STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM H. MACK, JR.,

Petitioner,

vs.

NORTH FLORIDA EVALUATION AND TREATMENT CENTER,

Respondent.

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) Case No. 05-1775

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RECOMMENDED ORDER OF DISMISSAL

Respondent filed a Motion to Dismiss based on Petitioner’s alleged failure to file his Petition for Relief within four years of the time his cause of action accrued, as required by Section 95.11(3)(f), Florida Statutes. Petitioner filed a response to the Motion to Dismiss based on his receipt of a “no cause” determination from the Florida Commission on Human Relations and the filing of his Petition For Relief within 35 days thereof.

APPEARANCES

For Petitioner: William H. Mack, Jr., pro se

Post Office Box 1373

High Springs, Florida 32643

For Respondent: Dennis M. Flath, Esquire

1200 Northeast 55th Boulevard Gainesville, Florida 32641-2759

STATEMENT OF THE ISSUE

Whether this action is barred by the four-year statute of limitations. § 95.11(3)(f), Fla. Stat.

PRELIMINARY STATEMENT

On May 31, 2005, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Petitioner had been discriminated against on the basis of his race and disability during his employment and retaliated against when he was terminated in April 2000. On May 6, 2005, FCHR entered a Determination: No Cause on the Charge of Discrimination.

Thereafter, Petitioner filed a Petition For Relief essentially alleging the same basis as his earlier Charge of Discrimination. The Petition For Relief was forwarded to the Division of Administrative Hearings for a formal hearing.

FINDINGS OF FACT

1. After review of the file, the pleadings and relevant statutory and case law it is clear that Petitioner was terminated from his employment with North Florida Evaluation and Treatment Center on April 27, 2000, for alleged excessive absences. Petitioner’s termination was the last adverse employment action taken by his employer that could possibly give rise to any cause of action for employment discrimination based on race, disability or retaliation.

2. Section 95.11(3)(f), Florida Statutes, bars a cause of action based on a statutory right if an action on that cause has not been brought within four years of the date the last action occurred that gave rise to the cause of action. As indicated above, the last employment action taken by Petitioner’s employer occurred on April 27, 2000. Four years from that date was April 26, 2004.

3. Petitioner filed his Charge of Discrimination with FCHR on May 31, 2000.

4. 180 days elapsed with no determination on Petitioner’s charge being made by FCHR.

5. On May 6, 2005, four years after Petitioner’s termination, FCHR entered a Notice of Determination: No Cause and advised Petitioner of his right to file a Petition For Relief within 35 days pursuant to Section 760.11, Florida Statutes.

6. Petitioner filed his Petition for Relief on or around May 11, 2005, within the 35-day period, but well after the Four-year statute of limitations had expired. Since over four years have passed since Petitioner’s termination, Petitioner’s cause of action is barred by Section 95.11, Florida Statutes, and should be dismissed.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.

8. In this case Chapter 760 provides the statutory method by which a Petitioner may proceed with a cause of action based on employment discrimination. Four statutory provisions, Sections 760.11(3), 760.11(4), 760.11(5) and 760.11(8) are involved in creating that framework. Each section describes a separate step in the procedure that is triggered once an individual files a Charge of Discrimination with FCHR. Section 760.11(3) requires the Commission to make a reasonable cause determination within 180 days of the filing of a claim. Section 760.11(4) explains steps that claimants may take if FCHR determines there is reasonable cause to believe that the discriminatory action occurred. Section 760.11(5) outlines the right to file and the limitations on the filing of civil actions. Section 760.11(8) describes how claimants who do not receive a reasonable cause determination within 180 days may proceed.

9. Section 760.11(4) provides:

   
   

   In the event that the commission determines 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: (a) Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or (b) Request an administrative hearing under ss. 120.569 and 120.57.

   
   

   The election by the aggrieved person of filing a civil action or requesting an administrative hearing under this subsection is the exclusive procedure available to the aggrieved person if FCHR finds reasonable cause to believe a discriminatory practice has occurred. Section 760.11(8) provides:

   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. It is clear from a plain reading of the language of the Act that a complainant who receives a favorable reasonable cause determination within 180 days from the filing of a complaint with the Commission has one year from the date of determination to bring a civil action. See § 760.11(5), Fla. Stat. What is not clear, however, is what happens when the Commission fails to make a determination within the allotted 180 days or fails to make a timely determination within 180 days.

11. Section 760.11(8) purports to address the above circumstances. However, it is less than clear that a complainant is bound to proceed either to civil court or

    administrative hearing as outlined once 180 days has elapsed from the filing of the initial charge. The statute uses the term “may” which gives a complainant the option to proceed under Section 760.11(4) but does not require one to do so.

12. The Legislature wanted persons who believe they have been the subject of discrimination to go through the administrative process prior to bringing a circuit court civil action.

13. To further these ends, in Section 760.06 the Legislature, created the Florida Commission on Human Relations. Some of the powers of this Commission are:

    (5) To receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice, as defined by the Florida Civil Rights Act of 1992.

    
    

    See § 760.065 (5), Fla. Stat.

    
    

14. The Legislature’s desire that aggrieved persons avail themselves of the remedies provided by the Commission prior to seeking court action. See § 760.07, Fla. Stat. Thus, Section 760.11(8), which allows a complainant to proceed to circuit court or administrative hearing without a reasonable cause determination gives a complainant the option of proceeding to litigation, either civilly or administratively, or await the decision of FCHR.

15. However, the Legislature was well aware of the fact that the Commission did not always make a determination within the 180 days following the filing of a Charge of Discrimination. See Hullinger v.Ryder Truck Rental, Inc., 548 So. 2d (Fla. 1989). The Legislature was also aware that complainants could, under the statute, file a civil or administrative action after that 180-day period had expired or await a preliminary cause determination. See § 760.11(3)-(4), Fla. Stat. “A claimant should not be penalized for attempting to allow a government agency to do its job”. Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). Procedural due process including both notice and the opportunity to be heard requires this type of process. Supra. See also Ellsworth v. Polk County Board of County Commissioners, 780 So. 2d 903 (Fla. 2001).

16. Procedural due process also requires that causes of action be litigated within a reasonable amount of time. In this case, the Legislature has established a four-year time period in which a complainant may bring an action for violation of a statutory right. § 95.11(3)(f), Fla. Stat. The Florida Supreme Court has held that the four-year statute of limitations governing actions involving statutory rights applies to actions brought pursuant to Chapter 760 where FCHR has not made a reasonable cause determination within 180 days. Joshua, supra, and Ellsworth, supra. In this case, FCHR did not make a

determination within 180 days. During that time and after, the four year time period was running and expired on April 26, 2004. Petitioner’s action is barred by the four-year statute of limitations and should be dismissed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 August, 2005.

COPIES FURNISHED:

Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32303-4149

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

Tallahassee, Florida 32303-4149

William H. Mack, Jr. Post Office Box 1373

High Springs, Florida 32643

Dennis M. Flath, Esquire 1200 Northeast 55th Boulevard

Gainesville, Florida 32641-2759

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: 05-001775

Orders for Case No: 05-001775