STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAYNE PAGLIARA,

Petitioner,

vs.

MARION COUNTY FIRE-RESCUE DEPARTMENT,

Respondent.

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) Case No. 04-0096

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RECOMMENDED ORDER OF DISMISSAL

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

APPEARANCES

For Petitioner: Wayne Pagliara, pro se

Post Office Box 808

Orange Lake, Florida 32681-0808

For Respondent: Kacy M. Marshall, Esquire

Fisher & Phillips, LLP

450 East Las Olas Boulevard Suite 800

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE

The issue is whether Petitioner's Petition for Relief should be dismissed as untimely pursuant to Section 760.11(7), Florida Statutes (2003).

PRELIMINARY STATEMENT

On January 5, 2004, Petitioner Wayne Pagliara (Petitioner) filed a Petition for Relief with the Florida Commission on Human Relations (FCHR). The Petition alleged that Respondent Marion County Fire-Rescue Department (Respondent) discriminated against Petitioner by terminating his employment based on his disability in violation of Section 760.10, Florida Statutes.

FCHR referred the case to the Division of Administrative Hearings on January 9, 2004.

Both parties filed a unilateral Response to Initial Order on January 20, 2004. Respondent's Response to Initial Order alleged that Petitioner failed to file his Petition for Relief within 35 days of FCHR's Determination: No Cause.

On January 23, 2004, the undersigned issued an Order To Show Cause, directing Petitioner to show why his Petition for Relief should not be dismissed pursuant to Section 760.11(7), Florida Statutes.

Respondent filed a Motion to Dismiss on January 26, 2004. On January 30, 2004, Petitioner filed a response to the

Order to Show Cause and/or the Motion to Dismiss.

FINDINGS OF FACT

1. Petitioner filed a Charge of Discrimination with FCHR on June 25, 2003. Petitioner alleged that Respondent

   discriminated against him based on his learning disability by terminating his employment on May 13, 2003.

2. Finding no reasonable cause to believe that Respondent had committed an unlawful employment practice, FCHR issued a Determination: No Cause on November 4, 2003. That same day, FCHR issued a Notice of Determination: No Cause, advising Petitioner that he had 35 days from the date of the notice in which to request an administrative hearing. The notice clearly stated that Petitioner's claim would be dismissed pursuant to Section 760.11, Florida Statutes, if he failed to request a hearing in a timely manner.

3. Petitioner filed his Petition for Relief with FCHR on January 5, 2004. Petitioner's request for hearing was filed 56 days after the date of the Notice of Determination: No Cause and

   21 days after the expiration of the 35-day period referred to in Section 760.11(7), Florida Statutes (2003).

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has authority to determine whether it has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat. (2003).

5. Section 760.11(7), Florida Statutes (2003), states as follows in pertinent part:

   (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 ss. 120.569 and 120.57, but any such request must be made within 35 days of the date of determination of reasonable cause. If

   the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.

   
   

6. In this case, Petitioner did not file a timely Petition for Relief. The fact that Petitioner may be handicapped by a learning disability in the areas of written expression or written language does not negate the effect of an untimely claim pursuant to Section 760.11(7), Florida Statutes. Therefore, Petitioner's claim is barred.

RECOMMENDATION

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

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 5th day of February, 2004, in Tallahassee, Leon County, Florida.

S

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 5th day of February, 2004.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Kacy M. Marshall, Esquire Fisher & Phillips, LLP

450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301

Wayne Pagliara

Post Office Box 808

Orange Lake, Florida 32681-0808

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: 04-000096

Orders for Case No: 04-000096