04-002302 Robin Moffitt vs. Sterling Healthcare, Inc., F/K/A Prime Health Services And Gracewood Nursing Center, Inc. Status: Closed Recommended Order on Tuesday, September 21, 2004.

Summary: Petitioner`s claims are time-barred under applicable limitation periods established by the the Pinellas County Code, the Code of the City of St. Petersburg, and Title VII of the United States Civil Rights Act of 1964, as amented (Title VII).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBIN MOFFITT, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2302

)

STERLING HEALTHCARE, INC., )

f/k/a PRIME HEALTH SERVICES AND )

GRACEWOOD NURSING CENTER, INC., )

)

Respondents. )

)

SUMMARY RECOMMENDED ORDER OF DISMISSAL

This matter comes before the undersigned on Respondents'

Motion for Summary Final Order, treated herein as a Motion for

Summary Recommended Order (the Motion). 1/ Respondents contend

that Petitioner's claims are time - barred under the applicable

limitation periods established by the Pinellas County Code (the

County Code), the Code of the City of St. Petersburg (the City

Code), and Title VII of the United States Civil Rights Act of

1964, as amended (Title VII).

The jurisdictional facts are not in dispute and are set

forth in this and the next paragraph. Petitioner alleged that

she suffered sexual harassment and retaliatory conduct in the

workplace during February 2001, culminating in the lo ss of her

job on February 16, 2001. She completed a "Complaint of Alleged

Discrimination Intake Form" with the Human Relations Division,

Community Affairs Department of the City of St. Petersburg (the

City) on March 1, 2001. By certified letter dated Mar ch 20,

2001, the City notified Respondents of Petitioner's charges and

of the fact that the Complaint had been "dual - filed" on that

date with the Federal Equal Employment Opportunity Commission

(EEOC) under Title VII.

On May 28, 2003, a "Final Investigat ive Report Memorandum"

was filed by the City's investigator recommending a finding that

reasonable cause existed to believe that Respondents violated

Title VII and Chapter 70 of the County Code, as amended. The

recipient of this memorandum was Theresa D. Jones, human

relations officer with the City. Ms. Jones signed off on the

memorandum on June 2, 2003. On August 4, 2003, the City issued

an Invitation to Participate in Conciliation to the parties, all

of whom agreed to engage in discussions. A concilia tion

conference was scheduled for October 21, 2003. The City filed a

Complaint on behalf of Petitioner as the "Charging Party" on

May 18, 2004. The Complaint was forwarded to the Division of

Administrative Hearings (DOAH) on June 30, 2004.

In the Motion filed August 16, 2004, Respondents contend

that the Complaint is time - barred under any and all of the

jurisdictional statutes and ordinances under which the claim is

brought. As to the Title VII claim, 42 U.S.C. Section

2000e - 5(f)(1) provides in relevant part:

. . . If a charge filed with the Commission

pursuant to subsection (b) [2/] of this section

is dismissed by the Commission, or if within

one hundred and eighty days from the filing

of such charge or the expiration of any

period of reference under subs ection (c) [3/]

or (d) [4/] of this section, whichever is

later, the Commission has not filed a civil

action under this section . . . or the

Commission has not entered into a

conciliation agreement to which the person

aggrieved is a party, the Commission . . .

shall so notify the person aggrieved and

within ninety days after the giving of such

notice a civil action may be brought against

the respondent named in the charge (A) by

the person claiming to be aggrieved or (B)

if such charge was filed by a member o f the

Commission, by any person whom the charge

alleges was aggrieved by the alleged

unlawful employment practice. . . .

As noted above, Petitioner's charges were filed with the

EEOC on March 20, 2001. As of this writing, more than three

years after th e charges were filed, there is no record of a

reasonable cause determination by the EEOC or that the EEOC has

filed a civil action against Respondents or that Petitioner has

received a "right to sue" notification from the EEOC.

Respondents contend that un der no conceivable reading of

42 U.S.C. Section 2000e - 5(f) can the Complaint filed on May 18,

2004, be considered timely for purposes of bringing charges

under the federal statute. Review of the federal statute leads

the undersigned to agree with Responde nts on this point.

Respondents' Motion goes on to provide a lengthy analysis

of Chapter 70 of the County Code, which provides the procedural

framework and remedies for sexual harassment and retaliation

claims to demonstrate that the Complaint is time - barr ed under

the County Code. In a response filed on August 27, 2004, the

City points out that under the City Code and workshare

agreements with the County and the EEOC, the procedures of

Chapter 15 of the City Code, not of Chapter 70 of the County

Code, appl y in this proceeding. In a reply filed on August 30,

2004, Respondents concede this point. Thus, there is no further

need to examine Chapter 70 of the County Code for purposes of

the Motion.

Section 15 - 45 of the City Code sets forth the procedure for

pr ocessing charges of unlawful discriminatory practices and

provides in relevant part:

(a) Filing of charge . Any person who has

been aggrieved by an unlawful discriminatory

practice and who wishes to proceed under the

provisions of this section must file with

the Human Relations Officer, in writing and

under oath, a charge of unlawful

discriminatory practice within 60 days after

the alleged unlawful discriminatory practice

occurs.

(b) Processing of the charge,

investigation, conciliation and issuance of

complaint or notice of dismissal . Within

four working days of receipt of an unlawful

discriminatory practice charge, the Human

Relations Officer shall serve upon the

individual charged with a violation,

hereinafter referred to as the respondent,

a cop y of the charge and a written resume

setting forth the rights of the parties

including but not limited to the right of a

fair and full hearing on the matter.

(1) Upon receipt of the charge, the Human

Relations Officer shall commence an

investigation a nd the investigation of the

charge shall be completed within 60 days.

(2) The respondent may make a written or

oral response to the charge at any time

during the investigation.

Upon the completion of the investigation

by the Human Relations Office r a

determination shall be made as to whether or

not there is reasonable cause to believe

that there has been a violation of this

article. If the Human Relations Officer

determines that no violation has occurred, a

notice of dismissal shall be issued and

served upon the charging party and the

respondent within ten days after the

completion of the investigation. If the

Human Relations Officer finds that there is

reasonable cause to believe that a violation

of this article has occurred, a memorandum

shall b e issued to the parties containing

the findings of fact, analysis and

conclusions upon which the reasonable cause

determination has been based. An intensive

conciliation attempt will be made by the

Human Relations Officer, such attempt to be

completed wit hin 30 days. If at the end of

this conciliation attempt, conciliation has

not been accomplished, the Human Relations

Officer shall issue a complaint and serve

the same upon the charging party and the

respondent. The complaint shall be issued

no later tha n 40 days after the completion

of the investigation made pursuant to

subsection (b)(1) of this section. . . .

Petitioner's March 1, 2001, initial filing with the City

was clearly within 60 days of the alleged discriminatory acts

and so satisfied the requi rement of Section 15 - 45(a) of the City

Code. However, Section 15 - 45(b)(1) of the City Code provides

that the City's human relations officer must conduct and

complete an investigation of the charge within 60 days of the

initial filing. In the instant case , the human relations

officer signed the investigative report on June 2, 2003, two

years and three months after the initial filing.

It might be contended that Respondents waived the late

filing of the investigative report by agreeing to participate in

the conciliation process after the human relations officer found

probable cause. Even assuming such a waiver, Section 15 - 45(b)

of the City Code provides that the conciliation must be

attempted within 30 days of the issuance of the investigative

report, and if the conciliation fails, a complaint must be

issued within 40 days of the issuance of the investigative

report. In the instant case, the City issued an Invitation to

Participate in Conciliation on August 4, 2003, more than two

months after the investigati ve report was issued. The

conciliation was scheduled for October 21, 2003, more than four

months after the investigative report was issued. Finally, the

Complaint was filed on May 18, 2004, nearly one year after the

investigative report was issued and mo re than three years after

the filing of the initial charges by Petitioner.

Respondents also point to Section 15 - 49 of the City Code,

which provides for limitations of actions under Article II,

Chapter 15 5/ of the City Code, as follows:

Section 1 - 8 of this Code shall not apply to

the provisions of this article. The

prosecution of any offense committed against

or in violation of any provisions of this

article shall be commenced within two years

after the offense shall have been committed.

Section 1 - 8 of the City Code provides a general limitation of

one year for the prosecution of violations of the City Code or

ordinances that are not otherwise governed by State law. Even

under the more generous two - year period provided by Section

15 - 49 of the City Code, th e Complaint in this matter is time -

barred.

In its response to the Motion, the City concedes, as it

must, that the time frames in Section 15 - 45 of the City Code

were not met. As to Section 15 - 49 of the City Code, the City's

response states:

This case is no t being prosecuted as a

municipal ordinance violation offense. This

case is being processed as a complaint of

discrimination brought under Title VII,

Pinellas County Code Chapter 70 and

St. Petersburg City Code Chapter 15.

Therefore, Section 15 - 49 does n ot apply to

this case and does not require dismissal of

this action.

This portion of the response is self - contradictory to the

extent it is comprehensible at all. Reduced to its essence,

without the distracting references to Title VII and the County

Code , the City's argument appears to be that the express

limitations' provision of Article II, Chapter 15 of the City

Code, does not apply because this case is being prosecuted under

Article II, Chapter 15 of the City Code. To state the

proposition is to refu te it.

The City places ultimate reliance on Section 15 - 44 of the

City Code, which sets forth procedural rules and provides as

follows, in relevant part:

(c) Charges, complaints or powers not

invalidated by failure to act within

specified time . Notwit hstanding any other

provisions of this article, if the hearing

examiner, Human Relations Officer or the

Board, when acting on a charge or complaint,

is required to perform some act within a

particular time period and the hearing

examiner, Human Relations O fficer or the

Board fails to do the act within the

required time period, that failure will not

invalidate further proceedings on such

charge or complaint and that failure shall

not invalidate any of the powers of the

Human Relations Officer or the Board

pr ovided that such required act is performed

within a reasonable time. (Emphasis added.)

Without further explication, the City seems to contend that

four separate failures to comply with express deadlines, the

cumulative result of which is that this case a rrived at DOAH

some three years and four months after the initial Complaint was

filed, constitute "a reasonable time" under the quoted

ordinance.

Respondents' reply to this proposition cannot be improved

upon and is adopted herein:

Where a statute does n ot define words of

common usage, the words must be given their

plain and ordinary meaning. See

Southeastern Fisheries Ass. v. Dept. of

Natural Resources , 453 So. 2d 1351, 1353

(Fla. 1984). Further, a basic rule of

statutory construction states that court s

should not construe a statute in a manner

that leads to an absurd result. Baldwin v.

State , 857 So. 2d 249, 251 (Fla. 2d DCA

2003). Here, the phrase "reasonable time"

surely is commonly used, and its plain and

ordinary meaning cannot be two years or

th ree years, particularly in the context of

required action by an investigative body

charged with investigating and filing a

complaint. Again, the City did not miss its

filing deadline by a matter of days or even

months, but years, and to strain the plain

a nd ordinary meaning of "reasonable time" to

that extreme would lead to an absurd result.

Section 15 - 44(c) of the City Code must be read as the

City's attempt to prevent substantive injustice due to a minor

procedural defect in the investigative or prosecu torial

processes. A three - year delay is not a minor defect, nor is it

a "reasonable time" under the plain and ordinary meaning of that

phrase.

WHEREFORE, based on the foregoing, it is

RECOMMENDED that the City of St. Petersburg enter a final

order d ismissing the Complaint against Respondents filed on

May 18, 2004.

DONE AND ENTERED this 21st day of September, 2004, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of A dministrative 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 21st da y of September, 2004.

ENDNOTES

1 / Section 15 - 45(f)(4) of the City Code provides that the

hearing examiner (in this instance, an Administrative Law Judge

of DOAH) shall enter a "recommended adjudicative order" in these

proceedings.

2/ 42 U.S.C. Sectio n 2000e - 5(b) provides:

Whenever a charge is filed by or on behalf

of a person claiming to be aggrieved, or by

a member of the Commission, alleging that an

employer, employment agency, labor

organization, or joint labor - management

committee controlling app renticeship or

other training or retraining, including on -

the - job training programs, has engaged in an

unlawful employment practice, the Commission

shall serve a notice of the charge

(including the date, place and circumstances

of the alleged unlawful empl oyment practice)

on such employer, employment agency, labor

organization, or joint labor - management

committee (hereinafter referred to as the

"respondent") within ten days, and shall

make an investigation thereof. Charges

shall be in writing under oath or

affirmation and shall contain such

information and be in such form as the

Commission requires. Charges shall not be

made public by the Commission. If the

Commission determines after such

investigation that there is not reasonable

cause to believe that t he charge is true, it

shall dismiss the charge and promptly notify

the person claiming to be aggrieved and the

respondent of its action. In determining

whether reasonable cause exists, the

Commission shall accord substantial weight

to final findings and o rders made by State

or local authorities in proceedings

commenced under State or local law pursuant

to the requirements of subsections (c) and

(d) of this section. If the Commission

determines after such investigation that

there is reasonable cause to bel ieve that

the charge is true, the Commission shall

endeavor to eliminate any such alleged

unlawful employment practice by informal

methods of conference, conciliation, and

persuasion. Nothing said or done during and

as a part of such informal endeavors ma y be

made public by the Commission, its officers

or employees, or used as evidence in a

subsequent proceeding without the written

consent of the persons concerned. Any

person who makes public information in

violation of this subsection shall be fined

not more than $1,000 or imprisoned for not

more than one year, or both. The Commission

shall make its determination on reasonable

cause as promptly as possible and, so far as

practicable, not later than one hundred and

twenty days from the filing of the charg e

or, where applicable under subsection (c)

or (d) of this section, from the date upon

which the Commission is authorized to take

action with respect to the charge.

3/ 42 U.S.C. Section 2000e - 5(c) provides:

In the case of an alleged unlawful

employ ment practice occurring in a State, or

political subdivision of a State, which has

a State or local law prohibiting the

unlawful employment practice alleged and

establishing or authorizing a State or local

authority to grant or seek relief from such

practi ce or to institute criminal

proceedings with respect thereto upon

receiving notice thereof, no charge may be

filed under subsection (a) of this section

by the person aggrieved before the

expiration of sixty days after proceedings

have been commenced under the State or local

law, unless such proceedings have been

earlier terminated, provided that such

sixty - day period shall be extended to one

hundred and twenty days during the first

year after the effective date of such State

or local law. If any requiremen t for the

commencement of such proceedings is imposed

by a State or local authority other than a

requirement of the filing of a written and

signed statement of the facts upon which the

proceeding is based, the proceeding shall be

deemed to have been commen ced for the

purposes of this subsection at the time such

statement is sent by registered mail to the

appropriate State or local authority.

4/ 42 U.S.C. Section 2000e - 5(d) references charges filed by a

member of the EEOC, a situation not relevant to this case.

5/ Chapter 15 of the City Code deals generally with "Human

Rights." Article II therein governs "Discrimination" and

contains all of the Chapter 15 provisions discussed in this

Order.

COPIES FURNISHED :

Aram P. Megerian, Esquire

Cole, Scott & Kissane, P.A.

Bridgeport Center, Suite 750

5201 West Kennedy Boulevard

Tampa, Florida 33609

Robin Moffitt

2009 San Sebastian Way, South

Clearwater, Florida 33763

Leon Russell, Executive Director

Pinellas County Office of Human Rights

400 South Fort Harrison Avenue

Fifth Floor

Clearwater, Florida 33756

W. Oliver Melvin, Compliance Officer

Pinellas County Office of Human Rights

400 South Fort Harrison Avenue

Fifth Floor

Clearwater, Florida 33756

Jeannine S. Williams, Esquire

Assistant City Attorney

City of St. Petersburg

Post Office Box 2842

St. Petersburg, Florida 33731

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Summary Recommended Order of

Dismissal. Any ex ceptions to this Summary Recommended Order of

Dismissal should be filed with the agency that will issue the

final order in this case.