STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH B. DAVIS,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 02-0241

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RECOMMENDED ORDER

Don W. Davis, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in this case on March 20, 2002, in Tallahassee, Florida. The following appearances were entered.

APPEARANCES

For Petitioner: Joseph B. Davis, pro se

209 South Trippett Drive Perry, Florida 32348

For Respondent: J. Ann Cowles, Esquire

Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

The issue for determination is whether Petitioner timely sought relief from alleged employment discrimination by the Department of Transportation (Respondent) due to Petitioner's race in violation of Section 760.10, Florida Statutes. A secondary

issue, in the event that Petitioner's seeking of relief is determined to be untimely, is whether Petitioner is barred from presenting the facts of his case on the merits or whether the doctrine of equitable tolling applies?

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against Respondent with the Florida Commission on Human Relations (FCHR) on September 29, 2000, alleging discrimination by Respondent in the work environment on the basis of Petitioner's race.

On or about September 26, 2001, the FCHR issued its Determination: No Cause. Petitioner was apprised by FCHR in its notice that Petitioner could file a Petition for Relief within

35 days.

On October 30, 2001, Petitioner erroneously filed a Petition for Relief with Respondent. Respondent's personnel notified Petitioner of the error by letter dated November 7, 2001.

Petitioner later filed the Petition for Relief with FCHR. Subsequently, on January 15, 2001, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

Argument of the parties with regard to Respondent's Motion To Dismiss Appeal For Untimeliness was heard upon commencement of the final hearing. Respondent's motion was filed on March 8, 2002, and seeks a recommended dismissal of the Petition for Relief. No transcript of the proceeding was provided.

Both parties filed Proposed Recommended Orders, both of which have been reviewed and considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. On October 5, 1999, Petitioner resigned from his employment position with Respondent. Petitioner had been given the opportunity to resign rather than be terminated for violations of various Department conduct standards. Petitioner, a Caucasian, later alleged in his Charge of Discrimination filed with the FCHR on September 29, 2000, that he had been terminated because he was white.

2. On September 26, 2001, FCHR issued a Notice of Determination, finding no cause to believe that Petitioner had been the subject of an unlawful employment practice.

3. In the Notice of Determination, Petitioner was apprised that filing of a Petition for Relief with FCHR within 35 days from September 26, 2002, was necessary to avoid dismissal of the complaint. FCHR's address and a Petition for Relief form was enclosed with the Notice of Determination.

4. On November 19, 2001, FCHR issued a Notice of Dismissal, 55 days after Petitioner had received his Notice of Determination, which stated that Petitioner had failed to comply with the requirements of Rule 60Y-5.008, Florida Administrative Code, and that Petitioner's complaint was dismissed.

5. On October 30, 2001, Petitioner erroneously filed a Petitioner for Relief with Respondent. Respondent's personnel notified Petitioner of the error by letter dated November 7, 2001. Petitioner later filed the Petition for Relief with FCHR on January 15, 2002, and the matter was forwarded on that date to the Division of Administrative Hearings.

6. The Petition for Relief was filed with FCHR 111 days after the date of the Notice of Determination: No Cause, and 69 days after Respondent's personnel returned the erroneously filed Petition to Petitioner.

7. Petitioner did not allege or offer proof of extraordinary circumstances which prevented timely filing of the Petition for Relief.

8. The passage of time since the initial Charge of Discrimination by Petitioner and the filing of the Petition for Relief inures to the prejudice of Respondent in that employees who could have earlier provided testimony in support of Respondent's position have now become unavailable.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

10. Chapter 760, Florida Statutes, the "Florida Civil Rights Act of 1992," provides security from discrimination based

    upon race, color, religion, sex, national origin, age, handicap, or marital status.

11. While the adverse effectuation of an employee’s compensation, conditions, and privileges of employment on the basis of race is an unlawful employment practice, the burden of proof rests with Petitioner to show a prima facie case of employment discrimination.

12. A part of Petitioner's burden includes presenting such proof in a timely manner. Section 760.11(7), Florida Statutes, expressly requires the timely submission of a request for an administrative hearing. Delay in the pursuit of a remedy for discrimination by Petitioner is, however, permissible in the event of the occurrence of excusable neglect vis-a-via compliance with statutory required deadlines. Regrettably, Petitioner has not established such a defense or explanation for his failure to proceed in accordance with those deadlines. See Machules v. Department of Administration, 523 So. 2d 1123, 1134 (Fla. 1998), where the Florida Supreme Court set forth standards for application of the doctrine of equitable tolling. Under circumstances of the present case, such tolling would apply if Petitioner had been misled or lulled into inaction. Further, mistakenly filing in the wrong forum, normally an excusable mistake, under these circumstances, cannot excuse Petitioner who

delayed his presentment of the Petition for Relief to FCHR for another 65 days (inclusive of five days for mailing).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Respondent's Motion to Dismiss.

DONE AND ENTERED this 11th day of April, 2002, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 11th day of April, 2002.

COPIES FURNISHED:

J. Ann Cowles, Esquire Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway

Suite 100

Tallahassee, Florida 32301

Joseph B. Davis

209 South Tippett Drive Perry, Florida 32348

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: 02-000241

Orders for Case No: 02-000241