14-001919 Dietrich R. Jenkins vs. Jones Walker Status: Closed Recommended Order on Thursday, July 24, 2014.

Summary: Petitioner failed to timely file her Employment Complaint of Discrimination with the Florida Commission on Human Relations, and, therefore, it was recommended that a final order be entered dismissing the same due to lack of jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIETRICH R. JENKINS,

Petitioner,

vs. Case No. 14 - 1919

JONES WALKER,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Todd P.

Resavage for final hearing by video teleconference on June 27,

2014, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Kenneth E. Walton, II, Esquire

The Walton Law Firm

1999 Sout h west 27t h Avenue

Miami, Florida 33145

For Respondent: Laurie Michele Chess, Esquire

Jones Walker, LLP

Suite 2600

201 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT O F THE ISSUE

Whether Petitioner timely filed her Employment Complaint of

Discrimination ( " Complaint " ) with the Florida Commission o n Human

Relations ( " FCHR " ) , and, if so, whether FCHR has jurisdiction to

entertain Petitioner ' s Complaint on the merits .

PRE LIMINARY STATEMENT

Petitioner, a former employee of Respondent, on

November 13, 2012, tendered her resignation via correspondence

entitled " Notice of Constructive Discharge. " On December 23,

2013, F CHR received an " Employment Complaint of Discrimination, "

wherein Petitioner alleged Respondent committed various

discrimina tory practices in violation of c hapter 760 of the

Florida Civil Rights Act ("FCRA") .

On March 20, 2014, FCHR issued a Determination: No

Jurisdiction, on the grounds that " [t]he complain t was not timely

filed. " Petitioner elected to pursue administrative remedies,

timely filing a Petition for Relief with FCHR on April 24, 2014 .

That same day, FCHR referred the matter to the Division of

Administrative Hearings ( " DOAH " ) for further procee dings.

On June 17, 2014, the parties filed a Joint Pre - Hearing

Stipulation. The parties stipulated to the facts contained

therein in paragraph E. To the extent relevant, the stipulated

facts have been incorporated herein. The final hearing was

schedule d for and conducted on June 27, 2014. The final hearing

Transcript was filed on July 7, 2014. The identity of witnesses

and exhibits and the rulings regarding each are as set forth in

the Transcript. The parties timely filed Proposed Recommended

Orders and same have been considered in preparing this

Recommended Order.

Unless otherwise indicated, all rule and statutory

references are to the 2013 edition s .

FINDING S OF FACT

1. Petitioner was previously employed by Respondent as an

attorney in its Miami , Florida office.

2. On November 13, 2012, Petitioner tendered her

resignation via correspondence entitled a " Notice of Constructive

Discharge. " The correspondence provided that her resignation

would be e ffective on November 23, 2012.

3. Petitioner ' s last date of employment with Respondent was

November 23, 2012, and she was paid through that date.

4. Petitioner completed a FCHR form entitled Technical

Assistance Questionnaire for Employment Complaints

( " Questionnare " ) and signed the same on Novembe r 20, 2013. The

Questionnare provides on its face the following langauge:

" REMEMBER, a charge of discrimination must be filed within 365

days of the alleged act of discrimination. " Additionally, the

Questionnare describes the principal purpose of the do cument as

follows:

The purpose of this questionnaire is to

solicit information about claims of

employment discrimination, determine whether

the Florida Commission on Human Relations has

jurisdiction over those claims, and provide

charge filing counseling, as appropriate.

5. On December 23, 2013, Petitioner filed an Employment

Complaint of Discrimination ( " Complaint " ) against Respondent with

FCHR. The Complaint was stamped as received by FCHR on

December 23, 2013 at 4:47 p.m. In the Complaint, under section

C ÏÏ " Cause of Discrimination " ÏÏ Petitioner checked the boxes for

sex and retaliation. Petitioner alle ged discrimination pursuant

to c hapter 760 of the Florida Civil Rights Act. The Complaint

further alleges that November 23, 2012, was the date that the

" most recent discrimination took place. "

6. On March 20, 2014, following the completion of its

investigation, FCHR issued a Determination: No Jurisdiction, on

the grounds that " [t]he complaint was not timely filed. "

CONCLUSIONS OF LAW

7 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to section s 120.569 and

120.57(1), Florida Statutes.

8. " As a jurisdictional prerequisite to filing an FCRA

action, a plaintiff must exhaust her administrative remedies by

filing a timely charge with the appropriate agency. " Jones v.

Bank of America , 2013 U.S. Dist. LEXIS 164730, *7 - 8 (M.D. Fla.

2013) (citations omitted). " To exhaust administrative remedies

under the FCRA, a plaintiff must satisfy the requirements of Fla.

Stat. § 760.11. " Id. , at *8 citing Maggio v. Fl a . Dep 't of Labor

& Emp. Sec. , 899 So. 2d 1074, 1079 (Fla. 2005); Woodham v. Blue

Cross & Blue Shield of Florida, Inc. , 829 So. 2d 891, 894 (2002).

9. S ection 760.11(1), Florida Statutes, provides, in

per tinent part, as follows:

(1) Any person aggrieved by a violation of

ss. 760.01 - 760.10 may file a complaint with

the commission within 365 days of the alleged

violation, naming the employer, employment

agency, labor organizati on, or joint labor -

management committee, or, in the case of an

alleged violation of s. 760.10 (5), the person

resp onsible for the violation and describing

the violation . . . . On the same day the

complaint is filed with the commission, the

commission shall clearly stamp on the face of

the complaint the date the complaint was

filed with the commission. In lieu of fi ling

the complaint with the commission, a

complaint under this section may be filed

with the federal Equal Employment Opportunity

Commission or with any unit of government of

the state which is a fair - employment - practice

agency under 29 C.F.R. ss. 1601.70 - 1601.80 .

If the date the complaint is filed is clearly

stamped on the face of the complaint, that

date is the date of filing . . . . The

complaint shall contain a short and plain

statement of the facts describing the

violation and the relief sought. The

commi ssion may require additional information

to be in the complaint. The commission,

within 5 days of the complaint being filed,

shall by registered mail send a copy of the

complaint to the person who allegedly

committed the violation. The person who

alleged ly committed the violation may file an

answer to the complaint within 25 days of the

date the complaint was filed with the

commission. Any answer filed shall be mailed

to the aggrieved person by the person filing

the answer. Both the complaint and the

an swer shall be verified.

10 . Florida Admini strative Code Rule 60Y - 5.001(3) further

provides, in pertinent part, that, " [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. "

11 . Rule 60Y - 5.001 also sets forth the requisite form and

contents of a " complaint. " Specifically, the rule provides as

follows:

(5) Form. The complaint must be in writing

and shall be signed by the compl ainant. 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 respo ndent;

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

pro ceedings 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 com plained of.

1 2 . Petitioner ' s unverified Questionnaire does not meet the

requirements of a " complaint " within the meaning of section

760.11. See Jones , 2013 U.S. Dist. LEXIS 164730, at *15 - 21.

1 3 . The only " complaint " in the record is Petitioner ' s

Com plaint received and d ate - stamped by FCHR on December 23, 2013.

Petitioner ' s Complaint was filed more than 365 days after the

last date of the alleged unlawful occurrence, November 23, 2012,

and, therefore, is untimely, unless the limitations period was

to lled by operation of section 95.051, Florida Statutes. See

Greene v. Seminole Elec. Coop., Inc. , 701 So. 2d 646, 648 (Fla.

5th DCA 1997)(holding that the limitations period for the filing

of a discrimination complaint with FCHR can be equitably tolled,

bu t only based on the act or circumstances enumerated in section

95.051).

14 . Section 95.051 provides, in relevant part, as follows:

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

p ertaining to a dispute that is the subject

of the action.

(h) The period of an intervening bankruptcy

tolls the expiration period of a tax

certificate under s. 197.482 and any

proceeding or process under chapter 197.

(i) The minority or previously adjudicated

incapacity of the person entitled to sue

during any period of time in which a parent,

guardian, or guard ian 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 act ion.

1 5 . Petitioner bears the burden of showing that equitable

tolling is appropriate. Ross v. Buckeye Cellulose Corp. , 980

F.2d 648, 661 (11th Cir. 1993). As none of the circumstances

enumerated in section 95.051(1) are applicable in this

procee ding, Petitioner ' s Complaint is untimely.

1 6 . In summary, since Petitioner filed her Complaint with

FCHR more than 365 days after the last date of the alleged

unlawful occurrence and no reason has been established to support

tolling the time period requ ired under section 760.11(1), Florida

Statutes, for filing her Complaint with FCHR, Petitioner ' s claim

is time - barred. There is no jurisdiction in FCHR or DOAH to

entertain her claim on the merits.

RECOMMENDATION

Based on the foregoing Findings of Fact a nd Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Florida Commission on Human Relations dismissing the subject

petition in its entirety due to lack of jurisdiction.

DONE AND ENTERED this 24th day of July , 2014 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of July , 2014 .

COPIES FURNISHED:

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Dietrich Renee Jenkins, Esquire

Unit 1503

1861 Northwest South River Drive

Miami, Florida 33125

Laurie Michele Chess, Esquire

Jones Walker, LLP

Suite 2600

201 South Biscayne Boulevard

Miami, Florida 33131

Kenneth E. Walton, II, Esquire

The Walton Law Firm

1999 Southwest 27th Avenue

Miami, Florida 33145

Elizabeth M. Rodriguez, Esquire

FordHarrison LLP

100 Southeast 2nd Street

Miami, Florida 33131

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Suite 100

200 9 Apalachee Parkway

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 file d with the agency that

will issue the Final Order in this case.