STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE RAY WRIGHT, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7661

)

1. C. CONNELL, INC., )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Upon due notice, this cause came on for formal hearing on March 4, 1991 in Tavares, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   FOR PETITIONER: No Appearance

   
   

   FOR RESPONDENT: J. Robert Duggan, Esquire

   Post Office Box 490208 Leesburg, Florida 34749-0208

   
   

   STATEMENT OF THE ISSUE

   
   

   Whether or not an unlawful employment practice pursuant to the Human Rights Act of 1977, Section 760.10 F.S. (1989) has occurred.

   
   

   PRELIMINARY STATEMENT

   
   

   Petitioner, a black male, originally filed a charge of discrimination against his employer on January 1, 1989, charging that on December 9, 1988 he had been terminated by Respondent employer due to racial discrimination.

   
   

   By an October 19, 1990 "Determination," the Florida Commission on Human Relations determined that no reasonable cause existed to believe that an unlawful employment practice had occurred. The Commission determined that Petitioner had established a prima facie case of discrimination but that Respondent had articulated and substantiated nondiscriminatory reasons for the acts complained-of and Petitioner had not shown Respondent's reasons to be pretextual. Petitioner was simultaneously advised by a "Notice of Determination: No Cause" that he had 20 days in which to request reconsideration/redetermination and if redetermination was not requested, the Petitioner might file a Request for Hearing/Petition for Relief within 30 days of the Notice of Determination. Petitioner filed no Request for Redetermination on or before the 20th day but filed his Request for Hearing/Petition for Relief with the Commission on November 8, 1990.

   On December 3, 1990, the Commission referred the matter to the Division of Administrative Hearings (DOAH) for a de novo proceeding pursuant to Section 120.57(1) F.S. Respondent's Answer, pursuant to Rule 22T-9.008(5) F.A.C., was filed with DOAH on December 24, 1990. That answer, in essence, admits the preliminary matters of status of the parties and jurisdiction of the cause but denies all material allegations of discrimination and articulates approximate affirmative defenses of legitimate nondiscriminatory reasons for the actions complained-of, to wit: Respondent's termination of Petitioner is alleged to have been for cause, absent any discriminatory intent.

   
   

   Notice of Hearing was issued on December 28, 1990 for March 4, 1991.

   
   

   FINDINGS OF FACT

   
   

   1. On the Thursday and Friday preceding formal hearing the undersigned attempted to contact Petitioner to determine if he was prepared for formal hearing on March 4, 1991. His phone was in working order, but no one answered at any of several times the call was placed.

      
      

   2. At the date and time of formal hearing, Petitioner did not appear, although the hearing was convened after waiting five minutes. A recess was taken for 15 minutes to permit Petitioner additional time to arrive at the place of formal hearing in the event that he had been unavoidably delayed. After waiting those 15 minutes, the undersigned searched the waiting area outside the hearing room for any black male, and none was found. The undersigned also called her DOAH office to determine if Petitioner had attempted to telephone there with any excuse for his nonappearance; the secretary to the undersigned reported that he had not telephoned.

      
      

   3. At 25 minutes after the appointed hour for commencement of the hearing, Respondent moved for default and/or judgment on the pleadings, and the undersigned indicated that the Recommended Order would reflect, to the same effect, that Petitioner's nonappearance would be deemed withdrawal of his petition.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

      
      

   5. In these types of proceedings, the burden of proof and the duty to go forward are upon Petitioner. Since Petitioner did not appear and offered no reason for nonappearance, it is appropriate to invoke Rule 22I-6.022 F.A.C., which provides, in pertinent part:

      
      

      Failure to appear at final hearing shall be grounds for entry of an order of dismissal or recommended order of dismissal as appropriate.

      
      

   6. This cause therefore should be dismissed and formally disposed of solely upon that ground.

      
      

   7. However, in this cause, the undersigned notes peripherally that both a Petition for Relief and an Answer have been filed and were judgment upon the pleadings to be granted, the pleadings establish only an equipoise (charge and denial). Because Petitioner did not appear and go forward, Respondent is not

required to substantiate the nondiscriminatory reasons for the termination it has articulated in its affirmative defenses. Therefore, even in the absence of Rule 22I-6.022 F.A.C., the same result would be appropriate upon Respondent's motion.

RECOMMENDATION

Accordingly, upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition herein.

DONE and ENTERED this 13th day of March, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 13th day of March, 1991.

COPIES FURNISHED:

J. Robert Duggan, Esquire Howell, Taylor & Duggan, P.A. Post Office Box 490208 Leesburg, FL 34749-0208

Willie Ray Wright

2311 Griffin Road, Apt. A-4 Leesburg, FL 32748

Dana Baird, General Counsel Florida Commission on Human

Relations

Building F, Suite 240

325 John Knox Road Tallahassee, FL 32399-1570

Ronald M. McElrath Executive Director

Florida Commission on Human Relations

325 John Knox Road Tallahassee, FL 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007661

Orders for Case No: 90-007661