05-001775 William H. Mack, Jr. vs. North Florida Evaluation And Treatment Center Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, September 1, 2006.

Summary: Petitioner is barred because he failed to file his petition for relief within the four-year statute of limitations as required by Section 95.11(3)(f), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM H. MACK, JR., )

)

Petitioner, )

)

vs. ) Case No. 05 - 1775

)

NORTH FLORIDA EVALUATION AND )

TREATMENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Respondent filed a Motion to Dismiss based on Petitioner’s

alleged failure to file his Petition for Relief within four

years of the time his cause of action accrued , a s required by

Section 95.11(3)(f), Florida Statutes. Petitione r filed a

response to the Motion to Dismiss based on his receipt of a “no

cause” determination from the Florida Commission on Human

Relations and the filing of his Petition For Relief within 35

days thereof.

APPEARANCES

For Petitioner: William H. Ma ck, Jr., pro se

P ost O ffice Box 1373

High Springs, Florida 32643

For Respondent: Dennis M. Flath, Esquire

1200 N ortheast 55 th Boulevard

Gainesville, Florida 32 641 - 2759

STATEMENT OF THE ISSUE

Whether this action is barred by the four - year statute of

limitations . § 95.11(3)(f), Fl a . Stat.

PRELIMINARY STATEMENT

On May 31, 2005, Petitioner filed a Charge of

Discrimination with the Florida Commission on Hu man Relations

(FCHR). The charge alleged that Petitioner had been

discriminated against on the basis of his race and disability

during his employment and retaliated against when he was

terminated in April 2000. On May 6, 2005, FCHR entered a

Determinatio n: No Cause on the Charge of Discrimination.

Thereafter, Petitioner filed a Petition For Relief essentially

alleging the same basis as his earlier Charge of Discrimination.

The Petition For Relief was forwarded to the Division of

Administrative Hearings for a formal hearing.

FINDINGS OF FACT

1. After review of the file, the pleadings and relevant

statutory and case law it is clear that Petitioner was

terminated from his employment with North Florida Evaluation and

Treatment Center on April 27, 2000 , for alleged excessive

absences. Petitioner’s termination was the last adverse

employment action taken by his employer that could possibly give

rise to any cause of action for employment discrimination based

on race, disability or retaliation.

2. Se ction 95.11(3)(f), Florida Statutes , bars a cause of

action based on a statutory right if an action on that cause has

not been brought within four years of the date the last action

occurred that gave rise to the cause of action. As indicated

above , the la st employment action taken by Petitioner’s employer

occurred on April 27, 2000. Four years from that date was

April 26, 2004.

3. Petitioner filed his Charge of Discrimination with FCHR

on May 31 , 2000.

4. 180 days elapsed with no determination on Petitioner’s

charge being made by FCHR.

5. On May 6, 2005, four years after Petitioner’s

termination, FCHR entered a Notice of Determination: No Cause

and advised Petitioner of his right to file a Petition For

Relief within 35 days pursuant to S ection 760.11, Florida

Statutes.

6. Petitioner filed his Petition for Relief on or around

May 11, 2005, within the 35 - day period, but well after the

F our - year statute of limitations had expired. Since over four

years have passed since Petitioner’s t ermination, Petitioner’s

cause of action is barred by Section 95.11, Florida Stat utes ,

and should be dismissed.

CONCLUS I ONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceedi ng. § 120.57(1), Fla. Stat.

8. In this case Chapter 760 provides the statutory method

by which a Petitioner may proceed with a cause of action based

on employment discrimination. Four statutory provisions,

Sections 760.11(3), 760.11(4), 760.11(5) and 760.11(8) are

involved in creating that framework. Each section describes a

separate step in the procedure that is triggered once an

individual files a Charge of Discrimination with FCHR. Section

760.11(3) requires the Commission to make a reasonab le cause

determination within 180 days of the filing of a claim. Section

760.11(4) explains steps that claimants may take if FCHR

determines there is reasonable cause to believe that the

discriminatory action occurred. Section 760.11(5) outlines the

righ t to file and the limitations on the filing of civil

actions. Section 760.11(8) describes how claimants who do not

receive a reasonable cause determination within 180 days may

proceed.

9. Section 760.11(4) provides:

In the event that the commissio n 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

administrative hearing under ss. 120.569 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 pro cedure available to the aggrieved person if

FCHR finds reasonable cause to believe a discriminatory practice

has occurred. Section 760.11(8) provides:

In the event that the commission fails to

conciliate 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.

10. It is clear from a plain reading of the la nguage of

the Act that a complainant who receives a favorable reasonable

cause determination within 180 days from the filing of a

complaint with the Commission has one year from the date of

determination to bring a civil action. See § 760.11(5) , Fla.

Sta t. What is not clear, however, is what happens when the

Commission fails to make a determination within the allotted 180

days or fails to make a timely determination within 180 days.

11. Section 760.11(8) purports to address the above

circumstances. However, it is less than clear that a

complainant is bound to proceed either to civil court or

administrative hearing as outlined once 180 days has elapsed

from the filing of the initial charge. The statute uses the

term “may” which gives a complainant the option to proceed under

Section 760.11(4) but does not require one to do so.

12. The Legislature wanted persons who believe they have

been the subject of discrimination to go through the

administrative process prior to brin g ing a circuit court civil

action.

13. To further these ends, in Section 760.06 the

Legislature, created the Florida Commission on Human Relations.

Some of the powers of this Commission are:

( 5) To receive, initiate, investigate, seek

to conciliate, hold hearings on, an d act

upon complaints alleging any discriminatory

practice, as defined by the Florida Civil

Rights Act of 1992.

See § 760.065 (5), Fla. Stat.

14. The Legislature’s desire that aggrieved persons avail

themselves of the remedies provided by the Com mission prior to

seeking court action. See § 760.07 , Fla. Stat . Thus, Section

760.11(8), which allows a complainant to proceed to circuit

court or administrative hearing without a reasonable cause

determination gives a complainant the option of proceedin g to

litigation, either civilly or administratively, or await the

decision of FCHR.

15. However, the Legislature was well aware of the fact

that the Commission did not always make a determination within

the 180 days following the filing of a Charge of Discrimination.

See Hullinger v.Ryder Truck Rental, Inc. , 548 So. 2d (Fla.

1989 ) . The Legislature was also aware that complainants could,

under the statute, file a civil or administrative action after

that 180 - day period had expired or await a prelimi nary cause

determination. See § 760.11(3) - (4), Fla. Stat. “A claimant

should not be penalized for attempting to allow a government

agency to do its job”. Joshua v. City of Gainesville , 768 So.

2d 432 (Fla. 2000). Procedural due process including both

n otice and the opportunity to be heard requires this type of

process. Supra . See also Ellsworth v. Polk County Board of

County Commissioners , 780 So. 2d 903 (Fla. 2001).

16. Procedural due process also requires that causes of

action be litigated wit hin a reasonable amount of time. In this

case, the Legislature has established a four - year time period in

which a complainant may bring an action for violation of a

statutory right. § 95.11(3)(f) , Fla. Stat . The Florida Supreme

Court has held that the f our - year statute of limitations

governing actions involving statutory rights applies to actions

brought pursuant to Chapter 760 where FCHR has not made a

reasonable cause determination within 180 days. Joshua , supra ,

and Ellsworth , supra . In this case, F CHR did not make a

determination within 180 days. During that time and after, the

four year time period was running and expired on April 26, 2004.

Petitioner’s action is barred by the four - year statute of

limitations and should be dismissed.

RECOMMENDATI ON

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 5th day of A ugust , 2005, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 (85 0) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5 th day of A ugust , 2005.

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relation

2009 Apalachee Park way, Suite 100

Tallahassee, Florida 32303 - 4149

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32303 - 4149

William H. Mack, Jr .

P ost O ffice Box 1373

High Springs, Florida 32643

Dennis M. Flath, Esquire

1200 N ortheast 55 th Boulevard

Gainesville, Florida 32641 - 2759

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.