vs. ) CASE NO. 84-3553
Respondent. )
This cause came on for final hearing on April 5, 1985 in Orlando, Florida.
Present were Petitioner, Leroy McDuffie, Jr. who represented himself, pro se and Charles M. Rand, Esquire, attorney for Respondent. The parties waived filing of a transcript.
Has Respondent violated the Human Relations Act of 1977 with regard to Petitioner by an unlawful employment practice?
In the course of hearing several motions and rulings were made which arose out of the prehearing procedural background of the case, which of necessity now become findings of fact.
This cause commenced by "Transmittal of Petition" from the Florida Commission on Human Relations for hearing de novo upon a Petition for Relief filed by Petitioner Leroy McDuffie Jr. from that agency's determination of "no cause" to believe that an unlawful employment practice had occurred in regard to Petitioner and Respondent's employment relationship. Included with that transmittal were copies of all pleadings and jurisdictional papers previously filed with the Commission.
On or about October 25, 1984 Respondent filed with the Division of Administrative Hearings a Motion to Dismiss Petition for Relief from Unlawful Practice for Failure to State a Cause of Action Upon Which Relief May Be Granted, and/or Motion for More Definite Statement.
On or about October 29, 1984 the Commission on Human Relations transmitted to the undersigned a handwritten notice from Petitioner of a change in his mailing address from "159 9th Street, Winter Haven, Florida 32787" to "1600 W. Washington St., Orlando, Florida 32805 PH. No. 425-1851."
The undersigned determined that certificate of service on Respondent's pending Motion to Dismiss recited only Petitioners old address of "159 9th Street, Winter Garden, Florida 32787" and entered a November 5, 1984 Order
requiring re-service of the Motion upon Petitioner at his new address and requiring Respondent to initiate a formal hearing on the motion. The parties were encouraged to use a telephonic conference call. Due to typographical error, a Corrected Order was entered November 8, 1984. The original order was mailed to Petitioner at "1600 W. Washington Street, Orlando, Florida 32805" and the Corrected Order was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32805." Neither was returned to the undersigned by the U.S. Postal Service.
The Motion was re-served by mail to the new address of "1600 W. Washington Street, Orlando, Florida 32805," but Respondent was unable to complete connections for a telephone conference call on a number of occasions, so on December 28, 1985, the undersigned issued a Notice of Motion Hearing to the parties for a date and time certain requiring Petitioner to contact Respondent and for Respondent's attorney to initiate such a call. This Notice was sent to Petitioner at "1600 West Washington Street, Orlando, Florida 32805." It was not returned to the undersigned by the U.S. Postal Service.
At the time scheduled for the telephonic conference call (1:00 p.m., January 9, 1984) Respondent's attorney represented that he had had no contact from Petitioner and had, himself, been unable to reach him by phone. Since in excess of the time permitted by rule for filing of a response by Petitioner had passed, and since notice of the hearing was apparently complete with no response by Petitioner, argument was heard without Petitioner on the line.
An order was entered January 23, 1985 denying Respondent's Motion to Dismiss but requiring that Petitioner file a more definite statement within 30 days. This Order reflects it was mailed to "Leroy McDuffie, Jr., 1600 West Washington Street, Orlando, Florida 32802."
Also on January 23, 1985, the undersigned entered a Notice of Hearing for 11:00 a.m., April 5, 1985 and standard Pre- Hearing Order with detailed instructions cutting off discovery, requiring exchange of witness and exhibit lists, and requiring pre-hearing stipulation or statements by the parties. The Pre- Hearing Order indicates it was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32802" and "159 Ninth Street, Winter Garden, Florida 32787." The Notice of Hearing indicates it was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32802" and "129 Ninth Street, Winter Garden, Florida 32787."
However, based on recollection and standard business procedure in the office of the undersigned, it appears that duplicates of the Order for More Definite Statement and Notice of Hearing and Pre-Hearing Order all of the same date of January 23, 1985 were all mailed to Petitioner together in envelopes addressed to both addresses as set out above. There was no return from either address by the U.S. Postal Service.
Petitioner did not timely comply with the January 23, 1985 Order requiring more definite statement and on March 1, 1985 Respondent moved for entry of sanctions, including but not limited to dismissal. This Motion was served on Respondent at "1600 West Washington Street, Orlando, Florida 32802."
Petitioner did not timely file a response in opposition to the March 1, 1985 motion but by Order of the undersigned dated March 15, 1985, dismissal was still not granted and the sanctions specifically requested were not granted.
The only sanctions imposed by the undersigned in response to the general prayer of Respondent's Motion were that to prevent unfair surprise to Respondent due to lack of a More Definite Statement, Petitioner would not be permitted to call at formal hearing any witnesses other than himself and would not be permitted to submit at formal hearing any documentary evidence; further, Respondent was relieved of filing the Pre-Hearing Statement previously mandated by the Pre-Hearing Order.
Petitioner was further ordered to show cause in writing by March 26, 1985 why his failure to comply with the January 23, 1985 Order requiring More Definite Statement should not be deemed an admission there were no disputed issues of fact and why a Recommended Order of Dismissal ought not to be entered accordingly.
This Order was mailed to Petitioner at "1600 W. Washington Street, Orlando, Florida, 32802" and "129 Ninth Street, Winter Garden, Florida 32787." It was not returned to the undersigned by the U.S. Postal Service from either address.
Petitioner did not timely show cause why this action should not be dismissed.
Petitioner did not timely file a unilateral Pre-Trial Statement as required by the January 23, 1985 Pre-Hearing Order, which portion had not been rescinded by subsequent orders.
Nonetheless, in what may have been an overabundance of caution, the undersigned did not enter a Recommended Order of Dismissal at that point nor did she cancel the hearing scheduled for April 5, 1985.
At the time and place appointed for final formal hearing, Petitioner appeared on his own behalf. Before proceeding into final formal hearing on the merits, the undersigned inquired why the Petitioner had failed to comply with all prior orders and requested he show cause orally why the action ought not to be dismissed.
It was Petitioner's explanation that although he received his mail at "1600 West Washington Street, Orlando, Florida 32805" he had never received any orders or correspondence or papers from the undersigned at that address. Upon inquiry as to how he knew to be at the formal hearing scheduled at that particular time and place, Petitioner said he had only received a phone call from his former residence in Winter Park that morning and so he arrived only at the last moment. The undersigned observed Petitioner arrived some 10 minutes before Respondent's attorney.
Petitioner conceded that with the exception of the last digit of the zip code all orders and Notices had been correctly addressed to "1600 West Washington Street, Orlando, Florida" but maintained he had received none. He permitted the undersigned to examine the papers he had brought with him and indeed no pleadings or orders were included. Petitioner indicated he normally got no mail at the old address but sometimes he had his children pick up his mail there and deliver it to him which would explain why the items mailed to Winter Garden were not returned to the undersigned. Further, by his own admission, someone at the old Winter Park address appears to have opened duplicate mail there and relayed him messages about it. Petitioner apparently does not physically reside at either address, but does intend to receive all his mail at the West Washington Street address. However, Petitioner had no
explanation why the items were not delivered to him or alternatively returned to the undersigned from the 1600 West Washington Street address. Petitioner stated that he had received phone calls and mail from the Respondent's attorney at the old address.
Respondent's attorney stated with one exception everything sent by his office had been sent to "1600 West Washington Street, Orlando, Florida 32802 and nothing had ever been returned to him by the U.S. Postal Service.
In light of all of the foregoing, the undersigned ruled that she must conclude that a last digit zip code error was not sufficient to indicate Petitioner had not timely received all pleadings and orders at the 1600 West Washington Street address, and that having received them and having failed to comply, the sanctions previously imposed would stand.
However, the undersigned also ruled that in light of Petitioner appearing for the hearing, and obviously indicating a controversy of some kind, she would proceed with the formal hearing and allow him to present his own testimony and at the conclusion of his testimony, so as to prevent any surprise to Respondent, the hearing would be continued to allow Respondent to prepare a defense and present it at a subsequent date by bifurcated hearing. This would be done because the Petition had never set out even the disputed issues of material fact and no More Definite Statement had corrected that deficit.
Petitioner refused to be sworn, refused to indicate the issues of material fact in dispute, refused to give testimony and refused to present any evidence at all.
The undersigned explained to Petitioner that the burden of proof was his, that if he put on no case whatsoever he could not prevail and she would have no choice but to enter a Recommended Order of dismissal upon all grounds raised by Respondent, upon failure to prosecute, and upon failure to carry the burden of proof. Petitioner stated he did not care as long as he had an appeal and could get a lawyer to "write it out" and "tell somebody what was going on here."
The undersigned explained that after entry of a Recommended Order she would lose jurisdiction, that the Florida State Commission on Human Relations would then enter a Final Order which might accept, reject or diverge from the Recommended Order and then an appeal could be had to a District Court of Appeal, but that it was in Petitioner's interests to proceed now.
Petitioner moved for a continuance so that he might hire a lawyer, stating he had the money to hire one now that he was working. The undersigned observed that Petitioner had had notice of this hearing since late January and had not hired a lawyer. Petitioner said he had consulted a lawyer who told him to get his papers together but had never gone back to hire that lawyer. The gist of Petitioner's argument on continuance was that a previous continuance had been granted to Respondent by an internal hearing officer or investigator for the Florida Human Relations Commission prior to commencement of this de novo proceeding pursuant to Section 120.57, Florida Statutes. The undersigned concluded Petitioner had had opportunity to hire an attorney if he chose and denied a continuance.
Petitioner again refused to be sworn or to put on any evidence.
Respondent renewed all previous motions and it was stipulated that rulings thereon and the rulings made at the hearing would be incorporated in this Recommended Order.
CONCLUSIONS OF LAW
Although Petitioner requested that his "1600 West Washington Street, Orlando, Florida 32805" address be used, he claims to have received no mail there. While it appears that a 32802 zip code was used on two occasions, this is not sufficient, in light of non-return of any documents by the U.S. Postal service, to establish non-receipt and concomitant good cause for non-compliance with those orders. See Berwick v. Prudential Property and Casualty Ins. Co. 436 So. 2d 239 (Fla. 3d DCA 1983); Scott v. Johnson, 386 So. 2d 67 (Fla. 3d DCA 1980); Drown v. Giffen Industries, Inc., 281 So. 2d 897 (Fla. 1983); Milros-San Souci, Inc. v. Dade County, 296 So. 2d 545 (Fla. 3d DCA 1974), cert. den. mem., 310 So. 2d 744 (Fla. 1975); Smell v. Mayo, 84 So. 2d 581 (Fla. 1956). I find this to be so particularly in light of Petitioner's arrival at the correct time and place for hearing. Accordingly, the imposition of sanctions and denial of continuance were appropriate.
Initially Respondent's Motion to Dismiss was ruled against because, in light of the prior agency investigation, any reasonable person must assume there could not be complete surprise and some latitude is appropriate to these types of proceedings, however the Petition in fact did not meet the requirements of Sections 22T-8.09(2)(d),(e), and (g) and its failure to set out disputed issues of material fact has not been corrected by the required More Definite Statement. This is a de novo proceeding and the undersigned may not go behind the Petition to the agency materials to flesh out an insufficient Petition. The renewed Motion to Dismiss should now be granted.
Petitioner has the burden of proof to go forward and to establish a prima facie case upon his Petition. He elected not to put on any case and therefore this case should be dismissed upon failure to prosecute and failure to carry the burden of proof.
Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Relations Commission enter a Final Order dismissing with prejudice the Petition herein.
DONE and ENTERED this 26th day of April, 1985, in Tallahassee, Florida.
ELLA JANE P. DAVIS
FILED with the Clerk of the Division of Administrative Hearings this 26th day of April, 1985.
Leroy McDuffie, Jr.
Charles M. Rand, Esquire 10th Floor, CNA Building Post Office Box 231 Orlando, Florida 32802
Donald A. Griffin, Executive Director
