STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMMA J. PUSEY, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3321

)

GEORGE KNUPP, Lake County ) Sheriffs Office, )

)

Respondent. )

)

SUMMARY

RECOMMENDED ORDER

This cause may be disposed of upon undisputed facts and recognized legal principles, without a formal hearing.

STATEMENT OF THE ISSUE

This cause came on for consideration upon Respondent's Motion to Dismiss the Petition for Relief from a "Determination: No Cause," order entered by the Florida Commission on Human Relations.

PRELIMINARY STATEMENT

Petitioner has filed a Petition for Relief from a "Determination: No Cause" order entered by the Florida Commission on Human Relations upon Petitioner's claim that she was discriminated against by her employer both as retaliation and due to her race (Black).

This cause came on for consideration upon Respondent's Motion to Dismiss. Oral argument was heard by telephonic conference call on August 14, 1996.

Thereafter, the parties were permitted to file further written argument, factual allegations, and case citations. All of the subsequent pleadings, memoranda, and letters which address the motion to dismiss or the oral argument on the motion have been considered. None offer any specific reason for late filing of the Petition for Relief after June 14, 1996.

By an October 8, 1996 "Order Requiring Further Advices and to Show Cause," the parties were presented with the material facts as presumably agreed by them. They were given until October 30, 1996 in which to file any disagreement with the facts as understood by the undersigned Administrative Law Judge. Nothing was filed by either party to vary the facts proposed in that October 8, 1996 order. Therefore, the facts as set out therein are deemed to be undisputed.

Also by the October 8, 1996 order, Petitioner was specifically given until October 30, 1996 to show cause why she did not timely file her Petition for Relief between May 31, 1996 and June 18, 1996.

Petitioner did not timely file any response to the October 8, 1996 order.

However, her late response, filed October 31, 1996, and also styled "Order Requiring Further Advices and to Show Cause" (sic) has been considered. See, Findings of Fact 12 and 13.

FINDINGS OF FACT

The undisputed facts are as follows:

1. After investigating Petitioner's Claim of Discrimination, the Florida Commission on Human Relations (FCHR) entered its Order, "Determination: No Cause," on March 12, 1996. FCHR's order unequivocally advised Petitioner that her Petition for Relief, if any, must be filed within 35 days.

   
   

2. The thirty-fifth day would have been April 16, 1996.

   
   

3. After the time as provided by FCHR's Rule 60Y-5.008(1) and by FCHR's March 12, 1996 order for the filing of her Petition for Relief had already run out, Petitioner filed a request for extension of time in which to file her Petition for Relief. Her request for extension stated that she needed the extension of time "due to failing health of my spouse and medical care and concern for him."

   
   

4. This late request for extension of time was the only request for extension of time filed by Petitioner. It was dated April 17, 1996, (one day late) but it was not filed with the FCHR until April 24, 1996 (eight days late).

   
   

5. Petitioner did not mail a copy of her April 1996 request for extension of time to Respondent as required by FCHR rules.

   
   

6. Therefore, Respondent was unaware there had been a request for extension made to the FCHR until Respondent received the FCHR's order dated May 31, 1996. Because it had no notice that Petitioner was requesting an extension in April 1996, Respondent had no opportunity to object to the FCHR before the Commission entered its May 31, 1996 order.

   
   

7. By its May 31, 1996 order, FCHR granted Petitioner an extension of time only until June 14, 1996 in which to file her Petition for Relief. The order does not state a number of days, but clearly and specifically states that the Petition for Relief must be filed by June 14, 1996.

   
   

8. FCHR granted no further extensions to Petitioner for filing her Petition for Relief.

   
   

9. Petitioner filed her Petition for Relief beyond the June 14, 1996 date assigned her by the FCHR. Although her Petition for Relief was dated June 14, 1996, FCHR's date stamp on the Petition for Relief shows that it was not filed with the Commission until June 18, 1996.

   
   

10. FCHR transmitted the Petition for Relief to the Division of Administrative Hearings on or about July 12, 1996.

    
    

11. Respondent filed a Motion to Dismiss the Petition for Relief and an Answer with affirmative defenses based on untimeliness. See, Conclusion of Law 15.

12. In response to the October 8, 1996 order to show cause herein, Petitioner filed a pleading she labelled "Order Requiring Further Advices and to Show Cause." Although she had been required to show cause why she did not timely file her Petition for Relief between May 31, 1996 and June 18, 1996, she instead explained her tardiness in filing for an extension of time back in April 1996 this way:

    
    

    I was under the impression that I had 35 days to respond from the time I received the Notice of Determination: No Cause. I receive [sic]

    this notice on March 15, 1996, under my impression the 35 day lapse period would have been until April 19, 1996. I feel my response met this time period as my letter was dated April 17, 1996.

    
    

13. In response to the October 8, 1996 order herein, Petitioner has offered no explanation why she filed her Petition for Relief beyond the clearly specified extension period granted her by the Commission.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of the Respondent's pending Motion to Dismiss, pursuant to Section 120.57(1), F.S.

    
    

15. Respondent's Motion to Dismiss, filed August 1, 1996, makes the following argument as to untimeliness:

    
    

    * * *

    1. Pursuant to 760.11(7) F.S., 1995 provides [sic] that where the Commission determines that there is not reasonable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, the commission shall dismiss the complaint and the aggrieved person may request

       an administrative hearing under s. 120.57, but such a request must be made [within 35] days of the date of determination.

    2. Rule 60Y-5.008(1), F.A.C. provides that a Complainant may file a Petition for relief

       from an unlawful employment practice [within 30]

       days from service of a Notice of No reasonable cause.

    3. Rule 60Y-5.008(2), F.A.C. requires that before the Chairperson may grant an extension of time to file the Petition for Relief from an Unlawful Employment Practice, the Complainant must move for the extension of time [within the thirty-day] period set forth by Rule 60Y-5.008(1) and make a showing of good cause concerning the need for the extension.

    4. On April 17, 1996, [thirty-six (36) days] after service upon the Complainant of the Notice

       of No Probable Cause by the Commission, Complainant requested an extension of time to file a Petition for Relief from an Unlawful Employment Practice.

    5. Respondent did not receive notice of Complainant's request and was therefore unable

       to respond or object concerning the untimeliness of her request or the sufficiency of her showing of good cause.

    6. The Complainant's request was granted on May 31, 1996, contrary to the requirements of Rule

       60Y-5-008(2).

    7. Because Complainant's request for an extension of time to file her Petition for Relief from an Unlawful Employment Practice was untimely and there was not a sufficient showing of good cause,

       Respondent moves for dismissal of this petition. [Emphasis in the original motion] 1/

       
       

16. By its motion to dismiss, Respondent seeks to have the undersigned "revisit," "second-guess," or "go behind" the Florida Commission on Human Relations' May 31, 1996 order which granted Petitioner an extension of time in which to file her Petition for Relief.

    
    

17. Unusual as FCHR's procedure and order granting the extension may have been, the undersigned Administrative Law Judge deems it inappropriate to "revisit," "second guess" or "go behind" the Commission's May 31, 1996 order on the Petitioner's April 1996 request for an extension.

    
    

18. However, this case may be resolved without the necessity of "going behind" the FCHR's May 31, 1996 order, because Petitioner never met the filing date specifically assigned to her by the Commission in its May 31, 1996 order.

    
    

19. By its May 31, 1996 order, FCHR required that Petitioner file her Petition for Relief no later than June 14, 1996. Once again, Petitioner did not move for an extension of time before the time specified in the Commission's Order ran out. Petitioner simply filed her Petition for Relief late.

    
    

20. By her late filing of her Petition, Petitioner has run contrary to FCHR Rule 60Y-5.008(2) F.A.C. and Section 760.11(7) F.S. [1996] Petitioner also has not complied with the clear requirements of the Commission's May 31, 1996 order.

    
    

21. In the case of Clark v. Department of Corrections, Sumter Correctional Institution (DOAH Case No. 85-1683 Recommended Order entered July 30, 1985; FCHR Case No. 84-1409 Final Order entered September 26, 1985), a dismissal was granted upon remarkably similar facts. Therein, after investigation, a determination of no cause was issued by FCHR on January 30, 1985. On March 12, Petitioner Clark mailed her late Petition for Relief to the Respondent Employer, which was forwarded on March 13 to the Commission where it should have been filed on March 4 or 5. On April 29, the Commission entered its order to Petitioner to show cause within 15 days as to why her Petition should not be dismissed as untimely. Petitioner Clark timely filed her response to that order which showed several dates of family members' illnesses but no evidence that Petitioner Clark took sick leave during any of these periods or that Clark did not report for work each of those days, nor any other reason Clark could not file her Petition on days these family members were not sick. Thereafter, Clark's Petition for Relief was referred to the Division of Administrative Hearings pursuant to Section 120.57(1) F.S. and FCHR's then-Rule 22T-8.16(1)

    F.A.C. The Respondent Employer moved to dismiss the Petition as untimely. A Recommended Order was entered which recommended dismissal of the Petition for Relief, and the FCHR ultimately dismissed the Petition for Relief, stating in its Final Order, in pertinent part:

    . . . the Commission has interpreted the 30 day rule filing period for Petition for Relief as a limitation period subject to equitable tolling, estoppel and waiver, rather than as a jurisdictional requirement. . . .While the

    30 day requirement of Rule 9.08 [sic] is subject to equitable principles, Petitioner in this case has failed to show that such

    principles should be applied. [See, generally, Dourtis v. Eastern Airlines], 2 FALR 1599-A (FCHR 10/31/80) aff'd, 409 So.2d 139 (Fla. 4th DCA 1982 fc.) [Glass v. City of Mascatte] 3 FALR at 239-A; [Park v. Southern Bell Telephone and Telegraph Company], 4 FALR at 1796-A [Emphasis

    in original but full citations have been provided by the undersigned.]

    
    

22. In the instant case, even assuming, but not holding, that Petitioner's husband's illness absolutely prevented Petitioner from filing her Petition for Relief up until the date she late-requested an extension, (April 17/April 24, 1996), Petitioner has never offered any reason she could not have filed her Petition on or before the June 14, 1996 date for filing which FCHR required by its May 31, 1996 Order.

    
    

23. In the case of Bartley v. Hospital Corporation of America (DOAH Case No. 94-4973 Recommended Order entered December 24, 1994; FCHR Case No. 93-5376 Final Order entered April 17, 1995), the FCHR dismissed the Petition for Relief in a similar "late-filing" case. Petitioner Bartley had filed with the Commission a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992. After investigation, the Commission entered its order of "Determination: No Cause." The notice of determination was sent to Petitioner Bartley on July 14, 1994, including a written statement that pursuant to Section

    760.11 F.S., a request for administrative hearing must be filed within 35 days of July 14, 1994, or his claim would be dismissed. Bartley filed a Petition for Relief which was stamped received by the Commission on August 26, 1994, and it was referred to the Division of Administrative Hearings for formal hearing pursuant to Section 120.57(1) F.S. The Respondent Employer filed a Motion to Dismiss due to untimely filing of the Petition for Relief. No response to the motion was filed by Petitioner Bartley. Donald R. Alexander, Administrative Law Judge, issued a Recommended Order of Dismissal, recommending that FCHR enter a final order granting the Motion to Dismiss and dismissing Bartley's Petition for Relief with prejudice, due to untimely filing of the Petition. Specifically, the Recommended Order relied upon Subsection 760.11(7) F.S. and the language therein that, "If an aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred." The Recommended Order further reasoned that, "Even if one assumes the statutory language is permissive and nonjurisdictional, petitioner has nonetheless failed to assert any reasons for invoking the doctrines of equitable tolling, estoppel or waiver." In its Final Order dismissing Bartley's Petition for Relief, the Commission held, in part, ".

    . . we find the . . . Recommended Order of Dismissal to be a correct disposition of the matter."

    
    

24. Also in accord are the following cases: Hall v. The Boeing Co., DOAH Case No. 94-6976 (Recommended Order entered March 29, 1996) wherein a claim for relief was held barred when the Petition for Relief was timely-mailed but late- filed with the FCHR and equitable tolling was not shown; and Wright v. HCA

    Central Florida Regional Hospital, DOAH Case No. 94-0070 (Recommended Order entered July 27, 1994 with Final Order adopting it in toto on January 27, 1995), wherein the Petitioner claimed to have received two notices and mailed two petitions but only the one petition which was received was untimely; therefore, the claim was barred because excuseable neglect had not been shown.

    
    

25. The foregoing Florida cases are in tune with the case law progeny of the federal anti-discrimination legislation. Title VII, 42 U.S.C. Section 200e- 5(f) provides that the Equal Employment Opportunity Commission (EEOC) must notify a claimant that the agency is terminating action on his/her charge of discrimination and that the claimant may bring a civil action within 90 days or be barred. In Law v. Hercules, Inc. 713 F.2d 691 (U.S. Circuit Court of Appeals 1983) [Atlanta Division], the EEOC sent Mr. Law notification by certified mail. The receipt was signed for by Mr. Law's son on a date certain, but Mr. Law's subsequent civil action could only be counted timely if one counted from the date Mr. Law claimed to have physically picked up the EEOC notification from his kitchen table where his son had placed it. In upholding the federal district court's summary judgment in favor of the Defendant Employer based on Mr. Law's failure to comply with the 90 day statutory guideline, the U.S. Circuit Court of Appeals cited Lewis v. Conners Steel Co., 673 F. 2d 1240 (11th Cir. 1982):

    
    

    We need not embrace the doctrine of constructive receipt, nor close our eyes to the liberal construction the act in entitled to in order

    to fashion a fair and reasonable rule for the circumstances of this case. There is no reason why a plaintiff should enjoy a manipulative open-ended time extension which would render

    the statutory limitation meaningless. [Plaintiff should be required to assume some minimum respon- sibility himself for an orderly and expeditious resolution of his dispute]. [Emphasis supplied]

    
    

    See, also Bell v. Eagle Motor Lines, 693 F 2d 1086 (11th Cir. 1982)

    
    

26. Herein, Petitioner Pusey did not file her Petition for Relief in a timely manner under the Florida statute or FCHR's rules. She also did not file her request for extension of time timely under the FCHR's rules. Nonetheless, FCHR granted her an extension for a total of 94 days in which to file her Petition for Relief. This would be the total time from FCHR's March 12, 1996 "Determination: No Cause" order until June 14, 1996, the date for filing specified in FCHR's May 31, 1996 order. Petitioner still did not file her Petition timely within that explicit agency extension to June 14, 1996. Then, despite the opportunity afforded by the October 8, 1996 order entered herein, Petitioner still offered no reason, and certainly no reason cognizable in law, why she could not have timely filed her Petition for Relief within the time specified in the FCHR's May 31, 1996 order.

    
    

27. Therefore, her Petition for Relief should be dismissed. To do otherwise would be directly contrary to Section 760.11(7) F.S. and Rules 60Y- 5.004(5) and 60Y-5.008(1) and (2) F.A.C. To do otherwise would be to render the explicit language of FCHR's May 31, 1996 order null and void and undermine the authority of any future FCHR orders of similar nature.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1996.

ENDNOTE

1/ 760.11 F.S. Administrative and Civil Remedies; Construction

(7) If the commission determines that there is not reasonable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, the commission shall dismiss the complaint. [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 reasonable cause] and any such hearing shall be heard by a hearing officer and not by the commission or a commissioner. If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred. [Emphasis supplied]

* * *

60Y-5.004 F.A.C. Executive Director's Investigatory Determination; Notice.

(5) A Notice of Determination of No Reasonable Cause. No Jurisdiction or Untimeliness shall advise the complainant of the right to file a Petition for relief, pursuant to Rule 60Y-5.008, within 30 days of service of the notice. A form, Petition for Relief, hereby incorporated by reference, in blank, shall be provided to the complainant at the time of service of the notice.

60Y-5.008 F.A.C. Petition for Relief from an Unlawful Employment Practice.

1. Petition. A complainant may file a Petition for Relief from an Unlawful Employment Practice within 30 days of service of a Notice of Failure of Conciliation, a Notice of Determination of No Reasonable Cause.. .

   .Notwithstanding the provisions of Rules 60Y-4.004(2) and 60Y-4.005, a complainant who is not represented by an attorney may file a Petition for Relief without copies or proof of service, and the Clerk shall prepare copies and serve them upon all other parties.

2. 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).

COPIES FURNISHED:

Emma J. Pusey

506 East Lake Avenue Eustis, Florida 32726

William E. Powers, Jr., Esquire

POWERS, QUASCHNICK, TISCHLER & EVANS, P.A.

Post Office Box 12186 Tallahassee, Florida 32317

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road, Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire

Florida Commission on Human Relations

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 within 15 days from the date of 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: 96-003321

Orders for Case No: 96-003321