STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN P. FINN, )

)

Petitioner, )

)

vs. ) Case No. 99-2864

)

CITY OF HOLLY HILL, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion to Dismiss before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Godwin J. Essien, Esquire

Essien & Associates, P.A.

444 Seabreeze Boulevard, Suite 890 Daytona Beach, Florida 32118

For Respondent: Thomas M. Gonzalez, Esquire

Donald C. Barbee, Jr., Esquire Thompson, Sizemore & Gonzalez, P.A.

109 North Brush Street, Suite 200 Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue is whether Petitioner's Charge of Discrimination should be dismissed as untimely pursuant to Section 760.11, Florida Statutes.

PRELIMINARY STATEMENT

In a Charge of Discrimination dated June 2, 1998, Petitioner John P. Finn (Petitioner) alleged that Respondent City of Holly Hill (Respondent) had committed an unlawful employment practice against him in contravention to Section 760.10, Florida Statues.

This Charge of Discrimination was filed with the Florida Commission on Human Relations (FCHR) on June 18, 1998.

On or about June 7, 1999, Petitioner requested an administrative hearing pursuant to Section 760.11(8), Florida Statutes, because FCHR had failed to conciliate or determine whether there was reasonable cause to believe that an unlawful employment practice had occurred. On June 30, 1999, FCHR referred this matter to the Division of Administrative Hearings.

A Notice of Hearing dated August 3, 1999, scheduled the case for formal hearing on November 9, 1999.

On October 18, 1999, Respondent filed an Unopposed Motion for Continuance. This motion was granted by order dated October 19, 1999.

On November 22, 1999, Petitioner filed a letter advising that the parties had agreed to proceed to formal hearing on January 5, 2000.

On December 9, 1999, Respondent filed a Motion to Dismiss.

The motion alleged that Petitioner's Charge of Discrimination

and request for administrative hearing should be dismissed as untimely. An Order to Show Cause dated January 5, 2000, required Petitioner to show cause why this motion should not be granted.

On January 24, 2000, Petitioner filed Petitioner's Motion in Opposition to Respondent's Motion to Dismiss.

FINDINGS OF FACT

1. Petitioner's Charge of Discrimination dated June 2, 1998, alleges that Respondent discriminated against him because of his age and in retaliation for opposing illegal behavior. FCHR received the Charge of Discrimination on June 18, 1998.

2. For purposes of this Recommended Order of Dismissal, it is assumed that the Charge of Discrimination was timely filed with FCHR.

3. As of December 15, 1998, 180 days after Petitioner filed his Charge of Discrimination, FCHR had not assigned an investigator to investigate Petitioner's complaint or taken any other action related to the complaint. As of January 19, 1999,

   35 days after December 15, 1998, Petitioner had not requested an administrative hearing.

4. By letter dated June 2, 1999, Petitioner requested FCHR to forward his complaint to the Division of Administrative Hearings. FCHR received the request for an administrative hearing on June 7, 1999. This request was filed 354 days after

   June 18, 1998, 174 days after December 15, 1998, and 139 days

   
   

   after January 19, 1999.

   
   

5. Petitioner does not argue or present any facts to support a finding that the doctrines of equitable tolling or excusable neglect apply in this case.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

7. Section 760.01(1), Florida Statutes, states that "Sections 760.01-760.11 and 509.092 shall be known as the 'Florida Civil Rights Act of 1992.'"

8. Section 760.10, Florida Statues, states as follows, in pertinent part:

   1. It is an unlawful employment practice for an employer:

      1. To discharge or to fail or refuse to hire any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's . . . age . . . .

         
         

         * * *

         
         

         (7) It is an unlawful employment practice for an employer * * * to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section . . .

         .

9. Section 760.11, Florida Statutes, provides as follows, in pertinent part:

   1. Any person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with the commission within 365 days of the alleged violation . . . .

      
      

      * * *

      
      

      1. Except as provided in subsection (2), the commission shall investigate the allegation in the complaint. Within 180 days of the filing of the complaint, the commission shall determine if there is reasonable cause to believe that discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992. . . .

      2. In the event that the commission determined that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992, the aggrieved person may either:

         1. Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or

         2. Request an administrative hearing under ss. 120.569 and 120.57.

            The election by the aggrieved person of filing a civil action or requesting and administrative hearing under this subsection is the exclusive procedure available to the aggrieved person pursuant to this act.

            
            

            * * *

            
            

      3. A civil action brought under this section shall be commenced no later than 1 year after the date of determination of reasonable cause by the commission. . . .

      4. An administrative hearing pursuant to paragraph (4)(b) must be requested no later than 35 days after the date of determination of reasonable cause by the commission. . . .

      5. 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 ss. 120.569 and 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 an administrative law judge 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. . . .

      6. In the event that the commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the commission determined that there was reasonable cause.

      
      

10. Petitioner filed his Charge of Discrimination on June 18, 1998. FCHR had 180 days to make a determination finding reasonable cause or no reasonable cause. The 180-day time period expired on December 15, 1998. Petitioner then had

    35 days in which to request an administrative hearing. The 35- day time period expired on January 19, 1999. Petitioner did not file a request for an administrative hearing until June 7, 1999,

    139 days too late.

    
    

11. The unrefuted facts of this case clearly indicate that Petitioner's request for an administrative hearing is untimely and therefore barred due to his failure to request an administrative hearing on or before January 19, 1999. Milano v.

Moldmaster, Inc., 703 So. 2d 1093 (Fla. 4th DCA 1997); Steven J.

Longariello v. Collier County Public Schools, DOAH Case

No. 95-5314, Recommended Order of Dismissal, February 20, 1998.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED

That Petitioner's Charge of Discrimination and request for administrative hearing be dismissed.

DONE AND ENTERED this 2nd day of February, 2000, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2000.

COPIES FURNISHED:

Godwin J. Essien, Esquire Essien & Associates, P.A.

444 Seabreeze Boulevard, Suite 890 Daytona Beach, Florida 32118

Thomas M. Gonzalez, Esquire Donald C. Barbee, Jr., Esquire

Thompson, Sizemore & Gonzalez, P.A.

109 North Brush Street, Suite 200 Tampa, Florida 33602

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

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: 99-002864

Orders for Case No: 99-002864