STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RHONDA WOLFE, )

)

Petitioner, )

)

vs. ) Case No. 99-3008

) AMERICAN MORTGAGE SECURITIES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice issued on August 4, 1999, the final hearing in this case was convened on September 13, 1999, in Clearwater, Florida, before Carolyn S. Holifield, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: J.R. Stirling, President

American Mortgage Securities 601 Cleveland Street, Suite 370

Clearwater, Florida 34615 STATEMENT OF THE ISSUES

Whether Respondent was guilty of sexual harassment and constructive discharge of Petitioner.

PRELIMINARY STATEMENT

In July 1997, Petitioner, Rhonda Reed, f/k/a Rhonda Wolfe, filed a complaint with the Clearwater Human Relations Department alleging that Respondent, American Mortgage Securities, had

discriminated against her in violation of Title VII of the Civil Rights Act of 1964, as amended; the Florida Civil Rights Act of 1992; and Chapter 70 of the Pinellas County Code, on the basis of sexual harassment and constructive discharge. The Clearwater Human Relations Department conducted an extensive investigation of the allegations and, thereafter, by letter dated April 26, 1999, advised Petitioner that as a result of the investigation, it "found a reasonable cause to credit allegations in the charge." The letter advised Petitioner that under the Department's procedures, "once a reasonable cause finding has been made, there is an immediate attempt to remedy the alleged harm through discussion and mediation." A conciliation conference was scheduled for May 27, 1999, but on or about May 6, 1999, Petitioner declined to participate in such conference indicating that she did not believe that the matter could be resolved through conciliation efforts.

Thereafter, on July 12, 1999, the matter was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the hearing. The case was assigned to Administrative Law Judge, J. Lawrence Johnston, who issued the aforementioned Notice of Hearing, a Prehearing Order, and an Amended Prehearing Order. Prior to the date of the hearing, the case was transferred to the undersigned.

The Amended Prehearing order required the parties to confer and prepare a prehearing stipulation and to file the stipulation

no later than September 10, 1999. Pursuant to the Amended Prehearing Order, on September 9, 1999, Respondent filed a unilateral response to the Amended Prehearing Order, which indicated that numerous attempts had been made to contact Petitioner, but that these efforts were unsuccessful. In that response, Respondent also requested that the case be dismissed based on Petitioner's failure to comply with the Amended Prehearing Order and to cooperate with Respondent in discovery matters.

Petitioner failed to appear at hearing, and no evidence was presented on her behalf. In light of Petitioner's failure to appear, the undersigned granted Respondent's request for dismissal, and on September 21, 1999, the undersigned issued a Recommended Order of Dismissal, which was forwarded to the City of Clearwater.

By letter dated December 22, 1999, the Pinellas County Office of Human Rights remanded the matter to the Division of Administrative Hearings for issuance of a final order in accordance with applicable amendments to provisions of Chapter 70 of the Pinellas County Code.

According to the letter, after the Recommended Order of Dismissal was issued, the Clearwater Community Relations Board, the administrative body formerly authorized to issue final orders, lost its authority under an interlocal agreement with Pinellas County to issue final decisions under the Pinellas

County Human Rights Ordinance. The letter further advised that "as a result of the modification of the interlocal agreement, a final order has not been issued, and the complaint remains open."

Finally, the letter noted that on December 7, 1999, the Board of County Commissioners amended the County's Human Rights Ordinance to provide that the Administrative Law Judge now has the authority to issue final orders in cases involving housing and employment discrimination.

FINDINGS OF FACT

Based on the representations of Petitioner and on the entire record in this matter, the following findings of fact are made.

1. In July 1997, Petitioner, Rhonda Wolfe, filed a complaint with the Clearwater Human Services Department (Department) alleging that Respondent, American Mortgage Securities (Respondent), had discriminated against her in violation of Title VII of the Civil Rights Act of 1964, as amended; the Florida Civil Rights Act of 1992; and Chapter 70 of the Pinellas County Code, on the basis of sexual harassment and constructive discharge. Petitioner's complaint was assigned PCO No. 9707-02715.

2. At the time relevant to this proceeding, pursuant to a contractual agreement, the Department was authorized to investigate cases involving charges of housing and employment discrimination. Consistent with this responsibility, the Department investigated Petitioner's complaint and, thereafter,

   concluded that there was reasonable cause to believe the allegations contained therein.

3. By letter dated April 26, 1999, the Department advised Petitioner of its findings and offered her the opportunity to attempt to resolve the issues by mediation. Petitioner declined to participate in a conciliation conference set up by the Department to facilitate resolution of the issue.

4. Because Petitioner declined to participate in a conciliation conference involving her case, PCO No. 9707-02715, on July 12, 1999, the matter was referred to the Division of Administrative Hearings in compliance with Chapter 70 of the Pinellas County Code.

5. On August 4, 1999, J. Lawrence Johnston, a duly- appointed Administrative Law Judge of the Division of Administrative Hearings, initially assigned to the case, noticed the matter for hearing upon the issue of whether Respondent was guilty of sexual harassment and constructive discharge. Pursuant to the Notice of Hearing, a formal hearing in this matter was set for 9:30 a.m., September 13, 1999, at City Hall in Clearwater, Florida.

6. The Amended Prehearing Order issued on September 9, 1999, required the parties to confer and 1) discuss the possibility of settlement; 2) draw up a prehearing stipulation;

   3) examine and number all exhibits and documents proposed to be introduced into evidence at hearing; and 4) furnish opposing

   counsel the names and addresses of all witnesses. Moreover, the Amended Prehearing Order required Petitioner to file a prehearing stipulation on September 10, 1999.

7. Petitioner failed to comply with the provisions of the Prehearing Order.

8. Respondent was present for the hearing and timely filed a unilateral prehearing stipulation.

9. Petitioner failed to appear in person at the hearing. At about 10:15 a.m., 45 minutes after the hearing was set to convene, after the undersigned initiated several calls, Petitioner was reached at her current place of employment.

10. In response to inquiries by the undersigned, Petitioner acknowledged that she had received the above-referenced Notice of Hearing and the Amended Prehearing Order. Moreover, Petitioner stated that she had received a message left on her answering machine on September 10, 1999, by the undersigned's assistant advising her that, pursuant to the Amended Prehearing Order, the prehearing stipulation was to be filed by the close of business that day.

11. Although Petitioner received the Notice of Hearing and the Amended Prehearing Order and the telephone message regarding that Order, Petitioner failed to appear at the hearing and to comply with the Amended Prehearing Order. When she was contacted by telephone the day of the hearing, Petitioner stated that she did not come to the hearing because she had recently started a

    new job and did not want to take time off from the job.

    
    

    Moreover, Petitioner indicated that she failed to comply with the Amended Prehearing Order because she had not had time.

12. The Notice of Hearing provided that continuances would be granted only for good cause. Furthermore, the Notice of Hearing provided that failure to appear at hearing shall be grounds for dismissal of the petition or entry of a default order. The Amended Prehearing Order provided that failure to comply with the requirements of that Order may result in cancellation of the hearing or issuance of an order to show cause why Petitioner should not be dismissed or a default order entered.

13. Based on a complete review of the record in this case, it is found that Petitioner never filed a motion to continue the final hearing. Furthermore, it is found that the reason articulated by Petitioner for not appearing at the final hearing in this matter does not constitute good cause.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes, and Section 70-77(g)(13), Pinellas County Code.

15. Section 70-53(1)(a), Pinellas County Code, provides that it is a discriminatory practice for an employer to

    1. Fail or refuse to hire, discharge, or otherwise discriminate against an individual

       with respect to compensation or the terms, conditions, or privileges of employment because of race, color, religion, national origin, sex, age, marital status, or disability . . . .

       
       

16. In the instant case, Petitioner filed a Complaint alleging that Respondent had violated the above provision as well as other related federal and state laws.

17. Petitioner has the burden of proof in this proceeding. In order to prevail, Petitioner must prove the underlying factual allegations by a preponderance of the evidence. By failing to appear at hearing and offer any evidence, Petitioner failed to meet her burden. Moreover, by Petitioner's unexcused failure to participate she has waived further administrative proceedings.

18. In accordance with the language in the Notice of Hearing, Petitioner's failure to appear at the final hearing is grounds for entry of a final order of dismissal.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that Petitioner's Complaint, PCO No. 9707-02715, be dismissed.

DONE AND ORDERED this 30th day of March, 2000, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2000.

COPIES FURNISHED:

Leslie K. Dougall-Sides, Esquire City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

J. R. Stirling, President American Mortgage Securities 601 Cleveland Street, Suite 370 Clearwater, Florida 34615

Carol Tresca, Human Relations Specialist City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Rhonda Reed, f/k/a Rhonda Wolfe 8635 Fox Hollow Drive

Port Richey, Florida 34668

Leon W. Russell, EEO Officer

Pinellas County Office of Human Rights

400 South Fort Harrison Avenue, Suite 300 Clearwater, Florida 33756

William Falkner, Sr., Esquire Pinellas County Attorney's Office

315 Court Street - Annex Building Sixth Floor

Clearwater, Florida 33756

NOTICE OF RIGHT TO APPEAL

This decision and its findings are final, unless an adversely affected party files a Petition for Writ of Certiorari within thirty (30) calendar days of the date of the Final Order in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida, pursuant to Section 70-77(g)14, Pinellas County Code.

Docket for Case No: 99-003008

Orders for Case No: 99-003008