STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN F. MCBRIDE,

Petitioner,

vs.

GOLD KIST, INC.,

Respondent.

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) Case No. 04-2023

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RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice this cause came on for formal hearing, before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings on May 26, 2005, in Live Oak, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: No Appearance

For Respondent: G. Thomas Harper, Esquire

Harper Gerlach, PL

4110 Southpoint Boulevard, Suite 228

Jacksonville, Florida 32216 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner had been subjected to a discriminatory practice or decision based upon his race.

PRELIMINARY STATEMENT

This cause arose upon the filing of a Petition for Relief by the Petitioner, John F. McBride. In the Petition he alleges that he was subjected to a discriminatory employment practice by allegedly being discharged from his employment due to his race.

On January 24, 2005, a Notice of Hearing was served on the parties, setting the hearing for March 21, 2005, in Live Oak, Florida. The Petitioner failed to appear at this hearing and, after waiting a substantial period of time, essentially an hour, and attempting to contact the Petitioner or to find him in the vicinity of the hearing site at the Suwannee County Courthouse, the hearing was adjourned. An Order to Show Cause was thereafter issued requiring the Petitioner to show cause in writing good and sufficient reasons for failing to attend the hearing without motion, phone call or other warning to opposing counsel or to the administrative law judge. The Petitioner responded by letter of April 21, 2005, giving several reasons why he had failed to attend the hearing.

Consequently, an Order was thereafter entered on May 3, 2005, re-scheduling the hearing for May 26, 2005, at the Suwannee County Courthouse in Live Oak, Florida. The Order re- scheduling the hearing was mailed to the Petitioner's last known address of record. The Petitioner again failed to contact the administrative law judge or the Division of Administrative

Hearings, opposing counsel or opposing party representatives, to advise any reason why he was unable to attend the May 26th hearing. Despite this, he failed to attend the May 26th hearing and there has been no explanation concerning the reason for his lack of attendance.

FINDINGS OF FACT

1. The facts are hereby found to be as delineated above in the preliminary statement of this Recommended Order and they are incorporated by reference as findings of fact. The Petitioner has twice defaulted, failed to attend the hearing to present his case, and concomitantly failed to contact the Division of Administrative Hearings, the administrative law judge, or any party or party's representative to advise that he would not be able to attend and conduct the hearing on either of the noticed occasions. Such conduct abuses the legal process offered to the Petitioner by Chapters 760 and 120, Florida Statutes.

2. The Petitioner has defaulted on two occasions in this proceeding. The Respondent has expended significant time and funds to prepare for and attend these hearings. The Respondent, by motion, has asserted that it has incurred costs and reasonable attorney's fees in the following total amounts: costs; $1,499.25, and attorney's fees are requested in the amount of $4,478.50. There has been no response to the motion.

3. Accordingly, in view of the foregoing, it is concluded that this matter should be dismissed for lack of prosecution. The motion has preserved the request for fees and costs, which can be addressed once the Commission, by entry of the final order, has determined that the Respondent is the prevailing party. See § 57.105(5), Fla. Stat. Ruling on that motion is reserved until after the entry of the final order.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, argument of the parties, and the pleadings, it is, therefore,

RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety while reserving determination of the issues of costs and attorney's fees.

DONE AND ENTERED this 5th day of July, 2005, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 5th day of July, 2005.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

G. Thomas Harper, Esquire Harper Gerlach, LLC

4110 Southpoint Boulevard, Suite 228

Jacksonville, Florida 32216

John F. McBride

201 North Cherokee Street Madison, Florida 32340

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 04-002023

Orders for Case No: 04-002023