94-006976 Jackie Hall vs. The Boeing Company Status: Closed Recommended Order on Wednesday, March 29, 1995.

Summary: Claim for relief barred when Petition not timely filed; Equitable tolling doctrine not shown.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACKIE HALL, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6976

)

BOEING AEROSPACE OPERATION, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, the above-styled matter was heard before the Division

of Administrative Hearings by its duly designated Hearing Officer, Daniel M.

Kilbride, on March 21, 1995 in Orlando, Florida. The following appearances were

entered:

APPEARANCES

For Petitioner: George T. Paulk, Esquire

1400 Palm Bay Road Northeast

Palm Bay, Florida 32905

For Respondent: James Blue, Esquire

Kevin O'Toole, Esquire

Hogg, Allen, Norton & Blue, P.A.

324 S. Hyde Park Avenue, Suite 350

Tampa, Florida 33601

STATEMENT OF THE ISSUES

Whether the Petition for Relief from an unlawful employment practice was

timely filed with the Florida Commission on Human Relations.

Whether the Division of Administrative Hearings has jurisdiction to conduct

a formal hearing under the provisions of Section 120.57(1), Florida Statutes, if

the Petition was not timely filed.

PRELIMINARY STATEMENT

On November 2, 1993, Petitioner filed a complaint with the Florida

Commission on Human Relations (FCHR) charging Respondent with committing an

unlawful employment practice. The Commission conducted an investigation and

issued a No Cause determination. The parties were notified of the Commission's

action by letter, dated October 21, 1994. A Petition for Relief was filed with

FCHR on November 29, 1994. On December 15, 1994, the FCHR issued a Transmittal

of Petition and transmitted to the Division of Administrative Hearings the

Petition for Relief, together with all other "pleadings and jurisdictional

papers heretofore filed in this proceeding". This matter was assigned to the

undersigned Hearing Officer. In pleadings dated January 16, 1995, Respondent

filed an Answer to the Petition for Relief and filed a Motion to Dismiss. A

hearing was set on the threshold issue of timeliness and jurisdiction. On March

21, 1995 this matter was heard on the threshold issues.

At the hearing, Petitioner was present and requested that she be

represented by George T. Paulk, Esquire, a member of the Florida Bar. The

parties stipulated to certain facts and the Hearing Officer took official notice

of the pleadings and jurisdictional papers transmitted to the Division of

Administrative Hearings. Mr. Paulk testified on behalf of Petitioner and

offered no exhibits in evidence. Respondent did not call any witnesses to

testify or offer any exhibits in evidence. The hearing was recorded, but a

transcript was not prepared. Petitioner and Respondent filed legal memoranda on

March 24, 1995.

Based upon all of the evidence, the following findings of fact are

determined:

FINDINGS OF FACT

1. On December 15, 1994, the Florida Commission on Human Relations (FCHR)

transmitted to the Division of Administrative Hearings (DOAH) a Petition for

Relief from an Unlawful Employment Practice, together with all other "pleadings

and jurisdictional papers heretofore filed in this proceeding."

2. The pleadings and papers transmitted by FCHR show that Petitioner filed

a Charge of Discrimination with FCHR on November 2, 1993, charging an unlawful

employment practice by Respondent in connection with her lay off on October 29,

1992.

3. On October 21, 1994, the FCHR concluded its investigation into the

matter and issued its determination of No Cause to believe that an unlawful

employment practice has occurred.

4. Notice of that determination was mailed to Petitioner and Respondent on

October 21, 1994 by regular mail.

5. The Notice of Determination of No Cause served on Petitioner included

the following statement:

Complainant may request an administrative

hearing by filing a PETITION FOR RELIEF within

35 days of the date of this NOTICE OF

DETERMINATION: NO CAUSE.

A Petition for Relief form is enclosed with

Complainant's notice. It may be beneficial to

seek legal counsel prior to filing the petition.

If the Complainant fails to request an admini-

strative hearing within 35 days of the date of

this notice, the administrative claim under the

Florida Civil Rights Act of 1992, Chapter 760,

will be dismissed pursuant to Section 760.11,

Florida Statutes (1992).

6. Counsel for Petitioner, George T. Paulk II, received the Notice of

Determination on behalf of Petitioner and prepared the petition to be "filed"

with the FCHR.

7. On November 25, 1994, 35 days after the Notice was mailed, Counsel for

Petitioner transmitted to the FCHR her Petition for Relief, requesting an

administrative hearing. The petition was submitted on the form provided by the

FCHR. The petition was sent by regular U.S. Mail.

8. The Petition for Relief was filed with the FCHR on November 29, 1994,

39 days after the Notice of Determination was issued.

9. The FCHR transmitted the pleadings to the Division of Administrative

Hearings for further proceedings.

10. At the same time of the transmittal to Division of Administrative

Hearings, FCHR issued a notice of the petition to Respondent advising it of the

requirement to file an answer to the Petition for Relief.

11. Respondent timely filed its answer with affirmative defenses,

including the first affirmative defense that "Petitioner failed to file her

petition within the time allowed by law." Respondent also filed a separate

Notice to Dismiss raising the same issue.

12. The Petition for Relief was deposited in the mail on Friday, November

25, 1994, the day after Thanksgiving which is an official state holiday. The

next business day was Monday, November 28, 1994.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding, and the parties thereto, pursuant to

subsection 120.57(1) and 760.11(7), Florida Statutes.

14. The threshold issue in this matter is whether the Division of

Administrative Hearings has jurisdiction to proceed to the merits of this

matter, or whether the proceeding must be dismissed based on the untimeliness of

the Petition for Relief and therefore the claim is barred.

15. Section 760.11, Florida Statutes (1993), which was created in 1992

when the Legislature made significant revisions to Chapter 760, Florida

Statutes, addresses the administrative and civil remedies that can be invoked by

Petitioner based on an assertion of an unlawful employment practice. The first

step is the filing of a complaint with the FCHR, which investigates the

complaint and renders an initial determination. This procedure was followed in

this case, and the FCHR issued its determination of No Cause on August 24, 1993.

16. Under the Florida Civil Rights Act of 1992, the Division of

Administrative Hearings is charged with the responsibility to conduct a formal

hearing when the FCHR has issued a No Cause determination and the request for a

hearing has been timely filed. Section 760.11(7), Florida Statutes. Subsection

(7) describes the administrative remedy available after a no-cause

determination, in pertinent part, as follows:

The aggrieved person may request an administrative

hearing under s. 120.57, but any such request must

be made within 35 days of the date of determination

of [no] reasonable cause . . . If the aggrieved

person does not request an administrative hearing

within the 35 days, the claim will be barred.

Section 760.11(7), Florida Statutes.

17. The FCHR's rules, which were adopted prior to the 1992 revision of

Chapter 760, similarly require a timely request for an administrative hearing.

The rules provide for the filing of a petition within 30 days of service of a

notice of determination of no cause, with 5 days time added for service by mail.

Rules 60Y-5.004(5), 60Y-5.008, and 60Y-4.007, Florida Administrative Code.

18. By rule, FCHR has made it clear that the requirement for "filing" of a

document as used in its rules is a requirement for "actual receipt of the

document by the Clerk of the Commission at its office." Rule 60Y-4.004(1),

Florida Administrative Code reads as follows: "Filing or file with the

Commission, means actual receipt of a document by the Clerk of the Commission at

its office . . ."

19. The only exception in the FCHR rules that would allow a late-filed

petition is as follows:

For good cause shown, the Chairperson may grant

an extension of time to file the Petition for

Relief from an Unlawful Employment Practice,

provided the motion for extension of time is

filed within the 30-day period prescribed by

Rule 60Y-5.008(1).

Rule 60Y-5.008(2), Florida Administrative Code. Petitioner did not seek relief

from the filing deadline under this extension provision.

20. Section 760.11(7), Florida Statutes, requires the timely submission of

a request for an administrative hearing, or else the claim is "barred". The

Petition for Relief was not timely filed, hence the Petitioner's claim must be

deemed barred.

21. Petitioner has failed to establish excusable neglect, which might,

under certain circumstances, excuse a delinquent filing. See, e.g., Machules v.

Department of Administration, 523 So.2d 1132 (Fla. 1988). 1/

22. In Machules, the Florida Supreme Court described the parameters of the

"equitable tolling" doctrine as follows:

Generally, the tolling doctrine has been applied

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. 523 So.2d at 1134.

23. It is undisputed that the petition actually received by the FCHR, and

thus filed within the meaning of its rules, was on November 29, 1994, one day

past the statutory deadline.

24. The only reason offered by Petitioner for her untimely-filed petition

was the testimony of her counsel that he mailed the petition on November 25,

1994 and he was under the mistaken belief that depositing the Petition with the

U.S. Mail was sufficient to meet the filing requirements of the FCHR, or, in the

alternative, that Petitioner was entitled to 35 days plus an additional five

days for mailing.

25. Petitioner did not claim that she was lulled into inaction by anything

said or done by the FCHR or by the Respondent, or that she was misled in any

fashion. The testimony was that her counsel suffered from misapprehension with

respect to his obligations under the FCHR rules for filing the petition. There

was no confusion regarding how to fill out the form, or regarding where it was

to be filed.

26. In this case, the Petitioner did not timely assert her rights. She

was not misled or lulled into inaction, or otherwise prevented form asserting

her rights. Instead, the evidence shows that the Petitioner understood her

obligation to file a petition on time, and had no excuse for failing to do so.

Environmental Resource Associates of Florida, Inc. v. Department of General

Services, 624 So.2d 330 (Fla. 1st DCA 1993); Wright v. HCA Central Florida

Regional Hospital, DOAH Case No. 94-0070 Recommended Order, dated July 27, 1994,

FCHR Case No. 93-3143 Final Order, dated January 26, 1995.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a Final Order be entered dismissing with prejudice the

Petition for Relief in Division of Administrative Hearings' Case No. 94-6976 and

FCHR Case No. 94-7490, for failure to timely file the Petition.

DONE AND ENTERED this 29th day of March, 1995, in Tallahassee, Florida.

___________________________________

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March, 1995.

ENDNOTE

1/ The Machules tolling doctrine may be inapplicable in any event, because its

application is dependent on a threshold finding that the statutory period for

administrative petitions is not jurisdictional in the sense that failure to

comply is an absolute bar to further proceedings but instead is subject to

equitable considerations such as tolling. Machules, 523 SO.2d at 1133, n. 2.

Here, there is a statute expressly providing that failure to timely request an

administrative hearing does indeed result in the claim being "barred." Section

760.11(7), Florida Statutes.

COPIES FURNISHED:

George T. Paulk, II, Esquire

1400 Palm Bay Road NE

Palm Bay, Florida 32905

James M. Blue, Esquire

Kevin O'Toole, Esquire

Hogg, Allen, North & Blue, P.A.

324 S. Hyde Park Avenue, Suite 250

Tampa, Florida 33601

Sharon Moultry, Clerk

Human Relations Commission

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird

General Counsel

Human Relations Commission

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this

Recommended Order. All agencies allow each party at least ten days in which to

submit written exceptions. Some agencies allow a larger period within which to

submit written exceptions. You should contact the agency that will issue the

Final Order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the Final Order in this case.