Machules v. Department of Admin.

• Citation: 523 So.2d 1132,13 Fla. L. Weekly 239
• Decision Date: 31 March 1988
• Docket Number: No. 70311,70311
• Parties: 13 Fla. L. Weekly 239 John J. MACHULES, Petitioner, v. DEPARTMENT OF ADMINISTRATION, Respondent.
• Court: United States State Supreme Court of Florida

Page 1132

523 So.2d 1132

13 Fla. L. Weekly 239

John J. MACHULES, Petitioner, v. DEPARTMENT OF ADMINISTRATION, Respondent.

No. 70311.

Supreme Court of Florida.

March 31, 1988.

Ben R. Patterson of Patterson and Traynham, Tallahassee, for petitioner.

Augustus D. Aikens, Jr., Gen. Counsel, Dept. of Admin., Tallahassee, for respondent.

BARKETT, Justice:

We have for review Machules v. Department of Administration, 502 So.2d 437 (Fla. 1st DCA 1986), in which the district court certified the following as a question of great public importance:

May the tolling doctrine espoused in federal administrative law decisions be applied to toll the time for seeking review with the Department of Administration without being in conflict with the decision in Hadley v. Department of Administration, 411 So.2d 184 (Fla.1982), and other decisions upholding the validity of the presumption of abandonment and 20 day time requirement in rule 22A-7.10(2)?

Id. at 440. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question in the affirmative and quash the decision of the district court.

Petitioner John Machules was employed as a Special Investigator for the Department of Insurance ("Employer"). He missed three consecutive workdays due to alcoholism. On February 4, 1985, he was notified by the Employer that he had been terminated from his employment by reason of abandonment under Rule 22A-7.10(2), Florida Administrative Code (1985). ¹ He was informed that he had the right to appeal to the Department of Administration (DOA) within twenty days.

Machules took the notice to his union representative, the American Federation of State, County and Municipal Employees ("AFSCME"), which filed a contractual grievance on his behalf on February 4, 1985. The Employer set a hearing date of February 25 on the grievance. The hearing was held and the grievance subsequently denied on the ground that it was not cognizable under the labor agreement and could only be appealed to the DOA under the provisions of Rule 22A-7.10(2).

The union immediately appealed to DOA, requesting that the twenty-day time limitation be tolled for the period during which the grievance was being pursued and noting that the Employer had set the grievance hearing for February 25, the day after the appeal period had expired. The appeal was rejected as untimely and outside the agency's jurisdiction. Machules filed a petition for rehearing, again arguing that the Employer's participation in the grievance process led him to believe that the grievance procedure was the appropriate method of review and supporting his disagreement with the Employer's finding of abandonment with evidence indicating that the Employer had authorized his absence from work on the third day. The rehearing was denied, and Machules appealed to the First District, asserting that he should be permitted to file a late appeal under the doctrine of equitable tolling. A majority of the district court disagreed, but certified the question as one of great public importance.

The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period. ² See Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1874). The tolling doctrine is used in the interests of justice to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing. Equitable tolling is a type of equitable modification which " 'focuses on the plaintiff's excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant.' " Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir.1987) (quoting Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.1981)). Contrary to the analysis of the majority below, equitable tolling, unlike estoppel, does not require active deception or employer misconduct, but focuses rather on the employee with a reasonably prudent regard for his rights. Id. See also Doi, Equitable Modification of Title VII Time Limitations to Promote the Statute's Remedial Nature: The Case for Maximum Application of the Zipes Rationale, 18 U.C. Davis L.Rev. 749, 779-80 (1984) (waiver and estoppel generally based on employer's actions, whereas tolling may arise out of broader range of events). As Judge Zehmer notes in his dissent below:

The doctrine [of equitable tolling] serves to ameliorate harsh results that sometimes flow from a strict, literalistic construction and application of administrative time limits contained in statutes and rules.

502 So.2d at 446.

Although there is no Florida decision pertaining to the application of the tolling doctrine in administrative proceedings, federal courts have applied it in many differing contexts.

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. See, e.g., Burnett v. New York Central R.R., 380 U.S. 424, 428-30, 85 S.Ct. 1050, 1054-55, 13 L.Ed.2d 941 (1965) (wrong forum); Miller v. Marsh, 766 F.2d 490, 493 (11th Cir.1985) (lulled into pursuing other channels by official action); Martinez v. Orr, 738 F.2d 1107, 1112 (10th Cir.1984) (misled or lulled into inaction); Dartt v. Shell Oil Co., 539 F.2d 1256, 1261-62 (10th Cir.1976), aff'd 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977) (lulled into inaction); Frabutt v. New York, Chicago & St. Louis R.R. Co., 84 F.Supp. 460 (W.D.Pa.1949) (war); Osbourne v. United States, 164 F.2d 767, 769 (2d Cir.1947) (war). Other courts have recognized the doctrine but refused to apply it under the circumstances. See Electrical, Radio & Machine Workers Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976); School District v. Marshall, 657 F.2d 16 (3d Cir.1981); Smith v. American President Lines, Ltd., 571 F.2d 102 (2d Cir.1978).

We find the doctrine of equitable tolling applicable under the facts of this case for two reasons: petitioner was misled or lulled into inaction by his Employer, and his appeal to DOA raised the identical issue raised in the original timely claim filed in the wrong forum.

First, we agree with petitioner's contention that although he erred in filing a grievance instead of an appeal, his Employer countenanced and acquiesced in the error by participating in the grievance process until after the appeal period had run. We find the Employer's actions in this instance sufficiently misled petitioner so as to excuse his failure to timely file in the appropriate forum. This is not a case of mere inaction in the face of petitioner's mistake. The hearing was not set by an automatic process with a form letter. Rather, the record before us indicates knowledge on the part of the Employer of the specific facts of petitioner's situation, and communication by the Employer to petitioner based upon that knowledge. In a letter dated February 21, 1985 to Machules' union representative, the Employer stated:

This is a follow-up to our telephone conversation today in which we discussed the scheduling of a Step 2 grievance meeting concerning Mr. John Machules' separation from the Department of Insurance.

As agreed, the meeting is scheduled for 11:00 a.m., Monday, February 25, 1985, at the Tampa Service Office, Suite 809, 1313 North Tampa Street, Tampa, Florida, Phone 272-2330.

Our Step 2 agency representative is Mr. Dennis Silverman. Mr. Silverman will be accompanied by Mr. Bill Canova, Director of Insurance Consumer Services, and Mr. Joe Townsend, Investigator Administrator.

Should you have any questions concerning this matter, please contact me....

We do not find it unreasonable to excuse Machules, a layperson, from clearly understanding which avenue of review to pursue when the Employer itself acquiesced in the procedure chosen. ³ We note that both the Employer and the union failed to determine that the grievance procedure was inappropriate until it was too late. Clearly, this is a factor to be considered. Several courts have allowed tolling, partly because the plaintiff was acting without counsel or the untimely filing was due to attorney ineptitude. See, e.g., Martinez, 738 F.2d at 1111; Dartt, 539 F.2d at 1262; Volk v. Multi-Media, Inc., 516 F.Supp. 157, 162 (S.D. Ohio 1981). But see Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1200 n. 8 (5th Cir.1975).

In Martinez, the claimant had received notice informing him of his right to file a civil action within thirty days as well as his right to request that his EEOC complaint be reopened. During the process of requesting reopening and reconsideration by the EEOC, he missed the deadline for filing a civil suit. The court noted that "the notice says only that suit may be filed within thirty days; it does not specify that this period represents the claimant's one and only opportunity to file suit." Under these circumstances, the court reasoned that equitable tolling was appropriate:

To be sure, a trained lawyer or a particularly prudent and savvy layperson might recognize the inviolability of the thirty-day deadline and thus would be certain to preserve the right to sue by taking both actions simultaneously. However, the protections of Title VII were not intended only for the prudent, the savvy, or the legally trained.... [W]e do not think it unreasonable for a pro se recipient of the notice to request EEOC reconsideration on the assumption that if the request were denied, a new thirty-day period within which to file suit would arise thereafter.

738 F.2d at 1111.

We also find petitioner entitled to relief because he made identical claims in both administrative proceedings. We agree with petitioner that the rationale of Burnett is applicable to the circumstances now before us...