04-001652 Terri Teal vs. Department Of Corrections Status: Closed Recommended Order on Friday, June 25, 2004.

Summary: Petition for Relief dismissed because it was not filed in a timely manner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRI TEAL, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1652

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This c ause came on for consideration of Respondent's Motion

to Dismiss before Suzanne F. Hood, Administrative Law Judge with

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Debra Dawn Cooper, Esquire

1008 West Garden Street

Pensacola, Florida 32501

For Respondent: Mark Simpson, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEM ENT OF THE ISSUE

The issue is whether Petitioner's Petition for Relief

should be dismissed as untimely pursuant to Section 760.11(7),

Florida Statutes (2003).

PRELIMINARY STATEMENT

On April 29, 2004, Petitioner Terri Teal (Petitioner) filed

a Petition for Relief with the Florida Commission on Human

Relations (FCHR). The Petition alleged that Respondent

Department of Corrections (Respondent) discriminated against

Petitioner based on her sex in violation of Section 760.10(1),

Florida Statutes (2 003), and retaliated against her in violation

of Section 760.10(7), Florida Statutes (2003).

FCHR referred the case to the Division of Administrative

Hearings on May 5, 2004.

Respondent filed a unilateral Response to Initial Order on

May 17, 2004 . That same day, Respondent filed an Answer and a

Claim for Attorney's Fees and Costs pursuant to Sections 120.595

and 760.11(7), Florida Statutes (2003).

On May 28, 2004, Respondent filed a Motion to Dismiss

alleging that the Petition for Relief was un timely and therefore

barred pursuant to Section 760.11(7), Florida Statutes (2003).

Specifically, the motion alleged that the Petition for Relief

was filed one day after the expiration of the 35 - day period set

forth in Section 760.11(7), Florida Statutes (2003).

On June 7, 2004, the undersigned issued an Order To Show

Cause. The Order directed Petitioner to file a written response

on or before June 18, 2004, showing why her Petition for Relief

should not be dismissed pursuant to Section 760.11(7), Flori da

Statutes (2003).

On June 18, 2004, Petitioner filed a written response to

the Order to Show Cause, stating that that the Petition had been

filed on April 28, 2004, by facsimile transmission, at 4:35 p.m.

from Pensacola, Florida. Petitioner's written response did not

include three facsimile transmission verification reports

referred in the report as attached exhibits. Pursuant to a

request from the undersigned's office, Petitioner filed the

exhibits on June 22, 2004.

On June 22, 2004, Respondent filed a Response to

Petitioner's Response to Order to Show Cause and to Respondent's

Motion to Dismiss. Respondent asserts that the Petition for

Relief, sent by facsimile transmission from Pensacola, Florida,

at 4:26 p.m. C.S.T. on April 28, 2004, would not ha ve been

received by the FCHR until 5:35 p.m. E.S.T. and, pursuant to

applicable rules in the Florida Administrative Code, would not

have been filed until April 29, 2004, one day after expiration

of the 35 - day period.

On June 22, 2004, the parties filed a Joint Motion for

Continuance. That same day, the undersigned issued an Order

Granting Continuance and Rescheduling the hearing for August 9,

2004.

FINDINGS OF FACT

1. Petitioner filed a Charge of Discrimination with FCHR

on June 30, 2003. Petiti oner alleged that Respondent

discriminated against her based on her sex and retaliated

against her when she complained that her supervisor was sexually

harassing her.

2. Finding no reasonable cause to believe that Respondent

had committed an unlawf ul employment practice, FCHR issued a

Determination: No Cause on March 24, 2004. That same day, FCHR

issued a Notice of Determination: No Cause, advising Petitioner

that she had 35 days from the date of the notice in which to

request an administrative hea ring. The notice clearly stated

that Petitioner's claim would be dismissed pursuant to Section

760.11, Florida Statutes, if she failed to request a hearing in

a timely manner. The 35th day was April 28, 2004.

3. Petitioner sent her Petition for R elief to FCHR by

facsimile transmission on April 28, 2004, at 4:26 p.m. C.S.T.

FCHR received the Petition on April 28, 2004, at 5:35 p.m.

E.S.T. or 35 minutes after FCHR's normal business hours.

Therefore, the Petition was not filed until April 29, 2004, one

day after expiration of the 35 - day period.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has authority

to determine whether it has jurisdiction over the parties and

the subject matter of this proceeding. §§ 120.569, 120.57(1),

and 760.11, Fla. Stat. (2003).

5. Section 760.11(7), Florida Statutes (2003), states as

follows, in relevant part:

(7) If the commission determines that there

is not reasonable cause to believe that a

violation of the Florida Civil Rights Act of

199 2 has occurred, the commission shall

dismiss the complaint. The aggrieved person

may request an administrative hearing under

ss. 120.569 and 120.57, but any such request

must be made within 35 days of the date of

determination of reasonable cause and any

such hearing shall be heard by an

administrative law judge and not by the

commission or a commissioner. If the

aggrieved person does not request an

administrative hearing within the 35 days,

the claim will be barred.

6. Florida Administrative Code Rul e 60Y - 3.001 provides the

following relevant definitions:

(4) "Complaint" means a written statement

which alleges the occurrence of an unlawful

employment practice, and includes an amended

complaint.

* * *

(22) "Petition" means a writing, other than

a written motion, filed with the Commission

pursuant to rule of the Commission asking

that specified action be taken by the

Commission or a Panel.

* * *

(29) "Date of filing" means a completed

complaint is received by the Commission

prior to 5:00 p.m. (Eastern time) as

provided by Rule 28 - 106.104, F.A.C.

7. As to complaints, Florida Administrative Code Rule 60Y -

5.001 states as follows, in relevant part:

(2) Time for filing. A complaint may be

filed at anytime within 365 days of the

occurrence of the alleged unlawful

employment practice. . . .

(3) Place and Date of Filing. A complaint

may be filed at the office of the

Commission. The date of filing shall be the

date of actual receipt of the complaint by

the Clerk or other agent of the Commiss ion.

Any document received by the Clerk or other

agent of the Commission after 5:00 p.m.

(Eastern time) shall be filed as of

8:00 a.m. on the next regular business day.

8. A complaint may be administratively dismissed pursuant

to Florida Administrative Code Rule 60Y - 5.006, which states as

follows, in pertinent part:

The Executive Director, on behalf of the

Commission, shall dismiss a complaint upon

one or more of the following grounds:

* * *

(3) The complaint has not been timely filed

with the Com mission;

(4) After service of Notice of

Determination of Reasonable Cause, No

Reasonable Cause, or No Jurisdiction, the

complainant has failed to file a Petition

for Relief pursuant to Rule 60Y - 5.008,

F.A.C.

* * *

(10) There is no jurisdiction over the

respondent or subject matter of the

complaint.

9. Regarding a Petition for Relief from an Unlawful

Employment Practice, Florida Administrative Code Rule 60Y - 5.008

states as follows, in relevant part:

(1) Petition. A complainant may file a

Petiti on for Relief from an Unlawful

Employment Practice within 35 days of the

Date of Determination of Reasonable Cause,

No Reasonable Cause, No Jurisdiction or

Untimeliness. . . .

(2) For good cause shown, the Chairperson

may grant an extension of time to f ile the

Petition for Relief from an Unlawful

Employment Practice, provided the motion for

extension of time is filed within the 35 - day

period prescribed by subsection 60Y -

5.008(1), F.A.C.

(3) Procedures. Petitions for Relief, and

proceedings thereupon, are governed by the

provision of Chapters 28 - 106 and 60Y - 4,

F.A.C., except as otherwise provided by this

section.

10. Florida Administrative Code Rule 28 - 106.103 states as

follows, in pertinent part:

In computing any period of time allowed by

this chap ter, by order of a presiding

officer, or by any applicable statute, the

day of the act from which the period of time

begins to run shall not be included. . . .

No additional time shall be added if service

is made by hand, facsimile telephone

transmission, or other electronic

transmission or when the period of time

begins pursuant to a type of notice

described in Rule 28 - 106.111, F.A.C.

11. Florida Administrative Code Rule 28 - 106.104 states as

follows, in relevant part:

(1) In construing these rules o r any order

of a presiding officer, filing shall mean

received by the office of the agency clerk

during normal business hours or by the

presiding officer during the course of a

hearing.

* * *

(3) Any document received by the office of

the agency clerk a fter 5:00 p.m. shall be

filed as of 8:00 a.m. on the next regular

business day.

* * *

(9) The filing date for an electronically

transmitted document shall be the date the

agency clerk received that complete

document.

12. In this case, Petitio ner did not file a timely

Petition for Relief. Pursuant to Section 760.11(7), Florida

Statutes (2003), and the provision of the Florida Administrative

Code referenced above, Petitioner's claim is barred because it

was not timely filed.

13. The record h ere is insufficient to determine whether

Respondent is entitled to attorney's fees pursuant to Sections

120.595 and 760.11(7), Florida Statutes (2003). Respondent's

Claim for Attorney's Fees and Costs is denied.

RECOMMENDATION

Based on the foregoi ng Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for

Relief.

DONE AND ENTERED this 25th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 25th day of June, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mark Simpson, Esquire

Dep artment of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

Debra Dawn Cooper, Esquire

1008 West Garden Street

Pensacola, Florida 32501

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Ta llahassee, Florida 32301

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.