vs.
Respondent.
) Case No. 05-3612
Pursuant to notice, this cause came on for final hearing before Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on March 24, 2006, in Tallahassee, Florida.
For Respondent: M. Brenk Johnson
Winstead Sechrest & Minick, P.C. 1201 Elm Street, Suite 5400
The issue presented is whether Respondent Community Education Partners, d/b/a Emerald Bay Academy, engaged in an unlawful employment practice as to Petitioner Adam Killick, and, if so, what relief should be granted to Petitioner, if any.
On March 16, 2005, Petitioner Adam Killick filed with the Florida Commission on Human Relations an Employment Charge of Discrimination, alleging that Respondent Community Education Partners, d/b/a Emerald Bay Academy, had discriminated against him based upon his disability. On August 25, 2005, the Commission issued its Notice of Determination: No Cause, finding that there is no reasonable cause to believe that an unlawful employment practice occurred. On September 29, 2005, Petitioner filed his Petition for Relief. This cause was thereafter transferred to the Division of Administrative Hearings to conduct an evidentiary proceeding.
On October 3, 2005, the Commission filed with the Division of Administrative Hearings Petitioner's Petition for Relief. On that same date, an Initial Order was entered by the assigned Administrative Law Judge requesting certain information for the scheduling of the final hearing in this cause.
Due to the parties' failure to comply with that Order, venue rights were deemed waived. On October 14, 2005, a Notice of Hearing was entered scheduling this cause for final hearing on December 19, 2005. An Order of Pre-Hearing Instructions was entered that same day requiring the parties to disclose to each other no later than seven days before the final hearing the
names of their witnesses and further requiring them to exchange copies of their exhibits by that same deadline. That Order further provided that failure to timely disclose could result in exclusion of that evidence at the final hearing.
On December 12 Respondent filed its Motion for Continuance of the final hearing. On December 13 Respondent filed correspondence advising that Petitioner had agreed to the continuance, that Petitioner would be out of the country the entire month of January 2006, and that Petitioner and Respondent had agreed to certain dates for re-scheduling the final hearing. One of those dates was February 17, 2006.
On December 14, 2005, an Order Granting Continuance and Re-Scheduling Hearing was entered, scheduling this cause for final hearing on February 17, 2006, validating any served subpoenas for the new date, and incorporating the provisions of the first Notice of Hearing and the Order of Pre-Hearing Instructions.
On January 26, 2006, Respondent filed its Agreed Motion for Leave to Present Testimony Telephonically, requesting that a witness who lives in New Mexico be allowed to testify telephonically at the final hearing on February 17, 2006. The Agreed Motion clearly set forth Petitioner's agreement to allow the telephonic testimony of that witness at the final hearing. On January 27, 2006, that Agreed Motion was granted, subject to
Respondent making the necessary arrangements and subject to compliance with Florida Administrative Code Rule 28-106.213(5), which, inter alia, requires a notary public to be physically present with the witness to administer the oath.
On February 3, 2006, Respondent filed its Notice of No Opposition advising that it did not oppose Petitioner's request for a continuance of the February 17, 2006, final hearing date. Petitioner's Motion for Continuance was filed on February 9, 2006.
By Order Granting Continuance entered February 9, 2006, Petitioner's motion was granted, the final hearing scheduled for February 17, 2006, was cancelled, and the parties were afforded up to and including February 28, 2006, to advise the undersigned as to the status of this matter, as to the length of time required for the final hearing, and as to several mutually- agreeable dates for re-scheduling the final hearing. That Order further provided that failure to timely comply would result in the conclusion that this matter had been amicably resolved and the file of the Division of Administrative Hearings would be closed. Neither party filed any document or pleading on or before February 28, 2006.
On March 3, 2006, Petitioner filed his first Request for Discovery and sent a letter to the Clerk of the Division requesting subpoenas and indicating that he would accommodate a
hearing date convenient to the undersigned and to Respondent. The letter also advised that after he had received all materials, he needed time to prepare. The letter did not provide dates for re-scheduling the final hearing in compliance with the February 9, 2006, Order. Subpoenas were issued to Petitioner pursuant to his request in that letter.
The Order Re-Scheduling Hearing entered March 6, 2006, recited the provisions of the prior Order giving a deadline for providing mutually-agreeable dates for re-scheduling the final hearing and the failure of the parties to comply with that Order. It also recited that despite the earlier Order providing for the automatic closure of the Division's file if the parties failed to timely provide dates, since Petitioner had filed documents subsequent to the deadline, it was assumed that the case had not been amicably resolved. The Order re-scheduled the final hearing in this matter to be held on March 24, 2006, validated any served subpoenas for the new date, and incorporated the provisions of the first Notice of Hearing and the Order of Pre-Hearing Instructions.
On March 14, 2006, Petitioner filed a Motion to Compel Discovery and a Motion for Rehearing. The Motion for Rehearing is confusing: it asks for reconsideration of his discovery request (no ruling had previously been requested or made); it complains about the December 2005 hearing date having been
continued; it withdraws Petitioner's prior agreement to allow a witness to testify by telephone (which agreement had been subsequently ordered); it specifically states that Petitioner is not requesting another continuance but then speaks of requiring time to prepare that would extend well beyond the scheduled final hearing date. On March 16, 2006, Respondent's Response to Petitioner's Motion to Compel Discovery and Motion for Rehearing was filed, opposing the granting of Petitioner's pending motions.
Petitioner's motions were heard telephonically on March 20, 2006. The manual he wanted produced, which Respondent agreed to give him, was ordered produced, but the remainder of Petitioner's requests were denied. An Order on Pending Motions was entered that same day to memorialize the rulings announced during the telephonic hearing. The Order specifically provided that Petitioner's request for a postponement of the final hearing was denied, a ruling made and discussed during the telephonic hearing.
On March 17, 2006, Respondent filed its witness list, together with a cover letter advising that Respondent had provided Petitioner with its witness and exhibits lists in December. Petitioner has not filed any witness list in accordance with the Order of Pre-hearing Instructions entered October 14, 2005.
On March 22, 2006, Respondent filed a Motion to Quash Subpoenas, together with a request that a hearing be held on the Motion that same day. A telephonic hearing was conducted on March 22, 2006, and an Order Granting Respondent's Motion to Quash Subpoenas was entered.
During the course of that telephonic hearing, Petitioner indicated that he might not come to the hearing. In response to that statement, the undersigned explained to Petitioner that it was up to him whether he attended the hearing, dismissed his petition for relief, or withdrew his request for a hearing. The undersigned explained to the parties that the hearing would go forward as scheduled, that Petitioner had the burden of proof in this proceeding, and that not appearing or presenting evidence would prevent him from meeting his burden of proof.
After normal business hours on March 22, 2006, and therefore on March 23, 2006, Petitioner filed a Facsimile Letter to Judge Rigot. Although somewhat confusing, the Letter appears to re-argue points previously argued and memorialize Petitioner's understanding (and misunderstandings) of what transpired during the telephonic hearing on March 22, 2006.
At 9:30 a.m., on March 24, 2006, Respondent's attorney and its witnesses were present for the scheduled final hearing. The undersigned waited for 35 minutes before opening the record
and almost 10 minutes more before closing the record, with no appearance by Petitioner or anyone on his behalf.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.
Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of handicap. Petitioner asserts in his Employment Charge of Discrimination filed with the Florida Commission on Human Relations that he was discriminated against based upon his disability/handicap. Petitioner has failed to prove his allegation.
Petitioner bears the burden of proof established by the Supreme Court of the United States in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under this well- established case law, Petitioner bears the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination. If a prima facie case is established, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. The employee then has the burden of showing that the business
reason is pretextual and that a discriminatory reason more likely than not motivated the decision.
Neither Petitioner nor anyone on his behalf appeared for the final hearing in this cause. Petitioner failed to establish a prima facie case by a preponderance of the evidence since no evidence at all was offered on Petitioner's behalf.
RECOMMENDED that a final order be entered finding that Petitioner failed to meet his burden of proof and dismissing his Petition for Relief.
DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2006.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
M. Brenk Johnson
Winstead Sechrest & Minick, P.C. 1201 Elm Street, Suite 5400
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.
