STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHANIE WALKER,

Petitioner,

vs.

BENNETT AUTO SUPPLY, INC.,

Respondent.

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) Case No. 04-0724

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RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, a telephone hearing was held in this case on April 12, 2004, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings, to address the Respondent's Motion to Dismiss with Prejudice.

APPEARANCES

For Petitioner: Stephanie Walker, pro se

1808 Northwest 52nd Avenue Lauderhill, Florida 33313

For Respondent: Richard A. Giardino, Esquire

Davis & Giardino, P.A.

201 Arkona Court

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUE

Whether the Petitioner, Stephanie Walker, timely filed a Petition for Relief regarding her charge of discrimination against the Respondent, Bennett Auto Supply, Inc.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations (FCHR) referred the instant case to the Division of Administrative Hearings for formal proceedings on March 5, 2004. Along with the Transmittal of Petition, the FCHR provided a copy of its Notice of Determination: No Cause, and the Petitioner's Petition for Relief.

On March 12, 2004, the Respondent filed a Motion to Dismiss with Prejudice that alleged the Petitioner filed the Petition for Relief 159 days after the Determination: No Cause was entered and was, therefore, barred as a matter of law pursuant to Section 760.11(7), Florida Statutes. To resolve issues of fact or to identify if issues of fact precluded ruling on the motion, a telephone conference call was scheduled with the parties. That call was conducted on April 12, 2004. The deposition testimony of the Petitioner was filed with the Division of Administrative Hearings on April 13, 2004.

During the conference call, the Petitioner did not contest the accuracy of the information represented by the Respondent. The Petitioner acknowledged the Petition for Relief was filed as stated by the Respondent but claimed she had moved and that the pertinent papers were unavailable for a period of time.

This Recommended Order is entered to resolve the issue presented by the Motion to Dismiss with Prejudice and is based

on undisputed facts.

FINDINGS OF FACT

1. The Petitioner, Stephanie Walker, applied for and received employment with the Respondent, Bennett Auto Supply,

   Inc.

   
   

2. The Petitioner's initial employment with the company

   
   

   ended on March 8, 2001, as she resigned her job on or about February 26, 2001.

3. Thereafter, the Petitioner returned to employment with the Respondent. Again, the Petitioner resigned her job and left employment on April 27, 2002.

4. The exact reasons the Petitioner began employment, left employment, returned to employment, and again left employment with the Respondent are immaterial to the findings dispositive of this case. Suffice it to say the Petitioner ultimately filed a claim of discrimination with the FCHR against the Respondent.

5. The Petitioner's Charge of Discrimination naming the Respondent was dated March 21, 2003, and noted April 27, 2002, as the date the most recent discrimination had taken place.

6. Based upon its investigation of the allegations, the FCHR issued a Determination: No Cause on September 23, 2003.

7. The Determination: No Cause provided, in pertinent part, ". . . it is my determination that there is no reasonable cause to believe that an unlawful employment practice has occurred."

8. The Notice of Determination: No Cause, provided:

   
   

   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.

   
   

   A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial for Complainant to seek legal counsel prior to filing the petition.

   
   

   If the Complainant fails to request an administrative hearing with [sic] 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).

   
   

9. The Petition for Relief was filed approximately 159 days after the FCHR issued its determination in this case.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

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

    If the commission determines that there is not reasonable cause to believe that a violation of the Florida Civil Rights Act of

    1992 has occurred, the commission shall dismiss the complaint. The aggrieved person may request an administrative hearing under ss. 120.569 and 120.57, but any such request must be made within 35 days of the date of determination of reasonable cause and any such hearing shall be heard by an administrative law judge and not by the commission or a commissioner. If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.

    (Emphasis added.)

    
    

12. Based upon the undisputed facts of this matter, the Petitioner failed to file the Petition for Relief within 35 days of the date of the FCHR's determination.

RECOMMENDATION

Based on 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 Petitioner's Petition for Relief as it was not timely filed and is, therefore, barred as a matter of law.

DONE AND ENTERED this 29th day of April, 2004, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 April, 2004.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Richard A. Giardino, Esquire Davis & Giardino, P.A.

201 Arkona Court

West Palm Beach, Florida 33401

Stephanie Walker

1808 Northwest 52nd Avenue Lauderhill, Florida 33313

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: 04-000724

Orders for Case No: 04-000724