04-002032 Micheline Verello vs. United States Cellular Corporation Status: Closed Recommended Order on Thursday, July 29, 2004.

Summary: Petitioner`s Petition for Relief was untimely filed and is therefore time-barred as a matter of law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELINE VERELLO, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2032

)

UNITED STATES CELLULAR )

CORPORATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice a telephone hearing was conducted on

July 27, 2004, to allow the parties to present argument

regarding the Respondent's Motion to Dismiss. The facts set

forth below are not disputed. Dates most favorable to the

Petitioner have been presumed accurate. Du ring the conference

call, the parties were represented by counsel.

APPEARANCES

For Petitioner: Andrew Degraffenreidt, III, Esquire

Powers, McNalis & Torres

P.O. Box 21289

West Palm Beach, Florida 33416

For Respondent: Jennifer Schilling, Esquire

Piper Rudnick, LLP

203 North LaSalle Street, Suite 1800

Chicago, Illinois 60601 - 1293

STATEMENT OF THE ISSUE

Whether the Peti tioner, Micheline Verello, timely filed

a Petition for Relief in connection with a claim filed with

the Florida Commission on Human Relations.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations transferred

this case to the Division of Administrative Hearings on

June 9, 2004. Accompanying the Petition for Relief were the

Notice of Determination: No Cause, the Determination: No

Cause, along with an amended Charge of Discrimination. The

Initial Order was entered on June 10, 2004.

Thereafte r, the Respondent, United States Cellular

Corporation, filed a Motion to Dismiss. The motion alleged,

in pertinent part, that the Petitioner, Micheline Verello, had

failed to timely file the request for an administrative

hearing and that, as such, her claim was barred as a matter of

law.

On July 14, 2004, the Petitioner filed a written response

to the Motion to Dismiss along with an affidavit of Angie

Henriksen. In substance, the response denied the petition was

untimely. In substance, the affidavit sta ted the Petition for

Relief was mailed to the Florida Commission on Human Relations

on June 1, 2004.

On July 16, 2004, a Notice of Telephone Conference was

entered scheduling the conference call on the Motion to

Dismiss. Both parties were afforded time to present argument

on the motion.

FINDINGS OF FACT

1. On or about March 15, 2003, the Petitioner, Micheline

Verello, submitted an Amended Employment Charge of

Discrimination with the Florida Commission on Human Relations.

Such complaint alleged that the Respondent, United States

Cellular Corporation, had discriminated against the Petitioner

in an employment action based upon the Petitioner's age.

2. On April 21, 2004, the Florida Commission on Human

Relations entered a Determination: No Cause regarding the

Petitioner's claim. That determination set forth that there

was "no reasonable cause to believe that an unlawful

employment practice has occurred."

3. The Notice of Determination: No Cause was also

entered and mailed to the Petitioner on April 2 1, 2004. The

notice provided, in pertinent part:

PLEASE TAKE NOTICE that a Determination has

been made on the above referenced complaint

that there is no reasonable cause to

believe that an unlawful employment

practice has occurred. A copy of the

Determination is attached.

Complainant may request an administrative

hearing by filing a PETITION FOR RELIEF

within 35 days of the date of this NOTICE

OF DETERMINATION: NO CAUSE.

A Petition for Relief form is enclosed with

Complainant's notice. It may be benef icial

for Complainant to seek legal counsel prior

to filing the petition.

If the Complainant fails to request an

administrative hearing with (sic) 35 days

of the date of this notice, the

administrative claim under the Florida

Civil Rights Act of 1992, Chapter 760, will

be dismissed pursuant to section 760.11,

Florida Statutes.

4. The Notice of Determination: No Cause was dated

April 21, 2004. The Petitioner received the Notice of

Determination: No Cause on April 26, 2004. Based upon the

date stated on the face of the Determination: No Cause, the

Petitioner was required to file a Petition for Relief not

later than May 26, 2004. The Petitioner did not mail her

Petition for Relief until June 1, 2004.

5. The Florida Commission on Human Relations received

the Petition for Relief on June 3, 2004. Thereafter, the

matter was forwarded to the Division of Administrative

Hearings and filed for formal proceedings on June 9, 2004.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction ove r the parties to and the subject matter of

these proceedings. §§ 120.569, and 120.57(1), Fla. Stat.

7. Section 760.11(7), Florida Statutes (2003) provides,

in part:

If the commission determines that there is

not reasonable cause to believe that a

violation of the Florida Civil Rights Act

of 1992 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 d etermination 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.

8. In this case the Petitioner did not file a Petition

for Relief within 35 days of the Determination: No Cause. The

statute unambiguously places that burden on the Petitioner to

timely assert her claim. She did not do so.

9. The Notice of Determ ination: No Cause, placed the

Petitioner on notice of the time restrictions applicable to

this case. Moreover, the Florida Commission on Human

Relations provided a Petition for Relief form to the

Petitioner along with the Notice of Determination: No Cause.

In short, neither the statute nor the rules applicable to this

case provide for an extension of time to file a complaint.

Accordingly, the Petitioner's claim is barred as a matter of

law.

10. Florida Administrative Code Rule 60Y - 5.008(1)

requires th at a Petition for Relief be filed within 35 days of

the date of determination. "Date of filing" is defined as a

completed complaint that is received by the Florida Commission

on Human Relations prior to 5:00 p.m. (Eastern time). See

Fla. Admin. Code Rule 60Y - 3.001(29). Based upon the

foregoing, it is concluded the Petitioner did not timely

assert her administrative remedy.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Florida Commission on Hum an

Relations enter a Final Order dismissing the claim filed by

this Petitioner.

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

Tallahassee, Leon County, Florida.

S

___________________________________

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 29th day of July 2004.

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

Andrew DeGraffenreidt, III, Esquire

Powers, McNalis & Torres

Post Office Box 21289

West Palm Beach, Florida 33416

Adrianne Mazura, Esquire

Piper Rudnick, LLP

203 North Lasalle Street, Suite 1800

Chicago, Illinois 60601 - 129 3

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.