STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARLENE JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 99-3871

)

CHAUTAUQUA OFFICE OF ) PSYCHOTHERAPY AND EVALUATION, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This case came before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, for consideration of a Motion to Dismiss Petition filed by Respondent.

STATEMENT OF THE ISSUES

The issues in this case are: (1) whether Petitioner filed her complaint with the Florida Commission on Human Relations within 365 days of the alleged discriminatory event; and (2) whether Petitioner requested an administrative hearing within 215 days of the filing of her complaint.

PRELIMINARY STATEMENT

On or about May 4, 1998, Petitioner, Earlene Johnson, signed and filed a Charge of Discrimination alleging that Respondent, Chautauqua Office of Psychotherapy and Evaluation, had discriminated against her on the basis of her race. By letter dated August 3, 1999, Ms. Johnson requested that the matter be

referred to the Division of Administrative Hearings. The request for hearing was filed by the Florida Commission on Human Relations with the Division of Administrative Hearings on September 14, 1999. The request was assigned to the undersigned.

Subsequent to the filing of this matter, Respondent filed a Motion to Dismiss Petition. The Motion was predicated on the allegation that Ms. Johnson had not filed her Charge of Discrimination within one year of the date of the alleged discrimination.

After giving Ms. Johnson an opportunity to be heard on the Motion, the parties were informed that the Motion would be granted by entry of this Recommended Order of Dismissal.

FINDINGS OF FACT

1. Petitioner, Earlene Johnson, is an African-American.

   
   

2. Prior to December 1996 Ms. Johnson filed a grievance when Respondent, Chautauqua Office of Psychotherapy and Evaluation (hereinafter referred to as "Chautauqua"), failed to promote her.

3. On December 4, 1996, Ms. Johnson was terminated from employment with Chautauqua.

4. At some time after her termination, Ms. Johnson engaged legal counsel with the intent of filing a complaint of discrimination with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). Toward this end, Ms. Johnson signed an Intake Questionnaire and an Affidavit on

   October 30, 1997. No copy of the Intake Questionnaire or Affidavit was provided by the Commission to Chautauqua within five days of their receipt.

5. On May 4, 1998, more than one year after the alleged acts of discrimination, Ms. Johnson was sent a Charge of Discrimination by Joe Williams, an Intake Counselor for the Commission. Mr. Williams instructed Ms. Johnson of the following in the cover letter which accompanied the Charge of Discrimination:

   In order for the Commission to proceed further with this matter, you must:

   
   

   1. Review the complaint;

      
      

   2. Sign the complaint in the designated spaces in the presence of a notary public;

      
      

   3. Return the signed complaint to this office in the enclosed self-addressed envelope.

      
      

      Because a complaint of discrimination must be filed within the time limitation imposed by law (in most cases the limitation is 365 days from the date of the alleged discriminatory act), I urge you to complete these three steps as soon as possible.

      
      

      . . . .

      
      

6. Ms. Johnson signed the Charge of Discrimination sent to her by Mr. Williams on the date it was sent, May 4, 1998.

   Ms. Johnson's Charge of Discrimination was not, therefore, filed within 365 days of the date of the last act of discrimination

   alleged by Ms. Johnson: Ms. Johnson's termination from employment on December 4, 1996.

7. When the Commission failed to complete its investigation of Ms. Johnson's Charge of Discrimination within a reasonable period of time, Ms. Johnson requested an administrative hearing by letter dated August 3, 1999. Ms. Johnson's request for hearing was made one day short of one year and three months after the Charge of Discrimination was filed with the Commission.

8. The Commission filed Ms. Johnson's request for hearing with the Division of Administrative Hearing on September 14, 1999.

9. Chautauqua filed a Motion to Dismiss Petition.

   
   

10. An Order to Show Cause was entered after Ms. Johnson failed to respond to the Motion. Ms. Johnson was ordered to answer the following questions:

    1. Did the events that Petitioner believes constitute discrimination occur on or before December 4, 1996? If not, when did the events take place?

    2. Did Petitioner file a Charge of Discrimination with the Florida Commission on Human Relations on or about May 4, 1998 (a copy of a Charge of Discrimination which appears to have been filed by Petitioner is attached to this Order.) If not, when was it filed?

    3. If the Charge of Discrimination filed with the Florida Commission on Human Relations was filed more than one year after the events which Petitioner believes constitute discrimination occurred, why wasn't the Charge filed sooner. Petitioner should provide a detailed answer to this question.

11. Ms. Johnson responded to the questions asked in the Order to Show Cause as follows:

    1. The events that petitioner believe [sic] constitutes discrimination occurred before and on December 4, 1996.

       
       

    2. Petitioner signed a complaint of Discrimination which was signed on October 30, 1997 which was filed by

       Petitioner's former Lawyer. Which a copy is attached [sic].

       
       

    3. Petitioner's Lawyer filed a charge of Discrimination less than one year before the events which the Petitioner believes constitutes [sic] Discrimination. Which a copy is attached [sic].

       
       

    4. Petitioner's former Lawyer [sic] address and phone number is [sic] attached.

    
    

12. Attached to Ms. Johnson's response to the Order to Show Cause was a copy of an Affidavit and an Intake Questionnaire signed October 30, 1997, a letter dated January 10, 1998, from Ms. Johnson's legal counsel, and the May 4, 1998, letter from Mr. Williams asking Ms. Johnson to sign a Charge of Discrimination.

13. It is clear from Mr. Williams' letter that no Charge of Discrimination was filed by Ms. Johnson with the Commission until more than 365 days after the alleged act of discrimination, December 4, 1996.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes (1997).

15. Section 760.11(1), Florida Statutes, provides, in pertinent part, the following:

    (1) Any person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with the commission within 365 days of the alleged violation . . . . The commission, within 5 days of the complaint first being filed, shall by registered mail send a copy of the complaint to the person who allegedly committed the violation [Emphasis

    added].

    
    

16. Ms. Johnson did not file her Charge of Discrimination until more than 365 days after the alleged incidents of discrimination in this case occurred. Ms. Johnson's Charge of Discrimination is, therefore, barred by Section 760.11(1), Florida Statutes.

17. Additionally, Sections 760.11(3) and (8), Florida Statutes, provide the following:

    (3) Except as provided in subsection (2), the commission shall investigate the allegations in the complaint. Within 180 days of the filing of the complaint, the commission shall determine if there is reasonable cause to believe that discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992

    . . . .

    
    

    (8) 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.

18. Section 760.11(4), Florida Statutes, provides the following procedures which an aggrieved person may follow if the commission determines that there was reasonable cause or if the commission fails to act within 180 days of the filing of the complaint:

    1. Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or

       
       

    2. 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 pursuant to this act.

    
    

19. The Commission failed to make a determination of whether reasonable cause existed in this case within 180 days of the date Ms. Johnson filed her complaint (May 4, 1998). Therefore, pursuant to Section 760.11(8), Florida Statutes,

    Ms. Johnson had the right to pursue the procedures of Section 760.11(4), Florida Statutes, 180 days after she filed her complaint: November 2, 1998.

20. The time within which Ms. Johnson could pursue the procedures of Section 760.11(4), Florida Statutes, is limited. Sections 760.11(5) and (6), Florida Statutes, provide the time limits within which an aggrieved person may exercise the procedures provided in Section 760.11(4), Florida Statutes:

    1. . . . . A civil action brought under this section shall be commenced no later than

       1 year after the date of determination of reasonable cause by the commission. . . .

       
       

    2. . . . . An administrative hearing pursuant to paragraph (4)(b) must be requested no later than 35 days after the date of determination of reasonable cause by the commission. . . .

    
    

21. Pursuant to Section 760.11(5), Florida Statutes, Ms. Johnson was required to file a civil action pursuant to

    Section 760.11(4)(a), Florida Statutes, on or before November 2, 1999. Pursuant to Section 760.11(4)(b), Florida Statutes,

    Ms. Johnson was required to request an administrative hearing on or before December 7, 1998.

22. Johnson did ultimately exercise her rights under Section 760.11(8), Florida Statutes, by requesting an administrative hearing pursuant to Section 760.11(4)(b), Florida Statutes. She did so, however, more than 35 days after the date of the deemed determination of reasonable cause on her complaint. Ms. Johnson's action is, therefore, barred by Section 760.11(6), Florida Statutes.

23. The First and Fourth District Courts of Appeal have addressed the impact of the time limitation for acting pursuant to Section 760.11(4), Florida Statutes, in several cases. Both Courts have concluded that a civil action not brought within the time limit of Section 760.11(5), Florida Statutes, is barred. Joshua v. City of Gainesville, 734 So. 2d 1068 (Fla. 1st DCA 1999); Adams v. Wellington Regional Medical Center, 727 So. 2d

    1139 (Fla. 4th DCA 1999); and Milano v. Moldmaster, 703 So. 2d 1093 (Fla. 4th DCA 1997).

24. There is no apparent reason why the reasoning of the Courts in Joshua, Adams, and Milano, should not also apply in this case. Like the institution of a civil action pursuant to Section 760.11(4)(a), Florida Statutes, there is a time limitation on requesting an administrative hearing pursuant to Section 760.11(4)(b), Florida Statutes. Ms. Johnson failed to meet that time limitation.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint of discrimination filed in this case by Earlene Johnson.

DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

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 24th day of May, 2000.

COPIES FURNISHED:

Earlene Johnson

185 Cook Avenue

DeFuniak Springs, Florida 32433

Robert P. Gaines, Esquire Beggs & Lane

Post Office Box 12950 Pensacola, Florida 32576-2950

Sharon Moultry, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road, Building F Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

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: 99-003871

Orders for Case No: 99-003871