The Issue The issues in this proceeding are whether the petition for administrative hearing is barred by Sections 373.427(2)(c) and 120.569(2)(c), Florida Statutes (2000), or must be accepted by the agency pursuant to the judicial doctrine of equitable tolling. (All chapter and section references are to Florida Statutes (2000).)
Findings Of Fact In January of 2000, Whitley applied to DEP for permits to repair hurricane damage to a marina facility (the "Whitley Marina"). The Whitley Marina is located within sovereign submerged lands in Brevard County on the west side of the Indian River in Cocoa, Florida. On July 24, 2000, DEP issued the Notice of Intent from DEP's Central District office in Orlando, Florida. The permit number is 05-126125-002. The Notice of Intent expressly provided that petitions for an administrative hearing must be filed within 14 days of receipt of the Notice of Intent. Petitioner received the Notice of Intent on July 26, 2000. Counting July 27, 2000, as the first day of the 14-day time limit prescribed in the Notice of Intent, the Notice of Intent required Petitioner to file the Petition no later than August 9, 2000. Petitioner filed the Petition on August 14, 2000, which was 19 days after Petitioner received the Notice of Intent and five days after the expiration of the 14-day time limit prescribed in the Notice of Intent. The 14-day time limit in the Notice of Intent was based on the 14-day time limit prescribed in Section 373.427(2)(c). Unlike the Notice of Intent, however, Section 373.427(2)(c) does not state that the 14-day time limit begins to run on the date that the Notice of Intent is received. Rather, Section 373.427(2)(c) provides, in relevant part: Any petition for an administrative hearing pursuant to ss. 120.569 and 120.57 must be filed within 14 days of the notice of consolidated intent to grant or deny. (emphasis supplied) The literal terms of Section 373.427(2)(c) required the Petition to be filed within 14 days of the Notice of Intent issued on July 24, 2000. Counting July 25, 2000, as the first day of the 14-day time limit prescribed in Section 73.427(2)(c), Section 373.427(2)(c) required the Petition to be filed no later than August 7, 2000. Petitioner filed the Petition August 14, 2000. August 14, 2000, was 21 days after the date of the Notice of Intent on July 24, 2000, and seven days after the expiration of the 14-day time limit. The Notice of Intent also incorporated by reference Florida Administrative Code Rules 28-106.111(2) and 62- 110.106(3)(a) and (4). (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) Apart from the issue discussed in paragraphs 5 and 6, the two rules referred to in the Notice of Intent do not prescribe time limits that modify, enlarge, or contravene the 14-day time limit prescribed in the Notice of Intent and Section 373.427. Rule 28-106.111(2), in relevant part, provides: Unless otherwise provided by law, persons seeking a hearing on an agency decision . . . shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision. (emphasis supplied) The 21-day time limit prescribed in Rule 28-106.111(2) is expressly limited to requests for an administrative hearing for which a time limit is not "otherwise provided by law." The time limit applicable to the Petition is otherwise provided by law in Section 373.427(2)(c) as 14 days rather than the 21 days prescribed in Rule 28-106.111(2). Rule 28-106.111(2) makes the 21-day time limit expressly inapplicable to the Petition filed in this proceeding, and there is no conflict between the 21-day time limit in the Rule and the 14-day statutory time limit in Section 373.427(2)(c). The Notice of Intent also referred to Rule 62- 110.106(3)(a). Rule 62-110.l06(3)(a) prescribes four different time limits for petitions to contest four different types of agency action. Subparagraphs 1-3 in the rule pertain, respectively, to permits governed by Chapter 403, hazardous waste facility permits, and notices of violations. None of the three types of agency action governed by subparagraphs 1-3 are proposed in this proceeding. Therefore, the time limits in subparagraphs 1-3 are inapplicable to the Petition. Subparagraph 4 of Rule 62-110.106(3)(a) prescribes a 21-day time limit for filing petitions to challenge agency action for permits "under statutes other than . . . section 373.427." (emphasis supplied) Like Rule 28-106.111(2), Rule 62-110.106(3) makes its 21-day time limit expressly inapplicable to the Petition because the Petition contests a proposed permit that is governed by Section 373.427. Notwithstanding the 14-day time limit prescribed in Section 373.427(2)(c) and the express inapplicability of the 21- day time limits in Rules 28-106.111(2) and 62-110.106(3)(a)4, the respective attorneys for Petitioner and DEP incorrectly concluded that Petitioner had 21 days to file the Petition. On July 31, 2000, attorneys in DEP's Office of General Counsel received by facsimile a letter from a staff attorney for Petitioner. In relevant part, the letter stated: Page 6 of the . . . [Notice of Intent] indicates that "in accordance with rules 28- 106.111(2) and 62-10.106(3)(a)(4), petitions for an administrative hearing must be filed within 14 days of receipt of this written notice." I have reviewed each of the rules cited, and each provides a period of 21 days within which to file a petition requesting an administrative hearing. Please confirm that pursuant to Fla. Admin. Code R.28-106(2) and 62-110.106(3)(a)(4), this organization has 21 days from receipt of the Department's notice of its intended action within which to file a petition requesting an administrative hearing. . . . (emphasis not supplied) The first paragraph in the letter dated July 31, 2000, was correct. It correctly quoted the Notice of Intent, and the Notice of Intent correctly stated that the applicable time limit for filing the Petition was 14 days. The Notice of Intent also correctly stated that the 14-day time limit was in accordance with Rules 28-106.111(2) and 62-110.106(3)(a)4 because the 21- day time limits prescribed in the two rules do not apply to permits for which time limits are otherwise provided by law in Section 373.427(2)(c). The second paragraph in the letter from Petitioner was a mistake of law. The second paragraph incorrectly concluded as a matter of law that Rules 28-106.111(2) and 62-110.106(3)(a)4 prescribe 21-day time limits for permits governed by Section 373.427. Although the two rules each prescribe a 21-day time limit, the 21-day time limit in Rule 28-106.111(2) is expressly limited to permits for which a time limit is not otherwise provided by law, and the 21-day time limit in Rule 62- 110.106(3)(a) is expressly limited to permits other than those governed by Section 373.427. On August 1, 2000, the staff attorney for Petitioner received a facsimile from DEP that joined in the mistake of law. In a hand-written note, counsel for DEP stated in relevant part: Thank you for your fax/letter of July 31, 2000 regarding the Whitley permit. . . . Your reading of the rules is correct - the time to file a petition should have reflected 21 days, not 14. I have notified Central District staff, who will notify the Whitleys of this error. Thank you for calling this to our attention. (emphasis not supplied) DEP replicated the mistake of law originated by Petitioner. DEP's interpretation of its own statutes and rules was incorrect for reasons previously stated and not repeated here. Petitioner relied on its own mistake of law and that of DEP and filed the Petition within 21 days of the receipt of the Notice of Intent. However, Petitioner filed the Petition seven days after the expiration of the 14-day time limit prescribed in Section 373.427(2)(c) and five days after expiration of the 14-day time limit prescribed in the Notice of Intent. (Compare paragraphs 3 and 4 with paragraphs 5 and 6, supra.) Petitioner's facsimile to DEP on July 31, 2000, was not a request for hearing. The facsimile did not request an administrative hearing but merely inquired into the time for filing such a request. The facsimile on July 31, 2000, was not a petition for administrative hearing. Rule 62-110.106(3)(a) requires a petition for an administrative hearing to be in the form required by Rules 28-106.201 or 28-106.301. The facsimile on July 31, 2000, failed to satisfy the requirements of either rule. The Notice of Intent also referred to Rule 62- 110.106(4). That rule authorizes DEP to grant a request for extension of the 21-day time limit prescribed in the rule. The facsimile on July 31, 2000, did not request an extension of the 21-day time limit prescribed in Rule 62-110.106(3)(a). Even if the facsimile were construed as having the effect of a request for extension of the 14-day time limit prescribed in Section 373.427(2)(c), DEP had no authority to grant such a request. Rule 62-110.106(4) authorizes DEP to grant a request to extend the 21-day time limit in the rule but does not authorize DEP to grant a request to extend the 14-day statutory time limit in Section 373.427(2)(c). As a state agency, neither DEP nor DOAH can enlarge, modify, or contravene the specific provisions of a statute, including the provisions in Section 373.427(2)(c) that prescribe a 14-day time limit for filing the Petition. Nor can a state agency interpret Rule 62- 110.106(4) in a manner that enlarges, modifies, or contravenes the time limit in Section 373.427(2)(c). Sections 120.52(8)(c), 120.56, 120.57(1)(e), and 120.68(7)(d) and (e). The authority in Rule 62-110.106(4) to grant an extension of time is expressly limited in scope to a time limit that is prescribed by an order or rule of an agency or a time limit that is established in any notice given under such a rule. The 14-day time limit at issue in this case is prescribed by statute, rather than by an order or rule of DEP, and DEP issued the 14-day time limit in the Notice of Intent pursuant to the statutory authority in Section 373.427(2)(c) rather than the Rules that prescribe a 21-day time limit. Rule 28-106.111(3) authorizes DEP to grant a request to extend the 21-day time limit in Rule 28-106.111(2). Even if Rule 28-106.111(3) were deemed to authorize an extension of the 14-day time limit prescribed in Section 373.427(2)(c), the Notice of Intent referred to Rule 28-106.111(2) rather than to Rule 28-106.111(3). Moreover, the facsimile on July 31, 2000, failed to comply with the prerequisites in Rule 28-106.111(3) for an extension of time. The facsimile failed to satisfy the requirement in Rule 28-106.111(3) that a request for extension of time: . . . contain a certificate that the moving party has consulted with all other parties . . . concerning the extension and that the agency and any other parties agree to said extension. Petitioner did not consult with Whitley about an extension of time prior to sending the facsimile on July 31, 2000. Petitioner's noncompliance with the 14-day time limit in Section 373.427(2)(c) is not a minor infraction. Enforcement of the delay caused by Petitioner's noncompliance would have the effect of enlarging or modifying the 14-day statutory time limit by five to seven days, or approximately 36 to 50 percent. Enforcement of the delay caused by Petitioner's noncompliance with the 14-day time limit in Section 373.427(2)(c) would prejudice Whitley. It would effectively deny Whitley the right to a defense based on a statutory bar to untimely petitions that the legislature authorized in Section 373.427(2)(c). See also Section 120.569(2)(c)(requiring dismissal of untimely petitions) and relevant discussion in paragraphs 43-48, infra. Whitley did not mislead or lull Petitioner into noncompliance with the 14-day statutory time limit in Section 373.427(2)(c). DEP misled or lulled Petitioner into noncompliance. DEP is a nominal, or facilitating, party in this proceeding rather than an adversarial party with a stake in the outcome of the proceeding. Petitioner and Whitley are the adversarial parties in this proceeding whose substantial interests will be affected by the outcome of the proceeding. Petitioner's adversary in this proceeding did not mislead or lull Petitioner into noncompliance with the 14-day time limit prescribed in Section 373.427(2)(c). The remaining Findings of Fact are based solely on the factual stipulations between the parties. Whitley and DEP had actual knowledge that Petitioner intended to request an administrative hearing to challenge the Notice of Intent. Whitley knew in June of 2000 that Petitioner opposed the proposed permit. DEP knew of Petitioner's intent to request an administrative hearing when DEP received the facsimile from Petitioner on July 31, 2000. The facsimile from Petitioner on July 31, 2000, and the response from DEP on August 1, 2000, were not forwarded to DOAH and were not part of the record before the ALJ when the ALJ issued the original Recommended Order of Dismissal. However, both documents were part of the record when DEP considered the Recommended Order of Dismissal and issued the remand. Prior to referring the matter to DOAH, DEP determined that the matters contained in the facsimile and response from DEP were sufficient to initiate a proceeding conducted pursuant to Sections 120.569 and 120.57(1). No trick, deception, or deceptive practice was utilized to prevent Petitioner from responding to the Motion to Dismiss that Whitley filed after DEP referred the matter to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Petition for noncompliance with the 14-day time limit in Section 373.427(2)(c) and for noncompliance with the requirement for a timely petition in Section 120.569(2)(c). DONE AND ENTERED this 4th day of April, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (850) 488-9675 SUNCOM 298-9675 Fax filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2001. COPIES FURNISHED: M. B. Adelson, IV, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert Goodwin, Esquire Save the Manatee Club, Inc. 500 North Maitland Avenue, Suite 210 Maitland, Florida 32751 Scott M. Price, Esquire J.A. Jurgens, P.A. 505 Wekiva Springs Road, Suite 500 Longwood, Florida 32779 William E. "Ted" Guy, Esquire John S. Yudin, Esquire Guy and Yudin, P.A. 55 East Ocean Boulevard Stuart, Florida 34995-3386 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The ultimate issue for determination is whether Respondent discriminated against Petitioner on the basis of her age by failing to provide equal raises in October 1994 and equal termination benefits in August 1995, in violation of Section 760.10(1), Florida Statutes (1997). (All statutory references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner did not appear at the administrative hearing and did not submit any evidence. Respondent seeks attorney fees and costs incurred as a result of Petitioner's failure to comply with the Discovery Order. It is uncontroverted that Petitioner is a female born on November 17, 1929, and a member of a protected class. Respondent employed Petitioner up to her dismissal on August 1, 1995. Petitioner filed a Charge of Discrimination with the Commission on or about August 31, 1995. The Commission's date stamp on the Charge of Discrimination is legible only for the month and year of filing. August 31, 1995, is the deemed date. Petitioner's Charge of Discrimination contains two allegations of age discrimination. First, Petitioner alleges that Respondent discriminated against Petitioner on August 1, 1995, by terminating Petitioner's employment without the same severance pay that Respondent paid to one of Petitioner's co- workers. Second, Petitioner alleges that in October 1994 Respondent failed to give Petitioner the same raise as Respondent gave Petitioner's co-workers in the same position, i.e., a laboratory technician. Time Limits The Charge of Discrimination was timely filed in accordance with the requirements of Section 760.11(1). The filing date of August 31, 1995, fell within 365 days of the earliest alleged discrimination on October 1, 1994. Section 760.11(3) authorized the Commission to issue a determination of reasonable cause within 180 days of August 31, 1995, when the Charge of Discrimination was filed. Counting September 1, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized Commission to determine reasonable cause no later than February 27, 1996. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of February 27, 1996. Counting February 28, 1996, as the first day of the 35-day period and assuming for the benefit of Petitioner that February 1996 had only 28 days, Section 760.11(7) required Petitioner to file a request for hearing no later than April 3, 1996. Petitioner did not timely file her request for administrative hearing. Petitioner first requested an administrative hearing in the Petition for Relief filed on September 10, 1997. Petitioner filed her request for hearing approximately 525 days late and 560 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred. Fees and Costs The Commission referred the request for hearing in the Petition for Relief to DOAH on October 16, 1997. On November 3, 1997, Respondent filed its Answer and Affirmative Defenses and its Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and Alternative Motion for More Definite Statement with Incorporated Memorandum of Law in Support Thereof (respectively, the "Motion to Dismiss" and "Motion for More Definite Statement"). On October 17, 1997, Respondent served Petitioner with copies of the Motion to Dismiss and Motion for More Definite Statement by United States Mail. Petitioner did not file a response to the Motion to Dismiss and Motion for More Definite Statement within 12 days of the date of service, or anytime thereafter. On November 18, 1997, an Order to Show Cause required Petitioner to file no later than December 15, 1997, a written response stating why the relief requested by Respondent should not be granted. A Notice of Hearing issued on the same date scheduled the administrative hearing for February 9, 1998. On December 8, 1997, Petitioner filed her written response to the Order to Show Cause but did not serve a copy on Respondent. On December 30, 1997, a Notice of Ex Parte Communication provided Respondent with a copy of Petitioner's written response and reminded each party to serve the opposing party with copies of any documents filed with DOAH. On January 15, 1998, Respondent filed a renewed Motion to Dismiss and Motion for More Definite Statement and requested a continuance of the administrative hearing on the ground that Respondent had not received a copy of Petitioner's response to the Order to Show Cause until the first week in January. Petitioner did not respond to either of the renewed motions or to the motion for continuance. On February 3, 1998, the ALJ continued the hearing to a date to be agreed upon by the parties during a telephone hearing scheduled for February 9, 1998. The telephone hearing was scheduled to hear oral argument on Respondent's pending motions and as a case management conference. At the outset of the telephone conference conducted on February 9, 1998, Petitioner stated that she did not wish to proceed without counsel. Petitioner represented that she had been attempting to obtain counsel, without success, and requested additional time in which to obtain counsel. Attorney Robert Hosch, Petitioner's nephew, participated in the motion hearing on February 9, 1998, for the limited purpose of representing that he would assist Petitioner in obtaining counsel. The ALJ granted Petitioner's request for additional time; reserved ruling on Respondent's pending motions for disposition after hearing oral argument during a telephone conference rescheduled for March 2, 1998; instructed Petitioner to have her attorney file a notice of appearance no later than February 19, 1998, and a response to Respondent's renewed Motion to Dismiss and Motion for More Definite Statement no later than March 2, 1998. Pursuant to the agreement of the parties during the telephone conference, the ALJ scheduled the administrative hearing for April 28, 1998. On February 23, 1998, an Order Continuing and Rescheduling Formal Hearing memorialized the foregoing matters. On March 2, 1998, the parties and Mr. Hosch participated in another telephone conference concerning Respondent's Motion to Dismiss and Motion for More Definite Statement. Mr. Hosch stated that he did not represent Petitioner but was assisting her in obtaining counsel. Petitioner requested additional time in which to obtain counsel. The ALJ required Petitioner to file a more definite statement and a notice of appearance from her attorney, if any, no later than March 12, 1998. The ALJ instructed the parties and Mr. Hosch that failure to file a more definite statement and any notice of appearance on or before March 12, 1998, would result in dismissal of the proceeding. On March 6, 1998, an Order Granting Motion for More Definite Statement memorialized the rulings and instructions entered during the March 2 telephone conference. On March 13, 1998, Petitioner filed a one-page letter purporting to be a more definite statement. On March 16, 1998, the undersigned entered a Recommended Order of Dismissal. On April 5, 1999, the Commission entered an Order Remanding Case to Administrative Law Judge for Further Proceedings on the Merits (the "Remand"). In relevant part, the Remand concluded that the Recommended Order of Dismissal denied Petitioner her right to represent herself and that it was an abuse of discretion to do so. The Remand stated, in relevant part: An examination of the DOAH file discloses that Petitioner attempted to file a more definite statement by letter dated 3/11/98, and received by DOAH 3/13/98. It is not known why the Judge does not refer to this letter in his Order. Perhaps it was ignored because it was received one day late. If so, this only strengthens the Commission's finding that the Petitioner was deprived of an essential due process requirement of Florida law, and the Judge abused his discretion. . . . it is necessary that there be a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard of the order. Petitioner's argument . . . is probably strong enough by itself to remand the Recommended Order, at least on the issue of willful or deliberate default. Remand at fourth unnumbered page. On April 19, 1999, an Order Reopening File required the parties to file a status report no later than May 17, 1999. The Order expressly stated that failure to timely file a status report would result in the dismissal of the case. Neither party timely filed a status report. On May 20, 1999, Respondent filed Respondent's Status Report requesting rulings on the original and renewed Motion to Dismiss and Motion for More Definite Statement and requesting the administrative hearing to be scheduled after January 1, 2000. Petitioner never filed a status report and did not respond to Respondent's request for rulings on the pending motions. On June 9, 1999, the ALJ entered an Order Denying Dismissal. The Order denied Respondent's original and renewed Motion to Dismiss and Motion for More Definite Statement. On the same date, a Notice of Hearing scheduled the administrative Hearing for September 28 and 29, 1999, and a Prehearing Order required the parties to comply with several requirements incorporated herein by this reference. On June 25, 1999, Respondent filed Respondent's Motion for Continuance of the hearing scheduled for September 28-29, 1999, on the ground that counsel for Respondent was scheduled for a four-week trial in circuit court beginning September 21, 1999. Petitioner never responded to the Motion for Continuance. An order dated July 13, 1999, rescheduled the administrative hearing for January 20 and 21, 2000. On November 16, 1999, Respondent served Petitioner with Respondent's First Set of Interrogatories and Respondent's First Request for Production of Documents. Petitioner neither objected to nor answered either discovery request. On November 30, 1999, Respondent served Petitioner with a Notice of Taking Deposition Duces Tecum on December 16, 1999. On December 1, 1999, Petitioner filed a letter requesting a continuance of the administrative hearing and an extension of time to respond to discovery and to attend the deposition. In relevant part, the letter stated that Petitioner continues: . . . to have difficulty finding counsel who will assist me on a contingency fee basis . . . . At this time, it would be impossible for me to pay an attorney for his or her time in assisting me. For the same reason, I am requesting that each of the parties' discovery efforts be halted for a short period of time, in order that I might find counsel to help me with my responses and to attend my deposition. I do understand that the Respondent has a right to gather information about my claim and I plan to fully cooperate with those efforts. However, I need the assistance of an attorney in preparing my case and representing me at deposition and at the hearing. I am diligently trying to secure counsel and I only seek a reasonable continuance of the hearing and of pending discovery. . . . Please allow at least a few extra months before the hearing date and allow me at least an additional month to respond to the Respondent's discovery requests and to attend my deposition, which is currently scheduled for mid-December, 1999. . . . On December 10, 1999, Respondent filed Respondent's Objection to Petitioner's Request for Continuance and Rescheduling of Formal Hearing and Request for Stay of Discovery. On December 14, 1999, Respondent filed Respondent's Limited Withdrawal of Objection to Continuance and Amended Response to Request for Continuance. Respondent agreed to a continuance of the hearing for one month but objected to any extension of the time for responding to discovery requests or for taking the deposition. An order dated December 17, 1999, rescheduled the administrative hearing for February 28 and 29, 2000, and denied Petitioner's request to stay discovery while she sought counsel. Counsel for Respondent made reasonable efforts to conduct discovery at Petitioner's convenience. Subsequent to November 30, 1999, when Respondent's counsel scheduled Petitioner's deposition for December 16, 1999, Petitioner contacted Respondent's counsel to reschedule the December 16 deposition because Petitioner was recovering from a cold. Respondent's counsel rescheduled the deposition for January 4, 2000, and specifically obtained Petitioner's approval of the January 4th-deposition date. During the week of December 27, 1999, Petitioner contacted Respondent's counsel and represented that Petitioner was scheduled to have surgery to remove cancer from Petitioner's mouth on January 3, 2000. Petitioner stated that she would not be able to talk for several weeks and would not be able to appear at the January 4th deposition. Respondent's counsel agreed to reschedule the deposition if Petitioner would provide written confirmation of the scheduled surgery from Petitioner's physician. Petitioner never provided the written confirmation. Respondent's counsel re-noticed Petitioner's deposition for January 17, 2000. Respondent's counsel obtained Petitioner's specific approval of the new deposition date before scheduling the deposition. Petitioner failed to appear for her deposition on January 17, 2000, and Respondent's counsel rescheduled the deposition for February 2, 2000. Respondent's counsel made several requests by telephone to obtain Petitioner's answers to interrogatories and Petitioner's response to the request to produce. Both discovery requests had been served on November 16, 1999. Petitioner never objected to or answered Respondent's interrogatories and never objected to or produced the requested documents. On January 10, 2000, Respondent's counsel filed a Motion to Compel and Motion for Sanctions; and Respondent's Motion to Compel Appearance at Deposition and Responses to Discovery and Motion for Sanctions. The Discovery Order (dated January 28, 2000) reserved ruling on the request for sanctions until an evidentiary hearing could be conducted during the administrative hearing scheduled for February 28, 1999. However, the Discovery Order granted the request to compel Petitioner's appearance at the deposition scheduled for February 2, 2000; required Petitioner to bring to the deposition her answers to interrogatories and any documents in response to Respondent's request to produce; and required Petitioner to file her Prehearing Statement in accordance with the requirements of the Prehearing Order entered on June 9, 1999. On January 28, 1999, the administrative assistant for the ALJ telephoned Petitioner and read paragraphs 1-7 of the Discovery Order. On the same date, Respondent's counsel caused a copy of the Discovery Order to be hand-delivered to Petitioner's residence. Petitioner was not home, and the courier posted the Discovery Order on the front door of Petitioner's residence. On January 29, 2000, Respondent's counsel personally hand-delivered a copy of the Discovery Order to Petitioner at Petitioner's residence and informed Petitioner of the Order's contents. On February 2, 2000, Petitioner failed to appear for her deposition. Petitioner never filed her answers to interrogatories, never filed the documents sought in Respondent's request to produce, and never filed a Prehearing Statement. Respondent's counsel telephoned Petitioner to confirm that Petitioner would be attending a prehearing conference that had been previously scheduled in accordance with the requirements of the Prehearing Order entered on June 9, 1999. Petitioner stated that she would not attend the prehearing conference. When Respondent's counsel asked why Petitioner would not attend the prehearing conference, Petitioner hung up without explanation. When counsel for Respondent made additional attempts to coordinate a prehearing conference, Petitioner refused to speak to counsel for Respondent. Petitioner's refusal to appear at deposition, answer interrogatories, produce documents, and participate in a prehearing conference individually and collectively prejudiced Respondent's ability to prepare a defense. Petitioner's refusal denied Respondent relevant and material information including the identity of Petitioner's witnesses and exhibits as well as Petitioner's current employment and earnings. Petitioner's refusal deprived Respondent's counsel of the ability to fully perform her duties and responsibilities to her client. Respondent incurred attorney's fees and costs as a result of Petitioner's refusal to appear at deposition, answer interrogatories, and produce documents. Respondent incurred court reporter costs of $169.15 as a result of Petitioner's refusal to appear at any of her depositions. Respondent incurred attorney's fees of $499.75 as a result of Petitioner's refusal to appear at her first deposition. Respondent incurred attorney's fees of $1,870.50 as a result of Petitioner's failure to appear at her second deposition, answer interrogatories, and produce documents; and as a result of various motions filed to obtain Petitioner's attendance at deposition and Petitioner's responses to discovery requests. Petitioner willfully and deliberately disregarded the requirements of the Discovery Order. In relevant part, paragraph 6 in the Discovery Order stated: In the absence of competent and substantial evidence of good cause submitted by Petitioner, the failure of Petitioner to timely comply with the requirements of this Order shall be "equivalent to willfulness or deliberate disregard of the order [quoting from the Remand]." Upon Respondent's timely motion and showing of good cause for imposing sanctions, such failure by Petitioner shall subject Petitioner to the imposition of appropriate sanctions including the assessment of fees and costs, the preclusion of evidence, and the dismissal of this proceeding. Petitioner had adequate notice of the terms of the Discovery Order and the opportunity to show good cause for her failure to comply with the Discovery Order. On January 28, 2000, the administrative assistant for the ALJ read to Petitioner over the telephone the contents of paragraphs 1-7 of the Discovery Order. Petitioner received a copy of the Discovery Order on January 28 and 29, 2000. On January 29, 2000, Respondent's counsel explained the Discovery Order to Petitioner. Petitioner chose not to comply with the Discovery Order. Petitioner neither appeared at the administrative hearing to present evidence to prove the merits of her case nor appeared to present evidence to show why the sanctions requested by Respondent should not be granted. Monetary sanctions are appropriate in this case and commensurate with the offense. Dismissal and the preclusion of evidence are neither appropriate nor adequate sanctions because Petitioner did not appear at the administrative hearing and did not present any evidence. Respondent's counsel was required by law and the rules of ethics to make every reasonable effort to prepare an adequate defense of her client for presentation at the administrative hearing. Dismissal is not appropriate for other reasons. The Commission reversed a previous dismissal in this case and remanded the case in an effort to ensure Petitioner's right to represent herself. After the remand, Petitioner sought additional time to obtain counsel. Relevant orders allowed Petitioner additional time to obtain counsel; afforded Petitioner the right to represent herself during discovery, in accordance with the purpose of the Remand; and attempted to balance the competing interests of the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as untimely filed; finding that Respondent did not discriminate against Petitioner; denying Petitioner's Charge of Discrimination and Petition for Relief; and imposing monetary sanctions against Petitioner in the aggregate amount of $2,539.40. DONE AND ENTERED this 6th day of April, 2000, in Tallahassee, Leon County, Florida. 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 6th day of April, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Janet M. Courtney, Esquire Lowndes, Drosdick, Doster, Kantor and Reed, P.A. 215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802 Margaret H. Wilson 5532C Cinderlane Parkway Orlando, Florida 32808
