STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBIN MOFFITT, )

)

Petitioner, )

)

vs. )

) STERLING HEALTHCARE, INC., ) f/k/a PRIME HEALTH SERVICES AND ) GRACEWOOD NURSING CENTER, INC., )

)

Respondents. )

Case No. 04-2302

)

SUMMARY RECOMMENDED ORDER OF DISMISSAL

This matter comes before the undersigned on Respondents' Motion for Summary Final Order, treated herein as a Motion for Summary Recommended Order (the Motion).1/ Respondents contend that Petitioner's claims are time-barred under the applicable limitation periods established by the Pinellas County Code (the County Code), the Code of the City of St. Petersburg (the City Code), and Title VII of the United States Civil Rights Act of 1964, as amended (Title VII).

The jurisdictional facts are not in dispute and are set forth in this and the next paragraph. Petitioner alleged that she suffered sexual harassment and retaliatory conduct in the workplace during February 2001, culminating in the loss of her job on February 16, 2001. She completed a "Complaint of Alleged Discrimination Intake Form" with the Human Relations Division,

Community Affairs Department of the City of St. Petersburg (the City) on March 1, 2001. By certified letter dated March 20, 2001, the City notified Respondents of Petitioner's charges and of the fact that the Complaint had been "dual-filed" on that date with the Federal Equal Employment Opportunity Commission (EEOC) under Title VII.

On May 28, 2003, a "Final Investigative Report Memorandum" was filed by the City's investigator recommending a finding that reasonable cause existed to believe that Respondents violated Title VII and Chapter 70 of the County Code, as amended. The recipient of this memorandum was Theresa D. Jones, human relations officer with the City. Ms. Jones signed off on the memorandum on June 2, 2003. On August 4, 2003, the City issued an Invitation to Participate in Conciliation to the parties, all of whom agreed to engage in discussions. A conciliation conference was scheduled for October 21, 2003. The City filed a Complaint on behalf of Petitioner as the "Charging Party" on May 18, 2004. The Complaint was forwarded to the Division of Administrative Hearings (DOAH) on June 30, 2004.

In the Motion filed August 16, 2004, Respondents contend that the Complaint is time-barred under any and all of the jurisdictional statutes and ordinances under which the claim is brought. As to the Title VII claim, 42 U.S.C. Section

2000e-5(f)(1) provides in relevant part:

. . . If a charge filed with the Commission pursuant to subsection (b)[2/] of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c)[3/] or (d)[4/] of this section, whichever is later, the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. . . .

As noted above, Petitioner's charges were filed with the EEOC on March 20, 2001. As of this writing, more than three years after the charges were filed, there is no record of a reasonable cause determination by the EEOC or that the EEOC has filed a civil action against Respondents or that Petitioner has received a "right to sue" notification from the EEOC. Respondents contend that under no conceivable reading of

42 U.S.C. Section 2000e-5(f) can the Complaint filed on May 18, 2004, be considered timely for purposes of bringing charges under the federal statute. Review of the federal statute leads the undersigned to agree with Respondents on this point.

Respondents' Motion goes on to provide a lengthy analysis of Chapter 70 of the County Code, which provides the procedural

framework and remedies for sexual harassment and retaliation claims to demonstrate that the Complaint is time-barred under the County Code. In a response filed on August 27, 2004, the City points out that under the City Code and workshare agreements with the County and the EEOC, the procedures of Chapter 15 of the City Code, not of Chapter 70 of the County Code, apply in this proceeding. In a reply filed on August 30, 2004, Respondents concede this point. Thus, there is no further need to examine Chapter 70 of the County Code for purposes of the Motion.

Section 15-45 of the City Code sets forth the procedure for processing charges of unlawful discriminatory practices and provides in relevant part:

1. Filing of charge. Any person who has

   been aggrieved by an unlawful discriminatory practice and who wishes to proceed under the provisions of this section must file with the Human Relations Officer, in writing and under oath, a charge of unlawful discriminatory practice within 60 days after the alleged unlawful discriminatory practice occurs.

   
   

2. Processing of the charge, investigation, conciliation and issuance of complaint or notice of dismissal. Within four working days of receipt of an unlawful discriminatory practice charge, the Human Relations Officer shall serve upon the individual charged with a violation, hereinafter referred to as the respondent, a copy of the charge and a written resume setting forth the rights of the parties

   including but not limited to the right of a fair and full hearing on the matter.

   
   

   1. Upon receipt of the charge, the Human Relations Officer shall commence an investigation and the investigation of the charge shall be completed within 60 days.

      
      

   2. The respondent may make a written or oral response to the charge at any time during the investigation.

      
      

      Upon the completion of the investigation by the Human Relations Officer a determination shall be made as to whether or not there is reasonable cause to believe that there has been a violation of this article. If the Human Relations Officer determines that no violation has occurred, a notice of dismissal shall be issued and served upon the charging party and the respondent within ten days after the completion of the investigation. If the Human Relations Officer finds that there is reasonable cause to believe that a violation of this article has occurred, a memorandum shall be issued to the parties containing the findings of fact, analysis and conclusions upon which the reasonable cause determination has been based. An intensive conciliation attempt will be made by the Human Relations Officer, such attempt to be completed within 30 days. If at the end of this conciliation attempt, conciliation has not been accomplished, the Human Relations Officer shall issue a complaint and serve the same upon the charging party and the respondent. The complaint shall be issued no later than 40 days after the completion of the investigation made pursuant to subsection (b)(1) of this section. . . .

      
      

      Petitioner's March 1, 2001, initial filing with the City was clearly within 60 days of the alleged discriminatory acts and so satisfied the requirement of Section 15-45(a) of the City

      Code. However, Section 15-45(b)(1) of the City Code provides that the City's human relations officer must conduct and complete an investigation of the charge within 60 days of the initial filing. In the instant case, the human relations officer signed the investigative report on June 2, 2003, two years and three months after the initial filing.

      It might be contended that Respondents waived the late filing of the investigative report by agreeing to participate in the conciliation process after the human relations officer found probable cause. Even assuming such a waiver, Section 15-45(b) of the City Code provides that the conciliation must be attempted within 30 days of the issuance of the investigative report, and if the conciliation fails, a complaint must be issued within 40 days of the issuance of the investigative report. In the instant case, the City issued an Invitation to Participate in Conciliation on August 4, 2003, more than two months after the investigative report was issued. The conciliation was scheduled for October 21, 2003, more than four months after the investigative report was issued. Finally, the Complaint was filed on May 18, 2004, nearly one year after the investigative report was issued and more than three years after the filing of the initial charges by Petitioner.

      Respondents also point to Section 15-49 of the City Code, which provides for limitations of actions under Article II, Chapter 155/ of the City Code, as follows:

      Section 1-8 of this Code shall not apply to the provisions of this article. The prosecution of any offense committed against or in violation of any provisions of this article shall be commenced within two years after the offense shall have been committed.

      
      

      Section 1-8 of the City Code provides a general limitation of one year for the prosecution of violations of the City Code or ordinances that are not otherwise governed by State law. Even under the more generous two-year period provided by Section 15-49 of the City Code, the Complaint in this matter is time- barred.

      In its response to the Motion, the City concedes, as it must, that the time frames in Section 15-45 of the City Code were not met. As to Section 15-49 of the City Code, the City's response states:

      This case is not being prosecuted as a municipal ordinance violation offense. This case is being processed as a complaint of discrimination brought under Title VII, Pinellas County Code Chapter 70 and

      St. Petersburg City Code Chapter 15. Therefore, Section 15-49 does not apply to this case and does not require dismissal of this action.

      
      

      This portion of the response is self-contradictory to the extent it is comprehensible at all. Reduced to its essence,

      without the distracting references to Title VII and the County Code, the City's argument appears to be that the express limitations' provision of Article II, Chapter 15 of the City Code, does not apply because this case is being prosecuted under Article II, Chapter 15 of the City Code. To state the proposition is to refute it.

      The City places ultimate reliance on Section 15-44 of the City Code, which sets forth procedural rules and provides as follows, in relevant part:

3. Charges, complaints or powers not invalidated by failure to act within specified time. Notwithstanding any other provisions of this article, if the hearing examiner, Human Relations Officer or the Board, when acting on a charge or complaint, is required to perform some act within a particular time period and the hearing examiner, Human Relations Officer or the Board fails to do the act within the required time period, that failure will not invalidate further proceedings on such charge or complaint and that failure shall not invalidate any of the powers of the Human Relations Officer or the Board provided that such required act is performed within a reasonable time. (Emphasis added.)

   
   

   Without further explication, the City seems to contend that four separate failures to comply with express deadlines, the cumulative result of which is that this case arrived at DOAH some three years and four months after the initial Complaint was filed, constitute "a reasonable time" under the quoted ordinance.

   Respondents' reply to this proposition cannot be improved upon and is adopted herein:

   Where a statute does not define words of common usage, the words must be given their plain and ordinary meaning. See Southeastern Fisheries Ass. v. Dept. of Natural Resources, 453 So. 2d 1351, 1353 (Fla. 1984). Further, a basic rule of statutory construction states that courts should not construe a statute in a manner that leads to an absurd result. Baldwin v. State, 857 So. 2d 249, 251 (Fla. 2d DCA

   2003). Here, the phrase "reasonable time" surely is commonly used, and its plain and ordinary meaning cannot be two years or three years, particularly in the context of required action by an investigative body charged with investigating and filing a complaint. Again, the City did not miss its filing deadline by a matter of days or even months, but years, and to strain the plain and ordinary meaning of "reasonable time" to that extreme would lead to an absurd result.

   
   

   Section 15-44(c) of the City Code must be read as the City's attempt to prevent substantive injustice due to a minor procedural defect in the investigative or prosecutorial processes. A three-year delay is not a minor defect, nor is it a "reasonable time" under the plain and ordinary meaning of that phrase.

   WHEREFORE, based on the foregoing, it is

   
   

   RECOMMENDED that the City of St. Petersburg enter a final order dismissing the Complaint against Respondents filed on May 18, 2004.

   DONE AND ENTERED this 21st day of September, 2004, in Tallahassee, Leon County, Florida.

   S

   LAWRENCE P. STEVENSON

   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 September, 2004.

   
   

   ENDNOTES

   
   

   1/ Section 15-45(f)(4) of the City Code provides that the hearing examiner (in this instance, an Administrative Law Judge of DOAH) shall enter a "recommended adjudicative order" in these proceedings.

   2/ 42 U.S.C. Section 2000e-5(b) provides:

   Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on- the-job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the "respondent") within ten days, and shall

   make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and

4. of this section. If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d) of this section, from the date upon which the Commission is authorized to take action with respect to the charge.

3/ 42 U.S.C. Section 2000e-5(c) provides:

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.

4/ 42 U.S.C. Section 2000e-5(d) references charges filed by a member of the EEOC, a situation not relevant to this case.

5/ Chapter 15 of the City Code deals generally with "Human Rights." Article II therein governs "Discrimination" and contains all of the Chapter 15 provisions discussed in this Order.

COPIES FURNISHED:

Aram P. Megerian, Esquire Cole, Scott & Kissane, P.A. Bridgeport Center, Suite 750 5201 West Kennedy Boulevard Tampa, Florida 33609

Robin Moffitt

2009 San Sebastian Way, South Clearwater, Florida 33763

Leon Russell, Executive Director Pinellas County Office of Human Rights

400 South Fort Harrison Avenue Fifth Floor

Clearwater, Florida 33756

W. Oliver Melvin, Compliance Officer Pinellas County Office of Human Rights

400 South Fort Harrison Avenue Fifth Floor

Clearwater, Florida 33756

Jeannine S. Williams, Esquire Assistant City Attorney

City of St. Petersburg Post Office Box 2842

St. Petersburg, Florida 33731

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Summary Recommended Order of Dismissal. Any exceptions to this Summary Recommended Order of Dismissal should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-002302

Orders for Case No: 04-002302