STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD L. SCHMITT, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3135

)

CITY OF FT. LAUDERDALE )

POLICE DEPARTMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before James E. Bradwell, Hearing Officer with the Division of Administrative Hearings, on February 1, 1985, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: William E. Platow, Esquire

Panza & Maurer

Suite 200, 4520 Northwest 18 Avenue Ft. Lauderdale, Florida 33334

For Respondent: Thomas J. Ansbro, City Attorney

Post Office Drawer 14250

Ft. Lauderdale, Florida 33302 and

Gordon D. Rogers, Esquire

Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A. Suite 1800, One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

ISSUE

The issue presented for decision herein is whether or not the Petitioner timely filed his charge of unlawful employment discrimination with the Florida Commission on Human

Relations. 1/

FINDINGS OF FACT

1. Based upon the evidence adduced at the hearing herein, including Petitioner's testimony, the following relevant facts are found.

2. Petitioner, Richard L. Schmitt, was initially employed by the Respondent, City of Ft. Lauderdale Police Department, as a police officer on January 7, 1980. Petitioner's employment relationship was terminated on February 11, 1983.

   
   

3. On February 6, 1984, Petitioner filed the instant charge of employment discrimination with the Florida Commission on Human Relations.

   
   

4. Petitioner acknowledges that he was aided and assisted by counsel in filing unlawful discrimination charges since his separation from employment with Respondent, City of Ft. Lauderdale.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

6. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

7. Section 760.10(10), Florida Statutes (1983), provides in pertinent part as follows:

   
   

   (10) Any person aggrieved by a violation of this section may file a complaint with the Commission within 180 days of the alleged violation, naming the employer, employment agency, labor organization, or joint labor-management committee, or, in the case of an alleged violation of sub- section (5), the person, responsible for the violation and describing the violation. The Commission, a Commissioner, or the attorney general may in like manner file such a complaint.

   
   

   Rules 22T-9.01(2) and 22T-9.06(3), Florida Administrative Code (1984), likewise require any complaint to be filed with the Florida Commission on Human Relations within one hundred eighty (180) days after the alleged violation. Inasmuch as the evidence herein reveals, without dispute, that the Petitioner's charge was first filed with the Florida Commission on Human Relations approximately three hundred sixty (360) days after termination of Petitioner's employment with the Respondent, the Florida Commission on Human Relations lacks jurisdiction over this charge and it therefore must be summarily dismissed. Kourtis v. Eastern Airlines, 409 So.2d 139 (Fla. 4th DCA, 1982). Termination of employment is a single act which does not constitute a continuing violation. McFarland v.

   Brevard County Board of County Commissioners, 4 FALR 999-A (FCHR No. 80-1042, 1982)

   
   

8. Petitioner's appeal of his termination to the Civil Service Board did not toll the 180 day limitations period. See, for example, Delaware State College v. Ricks, 449 U.S. 250 (1980) and International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976)

9. Based thereon, I shall recommend that the complaint and charge herein be dismissed inasmuch as it is time-barred and there was no equitable tolling of the requirement of filing a timely charge with the Florida Commission on Human Relations. 2/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing the charge filed herein by Petitioner.

RECOMMENDED this 21st day of February, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 21st day of February, 1985.

ENDNOTES

1/ Sometimes referred to herein as the Commission or FCHR. 2/ Perez v. Dana Corporation, 545 F. Supp. 950 (1982).

COPIES FURNISHED:

William E. Platow, Esquire Donald A. Griffin Panza & Maurer Director

Suite 200, 4520 NW 18 Avenue Commission on Human Relations Ft. Lauderdale, Fl. 33334 325 John Knox Road

Suite 240, Building F Thomas J. Ansbro, Esquire Tallahassee, Fl. 32303

P.O. Drawer 14250

Ft. Lauderdale, Fl. 33302

Gordon D. Rogers, Esquire Muller, Nintz, Kornreich, et al Suite 1800, One Biscayne Tower Two S. Biscayne Blvd.

Miami, Fl. 33131

Docket for Case No: 84-003135

Orders for Case No: 84-003135