STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA A. WRIGHT, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0070

) HCA CENTRAL FLORIDA REGIONAL ) HOSPITAL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on June 22, 1994 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Steve Prince, Qualified Representative

o/b/o Gloria Wright

111 Hughes Avenue Sanford, Florida 32771

For Respondent: Elizabeth McArthur, Esquire

Robert Hinkle, Esquire

Aurell Radey Hinkle Thomas & Beranek Suite 1000, 101 North Monroe Street

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations.

Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1), Florida Statutes, if the Petition was not timely filed.

PRELIMINARY STATEMENT

On March 10, 1993, Petitioner filed a complaint with the Florida Commission on Human Relations charging Respondent with committing an unlawful employment practice. The Commission conducted an investigation and issued a No Cause determination. The parties were notified of the Commission's action by letter, dated August 24, 1993. On September 30, 1993, the FCHR Executive Director issued a Notice of Dismissal, for the reason that a Petition for Relief had not been filed. On October 13, 1993, Petitioner filed a Petition. On November 18, 1993, the FCHR issued an Order to Show Cause why the Petition should not be

dismissed. Petitioner responded to the Order by transmitting a package to the Commission on November 30, 1993. The Commission did not rule on the show cause order, but transmitted to the Division of Administrative Hearings a Petition for Relief, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding". This matter was assigned to the undersigned Hearing Officer and a hearing was set on the threshold issue of timeliness and jurisdiction. Following a continuance granted at the request of the parties, this matter was heard on the threshold issues.

At the hearing, Petitioner was present and requested that she be represented by Steve Prince, as her Qualified Representative. Mr. Prince testified that he had extensive experience as a paralegal and teacher of paralegals in the area of employment discrimination and administrative and civil litigation, and that he was familiar with all applicable substantive and procedural statutes and rules. The hearing officer authorized him to act as the Qualified Representative of the Petitioner at the hearing pursuant to Rule 60Q- 2.008, Florida Administrative Code. Petitioner testified in her own behalf and offered no exhibits in evidence. Respondent offered two exhibits in evidence and did not call any witnesses to testify. The hearing was recorded, but a transcript was not prepared. Petitioner did not filed proposed findings of fact or conclusions of law. Respondent filed its proposals on June 27, 1994. My rulings on Respondent's proposals are contained in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. On December 30, 1993, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding."

   
   

2. The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on March 10, 1993, charging an unlawful employment practice by Respondent in connection with a denial of a raise in salary.

   
   

3. On August 24, 1993, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred.

   
   

4. Notice of that determination was served on Petitioner and Respondent on August 24, 1993 by regular mail.

   
   

5. The Notice of Determination of No Cause served on Petitioner included the following statement:

   
   

   The parties are advised that the Complainant may request that a formal, post-investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 30 days of the date of mailing of this Notice and should be in compliance with the provisions of Rule 60Y-5.008 and Chapter

   60Y-4, Florida Administrative Code. A Petition for Relief form is enclosed. If you elect to file a Petition for Relief, it may

   be beneficial to seek legal counsel prior to filing the petition.

   
   

6. Petitioner received the Notice of Determination.

   
   

7. Petitioner understood that, under the FCHR rules cited in the Notice, the requirement for the petition to be "filed" meant that the petition had to actually be received by the FCHR.

   
   

8. On September 30, 1993, 37 days after the Notice was served, the FCHR Executive Director issued a Notice of Dismissal, for the reason that no Petition for Relief had been filed.

   
   

9. On October 13, 1993, Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR, and was accompanied by a transmittal letter from the Petitioner on her letterhead stationery that identified the enclosures. It was filed with the FCHR on October 18, 1993.

   
   

10. After receiving the October transmittal, on November 18, 1993, the FCHR issued an Order to Show Cause, directing the Petitioner to provide reasons why the late-filed petition should not be dismissed.

    
    

11. Petitioner responded to the show cause order by transmitting a package to the FCHR on November 30, 1993. It contained her response to the show cause order, a copy of the petition transmitted in October, and another original petition on a second form that Petitioner said was provided to her by the FCHR. This transmittal was also accompanied by a transmittal letter on Petitioner's letterhead stationery, describing the contents.

    
    

12. The FCHR did not rule on the sufficiency of Petitioner's response, but rather transmitted the pleadings (including the show cause order and response) to DOAH for further proceedings.

    
    

13. At the same time of the transmittal to DOAH, FCHR also issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief.

    
    

14. CFRH timely filed its answer with affirmative defenses, including the first affirmative defense that "the Petition for Relief is untimely."

    
    

15. The Petitioner made two mailings of petitions: one mailing was made to transmit one form petition that she had completed in October, 1993, and a second mailing was made in November with a copy of the first form plus another original form filled out by Petitioner.

    
    

16. Petitioner also testified that she mailed another petition, without a transmittal letter, on September 20, 1993.

    
    

17. There was no evidence presented that a Petition was received by FCHR in September 1993 or that the document was returned to Petitioner as undelivered mail.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1) and 760.11(7), Florida Statutes.

    
    

19. The threshold issue in this matter is whether DOAH has jurisdiction to proceed to the merits of this matter, or whether the proceeding must be dismissed based on the untimeliness of the Petition for Relief and therefore the claim is barred.

    
    

20. Section 760.11, Florida Statutes addresses the administrative and civil remedies that can be invoked by the Petitioner based on an assertion of an unlawful employment practice. The first step is the filing of a complaint with the FCHR, which investigates the complaint and renders an initial determination. This procedure was followed in this case, and the FCHR issued its determination of No Cause on August 24, 1993.

    
    

21. Under the Florida Civil Rights Act of 1992, the Division of Administrative Hearings is charged with the responsibility to conduct a formal hearing when the FCHR has issued a No Cause determination and the request for a hearing has been timely filed. Section 760.11(7), Florida Statutes. Subsection

    (7) describes the administrative remedy available after a no-cause determination, as follows:

    
    

    The aggrieved person may request an administrative hearing under s. 120.57, but any such request must be made within 35 days of the date of determination of [no] reasonable cause . . . If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.

    
    

    Section 760.11(7), Florida Statutes.

    
    

22. The FCHR's rules similarly require a timely request for an administrative hearing, by providing for the filing of a petition within 30 days of service of a notice of determination of no cause, with 5 days time added for service by mail. Rules 60Y-5.004(5), 60Y-5.008, and 60Y-4.007, Florida Administrative Code.

    
    

23. By rule, FCHR has made it clear that the requirement for "filing" of a document as used in its rules is a requirement for "actual receipt of the document by the Clerk of the Commission at its office." Rule 60Y-4.004(1), Florida Administrative Code reads as follows: "Filing" or "file" with the Commission, means actual receipt of a document by the Clerk of the Commission at its office . . ." The procedural rules in Chapter 60Y-4, including this "filing means actual receipt" rule, were cited to the Petitioner in the Notice of Determination: No Cause, and were understood by her.

    
    

24. The only exception in the FCHR rules that would allow a late-filed petition is as follows:

    
    

    For good cause shown, the Chairperson may grant an extension of time to file the Petition for Relief from an Unlawful

    Employment Practice, provided the motion for extension of time is filed within the 30-day period prescribed by Rule 60Y-5.008(1).

    
    

    Rule 60Y-5.008(2), Florida Administrative Code. Petitioner did not seek relief from the filing deadline under this extension provision.

    
    

25. Section 760.11(7), Florida Statutes, requires the timely submission of a request for an administrative hearing, or else the claim is "barred". The Petition for Relief was not timely filed, hence the Petitioner's claim must be deemed barred.

    
    

26. Petitioner has failed to establish excusable neglect, which might, under certain circumstances, excuse a delinquent filing. See, e.g., Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988). 1/

    
    

27. In Machules, the Florida Supreme Court described the parameters of the "equitable tolling" doctrine as follows:

    
    

    Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.

    523 So.2d at 1134.

    
    

28. It is undisputed that the first petition to be actually received by the FCHR, and thus filed within the meaning of its rules, was on October 18, 1993, approximately 20 days past the statutory deadline.

    
    

29. The only reason offered by Petitioner for her untimely-filed petition is her claim that she mailed a petition on September 20, 1993 that was lost in the mail. Petitioner argues that if that petition had not been lost in the mail it would have been timely received by the FCHR. However, Petitioner's claim of an earlier-mailed petition is rejected as not supported by the greater weight of credible evidence. The claim is not substantiated by any documentary evidence and is inconsistent with other testimony by the Petitioner. The fact that documentary evidence supposedly exists but was not produced at the final hearing adds to the lack of credibility of Petitioner's claim.

    
    

30. Petitioner's claim of a September mailing is inconsistent with the Petitioner's own testimony that she made only two mailings of petitions to the FCHR. The testimony of a September 20 mailing is also inconsistent with the practice followed by Petitioner with her other mailings. In all other instances, the Petitioner used transmittal letters and retained copies of the petitions. However, she was unable to produce tangible evidence of any mailing in September.

    
    

31. There was no evidence of any September mailing having ever been received by the FCHR or having been returned to Petitioner as undelivered mail.

    
    

32. Petitioner's written response to the FCHR show cause order failed to identify the date on which an earlier petition was supposedly mailed. However, at the hearing, Petitioner testified that a petition was mailed on September 20. When asked how she could now recall the date of the September mailing, Petitioner testified that she maintained a detailed log of her mailings. Yet

    despite her understanding that the purpose of the hearing was for her to prove why she did not timely file her petition, she did not produce the log that would presumably provide documentation of a September mailing.

    
    

33. Petitioner did not claim that she was lulled into inaction by anything said or done by the FCHR or by Respondent CFRH, or that she was misled in any fashion, or that she suffered from any misapprehension with respect to her obligations under the FCHR rules for filing her petition. She did not testify to any confusion regarding the deadline, regarding how to fill out the form, or regarding where it was to be filed. Instead, she testified that she understood the filing requirement and understood that it meant actual receipt by FCHR.

    
    

34. In this case, there is no competent evidence from which to conclude that the Petitioner timely asserted her rights, or was misled or lulled into inaction, or otherwise prevented from asserting her rights. Instead, the evidence shows that the Petitioner fully understood her obligation to file a petition on time, and had no excuse for failing to do so.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the

Petition for Relief in DOAH Case No. 94-0070 and FCHR Case No. 93-3143, for

failure to timely file the Petition.

DONE AND ENTERED this 27th day of July, 1994, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 27th day of July, 1994.

ENDNOTE

1/ The Machules tolling doctrine may be inapplicable in any event, because its application is dependent on a threshold finding that the statutory period for administrative petitions is not jurisdictional in the sense that failure to comply is an absolute bar to further proceedings but instead is subject to equitable considerations such as tolling. Machules, 523 So.2d at 1133, n. 2.

Here, there is a statute expressly providing that failure to timely request an administrative hearing does indeed result in the claim being "barred." Section 760.11(7), Florida Statutes.

APPENDIX

Petitioner did not submit proposed findings of fact. Respondent's proposed findings of fact.

Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14 (in part).

Rejected as irrelevant or addressed in the Preliminary Statement in this Order: paragraphs 12, 13, and 15.

Rejected as a comment on the evidence or argument: paragraph 14 (in part), 16, 17, 18, 19, 20, 21.

COPIES FURNISHED:

Elizabeth McArthur, Esquire Robert Hinkle, Esquire Aurell Radey Hinkle Thomas &

Beranek

Suite 1000, 101 North Monroe Street

Tallahassee, Florida 32302

Mark E. Edwards, Esquire Jeanne Casstevens Thomas 2501 Park Plaza

Nashville, Tennessee 37203

Gloria Wright

111 Hughes Avenue Sandford, Florida 32771

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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: 94-000070

Orders for Case No: 94-000070