Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The appearances were as follows:
For Petitioner: Sherman L. Thomas, pro se
Thompson, Sizemore & Gonzalez, P.A.
The issue to be resolved in this proceeding concerns whether the Petitioner, Sherman L. Thomas, timely filed his Employment Complaint of Discrimination, with the Florida
Commission on Human Relations (Commission), in which he alleges retaliation in violation of Chapter 760, Florida Statutes.
The Petitioner was employed by the Respondent since 1987. During the course of his employment he filed more than a dozen charges of discrimination with the Commission against the Respondent. On September 18, 2006, the Petitioner filed a Charge of Discrimination with the Commission alleging that he had been terminated on February 15, 2005, in retaliation for having filed a complaint on July 27, 2001. On May 22, 2007, the Commission rendered a "no jurisdiction" determination, concluding that the Petitioner had not timely filed his complaint. The Commission also concluded that it could find no basis to apply the doctrine of equitable tolling to excuse the untimely filing of his complaint or charge. Thereafter, the Petitioner filed a Petition for Relief which was duly transmitted to the Division of Administrative Hearings and the undersigned administrative law judge.
The hearing was scheduled for September 13, 2007. The cause came on for hearing as noticed. The Petitioner presented his own testimony at the hearing and offered and had admitted into evidence five exhibits. The Respondent relied on its cross-examination of the Petitioner and its arguments raised in the hearing and in the proposed recommended order. Upon
conclusion of the hearing a transcript was ordered and filed and the parties submitted proposed recommended orders which have been considered in the rendition of this Recommended Order. The Petitioner's Post-hearing motions are addressed in the Conclusions of Law below.
The Petitioner, Sherman L. Thomas, is an African- American male, employed at times pertinent hereto by the Respondent employer Progress Energy (Respondent). He was employed at times pertinent as a lineman for that corporation. He began working for the Respondent in 1987 and was terminated from his position on February 15, 2005.
During the period from 1990 to 2005, the Petitioner filed "maybe more than a dozen" charges with the Commission based on his contention that he had been discriminated against by the Respondent on account of his race. The Petitioner had filed at least one grievance, alleging retaliation against the Respondent, as early as 1994.
The Petitioner filed a complaint in every instance in which he believed he had suffered discrimination at the hands of the Respondent throughout his employment career with the Respondent.
When the Petitioner was terminated on February 15, 2005, he believed that the termination was a continuation of the
race discrimination he believed that he had experienced while working for the Respondent. The Petitioner also perceived that, at the time of his termination, retaliation was involved as to the termination decision, "as well as harassment."
On February 17, 2005, the Petitioner consulted with a union representative or representatives, to proceed with a grievance under the collective bargaining agreement which governed his employment. He wanted to file a grievance to attack and reverse the termination decision.
The Petitioner maintains that he filed his charge with the Commission on August 2, 2006, notwithstanding the date indicated in the complaint itself. The Respondent elects not to dispute the date of filing as of August 2, 2006. The date will have no legal difference in any event.
The Petitioner filed his complaint with the Commission more than 365 days after his termination on February 15, 2005. The Petitioner maintains that he did not file his Commission complaint earlier because he did not become aware of a document which informed his belief that he had suffered unlawful retaliation until February 2005. He contends that the document was produced by the Respondent in response to a request for information which the Petitioner's union representative made on his behalf during the course of the grievance process which was initiated to challenge his termination. That document described
an observation of the work of the Petitioner and another, white, employee of the Respondent. The Petitioner maintains that the document shows that the Respondent "gave weight" to the involvement of "EEO."
On May 22, 2007, the Commission issued a "No Jurisdiction Determination" concluding that the Petitioner's complaint was untimely filed and therefore barred by Section 760.11(1), Florida Statutes (2007).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Florida Statutes.
A claimant of employment discrimination is required to file a complaint with the Commission within 365 days of the alleged violation. This is a prerequisite to bringing an action based upon an alleged violation of Section 760.10, Florida Statutes (2007), the "Florida Civil Rights Act." See Woodham v.
BlueCross and BlueShield of Florida, 829 So. 2d 891, 894 (Fla. 2002).
The United States Supreme Court has determined that "strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." National Railroad Passenger
Corporation v. Morgan, 536 U.S. 101, 108, 122 S. Ct. 2061, 2070
(2002)(citing Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S. Ct 2486, 65 L. Ed. 2d 532 (1980)). As in the case of its federal counterpart statute Title VII, the statute of limitations period provided for in Chapter 760, Florida Statutes, does not begin to run for a claim under Chapter 760 until the Petitioner knew or reasonably should have known that he was discriminated against. Wakefield v. Cordis Corp., 211 Fed. Appx. 834, 836 (11th Cir. 2006); Carter v. West Publishing
Company, 225 F.3d 1258, 1265 (11th Cir. 2000). Even if Petitioner was unaware of all the facts regarding the mechanisms of the alleged discrimination, equitable tolling would be inappropriate if the Petitioner was aware that the Respondent was purportedly violating his right to be free of racial discrimination in his employment. See Ross v. Buckeye Cellulose
Corp., 980 F.2d 648, 660 (11th Cir. 1993).
The Petitioner believed that at the time of his termination on February 15, 2005, according to his testimony, that his termination was a continuation of alleged racial discrimination and was a form of retaliation.
The time period for filing of a complaint with the Commission may be extended if the Petitioner can establish that the doctrine of equitable tolling applies. Equitable tolling is an extraordinary remedy that is applied sparingly. See
Wakefield v. Cordis Corp., supra. Equitable tolling would be
appropriate if the Petitioner untimely filed "because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Id. (citing Sandvik v. United
States, 177 F.3d 1269, 1271 (11th Cir. 1999)).
The Petitioner bears the burden of showing that equitable tolling is appropriate. Ross v. Buckeye Cellulose Corp., 980 F.2d at 661; Carter v. West Publishing Company, supra.
This Petitioner has filed "maybe more than a dozen" charges with the Commission, according to his testimony, over a 15-year period leading up to the termination at issue. The Petitioner failed to file a timely complaint regarding the February 15, 2005, termination due to a lack of diligence, rather than extraordinary circumstances that were out of his control or were unavoidable. There was no showing that the action of the agency, the Commission, or any other person or entity induced him to delay exercising his rights under Chapter 760, Florida Statutes. "One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence." Justice v. U.S., 6 F.3d 1474, 1480 (11th Cir. 1993)(citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151-152, 104 S. Ct. 1723, 1726, 80 L. Ed. 2d 196 (1984)).
In this case, the interests of justice must side with the Respondent, since the Petitioner failed to act with due
diligence, despite being charged with the knowledge that the limitations period had begun to run, especially in light of his prior experience filing complaints with the Commission, and, perhaps more importantly, based on the fact that he was aware that he harbored his own belief at the time of the termination that he was being discriminated against and possibly retaliated against, in his opinion. Therefore, he knew or reasonably should have known of purported discriminatory conduct, so that he could have timely filed his complaint. Thus, the evidence does not show that there was any inducement from another person, entity, or agency which caused him to decide to delay filing his complaint beyond a 365-day period.
Further, the Petitioner's pursuit of independent remedies, such as the union grievance proceeding, initiated two days after his termination does not affect the Petitioner's duty to assert his claims within the limitation period. See Stafford
v. Muscogee County Board of Education 688 F.2d 1383, 1388 (11th Cir. 1982). Moreover, the initiation of these grievance proceedings shows that he knew or should have known of the alleged discriminatory conduct at that time, so that he could have timely filed his complaint. The contractual rights under a collective-bargaining agreement and the statutory rights provided under Federal Title VII, as well as Chapter 760, Florida Statutes, "have legally independent origins and are
equally available to the aggrieved employee," meaning that the Petitioner's assertion of his statutory right is independent of the grievance process or arbitration process. See International
Union of Electrical, Radio and Machine Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 236, 97 S. Ct. 441,
447 (1976)(citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 52, 94 S. Ct. 1011, 1022 (1974)).
In summary, since the Petitioner filed his charge with the Commission more than 365 days after the termination and no reason has been established to support tolling the time period required under Section 760.11(1), Florida Statutes (2007), for filing his charge with the Commission, the Petitioner's claim is time-barred. There is no jurisdiction in the Commission or the Division of Administrative Hearings to entertain his claim on the merits.
The Petitioner has filed a "Motion for Entry of Post- Hearing Exhibits" and a "Motion to File for Leave to Enter Pertinent Exhibits in Support of Proposed Recommendation." Inasmuch it has been determined that no jurisdiction exists for this cause, the motions, in effect, are moot. In any event, suffice it to say that the motions are not timely. There was a thoroughly adequate time for the parties to prepare for the hearing scheduled and heard on the above date. There was ample time for either party to prepare its exhibits and have them
