were completely different than the facts concerning the termination of the Charging Party. Numerous witnesses testified that the Charging Party committed serious battery upon two law enforcement officers, who came to arrest him after his involvement in a violent domestic dispute. Further, it was found that the Charging Party had a similar incident with the Sunrise Police Department in which he committed a battery on law enforcement officers, but the Charging Party neglected to inform BSO of that arrest. Additionally, the Charging Party lied under oath during the internal affairs investigation into his misconduct surrounding the battery of the law enforcement officers. For these reasons, and those set forth in BSO' Professional Compliance Investigative Report concerning the above-cited incidents, the Charging Party was terminated. The Florida Commission on Human Relations issued a "no-cause" finding. The no-cause finding limits the charging party's remedies under the Florida Civil Rights Act to administrative remedies, and requires that the charging party, if he desires to file suit, to file it in federal court. The charging party did not file a lawsuit in this case. The charging party did appeal the "no-cause" finding to the Division of Administrative Hearings (DOAH), which upheld the no-cause finding. Thereafter, the charging party appealed that decision to the Fourth District Court of Appeal, which affirmed the decision. See Arugu v. Division of Administrative Hearings, 1 So. 3d 187 (Fla. 4th DCA 2009).


           •  Maria Gomez v. Vicky Bakery, VIII, MDCCHR No. 11 1026 010; EEOC Charge No. 15C 2011 00018

The charging party filed her Charge of Discrimination on October 26, 2010. The investigating agency was Miami-Dade County Office of Human Rights and Fair Employment Practices. The charge indicated (in the "Cause of Discrimination Based on" section) that the employment discrimination at issue in this matter involved sex and retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Florida Civil Rights Act of 1992, Florida Statutes § 760.01 et seq., and Miami-Dade County's Ordinance. The charge included only legal conclusions, and conspicuously absent from the charge were any factual allegations that support those legal conclusions. The legal conclusions stated in the charge were as follows: 1) a hostile work environment harassment claim based on sex; 2) a disparate treatment claim for her termination, based on and sex, and 3) that she was subject to retaliation because of her alleged complaints of discrimination. The Charge of Discrimination was woefully deficient concerning any allegations of sexual harassment, because such harassment has to be repeated, prolonged, and not rectified upon complaint, and the couple instances that she mentions (even if they occurred, and they did not), are not sufficient to rise to the level of sexual harassment.

Concerning the alleged violations of Title VII and FCRA, the Office issued a "no-cause" finding in light of the fact that the employer did not employ the requisite fifteen (15) employees in order to be subject to those statutes.

Despite this finding by the EEOC, the charging party continued to litigate her claims in the Miami-Dade County Office of Human Rights (which allows claims to be prosecuted no matter what the number of employees the employer employs).  While Miami-Dade initially found cause to be believe that the charging party was retaliated against, after the charging party was deposed (and stated under oath that never complained about sexual harassment and thus agreed that she could not have been retaliated against), Miami-Dade withdrew the finding of retaliation, and substituted it with a finding that the charging party was not subject to retaliation.


            •  Fernando Leiva v. Town of Davie, BCHRD Charge No. EM 221-10-04; EEOC No. 15AA500013

The charging party filed his Charge of Discrimination in November, 2004. The Charging Party alleged in his Charge of Discrimination that due to his race (Indian) the Town of Davie reduced his Executive Leave hours from 112 hours per year to 56 hours per year, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Florida Civil Rights Act, and the Broward County Human Rights Act . The Charging Party was the Town of Davie' Planning and Zoning Manager.

The Charging Party' allegations were completely without merit, as the Town of Davie sets its Executive Leave hours based on the employee' position. Because the Charging Party was a manager (Planning and Zoning), he was entitled to Executive Leave hours of 56 per year. While in fiscal year 2002-03 the Charging Party did receive 112 hours of Executive Leave, that was due to a scrivener' error in a document. The Town of Davie' Administrative Policies provided for department directors and three specifically enumerated employees to receive 112 hours of Executive Leave per year, assistant department directors to receive 96 hours per year, and "other designated management and support staff"--such as the Planning and Zoning Manager, the Economic Development Manager, the Risk Manager, and the Public Relations Coordinator--to receive 56 hours per year. The Charging Party, as the Town of Davie's Planning and Zoning Manager, was entitled to only 56 Executive Leave hours per year.

The Town of Davie's policies were approved by the Town Council, which consisted of five elected individuals. In order for the Charging Party to establish a discrimination claim, he had to prove that a majority of the Town Council was motivated by the Charging Party's race when it approved the policy providing for 56 hours of Executive Leave for the Planning and Zoning Manager position. Mathews v. Columbia County, 294 F.3d 1294 (11th Cir. 2002) (holding that in a race case when a group body, such as a county commission, makes an employment decision, the employee must show either that an individual' racism infected the whole committee's decision or that a majority of the persons on the committee were racist); Mason v. Village of El Portal, 240 F.3d 1337 (11th Cir. 2001) (holding same); Wascura v. City of South Miami, 257 F.3d 1238 (11th Cir. 2001) (holding same). The Charging Party was not able to prove such discrimination, nor did it happen.

While the Charge of Discrimination alleged in conclusory fashion that "[s]imilarly situated non-Indian employees continue to receive the full 14 day [112 hours per year] Executive Leave benefit", no specific employees are identified. In fact, as stated above, all department directors received 112 hours per year of Executive Leave, the assistant department directors receive 96 hours, and "other designated management and support staff" (such as the Charging Party) received 56 hours per year. There was no similarly situated individual who received 112 hours of Executive Leave per year, much less an individual who is non-Indian. Accordingly, the Town of Davie requested that the Division enter a finding of no reasonable cause to believe that a violation of the employment discrimination statutes had occurred.

The Broward County Human Rights Division on March 30, 2005, entered a "no-cause" finding. The no-cause finding limits the charging party's remedies under the Florida Civil Rights Act to administrative remedies, and requires that the charging party, if he desires to file suit, to file it in federal court. The charging party did not file a lawsuit in this case. No lawsuit was ever filed.