20-000895PL Department Of Health, Board Of Nursing vs. Brian Francis Antoniak, R.N., A/K/A Brian Hall, R.N. Status: Closed Recommended Order on Monday, July 20, 2020.

Summary: Negligence of Resp.?s counsel and assistant were not extraordinary circumstances for equitable tolling. No proof assistant intentionally falsified records; circumstances did not prevent timely filing of hearing request had counsel exercised due diligence.

S TATEMENT OF T HE I SSUE

The issue in this case is whether the defense of equitable tolling applies to

excuse Respondent's untimely request for a disputed - fact administrative

hearing on an Administrative Complaint.

P RELIMINARY S TATEMENT

On July 1, 2019, the De partment of Health, Board of Nursing (Petitioner ) ,

filed a two - count Administrative Complaint (Complaint) against Brian

Francis Antoniak, R.N., a/k/a Brian Hall, R.N. (Respondent). The Complaint ,

along with a bl ank Election of Rights form , was served by certified mail on

Respondent's then - counsel of record, Lauren Leikam (Attorney Leikam) of

the Chapman Law Group (CLG). Attorney Leikam received t he Complaint

package on July 19, 2019.

In accordance with the Comp laint's Notice of Rights , a written reque st for

an administrative hearing to dispute the alleged facts , via a completed

Election of Rights form or other written request for hearing, had to be filed

with Petitioner no later than 21 days after the Complaint was received by

Attorney Leikam . No completed Election of Righ ts form or other written

request for a disputed - fact administrative hearing was timely filed with

Petitioner by Respondent or on Respondent's behalf .

On November 6, 2019, Petitioner served on At torney Leik am by email

Petitioner's Motion for Determination of Waiver and for Final Order After

Hearing Not Involving Disputed Issues of Material Fact (Motion for Waiver).

That same day, Attorney Leikam emailed to Petitioner an Election of Rights

form com pleted on Respondent's behalf, requesting a disputed - fact hearing on

the Complaint.

On December 3, 2019, Attorney Leikam made two additional filings on

Respondent's behalf, by email to Petitioner : an Answer to the Complaint; and

a response to the Motion fo r Waiver, asserting that equitable tolling excused

Respondent's untimely Election of Rights.

Following consideration of the Motion for Waiver and response, o n

February 19, 2020, Petitioner referred the case to DOAH . 1 Petitioner's

referral letter requested assignment of an administrative law judge to

conduct an evidentiary hearing on the issue of whether equitable tolling

applies to excuse the untimely filing of Respondent's Election of Rights.

The hearing was initially set for April 30, 2020 , but was conti nued on

Respondent's unopposed motion, due to stay - at - home orders necessitated by

the COVID - 19 public health emergency . T he hearing was rescheduled for

June 9, 2020 , and went forward as rescheduled .

Prior to the hearing, the parties filed a Joint Pre - heari ng Stipulation in

which they stipulated to a number of facts. The agree d facts are incorporated

in the findings below, to the extent relevant.

At the hearing, i t was agreed that Respon dent , as the party with the

burden of proof on the asserted equitable to lling defense , should present his

case first. Respondent testified on his own behalf, and presented the live

testimony of Attorney Leikam and Katherine Kalinowski. Respondent's

Exhibits 4 through 7 a nd 10 through 15 were admitted into evidence.

Petitioner presented the live testimony of Respondent and Attorney Leikam.

Petitioner's Exhibit 5 was admitted into evidence. In addition, the parties

jointly presented the deposition testimony of Krist i n Teague, via Joint

E xhibit 1, which was admitted in lieu of liv e testimony, due to the

acknowledged unavailability of the witness , who lives and works in Michigan .

1 Petitioner's referral letter identified two attorneys of record for Respondent: Attorney

Leikam and Sara Bazzigaluppi, both with CLG. Thereafter, Att orney Leikam filed a motion

to withdraw as an individual counsel for Respondent, because she anticipated testifying as a

witness for Respondent. She reported in her motion that Respondent would continue to be

represented by CLG through Sara Bazzigaluppi. I n an amended motion to withdraw,

Attorney Leikam added that she conferred with counsel for Petitioner, who did not object. By

Order issued April 16, 2020, the amended motion was granted subject to the express assumption that Attorney Leikam, Ms. Bazzigalup pi, and CLG had addressed their

professional and ethical responsibilities under The Florida Bar's rules, including obtaining

Respondent's informed consent if necessary.

At the conclusion of the evidentiary hearing, the parties were informed of

the ten - day timeframe after the filing of the hearing transcript at DOAH to

fil e proposed recommended orders (PROs) . The Transcript of the final

hearing was filed on June 18, 2020. On June 29, 2020, both parties filed

PROs , which have been considered in prepar ing this Recommended Order.

F INDINGS OF F ACT

1. Petitioner is the state ag ency charged with regulating the practice of

nursing pursuant to section 20.43, Florida Statutes, and chapters 456 and

464, Florida Statutes.

2. At all times material to the Complaint, Respondent was a licensed

registered nurse (R.N.) within the state of Florida.

3. On or about February 19, 2016, Respondent retained CLG to represent

him in Petitioner's Case 2016 - 08658 , the number assigned by Petitioner to an

investigation that ultimately led to issuance of the Complaint.

4. In late May 2018, Attorney Leika m assumed the role as the CLG

attorney with primary responsibility for Respondent's case , and informed

Petitioner . At that time, the status of the case was characterized as "pre -

probable cause." Attorney Leikam represented then to Petitioner that she

"will be representing this client in all matters pending before the

Department."

5. On November 9, 2018, CLG legal assistant Katherine Kalinowski

testified that she closed CLG's file on Respondent's case. However, she did

not follow CLG procedures, in that she did not ensure that a withdrawal

letter was sent to Respondent before CLG closed its file.

6. On July 1, 2019, Petitioner filed its Complaint against Respondent.

7. Although Attorney Leikam was still counsel of record for Respondent

for all matters pendin g before the Depar tment, including Case 2016 - 08658 ,

the Department sent the Complaint and Election of Rights form to Respondent directly.

8. When Respondent received the Complaint package, he called CLG and

was referred to Attorney Leikam.

9. Attorney Lei kam determined that, although CLG had attempted to

close its file, since no withdrawal letter was sent to Respondent, "we are still

on it."

10. Attorney Leikam sent an email to counsel for Petitioner to complain of

the improper attempt to serve Respondent with the Complaint, when she was

still counsel of record for Respondent, as she had previously informed

Petitioner.

11. Petitioner acknowledged and rectified this mistake by serving the

Complaint and Election of Rights form by certified mail to Attorney Le ikam,

which she received on July 19, 2019. The parties agree that this second

attempt to serve the Complaint constitutes the proper service on Respondent .

12 . The last page of the Complaint — page 11 — set forth the NOTICE OF

RIGHT S in bold type, informing Res pondent that a written request for an

administrative hearing must be received by Petitioner within 21 day s after

receipt of the Complaint.

13 . There is no claim by Respondent in this case that the Notice of Rights

was un clear regarding the deadline to requ est a hearing or the manner in

which a hearing must be requested . Respondent knew that there was a

deadline to request an administrative hearing, but he did not know when the

actual deadline was. He admitted he only "vaguely" reviewed the Complaint, and pr obably did not make it to the last page. (Tr. 126 - 27 ). Instead, he relied

on Attorney Leikam to timely submit whatever was necessary to protect his

rights.

2

2 Upon determining that CLG had not effectively terminated its representation of

Resp ondent, Attorney Leikam immediately notified Respondent that further retainer

payments were required. As of July 22, 2019, Attorney Leikam noted as follows in CLG's

internal File Notes: "Client never paid but now that we've been served [with the Complaint] ,

I don't want to miss the deadline. I completed only the election of rights form. I am not

sending the answer to the [Complaint] until the client pays."

14 . To meet the 21 - day deadline, a completed Election of Rights or other

written hearing request ha d to be received by Petitioner no later than Friday,

August 9, 2019 (21 days after July 19, 2019). The 21 - day window to request

an administrative hearing was closed on and after Monday, August 12, 2019. 3

1 5 . Neither Respondent nor Attorney Leikam submitt ed a completed

Election of Rights or other written request for an administrative hearing to

Petitioner by any means — electronic mail, in - person deliver y , U.S. mail, or

facsimile — within 21 days after the Complaint and Election of Rights form

were received by Attorney Leikam.

1 6 . On November 6, 2019 — 89 days after the deadline to request an

administrative hearing — Petitioner's counsel sent an email to Attorney

Leikam to serve Petitioner's Motion for Waiver , which was attached . The

Motion for Waiver, filed with t he Board of Nursing, sought a determination

that Respondent waived his right to a disputed - fact administrative hearing

by not timely filing an Election of Rights or other written request for a

disputed - fact hearing.

1 7 . That same day, after receiving the M otion for Waiver, Attorney

Leikam responded by email to Petitioner's counsel , submitting for the first

time a completed Election of Rights form on Respondent's behalf to dispute

the facts alleged in the Complaint .

3 The parties stipulated that the 21 - day period to request an administrative hearing

"expired" August 12, 2019. The stipulation is not entirely clear. The ambiguity was

reconciled based on the parties' other stipulation that the Complaint was properly served on

Attorney Leikam on July 19, 2019. As a simple application of the computation of time rule,

21 d ays after Friday, July 19, 2019, was Friday, August 9, 2019. Thus, August 9, 2019, was

the last day to file the request for hearing; the 21 - day time period was "expired" as of

Monday, August 12, 2019. See Fla. Admin. Code R. 28 - 106.103. Petitioner's PRO in terpreted

the ambiguous stipulation differently, proposing a finding that the 21 - day deadline to file a

hearing request was on Monday, August 12, 2019. (Pet. PRO ¶ 5). Respondent's PRO

adhered to the ambiguous stipulation, proposing a finding that the 21 - d ay response time

"expired on August 12, 2019." (Resp. PRO ¶ 8). This discrepancy is inconsequential, as the

findings herein demonstrate, because no hearing request was filed by August 9, 2019,

August 12, 2019, or on any date close to either of those dates (if "close" mattered).

1 8 . Attorney Leikam represented to Petitio ner's counsel that she had

completed the Election of Rights form on or about July 2 1 , 2019, and that h er

then - legal assistant, Tawanna Hackley, had submitted the completed form by

email to Petitioner on July 23, 2019 .

1 9 . Petitioner ran email searches and reported to Attorney Leikam that no

emails were received from Ms. Hackley or from anyone else at CLG

submitting a completed Election of Rights or otherwise requesting an

administrative hearing to dispute the Complaint against Respondent.

20 . On December 3, 2019, Attorney Leikam sent an email to Petitioner's

counsel, transmitting an Answer to the Complaint for filing on Respondent's

behalf. 4 Attorney Leikam also sent an email attaching Respondent's response

to the Motion for Waiver. The response invoked the doctrine of equitable

tolling as a defense to the admitted untimely filing of the Election of Rights.

2 1. The Motion for Waiver and response were presented to the Board of

Nursing on December 5, 2019. As a result of Attorney Leikam 's request that

the Board defer review of the case pending a hearing o n equitable tolling, the

matter was referred to DOAH to hear the equitable tolling defense.

22 . The equitable tolling defense asserted by Respondent is predicated on

the circumstances surrounding Attorney Leikam having entrust ed the filing

of the Election of Rights to her then - assistant, Tawanna Hackley, who failed

to complete the assigned task.

23 . Tawanna Hackley was not a lawyer or a paralegal; her position at

CLG was a "legal assistant , " and she worked under the supervision of

Attorney Leikam. Ms. Hackley began working at CLG on November 12, 2018.

Just over eight months later, on July 24, 2019, she was fired for inadequate performance.

4 As noted above, Attorney Leikam had recorded in the File Notes that as of July 22, 2019,

Respondent had not yet paid the requested retainer fee, and that until Respondent paid, she

was only going to file the Election of Rights a nd not the Answer. No evidence was offered to establish when Respondent paid, but based on Attorney Leikam's July 22, 2019, File Notes

entry, presumably Respondent did not pay until shortly before Attorney Leikam filed the Answer on December 3, 2019.

24. Attorney Leikam testified candidly that during Ms. Hackley's short

tenu re at CLG , she had a lot of performance i ssues , described as follows:

It was really — it was really everything from not

completing tasks, not documenting tasks, or then

doing tasks but having multiple repeated errors in the format or the spelling or the lang uage. It was —

it was really a constant issue one way or another.

But to me, the biggest issue was that when I would

confront these things with her, she just denied all

responsibility. (Tr. 25 - 26).

2 5 . M s. Hackley was primarily trained by another legal assi stant,

Katherine Kalinowski, who acknowledged that Ms. Hackley did not seem to

grasp what she was taught. When asked how long it took Ms. Kalinowski to

train Ms. Hackley, of the eight months she was employed, Ms. Kalinowski

responded, "Eight months." (Tr. 108 ). Nonetheless, Ms. Kalinowski testified

that after the first month or so, she stopped checking over Ms. Hackley's

work, limit ing her involvement to answering Ms. Hackley's questions.

26. Attorney Leikam communicated in telephone calls with CLG's direct or

of human resources, Kristin Teague, regarding th e consistent performance

problems she was having with Ms. Hackley. However , no specific steps to

address these problems were documented in Ms. Hackley's personnel file

until her last few weeks at CLG . In p articular, h er personnel file contains one

"coaching" document , prepared by Ms. Teague from information given to her

by Attorney Leikman to facilitate a performance - related meeting between

Attorney Leikam and Ms. Hackley on J uly 8, 2019 ; and one f ormal cor rective

action in the form of a counseling warning , iss ued on July 1 2 , 2019 .

2 7 . The July 8, 2019, coaching document listed specific performance issues

to be addressed in discussion with Ms. Hackley , all of which fell within the

broad categories of perform ance issues to which Attorney Leikam testified at

the hearing: not completing tasks assigned to her , not documenting tasks ,

and committing multiple repeated errors in the work she did complete. The coaching document ended with a list of specific behavior c hanges needed from

Ms. Hackley, and item two on the list was: "Complete tasks given by

attorneys and/or ask a question if she does not understand."

2 8 . The next step in CLG 's performance review process if an employee

does not meet the expectations communi cated in a coaching discussion is

formal corrective action in the form of a counseling warning. A corrective

action counseling warning was issued to Ms. Hackley on July 12, 2019, only

f our days after the scheduled performance discussion . The corrective act ion

document was signed by Ms. Teague on July 12, 2019, and by Ms. Hackley

and Attorney Leikam on July 15, 2019. The document warned Ms. Hackley

that her performance needed to improve because she was making too many

mistakes of the type identified by Attor ney Leikam in her testimony: not

completing assignments given to her by her attorneys, not following the

CLG procedures for documenting tasks , not scanning documents into the

electronic files , and making a lot of spelling and formatting errors. A

confident ial version of the corrective action document contained a heading

identifying the reason for the action as "Unsatisfactory Work Performance."

(Jt. Ex. 1, Pet. Depo. Ex. 2, Bates page 0028).

2 9 . Th e corrective action defined a time period for improvement of six

months from the date it was issued , during which Ms. Hackley was expected

to have weekly meetings with Attorney Leikam to discuss her performance .

Al most immediately after the corrective action counseling warning was

signed by Ms. Hackley , though, Ms. Teague testified that she and Attorney

Leikam made the decision that Ms. Hackley needed to be terminated. Together, they informed Ms. Hackley that she was fired on Wednesday,

July 24, 2019 , but t he decision was made either on Monday, July 22, 2019, or

Tue sday, July 23, 2019. Ms. Teague explained when and why the decision

was made: "Earlier that week I think we had decided that we could no longer

risk her continuing to work on our files." (Jt. Ex. 1 at 53). That was because

of the errors Ms. Hackley kept ma king.

30 . The precursor to this joint decision appears to have occurred o n

Friday, July 19, 2019 ( t he day on which Attorney Leikam received the

Complaint by certified mail from Petitioner ). Attorney Leikam apparently

spent her morning in several rounds of email exc hanges with Ms. Hackley.

In each of these rounds, Attorney Leikam pointed out errors in Ms. Hackley's

work, to which Ms. Hackley responded by blaming someone or something else

for the errors. A t torney Leikam then forwarded each round of these ema il

exchanges to Ms. Teague at CLG's Michigan office , and the email strings

were placed in Ms. Hackley's personnel file .

31 . Attorney Leikam testified that she completed Respondent's Election of

Rights on July 2 2 or 2 3 , 2019, and physically handed it to Ms . Hackley with

verbal instructions to scan and email the Election of Rights to Petitioner. 5

32 . Attorney Leikam exercised questionable judgment by entrusting to

Ms. H ackley the critical step of transmitting the Election of Rights to

Petitioner without ver ifying for herself that the email was sent and received,

when at the same time she and Ms. Teague had jointly concluded that

Ms. Hackley had to be fired because they "could no longer risk her continuing

to work on our files." But according to Attorney Leik am, it is standard CLG

practice for legal assistants to transmit by email these time - critical

documents to the opposing party for filing.

33 . Th at th is is the standard practice is not so clear in the CLG policies

and procedures manual , which seems to assi gn to attorneys the responsibility

for all communications of any kind with opposing parties. Further, as to

deadlines, the CLG manual is quite clear that "[w]hile legal assistants should

remind attorneys daily of their upcoming deadlines/events, both parti es are

responsible for ensuring that deadlines and events are not missed."

5 A ttorney Leikam told Petitioner in the early November 2019 email exchanges that she

completed the Election of Rights form on July 21, 2019, and gave it to Ms. Hackley to submit

to Petitioner, but that is unlikely, since July 21, 2019, was a Sunday. More lik ely, Attorney

Leikam completed the Election of Rights form on Monday, July 22, 2019, or possibly

Tuesday, July 23, 2019, and gave it to Ms. Hackley to scan and email to Petitioner.

34 . Attorney Leikam acknowledged that when CLG's legal assistants send

emails to opposing parties regarding a case , CLG's standard practice also

dictates that the legal assistant mu st copy the at torney handling the case on

the email . Attorney Leikam did not receive a copy of an email sent by

Ms. Hackley to Petitioner transmitt ing the Election of Rights for filing.

35. Despite not getting a copy of an email from Ms. Hackley transmitt i ng

the Election of Rights to Petitioner , Attorney Leik a m believed Ms. Hackley

completed the assign ed task by sending the completed Election of Rights form

by email to counsel for Petitioner on July 23, 2019. Attorney Leikam believed

that the filing was mad e on July 23, 2019, because a n entry dated July 23,

2019 , in the File Notes document maintained for Respondent's case stated :

" Sent election of right to Dirlie McDo na ld @ DOH place in G:drive. TH . "

3 6 . The File Notes document is a Microsoft Word document . File Notes

documents are maintained for each case, with contact information for parties

and counsel, and entries reporting on events and communications relevant to

the case. The File Notes document s can be accessed by any CLG employee. In

theory, and in ac cordance with CLG procedures, an entry's date should be the

date the entry is actually made, but no date or time stamp is automatically

generated to ensure accuracy . As such, an ent ry can be made either before or

after the typed date. Likewise, in theory, and in accordance with CLG

procedures, the initials at the end of a File Notes entry should identify the

person who made the entry, but the initials are not automatically generated

to identify who accessed the File Notes to record a particular entry.

3 7 . A ttorney Leikam testified that s he checked the File Notes for

R espondent's case sometime on July 24, 2019, and saw the entry for July 23,

2019, by "TH" stating that the "election of right" was " sent " to " Dirlie

McDonald @ DOH . " Attorney Leikam later made th e following entry in the

File Notes: " 7/ 24/19: Client left a message worried about payment and

election of rights. I played phone tag and left him a message saying it was

covered. Sent f/u [follow - up] email. LAL."

3 8 . According to Attorney Leikam, t he sequ ence of events, as recorded in

her File Notes entry, was that , first , Respondent called and left a message

expressing concern about whether the election of rights had been filed . Then,

after Attorney Leikam received the message, she investigated the status of

the Election of Rights assignment by reviewing the File N otes and finding the

July 23, 2019, entry by TH. Attorney Leikam drew the inference from the

entry and the initials that Ms. Hackley had completed her assigned task of

sending the Election of Rig hts by email to Petitioner on July 23, 2019 (even

though the entry does not state how the Election of Rights was sent , and even

though Attorney Leikam did not receive a copy of a n email from Ms. Hackley

to Petitioner ) . Then, Attorney Leikam "played phone t ag" with Respondent,

and ultimately left a message saying "it was covered." Attorney Leikam then

drafted a "follow - up" email to Respondent and sent it to him.

39 . The follow - up email prepared by Attorney Leikam stated: "We

submitted the Election of Rights form on 7/23/19. We received it on 7/19/19,

so it is timely. This is because we were still counsel of record[ , so] the

Department should have sent the Administrative Complaint to our office.

Thus, the Complaint you received [earlier] is not considered pro perly served."

This email was sent to Respondent at 3:16 p.m. , on July 24, 2019. Of

necessity, then, all of the preceding steps in the sequence occurred sometime earlier on July 24, 2019 , if not before July 24, 2019.

4 0 . Attorney Leikam offer ed no explan ation as to why she did not just ask

Ms. Hackley if she completed the assignment so Attorney Leikam could

answer Respondent's inquiry . Ms. Hackley was still in the office on July 24,

2019, until nearly the time that the follow - up email was sent at 3:16 p.m .

41. Attorney Leikam 's review of the File Notes entry ostensibly made by

Ms. Hackley on July 23, 2019, was inadequate to support the inference drawn

by Attorney Leikam. R easonable prudence dictate d that she ask Ms. Hackley

to confirm that she sent t he El ection of Rights by email , before assuring the

client that "we" submitted the Election of Rights on July 23, 2019 , and that

it was timely filed . The File Notes entry itself did n ot identify how the

Election of Rights was "sent , " and Attorney Leikam was no t copied o n an

email from Ms. Hackley to Petiti oner transmitting the Election of Rights , as

was the standard CLG practice. 6

4 2 . Meanwhile , Attorney Leikam also spent time o n July 24, 2019, dealing

with Ms. Hackley's termination. Attorney Leikam testified t hat she spoke

with Ms. Teague during the morning of July 24, 2019, to confirm the plan to

schedule a meeting with Ms. Hackley at 3:00 p.m. , and that Ms. Teague

would attend by telephone.

4 3 . Sometime between 12 :00 p.m. and 1:00 p.m., Attorney Leika m used

M icrosoft Outlook to schedule the 3:00 p.m. meeting, sending "invitations" to

Ms. Hackley and Ms. Teague. 7

4 4 . Ms. Hackley's receipt of an "inv itation" to a meeting with Attorney

Leikam and Ms. Teague was not well received , coming on the heels of the

correc tive action counseling warning Ms. Hackley had signed nine days

earlier, and the multiple rounds of criticizing emails from Attorney Leikam

five days earlier . According to Attorney Leikam, rather than accepting the

invitation , Ms. Hackley "stormed" into he r office and started yelling that they

6 by explaining Attorney Leikam attempted to justify the reasonableness of her inference

Ms. Hackley did not always follow procedure by copying her on emails. Even if true, that

would not support the reasonableness of inferring Ms. Hackley completed the email filing

assignment from an entry that did not say the Election of Rights was sent by email.

Moreover, Attorney Leikam's explanation as to why she was unconcerned by the fact that she

did not receive a copy of an email was impeached by Respondent's own evidence. According to

an audit of Ms. Hackley's emails, not done until Nove mber 2019, all outgoing emails from

July 10, 2019, through July 24, 2019, from Ms. Hackley to Petitioner or another party

outside of CLG were copied to Attorney Leikam and/or Ms. Bazzigaluppi. If this was a

performance issue for Ms. Hackley previously, it app arently was not a problem in July 2019.

7 Ms. Teague had a somewhat different , but much less clear, recollection of the timing . She

repeatedly said she was not sure of the various times to which she hesitantly testified.

Ms . Leikam, in contrast, did no t express the same hesitancy in her testimony. To the extent

their testimony differed as to when certain steps occurred , Ms. Leikam's more certain

recollection is generally credited. It would stand to reason that she would have a clearer

recollection of th e timing of events that occurred in her physical presen ce than Ms. Teague's

admittedly uncertain recollection of the timing of events in which she participated remotely by telephone from Michigan .

were going to fire he r and she was not going to sit around and wait for a

meeting. Ms. Hackley then left Attorney Leikam's office, and Attorney

Leikam said she heard "a lot of slamming for a little while." (Tr. 57). Then

Ms. Hackley returned and said she was going to wait for Ms. Teague.

4 5 . Attorney Leikam said after this exchange, she called Ms. Teague

immediately, who made herself available for a meeting "within about an

hour's time." (Tr. 57). Given Attorney Leik am's description of the events that

started at between noon and 1:00 p.m., the meeting must have begun no

earlier than 1:30 p.m. and possibly as late as 2:30 p.m.

4 6 . The termination meeting was relatively uneventful, as Ms. Hackley

was already expecting to hear that she was fired, and she was. No reasons for

dismissal were discussed. Ms. Teague asked Ms. Hackley to give her key to

Attorney Leikam, and she did. Ms. Teague than asked Ms. Hackley to delete

her CLG email account from her phone while Attorney Leikam observed her

doing so, and she did.

4 7 . Inexplicably, Ms. Hackley was not instructed to leave, nor was she

instructed to pack up her personal things while a witness observed her doing

so. Attorney Leikam testified that she does not know whether Ms. Hackley

left the building right away, but believes that she heard Ms. Hackley at her

desk for almost an hour after she was fired. Ms. Hackley's desk was just

outside of Attorney Leikam's office , but not within her line of sight .

4 8 . Ms. Kalinowski testifie d that her work station was approximately six

feet away from Ms. Hackley's station. Ms. Kalinowski was out to lunch when

the termination meeting started in Attorney Leikam's office , but returned

before it ended . Ms. Kalinowski testified that w hen Ms. Hackl ey left the

meeting , she was a little teary - eyed and gave Ms. Kalinowski a hug, telling

her she had been fired. Ms. Kalinowski told her she was sorry.

49 . Ms. Kalinowski testified that Ms. Hackley went to her work station

and was "doing something on the c omputer , " though Ms. Kalinowski could

not say if it was work or something else, as she could not see what was on the

screen. Ms. Kalinowski said she gave Ms. Hackley "a few minutes," then

asked what she was doing, and Ms. Hackley said she was "cleaning thi ngs

up." (Tr. 110). Ms. Kalinowski told Ms. Hackley she did not think she needed

to worry about that, so Ms. Hackley got her things and went outside to wait

for her ride. Ms. Kalinowski testified that it was between 2:30 p.m. and

3:00 p.m. when Ms. Hackley left the building. 8

50 . Attorney Leikam confirmed that Ms. Hackley was terminated because

of performance issues. Ms. Teague agreed, stating that the decision was made

to fire Ms. Hackley because of all the errors she continued to make. A s such,

when Ms. Hackley applied for unemployment compensation, CLG did not

contest it. To do so , CLG would have had to show that Ms. Hac kley had

engaged in gross misconduct, and there was no evidence of that.

5 1 . Despite Ms. Hackley's performance inadequacies recounted by

Attorney Leikam, there was no immediate undertaking after Ms. Hackley's

termination to audit the files on which she had been working to determine

whether there were additional instances in which she failed to complete assigned tasks. That was negligent .

5 2 . Attorney Leikam 's acceptance at face value of an internal file notation

as sufficient proof that Ms. Hackley completed an assignment just given to her on July 22, 2019, was negligent .

5 3 . Even if Attorney Leikam was unwilling or unable to ask Ms. Hac kley

before she left the building on July 24, 2019, whether she completed the assignment, there was an easy and simple solution. Attorney Leikam could

8 regarding conversations with Among other evidence relied on by Respondent, testimony

Ms. Hackley is hearsay. At the outset of the hearing, the parties were informed that to the

extent their evidence constituted or contained hearsay, the hearsay evidence would not be

relied on as the sole basis for a finding of fact, whether objected to or not, unless the hearsay

would be admissible in a civil action in Florida, i.e., that it would fall within a hearsay

exception under the Florida Evidence Code. See § 120.57(1)(c), Fla. Stat. (2019) ; and Fla.

Admin. Code R. 28 - 1 06.213(3). The parties were instructed to identify on the record any

hearsay exceptions they intended to rely on so that argument could be presented by both

parties. Neither party raised a hearsay exception on which they were relying. Accordingly,

the test imony regarding conversations with Ms. Hackley is recounted not for the truth of

what was said, but rather, to portray an approximate timeline of the events on July 24, 2019.

have, and should have, called or emailed counsel for Petitioner to ask

whether Respondent's Election of R ights had been submitted. As of July 24,

2019, there were still 16 days remaining — more than two - thirds of the 21 - day

window — to timely file an Election of Rights. It would have been easy to

verify whether the just - fired employee who constantly made errors d uring

her short tenure at CLG had , or had not , made another error on this

assignment. Reasonable prudence and due diligence required that Attorney

Leikam do so, particularly since she and Ms. Teague, the human resources

director , had concluded together ear lier that week that the firm could not risk

having Ms. Hackley continue to work on their files.

5 4 . Attorney Leikam did nothing to check on the status of Respondent's

cas e until she received the Motion for Waiver on November 6, 2019. Then,

with the clari ty of belated hindsight, the forces were marshalled as they

should have been in late July 2019. Ms. Hackley's emails were searched and

audited in November 2019, something that should have been done in late

July 2019. And, as would have been confirmed in la te July 2019 had the audit

been requested then , the resulting audit report was that no email was sent by

Ms. Hackley to counsel for Petitioner transmitting Respondent's Election of

Rights.

5 5 . Respondent, through counsel, contends that Ms. Hackley's actio ns and

inaction constituted intentional sabotage and , as such, extraordinary

circumstances beyond Respondent's control and beyond Attorney Leikam's

control that could not have been discovered in the exercise of due diligence.

5 6 . The credible non - hearsay e vidence, with reasonable inferences drawn

therefrom, do es not support a finding that Ms. Hackley engaged in

intentional sabotage. I nstead, that evidence only establishes that

Ms. Hackley did not complete an assignment verbally conveyed to her shortly

befor e she was fired. At most, the evidence supports a finding that she was

negligent , as she apparently had been throughout her tenure at CLG .

5 7 . Respondent, through counsel, argues that the entry dated July 23,

2019, in the CLG internal File Notes document b y "TH" must have been

intentionally made by Ms. Hackley a fter she knew she was fired, out of anger

for being fired, to sabotage Attorney Leikam . Of course, this same entry was

considered by Attorney Leikam on July 24, 2019, to be solid evidence that

Ms. Ha ckley , in fact , completed her assignment by emailing the Election of

Rights to Petitioner on July 23, 2019. Just as the latter inference was not

reasonable, as previously found, the opposite inference of intentional

sabotage is not fair , reasonable , or sup ported by the credible evidence .

58. To begin with, the evidence is inconclusive regarding the timeline.

Although Attorney L eikam was fairly specific in recalling the timeline related

to Ms. Hackley's termination, she testified only in generalities as to t he

sequence of events on July 24, 2019, with regard to her investigation to

respond to Respondent's telephone message. If anything, the sequence of

events suggests that Attorney Leikam discovered the File Notes entry dated

July 23, 2019, before Ms. Hackley became aware between 12:00 p.m. and

1:00 p.m. on July 24, 2019, that she was likely going to be terminated .

5 9 . E ven if the timing predicate had been established, Attorney Leikam

candidly admitted that the only basis for inferring that Ms. Hackley had

in tentionally falsified the File Notes entry to sabotage her was the fact ,

discovered in early November , that the File Notes entry was false.

60. Respondent argues that the only reasonable inference from the false

entry is that Ms. Hackley intentionally fal sified the records. But a nother

equally reasonable , if not more reasonable, inference from the July 23, 2019,

entry is that Ms. Hackley may have been trying to respond to the recent

criticism of her failure to document events in File Notes , by making an en try

before she actually completed the task. The completed Election of Rights had

also been scanned and saved to the G:drive, something else that Ms. Hackley

had been criticized for not doing. Ms. Hackley may well have intended to follow through by preparin g an email to counsel for Petitioner to transmit the

already - scanned, already - saved Election of Rights form, but may have gotten

sidetracked after making the File Notes entry on July 23, 2019. Had Attorney

Leikam asked Ms. Hackley on July 24, 2019, when sh e saw the July 23, 2019,

File Notes entry, the matter may have been resolved. Instead, Ms. Hackley

was fired and left the building mid - afternoon on July 24, 2019. 9

6 1 . Respondent, through counsel, also points to the short time that

Ms. Hackley was seen a t her computer after she was fired, when she was

seen doing something for a few minutes before she packed up her things and

left. The suggestion is that the only, or most reasonable , inference is that

Ms. Hackley must have been making the July 23, 2019, fa lse entry in File

Notes out of anger for being fired. Alternatively, the argument is that

Ms. Hackley made the false entry between learning of the meeting at which

she was pretty sure she was going to be fired and the actual meeting.

6 2 . The se arguments a re speculative , unsupported by competent

substantial evidence, and not proven to be more likely than not. Once again,

the suggested inference is not the only possible or reasonable explanation.

Another reasonable inference is that Ms. Hackley may have been spending

the little time she had at her computer, after learning she would likely be

fired, to delete personal emails and /or documents that sh e did not want to

leave behind on her work station. In the absence of supporting evidence,

therefore, Respondent' s suggested inference is rejected.

6 3 . Before the Board of Nursing, in the response opposing Petitioner's

Mo tion for Waiver filed December 3, 2019 , Attorney L eikam represented that

the inference that Ms. Hackley had intentionally falsified the July 23, 2019, entry w ould be supported by evidence showing that in more than 30 other

instances at CLG, Ms. Hackley had falsely documented performing work

when she had not . (Resp. Ex. 4 , ¶ 16). No such evidence was offered at the

9 supported by Neither Respondent's inference nor the alternative inference suggested here is

evidence sufficient for a finding of fact. The point here is that Respondent's suggested

inference is not the only possible or reasonable explanation for the false entry . I n the absence

of supporting evid ence in the record , the inference offer ed by Respondent is rejected.

hearing. Instead, according to Ms. Teague , Attorney Leikam's suspicion that

Ms. Hackley intentionally sabotaged CLG's internal file for Responde nt's case

was the only time in which there was a suspicion of that kind during her

tenure at CLG. S he confirmed that Attorney Leikam first express ed her

suspicion that the File Notes entry was intentionally falsified when she discover ed well after Ms. Hackley was fired that no Election of Rights was

filed . That is consistent with Attorney Leikam's testimony: the fact that the

entry was false was the basis for inferring that it was intentionally falsified.

She admitted she ha s no proof that Ms. Hackley intentionally falsified or

sabotaged CLG's internal records for Respondent's case.

6 4 . As a final argument to bolster the missing evidence of nefarious

intent, Responden t, through counsel, asserted that a n inference of intentional

falsification is supported by other evidence from Ms. Hackley's prior job at

the Department of Health. H owever, to make the desired argument,

Respondent mischaracterized the ev idence . A fair review of the evidence

undermines Respondent's argument.

6 5 . Respondent 's argument is based on an excerpt of Ms. Hackley's

personnel file from the Department of H ealth in evidence (subject to the

hearsay caveat given at the outset of the hea ring). The excerpt includes

personnel forms indicating that Ms. Hackley was dismissed on J uly 29, 2016,

from a "regulatory specialist II" career service position.

6 6 . Respondent's PRO asserts that the personnel file excerpt shows that

"Ms. Hackley had bee n previously fired from her employment with the

Department for what appears to be falsification of internal documents;

specifically timesheets[.]" (Resp. PRO ¶ 49 ). Respondent's PRO refers to

document ation within the personnel file claimed to supp ort "the contention

that Ms. Hackley was falsifying her timesheets." (Resp. PRO ¶ 51).

6 7 . Contrary to these characterizations , the personnel file excerpt contains

no evidence establishing the reason why Ms. Hackley was dismissed from

employment as of J uly 29, 2016 . The documents referred to in Respondent's

PRO were what appear s to be a single written reprimand memorandum,

dated July 14, 200 8 , plus a few pages containing handwritten notes that

appear to relate to timesheets in August 2008 . T he memorandum indicates

that Ms. Hackley was issued a written reprimand on July 14, 2008, for two

reasons: attendance, including excessive tardiness; and "errors on your

timesheet." (Resp. Ex. 15, Bates page 424). The written reprimand does not

state that Ms. Hackley intentionall y falsified timesheets; it states that as of

July 14, 2008, she was making errors on her timesheets. The last few pages

of the personnel file excerpt cannot be characterized at all without a witness

to explain what the handwritten notes represent. All that can be gleaned is

that i nformation was written down by someone apparently in reference to

Ms. Hackley's timesheets during one week in August 2008. Whatever this

information represents, it apparently did not result in any formal action such

as a written re primand, which presumably would have been included in the

exhibit. Without a witness to explain these documents, they a re plainly

hearsay with no predicate to support a hearsay exception, and as such,

cannot be the sole basis for a finding of fact . 10

6 8 . I m portantly, Respondent's PRO fails to point out the eight - year gap in

time between the timesheet errors for which Ms. Hackley was apparently

reprimand ed in July 2008, and her dismissal for unstated reasons in July

2016. The only fair inference is that any a ttendance and timesheet error

problems Ms. Hackley had in 2008 were considered minor and were

corrected . Presumably falsification of timesheets , had that occurred in 2008,

would have been met with se rious disciplinary action such that Ms. Hackley

would not have rebound ed and continue d with no adverse personnel records

for an eight - year employment span between 2008 and 2016.

10 T he handwritten notes appear to only indicate that Ms. Hackley may have made more

erro rs on her timesheets in August 2008. In an attempt to suggest something worse than

mere errors, Respondent's PRO contains a glaring misqu ote , asserting that one note stated

"8 - 11 - 08 Now the week 8 - 1/8 - 7 has codes but 0 hours! This was faked again today 8 - 11."

(Resp. PRO at 14, ¶ 51) (emphasis added) . Th e quoted note actually ends as follows : "This

was faxed again today 8 - 11." (Resp. Ex. 15, Bates page 00427) (emphasis added) .

69. In sum, Respondent mischaracterized a minor disciplinary action in

2008 , and compounded that misfire by i gnor ing the huge time gap between

the action and Ms. Hackley's dismissal, to advance an unsupportable claim

that the timesheet issue in 2008 was someho w the reason for dismissa l in

2016 . That effort failed. Ms. Hackley's Department of Health personnel file

adds nothing to Responden t's attempt to infer nefarious intent or bolster the

claim that Ms. Hackley intentionally falsified CLG's internal records .

70. Regardless of the nature, timing, or intent of Ms. Hackley's File Notes

entry, the evidence clearly establishes that there was a mple time and

opportunity, with the exercise of even a modicum of due diligence, for

Attorney Leikem to have discovered before the expiration of the filing period

that the Election of Rights had not been filed. The circumstances did not

prevent her from ti mely filing the Election of Rights.

C ONCLUSIONS OF L AW

7 1 . DOAH has jurisdiction over the parties and subject matter of this

proceeding, pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2019) . 11

7 2 . Petitioner's two - count Complaint seeks to ta ke disciplinary action

against Respondent 's license , based on facts alleged and violations charged

therein . Among the range of potential penalties sought are license revocation

and suspension. Pursuant to section 120. 60(5), Florida Statutes, "N o

revocation , suspension, annulment, or withdrawal of any license is lawful

unless, prior to the entry of a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords

reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate

opportunity to request a proceeding pursuant to ss. 120.569 and 120.57. "

11 Citations herein to Florida Statutes a re to the 2019 versions .

7 3 . The Complaint was properly served on Respondent's counsel of record

by certified m ail, received July 19, 2019. The Complaint included a Notice of

Rights providing Respondent with an adequate opportunity to request an

administrative hearing pursuant to sections 120.569 and 120.57.

7 4 . The Notice of Rights complied with the notice require ments in the

statutes and in Florida Administrative Code Rule 28 - 106.111 (specifying the

requirements for a "point of entry" to administrative proceedings after notice

of an agency's intended action). Respondent does not contend otherwise.

7 5 . Pursuant to rule 28 - 10 6.111(2), "persons seeking a hearing on an

agency decision which does or may determine their substantial interests shall

file a petition for hearing with the agency within 21 days of receipt of written

notice of the decision."

7 6 . Since 1998, s e ction 120.569( 2)(c) , as amended by chapter 98 - 200,

section 4, Laws of Florida, has provided:

A petition shall be dismissed if … it has been

untimely filed. … This paragraph does not eliminate the availability of equitable tolling as a

defense to the untim ely filing of a petition.

Accord r ule 28 - 106.111(4) ( "any person who received written notice of an

agency decision and fails to file a written request for a hearing within 21 days

waives the right to request a hearing on such matters. This provision does

not eliminate the availability of equitable tolling as a defense." ).

7 7 . Respondent has invoked the defense of equitable tolling to excuse the

untimely filing of his Election of Rights seeking a disputed - fact

administrative hearing on the Complaint. Respon dent acknowledges th at he

has the burden of proof , by a preponderance of the evidence, with regard to

the claimed defense. See Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005) ;

§ 120.57(1) (j), Fla. Stat.

7 8 . The doctrine of equitable tolling has been applied in Florida

administrative proceedings under certain circumstances to permit the late

filing of a request for an administrative hearing that otherwise would be

barred. Machules v. Dep't of Admin. , 523 So. 2d 1132, 1134 (Fla. 1988) .

7 9 . Equitable tolling applies to excuse an untimely filing " when the

plaintiff has been misled or lulled into inaction, has in some extraordinary

way been prevented from asserting his rights, or has timely asserted his

rights mistakenly in the wrong forum." Machules , 523 So. 2d at 113 4 .

80 . The doctrine is applied sparingly. Whe n the party asserting equitable

tolling has been represented by counsel, the party is generally bound by the

actions and inaction of his lawyer. Unfortunately, that includes being bound

by mistakes made by the lawyer and/or the lawyer's staff. "Garden variety

negligence" or "excusable neglect" by the lawyer and/ or the lawyer's staff is

not considered an extraordinary circumstance warranting equitable tolling.

See, e.g., Aleong v. Dep't of Bus. & Prof'l Re g. , 963 So. 2d 799, 801 (Fla. 4th

DCA 2007) ( agreeing with " [ t ] hree of Florida's district courts [which] have

held that the untimely filing of a request for hearing by counsel is not an

'extraordinary' circumstance which warrants the application of the doc trine of equitable tolling."); Williams v. Albertson's Inc., 879 So. 2d 657 (Fla. 5th

DCA 2004); Cann v. Dep't of Child. & Fam. Servs., 813 So. 2d 237 (Fla. 2d

DCA 2002); E nvtl. Resource Assoc. v. Dep't of Gen. Servs. , 624 So. 2d 330, 331

(Fla. 1st DCA 199 3) ( "There is nothing extraordinary in the failure to timely

file in this case. Quite to the contrary, the problem in this case is the too ordinary occurrence of a party's attorney failing to meet a filing deadline." ) .

8 1 . Before the 1998 amendment to sect ion 120. 5 69(2)(c) , there w ere a few

cases that accepted a showing of excusable neglect as a defense to excuse untimely requests for an administrative hearing. However, that defense was

eliminated by the 1998 amendment , which pointedly retained only equitab le

tolling as a viable defense to an untimely administrative hearing request .

82 . Rothblatt v. Department of Health and Rehabilitative Services , 520 So.

2d 644 (Fla. 4th DCA 1988) , is one of a few pre - 1998 ca ses in which excusable

neglect was accepted as a defense to excuse an untimely administrative

hearing request. The facts are strikingly similar to those found here. In

Rothblatt , an administrative complaint was served by certified mail on

appellant , alleging violations of the Florida Drug and Cosmetic A ct and

seeking to impose a $10,000 fine as discipline. Appellant was notified of the

right to request a formal administrative hearing, which had to be received by

the Department of Health and Rehabilitative Services (HRS) within 30 days

after receipt of th e complaint. The deadline was May 13, 1987, but the

attorney for appellant did not send the request until May 18, 1987 , by

express mail, received by HRS on May 1 9 , 1987. HRS proceeded to issue its

final order, denying the request for hearing as untimely fi led.

8 3 . The attorney filed a motion to set aside the final order, with a

supporting affidavit. T he attorney 's affidavit stated that she gave the request

for a formal hearing to the firm's receptionist on May 11, 1987, with

instructions to send it by Feder al Express the next day. The attorney did not

know th at, instead of sending the request when instructed, th e receptionist

did not send it until six days later. The attorney did not learn of this until she

received a copy of the final order on June 10, 1987 . The affidavit added that

the receptionist was fired for ineptitude on June 1, 1987 (b efore the attorney

learned of this particular error) . The Fourth District was persuaded on

appeal that the motion to set aside the final order should be granted, because

"the facts reflect excusable neglect." Rothblatt , 520 So. 2d at 645.

8 4 . T he dimensions of "excusable neglect" are well fleshed out in Florida

case law, because it is a standard for setting aside defaults and reopening

judgments under Florida Rules of Civ il Procedure 1.500 and 1.540. A n oft -

quoted description of excusable neglect circumstances i s as follows :

[W] here inaction results from clerical or secretarial

errors , reasonable misunderstanding, a system

gone awry or any other of the foibles to which hum an nature is heir[.]

So mero v. Hendry Gen . Hosp . , 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985).

The circumstances found here may me e t the standard for excusable neglect,

but they do not reach the higher bar required for equitable tolling.

8 5 . The Second Dist rict Court of Appeal's decision in Cann , 813 So. 2d

237, put to rest any notion that excusable neglect could still excuse a n

untimely request for an administrative hearing following the 1998 statutory

amendment. In that case, the Canns were seeking to rene w their license as a

medical foster home for children with serious medical conditions. The

Department of Children and Family Services gave notice of its intent to deny

license renewal. The Canns retained counsel to request an administrative

hearing to cont est the denial. Counsel properly mark ed November 29, 2000,

on his calendar as the due date , then prepared and mailed the request on

November 28, 2000. The problem was that he sent the request by regular

mail , and rather than arriving in one day, it arrived two days later, on

November 30, 2000. The Department issued a final order denying license

renewal and rejecting the untimely hearing request.

8 6 . On appeal, the Canns argued that the late request should be accepted

consistent with Rothblatt , because the o ne - day delay was the result of

excusable neglect . However, the court pointed out that Rothblatt predated the

1998 amendment to section 120.569(2)(c) : "We conclude that this amendment

overruled … Rothblatt to the extent [that case] held that an untimely

ad ministrative appeal could proceed if the delay was the result of excusable

neglect." Cann , 813 So. 2d at 239. Since the facts did not demonstrate

"extraordinary circumstances," equitable tolling was not applicable, and

dismissal of the untimely hearing req uest was required.

8 7 . While the court in Cann was sympathetic to the policy argument

underlying the excusable neglect standard, "the legislature or the relevant

agencies are decision makers to which these policy arguments must be

directed. In the context of administrative law, the courts cannot override a

filing rule that does not violate due process." Cann , 813 So. 2d at 240. In his

concurring opinion, Judge Blue urged the L egislature to consider making the

doctrine of excusable neglect available to provi de equitable relief " for those

citizens of the state who are required to have their personal and property

rights decided in the administrative arena." Cann , 813 So. 2d at 240.

8 8 . In the 1 8 years since Judge Blue urged a change, t he L egislature has

not act ed on the invitation to change the standards for untimely hearing

requests. The general rule , as held in Cann , remains that dismissal of an

untimely request for hearing is required . T he exception , to be sparing ly

applied, is limited to the three types of c ircumstances recognized in Machules

as appropriate for the defense of equitable tolling.

8 9 . This holding h as been uniformly followed in administrative

proceedings of all types . In disciplinary actions against professional licenses,

untimely hearing reques ts seeking to contest a dministrative complaints are

not accepted where the facts demonstrate only excusable neglect, and not

extraordinary circumstances warranting equitable tolling. See Aleong , 963

So. 2d 799 (veterinarian waived his right to contest comp laint imposing

disciplinary sanctions , where untimely request for an administrative hearing

was due to his attorney's mistake in not properly calendaring the due date);

Patz v. Dep't of Health , Fla Bd. of Med. , 864 So. 2d 79 , 80 - 81 (Fla. 3d DCA

2003) (reje cting doctor's argument th at entry of a " default " (i.e., a final order)

against him was improper under Florida Rule of Civil Procedure 1.500 , where

the delay was not prot r acted, the untimely Election of Rights was filed before

a hearing on the Department's motion for " default ," and the Department was

not prejudiced by the delay ; holding that this matter "is not controlled by the

rules of civil procedure " but instead, by section 120.569 and rule 28 - 106. 111 ) .

9 0 . Both parties recognized in their PROs that rec ently , the undersigned

found , under unique and extraordinary circumstances, that equitable tolling

applied to excuse a late - filed hearing request. Dep't of Health v. LaRosa , Case

No. 19 - 1805PL ( Order Determining Timeliness, July 5, 2019). It is true, as

Re spondent notes, that in so ruling, the undersigned determined that there is

no blanket rule established by the Florida cases that a party's own attorney's

actions can never be considered "extraordinary circumstances." But the

chasm is vast between th is cas e and th e rare case in which a party's own

attorney's actions are extraordinary circumstances for equitable tolling .

9 1 . As LaRosa demonstrated, in compelling circumstances involving an

at torney's egregious misconduct, tantamount to abandonment of his clie nt ,

might the rare case be presented of "extraordinary circumstances" sufficient

to warrant equitable tolling to excuse an attorney's failure to timely file a

request for hearing. LaRosa presented compelling extraordinary

circumstances in which a party's former attorney an d assistant engaged in

concerted, active , egregious misco nduct, marked by misrepresentations and

deception, to such a degree that the attorney was found to have abandoned

the client . In that context, where the former attorney was acting f or h is own

self - interest and not as agent to represent his client's interests , the attorney's

inaction in never appearing on the client's behalf or filing the Election of Rights he was hired to file until well after the deadline , could not be imputed

to th e client as attorney actions and inaction normally are.

12

12 The LaRosa Order cataloged a number of federal cases supporting the rare application of

equitable tolling in extraordinary circumstances of egregious attorney misconduct and

abandonment. The circumstances in these cases bear no resemblance to the facts found above, any more than the LaRosa case does. See, e.g., Holland v. Florida, 560 U.S. 631, 650 -

654 (2010) (normally a petitioner bears the risk of att orney error, so garden variety

negligence or excusable neglect will never justify equitable tolling, but allegations of

egregious attorney misconduct tantamount to abandonment of client could be extraordinary

circumstances warranting equitable tolling, ent itling petitioner to a hearing on equitable

tolling); Maples v. Thomas , 565 U.S. 266, 282 - 83 (2012) (reaffirming the general rule that

under principles of agency law, a petitioner bears the risk of negligent conduct on the part of

his attorney, and is ordi narily bound by counsel's failure to meet a filing deadline, but

attorney abandonment of client severs the agency relationship; attorney abandonment

presented extraordinary circumstances beyond the petitioner's control, justifying application of equitable tolling) ; Cooper v. Fisher , 676 Fed. Appx. 355, 357 (5th Cir. 2017) ( petitioner wa s

entitled to a hearing on his verified equitable tolling claim that his attorney falsely implied

that a filing was timely made and actively misled the petitioner) . See also Cadet v. Fla. Dep't

of Corr ., 853 F.3d 1216, 1234 - 35 (11th Cir. 2017) (rejecting equitable tolling where attorney's

negligence in missing a filing deadline did not equate to abandonment as there was no

rejection or desertion of attorney's responsibilities, nor did it equate to attorney misconduct);

Robinson v. State Atty. for Fla. , 808 Fed. Appx. 894 (11th Cir. 2020) (attorney arguably was

negligent on several occasions, but his negligence did not rise to the level of abandonment or

misconduct necessary to show extraordinary circumstances for equitable tolling).

9 2 . The circumstances of egregious attorney misconduct and abandonment

in LaRosa were found by the undersigned t o be unique, rare, and

extraordinary. Here, t he same fact - finder view s the facts proven to be in

stark contrast to the extraordinary circumstances presented in LaRo s a .

The facts found here are not unique, not rare, not extraordinary , and not

grounds for the sparing application of equitable tolling . Attorney Leikam was

not shown to have enga ged in misconduct, let alone egregious misconduct.

Instead, she was negligent in not adequately supervi sing an assistant whose

actions and inaction were shown to be negligent and in keeping with her

error - riddled job performance that ultimately caused her termination.

Attorney Leikam mistakenly relied on an internal note , which, however

characterized, was simply not proof that an external filing with Petitioner

had been accomplished. She was negligent in not determining why she did not receive the email cop y required by CLG 's standard practice s . And she was

negligent in not seeking simple confirmation from Petitioner as to whether the filing was, in fact, made after the assistant was fired, while there was still plenty of time left in the 21 - day window to ti mely file a hearing request.

9 3 . Perhaps conceding that these circumstances do not rise to the level of

"extraordinary," Respondent's PRO, in the conclusions of law, rather than in

the findings of fact, recasts the hearing testimony to propose as a conclu sion

of law that Attorney Leikam was lying to Respondent when she falsely told him that his Election of Rights had been filed on July 23, 2019. (Resp. PRO

¶ 96). The tone of that proposed conclusion stands in marked contrast to the

proposed findings of fa ct , which emphasiz e that Attorney L eikam reasonably

inferred from the F ile Notes entry by "TH" on July 23, 2019, that the Election

of Rights had, in fact, been submitted to Petitioner . T here was no evidence

presented that would support a finding that Attor ney Leikam lied, i.e.,

knowingly misrepresented the facts to Respondent , and no such finding has

been made.

9 4 . As found above, Respondent failed to prove that Ms. Hackley's actions

and inaction were anything more than o rdinary negligen ce, a continuation o f

the performance inadequacies for which she was fired . Respondent did not

prove t he theory that she intentionally falsified or sabotaged CLG's records .

9 5 . Although Respondent's PRO primarily relies on the second category of

equitable tolling cases recogn ized by Machules — that extraordinary

circumstances prevented the timely filing — Respondent's PRO also offers an

argument under the first category of equitable tolling cases , albeit with a

twist to how that category has been applied in cases. Respondent's PRO

suggests that the false entry by "TH" in File Notes dated July 23, 2019,

misled or lulled both Respondent and Attorney Leikam into inaction so as to

justify application of equitable tolling .

9 6 . First, as for Respondent, for the reasons previously stated, this is not a

case in which Respondent's individual actions can be separated from that of

his attorney . There is no question that Respondent retained and relied on

Attorney Leikam to file whatever was nec essary to protect his interests. He

had ceded to he r the responsibility for filing the Election of Rights, and was

not about to act on his own to do so.

9 7 . As for Attorney Leikam, the undersigned conclude s that if she were

subjectively misled by the July 2 3 , 2019, entry, she should not have been; and

in a ny event, she had no basis for being "lulled" into inaction . It was her

responsibility to ensure timely filing of the Election of Rights. While perhaps

she could delegate the mechanical task of emailing the Election of Rights

form to Petition er for filing, she could not delegate the responsibility for

verifying that task was accomplished. An internal File Note s entry was not

verification of an external email transmittal. An internal scanned, saved

document was not verification that that document was attache d to an

external email transmittal. The CLG standard practice was set up to provide Attorney Leikam with that verification, by requiring that she be copied on

the external email transmittal. She was not, and knew so.

9 8 . Attorney Leikam had control of the circumstances, the means to easily

verify the timely filing of the Election of Rights, and plenty of remaining time

to rectify the error that she would have discovered if she had only asked , as

due diligence required . Under these circumstances, equitable tolling is not

warranted. See, e.g., Florist Mut. Ins. Co. v. Dep't of Fin. Servs., Div. of

Workers' Comp. , Case No. 13 - 2940 (Fla. DOAH Sept. 30, 2013) ( declining to

apply equitable tolling to excuse a late filed petition for administrative

hearing due to late mailing by counsel ; even though the mail took unusually

long to be delivered across town because of a circuitous route, that was not an

"extraordinary" circumstance; moreover, the mail delay "in no way prevented

Peti tioner from asserting his rights , " as counsel could have easily called the

Department on the deadline day , found out the petition had not come in the

mail , and delivered a replacement petition across town for timely filing).

9 9 . Given the absence of circumstances found to justify applicati on of

equitable tolling, it is unnecessary to dwell on a consideration that would

normally factor into the balance: whether Petitioner demonstrated that it

would be prejudiced by accepting the untimely request for an administrative

hearing. A determination of no prejudice alone could not justify application of

equitable toll ing when the circumstances themselves do not warrant it.

100 . Petitioner offer ed no evidence on the issue of prejudice . However, as

well - stated by Administrative Law Judge F. Scott Boyd in Florist Mutual , in

explaining that the circumstances did not warrant equitable tolling:

While this conclusion may seem contrary to the

important goal of ameliorating harsh results where

there is no prejudice to the other party, there is an

equally impor tant competing value: the filing

deadlines of procedural rules must be routinely enforced if they are not to become blurred and

unreliable.

F lorist Mutual , Case No. 13 - 2940, FO at 13, ¶ 29. Similarly, where, as here,

the circumstances were not shown to be extraordinary , nor wer e they shown

to have prevented Respondent's counsel from timely filing the Election of

Rights had she acted with due diligence, the goal of routinely enforcing the

filing deadline in section 120.569(3)(c) and rule 28 - 106.111 becomes

paramount, without counterweight.

101 . Stated somewhat similarly in Lawrence v. United States , 549 U.S.

327 , 336 (2007), the Supreme Court explain ed why it rejected Lawrence's

claim that his attorney's mistake in miscalculating the limitations period

enti tle d him to equitable tolling : "If credited, this argument would essentially

equitably toll limitations periods for every person whose attorney missed a deadline." Instead, application of the equitable tolling defense must remain

sparing, so the exception does not swallow the rule and the legislative intent

to require more than excusable neglect is honored.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Health, Board of Nursing issue a final

order dismissing Respondent's Election of Rights request for a disputed - fact

administrative hearing as untimely and not excused under the equitable

tolling doctrine.

D ONE A ND E NTERED this 20th day of July , 2020 , in Tallahassee, Leon

County, Florid a.

E LIZABETH W. M CARTHUR

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

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of July , 2020 .

C OPIES F URNISHED :

Dirlie Anna McDonald, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Sara A. Bazzigaluppi, Esquire

Chapman Law Group

6 841 Energy Court

Sarasota, Florida 34240

(eServed)

Philip Aaron Crawford, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Dep artment of Health

Bin C - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3252

(eServed)

Kathryn Whitson, MSN, RN

Board of Nursing

Department of Health

Bin D - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3252

Louise St. Laurent, Gen eral Counse l

Department of Health

Bin C65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.