STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GINA M. HUNTON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2452

) SOUTHERN BELL TELEPHONE AND ) TELEGRAPH COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This case came before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, for consideration of a Motion to Dismiss filed by the Respondent.

APPEARANCES

For Petitioner: Gina M. Hunton, pro se

4929 Fauna Drive

Melbourne, Florida 32934

For Respondent: E. Barlow Keener, Esquire

Francis B. Semmes, Esquire Southern Bell Telephone and

Telegraph Company Suite 4300

675 West Peachtree Street, N.E. Atlanta, Georgia 30375

STATEMENT OF THE ISSUES

Whether the Petitioner, Gina M. Hunton, filed her request for a formal administrative hearing within the time required by Rule 22T-9.008(1), Florida Administrative Code.

PRELIMINARY STATEMENT

On or about January 1, 1992, the Florida Commission on Human Relations issued a Notice of Redetermination, No Cause, in response to a complaint the Petitioner, Gina M. Hunton, filed against the Respondent, Southern Bell Telephone and Telegraph Company. In response to the Notice of Redetermination, Ms. Hunton requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, to contest the decision of the Florida Commission on Human Relations.

On April 21, 1992, Ms. Hunton's request for hearing was filed with the Division of Administrative Hearings. The matter was assigned to the undersigned.

A series of pleadings and motions were filed in this case subsequent to the assignment of the matter to the undersigned. As a result of those pleadings, which are explained in more detail, infra, it has been concluded by the undersigned that this case should be dismissed without a final hearing.

Southern Bell Telephone and Telegraph Company has filed a proposed recommended order containing proposed findings of fact. Ms. Hunton has not filed a proposed recommended order. For purposes of this Recommended Order it has been assumed that the relevant facts pertaining to the motions to dismiss filed by Southern Bell Telephone and Telegraph Company alleged by Ms. Hunton and recited in Southern Bell Telephone and Telegraph Company's proposed recommended order are true. Therefore, no appendix is attached to this Recommended Order.

FINDINGS OF FACT

1. Pleadings.

   
   

   1. The Petitioner, Gina M. Hunton, filed a Charge of Discrimination against Southern Bell Telephone and Telegraph Company (hereinafter referred to as "Southern Bell"), with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"), alleging that Southern Bell had discriminated against her on the basis of sex.

      
      

   2. On October 11, 1991, the Commission entered a Notice of Determination: No Cause, concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton.

      
      

   3. On January 27, 1992, the Commission entered a Notice of Redetermination: No Cause, (hereinafter referred to as the "Notice") again concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton.

   4. In the Notice Ms. Hunton was informed of the following: The parties are hereby advised that the

      Complainant may request that a formal, post- investigative proceeding be conducted. Any Request for Hearing/Petition for Relief must be filed within 30 days of the date of this Notice and should be in compliance with the provisions of Rule 22T-9.008 and Chapter

      22T-8, Florida Administrative Code. . . .

      
      

   5. On June 15, 1992, Southern Bell filed a Motion to Dismiss Ms. Hunton's Petition because it had not been timely filed. No response to the motion was filed by Ms. Hunton on or before June 29, 1992.

      
      

   6. On July 1, 1992, an Order Granting Motion to Dismiss, Cancelling Final Hearing and Establishing Deadlines was entered by the undersigned. The deadlines established in the Order were July 13, 1992, for the filing of proposed recommended orders and August 3, 1992, for the entry of a recommended order of dismissal in this case.

      
      

   7. On July 20, 1992, more than two months after the motion to dismiss was filed, and after Southern Bell had filed a proposed recommended order, Ms. Hunton filed a Response to Motion to Dismiss.

   8. On July 29, 1992, an Order to Show Cause was entered by the undersigned. In the Order to Show Cause, Southern Bell was given an opportunity to show cause why the motion to dismiss should not be denied in light of Ms. Hunton's explanation of why she had not filed her request for a formal administrative hearing timely.

      
      

   9. On August 10, 1992, Southern Bell filed a Renewed Motion to Dismiss and Response to Order to Show Cause. Southern Bell argued in the response that the doctrine of equitable tolling should not be applied in this case. No response to the renewed motion to dismiss was filed by Ms. Hunton.

      
      

   10. On August 17, 1992, a Second Order of Dismissal was entered. In the Second Order the parties were informed that the undersigned intended to grant the renewed motion to dismiss and recommend dismissal of this matter.

       
       

   11. On September 1, 1992, Ms. Hunton filed a Supplement to Response to Motion to Dismiss. For the first time Ms. Hunton alleged certain facts and gave a further explanation for why she had not timely filed her request for formal hearing in this matter.

       
       

   12. On September 8, 1992, Southern Bell filed Southern Bell's Reply to the Petitioner's Supplement to Response to Motion to Dismiss.

       
       

2. Ms. Hunton's Failure to Timely File Her Petition.

1. Thirty days from the date of the Notice, January 27, 1992, was Wednesday, February 26, 1992.

   
   

2. Although Ms. Hunton was referred by the Commission in the Notice to the appropriate rule governing the time for filing a petition for relief, she was not specifically told that to "file" a petition meant that it had to be received by the Commission.

   
   

3. Based upon Ms. Hunton's first response to Southern Bell's motion to dismiss, Ms. Hunton believed that she was only required to "serve" or mail her request for hearing within 30 days of the date of the Notice. According to her first response, Ms. Hunton also believed that "30 days" meant "one month". Ms. Hunton further believed that "one month" meant that she had until the same date (the 27th) of the next month (February) that the Notice was dated to mail her petition for relief. Based upon these conclusions, Ms. Hunton assumed that she had until February 27, 1992 to mail her petition for relief:

   
   

   I received a NOTICE OF REDETERMINATION: NO

   CAUSE on January 30, 1992 which was dated January 27, 1992 and postmarked (mailed) January 28, 1992 (Attachment A). The Notice of Redetermination states 'any request for Hearing/Petition for relief must be filed within 30 days of the date of Notice', my interpretation being one month from January 27, 1992, specifically February 27, 1992. [Emphasis added].

   
   

4. Even though it may have been reasonable for Ms. Hunton to assume that "filed" meant to "mail" her request for hearing, her interpretation of the time within which she was required to "mail" her response was not reasonable. The

   Notice informed Ms. Hunton that she had "30 days" to act. Even an unrepresented party should understand that "30 days" means just that. By counting 30 days from January 27, 1992, on a calendar, Ms. Hunton should have realized that she had to act no later than February 26, 1992. It was unreasonable for Ms. Hunton to interpret the terms "30 days" to mean a month, and that a month from January 27, 1992, meant February 27, 1992.

   
   

5. On Thursday, February 27, 1992, Ms. Hunton spoke to Mr. Hardin King, an employee of the Commission (incorrectly identified as an employee of the Federal Commission on Human Relations by Ms. Hunton). Ms. Hunton telephoned the Commission in an effort to get an extension of time to file her request for hearing. At the time of this conversation, Ms. Hunton had already determined that she was required to mail her request no later than February 27, 1992. Although Mr. King reinforced this conclusion by failing to properly inform Ms. Hunton that her request for hearing was required to be received (filed) no later than February 26, 1992, the fact is that Ms. Hunton had already unreasonably concluded that she was not required to mail her request for hearing until February 27, 1992, and she had already failed to at least mail her request for hearing on February 26, 1992. Therefore, Ms. Hunton's error in this matter was not made in reliance on anything that Mr. King told her. The error had already occurred before her conversation with Mr. King.

   
   

6. After speaking to Mr. King on February 27, 1992, Ms. Hunton mailed a Petition for Relief (hereinafter referred to as the "Petition"), to the Commission. A copy of the Petition was also mailed to Southern Bell.

   
   

7. The Petition was not received (filed) by the Commission until Monday, March 2, 1992.

   
   

8. The Petition was not filed by Ms. Hunton within 30 days of the date of the Notice. It was filed 35 days after the date of the Notice. Giving Ms. Hunton the benefit of the doubt concerning her lack of understanding as to the meaning of the term "filed" and assuming that Ms. Hunton was reasonable in concluding that "filed" meant to mail, Ms. Hunton still did not mail her request for hearing within 30 days of the date of the Notice. Therefore, even accepting Ms. Hunton's explanation of how she interpreted the term "file", Ms. Hunton's Petition was not timely filed.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991)

   
   

10. Southern Bell has argued, in part, that this case should be dismissed because Ms. Hunton did not "file" her Petition within the time requirement of Rule 22T-9.008(1), Florida Administrative Code, which provides, in part:

    
    

    1. Petition. A complainant may file a Petition for relief from an Unlawful Employment Practice within 30 days of service of a . . . Notice of Redetermination on No Reasonable Cause . . . .

       
       

11. Ms. Hunton was informed by the Commission that she was required to comply with Rule 22T-9.008(1), Florida Administrative Code, if she desired to file a petition for relief. There is no doubt that Ms. Hunton failed to comply

    with the Commission's instructions or the rule. Ms. Hunton's Petition was not "filed" (received by the Commission) within 30 days of the date of Notice. Ms. Hunton's failure to timely "file" her Petition, however, is not dispositive of this case.

    
    

12. The difficulty with accepting Southern Bell's argument is that, although Ms. Hunton could, and probably should, have asked the Commission what "file" meant under Rule 22T-9.008(1), Florida Administrative Code, the Commission did not explain to Ms. Hunton what it meant by the use of the term "file". It was not, therefore, unreasonable for Ms. Hunton to conclude that "file" meant to mail ("serve") the petition for relief. Although not directly on point, there are several cases in which the Supreme Court of Florida and the district courts of appeal have directed that petitions which were not timely "filed" nonetheless should be accepted. See Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988); Castillo v. Department of Administration, 17 F.L.W. D373 (Fla. 2d DCA 1992); and Stewart v. Department of Corrections, 561 So.2d 15 (Fla. 4th DCA 1990). In light of these cases, it is concluded that this case should not be dismissed because Ms. Hunton assumed that "file" meant the same thing as "serve."

    
    

13. The foregoing conclusions are not dispositive of this case. Even accepting Ms. Hunton's explanation of why she did not timely "file" her Petition, Ms. Hunton's actions were not reasonable. Ms. Hunton knew that she only had "30 days" from the date of the Notice to mail her request for hearing. Ms. Hunton concluded that "30 days" meant "one month." She further concluded that "one month" from January 27, 1992, the date of the Notice, was February 27, 1992. In fact, there are 31 days between January 27, 1992 and February 27, 1992. Ms. Hunton's conclusion and explanation of why her Petition was not filed was not reasonable. Even a pro se litigant should understand that "30 days" means exactly that--a period of 30 days. It is a period that could have easily been determined by Ms. Hunton with the use of a calendar by counting 30 days from January 27, 1992.

    
    

14. After Ms. Hunton initially informed the undersigned why her Petition was filed late, Ms. Hunton provided another explanation--that she had talked to Mr. Hardin King, an employee of the Commission. This conversation, however, took place after Ms. Hunton had already incorrectly (and unreasonably) concluded that she did not have to mail her Petition until February 27, 1992. Therefore, when Ms. Hunton spoke to Mr. King on February 27, 1992, her error had already occurred. In light of these facts, Mr. King's incorrect advice to Ms. Hunton was not the cause, and played no relevant role, in her incorrect decision. Ms. Hunton's decision cannot, therefore, be said to have been made in reliance on Mr. King's advice.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on

Human Relations dismissing the Petition for Relief of Gina M. Hunton, as

untimely filed.

DONE and ENTERED this 29th day of October, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1992.

COPIES FURNISHED:

Gina M. Hunton 4929 Fauna Drive

Melbourne, Florida 32934

E. Barlow Keener, Esquire Francis B. Semmes, Esquire Southern Bell Telephone and

Telegraph Company Suite 4300

675 West Peachtree Street, N.E. Atlanta, Georgia 30375

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Bldg. F, Suite 240

Tallahassee, Florida 32303-4113

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Bldg. F, Suite 240

Tallahassee, Florida 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 92-002452

Orders for Case No: 92-002452