96-003321 Emma J. Pusey vs. George Knupp, Sheriff Of Lake County Status: Closed Recommended Order on Monday, November 25, 1996.

Summary: Failure to timely file petition for relief within extension granted by Florida Commission on Human Relations resulted in dismissal absent proof of equitable tolling or excusable neglect

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMMA J. PUSEY, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3321

)

GEORGE KNUPP, Lake County )

Sheriffs Office, )

)

Respondent. )

______________________________)

SUMMARY

RECOMMENDED ORDER

This cause may be disposed of upon undisputed facts and recognized legal

principles, without a formal hearing.

STATEMENT OF THE ISSUE

This cause came on for consideration upon Respondent's Motion to Dismiss

the Petition for Relief from a "Determination: No Cause," order entered by the

Florida Commission on Human Relations.

PRELIMINARY STATEMENT

Petitioner has filed a Petition for Relief from a "Determination: No Cause"

order entered by the Florida Commission on Human Relations upon Petitioner's

claim that she was discriminated against by her employer both as retaliation and

due to her race (Black).

This cause came on for consideration upon Respondent's Motion to Dismiss.

Oral argument was heard by telephonic conference call on August 14, 1996.

Thereafter, the parties were permitted to file further written argument, factual

allegations, and case citations. All of the subsequent pleadings, memoranda,

and letters which address the motion to dismiss or the oral argument on the

motion have been considered. None offer any specific reason for late filing of

the Petition for Relief after June 14, 1996.

By an October 8, 1996 "Order Requiring Further Advices and to Show Cause,"

the parties were presented with the material facts as presumably agreed by them.

They were given until October 30, 1996 in which to file any disagreement with

the facts as understood by the undersigned Administrative Law Judge. Nothing

was filed by either party to vary the facts proposed in that October 8, 1996

order. Therefore, the facts as set out therein are deemed to be undisputed.

Also by the October 8, 1996 order, Petitioner was specifically given until

October 30, 1996 to show cause why she did not timely file her Petition for

Relief between May 31, 1996 and June 18, 1996.

Petitioner did not timely file any response to the October 8, 1996 order.

However, her late response, filed October 31, 1996, and also styled "Order

Requiring Further Advices and to Show Cause" (sic) has been considered. See,

Findings of Fact 12 and 13.

FINDINGS OF FACT

The undisputed facts are as follows:

1. After investigating Petitioner's Claim of Discrimination, the Florida

Commission on Human Relations (FCHR) entered its Order, "Determination: No

Cause," on March 12, 1996. FCHR's order unequivocally advised Petitioner that

her Petition for Relief, if any, must be filed within 35 days.

2. The thirty-fifth day would have been April 16, 1996.

3. After the time as provided by FCHR's Rule 60Y-5.008(1) and by FCHR's

March 12, 1996 order for the filing of her Petition for Relief had already run

out, Petitioner filed a request for extension of time in which to file her

Petition for Relief. Her request for extension stated that she needed the

extension of time "due to failing health of my spouse and medical care and

concern for him."

4. This late request for extension of time was the only request for

extension of time filed by Petitioner. It was dated April 17, 1996, (one day

late) but it was not filed with the FCHR until April 24, 1996 (eight days late).

5. Petitioner did not mail a copy of her April 1996 request for extension

of time to Respondent as required by FCHR rules.

6. Therefore, Respondent was unaware there had been a request for

extension made to the FCHR until Respondent received the FCHR's order dated May

31, 1996. Because it had no notice that Petitioner was requesting an extension

in April 1996, Respondent had no opportunity to object to the FCHR before the

Commission entered its May 31, 1996 order.

7. By its May 31, 1996 order, FCHR granted Petitioner an extension of time

only until June 14, 1996 in which to file her Petition for Relief. The order

does not state a number of days, but clearly and specifically states that the

Petition for Relief must be filed by June 14, 1996.

8. FCHR granted no further extensions to Petitioner for filing her

Petition for Relief.

9. Petitioner filed her Petition for Relief beyond the June 14, 1996 date

assigned her by the FCHR. Although her Petition for Relief was dated June 14,

1996, FCHR's date stamp on the Petition for Relief shows that it was not  f i l e d

with the Commission until June 18, 1996.

10. FCHR transmitted the Petition for Relief to the Division of

Administrative Hearings on or about July 12, 1996.

11. Respondent filed a Motion to Dismiss the Petition for Relief and an

Answer with affirmative defenses based on untimeliness. See, Conclusion of Law

15.

12. In response to the October 8, 1996 order to show cause herein,

Petitioner filed a pleading she labelled "Order Requiring Further Advices and to

Show Cause." Although she had been required to show cause why she did not

timely file her Petition for Relief between May 31, 1996 and June 18, 1996, she

instead explained her tardiness in filing for an extension of time back in April

1996 this way:

I was under the impression that I had 35 days

to respond from the time I received the Notice

of Determination: No Cause. I receive [sic]

this notice on March 15, 1996, under my impression

the 35 day lapse period would have been until

April 19, 1996. I feel my response met this time

period as my letter was dated April 17, 1996.

13. In response to the October 8, 1996 order herein, Petitioner has

offered no explanation why she filed her Petition for Relief beyond the clearly

specified extension period granted her by the Commission.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of the Respondent's pending Motion to Dismiss,

pursuant to Section 120.57(1), F.S.

15. Respondent's Motion to Dismiss, filed August 1, 1996, makes the

following argument as to untimeliness:

* * *

2. Pursuant to 760.11(7) F.S., 1995 provides

[sic] that where the Commission determines that

there is not reasonable cause to believe that a

violation of the Florida Civil Rights Act of 1992

has occurred, the commission shall dismiss the

complaint and the aggrieved person may request

an administrative hearing under s. 120.57, but

such a request must be made [within 35] days of

the date of determination.

3. Rule 60Y-5.008(1), F.A.C. provides that

a Complainant may file a Petition for relief

from an unlawful employment practice [within 30]

days from service of a Notice of No reasonable cause.

4. Rule 60Y-5.008(2), F.A.C. requires that

before the Chairperson may grant an extension of

time to file the Petition for Relief from an

Unlawful Employment Practice, the Complainant

must move for the extension of time [within the

thirty-day] period set forth by Rule 60Y-5.008(1)

and make a showing of good cause concerning the

need for the extension.

5. On April 17, 1996, [thirty-six (36) days]

after service upon the Complainant of the Notice

of No Probable Cause by the Commission, Complainant

requested an extension of time to file a Petition

for Relief from an Unlawful Employment Practice.

6. Respondent did not receive notice of

Complainant's request and was therefore unable

to respond or object concerning the untimeliness

of her request or the sufficiency of her showing

of good cause.

7. The Complainant's request was granted on May

31, 1996, contrary to the requirements of Rule

60Y-5-008(2).

8. Because Complainant's request for an extension

of time to file her Petition for Relief from an

Unlawful Employment Practice was untimely and there

was not a sufficient showing of good cause,

Respondent moves for dismissal of this petition.

[Emphasis in the original motion] 1/

16. By its motion to dismiss, Respondent seeks to have the undersigned

"revisit," "second-guess," or "go behind" the Florida Commission on Human

Relations' May 31, 1996 order which granted Petitioner an extension of time in

which to file her Petition for Relief.

17. Unusual as FCHR's procedure and order granting the extension may have

been, the undersigned Administrative Law Judge deems it inappropriate to

"revisit," "second guess" or "go behind" the Commission's May 31, 1996 order on

the Petitioner's April 1996 request for an extension.

18. However, this case may be resolved without the necessity of "going

behind" the FCHR's May 31, 1996 order, because Petitioner never met the filing

date specifically assigned to her by the Commission in its May 31, 1996 order.

19. By its May 31, 1996 order, FCHR required that Petitioner file her

Petition for Relief no later than June 14, 1996. Once again, Petitioner did not

move for an extension of time before the time specified in the Commission's

Order ran out. Petitioner simply filed her Petition for Relief late.

20. By her late filing of her Petition, Petitioner has run contrary to

FCHR Rule 60Y-5.008(2) F.A.C. and Section 760.11(7) F.S. [1996] Petitioner also

has not complied with the clear requirements of the Commission's May 31, 1996

order.

21. In the case of Clark v. Department of Corrections, Sumter Correctional

Institution (DOAH Case No. 85-1683 Recommended Order entered July 30, 1985; FCHR

Case No. 84-1409 Final Order entered September 26, 1985), a dismissal was

granted upon remarkably similar facts. Therein, after investigation, a

determination of no cause was issued by FCHR on January 30, 1985. On March 12,

Petitioner Clark mailed her late Petition for Relief to the Respondent Employer,

which was forwarded on March 13 to the Commission where it should have been

filed on March 4 or 5. On April 29, the Commission entered its order to

Petitioner to show cause within 15 days as to why her Petition should not be

dismissed as untimely. Petitioner Clark timely filed her response to that order

which showed several dates of family members' illnesses but no evidence that

Petitioner Clark took sick leave during any of these periods or that Clark did

not report for work each of those days, nor any other reason Clark could not

file her Petition on days these family members were not sick. Thereafter,

Clark's Petition for Relief was referred to the Division of Administrative

Hearings pursuant to Section 120.57(1) F.S. and FCHR's then-Rule 22T-8.16(1)

F.A.C. The Respondent Employer moved to dismiss the Petition as untimely. A

Recommended Order was entered which recommended dismissal of the Petition for

Relief, and the FCHR ultimately dismissed the Petition for Relief, stating in

its Final Order, in pertinent part:

. . . the Commission has interpreted the 30

day rule filing period for Petition for Relief

as a limitation period subject to equitable

tolling, estoppel and waiver, rather than as

a jurisdictional requirement. . . .While the

30 day requirement of Rule 9.08 [sic] is

subject to equitable principles, Petitioner

in this case has failed to show that such

principles should be applied. [See, generally,

Dourtis v. Eastern Airlines], 2 FALR 1599-A

(FCHR 10/31/80) aff'd, 409 So.2d 139 (Fla. 4th

DCA 1982 fc.) [Glass v. City of Mascatte] 3 FALR

at 239-A; [Park v. Southern Bell Telephone and

Telegraph Company], 4 FALR at 1796-A [Emphasis

in original but full citations have been provided

by the undersigned.]

22. In the instant case, even assuming, but not holding, that Petitioner's

husband's illness absolutely prevented Petitioner from filing her Petition for

Relief up until the date she late-requested an extension, (April 17/April 24,

1996), Petitioner has never offered any reason she could not have filed her

Petition on or before the June 14, 1996 date for filing which FCHR required by

its May 31, 1996 Order.

23. In the case of Bartley v. Hospital Corporation of America (DOAH Case

No. 94-4973 Recommended Order entered December 24, 1994; FCHR Case No. 93-5376

Final Order entered April 17, 1995), the FCHR dismissed the Petition for Relief

in a similar "late-filing" case. Petitioner Bartley had filed with the

Commission a complaint of discrimination pursuant to the Florida Civil Rights

Act of 1992. After investigation, the Commission entered its order of

"Determination: No Cause." The notice of determination was sent to Petitioner

Bartley on July 14, 1994, including a written statement that pursuant to Section

760.11 F.S., a request for administrative hearing must be filed within 35 days

of July 14, 1994, or his claim would be dismissed. Bartley filed a Petition for

Relief which was stamped received by the Commission on August 26, 1994, and it

was referred to the Division of Administrative Hearings for formal hearing

pursuant to Section 120.57(1) F.S. The Respondent Employer filed a Motion to

Dismiss due to untimely filing of the Petition for Relief. No response to the

motion was filed by Petitioner Bartley. Donald R. Alexander, Administrative Law

Judge, issued a Recommended Order of Dismissal, recommending that FCHR enter a

final order granting the Motion to Dismiss and dismissing Bartley's Petition for

Relief with prejudice, due to untimely filing of the Petition. Specifically,

the Recommended Order relied upon Subsection 760.11(7) F.S. and the language

therein that, "If an aggrieved person does not request an administrative hearing

within the 35 days, the claim will be barred." The Recommended Order further

reasoned that, "Even if one assumes the statutory language is permissive and

nonjurisdictional, petitioner has nonetheless failed to assert any reasons for

invoking the doctrines of equitable tolling, estoppel or waiver." In its Final

Order dismissing Bartley's Petition for Relief, the Commission held, in part, ".

. . we find the . . . Recommended Order of Dismissal to be a correct disposition

of the matter."

24. Also in accord are the following cases: Hall v. The Boeing Co., DOAH

Case No. 94-6976 (Recommended Order entered March 29, 1996) wherein a claim for

relief was held barred when the Petition for Relief was timely-mailed but late-

filed with the FCHR and equitable tolling was not shown; and Wright v. HCA

Central Florida Regional Hospital, DOAH Case No. 94-0070 (Recommended Order

entered July 27, 1994 with Final Order adopting it in toto on January 27, 1995),

wherein the Petitioner claimed to have received two notices and mailed two

petitions but only the one petition which was received was untimely; therefore,

the claim was barred because excuseable neglect had not been shown.

25. The foregoing Florida cases are in tune with the case law progeny of

the federal anti-discrimination legislation. Title VII, 42 U.S.C. Section 200e-

5(f) provides that the Equal Employment Opportunity Commission (EEOC) must

notify a claimant that the agency is terminating action on his/her charge of

discrimination and that the claimant may bring a civil action within 90 days or

be barred. In Law v. Hercules, Inc. 713 F.2d 691 (U.S. Circuit Court of Appeals

1983) [Atlanta Division], the EEOC sent Mr. Law notification by certified mail.

The receipt was signed for by Mr. Law's son on a date certain, but Mr. Law's

subsequent civil action could only be counted timely if one counted from the

date Mr. Law claimed to have physically picked up the EEOC notification from his

kitchen table where his son had placed it. In upholding the federal district

court's summary judgment in favor of the Defendant Employer based on Mr. Law's

failure to comply with the 90 day statutory guideline, the U.S. Circuit Court of

Appeals cited Lewis v. Conners Steel Co., 673 F. 2d 1240 (11th Cir. 1982):

We need not embrace the doctrine of constructive

receipt, nor close our eyes to the liberal

construction the act in entitled to in order

to fashion a fair and reasonable rule for the

circumstances of this case. There is no reason

why a plaintiff should enjoy a manipulative

open-ended time extension which would render

the statutory limitation meaningless. [Plaintiff

should be required to assume some minimum respon-

sibility himself for an orderly and expeditious

resolution of his dispute]. [Emphasis supplied]

See, also Bell v. Eagle Motor Lines, 693 F 2d 1086 (11th Cir. 1982)

26. Herein, Petitioner Pusey did not file her Petition for Relief in a

timely manner under the Florida statute or FCHR's rules. She also did not file

her request for extension of time timely under the FCHR's rules. Nonetheless,

FCHR granted her an extension for a total of 94 days in which to file her

Petition for Relief. This would be the total time from FCHR's March 12, 1996

"Determination: No Cause" order until June 14, 1996, the date for filing

specified in FCHR's May 31, 1996 order. Petitioner still did not file her

Petition timely within that explicit agency extension to June 14, 1996. Then,

despite the opportunity afforded by the October 8, 1996 order entered herein,

Petitioner still offered no reason, and certainly no reason cognizable in law,

why she could not have timely filed her Petition for Relief within the time

specified in the FCHR's May 31, 1996 order.

27. Therefore, her Petition for Relief should be dismissed. To do

otherwise would be directly contrary to Section 760.11(7) F.S. and Rules 60Y-

5.004(5) and 60Y-5.008(1) and (2) F.A.C. To do otherwise would be to render the

explicit language of FCHR's May 31, 1996 order null and void and undermine the

authority of any future FCHR orders of similar nature.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order dismissing the Petition for Relief with prejudice.

RECOMMENDED this 25th day of November, 1996, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of November, 1996.

ENDNOTE

1/ 760.11 F.S. Administrative and Civil Remedies; Construction

(7) If the commission determines that there is not reasonable cause to

believe that a violation of the Florida Civil Rights Act of 1992 has occurred,

the commission shall dismiss the complaint. [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 reasonable cause] and any such

hearing shall be heard by a hearing officer and not by the commission or a

commissioner. If the aggrieved person does not request an administrative

hearing within the 35 days, the claim will be barred. [Emphasis supplied]

* * *

60Y-5.004 F.A.C. Executive Director's Investigatory Determination; Notice.

(5) A Notice of Determination of No Reasonable Cause. No Jurisdiction or

Untimeliness shall advise the complainant of the right to file a Petition for

relief, pursuant to Rule 60Y-5.008, within 30 days of service of the notice. A

form, Petition for Relief, hereby incorporated by reference, in blank, shall be

provided to the complainant at the time of service of the notice.

60Y-5.008 F.A.C. Petition for Relief from an Unlawful Employment Practice.

(1) Petition. A complainant may file a Petition for Relief from an

Unlawful Employment Practice within 30 days of service of a Notice of Failure of

Conciliation, a Notice of Determination of No Reasonable Cause.. .

.Notwithstanding the provisions of Rules 60Y-4.004(2) and 60Y-4.005, a

complainant who is not represented by an attorney may file a Petition for Relief

without copies or proof of service, and the Clerk shall prepare copies and serve

them upon all other parties.

(2) 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).

COPIES FURNISHED:

Emma J. Pusey

506 East Lake Avenue

Eustis, Florida 32726

William E. Powers, Jr., Esquire

POWERS, QUASCHNICK, TISCHLER & EVANS, P.A.

Post Office Box 12186

Tallahassee, Florida 32317

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road,

Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire

Florida Commission on Human Relations

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 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.