09-003478 Marie Claire Perez vs. Market Salamander Status: Closed Recommended Order on Tuesday, September 29, 2009.

Summary: An unsigned technical assistance questionnaire was not a "complaint" within meaning of statute and rule and cannot be deemed timely when filed outside 365-day limitation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIE CLAIRE PEREZ, )

)

Petitioner, )

)

vs. ) Case No. 09-3478

)

MARKET SALAMANDER, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice a formal hearing was conducted in this

case on August 17, 2009, before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings. The parties appeared via video teleconference from

West Palm Beach, Florida.

APPEARANCES

For Petitioner: Marie Claire Perez, pro se

517 Twenty-Ninth Street

West Palm Beach, Florida 33407

For Respondent: Mark Levitt, Esquire

Allen, Norton & Blue

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner timely

filed a complaint of discrimination in accordance with the

provisions of Chapter 760, Florida Statutes (2009).

PRELIMINARY STATEMENT

On June 24, 2009, the Florida Commission on Human Relations

transmitted to the Division of Administrative Hearings a

Petition for Relief filed by the Petitioner, Marie Claire Perez

(Petitioner). The petition alleged that the Respondent, Market

Salamander (Respondent), had violated provisions of Florida law

related to unlawful employment practices.

The case was scheduled for formal hearing for August 17,

2009, and notice of the hearing was provided to all parties at

their addresses of record.

At the hearing, the Petitioner testified in her own behalf

and late-filed an exhibit (marked as Petitioner's Exhibit 1)

that has been considered in evidence. The Respondent did not

provide evidence in connection with the case.

A transcript was not be filed in this cause. Both parties

timely filed Proposed Recommended Orders that have been fully

considered in the preparation of this Recommended Order of

Dismissal.

FINDINGS OF FACT

1. Prior to November 28, 2007, the Petitioner was employed

by the Respondent.

2. On November 26, 2008, the Petitioner sent a Technical

Assistance Questionnaire (TAQ) to the Florida Commission on

Human Relations (FCHR). The TAQ was submitted via facsimile

transmission and was not signed. The Petitioner believed she

was complying with the directives of the FCHR website and that

follow-up assistance (from the FCHR) would not be required. The

Petitioner did not understand that a signature was required,

notwithstanding the place for same (along with a date) on page 2

of the TAQ.

3. The Petitioner maintains that the FCHR website

instructions were unclear and that she erroneously relied on the

directions that did not specify she was required to sign the

TAQ.

4. The Petitioner filed a signed Charge of Discrimination

with the FCHR on January 14, 2009.

5. On February 5, 2009, the Petitioner received a "Notice

of Receipt of Complaint" from the FCHR. At the same time, a

copy of the complaint was furnished to the Respondent, who was

then, presumably, put on notice of the Petitioner's charge.

6. The FCHR did not advise the Petitioner that the TAQ had

to be signed.

7. In the course of its review of the instant charge, the

FCHR entered a determination of "untimely." Per the FCHR's

assessment, the charge of discrimination was filed more than 365

days from the last incident or act of discrimination.

8. Thereafter, the Petitioner elected to file a Petition

for Relief to challenge the determination and to seek relief

against the Respondent. The Commission then forwarded the

matter to the Division of Administrative Hearings for formal

proceedings.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

10. Under Section 760.11(1), Florida Statutes, any person

aggrieved by an unlawful employment practice may file a

complaint with the FCHR within 365 days after the alleged

violation. Failure to do so bars the claim. See Greene v.

Seminole Elec. Co-op, Inc. , 701 So. 2d 646, 648 (Fla. 5th DCA

1997); St. Petersburg Motor Club v. Cook , 567 So. 2d 488 (Fla.

2nd DCA 1990).

11. The period for filing the claim starts from the date

of the last act of alleged discrimination (in this case the date

of termination). See Maggio v. Fla. Department of Labor and

Employment Security , 899 So. 2d 1074 (Fla. 2005). Therefore,

pursuant to Florida law the Petitioner was required to file her

complaint within 365 days of November 28, 2007. She did not.

12. To extend the time for filing by "equitable tolling,"

the Petitioner would be required to establish the acts or

circumstances enumerated in Section 95.051, Florida Statutes

(2009). That provision states:

95.051 When limitations tolled.--

(1) The running of the time under any

statute of limitations except ss. 95.281 ,

95.35 , and 95.36 is tolled by:

(a) Absence from the state of the person to

be sued.

(b) Use by the person to be sued of a false

name that is unknown to the person entitled

to sue so that process cannot be served on

the person to be sued.

(c) Concealment in the state of the person

to be sued so that process cannot be served

on him or her.

(d) The adjudicated incapacity, before the

cause of action accrued, of the person

entitled to sue. In any event, the action

must be begun within 7 years after the act,

event, or occurrence giving rise to the

cause of action.

(e) Voluntary payments by the alleged

father of the child in paternity actions

during the time of the payments.

(f) The payment of any part of the

principal or interest of any obligation or

liability founded on a written instrument.

(g) The pendency of any arbitral proceeding

pertaining to a dispute that is the subject

of the action.

(h) The minority or previously adjudicated

incapacity of the person entitled to sue

during any period of time in which a parent,

guardian, or guardian ad litem does not

exist, has an interest adverse to the minor

or incapacitated person, or is adjudicated

to be incapacitated to sue; except with

respect to the statute of limitations for a

claim for medical malpractice as provided in

s. 95.11. In any event, the action must be

begun within 7 years after the act, event,

or occurrence giving rise to the cause of

action.

Paragraphs (a)-(c) shall not apply if

service of process or service by publication

can be made in a manner sufficient to confer

jurisdiction to grant the relief sought.

This section shall not be construed to limit

the ability of any person to initiate an

action within 30 days of the lifting of an

automatic stay issued in a bankruptcy action

as is provided in 11 U.S.C. s. 108(c).

(2) No disability or other reason shall

toll the running of any statute of

limitations except those specified in this

section, s. 95.091 , the Florida Probate

Code, or the Florida Guardianship Law.

None of the foregoing circumstances apply to this case.

13. Finally, the Petitioner argues that the FCHR's website

directions were unclear and that had she been advised to sign

the TAQ, it could have been treated as a timely filed complaint.

The acts or omissions of the FCHR do not toll the limitation

period. The FCHR is not a party to the complaint. The FCHR

serves as an investigatory and conciliatory third party to

review the claims of discrimination filed by outside parties

against employers. It has no "stake" in the outcome of the

matter other than to fulfill its statutory duties. Where the

parties cannot reach agreement and a formal administrative

hearing is necessary, the FCHR refers the matter to the Division

of Administrative Hearings to conduct the hearing pursuant to

Sections 120.569 and 120.57, Florida Statutes (2009). In this

case, the factual question of whether a complaint was timely

filed is the sole issue for determination.

14. It is concluded that the unsigned TAQ filed by the

Petitioner on November 26, 2008, did not qualify as a

"complaint" under the rules and statutes that govern this

proceeding. Florida Administrative Code Rule 60Y-5.001

provides:

(1) Who May File. A complaint may be filed

by any person aggrieved by an unlawful

employment practice. A complaint may also

be filed by the Attorney General, a

Commissioner, or the Commission. When a

complaint is filed by a Commissioner, that

Commissioner is the complainant, and shall

not participate as a Commissioner in any

subsequent proceeding upon that complaint.

(2) Time for Filing. A complaint may be

filed at any time within 365 days of the

occurrence of the alleged unlawful

employment practice. If the alleged

unlawful employment practice is of a

continuing nature, the date of the

occurrence may be any date subsequent to the

commencement of the unlawful employment

practice up to and including the date on

which it shall have ceased.

(3) Place and Date of Filing. A complaint

may be filed at the office of the

Commission. The date of filing shall be the

date of actual receipt of the complaint by

the Clerk or other agent of the Commission.

Any document received by the Clerk or other

agent of the Commission after 5:00 p.m.

(Eastern Time) shall be filed as of 8:00

a.m. on the next regular business day.

(4) Relation Back of Certain Complaints. A

complaint which would not otherwise be

timely may be filed if it:

(a) States that another complaint naming

the same respondent is properly before the

Commission and identifies that other

complaint, and

(b) Alleges the same or additional facts

which describe an unlawful employment

practice related to or growing out of the

subject matter of the other, identified

complaint, and

(c) Would have been timely if filed at

the time of, or other time subsequent to,

the filing of the other, identified

complaint. A complaint under this

subsection may be filed by a new complainant

and shall relate back to the date the other,

identified complaint was first received.

(5) Form. The complaint must be in writing

and shall be signed by the complainant . The

complaint shall be verified.

(6) Contents.

(a) The complaint should contain the

following information:

1. The name, address and telephone number

of the person filing the complaint;

2. The name, address and telephone number

of the respondent;

3. A clear and concise statement of the

facts, including pertinent dates,

constituting the unlawful employment

practice;

4. If known, the approximate number of

employees of a respondent employer;

5. If known, a statement disclosing

whether proceedings involving the alleged

unlawful employment practice have been

commenced before a Federal, State or local

agency charged with the enforcement of fair

employment practice laws and, if so, the

date of such commencement and the name of

the agency.

(b) Notwithstanding the provision of

paragraph (a) of this subsection, a

complaint is sufficient if it is in writing,

signed by the Complainant, verified, and is

sufficiently precise to identify the parties

and to describe generally the action or

practice complained of.

(7) Amendments.

(a) A complaint may be reasonably and

fairly amended within 60 days after filing

and, thereafter, for good cause with the

consent of the Executive Director.

(b) A complaint may be amended to cure

technical defects, or omissions, including

verification, or to clarify and amplify

allegations made therein. Such amendments

and amendments which describe an additional

unlawful employment practice related to or

growing out of the subject matter of the

original complaint will relate back to the

date the complaint was first received.

(c) An amendment adding or changing a

respondent will relate back to the date the

complaint was first received if, within the

period provided by subsection (2), the new

respondent (i) has received such notice of

the filing of the complaint as is sufficient

to avoid prejudice in a defense on the

merits, and (ii) knew or should have known

that, but for a mistake concerning identity

of the proper respondent, the complaint

would have been filed against the new

respondent.

(8) Withdrawal. A complaint may be

withdrawn by a complainant at any time;

however, following the issuance of a Notice

of Determination, withdrawal may be made

only with the consent of the Executive

Director.

(9) Notice to Respondent. When it is

determined that a complaint is complete and

has been timely filed. The Executive

Director shall cause notice of the filing

and a copy of the complaint to be served

upon the respondent. Notice shall be served

within 5 days of the date of filing. An

amendment likewise shall be served upon the

respondent.

(10) Maintenance of Records. Once a

complaint has been served on a respondent,

the respondent shall preserve all records

and other evidence which may pertain to the

complaint until the matter has been finally

determined. (Emphasis Added.)

15. The Petitioner has the burden of proving that she

timely filed a complaint in this cause. See Department of

Banking and Finance Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996). She has failed to meet that burden. Her complaint was

filed more than 365 days from the last act of alleged

discrimination. Accordingly, this case should be dismissed as

untimely filed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Florida Commission on Human

Relations enter a Final Order dismissing the Petitioner's claim

of discrimination.

DONE AND ENTERED this 29th day of September, 2009, in

Tallahassee, Leon County, Florida.

________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of September, 2009.

COPIES FURNISHED:

Mark Levitt, Esquire

Allen, North & Blue

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

Marie C. Perez

517 29th Street

West Palm Beach, Florida 33407

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.