04-001136 Ada Pelt-Washington vs. Bma Starke Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, April 11, 2005.

Summary: The filing of a Petition for Relief is 180 days, where no determination has been made. If a Petition for Relief has never been filed with the Commission, the case cannot be heard at the Division of Administrative Hearings.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADA PELT - WASHINGTON, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1136

)

BMA STARKE, )

)

Respondent. )

_____ )

RECOMMENDED ORDER OF DISMISSAL

This cause came o n for resolution upon Respondent's "Motion

to Dismiss, or, in the Alternative, Motion for Summary

Judgment," and Petitioner's Response thereto. Oral argument was

heard by telephonic conference call on June 23 and 25, 2004.

APPEARANCES

For Petitione r: Samuel A. Mutch, Esquire

Mutch & Levine, P.A.

2114 Northwest 40th Terrace, Suite A - 1

Gainesville, Florida 32605 - 3592

For Respondent: Carlos J. Burruezo, Esquire

Fisher & Phillips, LLP

1250 Lincoln Plaza

300 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether this case is properly before the Division of

Administrative H earings.

PRELIMINARY STATEMENT

On June 15, 2004, Respondent filed its "Motion to Dismiss,

or, in the Alternative, Motion for Summary Judgment." In a

telephonic conference on June 23, 2004, the undersigned offered

Petitioner a continuance of the final he aring scheduled for

June 30 through July 1, 2004, in order to allow time for

Petitioner to file a written response to the pending Motion.

Instead, Petitioner elected to file a Response immediately, and

did so on June 24, 2004. Oral argument by telephonic conference

was held on the Motion and Response on June 25, 2004.

The Motion has been treated as a motion for a recommended

order of dismissal.

The material facts as found herein are not in dispute.

FINDINGS OF FACT

1. On or about April 2, 2004, the Florida Commission on

Human Relations (Commission) forwarded a packet of papers, as

more fully described below, to the Division of Administrative

Hearings (Division). At the request of the parties, a disputed -

fact hearing was scheduled for June 30, 2004 through July 1,

2004.

2. The Charge of Discrimination in this cause bears a

signature date of April 23, 2002. It states that the most

recent alleged discrimination occurred in December 2001, and

alleges race, color, and religious discrimination and

r etaliation.

3. The copy of the Charge sent to the Division in the

Commission's referral packet bears a Commission date - stamp of

December 2, 2002. However, Respondent has provided a copy of

the Charge, showing that it was first filed with the Commission

o n November 19, 2002, and the parties are in agreement that

November 19, 2002, was the date of actual filing of the Charge

with the Commission. The Charge filed with the Commission was

accompanied by a cover letter dated November 14, 2002, and a

"confident ial" affidavit also dated November 14, 2002.

4. On December 6, 2002, Respondent received the

Commission's Notice of Petitioner's Charge of Discrimination.

Thereafter, Respondent submitted its position statement with

attachments to the Commission.

5. The parties subsequently engaged in settlement

discussions but were unable to come to terms. 1/ On November 20,

2003, the law office representing Petitioner notified the

Commission that settlement was not possible and that

Petitioner's attorney wante d to be advised of the Equal

Employment Opportunity Commission (EEOC) case number assigned to

the same allegations of discrimination by the EEOC, pursuant to

the Commission's work - sharing agreement with that Federal

agency.

6. On January 21, 2004, Pe titioner's attorney's law office

again wrote to the Commission requesting the EEOC case number

and stating, "[W]e may take our client's issues up in the

judicial arena." 2/

7. Petitioner filed with the Commission on February 10,

2004, an Election of Righ ts signed by her attorney on

February 9, 2004, on which the following option had been

checked:

More than 180 days have elapsed since I

filed my charge of discrimination. I wish

to withdraw my charge and file a Petition

for Relief to proceed with an admin istrative

hearing as provided for under Florida

Statutes Section 760.11(4)(b) and (8).

8. On February 16, 2004, the Commission sent a letter to

Petitioner's attorney confirming its receipt of the Election of

Rights on February 10, 2004, and reciting the foregoing reason

stated therein. The Commission attached to its letter a blank

petition for relief with instructions that the petition should

be completed and returned to the Commission within 20 days.

Twenty days from the Commission's February 16, 2004, letter

would have been March 8, 2004.

9. By a letter dated March 16, 2004, Petitioner's attorney

wrote the Commission advising that for purposes of the EEOC

claim, "March 23, 2002," should be used as the last date of

discrimination. March 23, 2002, is a date four months after the

date alleged in the Charge of Discrimination which had been

filed with the Commission. ( See Finding of Fact No. 3.)

10. Apparently, the Commission filed the EEOC complaint

with that federal agency on March 18, 2004.

11. By a March 18, 2004, form letter, the Commission

advised Petitioner, via her attorney, that the EEOC claim had

been filed and given a number. The Commission's form advises

that Petitioner need do nothing with the EEOC until the

Commission has made its final fi ndings in the case before the

Commission.

12. The March 18, 2004, EEOC complaint is virtually

identical in all respects to the Charge filed by Petitioner with

the Commission on November 19, 2002, except for the date of

alleged discrimination. ( See Find ing of Fact No. 9.)

13. On March 29, 2004, Petitioner's attorney signed a

second Election of Rights, checking the same reasons as were

given in the February 10, 2004, Election of Rights. ( See

Finding of Fact No. 7.) The second Election of Rights was fil ed

with the Commission on March 31, 2004.

14. On April 1, 2004, the Commission sent a second letter

to Petitioner via her attorney, confirming receipt of

Petitioner's second Election of Rights dated March 29, 2004, and

stating that it had been filed on March 30,[sic] 2004. This

Commission letter again reiterated the option requested by the

Petitioner. ( See Finding of Fact Nos. 7 and 13.)

15. The April 1, 2004, letter from the Commission attached

a second blank petition for relief for Petitioner to c omplete,

and further advised:

The initial letter dated February 16, 2004

included the Petition for Relief to be filed

with the Commission within 20 days of the

dated letter. We have not received the

P etition for R elief to date; therefore I am

enclosing another P etition for R elief to be

completed. Forward the original P etition

for R elief to the Division of Administrative

Hearings and mail a copy to the Division.

The E lection of R ights F orm will be

forwarded to the Division of Administrative

Hearings for case assignment as requested.

16. On April 1, 2004, the Commission filled out a

Transmittal of Petition form, which it forwarded to the

Division, attaching only the Commission's April 1, 2004, letter

to Petitioner's attorney, a copy of the original Ch arge of

Discrimination incorrectly date - stamped as filed with the

Commission on December 2, 2003 ( see Finding of Fact No. 3), and

a copy of Petitioner's Election of Rights, dated March 29, 2004,

which had been signed by her attorney. ( See Finding of Fact

No. 13.)

17. Petitioner admits that at no time within 20 days of

either the Commission's February 16, 2004, letter or the

Commission's April 1, 2004 letter, did Petitioner file a

Petition for Relief either with the Commission or the Division.

18. Not until after Respondent had moved to dismiss before

the Division on June 15, 2004, did Petitioner file a Petition

for Relief. On June 24, 2004, that Petition for Relief was

filed with the Division, without prior leave of an

Administrative Law Judge of the Division. The Petition was not

on a Commission form. As of June 25, 2004, the date of oral

argument on the Motion to Dismiss and Response thereto, the

free - form Petition for Relief had only been filed with the

Division and had never been filed with the Commission. On the

basis of the record before the Division, it appears that

Petitioner has never filed with the Commission a Petition for

Relief, also known as a request for administrative hearing.

19. It is undisputed that no Petition for Relief or

re quest for administrative hearing was filed by Petitioner with

the Commission within 215 days of filing the Charge of

Discrimination with the Commission, which would have been 180

days plus 35 days; nor within 35 days of February 16, 2004, the

date of the C ommission's first letter advising Petitioner to

timely file a Petition for Relief with the Commission; or within

35 days of April 1, 2004, the date of the Commission's second

letter advising Petitioner to timely file a Petition for Relief

with the Commissi on.

CONCLUSIONS OF LAW

20. For the reasons set out hereafter, the Division of

Administrative Hearings does not have jurisdiction of this

cause, pursuant to Sections 120.569 and 120.57(1) and

Chapter 760, Florida Statutes.

21. The following statutes are important in reaching the

foregoing conclusion. Only the pertinent parts have been

quoted.

760.11 Administrative and civil

remedies; construction --

* * *

(4) 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:

(a) Bring a civil action against the

person named in the complaint in any court

of competent jurisdiction; or

(b) Request an adm inistrative hearing

under ss. 120.56 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.

* * *

(6) . . . 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. . . .

* * *

(8) In the event that the commission

fails to concil iate 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.

22. Petitioner filed a Charge of Discrimination with the

Commission on November 19, 2002.

23. One hundred and eighty days passed without the

Commission reaching a determination of reasonable cause or no

reasonable cause.

24. Section 760.11(8), Florida Statutes, provided

Petitioner with two options at the end of 180 days: (1) to

bring a civil action pursuant to Subsection (4)(a), or (2) to

request an administrative hearing, pursuant to Subsection

(4)(b), Florida Statutes.

25. An administrative heari ng pursuant to Subsection

(4)(b) must be requested no later than 35 days after the date of

determination of reasonable cause by the Commission.

See § 760.11(6), Fla. Stat.

26. The same 35 - day filing requirement exists for the

filing of a Petiti on for Relief with the Commission after a

determination of no reasonable cause. See §§ 760.11 (7),

Fla. Stat. Any filing after the 35 days has run has been

consistently barred by the statute and case law. See Clardy v.

Department of Corrections , DOAH Ca se No. 04 - 1020 (RO: May 6,

2004); Wayne v. Pagliara v. Marion County Fire - Rescue

Department , DOAH Case No. 04 - 0096 (RO: February 5, 2004; FO:

June 30, 2004); Garland v. Dept. of State , DOAH Case No. 00 - 1797

(RO: July 24, 2000; FO: February 8, 2001); McGill v. U.S. Marine

/Bayliner Marine Corp., DOAH Case No. 95 - 6018 (RO: March 18,

1996); FO approved); Hall v. Boeing Aerospace Operation , DOAH

Case No. 94 - 6976 (RO: March 29, 1995; FO approved); Wright v.

HCA Central Florida Regional Hospital, Inc. , DOAH Case No. 94 -

0070 (RO: July 27, 1995; FO: January 26, 1995); Pusey v. Knapp ,

DOAH Case No. 96 - 3321 (RO: November 25, 1996; FO: October 16,

1997).

27. For a very long time, the case law uniformly held that

someone in Petitioner's situation has 35 days, from the one

hundred and eightieth day, in which to file a Petition for

Relief with the Commission. Under this line of cases,

Petitioner herein would have had until May 19, 2003, plus 35

days, in which to file her Petition for Relief with the

Commission. Clearly, Petitioner did not file a Petition for

Relief by that date. This flaw was long considered

jurisdictional and fatal. The Legislature has clearly directed

that an aggrieved person has 35 days within which to file a

request for administrative hearing, and an appellate court has

clearly directed that the filing period begins to run

immediately upon the expiration of the 180 - day period, if the

Commission has taken no action. See Milano v. Moldmaster, Inc.

703 So. 2d 1093 (Fla. 4th DCA 1997), which decision w as departed

from, in part, in Joshua v. City of Gainesville , 768 So. 2d 432

(Fla. 2000).

28. Petitioner's reliance on Joshua v. City of

Gainesville , supra is misplaced. That case involved a four - year

statute of limitations being extended to a civil actio n brought

in circuit court by a petitioner where there had been at least a

modicum of misleading information provided by the Commission.

29. The decision in Woodham v. Blue Cross and Blue Shield

of Florida, Inc. , 829 So. 2d 891 (Fla. 2002), leads to the

conclusion that the Florida Supreme Court now recognizes that

when the Commission fails to make an agency determination within

the 180 - day time limit in Section 760.11(3), Florida Statutes,

the parties are to rely on the legislative determination of

re asonable cause which occurs by operation of Section 760.11(8),

Florida Statutes, and the legislative determination of

reasonable cause enables Petitioner to request an administrative

hearing pursuant to Sections 760.11(4)(b), 120.569, and

120.57(1), Florid a Statutes.

30. The undersigned is not unmindful of the Commission's

decisions in Miller v. Leesburg Medical Center , FCHR Remand

Order 99 - 1480, entered January 2, 2003, and Saunders v. Hangar

Prosthetics and Orthotics, Inc. , FCHR Final Order 01 - 0872,

entered March 20, 2002, wherein the Commission as much as said

that when it fails to make a determination of reasonable or no

reasonable cause within the 180 days mandated by the statute,

the complainant automatically receives an unlimited period of

time from the date of the last alleged discriminatory offense

(not just the four years provided for a circuit court action,

which was the holding in Joshua ) in which to file his or her

Petition for Relief with the Commission. The Commission's Order

in Saunders adopts Prentice v. North American Realty Corp. d/b/a

North American Acquisition Corp. , FCHR Order 00 - 021 (FCHR

January 9, 2001) and Wilson v. Scotty's, Inc. , FCHR Order No.

98 - 032 (FCHR 1998). The Commission's Order in Prentice purports

to overrule the A rticle V appellate court in Milano v.

Moldmaster , 703 So. 2d 1093 (Fla. 4th DCA 1997), for Section

760.11(4)(b) purposes, as Joshua did for Section 760.11(4)(a)

purposes.

31. However, the case at bar differs from Miller and

Saunders . At least in each o f those cases, the Petitioner had

filed a Petition for Relief with the Commission. Herein, the

record only reflects that the Petition was filed with the

Division. Also herein, the Petitioner did not timely comply

with the two letters of instruction issue d by the Commission,

each of which equates procedurally with a "right to sue" letter.

32. In the instant case, there has been no materially

misleading or absent information attributable to the Commission

which would have affected the timely filing of a Pe tition for

Relief. Rather, herein, the Commission twice advised Petitioner

to file a Petition for Relief, and twice Petitioner did not do

so within 35 days of either letter of instruction.

33. A generous reading of the combined statutory schemes

estab lished by Chapters 120 and 760, Florida Statutes, would be

that the blank Petition for Relief form sent by the Commission

to Petitioner is not a mandatory document. Therefore, if

Petitioner had not utilized the Commission's form, but had filed

a request f or hearing which was adequate under Chapter 120,

Florida Statutes, and Chapter 28 - 106, Florida Administrative

Code (The Model Rules), and that free - form request had been

appropriately and timely filed with the Commission, within 35

days of the Commission's first acknowledgment that Petitioner

wished to file for an administrative hearing (the first

Commission letter instructing when to file the Petition with the

Commission), and finally , after the Commission's review, that

free - form request for hearing had b een transmitted by the

Commission to the Division, then jurisdiction would lie in the

Division. In other words, if some appropriate request for an

administrative hearing had been filed with the Commission within

35 days of the Commission's February 16, 20 04, acknowledgment

that Petitioner wished to file for an administrative hearing,

jurisdiction would rest in the Division, once the Commission had

assessed the free - form request 3/ for sufficiency under the

statutes and Model Rules and had then transmitted t he request to

the Division. However, that scenario did not occur. Petitioner

did not file within 35 days of either the Commission's

February 16, or April 1, 2004, acknowledgment/instructional

letter.

34. Petitioner did not comply with the statutory time

frame for filing and did not comply with the statutory

requirement of filing a petition/request for hearing with the

referring agency, in this case, the Commission. The latter flaw

also puts this case outside the prerequisites of Sections

120.569 and 120 .57(1), Florida Statutes, which statutory

requirements are incorporated into Chapter 760, Florida

Statutes, by Sections 760.11 (6) and (7), Florida Statutes, and

by the Commission's own rules.

35. The Commission's 180 days to take action on

Petitioner's i nitial complaint/Charge of Discrimination ran out

on May 19, 2003. The thirty - fifth day following May 19, 2003,

was June 23, 2003. Petitioner did not timely file a Petition

for Relief but eventually elected an administrative hearing on

February 9, 2004, more than 266 days after the expiration of the

180 - day time period. Petitioner attempted to cure this fatal

flaw by filing a second Election of Rights with the Commission,

apparently in reliance on the date the EEOC claim was filed with

that other agency. There is no precedent for counting days in

the State forum based on the Federal forum. The second Election

of Rights was more than 314 days after the expiration of the

State's 180 - day time limit.

36. As discussed previously, the Election of Rights

d ocuments herein cannot be considered as petitions or requests

for hearing under Sections 120.569 and 120.57(1), and Chapter

760, Florida Statutes. 4/

37. On February 16, 2004, Petitioner was notified by the

Commission that she must file a Petition for Relief within 20

days. Petitioner did not meet that filing date or file within

35 days of February 16, 2004, either. On April 1, 2004,

Petitioner was notified by the Commission to file a Petition for

Relief. While the April 1, 2004, letter erroneously told

Petitioner she could file simultaneously with the Commission and

the Division, Petitioner was not materially misled, because her

Petition was already jurisdictionally time - barred. Assuming

arguendo , but not ruling, that the Commission's April 1, 2004

notification could have reactivated Petitioner's 35 - day filing

period, she still did not file within 35 days of April 1, 2004,

either, and she never filed with the Commission at all.

38. An interpretation of Section 760.11(8), Florida

Statutes, that allo ws Petitioner to request an administrative

hearing after the expiration of the 35 - day time limit would

reduce to a nullity the time limits imposed by the Legislature.

This case should be dismissed as jurisdictionally time - barred.

RECOMMENDATION

Upon the f oregoing Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

dismiss this case, which exists only by the Charge of

Discrimination, and a late - filed petition before the Division of

Administrative Hearin gs.

DONE AND ENTERED this 29th day of July, 2004, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July, 2004.

ENDNOTES

1/ On March 25, 2003, the attorney for Petit ioner wrote to

Respondent's attorney stating that there would be further

advices about a settlement. On September 3, 2003, Respondent

notified the Commission that no settlement was possible.

2/ Note that this language (notice of a planned civil action in

a court of competent jurisdiction) may have been sufficient to

permit a dismissal by the Commission, pursuant to Florida

Administrative Code Rule 60Y - 5.006(5).

3/ This Recommended Order of Dismissal makes no assessment of the

sufficiency, vel non , of the Petition for Relief filed with the

Division.

4/ The statutory scheme here differs from that in many Chapter

120, Florida Statutes, cases where an agency prosecutes, and a

citizen need only elect to contest the allegations of the

agency. Here, the agency (the Commission) is not technically a

"party."

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Samuel A. Mutch, Esquire

Mutch & Levine, P.A.

2114 Northwest 40th Terrace, Suite A - 1

Gainesville, Florida 32605 - 3592

Carlos J. Burruezo, Esquire

Fisher & Phillips, LLP

1250 Lincoln Plaza

300 South Orange Avenue

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.