STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMMI M. GARLAND, )

)

Petitioner, )

)

vs. ) Case No. 00-1797

)

DEPARTMENT OF STATE, )

)

Respondent. )

)

SUMMARY RECOMMENDED ORDER

This cause came on for consideration by Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, pursuant to the circumstances related below.

APPEARANCES

For Petitioner: Tammi M. Garland, pro se

263 Ross Road

Tallahassee, Florida 32310

For Respondent: Deborah K. Kearney, Esquire

Kerey Carpenter, Esquire The Capitol, Lobby Level 10

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUE

May Petitioner proceed to a hearing on the merits of her charge of employment discrimination or does the untimeliness of her Petition for Relief bar her claim?

PRELIMINARY STATEMENT

The Petition for Relief from an unlawful employment practice (racial discrimination) was referred to the Division of Administrative Hearings on or about April 27, 2000.

On May 18, 2000, Respondent filed its Answer and Motion to Dismiss Petition for Relief. Petitioner filed no response in opposition in the time provided by Rule 28-106.204, Florida Administrative Code.

A telephonic conference call was convened on June 9, 2000. At that time, Petitioner conceded all factual matters alleged in Respondent's Motion to Dismiss except that she "knew [she] mailed her Petition for Relief to the Florida Commission on Human Relations in time for it to arrive on time."

Accordingly, the parties were given 10 days in which to submit a certified copy of the Petition for Relief clearly showing the date the Petition for Relief had been stamped-in by the Clerk of the Florida Commission on Human Relations, or alternatively, an affidavit of the Clerk with the same information.

Respondent filed the Commission's Certificate of Authenticity of Documents, with attachments, on June 13, 2000.

FINDINGS OF FACT

1. On March 10, 1997, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission), alleging that Respondent Department of State had

   discriminated against her because of her race (Black) when it had discharged her on October 1, 1996.

2. The Commission concluded its investigation into the matter, and on January 31, 2000, the Commission issued its "Determination: No Cause."

3. A "Notice of Determination: No Cause" was mailed by the Commission to Petitioner on January 31, 2000. It contained the following statements:

   Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE.

   
   

   If the Complainant fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1993, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). (Emphasis in original).

   
   

4. The Commission enclosed a blank "Petition for Relief" form for Petitioner's convenience with its January 31, 2000 Notice.

5. The thirty-fifth day after the date of the Notice would have been March 6, 2000.

6. Petitioner did not request an extension of time in which to file her Petition for Relief.

7. Petitioner's Petition for Relief was stamped-in by the Clerk of the Commission on Monday, March 20, 2000, constituting a filing date with the Commission of 49 days after the

   "Determination: No Cause" and "Notice of Determination: No

   
   

   Cause." days.	The	Petition for Relief was untimely by 14 calendar
   		CONCLUSIONS OF LAW
   8.	The	Division of Administrative Hearings has jurisdiction

   
   

   to determine the issues now before it pursuant to Sections 120.57(1) and 760.11(7), Florida Statutes.

   1. Respondent asserts that Petitioner's claim is barred for two reasons. First, it asserts that because Petitioner failed to file her Petition for Relief within 35 days from the date the Commission issued its "Notice of Determination: No Cause," the Petition was clearly filed after the statutory deadline. Secondly, Respondent asserts that the Petition also should be dismissed because the 35-day time limitation did not begin to run from the Notice, which itself was allegedly untimely under Section 760.11(8), Florida Statutes, but, rather, the 35-day time limitation began to run from the expiration of the 180-day period during which the Commission was required to complete its investigation and issue its Determination, pursuant to Section 760.11(8), Florida Statutes.

   2. Section 760.11(7), Florida Statutes, provides, in pertinent part:

      The aggrieved person may request an administrative hearing under Section 120.57, but any such request must be made within 35 days of the date of the determination [no] reasonable cause . . . If the aggrieved

      person does not request an administrative hearing within 35 days, the claim will be barred.

      
      

   3. Petitioner was clearly advised of this statutory requirement in the "Notice of Determination: No Cause." There has been no affirmative showing that Petitioner was misled as to the time frame for filing or the filing requirements.

   4. Rule 60Y-4.007(2), Florida Administrative Code, provides:

      1. In computing any period of time referred to in the rules of the Commission or contained in any order of the Commission, the day of the act, event, or occurrence from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday observed by the State of Florida, in which event the time period shall run until the end of the next day which is neither a Saturday, Sunday, nor legal holiday observed by the State of Florida. All time periods are measured by calendar days except where working days are expressly indicated.

         
         

      2. Whenever a party has a right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon that party and such notice or paper is served by mail, 3 days shall be added to the prescribed period.

         
         

   5. Even if the period of 35 days is extended by three days due to the Commission's Rule 60Y-4.007(2), Florida Administrative Code, the Petition was filed 11 calendar days after the deadline. The thirty-fifth day, extended by three days for mailing, fell on

      March 9, 2000, a Wednesday, which was not a legal holiday. The Petition for Relief was filed on March 20, 2000.

   6. There has been no affirmative showing of excusable neglect by Petitioner.

   7. The Petition for Relief was not timely filed. The claim is deemed barred and should be dismissed. See McGill v. U.S. Marine/Bayliner Marine Corp., DOAH Case No. 95-6018 (Recommended Order entered March 18, 1996; Final Order received by DOAH July 3, 1997, but date of entry of Final Order unavailable), wherein a petition filed 47 days after notice was dismissed as untimely; Hall v. Boeing Aerospace Operation, DOAH Case No. 94-6976 (Recommended Order entered March 29, 1995; Final Order received by DOAH on June 19, 1997, but date of entry of Final Order unavailable), wherein a petition filed one day past the statutory deadline was dismissed as untimely; Wright v. HCA Central Florida Regional Hospital, Inc., DOAH Case No. 94-0070 (Recommended Order entered July 27, 1995; Final Order entered January 26, 1995), wherein a 20-day late petition was dismissed; and Pusey v. Knapp, DOAH Case No. 96-3321 (Recommended Order entered November 25, 1996; Final Order entered October 16, 1997), holding that failure to file a petition within an extension of time granted by the Human Relations Commission required dismissal of the Petition absent proof of equitable tolling or excusable neglect.

   8. Because the jurisdictional issue may be disposed of upon Respondent's first argument, it is not necessary to address its second argument.1

RECOMMENDATION

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 Petition for Relief in this cause.

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

ELLA JANE P. DAVIS

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 July, 2000.

ENDNOTE

1/ Respondent cited these cases which would support the second argument at least as to a bar to Circuit Court proceedings under Chapter 760, Florida Statutes, or in federal District Court under EEOC legislation: Joshua v. City of Gainesville, 734 So. 2d 1068 (Fla. 1st DCA 1999), rev. granted, 745 So. 2d 1285 (Fla. 1999); Adams v. Wellington Regional Medical Center, Inc., 727 So. 2d 1139 (Fla. 4th DCA 1999); Milano v. Moldmaster, 703 So. 2d 1093 (Fla. 4th DCA 1997); Digrio v. Pall Aeropower Corp., 19 F. Supp. 2d 1304 (M.D. Fla. 1998); Choate v. Community Health Centers of Pinellas, Inc., 93 F. Supp. 2d 1318 (M.D. Fla. 2000).

COPIES FURNISHED:

Tammi M. Garland

263 Ross Road

Tallahassee, Florida 32310

Deborah K. Kearney, Esquire Kerey Carpenter, Esquire Kearney & Carpenter

The Capitol, Lobby Level 10 Tallahassee, Florida 32310

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

325 John Knox Road

Tallahassee, Florida 32303-4149

Sharon Moultry, Agency Clerk

Florida 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 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: 00-001797

Orders for Case No: 00-001797