STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HORACE BAILEY, JR.,
Petitioner,
vs.
THE LAKELAND LEDGER,
Respondent.
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) Case No. 03-0766
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RECOMMENDED ORDER
Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on July 15, 2003, in Tampa, Florida, on behalf of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Horace Bailey, pro se
1836 North Crystal Lakeland Drive Apartment Number 56
Lakeland, Florida 33801
For Respondent: Stephen X. Munger, Esquire
Matthew Freeman, Esquire Jackson Lewis LLP
1900 Marquis One Tower
245 Peachtree Center Avenue, Northeast Atlanta, Georgia 30303-1226
STATEMENT OF THE ISSUE
The issue is whether Respondent's claims are untimely under Section 760.11, Florida Statutes (1997), because they were filed more than 365 days after the alleged acts of discrimination and
retaliation. (References to chapters and sections are to Florida Statutes (2000) unless otherwise stated.)
PRELIMINARY STATEMENT
On August 11, 2000, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (the Commission). The Commission determined that the Charge of Discrimination was untimely and dismissed the proceeding on January 21, 2003, for lack of jurisdiction. On February 27, 2003, Petitioner filed a Petition for Relief requesting an administrative hearing.
The Commission referred the matter to DOAH to conduct the hearing. The parties stipulated that the administrative hearing would be limited to the timeliness of Petitioner's claims and conducted discovery limited to that issue. On July 3, 2003, Respondent filed a Motion for Recommended Order of Dismissal.
Petitioner filed a written opposition to the Motion on July 14, 2003.
Petitioner admits that all of the acts of alleged discrimination occurred more than 365 days before Petitioner filed the Charge of Discrimination on August 11, 2000. However, the parties dispute the timeliness of the claim that Respondent retaliated against Petitioner for internal grievances of alleged discrimination by terminating Petitioner's employment.
Petitioner claims that Respondent notified Petitioner of the termination on August 12, 1999, within 365 days of
August 11, 2000, when Petitioner filed the Charge of Discrimination. Respondent claims that Respondent notified Petitioner of the termination of employment no later than August 10, 1999, or 367 days before Petitioner filed the Charge of Discrimination.
At the hearing, Petitioner testified and submitted one exhibit for admission into evidence. Respondent presented the testimony of four witnesses and submitted 12 exhibits for admission into evidence. The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the Transcript of the administrative hearing filed on July 24, 2003.
Respondent filed a Proposed Recommended Order (PRO) on August 1, 2003, and an Amended Proposed Order on August 7, 2003. Petitioner filed a PRO on August 4, 2003, and a request to amend the PRO on August 6, 2003, together with the proposed amendments. Respondent opposes the proposed request.
Petitioner's request to amend his PRO is granted over objection.
FINDINGS OF FACT
Petitioner is an adult African-American male with albinism. The parties agreed to limit the administrative hearing to the timeliness of Petitioner's claims of discrimination and retaliation.
The Commission received Petitioner's Charge of Discrimination on August 11, 2003. The Charge of Discrimination alleges that Respondent discriminated against Petitioner on the basis of his race and alleged disability of albinism and that Respondent retaliated against Petitioner for an internal grievance of discrimination by terminating Petitioner's employment.
The Commission lacks jurisdiction over Petitioner's claim of discrimination. It is undisputed that all of the alleged acts of discrimination occurred from sometime in 1987 through June 1999. Petitioner filed the Charge of Discrimination on August 11, 2000, more than 365 days after the date of the last act of alleged discrimination on June 30, 1999. Section 760.11(1) authorizes the Commission to act only on a charge of discrimination that is filed within 365 days of the alleged discrimination.
Petitioner claims that Respondent terminated Petitioner's employment in retaliation for Petitioner's internal grievances concerning discrimination. The acts of discrimination alleged in the internal grievances occurred prior to July 25, 1999, when Petitioner began his vacation.
Petitioner never returned to work at the Lakeland Ledger (the Ledger), a member of the New York Times Regional Group, after July 25, 1999.
Prior to July 25, 1999, the Lakeland Police Department conducted an undercover drug investigation of alleged drug use and sales among Ledger employees. The investigators requested management at the Ledger to keep the investigation confidential.
On July 26, 1999, investigators made the evidence of the investigation available to Ledger management. Management decided to terminate 14 Ledger employees, including Petitioner, for violation of the Ledger's drug policy.
Investigators asked management not to notify the employees of their termination on July 26, 1999, because investigators expected a drug purchase to occur on that date. Investigators recommended that they be present the next day to issue trespass warnings to terminated employees prohibiting the terminated employees from returning to Ledger property. On July 26, 1999, the Ledger completed trespass warnings for each employee to be terminated the following day, including Petitioner.
On July 27, 1999, the Ledger issued termination notices for each of the employees implicated in the investigation, including Petitioner. Management at the Ledger did not deliver Petitioner's termination notice to him on July 27, 1999, because Petitioner had begun his vacation on July 25, 1999. However, Petitioner was scheduled to return to work one week later on August 1, 1999.
Petitioner's mother died while he was on vacation. On July 28, 1999, Petitioner telephoned Mr. Willie Baker, Petitioner's supervisor, and advised Mr. Baker that Petitioner was taking an additional week of vacation because of his mother's death.
Mr. Baker told Petitioner that Mr. Baker would convey the information to Mr. Phil Finnigan, Mr. Baker's supervisor. Neither Mr. Baker nor Mr. Finnigan had authority to inform Petitioner of the termination of his employment. Neither
Mr. Baker nor Mr. Finnigan subsequently spoke to Petitioner.
Neither Mr. Baker nor Mr. Finnigan was involved in the decision to terminate Petitioner or any other employee that was the subject of the criminal investigation. Ms. Cindy Moates, Human Resource Director, and Mr. Don Whitworth, Publisher, were solely responsible for the decision to terminate employees and to notify them of their termination.
Ms. Moates and Mr. Whitworth expected to notify Petitioner of the termination of his employment when Petitioner returned to the Ledger on August 8, 1999. The Ledger did not pay Petitioner for the additional week of vacation he requested from August 1 through August 7, 1999.
On August 5, 1999, Charter Behavior Hospital admitted Petitioner and then transferred Petitioner to St. Joseph's Hospital for treatment of depression and abuse of marijuana,
alcohol, and cocaine. Petitioner remained in St. Joseph's Hospital through August 11, 1999.
On August 6, 1999, Petitioner telephoned Mr. Otis McCollum, Human Resources Director for the New York Times Regional Newspaper Group. Mr. McCollum refused to talk to Petitioner and told Petitioner that attorneys for the New York Times had instructed Mr. McCollum not to talk to Petitioner.
Petitioner was concerned about his employment. On August 9, 1999, Petitioner asked Ms. Andrea Holmes, his counselor at the hospital, to telephone the Ledger. Ms. Holmes spoke by telephone with Ms. Moates and asked Ms. Moates if Petitioner was still employed at the Ledger. Ms. Moates declined to answer the question because it was contrary to Ledger policy to discuss the termination of an employee with anyone except the employee or to use the telephone to notify an employee of his or her termination from employment.
Ms. Moates agreed to discuss Petitioner's employment status with Ms. Holmes if Ms. Holmes submitted a written authorization signed by Petitioner. On August 10, 1999, Petitioner signed a written medical release prepared for "the purpose of determining Mr. Bailey's employment status," and Ms. Holmes faxed the signed authorization to Ms. Moates on the same day at 10:44 a.m. Ms. Holmes also signed the written authorization that she faxed to Ms. Moates.
Upon receipt of the signed written authorization on August 10, 1999, Ms. Moates telephoned Ms. Holmes and notified Ms. Holmes that the Ledger had terminated Petitioner's employment on July 27, 1999. Ms. Moates entered the date and time of the conversation with Mr. Holmes on the written termination notice to Petitioner. Ms. Holmes immediately conveyed the information to Petitioner.
Petitioner denies that Ms. Holmes informed him of her conversation with Ms. Moates. The preponderance of credible and persuasive evidence supports a finding that Ms. Holmes conveyed the relevant information to Petitioner on August 10, 1999. Petitioner filed the Charge of Discrimination claiming that his termination was retaliatory more than 365 days after he received notice of the alleged retaliation. The Commission lacks jurisdiction over Petitioner's claim of retaliation in the Charge of Discrimination.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to this proceeding. Sections 120.569 and 120.57(1). The parties received adequate notice of the administrative hearing.
DOAH and the Commission lack jurisdiction over the subject matter of this proceeding. Section 760.11(1) authorizes Petitioner to file a complaint against the Ledger within 365 days of an alleged violation of Chapter 760. Petitioner filed
his complaint against the Ledger in the form of a Charge of Discrimination. Petitioner filed the Charge of Discrimination more than 365 days after the acts of alleged discrimination and more than 365 days after Petitioner first learned of the alleged retaliation on August 10, 1999.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED that the Commission enter a Final Order finding that the allegations of discrimination and retaliation are untimely and dismissing the Charge of Discrimination and Petition for Relief for lack of jurisdiction.
DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida.
S
DANIEL MANRY
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 29th day of August, 2003.
COPIES FURNISHED:
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Horace Bailey
1836 North Crystal Lakeland Drive Apartment Number 56
Lakeland, Florida 33801
Stephen X. Munger, Esquire Matthew Freeman, Esquire Jackson Lewis LLP
1900 Marquis One Tower
245 Peachtree Center Avenue, Northeast Atlanta, Georgia 30303-1226
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 01, 2005 | Mandate | |
| Jun. 10, 2005 | Opinion | |
| Jun. 14, 2004 | Agency Final Order | |
| Aug. 29, 2003 | Recommended Order | Claim of discrimination and retaliation filed more than 365 days after last day of discrimination and date employers learned of retaliation is untimely and should be dismissed. |
