STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORENZO MCGILL, )

)

Petitioner, )

)

vs. ) CASE NO. 95-6018

)

US MARINE, BAYLINER MARINE )

CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on March 15, 1996, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Lorenzo McGill, Pro Se

Route 7, Box 4096

Quincy, Florida 32351

For Respondent: Kimberly L. King, Esquire

Messer, Caparello, Madsen, Goldman and Metz, P.A.

Post Office Box 1876 Tallahassee, Florida 32302-1876

STATEMENT OF THE ISSUE

Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations, thereby permitting the Division of Administrative Hearings to exercise jurisdiction for the conduct of a formal hearing under the provisions of Section 120.57(1), Florida Statutes.

PRELIMINARY STATEMENT

On December 2, 1994, Petitioner filed a complaint with the Florida Commission on Human Relations charging Respondent with committing an unlawful employment practice.

Following the conduct of an investigation, the Commission issued a No Cause Determination, dated October 11, 1995.

Petitioner filed a Petition For Relief on November 27, 1995. The matter was transmitted by the Commission to the Division of Administrative Hearings on

December 13, 1995, for the conduct of formal administrative proceedings. On January 12, 1996, the Commission forwarded an amended transmittal to the Division of Administrative Hearings.

On March 5, 1996, Respondent's Motion For Recommended Order Dismissing Petition For Relief was filed with the Division of Administrative Hearings. Subsequently this matter came on to be heard upon the threshold issues of timeliness set forth in Respondent's motion.

Petitioner testified in his own behalf and offered no exhibits in evidence.

Two (2) exhibits offered by Respondent were granted official recognition. The hearing was recorded, but a transcript was not prepared.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. On December 13, 1995, and again on January 12, 1996, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding."

   
   

2. The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on December 2, 1994, charging an unlawful employment practice by Respondent.

   
   

3. On October 11, 1995, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice had occurred.

   
   

4. Notice of that determination was served on Petitioner at his Quincy, Florida address by regular mail.

   
   

5. The "Notice of Determination: No Cause" served on Petitioner included the following statement:

   
   

   Complainant may request an administrative hearing by filing a PETITION FOR RELIEF with

   35 days of the date of this NOTICE OF DETER- MINATION: NO CAUSE.

   
   

6. The "Notice of Determination: No Cause" also contained the following statement:

   
   

   If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992).

   
   

7. Petitioner received the Notice of Determination.

8. Sometime after receipt of the notice, Petitioner telephoned the FCHR and spoke with a secretary who again explained the necessity of filing a Petition For Relief to Petitioner within the specified time limits.

   
   

9. Petitioner filed a Petition For Relief on November 27, 1995, approximately 47 days after issuance of the Notice of Determination: No Cause.

   
   

10. No evidence was presented by Petitioner that he did not receive the mail notice of the FCHR determination in a timely fashion sufficient to permit his timely filing of a Petition For Relief.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1) and 760.11(7), Florida Statutes.

    
    

12. Section 760.11, Florida Statutes addresses the administrative and civil remedies that can be invoked by the Petitioner based on an assertion of an unlawful employment practice. The first step is the filing of a complaint with the FCHR, which investigates the complaint and renders an initial determination. This procedure was followed in this case, and the FCHR issued its determination of No Cause on October 11, 1995.

    
    

13. Section 760.11(7), Florida Statutes, describes the administrative remedy available after a no-cause determination, as follows:

    
    

    The aggrieved person may request an administrative hearing under s. 120.57, but any such request must be made within 35 days of the date of determination of [no] reasonable cause . . . If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.

    
    

    Section 760.11(7), Florida Statutes.

    
    

14. Petitioner filed a Petition For Relief on November 27, 1995, approximately 47 days after issuance of the Notice of Determination: No Cause. Even if it is deemed that the period of 35 days is extended by FCHR's Rule 60Y- 4.007(2) an additional three days due to service of the notice upon Petitioner by mail, the Petition For Relief is still clearly untimely.

    
    

15. Section 760.11(7), Florida Statutes, requires the timely submission of a request for an administrative hearing, or else the claim is "barred". The Petition for Relief was not timely filed, hence the Petitioner's claim must be deemed barred. Compare, Curtis W. Bartley v. Hospital Corporation of America, DOAH Case No. 94-4973 (FCHR Case No. 93-5376, final order adopting recommended order issued April 28, 1995), and Gloria A. Wright v. HCA Central Florida Regional Hospital, Inc., DOAH Case No. 94-0070 (FCHR Cases No. 93-3143, No. 95- 002, final order adopting recommended order issued January 26, 1995).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 95-6018 and FCHR Case No. 94-E334, for failure to timely file the Petition.

DONE and ENTERED this 18th day of March, 1996, in Tallahassee, Leon County, Florida.

DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th of March, 1996.

COPIES FURNISHED:

Lorenzo McGill Route 7, Box 4096

Quincy, Florida 32351

Kimberly L. King, Esquire

Messer, Caparello, Madsen, et al. Post Office Box 1876

Tallahassee, Florida 32302-1876

Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Ronald M. McElrath, Executive Director Commission on Human Relations

Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 95-006018

Orders for Case No: 95-006018