93-006414
Guy Mccann vs.
University Of Central Florida (Department Of Public Safety And Police)
Status: Closed
Recommended Order on Friday, April 29, 1994.
Recommended Order on Friday, April 29, 1994.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8GUY McCANN, )
11)
12Petitioner, )
14)
15vs. ) CASE NO. 93-6414
20)
21UNIVERSITY OF CENTRAL FLORIDA, )
26)
27Respondent. )
29_________________________________)
30RECOMMENDED ORDER OF DISMISSAL
34THIS CAUSE came on to be heard on the Motion to Dismiss filed by Respondent
49before the Division of Administrative Hearings by its duly designated Hearing
60Officer, Daniel M. Kilbride, on January 6, 1994 from Tallahassee, Florida via
72telephone conference call, the Petitioner being advised of the motion and having
84filed an response within the required time, pursuant to Rule 60Y-2.016(1),
95Florida Administrative Code. The arguments presented in the motion have been
106fully considered. The following appearances were entered:
113APPEARANCES
114For Petitioner: Guy K. McCann (pro se)
1211510 Mizell Avenue
124Winter Park, Florida 32789
128For Respondent: Scott A. Silzer, Esquire
134General Counsel
136University of Central Florida
140Post Office Box 16005
144Orlando, Florida 32816-0015
147STATEMENT OF THE ISSUES
151Whether the Division of Administrative Hearings retains jurisdiction to
160conduct a formal hearing under the provisions of Section 120.57(1), Florida
171Statutes, if the Charge of Discrimination has not been filed with the Florida
184Commission on Human Relations within 180 days of the occurrence of the alleged
197unlawful employment practice, pursuant to the provisions of Rule 60Y-5.001(a),
207Florida Administrative Code.
210PRELIMINARY STATEMENT
212On March 26, 1992, Petitioner completed a Charge of Discrimination form
223which was filed with the Commission on Human Relations on March 30, 1992. The
237Charge alleged that Respondent engaged in an unlawful employment practice, in
248violation of Chapter 760, Florida Statutes and federal law. An Amended Charge
260was filed on June 9, 1992. On February 10, 1993, the complaint of
273discrimination was dismissed as untimely. Following a motion for
282reconsideration, the Notice of Dismissal was rescinded. Following
290redetermination, the complaint was again dismissed as untimely on October 8,
3011993. Subsequently, Petitioner timely filed a Petition for Relief and requested
312a formal hearing under the provisions of Section 120.57(1), Florida Statutes.
323This matter was referred to the Division of Administrative Hearings for a formal
336hearing on November 3, 1993. Respondent was directed to file an answer with the
350Commission within 20 days of the date of service of the Petition. Respondent
363replied by filing a Motion to Dismiss and Answer with the Division on November
37722, 1993. Petitioner filed his response to the Motion to Dismiss on December 3,
3911993 and a hearing on the motion was set for January 6, 1994. By agreement of
407the parties, the hearing was conducted by telephone conference call. Subsequent
418to the hearing, Petitioner filed a Motion to Accept for Filling and
430Consideration Exhibit on Clarification of the Issue, dated February 3, 1994.
441Respondent objected to the motion. On consideration, the Motion of Petitioner
452is GRANTED and the attached Exhibit has been duly considered by the Hearing
465Officer. The hearing was transcribed and filed on January 18, 1994. The
477documents properly filed of record have been duly considered and the allegations
489contained in the Charge of Discrimination and Petition for Relief have been
501taken as true.
504Based upon all of the evidence, the following findings of fact are
516determined:
517FINDINGS OF FACT
5201. Petitioner is a white male, who was 58 years of age at the relevant
535time, and is a former associate professor in the School of Communications at the
549University of Central Florida.
5532. In 1988-89, Petitioner was an untenured professor, with tenure
563decisions pending the following year. Petitioner alleges that the director of
574his department began practicing a pattern of discriminatory conduct by placing
585false information in his evaluation file which ultimately affected his rating
596and with the intent to deny him tenure.
6043. On October 8, 1990, Petitioner discovered that the ratings for 1989-90
616had been changed by the director of the department. As a result of this action,
631Petitioner filed a grievance with the United Faculty of Florida (UFF).
642Petitioner did not file a charge of discrimination with the Florida Commission
654on Human Relations (FCHR) as a result of this event.
6644. On May 16, 1991, Petitioner acknowledged receipt of an evaluation by
676the Chair of the department which Petitioner alleges was inaccurate and
687incorrect. As a result of this action, Petitioner filed a grievance with the
700union and with the President's office on June 7, 1991. A Settlement of the
714grievance was signed on September 6, 1991. On January 8, 1992, Petitioner
726discovered that the settlement had not been implemented by the university.
7375. On July 19, 1991, Petitioner was denied tenure and offered a terminal
750contract, which indicated that it would not be renewed beyond the indicated
762date. On August 26, 1991, Petitioner accepted the contract.
7716. On March 30, 1992, Petitioner filed with the FCHR a Charge of
784Discrimination. Petitioner alleged that UCF committed age discrimination
792against him by filing improper evaluations of his teaching performance in 1990
804and again in 1991, and that as a result of that unlawful employment practice he
819was improperly denied tenure and placed on a terminal contract.
829CONCLUSIONS OF LAW
8327. The Division of Administrative Hearings has jurisdiction over the
842subject matter of this proceeding, and the parties thereto, pursuant to
853subsection 120.57(1), Florida Statutes.
8578. In order to be entitled to a formal administrative hearing, Florida law
870requires that a party's "substantial interest" be determined by an agency.
881Section 120.57, Florida Statutes (1987). Under this law, the Division of
892Administrative Hearings is charged with the responsibility to conduct the formal
903hearing. However, the jurisdiction of this tribunal is limited in this case.
915As cogently stated by the First District Court of Appeal in Department of
928Environmental Regulation vs. Falls Chase Special Taxing District, 424 So.2d 787
939(Fla. 1st DCA 1982), review denied 436 So.2d 98 (Fla. 1983):
950An agency has only such power as expressly
958or by necessary implication is granted by
965legislative enactment. An agency may not
971increase its own jurisdiction and, as a
978creature of statute, has no common law
985jurisdiction or inherent power such as
991might reside in, for example, a court of
999general jurisdiction. When acting outside
1004the scope of its delegated authority, an
1011agency acts illegally and is subject to the
1019jurisdiction of the courts when necessary to
1026prevent encroachment on the rights of
1032individuals.
10339. The Legislature has established a Statute of Limitations on the filing
1045of charges of discrimination which limits the jurisdiction of the FCHR and this
1058tribunal. The first issue that this tribunal must decide in this matter is
1071whether or not the original Charge of Discrimination was filed by the Petitioner
1084with the FCHR within 180 days of the alleged violation, as required by Section
1098760.10(10), Florida Statutes (1991) and Rule 60Y-5.001, Florida Administrative
1107Code.
110810. Whether the filing of the charge was timely is jurisdictional. The
1120courts have directed that in order to determine whether the complaint was timely
"1133[w]e must focus upon the time of the discriminatory act, not upon the time at
1148which the consequences of the act became most painful...." St Petersburg Motor
1160Club v. Cook, 567 So.2d 488 (Fla. 2d DCA 1990). Therefore, in accordance with
1174this opinion, the limitations period commenced to run no later then August 26,
11871991, the day that he accepted the Terminal Contract which was more that 180
1201days prior to the filing of the Charge on March 30, 1992. It can also be argued
1218that the Terminal Contract was not the defining discriminatory act but rather
1230the consequence of the last discriminatory act which was the completion of the
1243evaluation form by the Chair and received by Petitioner on May 16, 1991. Under
1257either scenario, the time had run by March 30, 1992.
126711. Petitioner further argues that the time for filing was tolled by the
1280occurrence of other events, such as his filing of a grievance with the UFF.
1294This is not the law. Because Petitioner chose to first pursue a remedy through
1308another administrative process does not suspend the requirement that the charge
1319of discrimination must be filed with the FCHR within 180 days of the alleged
1333violation. Kourtis v. Eastern Airlines, 409 So.2d 139 (1982). Accord: Farancy
1344v. St. Mary's Hospital, Inc., 585 So.2d 1151 (Fla. 4th DCA 1991).
1356RECOMMENDATION
1357Based on the foregoing findings of fact and conclusions of law, it is
1370RECOMMENDED that a Final Order be entered dismissing with prejudice the
1381Petition for Relief filed by Petitioner in FCHR Case No. 92-3504 and DOAH Case
1395No. 93-6414 for failure to timely file his original Charge of Discrimination.
1407DONE AND ENTERED this 29th day of April, 1994, in Tallahassee, Leon County,
1420Florida.
1421___________________________________
1422DANIEL M. KILBRIDE
1425Hearing Officer
1427Division of Administrative Hearings
1431The DeSoto Building
14341230 Apalachee Parkway
1437Tallahassee, Florida 32399-1550
1440(904)488-9675
1441Filed with the Clerk of the
1447Division of Administrative Hearings
1451this 29th day of April, 1994.
1457COPIES FURNISHED:
1459Scott Silzer, Esquire
1462University of Central Florida
1466P. O. Box 160015
1470Orlando, Florida 32816-0015
1473Mr. Guy McCann
14761510 Mizell Avenue
1479Winter Park, Florida 32789
1483Sharon Moultry, Clerk
1486Commission on Human Relations
1490325 John Knox Road, Suite 240
1496Building F
1498Tallahassee, Florida 32303-4149
1501Dana Baird
1503General Counsel
1505Commission on Human Relations
1509325 John Knox Road, Suite 240
1515Building F
1517Tallahassee, Florida 32303-4149
1520NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1526All parties have the right to submit written exceptions to this Recommended
1538Order. All agencies allow each party at least 10 days in which to submit
1552written exceptions. Some agencies allow a larger period within which to submit
1564written exceptions. You should contact the agency that will issue the final
1576order in this case concerning agency rules on the deadline for filing exceptions
1589to this Recommended Order. Any exceptions to this Recommended Order should be
1601filed with the agency that will issue the final order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
- Date: 06/15/1995
- Proceedings: Final Order Dismissing Petition for Relief From An Unlawful Employment Practice filed.
- Date: 09/20/1994
- Proceedings: CC (Respondent) Notice of Appearance filed.
- Date: 06/08/1994
- Proceedings: (Respondent) Response to Exceptions to Recommended Order of Dismissal filed.
- Date: 02/15/1994
- Proceedings: Letter to DMK from Guy K. McCann (re: Fax sent to Mr. Silzer) filed.
- Date: 02/09/1994
- Proceedings: Letter to DMK from Scot A. Silzer (re: Mr. McCann's Motion & Exhibit)filed.
- Date: 02/07/1994
- Proceedings: Letter to DMK from Guy K. McCann (re: late-filed exhibits); Motion to Accept for Filing and Consideration Exhibit on Clarification of the Issue w/(TAGGED) Late-Filed Exhibits filed.
- Date: 01/18/1994
- Proceedings: Transcript filed.
- Date: 01/05/1994
- Proceedings: (Petitioner) Documents to Petition to Deny Motion to Dismiss filed.
- Date: 01/04/1994
- Proceedings: Amended Notice of Hearing (As to Location only) sent out. (hearing set for 1/6/94; 9:00am; Orlando)
- Date: 01/04/1994
- Proceedings: (Petitioner) Motion for Production of Document filed.
- Date: 12/09/1993
- Proceedings: Letter to L. Roeser from D. Lambert (re: court report confirmation) sent out.
- Date: 12/09/1993
- Proceedings: Notice of Hearing sent out. (hearing set for 1/6/94; 9:00am; Orlando)
- Date: 12/03/1993
- Proceedings: (Petitioner) Petition to Deny Motion to Dismiss filed.
- Date: 11/22/1993
- Proceedings: (Respondent) Motion to Dismiss and Answer filed.
- Date: 11/15/1993
- Proceedings: Initial Order issued.
- Date: 11/04/1993
- Proceedings: Transmittal of Petition; Charge of Discrimination; Notice of ReDetermination: Untimeliness; ReDetermination: Untimely; Petition for Relief;Agency Action Letter; Notice to Respondent of Filing of Petition for Relief from an Unlawfu l Employment Practice; R
Case Information
- Judge:
- DANIEL M. KILBRIDE
- Date Filed:
- 11/04/1993
- Date Assignment:
- 11/15/1993
- Last Docket Entry:
- 06/15/1995
- Location:
- Orlando, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO