5D02-608 McGhee v. Sterling Casino Lines

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-608

Case Date: 12/23/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2002

COLLEEN L. MCGHEE, Appellant, v. Case No. 5D02-608 STERLING CASINO LINES, L.P., Appellee. / Opinion filed December 27, 2002 Appeal from the Circuit Court for Brevard County, Charles M. Holcomb, Judge. Thomas H. Yardley, Cocoa, for Appellant. Patty Spivey of Hayden and Milliken, P.A., Cape Canaveral, for Appellee. COBB, J. Colleen McGhee, plaintiff below, appeals from an adverse final judgment entered pursuant to the entry of summary judgment for the defendant, Sterling Casino Lines, L.P. (Sterling). Sterling's motion for summary judgment on McGhee's discrimination claim was based on the theory that McGhee's action had not been filed in accordance with the time periods contained in section 760.11, Florida Statutes (1999). In accordance with a work-sharing agreement between the United States Equal Employment Opportunity Commission (EEOC) and Florida Commission on Human Relations (FCHR), each agency appointed the other as

its "agent for the pupose of receiving, drafting and filing charges". The agreement provides that "EEOC's receipt of charges on the [FCHR's] behalf will automatically initiate the proceedings of both EEOC and [FCHR]". The agreement was in effect when Sterling terminated McGhee from employment on November 20, 1998 and ninety-one days later, on February 19,1999, McGhee delivered an affidavit to the Miami office of the EEOC alleging that her firing was discriminatory and requesting the dual filling of a discrimination charge with the FCHR. Approximately eight months later, on October 28, 1999, McGhee contacted the EEOC by letter, advised it that more than 180 days had passed and asked for a "right to sue" letter from the agency. The EEOC had mislaid McGhee's paperwork and after discovering the original correspondence informed her by letter dated December 6, 1999, that her discrimination charge would be docketed "the date of its initial receipt". By this

correspondence the EEOC enclosed what it labeled a "sample charge of discrimination format for future use". McGhee's attorney was further advised to have his client date and sign five copies of EEOC Form 5 which contained the charge of discrimination. On December 17, 1999, McGhee executed EEOC Form 5 and submitted it to the EEOC, again requesting dual filing with the FCHR. EEOC records reflect that the agency received Form 5 on December 27, 1999 and sent notice of the charge to the FCHR. Sterling was notified and on January 21, 2000 filed a response to the EEOC's notice. On January 28, 2000 the EEOC issued a formal determination finding that "more than 180 days have passed since the filing of this charge" and notified McGhee it was terminating the investigation. On April 6, 2000, pursuant to section 760.11 (8), Florida Statutes (1999), 2

the instant lawsuit was filed1. Sterling's motion for summary judgment was predicated on McGhee's failure to wait 180 days for the FCHR to make a determination under section 760.11 prior to filing her lawsuit. The affidavit of James Colon, coordinator of EEOC's Miami office recites that his office acts as agent for the FCHR and processes charges for it. The trial court granted Sterling's motion for summary judgment, finding that McGhee failed to file the proper form (Form 5) for dual filing with the FCHR until December 27, 1999 and that suit was filed prematurely, prior to expiration of the 180 day period. McGhee's position is that the FCHR appointed the EEOC as its agent for purposes of filing state court discrimination claims and that since the EEOC authorized suit to be filed, it was timely filed even though because of an EEOC error, her discrimination charge was actually received by the FCHR less than 180 days before suit was filed. McGhee maintains that Wells Fargo Guard Services, Inc. of Florida v. Lehman, 799 So. 2d 252 (Fla. 3d DCA 2001) supports her position. Sterling counters that Wells Fargo is distinguishable and that the trial court correctly relied on an earlier Third District decision, Sweeney v. Florida Power and Light Co., 725 So. 2d 380 (Fla. 3d DCA 1998). Sterling's position is that to permit a claimant to proceed without having waited the required 180 day period would allow her to circumvent the possibility of a dismissal leaving the sole remedy of an administrative hearing.

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