08-005859 Brian Neumann vs. University Of Florida Status: Closed Recommended Order on Monday, July 20, 2009.

Summary: Equitable tolling does not allow time barred claim of discrimination when factual prerequisites for equitable tolling are not shown by a preponderance of the evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN NEUMANN, )

)

Petitioner, )

)

vs. ) Case No. 08-5859

)

UNIVERSITY OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted a

hearing in this case for the Division of Administrative Hearings

(DOAH) on June 17, 2009, in Fort Myers, Florida. The scope of

the hearing is limited to the issue stated hereinafter.

APPEARANCES

For Petitioner: Brian Neumann, pro se

1805 6th Street West

Palmetto, Florida 34221

For Respondent: Charles M. Deal, Esquire

University of Florida

123 Tigert Hall

Gainesville, Florida 32611-2703

STATEMENT OF THE ISSUE

The issue is whether the time limit that would otherwise

bar Petitioner’s claim of alleged discrimination in violation of

Subsection 760.10(1), Florida Statutes (2006), 1 is tolled by the

doctrine of equitable tolling.

PRELIMINARY STATEMENT

This case has a lengthy procedural history. In relevant

part, Respondent filed Respondent University of Florida’s

Amended Motion for Summary Judgment on March 25, 2009 (the

Motion). The Motion is deemed to be a motion for recommended

order of dismissal because the undersigned has no statutory

authority to issue a summary judgment in this proceeding.

Petitioner timely filed Petitioner’s response [sic] to Summary

Judgment on April 9, 2009 (the Response).

The Motion alleges that Petitioner’s claim of

discrimination is time barred because Petitioner filed a Charge

of Discrimination with the Florida Commission on Human Relations

(the Commission) on December 27, 2007, approximately 442 days

after Respondent terminated Petitioner from his employment on

October 11, 2006. The Response argues that the doctrine of

equitable tolling should prevent the Charge of Discrimination

from being time barred.

On April 28, 2009, the undersigned issued an Order on

Equitable Tolling. The Order concluded that Petitioner is

entitled to an evidentiary hearing on the issue of equitable

tolling. The Order limited the disputed facts to those alleged

in the Response.

At the hearing, Petitioner testified, called four

witnesses, and submitted four exhibits for admission into

evidence. Respondent called two witnesses and submitted two

exhibits.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the Transcript of the hearing

filed with DOAH on July 2, 2009. Petitioner and Respondent

filed their respective Proposed Recommended Orders on June 22

and July 10, 2009.

FINDINGS OF FACT

1. Respondent is a public university located in

Gainesville, Florida. Petitioner was an employee of Respondent

until October 11, 2006, when Respondent terminated Petitioner’s

employment on the grounds that Petitioner had allegedly

participated in the falsification of employee time records.

Respondent deleted Petitioner’s name from the payroll records

and stopped paying Petitioner. No continuing employment

relationship existed after October 11, 2006.

2. Respondent notified Petitioner of the proposed

termination of employment by letter dated August 25, 2006.

Respondent conducted two predetermination conferences on

September 5 and October 5, 2006. Petitioner was represented by

counsel in each predetermination conference. 2

3. Shortly after the termination of Petitioner’s

employment on October 11, 2006, Petitioner, through his

attorney, filed a grievance against Respondent. The grievance

was resolved against Petitioner in a final arbitration decision

that was issued on October 3, 2007.

4. Petitioner filed a Charge of Discrimination with the

Florida Commission on Human Relations (the Commission) on

December 27, 2007, approximately 442 days after Respondent

terminated Petitioner from his employment on October 11, 2006.

Subsection 760.11 requires Petitioner to have filed the Charge

of Discrimination within 365 days of the alleged unlawful

employment practice that occurred on October 11, 2006.

5. A preponderance of the evidence does not support a

finding that the factual prerequisites for equitable tolling are

present in this case. For the reasons stated hereinafter, a

preponderance of the evidence does not show that Petitioner was

misled or lulled into inaction, was in some extraordinary way

prevented from asserting his rights, or timely asserted his

rights mistakenly in the wrong forum.

6. Petitioner did not mistakenly assert his claim of

discrimination in the arbitration proceeding. The grievance

decided by arbitration did not allege that Respondent

discriminated against Petitioner. Nor did Petitioner allege

discrimination at anytime prior to the termination of his

employment, including the two predetermination conferences.

7. Respondent did not mislead or lull Petitioner into

inaction. Respondent did not represent to Petitioner that

Petitioner had to wait until the conclusion of the arbitration

proceeding before Petitioner could file a claim of

discrimination. When Petitioner filed the grievance and

participated in the arbitration, Petitioner was represented by

counsel. At no time did either Petitioner or his attorney

contact Respondent and ask if he could, or could not, file a

claim of discrimination during the arbitration proceeding.

8. Respondent did not, in some extraordinary way, prevent

Petitioner from asserting his claim of discrimination.

Respondent did not delay the arbitration unnecessarily. The

delay in the arbitration was caused, in relevant part, by the

unavailability of counsel for Petitioner.

9. The first available date for all of the arbitrators was

April 19, 2007. On April 17, 2007, one of the arbitrators

cancelled the arbitration for medical reasons. The next

available date for all of the arbitrators was August 31, 2007.

The arbitration hearing occurred on August 31, 2007. The

arbitrators issued the decision on October 3, 2007.

10. The Charge of Discrimination which Petitioner filed

with the Commission on December 27, 2007, does not raise any

fact that was not known to Petitioner before the expiration of

365 days after the termination of employment on October 11,

2006. By July 19, 2006, Petitioner was aware of the facts on

which Petitioner bases his claim of a hostile work environment.

CONCLUSIONS OF LAW

11. DOAH has jurisdiction of the parties and subject

matter of this proceeding. § 120.57(1), Fla. Stat. (2008).

DOAH provided the parties with adequate notice of the hearing.

12. Petitioner has the burden of proof. Petitioner must

show by a preponderance of the evidence that Petitioner was

mislead or lulled into inaction, was in some extraordinary way

prevented from asserting his rights, or had timely asserted his

rights mistakenly in the wrong forum. Machules v. Department of

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

13. Limitation periods for filing discrimination claims

are not tolled during a grievance proceeding or some other

method of collateral review. Delaware State College et al., v.

Ricks , 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980);

see also Ledbetter v. The Goodyear Tire & Rubber Company, Inc. ,

550 U.S. 618, 127 S. Ct. 2162, 167 L. Ed. 2d 982 (2007)(current

effects alone cannot breathe life into prior discrimination);

Collins v. Miami-Dade County , 361 F. Supp. 2d 1362 (S.D. Fla.

2005) (continuity of employment is insufficient to toll 365-day

time period). However, time limitations are not jurisdictional

and are subject to equitable doctrines, including, in pertinent

part, equitable tolling. National Railroad Passenger

Corporation v. Morgan , 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed

2d 106 (2002); United States of America v. Johnson , 541 F.3d

1064 (11th Cir. 2008); Coke v. General Adjustment Bureau , 640

F.2d 584 (5th Cir. 1981).

14. Petitioner is entitled to an evidentiary hearing to

determine whether equitable tolling operates to excuse the

untimely filing of the Charge of Discrimination. Phillip v.

University of Florida , 680 So. 2d 508 (Fla. 1st DCA 1996). If a

preponderance of the evidence in the hearing were to have shown

that the untimely filing is excused by the doctrine of equitable

tolling, Petitioner would have been entitled to a hearing on the

merits of his claim of discrimination. Id.

15. A preponderance of the evidence does not show that the

factual prerequisites for equitable tolling are present in this

proceeding. Petitioner is not entitled to a second hearing on

the merits of his claim of discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order

dismissing the Charge of Discrimination as untimely for the

reasons stated in this Recommended Order.

DONE AND ENTERED this 20th day of July, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of July, 2009.

ENDNOTES

1/ References to chapters, sections, and subsections are to

Florida Statutes (2006), unless otherwise stated.

2/ Respondent cancelled the first predetermination conference

before it was completed because Petitioner was represented by

counsel and Respondent’s counsel was not present. Each party

was represented by counsel at the second predetermination

conference.

COPIES FURNISHED :

Charles M. Deal, Esquire

University of Florida

123 Tigert Hall

Gainesville, Florida 32611-2703

Brian Neumann

1805 6th Street West

Palmetto, Florida 34221

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

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.