WAYNE N. BOWERS,
vs.
Respondent.
) Case No. 04-1018
This cause came on for resolution by Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, upon the packet referral from the Florida Commission on Human Relations and the materials submitted by the Commission in response to the Order entered herein on May 3, 2004.
Because this case is resolved upon jurisdictional grounds, without a hearing, and because Respondent has never been served with the Petition for Relief, the usual "Appearances," "Statement of the Issue," and "Preliminary Statement," are dispensed-with.
On September 6, 2001, Petitioner Bowers filed with the Florida Commission on Human Relations (Commission) a Charge of Discrimination against Respondent, Big Red Waste, Inc. The
Charge recited that the most recent or continuing date of discrimination was July 10, 2001, for a finite, one-time act of alleged unlawful employment practice, to wit: termination on the basis of race (Black) and in retaliation.
One hundred and eighty days from the filing of Petitioner's Charge with the Commission would have been on or about March 5, 2002.
On September 19, 2003, the Commission entered a Dismissal and Notice of Rights.
On December 23, 2003, the Commission entered an Amended Dismissal and Notice of Rights. The Commission's Amended Dismissal and Notice of Rights (Amended Dismissal) recited that on May 14, 2002, the Commission had received notice that Respondent had filed a voluntary Chapter 7 Petition in Bankruptcy. Therefore, it is presumed that as of May 14, 2002, an automatic stay of proceedings before the Commission was in effect.
The Commission's Amended Dismissal also stated:
. . . It has been more than 180 days since Complainant's complaint was filed, and since no determination has been made due to the automatic stay that was issued in Respondent's bankruptcy case, and since Complainant has been previously notified by the Commission of his obligation to file a Notice of Claim [in the federal bankruptcy court], the Commission hereby dismisses this Charge of Discrimination and provides the following Notice to Complainant.
Since the Commission did not make a determination of cause or no cause on your complaint within 180 days of the filing of the complaint, you may proceed as if the Commission determined there was reasonable cause. Section 760.11(8), Florida Statutes; Woodham v. Blue Cross & Blue Shield of Florida, Inc., 829 So. 2d 891 (Fla. 2002).
You must initiate a civil lawsuit within 1-year from the date of this dismissal, or an administrative action with the Division of Administrative Hearings within 35 days of the date of this dismissal, provided neither date has exceeded a total of four (4) years from the initial date of the violation. Section 760.11(4), Florida Statutes; Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000).
If more than four (4) years have passed once the automatic stay is lifted on Respondent's bankruptcy case, you must file your civil lawsuit, or your administrative action within 30 days of the lifting of the automatic stay. Morsani v. Major League Baseball, 739 So. 2d 610 (Fla. 2nd DCA 1999).
If the Respondent has not emerged from bankruptcy, and if you determine you do not want to wait until Respondent emerges from bankruptcy, you may file a Motion for Relief from Automatic Stay, and present your argument and authorities to the bankruptcy judge assigned to Respondent's bankruptcy case. The Commission does not assist Complainants with filing the Motion for Relief from Automatic Stay. You must consult an attorney on your own for that purpose. [Bracketed material added for clarity.]
One year from the Commission's December 23, 2003, Amended Dismissal will be December 22, 2004.
Thirty-five days from the Commission's December 23, 2004, Amended Dismissal would have been January 27, 2004.
Four years from July 30, 2001, the initial date of the violation, will be July 29, 2005.
On February 12, 2004, Petitioner sent a letter to the Commission stating that the Commission's "right to sue" letter did not include a blank Petition for Relief. However, the referral packet from the Commission to the Division included no "right to sue letter." The Commission's response to the Order of the undersigned dated May 3, 2004, does not contain a "right to sue" letter.
On February 17, 2004, the Commission entered an Order to Show Cause Why Case Should Not Be Closed Because of Bankruptcy Proceedings (Commission's Order to Show Cause). The Commission's Order to Show Cause noted that Respondent had filed a Voluntary Petition for Bankruptcy, Chapter 11, on October 9, 2001, and that the same case was converted to a Chapter 7 bankruptcy proceeding on May 7, 2002. The Commission's Order to Show Cause also noted that a letter advising Petitioner of the bankruptcy was sent on May 20, 2002, and that a final order distributing all assets and dismissing the bankruptcy case was entered on September 9, 2002. The Commission ordered the parties to show cause, before March 19, 2004, why the discrimination case before the Commission should not be closed.
The referral packet from the Commission to the Division included a Response to the Commission's Order to Show Cause, filed with the Commission by the trustee in bankruptcy, on or about March 8, 2004. That Response recites that Respondent's Chapter 7 bankruptcy proceeding was dismissed by a September 9, 2002, Order and that "upon the dismissal order becoming final all of the assets of Big Red Waste, Inc., reverted to that corporation and the automatic stay was terminated and vacated as to all creditors and claimants against Big Red Waste, Inc."
The bankruptcy court docket was provided to the Division by the Commission in response to the May 3, 2004, Order herein.
Assuming a 30-day appeal period, the dismissal by the Bankruptcy Court became final, at the latest, as of October 8, 2002. Therefore, the latest date the automatic stay was lifted would also have been October 8, 2002, although the September 9, 2002, date of the Bankruptcy Court's Order would be reverted-to, absent an appeal, and there is no evidence of an appeal.
According to the Commission's response to the May 3, 2004, Order herein, the Petition for Relief in the instant discrimination case was "inadvertently dated March 13, 2004," but was filed with the Commission on March 9, 2004. The Petition for Relief recites repeatedly, "see attached
complaint." There was no complaint attached to the Petition in the packet referred by the Commission to the Division, and none was provided in response to the May 3, 2002, Order herein.
Therefore, pursuant to the terms of the May 3, 2004, Order herein, it is presumed that the "complaint" referred to in the Petition for Relief is the September 6, 2001, Charge of Discrimination, and it may further be presumed that no continuing pattern of discrimination continued after the finite termination date of July 1, 2001.
However, by the Petition for Relief, Petitioner attempted to add as a party Respondent, Respondent's president, Yvonne Kiawtkowski. Petitioner has as yet demonstrated no good cause to add Respondent's president, in her individual capacity, to this administrative discrimination case when she was not individually charged in the original Charge before the Commission.
The copy of the Petition for Relief and Attachments sent to the most recent address in the Commission file for Respondent's Corporation apparently were returned to the Commission. The same has occurred with regard to all papers mailed by the Division to that address. Therefore, no Notice of Hearing can be sent by the Division to Respondent's Corporation. Telephone calls by the undersigned's secretary to Big Red Waste, Inc.'s last known phone number, which was provided in the
Commission's referral packet, have resulted in an oral response that the party at that phone number is not Big Red Waste, Inc.
Recently, the Commission determined that
Ms. Kiawtkowski has a new personal address. On June 21, 2004, the Petition for Relief and Attachments were returned to the Commission from that address too. The Commission has stated it cannot determine whether Ms. Kiawtkowski ignored the certified mail receipt for this mailing or whether she no longer resides in that area.
CONCLUSIONS OF LAW
The Division of Administrative Hearings does not have jurisdiction of this cause pursuant to Section 120.57(1) and Chapter 760, Florida Statutes, as more particularly set out hereafter.
The following statutes were important in reaching the foregoing conclusion:
760.11 Administrative and civil remedies; construction.--
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In the event that the commission determines that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992, the aggrieved person may either:
Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or
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.
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(6) Any administrative hearing brought pursuant to paragraph (4)(b) shall be conducted under ss. 120.569 and 120.57. The commission may hear the case provided that the final order is issued by members of the commission who did not conduct the hearing or the commission may request that it be heard by an administrative law judge pursuant to s. 120.569(2)(a). If the commission elects to hear the case, it may be heard by a commissioner. If the commissioner, after the hearing, finds that a violation of the Florida Civil Rights Act of 1992 has occurred, the commissioner shall issue an appropriate proposed order in accordance with chapter 120 prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay. If the administrative law judge, after the hearing, finds that a violation of the Florida Civil Rights Act of 1992 has occurred, the administrative law judge shall issue an appropriate recommended order in accordance with chapter 120 prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay. Within
90 days of the date the recommended or proposed order is rendered, the commission shall issue a final order by adopting, rejecting, or modifying the recommended order as provided under ss. 120.569 and 120.57. The 90-day period may be extended with the consent of all the parties. 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. In any
action or proceeding under this subsection, the commission, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the costs. It is the intent of the Legislature that this provision for attorney's fees be interpreted in a manner consistent with federal case law involving a Title VII action.
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(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. (Emphasis supplied)
Because the 180 days had passed on March 5, 2002, without a determination of reasonableness by the Commission and because the automatic stay of the Bankruptcy Court did not go into effect until on or about May 14, 2002, Petitioner could have either requested a "right to sue" letter and gone to circuit court or he could have come to the Division of Administrative Hearings, via a Petition for Relief filed with the Commission within 35 days of March 5, 2002, provided he beat the May 14, 2002, automatic stay.
However, there is no evidence of a "right to sue letter" or of a Petition for Relief being filed with the Commission between March 5, 2002 and May 14, 2002, and the Bankruptcy Court's stay was in effect from May 14, 2002 until, at the latest, October 8, 2002, not quite five months.
In the absence of any other evidence and in an effort to afford Petitioner all benefits of the doubt, the Commission's December 23, 2003, Amended Dismissal may be treated as the "right to sue" letter. Petitioner did not file a Petition for Relief within 35 days thereof, even though Respondent had emerged from bankruptcy, ending the automatic stay on October 8, 2002, and even though four years had not passed since the initial date of the alleged discriminatory violation, July 30, 2001.
The thirty-fifth day after the Commission's
December 23, 2003 Amended Dismissal would have been January 27, 2004. The Petition for Relief herein was not filed with the Commission until March 9, 2004.
This administrative case is time-barred and should be dismissed.
Furthermore, it is the obligation of the Commission, not the Division, to effect service of the Petition for Relief upon the proper parties. Only then, can the Division serve a Notice of Hearing or other papers on that party.
The record before the Division creates the impression that service of the Petition for Relief has not been effected on Respondent corporation, Respondent's president, or any proper person or legal entity shown to be Respondent corporation's legitimate successor in interest. Under these circumstances, no
due process hearing, pursuant to Chapters 120 and 760, Florida Statutes, is possible.
Moreover, while this Recommended Order of Dismissal makes no determination whether or not Respondent's president may be personally liable; whether or not there is, in fact, any Respondent corporation still in existence; whether or not any other entity constitutes a legitimate successor in interest to Respondent corporation; or whether any legitimate successor in interest exists which has legally assumed the liabilities of, and/or the duty to defend, the Respondent corporation herein, the fact remains that no Respondent has been served.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief.
DONE AND ENTERED this 15th day of July, 2004, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2004.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Wayne N. Bowers
Yvonne Kwiatkowski, President Big Red Waste, Inc.
Yvonne Kwiatkowski, President Big Red Waste, Inc.
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.
