STATE OF FLORIDA

DIVISION OF AEMINISTRATIVE HEARINGS

TONY R. McCRAY, SR., )

)

Petitioner, )

)

vs. ) CASE NO. 85-3026

) AMERICAN FIDELITY INSURANCE COMPANY ) and MANPOWER TEMPORARY SERVICES, )

)

Respondents. )

) ALVIN STREETER, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 85-3027

)

MANPOWER TEMPORARY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, 11, Hearing Officer of the Division of Administrative Hearings, on November 18, 1985.

APPEARANCES

For Petitioners: Frederick J. Gant, Jr., Esquire

322 West Cervantes Street Pensacola, Florida 32501

For Respondent: Karl W. Boyles, Jr., Esquire

Winn & Boyles

322-A South Alcaniz Street Pensacola, Florida 32501

Petitioners filed complaints with the Florida Human Relations Commission (HRC) alleging unlawful discrimination on account of race. The ensuing HRC investigation eventuated in

"DETERMINATION[S]: NO CAUSE" filed August 14, 1985, as to each petitioner. Petitioners then filed petitions for relief from unlawful employment practices, pursuant to Rule 22T-9.08(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So. 2d 754 (Fla. 1st DCA 1985), which the HRC transmitted to the Division of Administrative Hearings in accordance with Section 120.57(1), Florida Statutes (1984 Supp.).

Motion For Continuance Denied

When these cases were called for final hearing, petitioners' counsel restated the same ore tenus motion for continuance that had been denied by order entered November 15, 1985, after a teleconference that date. Counsel advised that he was relying on the same grounds as had been advanced on November 15, 1985, viz.: that petitioners had not, on November 15, 1985, received subpoenas requested from the Division of Administrative Hearings. When asked, on November 15, 1985, how his case would be prejudiced, counsel named a single witness, a physician whose testimony, it was represented, could establish when a certain party ended, a circumstance that might have some bearing on the merits of other cases involving these same parties, Nos. 85-2363 and 85-2618. Counsel for respondents contended that the time the party ended was immaterial. In the absence of the physician, petitioners themselves could have testified on the point, in any event.

The handwritten letter requesting subpoenas was clocked in at the Division of Administrative Hearings on November 12, 1985, shortly after three o'clock in the afternoon; and only reached the hearing officer's secretary on November 14. After telephoning to inquire where to send subpoenas, the hearing officer's secretary mailed them to Frederick C. Gant, Esquire,

322 Cervantes Street, Pensacola, Florida 32501 on the 14th. Although the handwritten letter was dated November 6, 1985, it came from petitioners, not counsel; and counsel never represented that it was actually mailed on that date.

FINDINGS OF FACT

1. After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.

   
   

   CONCLUSIONS OF LAW

   
   

2. Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1983), "to fail or refuse to hire any individual . . . because of such individual's race, color . . . [or] sex." Section 760.10(1)(a), Florida Statutes (1983).

   
   

3. Since petitioners claim intentional race discrimination, the procedural approach set out in McDonald Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Department of Communitv Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), is appropriate. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area.

   
   

4. Initially it is incumbent on petitioners to establish a prima facie case of race discrimination. Petitioners did not, of course, make the requisite prima facie showing. Nor, for that matter, did they prove that respondents, or either of them, employ as many as 15 employees for 20 weeks. See Regency Towers Owners Association, Inc. v. Pettigrew, 463 So. 2d 266 (Fla. 1st DCA 1983).

It is, accordingly, RECOMMENDED:

That the HRC enter a final order denying both petitions.

DONE and ENTERED this 20th day of November, 1985, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1985.

COPIES FURNISHED:

Frederick J. Gant, Esquire

322 West Cervantes Street Pensacola, Florida 32501

Karl W. Boyles, Jr., Esquire Winn & Boyles

322-A South Alcaniz Street Pensacola, Florida 32501

Dana Baird, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240 - Building F.

Tallahassee, Florida 32303

Betsy Howard, Clerk

Human Relations Commission

325 John Knox Road Suite 240 - Building F.

Tallahassee, Florida 32303

Donald A: Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Tallahassee, Florida 32303

Docket for Case No: 85-003026

Orders for Case No: 85-003026