STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIMROD AMBROISE,

Petitioner,

vs.

O'DONNELL'S CORPORATION,

Respondent.

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) Case No. 02-2762

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 23, 2004, in Orlando, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Tim O’Donnell, President

O’Donnell Corporation 661 Lakewood Drive

Orlando, Florida 32803 STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice when it terminated Petitioner's employment in September 2000.

PRELIMINARY STATEMENT

This proceeding was initiated on July 9, 2002, when the Florida Commission on Human Relations (Commission) received a Petition for Relief (Petition) from Petitioner. On July 10, 2002, the Commission referred the Petition to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge to "conduct all necessary proceedings required under the law and submit recommended findings to the Commission." Thereafter, a final hearing was scheduled for September 24, 2002.

On August 1, 2002, Respondent filed a letter in which it requested that the Petition be "denied" because it was untimely under Section 760.11(7), Florida Statutes (2003). The letter was treated as a motion to dismiss, and on August 2, 2002, the undersigned issued an Order to Show Cause which gave Petitioner the opportunity to "describe the circumstances surrounding [his] receipt of the determination letter from the Commission, and any other facts and/or argument that Petitioner considers relevant to the issues raised in Respondent's letter."

Petitioner filed a response to the Order to Show Cause on August 12, 2002, in which he acknowledged that his Petition was not mailed until June 13, 2002, which was 36 days after the "no cause" determination issued by the Commission on May 8, 2002.

Petitioner asserted in the response that the delay in his

submittal of the Petition was due to his "inability to obtain counsel."

A telephonic hearing was held on Respondent's motion to dismiss on August 23, 2002, at which the parties were afforded an opportunity to present argument on the motion. Respondent's motion to dismiss was granted by Order dated August 26, 2002, and a Recommended Order of Dismissal was issued on September 5, 2002. The Recommended Order of Dismissal concluded that the Petition was untimely based upon the plain language of Section 760.11(7), Florida Statutes (2003), and the Uniform Rules of Procedure; that the Petition's late filing could not be saved by the doctrine of excusable neglect since it was not even mailed until after the statutory period; that the Petitioner's late filing was not saved by the doctrine of equitable tolling; and that the Commission should dismiss the Petition as untimely.

On January 2, 2003, the Commission issued its Order Remanding Petition for Relief from an Unlawful Employment Practice (Remand Order). The Remand Order rejected the undersigned's construction of Section 760.11(7), Florida Statutes (2003), and the Uniform Rules, and concluded that the untimely filing of the Petition was saved by excusable neglect since it was mailed within the statutory period as construed by the Commission. The Remand Order returned the case to the

Division for a formal administrative hearing on the merits of the Petition.

On January 6, 2003, the undersigned issued an Order Reopening Case and Requiring Report from the Parties.

Thereafter, the final hearing was scheduled for March 26 and 27, 2003. The final hearing was subsequently cancelled after Respondent appealed the Remand Order to the Fifth District Court of Appeal. On February 28, 2003, this case was placed in abeyance pending the disposition of Respondent's appeal.

On November 7, 2003, the Fifth District issued its opinion. See O'Donnell's Corp. v. Ambroise, 858 So. 2d 1138 (Fla. 5th DCA 2003). The Court dismissed Respondent's appeal based upon its determination that the Remand Order is not an appealable order. The Court did not address the merits of the Remand Order.

The final hearing was rescheduled for and held on

January 23, 2004. Respondent was represented at the hearing by Tim O'Donnell, who is not a lawyer. Mr. O'Donnell was authorized to appear as the qualified representative for Respondent by Order dated December 11, 2003.

Petitioner did not appear at the hearing and, therefore, did not present any witnesses or offer any exhibits. In light of Petitioner’s failure to appear, Respondent chose not to present any witnesses or offer any exhibits.

The court reporter retained by the Commission also failed to appear at the hearing. A tape recording of the hearing was made and is being transmitted to the Commission with this Recommended Order. The recording was made on a Sony

"Confer-Corder BM-246." That device supposedly makes the tape easier to transcribe, but the tape can apparently only be played on that device or something similar.

Respondent waived its right to submit a proposed recommended order.

FINDINGS OF FACT

1. This case arises out of a Charge of Discrimination (Charge) filed by Petitioner with the Commission on August 16, 2001.

2. Petitioner alleged in the Charge that Respondent discriminated against him based upon his race when it terminated his employment in September 2000. Respondent denied the allegations in the Charge and contends that it does not discriminate on the basis of race or any other factor.

3. On May 8, 2002, a "no cause" determination was issued by the Commission after its investigation of the allegations in the Charge. The determination states that "there is no reasonable cause to believe that an unlawful employment practice has occurred."

4. The "no cause" determination and a Notice of Determination (Notice) were mailed to Petitioner on May 8, 2002. The Notice informed Petitioner of his right to request an administrative hearing by filing a Petition within 35 days of the date of the Notice, and it further informed Petitioner that his claim "will be dismissed" if it is not timely filed.

5. The Commission received Petitioner’s Petition on

   
   

   July 9, 2002, which is 62 days after the date of the "no cause" determination and the Notice. The Petition had been mailed by Petitioner on June 13, 2002, which is 36 days after the date of the "no cause" determination and the Notice. The delay in the delivery resulted from Petitioner mailing the Petition to the Commission’s old address.

6. Petitioner had due notice of the date, time, and location of the final hearing in this case. A Notice of Hearing with that information was mailed to Petitioner’s address of record on December 10, 2003, and Petitioner had communications with the undersigned’s assistant about the upcoming hearing on or about January 9, 2004, and again on January 22, 2004.

7. The undersigned was present at the location designated for the final hearing-–i.e., Hurston Building, Room 2, North Tower--on the date and time set forth in the Notice of Hearing. Respondent’s qualified representative appeared at that location as well.

8. The court reporter retained by the Commission failed to appear and, as a result, it became necessary to conduct the hearing in a different room where a recording device was present. The undersigned and Respondent’s representative vacated the original hearing room at approximately 9:45 a.m., which is 45 minutes after the hearing was scheduled to start.

9. The undersigned posted notes on the door of the original hearing room and at the doorway of the hall leading to that room identifying the room to which the hearing had been moved.

10. The hearing was conducted in the hearing room of Judge of Compensation Claims John Thompson, which is located in

    Room 608 of the North Tower of the Hurston Building.

    
    

11. Petitioner did not appear at the final hearing.

    
    

12. Petitioner did not present any evidence in support of his charge of discrimination.

13. The record of the final hearing was preserved on an audiotape using the recording device in Judge Thompson’s hearing

    room.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction

       
       

14. The Division has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11(7), Florida Statutes (2003).1

    1. Timeliness of the Petition

       
       

15. Even though the Petition was filed 62 days after the date of the "no cause" determination, the Commission concluded in the Remand Order that the Petition was timely based upon the Commission's construction of Section 760.11(7), Florida Statutes, and the Uniform Rules.2 To reach that conclusion, the Commission applied the doctrine of excusable neglect. See Remand Order at 3.3

16. Recent case law makes it clear that the doctrine of excusable neglect no longer saves an untimely request for an administrative hearing. See, e.g., Patz v. Dept. of Health, 2003 WL 23008852 (Fla. 3d DCA Dec. 24, 2003); Whiting v. Dept. of Law Enforcement, 849 So. 2d 1149 (Fla. 5th DCA 2003); Cann v. Dept. of Children & Family Servs., 813 So. 2d 237 (Fla. 2d DCA 2002). The undersigned and the Commission are bound by those appellate decisions.

17. In light of the holdings in Patz, Whiting, and Cann, and because no evidence was introduced to implicate the doctrine of equitable tolling described in Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988), the Commission must dismiss the Petition as untimely. See § 120.569(2)(c), Fla. Stat. (untimely petition for administrative hearing "shall be dismissed"); § 760.11(7), Fla. Stat. ("claim will be barred" if request for administrative is not made within 35 days).

    1. Merits of the Petition

    
    

18. In the event that the Commission does not dismiss the Petition based upon its untimeliness, it becomes necessary to address the merits of the Petition.4

19. Section 760.10(1)(a), Florida Statutes, which is part of the Florida Civil Rights Act of 1992 (Act), provides that it is an unlawful employment practice for an employer:

    To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

20. This language was patterned after Title VII of the Civil Rights Act of 1964, and as a result, case law construing Title VII is persuasive when construing the Act. See, e.g., Florida State University v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Brand v. Florida Power Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

21. Petitioner’s discrimination claim, which is not based upon any direct evidence of discrimination, must be analyzed under the framework established by the United States Supreme Court in McDonnell-Douglass Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine,

    450 U.S. 248 (1981), and reaffirmed and refined in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

22. Under that framework, Petitioner has the initial burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. See Hicks, 509

    U.S. at 506.

    
    

23. In order to establish a prima facie case of wrongful termination, which is the allegation in the Charge, Petitioner must present evidence to establish: (1) that he belongs to a group protected by the Act; (2) that he was qualified for the job from which he was discharged; (3) that he was discharged; and (4) that his former position was filled by a person outside of his protected class or that he was disciplined differently than a similarly-situated employee outside of his protected class. See Jones v. Lumberjack Meats, Inc., 680 F.2d 98, 101 (11th Cir. 1982); Scholz v. RDV Sports, Inc., 710 So. 2d 618, 623 (Fla. 5th DCA 1998); Cesarin v. Dillards, Inc., Order

    No. 03-037 (FCHR Apr. 29, 2003) (adopting the Recommended Order in DOAH Case No. 01-4805, but clarifying what must be established as the first element of the prima facie case).

24. If Petitioner establishes a prima facie case, the burden shifts to Respondent to produce evidence that the adverse employment action was taken for legitimate non-discriminatory reasons. Hicks, 509 U.S. at 506-07. If Petitioner fails to

    establish a prima facie case, the burden never shifts to Respondent.

25. Once a non-discriminatory reason is offered by Respondent, the burden then shifts back to Petitioner to demonstrate that the proffered reason is merely a pretext for discrimination, or stated another way, that the proffered reason is false and that the real reason for Respondent's decision to terminate Petitioner was his race. Id. at 507-08, 515-17. In this regard, the ultimate burden of persuasion remains with Petitioner throughout the case to demonstrate a discriminatory motive for the adverse employment action. Id. at 508, 510-11.

26. In this case, absolutely no evidence was presented by Petitioner to support his charge of discrimination. As a result, Petitioner failed to establish a prima facie case of

unlawful discrimination.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice.

DONE AND ENTERED this 27th day of January, 2004, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II 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 27th day of January, 2004.

ENDNOTES

1/ All statutory references are to the 2003 version of the Florida Statutes.

2/ The undersigned continues to believe that his interpretation of Section 760.11(7), Florida Statutes, and the Uniform Rules, as set forth in the Recommended Order of Dismissal issued in this case, is correct and others agree. See, e.g., O'Donnell's Corp., 858 So. 2d at 1142, 1147 (Orfinger, J., dissenting) (characterizing the analysis in the Recommended Order of Dismissal as "well reasoned" and "correct"); Tamez v. Northrop Grumman Corp., Case No. 03-1107 (DOAH January 16, 2004) (refusing to follow the Commission's interpretation of Section 760.11(7), Florida Statutes, and the Uniform Rules set forth in the Remand Order and, instead, following the analysis from the Recommended Order of Dismissal). And cf. Waldron v. Wackenhut Corrections Corp., Case No. 02-4048 (DOAH April 1, 2003) (applying the Commission's interpretation of Section 760.11(7), Florida Statutes, from the Remand Order, but expressing disagreement with that interpretation), adopted, Order No. 03- 045 (FCHR July 3, 2003).

3/ In the Order Reopening Case and Requiring Report from the Parties dated January 6, 2003, the undersigned commented on this issue as follows:

At page three of its Order, the Commission states that it "agrees" that the circumstances of this case constitute excusable neglect and then it applies that doctrine to excuse the late-filing of the Petition for Relief (Petition). The Commission’s use of the word "agrees" implies that the Recommended Order of Dismissal reached the same conclusion; however, it did not. The Recommended Order of Dismissal simply stated that the doctrine might apply if the Petition had been mailed within the 35-day period prescribed by Section 760.11(7), Florida Statutes, (which the Commission concludes that it was based upon its nonsensical construction of Rule 28-106.103, Florida Administrative Code, that renders the last sentence of the rule a nullity), but the Recommended Order of Dismissal then cited Cann v. Dept. of Children & Family Servs., 813 So. 2d 237 (Fla. 2nd DCA 2002), where the court expressly and unequivocally held that the doctrine of excusable neglect no longer saves an untimely request for hearing.

Thus, to be clear, the Commission’s decision to ignore the holding in Cann is its alone and not the undersigned’s. However, the Commission’s decision on that issue is the law of the case unless it is appealed.

4/ The undersigned is aware that it is the Commission's practice to not address the untimeliness of a Petition if the case can be disposed of on the merits. See, e.g., Cesarin v. Dillards, Inc., Order No. 03-37, at 3 (FCHR April 29, 2003) (Final Order arising out of DOAH Case No. 01-4805). This practice puts the proverbial cart before the horse because if the Petition was not timely-filed and if there is no equitable basis to save the untimely filing, then there is no basis for the Commission or an Administrative Law Judge to consider the Petition's merit or lack thereof in the first instance.

COPIES FURNISHED:

Himrod Ambroise 5444 Aeolus Way

Orlando, Florida 32808

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

Tallahassee, Florida 32301

Tim O'Donnell, President O'Donnell Corporation 661 Lakewood Drive

Orlando, Florida 32803

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

Tallahassee, Florida 32301

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: 02-002762

Orders for Case No: 02-002762