97-004841 Margaret H. Wilson vs. F. W. Bell Status: Closed Recommended Order on Thursday, April 6, 2000.

Summary: Employee who filed request for hearing 560 days after 180-day time limit in Section 760.11(3), Florida Statutes, is barred by Section 760.11(7), Florida Statutes. Must pay fees and costs for failure to comply with discovery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARET H. WILSON, )

)

Petitioner, )

)

vs. ) Case No. 97-4841

)

F. W. BELL, n/k/a BELL )

TECHNOLOGIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing w as conducted in this proceeding

on February 28, 2000, in Orlando, Florida by Daniel Manry,

Administrative Law Judge ("ALJ"), Division of Administrative

Hearings ("DOAH").

APPEARANCES

For Petitioner: No Appearance

For Respondent: Janet M. Courtn ey, Esquire

Lowndes, Drosdick, Doster,

Kantor and Reed, P.A.

215 North Eola Drive

Orlando, Florida 32802

STATEMENT OF THE ISSUE

The ultimate issue for determi nation is whether Respondent

discriminated against Petitioner on the basis of her age by

failing to provide equal raises in October 1994 and equal

termination benefits in August 1995, in violation of Section

760.10(1), Florida Statutes (1997). (All statutory references are

to Florida Statutes (1997) unless otherwise stated).

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the Florida

Commission on Human Relations (the "Commission") on or about

August 31, 1995. The Commission did not issue a determination of

reasonable cause within 180 days of August 31, 1995, or anytime

thereafter. On September 10, 1997, Petitioner filed a Petition

for Relief with the Commission requesting an administrative

hearing. On October 16, 1997, the Commission referred the matter

to DOAH to conduct the administrative hearing.

At DOAH, the case experienced an extensive procedural

history. The procedural history is recounted in a discovery

order entered on January 28, 2000 (the "Discovery Order").

At th e hearing, Petitioner did not appear and did not

otherwise present any evidence. Respondent called two witnesses

and submitted four exhibits for admission in evidence. The ALJ

entered the Discovery Order as an unnumbered exhibit.

The identity of the wi tnesses and exhibits, and any

attendant rulings, are set forth in the record of the hearing.

Neither party requested a Transcript of the hearing. Petitioner

did not file a proposed recommended order ("PRO"). Respondent

timely filed its PRO on March 9, 2000.

FINDINGS OF FACT

1. Petitioner did not appear at the administrative hearing

and did not submit any evidence. Respondent seeks attorney fees

and costs incurred as a result of Petitioner's failure to comply

with the Discovery Order.

2. It is uncont roverted that Petitioner is a female born on

November 17, 1929, and a member of a protected class. Respondent

employed Petitioner up to her dismissal on August 1, 1995.

3. Petitioner filed a Charge of Discrimination with the

Commission on or about August 31, 1995. The Commission's date

stamp on the Charge of Discrimination is legible only for the

month and year of filing. August 31, 1995, is the deemed date.

4. Petitioner's Charge of Discrimination contains two

allegations of age discrimination. First, Petitioner alleges

that Respondent discriminated against Petitioner on August 1,

1995, by terminating Petitioner's employment without the same

severance pay that Respondent paid to one of Petitioner's co-

workers. Second, Petitioner alleges that in October 1994

Respondent failed to give Petitioner the same raise as Respondent

gave Petitioner's co-workers in the same position, i.e., a

laboratory technician.

Time Limits

5. The Charge of Discrimination was timely filed in

accordance with the requirements of Section 760.11(1). The

filing date of August 31, 1995, fell within 365 days of the

earliest alleged discrimination on October 1, 1994.

6. Section 760.11(3) authorized the Commission to issue a

determination of reasonable cause within 180 days of August 31,

1995, when the Charge of Discrimination was filed. Counting

September 1, 1995, as the first day of the 180-day time limit,

Section 760.11(3) authorized Commission to determine reasonable

cause no later than February 27, 1996.

7. Sectio n 760.11(7) required Petitioner to file a request

for hearing within 35 days of February 27, 1996. Counting

February 28, 1996, as the first day of the 35-day period and

assuming for the benefit of Petitioner that February 1996 had

only 28 days, Section 760.11(7) required Petitioner to file a

request for hearing no later than April 3, 1996.

8. Petitioner did not timely file her request for

administrative hearing. Petitioner first requested an

administrative hearing in the Petition for Relief filed on

September 10, 1997. Petitioner filed her request for hearing

approximately 525 days late and 560 days after the expiration of

the 180-day time limit prescribed in Section 760.11(3).

9. Section 760.11(7) statutorily bars Petitioner's claim.

Section 760.11(7) expressly provides, in relevant part:

If the aggrieved person does not request an

administrative hearing within the 35 days,

the claim will be barred.

Fees and Costs

10. The Commission referred the request for hearing in the

Petition for Relief to DOAH on October 16, 1997. On November 3,

1997, Respondent filed its Answer and Affirmative Defenses and

its Motion to Dismiss for Failure to State a Claim Upon Which

Relief Can Be Granted and Alternative Motion for More Definite

Statement with Incorporated Memorandum of Law in Support Thereof

(respectively, the "Motion to Dismiss" and "Motion for More

Definite Statement"). On October 17, 1997, Respondent served

Petitioner with copies of the Motion to Dismiss and Motion for

More Definite Statement by United States Mail.

11. Petitioner did not file a response to the Motion to

Dismiss and Motion for More Definite Statement within 12 days of

the date of service, or anytime thereafter. On November 18,

1997, an Order to Show Cause required Petitioner to file no later

than December 15, 1997, a written response stating why the relief

requested by Respondent should not be granted. A Notice of

Hearing issued on the same date scheduled the administrative

hearing for February 9, 1998.

12. On December 8, 19 97, Petitioner filed her written

response to the Order to Show Cause but did not serve a copy on

Respondent. On December 30, 1997, a Notice of Ex Parte

Communication provided Respondent with a copy of Petitioner's

written response and reminded each party to serve the opposing

party with copies of any documents filed with DOAH.

13. On January 15, 1998, Respondent filed a renewed Motion

to Dismiss and Motion for More Definite Statement and requested a

continuance of the administrative hearing on the ground that

Respondent had not received a copy of Petitioner's response to

the Order to Show Cause until the first week in January.

Petitioner did not respond to either of the renewed motions or to

the motion for continuance. On February 3, 1998, the ALJ

continued the hearing to a date to be agreed upon by the parties

during a telephone hearing scheduled for February 9, 1998. The

telephone hearing was scheduled to hear oral argument on

Respondent's pending motions and as a case management conference.

14. At the outset of the telephone conference conducted on

February 9, 1998, Petitioner stated that she did not wish to

proceed without counsel. Petitioner represented that she had

been attempting to obtain counsel, without success, and requested

additional time in which to obtain counsel.

15. Attorney Robert Hosch, Petitioner's nephew,

participated in the motion hearing on February 9, 1998, for the

limited purpose of representing that he would assist Petitioner

in obtaining counsel. The ALJ granted Petitioner's request for

additional time; reserved ruling on Respondent's pending motions

for disposition after hearing oral argument during a telephone

conference rescheduled for March 2, 1998; instructed Petitioner

to have her attorney file a notice of appearance no later than

February 19, 1998, and a response to Respondent's renewed Motion

to Dismiss and Motion for More Definite Statement no later than

March 2, 1998. Pursuant to the agreement of the parties during

the telephone conference, the ALJ scheduled the administrative

hearing for April 28, 1998. On February 23, 1998, an Order

Continuing and Rescheduling Formal Hearing memorialized the

foregoing matters.

16. On March 2, 1998, the parties and Mr. Hosch

participated in another telephone conference concerning

Respondent's Motion to Dismiss and Motion for More Definite

Statement. Mr. Hosch stated that he did not represent Petitioner

but was assisting her in obtaining counsel. Petitioner requested

additional time in which to obtain counsel. The ALJ required

Petitioner to file a more definite statement and a notice of

appearance from her attorney, if any, no later than March 12,

1998. The ALJ instructed the parties and Mr. Hosch that failure

to file a more definite statement and any notice of appearance on

or before March 12, 1998, would result in dismissal of the

proceeding. On March 6, 1998, an Order Granting Motion for More

Definite Statement memorialized the rulings and instructions

entered during the March 2 telephone conference.

17. On March 13, 19 98, Petitioner filed a one-page letter

purporting to be a more definite statement. On March 16, 1998,

the undersigned entered a Recommended Order of Dismissal.

18. On April 5, 1999, the Commission entered an Order

Remanding Case to Administrative Law Judge for Further

Proceedings on the Merits (the "Remand"). In relevant part, the

Remand concluded that the Recommended Order of Dismissal denied

Petitioner her right to represent herself and that it was an

abuse of discretion to do so.

19. The Remand stated, in relevant part:

An examination of the DOAH file discloses

that Petitioner attempted to file a more

definite statement by letter dated 3/11/98,

and received by DOAH 3/13/98. It is not

known why the Judge does not refer to this

letter in his Order. Perhaps it was ignored

because it was received one day late. If so,

this only strengthens the Commission's

finding that the Petitioner was deprived of

an essential due process requirement of

Florida law, and the Judge abused his

discretion.

. . . it is necessary that there be a finding

that the conduct upon which the order is

based was equivalent to willfulness or

deliberate disregard of the order.

Petitioner's argument . . . is probably

strong enough by itself to remand the

Recommended Order, at least on the issue of

willful or deliberate default.

Remand at fourth unnumbered page.

20. On April 19, 1999, an Order Reopening File required the

parties to file a status report no later than May 17, 1999. The

Order expressly stated that failure to timely file a status

report would result in the dismissal of the case. Neither party

timely filed a status report.

21. On May 20, 1999, Respondent filed Respondent's Status

Report requesting rulings on the original and renewed Motion to

Dismiss and Motion for More Definite Statement and requesting the

administrative hearing to be scheduled after January 1, 2000.

Petitioner never filed a status report and did not respond to

Respondent's request for rulings on the pending motions.

22. On June 9, 1999, the A LJ entered an Order Denying

Dismissal. The Order denied Respondent's original and renewed

Motion to Dismiss and Motion for More Definite Statement. On the

same date, a Notice of Hearing scheduled the administrative

Hearing for September 28 and 29, 1999, and a Prehearing Order

required the parties to comply with several requirements

incorporated herein by this reference.

23. On June 25, 1999, Respondent filed Respondent's Motion

for Continuance of the hearing scheduled for September 28-29,

1999, on the ground that counsel for Respondent was scheduled for

a four-week trial in circuit court beginning September 21, 1999.

Petitioner never responded to the Motion for Continuance. An

order dated July 13, 1999, rescheduled the administrative hearing

for January 20 and 21, 2000.

24. On November 16, 1999, Respondent served Petitioner with

Respondent's First Set of Interrogatories and Respondent's First

Request for Production of Documents. Petitioner neither objected

to nor answered either discovery request.

25 . On November 30, 1999, Respondent served Petitioner with

a Notice of Taking Deposition Duces Tecum on December 16, 1999.

On December 1, 1999, Petitioner filed a letter requesting a

continuance of the administrative hearing and an extension of

time to respond to discovery and to attend the deposition. In

relevant part, the letter stated that Petitioner continues:

. . . to have difficulty finding counsel who

will assist me on a contingency fee basis

. . . . At this time, it would be impossible

for me to pay an attorney for his or her time

in assisting me. For the same reason, I am

requesting that each of the parties'

discovery efforts be halted for a short

period of time, in order that I might find

counsel to help me with my responses and to

attend my deposition.

I do understand that the Respondent has a

right to gather information about my claim

and I plan to fully cooperate with those

efforts. However, I need the assistance of

an attorney in preparing my case and

representing me at deposition and at the

hearing. I am diligently trying to secure

counsel and I only seek a reasonable

continuance of the hearing and of pending

discovery. . . .

Please allow at least a few extra months

before the hearing date and allow me at least

an additional month to respond to the

Respondent's discovery requests and to attend

my deposition, which is currently scheduled

for mid-December, 1999. . . .

26. On December 10, 1999, Respondent filed Respondent's

Objection to Petitioner's Request for Continuance and

Rescheduling of Formal Hearing and Request for Stay of Discovery.

On December 14, 1999, Respondent filed Respondent's Limited

Withdrawal of Objection to Continuance and Amended Response to

Request for Continuance. Respondent agreed to a continuance of

the hearing for one month but objected to any extension of the

time for responding to discovery requests or for taking the

deposition. An order dated December 17, 1999, rescheduled the

administrative hearing for February 28 and 29, 2000, and denied

Petitioner's request to stay discovery while she sought counsel.

27. Counsel for Respondent made reasonable efforts to

conduct discovery at Petitioner's convenience. Subsequent to

November 30, 1999, when Respondent's counsel scheduled

Petitioner's deposition for December 16, 1999, Petitioner

contacted Respondent's counsel to reschedule the December 16

deposition because Petitioner was recovering from a cold.

Respondent's counsel rescheduled the deposition for January 4,

2000, and specifically obtained Petitioner's approval of the

January 4th-deposition date.

28. During the week of December 27, 1999, Petitioner

contacted Respondent's counsel and represented that Petitioner

was scheduled to have surgery to remove cancer from Petitioner's

mouth on January 3, 2000. Petitioner stated that she would not

be able to talk for several weeks and would not be able to appear

at the January 4th deposition.

29. Respondent's counsel agreed to reschedule the

deposition if Petitioner would provide written confirmation of

the scheduled surgery from Petitioner's physician. Petitioner

never provided the written confirmation.

30. Respondent's counsel re-noticed Petitioner's deposition

for January 17, 2000. Respondent's counsel obtained Petitioner's

specific approval of the new deposition date before scheduling

the deposition. Petitioner failed to appear for her deposition

on January 17, 2000, and Respondent's counsel rescheduled the

deposition for February 2, 2000.

31. Respondent's counsel made several requests by telephone

to obtain Petitioner's answers to interrogatories and

Petitioner's response to the request to produce. Both discovery

requests had been served on November 16, 1999. Petitioner never

objected to or answered Respondent's interrogatories and never

objected to or produced the requested documents.

32. On January 10, 2000, Respondent's counsel filed a

Motion to Compel and Motion for Sanctions; and Respondent's

Motion to Compel Appearance at Deposition and Responses to

Discovery and Motion for Sanctions. The Discovery Order (dated

January 28, 2000) reserved ruling on the request for sanctions

until an evidentiary hearing could be conducted during the

administrative hearing scheduled for February 28, 1999. However,

the Discovery Order granted the request to compel Petitioner's

appearance at the deposition scheduled for February 2, 2000;

required Petitioner to bring to the deposition her answers to

interrogatories and any documents in response to Respondent's

request to produce; and required Petitioner to file her

Prehearing Statement in accordance with the requirements of the

Prehearing Order entered on June 9, 1999.

33. On January 28, 1999, the administrative assistant for

the ALJ telephoned Petitioner and read paragraphs 1-7 of the

Discovery Order. On the same date, Respondent's counsel caused a

copy of the Discovery Order to be hand-delivered to Petitioner's

residence. Petitioner was not home, and the courier posted the

Discovery Order on the front door of Petitioner's residence. On

January 29, 2000, Respondent's counsel personally hand-delivered

a copy of the Discovery Order to Petitioner at Petitioner's

residence and informed Petitioner of the Order's contents.

34. On February 2, 2000, Petitioner failed to appear for

her deposition. Petitioner never filed her answers to

interrogatories, never filed the documents sought in Respondent's

request to produce, and never filed a Prehearing Statement.

35. Respondent's counsel telephoned Petitioner to confirm

that Petitioner would be attending a prehearing conference that

had been previously scheduled in accordance with the requirements

of the Prehearing Order entered on June 9, 1999. Petitioner

stated that she would not attend the prehearing conference. When

Respondent's counsel asked why Petitioner would not attend the

prehearing conference, Petitioner hung up without explanation.

When counsel for Respondent made additional attempts to

coordinate a prehearing conference, Petitioner refused to speak

to counsel for Respondent.

36. Petitioner's refusal to appear at deposition, answer

interrogatories, produce documents, and participate in a

prehearing conference individually and collectively prejudiced

Respondent's ability to prepare a defense. Petitioner's refusal

denied Respondent relevant and material information including the

identity of Petitioner's witnesses and exhibits as well as

Petitioner's current employment and earnings. Petitioner's

refusal deprived Respondent's counsel of the ability to fully

perform her duties and responsibilities to her client.

37. Respondent incurred attorney's fees and costs as a

result of Petitioner's refusal to appear at deposition, answer

interrogatories, and produce documents. Respondent incurred

court reporter costs of $169.15 as a result of Petitioner's

refusal to appear at any of her depositions. Respondent incurred

attorney's fees of $499.75 as a result of Petitioner's refusal to

appear at her first deposition. Respondent incurred attorney's

fees of $1,870.50 as a result of Petitioner's failure to appear

at her second deposition, answer interrogatories, and produce

documents; and as a result of various motions filed to obtain

Petitioner's attendance at deposition and Petitioner's responses

to discovery requests.

38. Petitioner willfully and deliberately disregarded the

requirements of the Discovery Order. In relevant part, paragraph

6 in the Discovery Order stated:

In the absence of competent and substantial

evidence of good cause submitted by

Petitioner, the failure of Petitioner to

timely comply with the requirements of this

Order shall be "equivalent to willfulness or

deliberate disregard of the order [quoting

from the Remand]." Upon Respondent's timely

motion and showing of good cause for imposing

sanctions, such failure by Petitioner shall

subject Petitioner to the imposition of

appropriate sanctions including the

assessment of fees and costs, the preclusion

of evidence, and the dismissal of this

proceeding.

39. Petitioner had adequate notice of the terms of the

Discovery Order and the opportunity to show good cause for her

failure to comply with the Discovery Order. On January 28, 2000,

the administrative assistant for the ALJ read to Petitioner over

the telephone the contents of paragraphs 1-7 of the Discovery

Order. Petitioner received a copy of the Discovery Order on

January 28 and 29, 2000. On January 29, 2000, Respondent's

counsel explained the Discovery Order to Petitioner.

40. Petitioner chose not to comply with the Discovery

Order. Petitioner neither appeared at the administrative hearing

to present evidence to prove the merits of her case nor appeared

to present evidence to show why the sanctions requested by

Respondent should not be granted.

41. Monetary sanctions are appropriate in this case and

commensurate with the offense. Dismissal and the preclusion of

evidence are neither appropriate nor adequate sanctions because

Petitioner did not appear at the administrative hearing and did

not present any evidence. Respondent's counsel was required by

law and the rules of ethics to make every reasonable effort to

prepare an adequate defense of her client for presentation at the

administrative hearing.

42. Dismissal is not appropriate for other reasons. The

Commission reversed a previous dismissal in this case and

remanded the case in an effort to ensure Petitioner's right to

represent herself. After the remand, Petitioner sought

additional time to obtain counsel. Relevant orders allowed

Petitioner additional time to obtain counsel; afforded Petitioner

the right to represent herself during discovery, in accordance

with the purpose of the Remand; and attempted to balance the

competing interests of the parties.

CONCLUSIONS OF LAW

43. DOAH has jurisdiction over the parties and the subject

matter in this proceeding. The parties received adequate notice

of the administrative hearing. Section 120.57(1).

Time Limits

44. Section 760.11(3), in relevant part, provides that the

Commission "shall determine," within 180 days from the date that

an aggrieved party files a Charge of Discrimination, whether

there is reasonable cause to believe a discriminatory practice

has occurred. If the Commission issues a determination of

reasonable cause within the 180-day time limit and the aggrieved

party wishes to pursue the claim, Section 760.11(4)(a) and (b),

respectively, authorizes the aggrieved party to either bring a

civil action in court or request an administrative hearing; but

not both. Section 760.11(5) and (7), respectively, requires the

civil action or request for administrative hearing to be filed

within one year or 35 days of the date the Commission determines

reasonable cause.

45. If the Commission does not determine reasonable cause

within 180 days, Section 760.11(8) authorizes an aggrieved party

to file either a civil action or request for administrative

hearing as if the Commission had determined reasonable cause

within the 180-day time limit in Section 760.11(3). However,

Section 760.11 is silent as to the point at which the one-year

and 35-day filing requirements in Section 760.11(5) and (7) begin

to run when the Commission fails to act within 180 days.

46. The one-year and 35-day filing requirements in Section

760.11(5) and (7) begin to run at the same point. Both filing

requirements were enacted in the same act and relate to the same

subject matter, i.e., time limits applicable to the mutually

exclusive remedies authorized in Section 760.11(4)(a) or (b).

Joshua v. City of Gainesville , 734 So. 2d 1068, 1069-1070 (Fla.

1st DCA 1999). The filing requirements in Section 760.11(5) and

(7) are imbued with the same spirit, are actuated by the same

policy, and must be considered in pari materia in a manner that

harmonizes them and gives effect to legislative intent for the

entire act. See , e.g. , Major v. State , 180 So. 2d 335, 337 (Fla.

1965); Abood v. City of Jacksonville , 80 So. 2d 443, 444-445

(Fla. 1955); Tyson v. Stoutamire , 140 So 454, 456 (Fla. 1932);

Agency for Health Care Administration v. Wingo , 697 So. 2d 1231,

1233 (Fla. 1st DCA June 27, 1997); Armas v. Ross , 680 So. 2d

1130, 1130 (Fla. 3d DCA 1996); State Farm Mutual Automobile

Insurance Company v. Hassen , 650 So. 2d 128, 133 n. 5 (Fla. 2d

DCA 1995); Schorb v. Schorb , 547 So. 2d 985, 987 (Fla. 2d DCA

1989); Escambia County Council on Aging v. Goldsmith , 465 So. 2d

655, 656 (Fla. 1st DCA 1985); Jackson v. State , 463 So. 2d 373,

373 (Fla. 5th DCA 1985), reh'g denied .

47. The one-year filing requirement in Section 760.11(5)

begins to run on the first day after the 180-day time limit in

Section 760.11(3). If the Commission issues a determination of

reasonable cause after 180 days or never issues a determination

of reasonable cause, a civil action filed more than one year

after the 180-day time limit is statutorily barred by Section

760.11(5). Joshua , 734 So. 2d at 1070-1071 (question certified

to the Florida Supreme Court) rev. granted 735 So. 2d 1285 (Fla.

1999); Adams v. Wellington Regional Medical Center, Inc. , 727 So.

2d 1139 (Fla. 4th DCA 1999) (question certified to the Florida

Supreme Court); Daugherty v. City of Kissimmee , 722 So. 2d 288

(Fla. 5th DCA 1998); Crumbie v. Leon County School Board , 721 So.

2d 1211 (Fla. 1st DCA 1998); Kalkai v. Emergency One , 717 So. 2d

626 (Fla. 5th DCA 1998); Milano v. Moldmaster, Inc. , 703 So. 2d

1093, 1094-1095 (Fla. 4th DCA 1998). See also Sasser M. and

Stafford S., "Defining the Hourglass: When Is a Claim Under the

Florida Civil Rights Act Time Barred?", 73 Fla. B.J. 68 (Dec.

1999).

48. The 35-day filing requirement in Section 760.11(7) also

begins to run on the first day after the 180-day time limit in

Section 760.11(3). If the Commission issues a determination of

reasonable cause after 180 days or never issues a determination

of reasonable cause, a request for an administrative hearing

filed more than 35 days after the 180-day time limit is

statutorily barred by Section 760.11(7). See , e.g. , Joshua , 734

So. 2d at 1070-1071; Adams , 727 So. 2d at 1139; Daugherty , 722

So. 2d at 288; Crumbie , 721 So. 2d at 1211; Kalkai , 717 So. 2d at

626; Milano , 703 So. 2d at 1094-1095. See also Hall v. Boeing

Aerospace Operation , 20 FALR 2596 (1998); Gessler v. Department

of Business and Professional Regulation , 627 So. 2d 501, 504

(Fla. 4th DCA 1993), reh. denied , dismissed , 634 So. 2d 624 (Fla.

1994)(agency is bound by its administrative orders pursuant to

the doctrine of stare decisis ). Compare Nordheim v. Department

of Environmental Protection , 719 So. 2d 1212, 1214 (Fla. 3d DCA

1998) (agency refusal to consider its prior decision is abuse of

discretion) with Caserta v. Department of Business and

Professional Regulation , 686 So. 2d 651, 653 (Fla. 5th DCA 1996)

(Section 120.53 requirement for subject matter index does not

begin until effective date of 1992 amendment).

49. In this case, Petitioner is deemed to have filed her

Charge of Discrimination on August 31, 1995. Counting

September 1, 1995, as the first day of the 180-day period,

Section 760.11(3) authorized the Commission to issue a

determination of reasonable cause no later than February 27,

1996.

50. The 35-day filing requirement in Sec tion 760.11(7)

began to run in this case on February 28, 1996. Section

760.11(7) required Petitioner to file her request for hearing in

the Petition for Relief no later than April 3, 1996.

51. Petitioner did not file a request for hearing until

September 10, 1997. Petitioner filed the request for hearing 525

days late and 560 days after the 180-day time limit in Section

760.11(3).

Statutory Authority

52. Section 760.11(3) provides that the Commission "shall

determine" reasonable cause within 180 days of the date

Petitioner filed her Charge of Discrimination on August 31, 1995.

The statute does not state that the Commission shall determine

reasonable cause within 180 days or anytime thereafter. After

February 27, 1996, the Commission had no statutory authority to

act. Neither the Commission nor DOAH can adopt an interpretation

of Section 760.11(3) that enlarges, modifies, or contravenes the

180-day time limit prescribed by the legislature. Sections

120.52(8)(c) and 120.58(7)(3)4. See also DeMario v. Franklin

Mortgage & Investment Co., Inc. , 648 So. 2d 210, 213-214 (Fla.

4th DCA 1994), rev . denied , 659 So. 2d 1086 (Fla. 1995) (agency

lacks authority to impose time requirement not found in statute);

Department of Health and Rehabilitative Services v. Johnson and

Johnson Home Health Care, Inc. , 447 So. 2d 361, 362 (Fla. 1st DCA

1984) (agency action that ignores some statutory criteria and

emphasizes others is arbitrary and capricious).

53. Florida Administrative Code Rule 60Y-5.008(1) requires

an aggrieved party to file a Petition for Relief requesting an

administrative hearing within 30 days of service of a Notice of

Determination of No Reasonable Cause. (Unless otherwise stated,

all references to rules are to rules promulgated in the Florida

Administrative Code in effect on the date of this Recommended

Order.) Rule 60Y-5.008(2) provides that the Commission may grant

an extension of time to file a request for hearing upon a showing

of good cause if the aggrieved party files a motion for extension

of time within the 30-day period prescribed in Rule 60Y-5.008(1).

54. Rule 60Y-5.008 expressly limits its scope to cases in

which the Commission issues a determination of reasonable cause.

The express terms of the rule do not reach situations where the

Commission fails to issue a determination of reasonable cause.

Neither the Commission nor DOAH can deviate from Rule 60Y-5.008.

Section 120.68(7)(e)2. An agency's deviation from a valid

existing rule is invalid and unenforceable. Federation of Mobile

Home Owners of Florida, Inc. v. Florida Manufactured Housing

Association, Inc. , 683 So. 2d 586, 591-592 (Fla. 1st DCA 1996);

Gadsden State Bank v. Lewis , 348 So. 2d 343, 346-347 (Fla. 1st

DCA 1977); Price Wise Buying Group v. Nuzum , 343 So. 2d 115, 116

(Fla. 1st DCA 1977).

55. Even if Rule 60Y-5.008 applied to situations in which

the Commission fails to issue a notice of determination in 180

days, the rule's authority to extend the 30-day filing

requirement cannot be construed in a manner that effectively

extends the 180-day time limit in Section 760.11(3). The 30-day

filing requirement in Rule 60Y-5.008 begins to run on the first

day after the 180-day period in Section 760.11(3). Cf . Joshua ,

734 So. 2d at 1070-1071; Adams , 727 So. 2d at 1139; Daugherty ,

722 So. 2d at 288; Crumbie , 721 So. 2d at 1211; Kalkai , 717 So.

2d at 626; Milano , 703 So. 2d at 1094-1095. Petitioner did not

file a motion to extend the 30-day filing requirement within 30

days after the 180-day period.

56. Neither the Commissi on nor DOAH can construe Rule 60Y-

5.008 to enlarge, modify, or contravene the 180-day time limit

the legislature prescribed in Section 760.11(3). A rule cannot

impose a requirement not found in a statute or otherwise enlarge,

modify, or contravene the terms of a statute. See , e.g. ,

DeMario , 648 So. 2d at 213-214 (agency lacked authority to impose

time requirement not found in statute); Booker Creek

Preservation, Inc. v. Southwest Florida Water Management

District , 534 So. 2d 419, 423 (Fla. 5th DCA 1988) (agency cannot

vary impact of statute by creating waivers or exemptions) reh.

denied . Where an agency rule conflicts with a statute, the

statute prevails. Hughes v. Variety Children's Hospital , 710 So.

2d 683, 685 (Fla. 3d DCA 1998); Johnson v. Department of Highway

Safety & Motore Vehicles, Division of Driver's Licenses , 709 So.

2d 623, 624 (Fla. 4th DCA 1998); Willette v. Air Products , 700

So. 2d 397, 401 (Fla. 1st DCA 1997), reh'g denied ; Florida

Department of Revenue v. A. Duda & Sons, Inc. , 608 So. 2d 881,

884 (Fla. 5th DCA 1992), reh'g denied ; Department of Natural

Resources v. Wingfield Development Company , 581 So. 2d 193, 197

(Fla. 1st DCA 1991) reh. denied . See also Capeletti Brothers,

Inc. v. Department of Transportation , 499 So. 2d 855, 857 (Fla.

1st DCA 1987)(rule cannot expand statutory coverage) rev. denied ,

509 So. 2d 1117.

57. The record does not disclose why the Commission failed

to issue a determination of reasonable cause within the 180-day

time limit in Section 760.11(3). The reason may be attributable

to administrative convenience or expediency related to a heavy

caseload that prevents the agency from completing its

investigation within 180 days. However, administrative

convenience or expediency cannot dictate the terms of the time

limits prescribed by the legislature in Section 760.11(3).

Cleveland Clinic Florida Hospital v. Agency for Health Care

Administration , 679 So. 2d 1237, 1241 (Fla. 1st DCA 1996) reh.

denied ; Buffa v. Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA

1995) reh. denied ; Flamingo Lake RV Resort, Inc. v. Department of

Transportation , 599 So. 2d 732, 732 (Fla. 1st DCA 1992).

58. If administrative convenience were allowed to extend

the 180-day time limit prescribed in Section 760.11(3), the

result would subject the statutory time limit to a "manipulable

open-ended time extension. . . ." Cf . Lewis v. Conners Steel

Company , 673 F.2d 1240, 1242 (11th Cir. 1982) (barring Title VII

lawsuit filed outside the 90-day period). Such a result

". . . could render the statutory limitation meaningless." Id.

Jurisdiction

59. Petitioner's claim is statutorily barred by Section

760.11(7). In relevant part, Section 760.11(7) requires that

Petitioner's request for hearing in her Petition for Relief:

. . . must be made within 35 days of the date

of determination of reasonable cause [by the

Commission]. . . . If the aggrieved person

does not request an administrative hearing

within the 35 days, the claim will be barred .

(emphasis supplied)

60. The statutory bar to a claim f iled more than 35 days

after the expiration of the 180-day time limit in Section

760.11(3) is not a jurisdictional bar to Petitioner's claim.

Rather, failure to comply with the 35-day filing requirement in

Section 760.11(7) admits a defense analogous to a statute of

limitations. Milano v. Moldmaster, Inc. , 703 So. 2d 1093, 1094-

1095 (Fla. 4th DCA 1997) reh. en banc clarification and

certification . Accord Joshua , 734 So. 2d at 1068; Adams , 727 So.

2d at 1139; Daugherty , 722 So. 2d at 288; Crumbie , 721 So. 2d at

1211; Kalkai , 717 So. 2d at 626.

61. Florida courts holding that noncompliance with

statutory filing requirements is a jurisdictional bar generally

do so on the basis of specific statutory language. Relying on

language in Section 194.171(6), for example, the Florida Supreme

Court has held that the 60-day filing requirement in Section

194.171(2) is a "jurisdictional statute of nonclaim." Markham v.

Neptune Hollywood Beach Club , 527 So. 2d 814, 815 (Fla. 1988).

Accord Wal-Mart Stores, Inc. v. Day , 742 So. 2d 408, 409 (Fla.

5th DCA 1999); Palmer Trinity Private School, Inc. v. Robbins ,

681 So. 2d 809 (Fla. 3d DCA 1996); Hall v. Leesburg Regional

Medical Center , 651 So. 2d 231 (Fla. 5th DCA 1995); Walker v.

Garrison , 610 So. 2d 716 (Fla. 4th DCA 1992); Markham v.

Moriarty , 575 So. 2d 1307 (Fla. 4th DCA 1991), cert. denied , 502

U.S. 968, 112 S. Ct. 440 (1991); Gulfside Interval Vacations,

Inc. v. Schultz , 479 So. 2d 776 (Fla. 2d DCA 1985), rev. denied ,

488 So. 2d 830 (Fla. 1986). See also Davis v. Macedonia Housing

Authority , 641 So. 2d 131, 132 (Fla. 1st DCA 1994) (the 60-day

filing requirement in Section 194.171(2) is a jurisdictional bar

to an action to contest loss of tax exemption for 1990). Cf.

Pogge v. Department of Revenue , 703 So. 2d 523, 525-526 (Fla. 1st

DCA 1997) (the 60-day filing requirement in Section 72.011(2) is

a jurisdictional bar to an action contesting the assessment of

taxes but was not a jurisdictional bar to an action for a refund

of taxes prior to 1991 when the legislature amended former

Section 72.011(6) to delete express language that Section 72.011

was inapplicable to refunds); Mikos v. Parker , 571 So. 2d 8, 9

(Fla. 2d DCA 1990) (the 60-day filing requirement in Section

194.171 was not a jurisdictional bar to a claim for refund of

taxes assessed in 1989). Compare City of Fernandina Beach v.

Page , 682 So. 2d 573 (Fla. 1st DCA 1996); Joyner v. Roberts , 642

So. 2d 826 (Fla. 1st DCA 1994); and Chihocky v. Crapo , 632 So. 2d

230 (Fla. 1st DCA 1994) (the failure to strictly comply with

statutory notice procedures may toll the running of the 60-day

filing requirement in Section 194.171(2)).

62. Federal courts generally view filing requirements in

discrimination cases as statutes of limitation rather than as

jurisdictional prerequisites to filing suit. For example, 42

U.S.C. Section 2000e-5(f)(1) requires an aggrieved party to file

suit within 90 days after receipt of a right to sue letter from

the Equal Employment Opportunity Commission ("EEOC"). In

Espinoza v. Missouri Pacific Railroad Co. , 754 F.2d 1247, 1250

(5th Cir. 1985), the court held that the 90-day filing

requirement in 42 U.S.C. Section 2000e-5(f)(1) is not a

jurisdictional prerequisite to suit but is a statute of

limitations subject to the doctrine of equitable tolling.

63. The Supreme Court has adopted a similar construction of

the requirement in 42 U.S.C. Section 2000e-16(c) for an aggrieved

party to file suit within 30 days after receipt of a right to sue

letter from the EEOC. In Irwin v. Department of Veterans

Affairs , 498 U.S. 89, 92, 111 S. Ct. 453, 455 (1990), the Court

resolved a conflict between federal appellate courts over whether

a late-filed claim deprived federal courts of jurisdiction. In

Irwin , the Fifth Circuit Court of Appeals had held that federal

courts lacked jurisdiction over claims filed more than 30 days

after receipt of a right to sue letter. Irwin v. Department of

Veterans Affairs , 874 F.2d 1092 (5th Cir 1989). The holding by

the Fifth Circuit was in direct conflict with decisions in four

other courts of appeals. Boddy v. Dean , 821 F.2d 346, 350 (6th

Cir. 1987); Martinez v. Orr , 738 F.2d 1107, 1109 (10th Cir.

1984); Milam v. United States Postal Service , 674 F.2d 860, 862

(11th Cir. 1982); Saltz v. Lehman , 672 F.2d 207, 209 (D.C. Cir.

1982). The Supreme Court held that the 30-day filing requirement

is not jurisdictional but creates a "rebuttable presumption of

equitable tolling." Irwin , 498 U.S. at 95-96, 111 S. Ct. at 457.

Equitable Tolling

64. Florida courts have applied the doctr ine of equitable

tolling to excuse an otherwise untimely initiation of an

administrative proceeding when four requirements are satisfied.

First, the filing requirement is not jurisdictional. Cf .

Environmental Resource Associates of Florida, Inc. v. State,

Department of General Services , 624 So. 2d 330 (Fla. 1st DCA

1993) (Judge Zehmer dissenting, in relevant part, because the 21-

day time limit in that case was "not jurisdictional"); Castillo

v. Department of Administration, Division of Retirement , 593 So.

2d 1116 (Fla. 2d DCA 1992) (remanding the case for equitable

considerations related to the "not jurisdictional" 21-day period

for challenging agency action). Second, the delay is a minor

infraction of the filing requirement. Stewart v. Department of

Corrections , 561 So. 2d 15 (Fla. 4th DCA 1990)(applying the

doctrine to excuse a request for hearing that was one day late);

Environmental Resource , 624 So. at 332-333 (Judge Zehmer's

dissenting opinion found that the delay was a minor infraction).

Third, the delay does not result in prejudice to the other party.

Stewart , 561 So. 2d at 16. Fourth, the delay is caused by the

affected party's being misled or lulled into inaction, being

prevented in some extraordinary way from asserting his or her

rights, or having timely asserted his or her rights mistakenly in

the wrong forum. Machules v. Department of Administration , 523

So. 2d 1132, 1133-1134 (Fla. 1988). See Burnaman, R., "Equitable

Tolling in Florida Administrative Proceedings," 74 Fla. B.J. 60

(February 2000).

65. The first requirement for equitable tolling is the only

requirement that is satisfied in this case. The 35-day filing

requirement in Section 760.11(7) is not a jurisdictional

prerequisite to Petitioner's claim. Irwin , 498 U.S. at 92, 111

S. Ct. at 455; Milano , 703 So. 2d at 1094-1095.

66. The second requirement for equitable tolling is not

satisfied in this case. The delay caused by the failure to

timely file a request for hearing was not a minor infraction but

was significant and lasted 525 days. Vantage Healthcare

Corporation v. Agency for Health Care Administration , 687 So. 2d

306, 307 (Fla. 1st DCA 1997) (refusing to allow filing of letters

of intent one day late in certificate of need process);

Environmental Resource , 624 So. 2d at 331 (court refused to

reverse a final order denying a hearing where the request for

hearing was four days late).

67. The third requirement of the doctrine of equitable

tolling is not satisfied in this case. The delay sought by

Petitioner would prejudice Respondent by adding 525 days to the

580-day time limit prescribed by the legislature in Section

760.11(1)(365 days), Section 760.11(3)(180 days), and Section

760.11(7)(35 days).

68. Petitioner submitted no evidence that the fourth

requirement of the doctrine of equitable tolling was satisfied in

this case. Petitioner failed to show that the delay in filing

her request for hearing was the result of being misled or lulled

into inaction, of being prevented in some extraordinary way from

asserting her rights, or of having timely asserted her rights

mistakenly in the wrong forum. See , e.g. , Perdue v. TJ Palm

Associates, Ltd. , 24 Fla. L. Weekly D1399 (Fla. 4th DCA June 16,

1999) (refusing to remand a denial of a request for hearing where

the recommended order contained findings of fact and conclusions

of law supporting the denial of an untimely request for hearing).

69. Even if the evidence showed that Petitioner had been

lulled into inaction, Petitioner failed to show that she was

lulled into inaction by Respondent. It is mere supposition to

conclude that Petitioner was lulled into inaction by the failure

of the Commission to issue a notice of determination within the

180-day time limit prescribed in Section 760.11(3). Even if the

evidence supported such a finding, the Commission is not a named

party to this proceeding.

70. The doctrine of equitable tolling generally has been

limited to cases in which one party has been lulled into inaction

or prevented from asserting his or her rights by the acts or

omissions of the party's adversary. In Irwin , for example, the

Court held that the doctrine of equitable tolling applied to an

action brought by a discharged government employee against the

government. The Court noted that the doctrine of equitable

tolling generally was limited to situations where a complainant

was induced or tricked by an adversary's misconduct into allowing

a filing deadline to pass. Irwin , 498 U.S. at 96, 111 S. Ct. at

455.

71. The Florida Supreme Court has not limited the doctrine

of equitable tolling to cases in which a party is tricked or

induced by the misconduct of an adversary into allowing a filing

deadline to pass. The Florida Supreme Court has expanded the

doctrine to reach cases where a party allows a filing deadline to

pass through the party's own inadvertence or mistake of law. In

Machules , 523 So. 2d at 1132, the court held that a discharged

agency employee who chose to pursue a claim through union

grievance, and thereby allowed the time limits for requesting a

hearing to lapse, did not waive the right to a hearing.

72. In Machules , the court's expansion of equitable tolling

to inadvertence and mistake of law involved a state agency that

was both a named party and an adversary to the discharged agency

employee. The decision in Machules did not involve a state

agency that was a non-party in a case such as this in which two

or more named parties are adversaries and who are the real

parties in interest. Machules , 523 So. 2d at 1132.

73. Florida appe llate courts have not expanded the doctrine

of equitable tolling beyond the facts in Machules . Florida

appellate courts have applied the doctrine of equitable tolling

in administrative cases involving state agencies that are

adversaries to substantially affected parties. See , e.g. , Mathis

v. Florida Department of Corrections , 726 So. 2d 389 (Fla. 1st

DCA 1999), the court applied (state agency was adversary in claim

for back pay by agency's employee); Avante, Inc. v. Agency for

Health Care Administration , 722 So. 2d 965 (Fla. 1st DCA 1998)

(state agency was adversary in action to recover Medicaid

payments); Unimed Laboratory, Inc. v. Agency for Health Care

Administration , 715 So. 2d 1036 (Fla. 3d DCA 1998)(state agency

was adversary in action to recover Medicaid payments); Haynes v.

Public Employees Relations Commission , 694 So. 2d 821 (Fla. 4th

DCA 1997) (state agency was adversary in employee dismissal

action); Phillip v. University of Florida , 680 So. 2d 508 (Fla.

1st DCA 1996)(state agency was adversary in employee dismissal

action); Abusalameh v. Department of Business Regulation , 627 So.

2d 560 (Fla. 4th DCA 1993)(state agency was adversary in license

revocation proceeding); Environmental Resource , 624 So. 2d at 331

(state agency that was adversary in contract termination case did

nothing to cause four-day delay in filing request for hearing);

Castillo , 593 So. 2d at 1117 (state agency was adversary in

beneficiary's claim for retirement benefits); Department of

Environmental Regulation v. Puckett Oil Co. , 577 So. 2d 988(Fla.

1st DCA 1991) (state agency was adversary in action seeking

reimbursement of cleanup costs); Stewart , 561 So. 2d 15 (state

agency was adversary in employee dismissal action).

74. Florida courts have been reluctant to extend the

doctrine of equitable tolling to administrative cases in which a

state agency is only a nominal party rather than an adversary to

the affected party. In Vantage Healthcare , 687 So. 2d at 307, a

state agency awarded a certificate of need to an applicant after

allowing the applicant to file its letter of intent one day late.

The agency applied the doctrine of equitable tolling to extend

the filing deadline by one day. The court held that the doctrine

of equitable tolling does not apply to the certificate of need

application process because the application process:

. . . is not comparable to . . . judicial or

quasi-judicial proceedings. We have found no

authority extending the doctrine of equitable

tolling to facts such as in the present case.

Cf . Perdue , 1999 WL 393464 (Fla. 4th DCA 1999) (refusing to apply

the doctrine of equitable tolling to extend the deadline for

challenging a notice of intent to issue a conceptual permit

approving overall master project design).

75. Unlike the state agency in Vantage Healthcare , the

Commission is not a party to this proceeding. Assuming arguendo

the evidence showed that the Commission's failure to issue a

written notice within the 180-day time limit in Section 760.11(3)

lulled Petitioner into inaction, application of the doctrine of

equitable tolling to the facts in this case would extend the

doctrine to administrative proceedings in which a party is lulled

into inaction by the inaction of a non-party.

Clear Point of Entry

76. The clear point of entry doctrine is a judicial

doctrine that requires state agencies to provide parties who are

substantially affected by proposed agency action with a clear

point of entry to formal or informal proceedings authorized in

Chapter 120. The clear point of entry doctrine was first

enunciated in Capeletti Brothers, Inc. v. State, Department of

Transportation , 362 So. 2d 346, 348 (Fla. 1st DCA 1978), cert.

denied , 368 So. 2d 1374 (Fla. 1979). Since 1979, the doctrine

has been followed by Florida courts. See , e.g. , Environmental

Resource , 624 So. 2d at 331-332 (concurring opinion of Judge

Ervin); Florida League of Cities, Inc. v. Administration

Commission , 586 So. 2d 397, 413 (Fla. 1st DCA 1991). See also

Southeast Grove Management, Inc. v. McKinness , 578 So. 2d 883

(Fla. 1st DCA 1991); Capital Copy, Inc. v. University of Florida ,

526 So. 2d 988 (Fla. 1st DCA 1988); Lamar Advertising Company v.

Department of Transportation , 523 So. 2d 712 (Fla. 1st DCA 1988);

City of St. Cloud v. Department of Environmental Regulation , 490

So. 2d 1356 (Fla. 5th DCA 1986); Henry v. Department of

Administration, Division of Retirement , 431 So. 2d 677 (Fla. 1st

DCA 1983). See also Shirley S., "In Search of a Clear Point of

Entry," 68 Fla. B.J. 61 (May 1994).

77. An agency provides a clear point of en try to an

affected party by satisfying several fundamental requirements.

First, the agency must notify the affected party of the proposed

agency action. In addition, the notice must inform the affected

party of the right to request an administrative hearing pursuant

to Section 120.57 and inform the affected party of the time

limits within which the party must file a request for hearing.

If the affected party fails to file a request for hearing within

the time prescribed in the clear point of entry, the affected

party waives the right to request a hearing. See , e.g. ,

Environmental Resource , 624 So. 2d at 331-332 (citing Capeletti

Brothers , 368 So. 2d at 348).

78. There is no evidence in this case that the Commission

satisfied the requirements of the clear point of entry doctrine.

Rather, the evidence shows that the Commission did not issue a

determination of reasonable cause, or otherwise issue a notice of

rights, within the 180-day time limit prescribed in Section

760.11(3) or anytime thereafter.

79. T he failure of the Commission to act within the time

prescribed in Section 760.11(3) raises at least four issues. The

first issue is whether Sections 760.11(3), (7) and (8) provide an

aggrieved party with a clear point of entry in the absence of

agency action. If so, the second issue is whether uncertainty,

if any, created by agency inaction can operate to negate the

clear point of entry provided by statute. The third issue is

whether the clear point of entry doctrine operates any

differently in cases in which the state agency is neither an

adversary of the affected party nor a nominal party. If the

doctrine does apply with equal force to such cases, the fourth

issue is whether the inaction of a non-party can effectively

enlarge statutes of limitation intended, in part, to protect the

affected party's adversary.

80. Sections 760.11(3), (7), and (8) provide a clear point

of entry by notifying an aggrieved party that a request for an

administrative hearing must be filed within 35-days of the

earlier of: the determination of reasonable cause; or the 180-day

time limit prescribed in Section 760.11(3). If the Commission

fails to act within 180 days, the 35-day filing requirement in

Section 760.11(7) begins to run immediately after the 180-day

time limit in Section 760.11(3). Cf. Joshua , 734 So. 2d at

1068); Adams , 727 So. 2d at 1139; Daugherty , 722 So. 2d at 288;

Crumbie , 721 So. 2d at 1211; Kalkai 717 So. 2d at 626. Any other

construction is unreasonable. Milano , 703 So. 2d at 1093.

81. Agency actio n taken after the 180-day time limit in

Section 760.11(3) is neither statutorily authorized nor

statutorily required as a prerequisite of the 35-day filing

requirement in Section 760.11(7). In the absence of agency

action by the Commission, Section 760.11(8) authorizes an

aggrieved party to proceed under Section 760.11(4) as if the

Commission had issued a notice of determination within the 180-

day time limit in Section 760.11(3).

82. The inaction of the Commission cannot enlarge, modify,

or contravene the terms of a statute. An agency cannot impose by

inaction or other practice a requirement not found in a statute

or otherwise enlarge, modify, or contravene the terms of a

statute. See , e.g. , DeMario , 648 So. 2d at 213-214 (agency

lacked authority to impose time requirement not found in

statute); Booker Creek , 534 So. 2d at 423. If an agency rule or

practice conflicts with a statute, the statute prevails. Hughes ,

710 So. 2d at 685; Johnson 709 So. 2d at 624; A Duda & Sons, 608

So. 2d at 884; Wingfield Development , 581 So. 2d at 197.

83. If the Commission is concerned that its rules or

practices may cloud the clear point of entry provided in Sections

760.11(3), (7), and (8), the Commission has no authority to

enlarge the 180-day time limit in Section 760.11(3). However,

the Commission does have authority to issue a written notice of

rights to the parties within the time authorized in Section

760.11(3).

84. Assuming arguendo that the requirements of the clear

point of entry doctrine are not satisfied in the statutory notice

provided in Sections 760.11(3), (7), and (8), the issue is

whether the clear point of entry doctrine operates any

differently in cases such as this one in which the state agency

is neither an adversary to the aggrieved party nor a nominal

party. Courts have most frequently applied the clear point of

entry doctrine in cases involving a state agency that is an

adversary to the affected party. See , e.g. , Florida League of

Cities v. Administration Commission , 586 So. 2d 397, 413 (Fla.

1st DCA 1991); Capital Copy, Inc. v. University of Florida , 526

So. 2d 989 (Fla. 1st DCA 1988); Lamar Advertising Company v.

Department of Transportation , 523 So. 2d 712 (Fla. 1st DCA 1988);

City of St. Cloud v. Department of Environmental Regulation , 490

So. 2d 1356, 1358 (Fla. 1st DCA 1986); Henry v. State, Department

of Administration , 431 So. 2d 677, 680 (Fla. 1st DCA 1983);

Manasota 88, Inc. v. Department of Environmental Regulation , 417

So. 2d 846 (Fla. 1st DCA 1982); Sterman v. Florida State

University Board of Regents , 414 So. 2d 1102 (Fla. 1st DCA 1982).

85. Less frequently, courts have applied the clear point of

entry doctrine in cases involving a state agency that is a

nominal party but not an adversary to the affected party. In a

certificate of need case, for example, the court held that

failure of the state agency to notify competing hospitals that

the hospital-applicant had submitted a revised application

denied competing hospitals of a clear point of entry. NME

Hospitals, Inc. v. Department of Health and Rehabilitative

Services , 492 So. 2d 379, 384-385 (Fla. 1st DCA 1986) (opinion on

Motion for rehearing), reh. denied . In another certificate of

need case, the court refused to extend the time limits in a clear

point of entry for an applicant to file its letter of intent.

Vantage Healthcare , 687 So. 2d at 308 (refusing to apply

equitable tolling to the certificate of need process).

86. At least one court has applied the clear point of entry

doctrine in a case in which the state agency was neither an

adversary to the affected party nor a nominal party. In a

proceeding between a fruit dealer and the grower, the court held

that the failure of the dealer to request a hearing within the

time limit prescribed in a statutorily required agency notice

waived the dealer's right to a de novo hearing. Southeast Grove

Management, Inc. v. McKiness , 578 So. 2d 883, 886 (Fla. 1st DCA

1991).

87. Unlike the statutory requirement for agency notice in

Southeast , nothing in Section 760.11 requires agency action after

180 days as a prerequisite to the 35-day filing requirement in

Section 760.11(7). If the Commission fails to complete its

investigation and issue a notice of rights within 180 days,

Section 760.11(8) authorizes an aggrieved party to proceed under

Section 760.11(4) as if the Commission had issued a notice of

rights within the 180-day time limit.

88. The Commission can accelerate the point at which the

35-day filing requirement begins to run by issuing a notice of

determination in less than 180 days. However, the Commission has

no statutory authority to delay the point at which the 35-day

requirement begins to run by acting beyond the 180-day time limit

in Section 760.11(3) or by failing to act altogether.

Equitable Estoppel

89. The do ctrine of equitable estoppel is distinguishable

from the doctrine of equitable tolling. The latter doctrine is

concerned with the point at which a limitations period begins to

run and with the circumstances in which the running of the

limitations period may be suspended. Morsani v. Major League

Baseball , 739 So. 2d 610, 614-615 (Fla. 2d DCA 1999). Equitable

estoppel comes into play only after the limitations period has

run and addresses the circumstances in which a party is estopped

from asserting the statute of limitations as a defense to an

admittedly untimely action. Id. See also Ovadia v. Bloom , 2000

WL 227961 (Fla. 3d DCA March 1, 2000).

90. Like equitable tolling, equitable estoppel can be

applied to a state agency where the state agency is a named party

and an adversary to the affected party. Tri-State Systems, Inc.

v. Department of Transportation , 500 So. 2d 212, 215 (Fla. 1st

DCA 1986). A party must specifically plead equitable estoppel in

administrative cases. University Community Hospital v.

Department of Health and Rehabilitative Services , 610 So. 2d

1342, 1346 (Fla. 1st DCA 1992). Equitable estoppel does not

apply in cases where the delay is caused by a mistake of law.

Council Brothers, Inc. v. City of Tallahassee , 634 So. 2d 264,

266 (Fla. 1st DCA 1994); Dolphin Outdoor Advertising v.

Department of Transportation , 582 So. 2d 709, 710 (Fla. 1st DCA

1991); Tri-State , 500 So. 2d 216. Equitable tolling may apply in

cases where the delay is caused by mistake of law or

inadvertence. See , e.g. , Machules , 523 So. 2d at 1134 (pursuing

claim through union grievance procedure instead of requesting

hearing tolls the clear point of entry).

Discrimination

91. If the doctrines of equitable tolling, estoppel, or

clear point of entry were applied to this case to enlarge the 35-

filing requirement in Section 760.11(7) by 525 days, the

doctrines would not change the outcome of this case. Petitioner

failed to satisfy her burden of proof.

92. Section 760.10(1), in relevant part, makes it a n

unlawful employment practice for Respondent to discriminate

against Petitioner because of Petitioner's age. Chapter 760,

entitled the Florida Human Relations Act (the "Act"), adopts the

legal principles and judicial precedent set forth under Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C., Section

2000e et seq. (the "ADA").

93. The initial burden of proof is on Petitioner. Florida

Department of Transportation vs. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); Balino vs. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

Petitioner must satisfy her burden of proof by a preponderance of

the evidence. Section 120.57(1)(g).

94. Petitioner must establish a prima facie case of

discrimination. Rosenbaum v. Souhtern Manatee Fire and Rescue

District , 980 F.Supp 1469 (M.D. Fla. 1997); Andrade v. Morse

Operations, Inc. , 946 F.Supp 979, 984 (M.D. 1996). Petitioner

must show by a preponderance of evidence that: she is a member

of a protected class; she suffered an adverse employment action;

she received disparate treatment from other similarly situated

individuals in a non-protected class; and that there is

sufficient evidence of bias to infer a causal connection between

her age and the disparate treatment. Id. Failure to establish

the last prong of the conjunctive test is fatal to a claim of

discrimination. Mayfield v. Patterson Pump Company , 101 F.3d

1371 (11th Cir. 1996); Earley v. Champion International Corp. ,

907 F.2d 1077 (11th Cir. 1990).

95. It is uncontroverted that Respondent engaged in an

adverse employment action when Respondent terminated Petitioner's

employment. It is also uncontroverted that Petitioner is a

member of a protected class.

96. Petitioner submitted no direct evi dence of the alleged

discrimination. In the absence of such evidence, Petitioner must

provide sufficient inferential evidence of the alleged

discrimination. Texas Department of Community Affairs v.

Burdine , 450 U.S. 248 (1981); McDonnell Douglas v. Green, 411

U.S. 792 (1973) .

97. Petitioner submitted no evidence. Petitioner failed to

make a prima facie showing that she received dissimilar treatment

from individuals in a non-protected class; that there was any

bias against Petitioner; or that, even if evidence of bias did

exist, it was sufficient to infer a causal connection between

Petitioner's age and the alleged disparate treatment.

Fees and Costs

98. Respondent seeks attorney's fees and costs incurred by

Respondent as a result of Petitioner's failure to comply with the

Discovery Order. Florida Rules of Civil Procedure ("FRCP") Rule

1.370(b)(2) authorizes the undersigned to require the failing

party to pay reasonable expenses caused by the offending party's

failure to comply with a discovery order, or to impose other

sanctions including an order striking pleadings, precluding

evidence, or dismissing the claim.

99. Before imposing any sanction authorized in FRCP Rule

1.370(b)(2), Petitioner must have an opportunity to be heard on

the question of whether her failure to comply with the Discovery

Order was willful or in bad faith. Sizemore v. Ray Gunter

Trucking, Inc. , 524 So. 2d 717 (Fla. 1st DCA 1988); Austin v.

Papol , 464 So. 2d 1339 (Fla. 2d DCA 1985). Petitioner had

adequate notice of her opportunity to show that her failure to

comply with the Discovery Order was not willful or in bad faith.

100. The Discovery Order expressly stated that the

administrative hearing scheduled for February 28, 2000, would

include time for Petitioner to show why her failure to comply

with the Discovery Order was not willful or in bad faith. The

Discovery Order also placed Petitioner on notice of the

consequences of her failure to appear at the administrative

hearing and show by competent and substantial evidence why her

failure to comply with the Discovery Order was not willful or in

bad faith. Paragraph 6 of the Discovery Order stated:

In the absence of competent and substantial

evidence of good cause submitted by

Petitioner, the failure of Petitioner to

timely comply with the requirements of this

Order shall be "equivalent to willfulness or

deliberate disregard of the order [quoting

from the Remand]." Upon Respondent's timely

motion and showing of good cause for imposing

sanctions, such failure by Petitioner shall

subject Petitioner to . . . appropriate

sanctions including the assessment of fees

and costs. . . .

101. The Clerk of DOAH mailed a copy of the Discovery Order

to Petitioner on January 28, 2000. On the same date, the

administrative assistant for the ALJ telephoned Petitioner and

read the contents of paragraphs 1-7 of the Discovery Order. In

addition, Respondent's counsel caused a copy of the Discovery

Order to be posted on the front door of Petitioner's residence on

January 28, 2000. On January 29, 2000, Respondent's counsel

hand-delivered a copy of the Discovery Order to Petitioner and

informed Petitioner of the requirements of the Order.

102. Petitioner failed to appear at the administrative

hearing. Petitioner failed to show by competent and substantial

evidence why she failed to appear for her deposition on

February 2, 2000, why she never filed her answers to

interrogatories, why she never filed the documents sought in

Respondent's request to produce, and why she never filed a

Prehearing Statement.

103. Petitioner's failure to comply with the Discovery

Order was willful and in bad faith, equivalent to willfulness and

deliberate disregard of discovery orders, more than neglectful

and inadvertent, and prejudicial to the other party. Cf .

Commonwealth Federal Savings and Loan Association v. Tubero , 569

So. 2d 1271, 1273 (Fla. 1990); Regante v. Belsky , 600 So. 2d 13

(Fla. 2d DCA 1992); In Re: Forfeiture of $20,900.00 , 539 So. 2d

14 (Fla. 1st DCA 1989) (reversing orders striking pleadings and

dismissing cases without a finding that noncompliance was willful

and in bad faith). The prejudice to Respondent included

depriving Respondent of information needed to adequately prepare

for the administrative hearing and depriving Respondent's counsel

of the ability to perform the duties and responsibilities owed to

her client.

104. As a result of Petitioner's willful failure to comply

with the Discovery Order, Respondent incurred attorney's fees and

costs in the aggregate amount of $2,539.40. Monetary sanctions

are reasonable and appropriate in this case and commensurate with

the offense. Dismissal and the preclusion of evidence are

neither appropriate, adequate, nor commensurate with the offense.

Petitioner did not appear and did not present any evidence in

this case. Respondent's counsel was required by applicable law

and the rules of ethics to make every reasonable effort to

prepare an adequate defense for her client and to present that

defense at the administrative hearing.

105. The Comm ission remanded this case on April 5, 1999, to

give Petitioner an opportunity to represent herself. Petitioner

sought additional time to obtain counsel. Relevant orders

allowed Petitioner additional time to obtain counsel, effectuated

the intent of the Remand by affording Petitioner an opportunity

to represent herself during discovery, and attempted to balance

the competing interests of the parties.

106. Petitioner is not subject to a lesser standard of

conduct, as distinguished from legal competence, than a licensed

attorney. A contrary rule would insulate a party from the

consequences of appropriate sanctions whenever a party chose lay

representation. Burke v. Harbor Estate Associates, Inc. , 591 So.

2d 1034, 1037-1038 (Fla. 1st DCA 1991). Accord Dolphins Plus v.

Residents of Key Largo Ocean Shores , 598 So. 2d 324 (Fla. 3d DCA

1992).

107. Petitioner's noncompliance with the Discovery Order is

part of a consistent pattern and practice of noncompliance with

valid orders and with Respondent's good faith attempts to

effectuate discovery at the convenience of Petitioner.

Petitioner's history of noncompliance, delay, and refusal to

pursue her claim evinces a pattern of conduct that is more than

mere neglect or inadvertence. From 1997 to the present,

Petitioner has consistently failed to comply with orders in this

case including the Discovery Order; has failed to make a good

faith effort to comply with other orders including the order to

file a more definite statement; and has consistently frustrated

Respondent's good faith attempts to effectuate discovery at

Petitioner's convenience. See , e.g. , Bailey v. Woodlands

Company, Inc. , 696 So. 2d 459 (Fla. 1st DCA 1997) (repeated

noncompliance with orders is willful noncompliance and warrants

dismissal).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order

dismissing this proceeding as untimely filed; finding that

Respondent did not discriminate against Petitioner; denying

Petitioner's Charge of Discrimination and Petition for Relief;

and imposing monetary sanctions against Petitioner in the

aggregate amount of $2,539.40.

DONE AND ENTERED this 6th day of April, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of April, 2000.

COPIES FURNISHED:

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road, Building F

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road, Building F

Tallahassee, Florida 32303-4149

Janet M. Courtney, Esquire

Lowndes, Drosdick, Doster,

Kantor and Reed, P.A.

215 North Eola Drive

Post Office Box 2809

Orlando, Florida 32802

Margaret H. Wilson

5532C Cinderlane Parkway

Orlando, Florida 32808

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.