06-003665 Teesha Williams vs. North Broward Hospital District Status: Closed Recommended Order on Tuesday, November 21, 2006.

Summary: Petitioner filed a Petition for Relief from an Unlawful Employment Practice 36 days after the date of the Right to Sue letter send by the Florida Commission on Human Relations. The Petition for Relief was filed untimely and should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TEESHA WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 06 - 3665

)

NORTH BROWARD HOSPITAL )

DISTRICT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER OF DISMISSAL

This Recommended Or der is entered on the Respondent's

Revised Motion for Recommended Order of Di smissal, filed

October 12, 2006; the Petitioner's Response to Respondent's

Revised Motion for Recommended Order of Dismissal; the

Respondent's Reply to Petitioner's Response to Re spondent's

Revised Motion for Recommended Order of Dismissal; and the

United States Postal Service receipt provided by the Petitioner.

APPEARANCES

For Petitioner: Teesha Williams, pro se

2701 Tarpon Drive

M iramar, Florida 33023

For Respondent: Wendy Delvecchio, Esquire

Conrad & Scherer, LLP

633 South Federal Highway

Post Office Box 14723

Fort Lauderdale, Florida 33302

STATEMENT OF THE ISSUE

Whether the Petitioner timely filed her Petition for Relief

from an Unlawful Employment Practice with the Florida Commission

on Human Relations ("Commission") .

PRELIMINARY STATEMENT

On September 19, 2006, Teesha Williams fil ed a Petition for

Relief from an Unlawful Employment Practice with the Commission ,

in which she alleged that the North Broward Hospital District

("Hospital District") had discriminated against her on the basis

of disability. T he Commission transmitted the matter to the

Division of Administrative Hearings for assignment of an

administrative law judge on September 25, 2006, and a final

hearing was scheduled for December 7 and 8, 2006. On

October 12, 2006, the Hospital District filed Respondent's

Revised Mot ion for Recommended Order of Dismissal, in which it

argued that Ms. Williams had filed her petition for relief

untimely. There was some confusion regarding Ms. William's

correct address, and the revised motion was not served until

November 3, 2006. Ms. W illiams filed a response in opposition

to the motion on November 8, 2006, and the Hospital District

filed a reply to the response on November 13, 2006.

Ms. Williams included several factual assertions in her

response in opposition to the revised motion, an d a telephone

conference was held on November 13, 2006, with Ms. Williams and

counsel for the Hospital District. During the telephone

conference, Ms. Williams was asked to provide the undersigned

with the receipt she had received from the United States Po stal

Service ("USPS") when she mailed the petition for relief to the

Commission. Ms. Williams filed the receipt by facsimile

transmittal on November 14, 2006.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Commission is the state agency charged with

investigating and acting upon complaints filed under Florida's

Civil Rights Act, Sections 760. 01 - 760.11, Florida Statutes

(2006). 1 § 760.06, Fla. Stat.

2. On August 14, 2006, the Commission issued a Right to

Sue notice, in which it informed Ms. Williams, among other

things, that

the FCHR hereby issues this Right to Sue.

Since it has been more than 180 days since

your comp laint was filed, and since no

determination was made within 180 days, you

are entitled to pursue the case as if the

FCHR issued a Determination of Reasonable

Cause. . . . ( Citation omitted).

You may pursue this case in the Division of

Administrative Heari ngs by filing a Petition

for Relief with the FCHR within 35 days from

the date of this Right to Sue letter, or you

may file a lawsuit in a circuit court of the

State of Florida anytime within one year

from the date of this Right to Sue letter,

provided suc h time period is not more than

four years from the date the alleged

violation occurred.

3 . Pursuant to the terms of this notice, Ms. Williams was

required to file her Petition for Relief with the FCHR no later

than 35 days from the date of the August 14, 2006, notice, that

is, no later than Septemb er 18, 2006.

4 . Ms. Williams completed and signed a Petition for Relief

from an Unlawful Employment Practice on September 14, 2006.

5 . A receipt from the USPS establishes that, on

September 17, 2006, the USPS accepted a letter from Ms. Williams

addressed to the Commission; that the letter was sent via

express mail; that neither next - day nor second - day delivery was

selected; that a third opt ion for delivery, "Add Del Day," was

selected . The scheduled date of de livery stated on the receipt

was September 20, 2006.

6 . Ms. Williams's Petition for Relief from an Unlawful

Employment Practice was received by the Commission on

September 19, 2006.

7 . The USPS tracking web site shows that the letter

assigned number EQ 62 8681913 US was delivered on September 19,

2006.

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 1 20.57(1),

Florida Stat utes .

9 . Section 760.11, Florida Statutes, provides in pertinent

part:

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 19 92, t he 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. 120.568 and 120.57.

The election by the aggrieved perso n 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) Any administrative hearing brought

pursuant to paragraph (4)(b) shall be

conducted under ss. 120.569 and 120.57. The

commission may hear the case provided that

the final order is issued by members of the

commission who did not conduct the hearing

or the commission may request that it be

heard by an administrative law judge

pu rsuant to s. 120.569 (2)(a). If the

commission elects to hear the case, it may

be heard by a commissioner. If the

commissioner, after the hearing, finds that

a violation of the Florida Civil Rights Act

of 1992 has occurred, the commissioner shall

issue an appropriate proposed order in

accordance with chap ter 120 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay. If the administrative law judge,

after the hearing, finds that a violation of

the Fl orida Civil Rights Act of 1992 has

occurred, the administrative law judge shall

issue an appropriate recommended order in

accordance with chapter 120 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay. Within 90 days of the date the

recommended or proposed order is rendered,

the commission shall issue a final order by

adopting, rejecting, or modifying the

recommended order as provided under

ss. 120.569 and 120.57. The 90 - day period

may be extende d with the consent of all the

parties. 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. In any action or proceeding

under this subsection , the commission, in

its discretion, may allow the prevailing

party a reasonable attorney's fee as part of

the costs. It is the intent of the

Legislature that this provision for

attorney's fees be interpreted in a manner

consistent with federal case law i nvolving a

Title VII action .

(Emphasis added.)

10 . The Commission did not make its determination as to

whether there was reasonable cause to believe that Ms. Williams

had been subjected to unlawful discrimination within the

statutorily - required 180 days from the date Ms. Williams filed

her complaint. Ms. Williams was, therefore, permitted to

proceed as though the Commission had issued a Determination of

Reasonable Cause. § 760.11(8), Fla. Stat.

11 . In Wilson v. Brevard County Clerk of the Circuit

Cour t , 31 Fla. L. Weekly D2452 (Fla. 5th DCA September 26,

2006), the court held that a petition for relief from an

unlawful unemployment practice seeking an administrative hearing

under Sections 120.569 and 120.57, Florida Statutes, must be

received by the Co mmission no later than 35 days after the date

of the notice of the Commission's determination and that a

petition filed 36 days after the date of the notice was properly

dismissed as untimely.

12 . The court in Wilson found that the doctrine of

equitable t olling could be applied to excuse the late - filing of

a petition for relief. Quoting the court in Machules v.

Department of Administration , 523 So. 2d 1132 , 1134 (Fla. 1988),

the court in Wilson noted that one of three circumstances must

be proven in order for the doctrine of equitable tolling to

apply : "'Generally, the tolling doctrine has been applied when

the plaintiff has been mislead or lulled into inaction, has in

some extraordinary wa y been prevented from asserting his rights,

or has timely asserted his rights mistakenly in the wrong

forum.'"

13 . Ms. Williams has not established any circumstance that

would excuse the late - filing of her Petition for Relief from an

Unlawful Employment Practice under th e doctrine of equitable

tolling . In her response in opposition to the Hospital

District's Revised Motion f or Recommended Order of Dismissal ,

Ms. Williams stated that "[t]he additional time required for the

US Postal Service to deliver the Petition was not within the

control of the Petitioner." The USPS receipt provided by

Ms. Williams clearly shows, however, that she did not ask for

"next - day" delivery, which would have ensured timely delivery of

her petition on September 18, 2006, but, rather, requested a

different option that would guarantee delivery o n September 20,

2006. Under these circumstances, the late - filing of the

petition cannot be excused, and her Petition for Relief from an

Unlawful Employment Practice should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusio ns of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petition for Relief

from an Unlawful Employment Practice filed by Teesha Williams.

DONE AND ENTERED this 21st day of November , 2 006 , in

Tallahas see, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

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

thi s 21st day of November , 200 6 .

ENDNOTE

1 / All references to the Florida Statutes shall be to the 2006

edition unless otherwise noted.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

William R. Scherer, III, Esquire

Wendy A. Delvecchio, Esquire

Co nrad & Scherer

633 South Federal Highway

Post Office Box 14723

Fort Lauderdale, Florida 33302

Teesha Williams

2701 Tarpon Drive

Miramar, Florida 33023

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 10 0

Tallahassee, 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.