STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA R. JAMES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6141

)

COCA-COLA FOODS, )

a division of the COCA-COLA COMPANY )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on March 29, 1990 in Apopka, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: No appearance

For Respondent: Gavin S. Appleby, Esquire

Steven T. Breaux, Esquire Paul, Hastings, Janofsky and Walker

4200 Georgia-Pacific Center

133 Peachtree Street, N.E. Atlanta, Georgia

STATEMENT OF THE ISSUES

Whether Petitioner, a member of a protected class, was terminated from her position as an Operator B in the Packaging Department with the Respondent on January 23, 1989 on the basis of her race (Black), in violation of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

By Petition for Relief, dated January 25, 1989, Petitioner charged Respondent with an unlawful employment practice. Respondent denied the allegations. This matter was referred to the Division of Administrative Hearings for a formal hearing under Section 120.57(1), Florida Statutes and Rule 22T- 8.016, Florida Administrative Code. A formal hearing was scheduled for March 29, 1990, in Apopka, Florida.

The Initial Order was mailed to the Petitioner on November 17, 1989 at the address she provided to the Commission. Respondent filed a formal response to the order, however, Petitioner did not file a response. The formal hearing was thereafter scheduled by Notice of Hearing and Initial Prehearing Order, dated

December 13, 1989. Said Order was furnished to the parties in accordance with Section 120.57(1), Florida Statutes, at the addresses furnished to the Division. The prehearing Order instructed the parties to exchange witness lists thirty days prior to the date of the formal hearing Petitioner failed to comply. When contacted by counsel for Respondent she refused to provide them with her list.

Respondent on several occasions attempted to take the deposition of Petitioner, as permitted under Rule 221-6.019, Florida Administrative Code. The deposition was accomplished on March 8, 1990 in Apopka, Florida. Thereafter, Petitioner failed to cooperate with Respondent's counsel in the preparation of a prehearing stipulation, as required in the Order of December 13, 1989, and a unilateral stipulation was filed by Respondent, dated March 23, 1990, with a copy provided to the Petitioner. In accordance with the Order, dated December 13, 1989, the final hearing was convened at the designated location for the hearing: City Counsel Chamber, City Hall, 120 East Main Street, Apopka, Florida, at 9:00 a.m., March 29, 1989. Petitioner was not present. She did, however, leave a typed letter addressed to the Hearing Officer with City Hall personnel which was delivered to the undersigned. The letter was undated but signed by the Petitioner and it indicated that she would be unable to attend the hearing and requested a continuance because she had not retained the services of an attorney.

Thereafter, this Hearing Officer made telephonic contact with the Petitioner at the telephone number that she provided. The Petitioner indicated that she would not attend the hearing because she was presently at work and was seeking the services of an attorney to represent her at the hearing and did not wish to proceed without an attorney to represent her. Petitioner indicated that she was previously aware of the time, date and location of the formal hearing.

The letter, referred to above, has been filed for the record, along with a copy of the Petitioner's witness list which was attached to the letter. A copy has also been provided to the Respondent. Counsel for the Respondent was informed of the substance of the telephone conversation and, he stated that he had personally contacted the Petitioner at 3:30 p.m. on March 28, 1990 and confirmed with her the time, date and location of the formal hearing. Respondent was present and ready to proceed. At 10:00 a.m. when Petitioner had not appeared, Respondent requested by oral motion that the undersigned deny the motion to continuance and enter a recommended order of dismissal. As grounds, Respondent argued that Petitioner, by not appearing for the final hearing, has failed to meet her burden of proof in this matter on all issues pending before this tribunal.

As of the date of this Order, a transcript has not been filed in this matter, and neither party has filed proposed findings of fact.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At the appointed time and place of the formal hearing, Petitioner failed to appear and present any evidence in support of her petition for relief.

   
   

2. Respondent was present and ready to proceed.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to

   subsection 120.57(1), Florida Statutes (1989) and Rule 22T- 8.016(1), Florida Administrative Code.

   
   

4. Under the provisions of Rule 221-6.017, Florida Administrative Code, a continuance may be granted only for good cause shown. Petitioner has failed to demonstrated good cause. This hearing has been scheduled for more than three months. During that time, Petitioner made no effort to retain the services of an attorney, or to comply with the order of the hearing officer. There is no indication that Petitioner was unable to prepare for the hearing or to be present at the appointed time and place.

   
   

5. The State of Florida, under the legislative schedule contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended in 42 USC Section 2000e, et seg. The Florida law prohibiting discrimination base on race is found in Section 760.10(1), Florida Statutes (1989).

   
   

6. Like plaintiffs in Title VII civil actions filed in federal court, the Petitioner must bear the burden of proof on the ultimate fact of discrimination throughout the proceeding. Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982). By presenting no evidence, Petitioner has wholly failed to meet her burden and therefore, cannot prevail. See also: McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973) and Texas Department of Community Affairs v. Burdine,

450 U.S. 248(1981). It is therefore,

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that Petitioner's motion for continuance is DENIED.

RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief filed by Petitioner.

DONE AND ENTERED this 2nd day of April, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1990.

COPIES FURNISHED:

Pamela R. James

102 West Celeste Street Apopka, FL 32703

Gavin S. Appleby, Esquire Steven T. Breaux, Esquire Paul, Hastings, Janofsky and Walker

133 Peachtree Street, NE 42nd Floor

Atlanta, GA 30303

Margaret Jones, Clerk Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32399-1570

Dana Baird, Esquire General Counsel Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32399-1570

Docket for Case No: 89-006141

Orders for Case No: 89-006141