STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

Clinton E. Powell, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2098

)

School Board of Escambia )

County, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on September 9, 1992, in Pensacola, Florida, before Diane Cleavinger, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Allen, Esquire

322 West Cervantes Street

P.O. Box 12322 Pensacola, Florida 32581

For Respondent: Joseph L. Hammons, Esquire

17 West Cervantes Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

Whether Petitioner has been the subject of an unlawful employment practice.

PRELIMINARY STATEMENT

On March 23, 1990, Petitioner, Clinton E. Powell, filed a Charge of Discrimination against Respondent, Escambia County School Board, alleging that he had been denied a certain type of light duty employment because of his handicap and race. Subsequent to the Charge of Discrimination, the Florida Commission on Human Relations (FCHR) determined twice that there was no cause to believe that an unlawful employment practice had occurred. On March 31, 1992, Petitioner filed a Petition for Relief, again alleging discrimination based on handicap and race. The Petition for Relief was forwarded to the Division of Administrative Hearings for purposes of conducting a final hearing.

A Initial Order was issued on April 4, 1992, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Order. The Initial Order was sent by United States mail

to the Petitioner and his attorney at the addresses listed in the Petition for Relief and accompanying information from FCHR. Neither party responded to the Initial Order.

On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information.

Petitioner's attorney appeared at the place set for the formal hearing on the date and time specified in the Notice of Hearing. The Respondent was present at the hearing along with its attorney. The Petitioner did not request a continuance of the formal hearing or notify the undersigned that he would not be able to appear at the formal hearing. After waiting fifteen minutes for the Petitioner to appear, the Hearing Officer advised the Petitioner's attorney that since no evidence would be presented to support Petitioner's case, the petion for Relief would be dismissed with a recommendation that the Commission do likewise.

FINDINGS OF FACT

1. On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information.

   
   

2. Petitoner's attorney appeared at the hearing. However, even though Petitioner received adequate notice of the hearing in this matter, the Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Respondent was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned or his attorney that he would not be able to appear at the formal hearing. Petitioner was allowed fifteen minutes to appear at the hearing. As a consequence of Petitoner's failure to appear, no evidence was presented to support Petitioner's case. Specifically, no evidence of discrimination based on handicap or race was forthcoming. Therefore, Petitioner's attorney was advised that the Petition for Relief would be dismissed and a Recommended Order entered recommending the Commission do likewise.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to S120.57 (1), F.S,

   
   

4. Chapter 760, Florida Statutes, regulates the area of discriminatory employment practices. Section 760.10(1) and (7) states:

   
   

   1. It is an unlawful employment practice for an employer:

      
      

      1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such

         individual's race, color, religion, sex, national origin, age, handicap, or marital status.

         
         

      2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

         
         

         (7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

         
         

5. Because of the similarity between the Act and Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. Sections 2000e-2000e17, the burden of proof in Title VII cases applies in cases brought under Chapter 760, Florida Statutes. School Board of Leon County v. Hargis, 400 So.2d 103,

   108 (Fla. 1st DCA 1981).

   
   

6. In order to demonstrate a prima facie case of handicap or race discrimination, the Petitioner must prove by a preponderance of the evidence:

1. Petitioner was a member of a protected class;

   
   

2. Petitioner was qualified for and able to perform the position sought;

   
   

3. Petitioner was not hired or reasonably accomodated; and

   
   

4. The position was filled by persons outside Petitioner's protected class.

Perryman v. Johnson Products Company, Inc., 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973). Because Petitiner did not appear at the hearing, no evidence was presented which would establish a prima facie case of discrimination. Therefore, Petitioner has failed to carry his burden of proof and the Petition for Relief should be dismissed.

RECOMMENDATION

Based 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 for Relief.

DONE and RECOMMENDED this 14th day of September, 1992, at Tallahassee, Florida.

COPIES FURNISHED:

Robert Allen, Esquire

322 West Cervantes Street

P.O. Box 12322 Pensacola, Florida 32581

Joseph L. Hammons, Esquire

17 West Cervantes Street Pensacola, Florida 32501

Margaret A. Jones Agency Clerk

Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32399-1570

Dana Baird General Counsel

Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32399-1570

DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1992.

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 cleast 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact 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: 92-002098

Orders for Case No: 92-002098