STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUY NORRIS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1722

) CARDINAL APARTMENT MANAGEMENT ) GROUP, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above styled case on November 30, 1990, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: H. Alan Arfken, Esquire

ARFKEN & ELLIOTT

Flatiron Building, Suite 300 707 Georgia Avenue

Post Office Box 6337 Chattanooga, Tennessee 37401

STATEMENT OF THE ISSUES

Whether the Respondent, Cardinal Apartment Management Group, unlawfully discriminated against Petitioner, Guy Norris, on the basis of handicap.

PRELIMINARY STATEMENT

By Petition for Relief, Petitioner charged Respondent with an unlawful employment practice. The case was referred to the Division of Administrative Hearings on March 16, 1990 for a formal administrative hearing by Petitioner after a Determination of No Cause was filed by the Executive Director of the Florida Commission on Human Relations. A Notice of Hearing was issued on April 13, 1990, which scheduled the hearing for May 31, 1990.

After two mutually agreed upon requests for continuance, the hearing was rescheduled for November 30, 1990. The Petitioner was verbally notified of the new hearing date when he requested a continuance of the hearing scheduled for November 8, 1990, to which Respondent had no objection. Petitioner was again notified of the November 30, 1990, hearing date in writing, in accordance with Section 120.57(1), Florida Statutes, at the address furnished by Petitioner.

Three days prior to hearing, Petitioner verbally requested leave to withdraw his case from consideration within the Division of Administrative Hearings. He was informed that his request to withdraw had to be placed in writing before it could be considered by the Hearing Officer. A written request for withdrawal was never submitted, as required by Rule 221-6.036, Florida Administrative Code.

When the hearing convened, Petitioner did not appear to present evidence or to withdraw his case from consideration. Respondent did appear for hearing, with exhibits and witnesses to defend against Petitioner's allegations. Further continuance of the proceeding was opposed by Respondent. Subpoenas served on Petitioner and his wife, which included a request for Petitioner's medical records and other documents concerning injuries suffered or treated since January 1, 1986, were placed in the record. Through its attorney, Respondent asserted that Petitioner and his wife had not been released from the subpoenas, and furthermore, Respondent had never been contacted by Petitioner regarding his most recent desire to withdraw his request for hearing. The last unilateral oral request occurred after the subpoenas were delivered from Respondent.

The hearing proceeded, and the Respondent was allowed to call witnesses and present exhibits in order to preserve the record in this matter, although it was recognized that the Petitioner bears the burden of proof. Respondent presented two witnesses and filed four exhibits. The hearing was recorded through the use of a tape recorder. A transcript of the proceeding was not filed with the Division of Administrative Hearings.

During the hearing, Respondent requested thirty days to file a proposed recommended order. An order further extending the time period for filing until January 30, 1991, was filed on January 2, 1991, after a written motion was filed requesting the additional time. On February 14, 1991, Respondent waived its opportunity to submit a proposed recommended order, and requested that the Recommended Order be issued.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was employed by Respondent as a resident maintenance manager.

   
   

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

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

   
   

4. 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 U.S.C. Section 2000e, et seq. The Florida law prohibiting discrimination based on handicap is found in Section 760.10(1), Florida Statutes.

5. Like plaintiffs in Title VII actions, the Petitioner must bear the burden of persuasion on the ultimate fact of discrimination. Walker v. Ford Motor Company, 684 F.2d 1355 (11th Servs. 1982). By failing to present evidence, Petitioner has not established that discrimination based on handicap occurred. See also: McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); and Anderson v. Lykes Pasco Packing Company, 503 So.2d 1269 (Fla. 2d DCA 1986)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be issued dismissing the Petitioner's charge of discrimination against Respondent.

DONE and ENTERED this 19th day of February, 1991, in Tallahassee, Leon County, Florida.

VERONICA D. DONNELL

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 19th day of February, 1991.

COPIES FURNISHED:

H. Alan Arfken, Esquire ARFKEN & ELLIOTT

Flatiron Building, Suite 300 707 Georgia Avenue

Post Office Box 6337 Chattanooga, Tennessee 37401

Guy Norris

5757 66th Street, North, Lot #33 St. Petersburg, Florida 33709

Ronald M. McElrath, Executive Director Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

Dana Baird, General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

Docket for Case No: 90-001722

Orders for Case No: 90-001722