vs. ) Case No. 05-0928
Respondent. )
Pursuant to notice, a telephone hearing on Respondent's Motion to Dismiss, or in the Alternative, for Summary Final Order was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on May 5, 2005, before
Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Alan C. Espy, Esquire
For Respondent: Timothy O. Schranck, Esquire
Fowler White Burnett, P.A.
Whether the Florida Commission on Human Relations (FCHR) should issue an order of dismissal in the instant case on the ground that Petitioner failed to timely file his charge of discrimination against Respondent.
On April 26, 2005, Respondent filed a Motion to Dismiss, or in the Alternative, for Summary Final Order (Respondent's Motion), arguing that the instant matter should be dismissed because "Petitioner's Charge of Discrimination was not timely filed with the FCHR." On April 28, 2005, the undersigned issued an Order Directing Response, which provided as follows:
No later than May 4, 2005, Petitioner shall file a written response to Respondent's Motion. In his response, in addition to presenting legal argument in support of his position on the Motion, Petitioner shall identify with specificity: (1) each assertion of fact contained in the Motion that he disputes, if any; and (2) any fact(s) omitted from the Motion that he believes the undersigned should take into consideration in ruling on the Motion.
On May 2, 2005, Petitioner filed his Response to Respondent's Motion, in which he took the position that equitable considerations warranted his charge of discrimination being treated as having been timely filed. Petitioner also submitted supporting documentation, including his affidavit.
On May 4, 2005, Respondent filed a Reply Memorandum in support of its Motion.
Oral argument on Respondent's Motion was heard that same day (May 4, 2005) by telephone conference. During oral argument, Petitioner requested that the undersigned conduct an evidentiary hearing at which the parties would have an opportunity to present evidence on the factual issues that the undersigned needed to resolve before ruling on Respondent's Motion. The undersigned granted Petitioner's request. See Brown v. Department of Financial Services, No. 4D04-855, 2005 WL 906168 *2 (Fla. 4th DCA April 20, 2005); Avante, Inc. v. Agency for Health Care Administration, 722 So. 2d 965, 966 (Fla. 1st DCA 1998); Haynes v. Public Employees Relations Commission, 694 So. 2d 821, 822 (Fla. 4th DCA 1997); and Castillo v. Department
of Administration, Division of Retirement, 593 So. 2d 1116, 1117 (Fla. 2d DCA 1992). The parties agreed to have the evidentiary hearing held the following day by telephone.
As noted above, the evidentiary hearing was held by telephone on May 5, 2005, as scheduled. The only witness to testify at the hearing was Petitioner. In addition to Petitioner's testimony, ten exhibits (Petitioner's Exhibits A through C, and Respondent's Exhibits 1 through 7) were offered and received into evidence without objection. Following the conclusion of the taking of evidence, a 5:00 p.m. May 9, 2005,
deadline was established, with the agreement of the parties, for the filing of post-hearing submittals.
Petitioner and Respondent both timely filed their post- hearing submittals on May 9, 2005.
Based on the evidence adduced at the May 5, 2005, evidentiary hearing, and the record as a whole, the following findings of fact are made:
Petitioner is an optometrist.
He was employed by Respondent as its director of clinical services from July 1996, until April 23, 2003.
Respondent's termination of Petitioner's employment on April 23, 2003, is the alleged unlawful employment practice that Petitioner is seeking the Commission to remedy in the instant case. Petitioner takes the position that Respondent terminated his employment in retaliation for his having given testimony on behalf of a fellow employee pursuing a sexual harassment grievance. He has held this belief that his termination was discriminatorily motivated from the time he was terminated on April 23, 2003.
Following his termination, Petitioner consulted with more than one attorney to discuss the options available to him to challenge his termination as having been discriminatorily motivated. He was told that he had a 365-day time limit from
the date of his termination to file a charge of discrimination against Respondent challenging his termination as being in violation of state law.
By April 12, 2004, Petitioner had not taken any action to file such a charge. Realizing that he had only 11 days left to accomplish such filing, Petitioner, on that date (April 12, 2004), telephoned the Palm Beach County Office of Equal Opportunity (OEO), a unit of Palm Beach County government, to inquire as to what he needed to do to file a charge of discrimination with the OEO. The person with whom Petitioner spoke told him that there was paperwork that he needed to fill out and submit, which she offered to mail to Petitioner. Petitioner declined the offer, indicating that he preferred to come down to the OEO office in West Palm Beach to take care of the paperwork "personally."
Petitioner went to the OEO office (by himself) at around 1:30 or 2:00 p.m. on April 14, 2003, nine days before the expiration of the 365-day charge-filing time limit about which he had been told.
At the office, he was helped by a "black, younger female" who worked in the office (OEO Worker).1 He spoke to no one else during the time he was in the office that day.
Upon his arrival at the office, he told the OEO worker that he wanted to file a discriminatory retaliation claim and
asked for the forms he needed to fill out to pursue such a claim.
In response to Petitioner's request, the OEO Worker gave Respondent a blank OEO Employment Discrimination Charge Questionnaire (Questionnaire) and advised him to fill it out and mail the completed Questionnaire back to the OEO.
Petitioner asked if it would be possible for him to complete the Questionnaire before leaving the office "because of the time constraints" he was under. She said that she "wouldn't mind." Petitioner spent the next hour or so filling out the form in the office.
The first page of the Questionnaire (at the top) contained the following introductory pre-printed language:
Palm Beach County Office of Equal Opportunity
215 North Olive Avenue, Suite 130 West Palm Beach, FL 33401
Telephone: (561)355-4863 / FAX (561) 355-
4932 / TDD (561) 355-1517
IMPORTANT NOTICE TO POTENTIAL CHARGING
PARTY: Completion of this form is necessary in order for the Office of Equal Opportunity to determine if you have sufficient legal grounds to initiate the filing of a charge of employment discrimination. Completion and submission of this Questionnaire does not constitute the filing of a charge of discrimination. Upon receipt of this completed Questionnaire, we will determine if you have stated sufficient factual allegations to proceed further. If the facts are not sufficient, we will either contact you for further information or
notify you of our determination that the facts are not sufficient. If the facts are sufficient, a complaint will be prepared for you to sign, notarize and return to OEO for filing and investigation. You must return the signed, notarized complaint form so that it is received by OEO within 180 days of the date of the most recent act of alleged discrimination. If your form is received after 180 days, but within 300 days, OEO will forward your forms to the U.S. Equal Employment Opportunity Commission (EEOC) for processing and investigation.
The Questionnaire then asked for certain information about the "potential charging party" and his or her "discrimination claim." In filling out this portion of the Questionnaire, Petitioner indicated that the "most recent act of discrimination took place on April 23, 2003," and he "briefly described the action that was taken against [him]" as follows:
I was terminated as an employee at the university as a result of providing testimony regarding sexual harassment grievances. The female employee filing the grievance was stripped of job duties and ultimately quit her position. My immediate supervisor was asked to step down from his position as a result of coming forth to protect myself and the female employee.
In addition, he gave the following statement as to "[w]hy [he] believe[d] that the action taken against [him] was discriminatory":
The action was in direct retaliation for testimony provided against the senior department chairman- stemming from sexual harassment, verbal abuse and battery complaints.
The last page of the Questionnaire contained the following pre-printed certification that Petitioner signed and dated (April 14, 2004), after he had filled out the preceding portions of the Questionnaire:
I have been advised by a representative of the Palm Beach County Office of Equal Opportunity (OEO) that completion of this Questionnaire is necessary in order for the Office of Equal Opportunity to determine if I have sufficient legal grounds to initiate the filing of a charge of employment discrimination. I understand that completion and submission of this Questionnaire does not constitute the filing of a charge of discrimination and that upon receipt and review of this completed Questionnaire, OEO will determine if I have stated sufficient factual allegations to proceed with the actual filing of a charge of discrimination.
I understand that to be timely filed, a charge of discrimination must be signed, notarized, and received by OEO 180 days of the date of the most recent act of alleged discrimination. If I file a complaint after
180 days, but within 300 days, OEO will not investigate claims but will forward my complaint to the U.S. Equal Employment Opportunity Commission (EEOC) for processing and investigation.
I have been given assurances by an agent of the Palm Beach County Office of Equal Opportunity that pursuant to Palm Beach County's Equal Employment Ordinance (Ordinance 95-31), and applicable Florida Statutes, this Questionnaire will be considered confidential and will not be disclosed (except to the parties to this proceeding, including the employer and its legal representative) as long as this case
remains open unless it becomes necessary for OEO to produce the Questionnaire in a formal proceeding. Upon the closing of this case, the Questionnaire may be subject to further disclosure in accordance with Ordinance 95-
31 and Florida's Public Record Act.
Under penalty of perjury, I declare that I have read the entire contents of this Questionnaire and that my answers and statement contained herein are true and correct.
Signed: Printed Name: Date Signed:
Petitioner handed the completed Questionnaire to the OEO Worker and asked her to date stamp it, which she did.2 In making his date stamp request, Petitioner again "brought up the issue of the time constraints" he was under and his desire to comply with the time requirements for filing a charge of discrimination against Respondent. The OEO Worker did not say anything in response thereto suggesting that, in her view, there would be a problem in Petitioner's meeting these requirements.
Before leaving the office, Petitioner inquired as to whether there was anything further that he needed to do "at that point in time," to which the OEO Worker responded in the negative. Petitioner then left the office.
At no time during his visit to the OEO office on April 14, 2004, did the OEO worker tell Petitioner that he could
take no further action regarding his allegation against Respondent until the OEO had completed its review of his filled- out Questionnaire.
The only form that Petitioner was given while he was at the OEO office on April 14, 2004, was the Questionnaire that he completed and submitted before leaving.
Petitioner knew, as a result of reading the pre- printed language of the Questionnaire, that what he filled out and handed to the OEO Worker during his April 14, 2004, visit to the OEO office did not constitute a charge of discrimination. Furthermore, Petitioner was aware that he needed to file a charge of discrimination within 365 days of the date of his termination (that is, on or before April 23, 2004) in order to be able to challenge the termination as discriminatorily motivated in violation of Florida law.
From the time he left the OEO office through April 23, 2004, Petitioner did not contact the office to check on the status of his completed Questionnaire; nor did he take any other measures to ensure that a charge of discrimination challenging his termination was filed.
On or about April 30, 2004, Petitioner received the following letter, dated April 26, 2004, from Harry Lamb, Jr., the OEO's director:
The Palm Beach County Office of Equal Opportunity acknowledges receipt of your completed Intake Questionnaire regarding the filing of a potential claim of employment discrimination. Your documents were received by this office on April 14, 2004.
A review of your documentation reveals that the alleged discriminatory act took place April 23, 2003. Under the Palm Beach County Ordinance, a complaint has to be filed within 180 days from the most recent date of harm. It has to be filed with the EEOC within 300 days from the most recent date of harm. It appears that the time limit for these agencies has expired. Therefore, this agency lacks jurisdiction to investigate and further process this claim.
However, the Florida Commission on Human Relations (FCHR) has a time limit of 365 days from the most recent date of discrimination. Therefore, your case is being referred to FCHR for possible assistance and investigation. Copies of all documents and information in this file have been forwarded to the FCHR. The FCHR's address and telephone number are as follows:
Florida Commission on Human Relations 2009 Apalachee parkway
Suite 100
Tallahassee, Florida 32301 Phone: 850/488-7082
You should direct future correspondence and inquiries to the above agency in view of this referral.
On April 30, 2004, Petitioner received a telephone call from Emily Davis, an intake investigator with the FCHR. Ms. Davis discussed with Petitioner the allegations contained in the Questionnaire he had completed at the OEO office on
April 14, 2004.
On or sometime shortly before May 4, 2004, Petitioner received a follow-up letter from Ms. Davis, dated April 30, 2004, which read as follows:
This letter is being sent to you in response to our phone interview on April 30, 2004.
An Employment or Public Accommodation complaint must be filed within 365 days from the date of alleged violation in order for the complaint to be considered timely filed with this Commission (Chapter 760, F.S.).
An Employment complaint must be filed within
300 days in order for this Commission to also dual-file with the Equal Employment Opportunity Commission (EEOC).
Please sign, date and return the enclosed charge of discrimination form by May 13, 2004 or this matter will be closed. Note: Do not write on the charge except to sign and date it. If you have additional information please contact me at (850) 488- 7082 extension 1077.
The enclosed, unsigned and undated charge of discrimination alleged that Petitioner had been a victim of "discrimination based on retaliation" and that April 23, 2003, was the "most recent" date of discrimination. It gave the following "particulars" of the alleged discrimination:
I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination Act, and/or the Americans with Disabilities Act as applicable.
While employed with the Respondent I was retaliated against by being terminated on April 23, 2003 because of testimony that I
provided in regards to sexual harassment grievances filed against the Department Chairman.
I had provided testimony about inappropriate comments, and looks targeted at a specific female employee by the Department Chairman. The testimony was provided on several informal and formal inquires [sic]. As a result of retaliation I was wrongfully terminated on April 23, 2003.
Petitioner, on May 4, 2004, signed and dated the charge of discrimination Ms. Davis had provided him.
On May 10, 2004, the signed and dated charge was received by the FCHR and date stamped.
CONCLUSIONS OF LAW
The Florida Civil Rights Act of 1992 (Act) is codified in Sections 760.01 through 760.11, Florida Statutes, and Section 509.092, Florida Statutes.
Among other things, the Act makes certain acts "unlawful employment practices" and gives the FCHR authority, if it finds following an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes, that such an "unlawful employment practice" has occurred, to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay." §§ 760.10 and 760.11(6), Fla. Stat.
Pursuant to Section 760.11(1), Florida Statutes, which provides as follows, to obtain such relief from the FCHR, a
person who claims to have been the victim of an "unlawful employment practice" must, "within 365 days of the alleged violation," file a charge of discrimination with the FCHR, the federal Equal Employment Opportunity Commission, or "any unit of government of the state which is a fair-employment-practice agency under 29 C.F.R. ss. 1601.70-1601.80," such as the OEO3:
Any person aggrieved by a violation of ss. 760.01-760.10 may[4] file a complaint with the commission within 365 days of the alleged violation, naming the employer, employment agency, labor organization, or joint labor-management committee, or, in the case of an alleged violation of s.
760.10(5), the person responsible for the violation and describing the violation. Any person aggrieved by a violation of s.
509.092 may file a complaint with the commission within 365 days of the alleged violation naming the person responsible for the violation and describing the violation. The commission, a commissioner, or the Attorney General may in like manner file such a complaint. On the same day the complaint is filed with the commission, the commission shall clearly stamp on the face of the complaint the date the complaint was filed with the commission. In lieu of filing the complaint with the commission, a complaint under this section may be filed with the federal Equal Employment Opportunity Commission or with any unit of government of the state which is a fair- employment-practice agency under 29 C.F.R. ss. 1601.70-1601.80. If the date the complaint is filed is clearly stamped on the face of the complaint, that date is the date of filing. The date the complaint is filed with the commission for purposes of this section is the earliest date of filing with the Equal Employment Opportunity Commission, the fair-employment-practice agency, or the
commission. The complaint shall contain a short and plain statement of the facts describing the violation and the relief sought. The commission may require additional information to be in the complaint. The commission, within 5 days of the complaint being filed, shall by registered mail send a copy of the complaint to the person who allegedly committed the violation. The person who allegedly committed the violation may file an answer to the complaint within 25 days of the date the complaint was filed with the commission. Any answer filed shall be mailed to the aggrieved person by the person filing the answer. Both the complaint and the answer shall be verified.
The Fifth District Court of Appeal has held, in Greene v.
Seminole Electric Co-op., Inc., 701 So. 2d 646, 648 (Fla. 5th DCA 1997), that "Section 760.11(1) . . . is a statute of limitations" and, consequently, the 365-day limitations period set forth therein can be tolled, "but the only acts or circumstances that will toll [this] limitations period are those enumerated in section 95.051," Florida Statutes.
"Section 95.051 delineates an exclusive list of conditions that can 'toll' the running of [a] statute of limitations." Major League Baseball v. Morsani, 790 So. 2d 1071, 1075 (Fla. 2001)(emphasis added). It provides as follows:
The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:
Absence from the state of the person to be sued.
Use by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.
Concealment in the state of the person to be sued so that process cannot be served on him or her.
The adjudicated incapacity, before the cause of action accrued, of the person entitled to sue. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.
Voluntary payments by the alleged father of the child in paternity actions during the time of the payments.
The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.
The pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action.
The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in
s. 95.11. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.
Paragraphs (a)-(c) shall not apply if service of process or service by publication can be made in a manner sufficient to confer jurisdiction to grant the relief sought.
This section shall not be construed to limit
the ability of any person to initiate an action within 30 days of the lifting of an automatic stay issued in a bankruptcy action as is provided in 11 U.S.C. § 108(c).
No disability or other reason shall toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.
"[I]n order for a doctrine to 'toll' [a] statute of limitations, it must be included in the exclusive list of conditions set forth in section 95.051(1)." HCA Health Services of Florida, Inc. v. Hillman, 29 Fla. L. Weekly D2760, 2004 WL 3024709 *6 (Fla. 2d DCA December 10, 2004); see also Lee v. Simon, 885 So. 2d 939, 944 (Fla. 4th DCA 2004)("Excusable neglect is not a ground for tolling [a] statute [of limitations under Section 95.051, Florida Statutes].").
"Generally, the [equitable] tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum," despite having acted "with a reasonably prudent regard for his rights." Machules v. Department of Administration, 523 So. 2d 1132, 1134 (Fla. 1988). The doctrine "involves no misconduct on the part of the defendant [and] may delay the running of the limitations period based on the plaintiff's blameless ignorance and the lack of
prejudice to the defendant." Major League Baseball, 790 So. 2d at 1076 n.11. In light of the holding in Greene, however, to the extent that this doctrine is not "included in the exclusive list of conditions set forth in section 95.051(1)," it is not available to toll the 365-day limitations period set forth in Section 760.11(1).
"The doctrine of equitable estoppel has been a fundamental tenet of Anglo American jurisprudence for centuries. . . . . [and] was part of the English common law when the State of Florida was founded[5] . . . . [It] is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position . . . . [The doctrine] is applicable in all cases where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induces him to act on this belief injuriously to himself, or to alter his own previous condition to his
injury. . . . Equitable estoppel presupposes a legal shortcoming in a party's case that is directly attributable to the opposing party's misconduct. The doctrine bars the wrongdoer from asserting that shortcoming and profiting from his or her own misconduct. Equitable estoppel thus functions as a shield, not a sword, and operates against the wrongdoer, not the victim." Major League Baseball, 790 So. 2d at 1076-77.
Unlike the doctrine of equitable tolling, "equitable estoppel . . . does not 'toll' anything. By definition (and by usage throughout the centuries), equitable estoppel 'estops' or bars a party from asserting something (e.g., a fact, a rule of law, or a defense) that he or she otherwise would be entitled to assert. The two doctrines [of equitable tolling and equitable estoppel] are as different as apples and oranges: Tolling operates on the statute of limitations; equitable estoppel operates on the party." Major League Baseball, 790 So. 2d at 1077. Accordingly, while the former is "trump[ed] by "the 'tolling' proscription in section 95.051, Florida Statutes," the latter is not. Major League Baseball, 790 So. 2d at 1080.
In the instant case, in its Motion, Respondent has asserted that an order of dismissal should issue because Petitioner failed to file a charge of discrimination challenging his termination within the 365-day limitations period set forth in Section 760.11(1), Florida Statutes. The undersigned agrees that the FCHR should issue such an order.
Petitioner first filed a charge of discrimination challenging his termination on May 10, 2004, more than 365 days after his employment had been terminated. He did file with the OEO a completed Questionnaire prior to the expiration of the 365-day limitations period, but the completed Questionnaire did not constitute a charge of discrimination, particularly given
the Questionnaire's pre-printed language, which made it absolutely clear that the filing of the completed Questionnaire was not tantamount to the filing of a charge of discrimination. See Bost v. Federal Express Corp., 372 F.3d 1233 (11th Cir.
2004)(intake questionnaire filed with the federal Equal Employment Opportunity Commission containing pre-printed language "stat[ing] that the questionnaire was not the equivalent of a charge of discrimination" held not to be such a charge because, by filing this questionnaire, complainant "did not manifest an intent to activate the administrative process").
Having filed his charge of discrimination more than
365 days after the termination of his employment, Petitioner had the burden, at the evidentiary hearing on Respondent's Motion, to show that there is a legally valid reason to nonetheless allow him to pursue his challenge of his termination before the FCHR. See Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1250, 1251 (Fla. 3d DCA 1999)("The general rule is that, apart from statute, the burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal."); and National Industries, Inc. v. Commission on Human Relations, 527 So. 2d 894, 896 (Fla. 5th DCA 1988)("It is well established that the burden of proof is upon the party asserting the affirmative of an issue before an before
an administrative tribunal."). Petitioner, however, failed to meet this burden.
Petitioner presented no proof of the existence in the instant case of any of the "acts and circumstances" enumerated in Section 95.051, Florida Statutes. Absent such a showing, consistent with the holding in Greene, there can be no tolling of the 365-day period within which Petitioner was required, under Section 760.11(1), Florida Statutes, to file a charge of discrimination challenging his termination by Respondent. Neither did Petitioner present evidence supporting a finding that Respondent was responsible for Petitioner's missing the deadline for filing his charge and that therefore Respondent should be barred by the doctrine of equitable estoppel from contesting the charge's timeliness. See Williams v. Potamkin
Motor Cars, Inc., 835 So. 2d 310, 312 (Fla. 3d DCA 2002)("[T]he doctrine of 'equitable estoppel' cannot apply because there is no suggestion of post-accrual misconduct by the defendants.").
Petitioner seeks to place the blame, not on Respondent, but on the OEO, for his charge of discrimination having been filed more than 365 days from the date of his termination. He claims that the OEO "misled [him] of his obligations on April 14th and lulled him into thinking the 365 day time limit was met by the submission of the questionnaire." He also criticizes the OEO for its "failure . . . to timely
forward the matter to the Florida Commission on Human Relations." Based on these "facts and circumstances," he argues, a finding should be made that "the 365 day time limit was equitably tolled and further the complaint he filed on May 4th, 2004 [sic]6 should be considered timely filed for all purposes." The argument is unpersuasive because, most importantly, these alleged "facts and circumstances" are not
among those enumerated in Section 95.051, Florida Statutes, and therefore do not warrant the tolling of the 365-day limitations period. Greene, 701 So. 2d at 648.
Furthermore, even if the holding in Greene were to be ignored [notwithstanding that it represents binding precedent that the undersigned and the FCHR must follow7], and it were to be determined, contrary to that holding, that Section 95.051, Florida Statutes, imposes no limits upon the applicability of the doctrine of equitable tolling in cases like the instant one, there would still be no justifiable basis to equitably toll the 365-day charge-filing period in this case. This is because Petitioner has not established the existence of the required "extraordinary circumstances" necessary to merit an application of equitable tolling doctrine. See Environmental Resource Associates of Florida, Inc. v. Department of General Services, 624 So. 2d 330, 330-31 (Fla. 1st DCA 1993)("Appellant contends that its preparation and mailing of a petition for hearing
within the 21-day period evidences its intent not to waive its right to hearing, and that equitable tolling should delay the filing period so that its petition would be considered timely filed. We disagree that principles of equity should enlarge the time for filing in this case and affirm. . . . There is nothing extraordinary in the failure to timely file in this case. Quite to the contrary, the problem in this case is the too ordinary occurrence of a party's attorney failing to meet a filing deadline.").
At the time of his visit to the OEO office on April 14, 2004, Petitioner was aware, as a result of having
received attorney-generated legal advice, that he had 365 days from the date of his termination to file a charge of discrimination against Respondent if he wanted to challenge his termination as discriminatorily motivated in violation of Florida law. Although he claims that the OEO "lulled him into thinking the 365 days time limit was met by the submission of the questionnaire," it would have been unreasonable for him to have believed this since the pre-printed language of the Questionnaire, which he read before signing and submitting the document, contained clear and unambiguous language that should have left no doubt in his mind that the Questionnaire did not constitute a charge of discrimination and that therefore its submission was not the equivalent of filing the charge of
discrimination he needed to file by April 23, 2004, in order to preserve his right, under Florida law, to challenge his termination as discriminatorily motivated. Petitioner having done nothing to file such a charge from the time he submitted the Questionnaire until after the one-year anniversary of his termination, it cannot be said that he acted "with a reasonably prudent regard for his rights." The doctrine of equitable tolling will not be applied to excuse the untimely filing by a litigant who does not act reasonably and with due diligence to protect his or her rights. See Machules, 523 So. 2d at 1134, 1135; Jancyn Manufacturing Corp. v. Department of Health, 742 So. 2d 473, 476 (Fla. 1st DCA 1999)("As noted in Machules, 523 So. 2d at 1135, application of the doctrine of equitable tolling to allow the prosecution of an untimely administrative proceeding is dependent, in part, upon a showing that the litigant has not 'slept on its rights.' Because the record reveals that the failure to seek yet another extension or to file for a chapter 120 proceeding was the result of appellant's own inattention, and not the result of a mistake or agency misrepresentation, we affirm.")(citation omitted); Vantage Healthcare Corp. v. Agency for Health Care Administration, 687 So. 2d 306, 307-08 (Fla. 1st DCA 1997)("Nor do the 'equities' in this situation mandate that this letter of intent be accepted, despite having been filed late. Manatee chose to wait until the
eleventh hour, selected the carrier which was to deliver the letters, and failed to follow up and confirm that the letters had been received."); and Tozzo v. Quad T Ranch, No. 04-3003, slip op. at 8 (Fla. DOAH September 15, 2004)(Order on Respondent's Motion to Dismiss)("Nor do the facts suggest a reasonable basis for finding that Tozzo was lulled into inaction by the FCHR's failure to respond to her attorney's letter of July 20, 2004. In this regard, the undersigned is mindful that for the tolling doctrine to apply, the complainant must have 'acted with a reasonably prudent regard for his rights.' Machules, 523 So. 2d at 1134. A reasonably prudent person would not have interpreted the FCHR's nonresponse to a request that documents be provided in an alternative format as a reason to ignore the deadline for filing a petition.").
It may be argued that dismissal of Petitioner's charge for his missing the filing deadline by less than three weeks is a harsh result. "But all statutes of limitations [like Section 760.11(1), Florida Statutes], which by their very nature destroy otherwise just causes merely because of the passage of time, are inherently harsh. Harsh results represent a trade-off which the Legislature has decided it is willing to make in exchange for the burying of stale claims." Lee, 885 So. 2d at 943; see also
Tozzo, slip op. at 8-9 ("The undersigned recognizes that dismissal is a harsh punishment for missing a filing deadline by
just one day. But statutes of limitation such as Section 760.11(7) cannot be bent whenever their application would produce a harsh result, without undermining their usefulness."). "Procedural requirements established by [the Legislature] for gaining access to [an administrative forum] are not to be disregarded . . . out of a vague sympathy for particular litigants." Baldwin County Welcome Center v. Brown, 466 U.S.
147, 152, 104 S. Ct. 1723, 1726 (1984); see also Ocampo v.
Department of Health, 806 So. 2d 633, 634 (Fla. 1st DCA 2002)("An administrative agency is a creature of statute. An agency can only do what it is authorized to do by the Legislature."). "[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.
Ct. 2486, 2497 (1980).
In view of the foregoing, Petitioner's charge of discrimination must be dismissed as having been untimely filed.
RECOMMENDED that the Commission issue a final order dismissing Petitioner's charge of discrimination because it was not timely filed.
DONE AND ENTERED this 12th day of May, 2005, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2005.
1 During his testimony, Petitioner was unable to identify this "black, younger female" by name or give a more detailed description of her.
2 The record evidence does not reveal one way or the other whether the OEO Worker reviewed the contents of the completed Questionnaire after taking it from Petitioner.
3 See 29 C.F.R. § 1601.74(a).
4 "Although this statute states that a complaint 'may' be filed with the Commission, it is clear that such a complaint must be filed . . . by anyone who wishes to pursue . . . an administrative proceeding under this act." Ross v. Jim Adams Ford, Inc., 871 So. 2d 312, 315 (Fla. 2d DCA 2004).
5 This is of significance in view of Section 2.01, Florida Statutes, which provides as follows:
The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.
6 Petitioner's complaint was "filed" when the FCHR Agency Clerk received it, not when Petitioner signed or mailed it. See Fla. Admin. Code Rule 28-106.104(1); Fla. Admin. Code Rule 60Y- 3.001(29); and Fla. Admin. Code Rule 60Y-5.001(3).
7 See Pardo v. State 596 So. 2d 665, 666 (Fla. 1992)("This Court has stated that '[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.' Stanfill v. State, 384 SO. 2d 141,
143 (Fla. 1980). Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.").
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
Alan C. Espy, Esquire
Timothy O. Schranck, Esquire Fowler White Burnett, P.A.
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.
