Wells Fargo Guard Services Inc. of Florida v. Lehman

• Decision Date: 08 August 2001
• Docket Number: No. 3D99-2539.,3D99-2539.
• Citation: 799 So.2d 252
• Parties: WELLS FARGO GUARD SERVICES INC. OF FLORIDA, Appellant, v. Daniel LEHMAN, Appellee.
• Court: Florida District Court of Appeals

799 So.2d 252

WELLS FARGO GUARD SERVICES INC. OF FLORIDA, Appellant, v. Daniel LEHMAN, Appellee.

No. 3D99-2539.

District Court of Appeal of Florida, Third District.

August 8, 2001.

Rehearing, Rehearing, and Certification Denied November 21, 2001.

Akerman, Senterfitt & Eidson, and Nancy A. Copperthwaite, Miami; and Lewis, Fisher, Henderson & Claxton, and Frederick J. Lewis, for appellant.

Hogg, Ryce & Hudson, and Jesse Hogg, Coral Gables, for appellee.

Before GERSTEN, and RAMIREZ, JJ., and NESBITT, Senior Judge.

Rehearing, Rehearing En Banc, and Certification Denied November 21, 2001.

ON MOTIONS FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION

RAMIREZ, J.

We deny Daniel Lehman's motion for certification but grant his motion for rehearing and withdraw the opinion issued on September 27, 2000, substituting the following in its place. Defendant, Wells Fargo Guard Services, Inc. of Florida, appeals a final judgment in a disability discrimination case. Because the plaintiff, Lehman, filed his complaint in a timely manner, and there was sufficient evidence for the jury to conclude that Wells Fargo perceived Lehman as disabled, we affirm.

Lehman was employed as branch manager of Wells Fargo's Miami office from 1989 to 1995, when his employment was terminated allegedly for Lehman's failure to satisfy client retention goals set for his branch. Lehman, however, contended that his termination was really based on Wells Fargo's illegal discrimination against him due to his "disability" of cardiomyopathy. Following certain administrative steps, Lehman sued Wells Fargo for disabilitybased discrimination under the Florida Civil Rights Act (FCRA), sections 760.01.11, Florida Statutes (1995). Wells Fargo filed a motion to dismiss the FCRA complaint, alleging that Lehman's complaint was premature because he failed to exhaust his administrative remedies.

The evidence relevant to the motion to dismiss established that after his termination in July 1995, Lehman filed an employment discrimination claim with the United States Equal Employment Opportunity Commission (EEOC) on September 6, 1995, alleging disability discrimination against Wells Fargo. The evidence further showed that the EEOC and the Florida Commission on Human Relations (FCHR), the state entity with authority to investigate discrimination claims under the FCRA, operate under a work-sharing agreement which provides for dual filing of discrimination claims. The form Lehman submitted to the EEOC, however, did not specifically request dual-filing with the FCHR as the box which provided for such a request was left blank. In an attempt to correct this omission, Lehman's attorney wrote to the EEOC the next day and requested that the claim be dual filed with the FCHR. In fact, Lehman's counsel received a facsimile from the EEOC stating that "this should suffice for establishing that Daniel Lehman's charge was dual filed [with] the FCHR the same day it was filed [with] the EEOC." Despite the statement made in the facsimile, the FCHR did not receive a copy of Lehman's complaint from the EEOC until September 25, 1995. Lehman filed his FCRA complaint after receiving a "right to sue" notice from the EEOC dated February 23, 1996, approximately 180 days from the September 6th filing, but less than 180 days from the September 25th receipt of the claim by the FCHR.

Wells Fargo argues that pursuant to Sweeney v. Florida Power and Light Co., 725 So.2d 380 (Fla. 3d DCA 1998), Lehman's complaint was premature and should be dismissed. In Sweeney, the plaintiff filed her complaint more than 180 days after filing a claim with the EEOC, but less than 180 days after receipt of the claim by the FCHR. This Court affirmed dismissal, holding that the 180 days required by section 760.11, Florida Statutes (1995), began to run when the FCHR received a copy of the claim, not when the claim was filed with the EEOC. However, in Sweeney, the FCHR received a copy of the claim pursuant to a work-sharing agreement, not at the plaintiff's request, and there was no indication that the plaintiff wished to dually file his claim with the FCHR. Additionally, the Sweeney court did not have the benefit of the actual text of the work-sharing agreement, nor of explanatory affidavits, as we do here.

The work-sharing agreement states that "the EEOC and the [FCHR] each designate the other as its agent for the purpose of receiving and drafting charges." This language indicates that when the EEOC receives a complaint, it is deemed to be filed at that time, and not on the later date when a copy is received by the FCHR. This conclusion is further supported by the affidavit of Joseph A. Cash, Case Assessment Unit Coordinator for the Florida Commission on Human Relations. Cash states:

The FCHR considers the EEOC as an agent for purposes of a charge entering the [FCHR's] charge processing system. Therefore, the FCHR considers the date a charge was received by the EEOC as the date the charge was dual filed with the FCHR, even though the FCHR may not get the actual (hard copy) charge from the EEOC until a later date.

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