85-001683 Patricia Ann Clark vs. Department Of Corrections Status: Closed Recommended Order on Thursday, September 26, 1985.

Summary: Division of Administrative Hearings lacks jurisdiction to hear Florida Commission on Human Relations` Petition for Relief where petition was untimely filed with, and dismissed as untimely by the Commission on Human Relations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA ANN CLARK, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1683

)

DEPARTMENT OF CORRECTIONS, )

SUMTER CORRECTIONAL INSTITUTE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

By MOTION TO DISMISS dated July 24, 1985, Respondent, by

and through its attorney, requests the Petition for Relief filed

by Petitioner be dismissed. As grounds therefor it is alleged

the petition was not timely filed. Based upon a review of the

file in this case, the following is submitted.

FINDINGS OF FACT

1. A NOTICE OF DETERMINATION: No Cause was issued by the

Florida Commission on Human Relations and mailed to the parties

by certified mail on January 30, 1985. Therein Petitioner was

advised that the determination would become final unless: (1) a

Request for Redetermination was filed within 20 days of the date

of mailing of this notice or (2) Petitioner filed a Petition for

Relief within 30 days of the mailing of this notice. Petitioner

was further advised that failure of complainant to timely file

either a request or petition will result in dismissal of the

complaint.

2. Petition for Relief was mailed by Petitioner to the

Department of Corrections on March 12, 1982, and the Department

of Corrections forwarded the Petition for Relief to the

Commission on Human Relations where it was date-stamped as

received March 13, 1985.

3. By Order to Show Cause dated April 29, 1985, the

Commission on Human Relations directed Petitioner to show cause

within 10 days why the petition should not be dismissed as

untimely filed. In response thereto Petitioner submitted a

letter dated May 9, 1985, which was received by the Commission

on Human Relations on May 13, 1985, enclosing statements

verifying a son's illness February 19-22, her mother's

hospitalization February 21-28, and that Petitioner had notified

the school of days her daughter, Davita Clark, was home sick.

No evidence was submitted showing Petitioner took sick leave

during any of these periods or did not report for work each of

these days.

4. To be timely the Petition for Relief must be filed with

the Commission within 30 days of the date determination of no

cause was made. In this case the petition should have been

received by the Commission on or before March 1, 1985. Section

22T-9.01, Florida Administrative Code. If three days mailing

time is allowed for receipt of the notice by Petitioner, the

petition was due on or before March 4, 1985. The petition was

received by the Commission March 13, 1985, some 12 or 9 days

after the 30-day period during which Petitioner was allowed to

file a Petition for Relief.

5. None of the reasons given by Petitioner for the delay

in filing the Petition for Relief would justify granting an

extension of time for filing such petition--if such extension

may legally be granted.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

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

these proceedings.

7. Rule 22T-9.08, Florida Administrative Code, provides in

pertinent part:

A complainant may file a Petition for Relief

from an Unlawful Employment Practice within

30 days of service of . . . a Notice of

Determination of No Reasonable Cause.

8. Rule 22T-9.06, Florida Administrative Code, provides

the Executive Director, on behalf of the Commission, may dismiss

a complaint which has not been timely filed with the Commission.

9. The courts and most state agencies hold that failure to

timely file a petition for hearing where notice of such a

requirement is given is jurisdictional. Department of

Environmental Regulation in issuing or denying various permits

requires the applicant to publish a notice of the Department's

intended action on its application and Rule 17-103.150, Florida

Administrative Code provides in pertinent part:

A person whose substantial interests are

affected by the Department's proposed

permitting decision may petition for an

administrative proceeding (hearing) in

accordance with Section 120.57 F.S. The

petition must . . . be filed (received) in

the office of General Counsel . . . within

fourteen (14) days of publication of this

notice. Failure to file a request for

hearing within this time period shall

constitute a waiver of any right such person

may have to request an administrative

determination (hearing) under Section 120.57

F.S.

10. The Department of Environmental Regulation considers

failure to timely file for such hearing to be jurisdictional.

11. The Department of Health and Rehabilitative Services

also holds the time in which aggrieved persons whose

substantial. interests are affected by the Department of Health

and Rehabilitative Services' action may appeal such

determination is jurisdictional.

12. Rule 10-5.10(8), Florida Administrative Code provides

in pertinent part:

. . . persons whose interests are

substantially affected by a department

decision to issue or deny a Certificate of

Need shall have the right to appeal and to

demand a fair hearing under the provisions

of the Administrative Procedure Act (Chapter

120, Florida Statutes). Any such appeal

must be in writing and be received by the

department within 30 days of the date the

applicant, substantially affected persons

and HSA received written notice of the

department's action. Publication of Notice

of the issuance or denial of a Certificate

of Need shall constitute receipt of written

notice.

13. Similarly, the courts uniformly hold that the time in

which a party has to file a motion in a trial court for

rehearing is jurisdictional. Failure to so file within the ten-

day period forever bars the court from reconsidering its initial

holding albeit egregiously erroneous.

14. The rationale for holding the time in which to appeal

or contest an agency's proposed action is jurisdictional is that

it is in the interest of all parties to require these issues

proceed forthwith to a finite conclusion. Further, if the

period beyond which an aggrieved party can protest proposed

agency action is not definite and fixed, no agency decision can

be final and not subject to reversal at a much later hearing.

To cure this uncertainty and render agency action immune to

attack after a reasonable period where notice has been given to

affected parties, these times, during which agency action can be

protested at a Section 120.57 F.S. proceeding, should be

jurisdictional. At the expiration of the allowed period for

appeal or request for Section 120.57 hearing, neither the agency

nor the Division of Administrative Hearings should have

jurisdiction to consider the petition. This procedure is

followed by Department of Environmental Regulation and

Department of Health and Rehabilitative Services, and no valid

reason exists not to follow this rationale in Commission on

Human Relations cases.

From the foregoing it is concluded that the Petition for

Relief from an unlawful employment practice filed by Patricia

Ann ClarX was not filed within the time prescribed and neither

this tribunal nor the Commission on Human Relations has

jurisdiction to consider this petition. It is

RECOMMENDED that the Petition for Relief filed by Patricia

Ann Clark against the Florida Department of Corrections be

dismissed for lack of jurisdiction.

ENTERED this 30th day of July, 1985, at Tallahassee,

Florida.

___________________________________

K. N. AYER

Hearing Officer

Division of Administrative Hearings

Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

904/488-9675

FILED with the Clerk of the

Division of Administrative Hearings

this 30th day of July, 1985.

COPIES FURNISHED:

Ernest L. Reddick, Esq.

Assistant General Counsel

Department of Corrections

1311 Winewood Boulevard

Tallahassee, Florida 32301

Patricia Ann Clark

647 Tanglewood Drive

Brookeville, Florida 33512

Aurelio Durana, Esq.

General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240 i

Tallahassee, Florida 323036

John A. Griffin, Executive Director

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303

Betsy Howard, Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303

================================================================

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AGENCY FINAL ORDER

================================================================

=

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

PATRICIA ANN CLARK,

EEOC Case No. 025840521

Petitioner, FCHR Case No. 84-1409

v. DOAH Case No. 85-1683

FCHR Order No. 85-0033

DEPARTMENT OF CORRECTIONS,

SUMTER CORRECTIONAL INSTITUTE,

Respondent.

__________________________________/

ORDER DISMISSING PET I TION FOR

RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

I. Panel of Commission ers

The following three Commissioners participated in the

disposition of this matter:

Commissioner Robert R. Joyce, Panel Chairperson; Commissioner

Learna G. Ramsey; and Commissioner Thomas H. Poole, Sr.

II. Appearances

No appearance was entered at the Commission deliberation by

or on behalf of Petitioner or Respondent.

III. Preliminary Matters

Patricia Ann Clark, Petitioner herein, filed a complaint of

discrimination with this Commission pursuant to the Human Rights

Act of 1977, as amended, Section 760.01-760.10, Florida Statutes

(1983), 1 alleging that Department of Corrections, Sumter

Correctional Institute, Respondent herein, unlawfully

discriminated against Petitioner on the bases of sex (female)

and race (black).

In accordance with the Commission's rules, the allegations

of discrimination set forth in the complaint of discrimination

were investigated and a report of said investigation was

submitted to the Executive Director. On January 30, 1985, the

Executive Director issued his Determination finding no

reasonable cause to believe that an unlawful employment practice

occurred.

On March 12, 1985, the Petitioner mailed a Petition for

Relief from an Unlawful Employment Practice to the Respondent.

The petition was forwarded to the Commission on March 13, 1985.

On April 29, 1985, the Commission issued an Order to Show Cause,

directing Petitioner to show cause within 15 days why her

petition should not be dismissed as untimely. Petitioner filed

a response to the Order to Show Cause on May 13, 1985.

Thereafter, the petition was referred to the Division of

Administrative Hearings ( DOAH) for the conduct of a formal

proceeding pursuant to Rule 22T-8.16(1). On July 24, 1985,

Respondent entered a Notion to Dismiss requesting that the

petition be dismissed as untimely. The DOAH Hearing Officer, K.

N. Ayers, entered a Recommended Order in this matter on July 30,

1985, recommending dismissal.

Neither party filed exceptions to the Recommended Order.

Pursuant to notice, public deliberations were held on

September 13, 1985, in Tallahassee, Florida, before the

aforementioned Panel of Commissioners, at which deliberations

the Panel determined the action to be taken upon the petition.

IV. Findings of Fact

Having considered the Hearing Officer's findings of fact,

and being particularly mindful of the record in this proceeding,

the Panel finds that the Hearing Officer's findings of fact are

supported by competent substantial evidence and will not be

disturbed. The Hearing Officer's findings of fact are hereby

adopted.

V. Conclusions of Law

The Hearing Officer found that the Petitioner did not file

a Petition for Relief from an Unlawful Employment Practice

within the 30 day filing period as provided by Commission rules.

The Hearing Officer concluded that the petition should be

dismissed with prejudice, reasoning that satisfaction of the

filing period requirement is prerequisite to the exercise of

subject matter jurisdiction of this case by DOAH and the

Commission. The Panel rejects the Hearing Officer's conclusion

that the 30 day filing period established in Rule 22T-9.08(1) is

a jurisdictional requirement.

An agency's interpretation of its own rules and statutory

provisions are entitled to great weight. Florida Commission on

Human Relations v. Human Development Center , 413 So. 2d 1251

(Fla. 1st DCA 1982). The Commission has consistently held that

neither the 180 day statutory filing period for complaints of

discrimination 2 nor the 20 day rule filing period for requests

for redeterminations 3 is jurisdictional. Similarly, the

Commission has interpreted the 30 day rule filing period for

Petitions for Relief as a limitation period subject to equitable

tolling, estoppel and waiver, rather than as a jurisdictional

requirement. Owens v. Blue Cross and Blue Shield of Florida,

Inc. , FCHR Order No. 84-019 ( FCHR 9/26/84); Dittrich v.

Wackenhut Services, Inc. , FCHR Order No. 84-020 ( FCHR 9/26/84).

Not only is the Commission's interpretation consistent with

other limitation periods contained in the Human Rights Act of

1977, and rules, this interpretation is consistent with federal

practice in Title VII cases. See , e.g. , Baldwin County Welco m e

Center v Brown 104 S.Ct. 1723 (1984).

While the 30 day filing requirement of Rule 9.08 is subject

to equitable principles,. Petitioner in this case has failed to

show that such principles should be applied. See generally ,

Kourtis v. Eastern Airlines , 2 T:ALR at 1599-A. Cf. Glass v.

City of Mascotte , 3 FALR at 239-A; Park v. Southern Bell

Telephone and Telegraph Company , 4 FALR at 1796-A.

The Hearing Officer's conclusions of law, as modified in

this section, are a correct application of law. The Hearing

Officer's conclusions of law, as modified above, are hereby

adopted.

VI. Dismissal

The Hearing Officer's recommendation is adopted and his

Recommended Order is incorporated herein by reference.

Accordingly, the Petition for Relief from an Unlawful

Employment Practice and the complaint of discrimination are

hereby DISMISSED with prejudice.

Petitioner is advised of her right to petition the Florida

District Court of Appeal for review of this Order within 30 days

of the date that this Order is filed with the Clerk of the

Commission. Section 120.68, Fla. Stat. (1983); Fla. R. App. P.

9.110(b).

It is so ORDERED.

DATED this 26th day of September, 1985

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY __________________________________

Commissioner Robert R. Joyce,

Panel Chairperson;

Commissioner Learna G. Ramsey; and

Commissioner Thomas H. Poole, Sr.

FILED this 27th day of September, 1985, in Tallahassee,

Florida.

__________________________________

Betsy Howard,

Clerk of the Commission

ENDNOTES

1/ Unless otherwise indicated, all statutory references are to

Florida Statutes (1983), and all rule references are to Florida

Administrative Code.

2/ See , e.g. , Kourtis v. Eastern Airlines , 2 FALR 1599-A ( FCHR

10/31/80), affd., 409 So. 2d 139 ( Fla 4th DCA 1982); Glass v.

City of Mascotte , 3 FALR 238-A ( FCHR 10/31/80).

3/ See , e.g. , Kitchen v. Borden Smith/Douglas , FCHR Order No.

83-059 ( FCHR 1/16/84); Park v. Southern Bell Telephone and

Telegraph Company , 4 FALR 1795-A ( FCHR 6/29/82).

Copies Furnished:

Patricia Ann Clark, Petitioner ( C.M. #P085350960)

Ernest L. Reddick, Attorney for Respondent (C. M. #PC 961)

Suzanne M. Choppin, Legal Advisor for Commission Panel

Paulette H. Simms, Administrator of Employment Investigations

K. N. Ayers, DOAH Hearing Officer