L. WESTBERRY PAVING AND )
TRUCKING COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this cause on September 26, 1980, in Pompano Beach, Florida.
APPEARANCES
For Petitioner: Michael C. Boykin, pro se
801 Powerline Road, Number 161 Pompano Beach, Florida 33060
For Respondent: Thomas P. Quinn, Esquire
2455 East Sunrise Boulevard International Building, Suite 605 Fort Lauderdale, Florida 33404
STATEMENT OF THE ISSUES
Whether Respondent violated the Florida Human Rights Act by maintaining racially segregated restroom facilities, as alleged by Petitioner; and, if so, the affirmative relief which should be granted.
CONCLUSIONS AND RECOMMENDATIONS
Conclusions:
Respondent company maintained racially segregated restrooms for Petitioner and its other employees. The signs, by which the restrooms were labeled, "Colored" and "White" were no longer affixed to the restrooms at the time of final hearing.
However, Petitioner failed to prove an essential elements of his claim-- that Respondent is an "employer" within the meaning of the Human Rights Act.
Recommendation:
That the Petitioner for Relief be DISMISSED.
Background:
On November 27, 1978, Petitioner Michael C. Boykin ("BOYKIN") filed with the Florida Commission on Human Relations a complaint of unlawful discrimination against Respondent H. L. Westberry Paving and Trucking Company ("COMPANY"). The gravamen of BOYKIN'S complaint was that he was subjected to an unlawful condition of employment by virtue of the COMPANY'S maintenance of racially segregated restroom facilities.
After investigation, the Commission on Human Relations issued its determination that there was reasonable cause to believe that the COMPANY had engaged in an unlawful employment practice, as alleged, in violation of the Human Rights Act, Sections 23.161, et seq., Florida Statutes. After an unsuccessful effort to effect voluntary conciliation of the dispute, the Commission issued a Notice of Failure of Conciliation on June 11, 1980. Within the requisite 30-day period thereafter, BOYKIN filed a Petition for Relief from the alleged unlawful employment practice.
Notwithstanding the COMPANY'S failure to file any pleading responding to BOYKIN'S Petition for Relief, or request a hearing thereon, the Commission forwarded it to the Division of Administrative Hearings on July 10, 1980, for the assignment of a hearing officer. By Notice of Hearing, final hearing was thereafter set for September 26, 1980.
At final hearing, counsel for the COMPANY represented that on September 25, 1980, he received a telephone call from an unidentified employee of the Commission purporting to cancel the hearing scheduled for September 26, 1980.
As a result, he asserted his witness was not present at final hearing; he then proffered that, if present, his witness could testify that signs indicating "Colored" and "White" were not now affixed to the doors of the separate restrooms located on the COMPANY'S premises. In order to avoid continuing the hearing, the parties agreed that the undersigned hearing officer should determine whether or not the described signs were present by conducting a viewing of the COMPANY'S premises. In light of this viewing, the COMPANY declined to request a continuance, and indicted that it wished to present no further evidence.
The COMPANY also moved to dismiss the Petition for Relief, claiming that the Commission lacked jurisdiction based on: (1) federal preemption of the area by Title VII of the Civil Rights Act of 1964, and (2) failure of the Commission to complete its proceeding within 120 days from the Federal Equal Employment Opportunity Commission's deferral of this matter to the Florida Commission on Human Relations. Respondent's Exhibit 1 was offered, and received in support of the motion, after which the motion was denied. The only witness who testified at final hearing was BOYKIN. No other exhibits were offered by either party.
The Florida Commission on Human Relations was not represented at final hearing; BOYKIN represented himself, in proper person, and without assistance by the Commission.
FINDINGS OF FACT
At all times material hereto, the COMPANY operated a business establishment located at Pompano Beach, Florida. BOYKIN a black male, was employed by the COMPANY during a one-week period in 1978. During BOYKIN'S employment, the COMPANY maintained separate restroom facilities, segregated on the basis of race. (Testimony of Boykin.)
The COMPANY'S two restroom facilities were racially segregated by the use of signs affixed to the outside door of each restroom--one sign labeled "Colored," and the other, "White." (Testimony of Boykin.)
The COMPANY'S maintenance of racially segregated restrooms was offensive to BOYKIN, and the other black employees. (Testimony of Boykin.)
As of September 26, 1980, the offending signs by which the COMPANY racially segregated its restrooms were no longer affixed to the restroom doors. (Viewing by hearing officer, accompanied by parties.)
The COMPANY presented no evidence controverting BOYKIN'S allegation that it maintained racially segregated restrooms during the time in question. Neither did it assert a legitimate, nondiscriminatory purpose for maintaining segregated restroom facilities.
BOYKIN presented no evidence to establish that the COMPANY employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1977 or 1978.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57, Florida Statutes.
Section 23.167, Florida Statutes (1979), of the "Human Rights Act of 1977," provides, in pertinent part:
It is an unlawful employment practice for an employer:
a. discriminate against any
individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color. . . .
The Commission on Human Relations is empowered to investigate, hold hearings, and act upon complaints alleging any discriminatory practice proscribed by the Human Rights Act ("Act"). If it finds that an unlawful employment practice has occurred, it must issue an order prohibiting the practice and providing affirmative relief from its effects. Sections 23.166, et seq., Florida Statutes.
3. An "employer" within the meaning of the Act means:
. . . any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person. Section 23.162, Florida Statutes.
The Act's proscriptions, and the Commission's statutory powers do not apply or extend to companies which are not "employees" as defined above.
In administrative proceedings the burden of proof falls upon the party asserting the affirmative of an issue. 1 Fla. Jur.2d, Administrative Law, Section 81, p. 658. Thus, unless admitted by Respondent, Petitioner must present evidence to establish each essential element of his claim for relief.
For the purpose of identifying and narrowing the issues requiring proof at hearing, a prehearing order was entered in this case on August 11, 1980; by its terms, the parties were directed to confer and file a Prehearing Stipulation. Primary responsibility for assuring the filing of the Stipulation was assigned to Petitioner. However, no Prehearing Stipulation was filed. In its absence, Petitioner must establish, by competent evidence, each element of his claim.
A threshold jurisdictional element of BOYKIN'S claim, as contained in his Petition for Relief, is that the COMPANY is an "employer" within the meaning of the Human Rights Act, Section 23.162(6), Florida Statutes (1979). See "Determination: Cause," dated February 4, 1980, incorporated by Paragraph 3 of Petition for Relief. However, BOYKIN failed to present any evidence at hearing which establishes that the COMPANY is an "employer" within the meaning of the Human Rights Act.
By failing to prove an essential jurisdictional element of his statutory claim, BOYKIN has not established the basis of his claim for relief-- that the COMPANY violated the Human Rights Act, and is subject to the Commission's power to grant affirmative relief. BOYKIN'S evidentiary omission cannot be cured by conjecture; neither should it be overlooked because of the rightness of his cause, or excused because he represented himself, without assistance of counsel.
It is axiomatic that final agency action must be based solely on the evidence received at hearing. See Section 120.57(1), Florida Statutes; 1 Fla. Jur.2d, Administrative Law, Section 82, p. 660. Accordingly, BOYKIN'S Petition for Relief must be dismissed.
