STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUEL PEDRAZA, )

)

Petitioner, )

)

vs. ) Case No. 02-0237

)

UNITED SPACE ALLIANCE, )

f/k/a LOCKHEED MARTIN, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER OF DISMISSAL

This cause came on to be heard on June 19, 2002, by telephone conference call on the Motion to Dismiss filed by Respondent before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings. Petitioner filed an affidavit with attachments as a response, through counsel, to the Motion; arguments of counsel were made by telephone conference call. The arguments presented in the Motion have been fully considered. The following appearances were entered:

APPEARANCES

For Petitioner: Susan K. W. Erlenbach, Esquire

Erlenbach Law Offices, P.A. 2532 Garden Street

Titusville, Florida 32796

For Respondent: W. Russell Hamilton, III, Esquire

Morgan, Lewis & Bockius, LLP

5300 First Union Financial Center

200 South Biscayne Boulevard Miami, Florida 33131-2339

STATEMENT OF THE ISSUES

Whether the Division of Administrative Hearings (DOAH) has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Florida Commission on Human Relations (FCHR) does not make a "cause" or "no cause" determination, as provided in Section 760.11(3), Florida Statutes, but rather issues a Notice of Dismissal, pursuant to Section 760.11(8), Florida Statutes.

Whether DOAH has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Section 760.11(6), Florida Statutes.

Whether DOAH has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if Petitioner fails to name Respondent in the Petition for Relief filed with the FCHR, as required by Section 760.11(1), Florida Statutes.

PRELIMINARY STATEMENT

On or about March 25, 1999, Petitioner filed with the FCHR a charge of discrimination against Respondent based on

his age, disability and national origin. The FCHR began an investigation under the Florida Civil Rights Act of 1992, but did not complete it within 180 days of the filing of the complaint. Prior to the completion of its investigation, Petitioner sought to withdraw his complaint from the FCHR in order to pursue his civil or administrative remedies under state or federal law. Thereafter, the FCHR issued a Notice of Dismissal and mailed a copy to Petitioner on October 10, 2001. Petitioner was advised that upon issuance of a right-to-sue letter from the Equal Employment Opportunity Commission, he could pursue his federal remedies, and upon receipt of the Notice of Dismissal from the FCHR, he could pursue his state remedies, pursuant to Section 760.11(8), Florida Statutes.

Petitioner filed a Petition for Relief with the FCHR on December 28, 2001. Petitioner requested a formal hearing under the provisions of Section 120.57(1), Florida Statutes. The FCHR referred this matter to the DOAH on January 14, 2002, for a formal hearing, and this matter was set for hearing. On May 17, 2002, Petitioner retained counsel and this matter was continued to permit discovery and to Amend the Petition for Relief. Counsel for Respondent filed his Notice of Appearance on May 29, 2002. Respondent filed its Answer and Affirmative Defenses and Motion to Dismiss the Petition for Relief on

June 5, 2002. On June 19, 2002, Petitioner filed an affidavit

in response to Respondent's motions, and the motion hearing followed. Being fully advised in the premises, it is

FOUND AND DETERMINED that, under the provisions of Sections 760.11(4)(b), (6), and (8), Florida Statutes, Petitioner had until November 14, 2001, to timely file his petition. The Petition was not filed until December 28, 2001. Although Petitioner was not specifically notified of the provisions of the law that set the deadline, good cause for the delay has not been demonstrated by Petitioner. Therefore, the Petition for Relief is time-barred for failure to file the Petition within 35 days of the date of the Notice of Dismissal which is the equivalent of a determination of cause by the FCHR. Section 760.11(6), Florida Statutes (1997); Wright v.

HCA Central Florida Regional Hospital, Inc., 18 FALR 1160 (1995); cf. Joshua v. City of Gainesville, 768 So. 2d 432 (2000); St. Petersburg Motor Club v. Cook, 567 So. 2d 488 (Fla. 2nd DCA 1990); see Blakely v. United States Automobile Ass'n, No. 99-1046-CIV-T-17F, 1999 WL 1053122, 4 (M.D. Fla.

Oct. 4, 1999); Dawkins v. Bellsouth Telecommunications, Inc., 53 F. Supp. 2d 1356, 1360-61 (M.D. Fla. 1999). Further,

Petitioner did not name this Respondent in the single Petition for Relief he filed on December 28, 2001, as required by Section 760.11, Florida Statutes, and thus, neither the FCHR

nor DOAH has jurisdiction over this matter under any subsection of Section 760.11, Florida Statutes.

Respondent's assertion that the FCHR's Notice of Dismissal, dated October 10, 2001, is not authorized under the provisions of Section 760.11, Florida Statutes, citing McShane v. Brevard County Sheriff's Office, DOAH case No. 01-4449, FCHR Case No. 99-004139, Recommended Order, dated February 15, 2002, is misplaced. The FCHR is authorized to issue such a Notice under the provisions of Section 760.11(8), Florida Statutes, upon the request of an aggrieved person, as was done by Petitioner in this case, and he may proceed as if the commission determined that there was reasonable cause. See generally, Logan v. Zimmerman Brush Co., 102 S. Ct. 1148 (1982) and cf. Joshua v. City of Gainesville, supra. at 436.

RECOMMENDATION

Based on the foregoing facts and conclusions of law, it

is

RECOMMENDED that a final order be entered dismissing with

prejudice the Petition of Manuel Pedraza in DOAH Case

No. 02-0237, and FCHR Case No. 99-0849, for failure to timely file his Petition for Relief and for failure to properly name Respondent in the Petition.

DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida.

___________________________________ DANIEL M. KILBRIDE

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 21st day of June, 2002.

COPIES FURNISHED:

Susan K. W. Erlenbach, Esquire Erlenbach Law Offices, P.A.

2532 Garden Street

Titusville, Florida 32796

W. Russell Hamilton, III, Esquire Morgan, Lewis & Bockius, LLP

5300 First Union Financial Center

200 South Biscayne Boulevard Miami, Florida 33131-2339

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 02-000237

Orders for Case No: 02-000237