STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANITA I. PARKER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5202

) CHILDREN'S CRISIS TEAM OF ) VOLUSIA AND FLAGLER )

COUNTIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Daytona Beach, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on January 14, 1992. Neither party appeared through counsel or otherwise.

STATEMENT OF THE ISSUE

Whether respondent discriminated against petitioner on account of her race in not promoting her to executive director, denying her a salary increase, threatening her with a demotion and/or placing her on medical leave?

PRELIMINARY STATEMENT

On December 6, 1989, petitioner executed a complaint alleging, inter alia, "I bel[ie]ve that I was denied a promotion, denied a salary increase, threatened with a demotion and subsequently placed on indefinite medical leave because of my race, which is black."

After an investigation, the Florida Commission on Human Relations (FCHR) entered its "NOTICE OF DETERMINATION: NO CAUSE" on June 19, 1991. Ten days later petitioner filed with FCHR a form petition for relief, under the authority of Rule 22T-9.008, Florida Administrative Code. The FCHR transmitted this petition to the Division of Administrative Hearings on August 16, 1991, "[p]ursuant to Section 120.57, Florida Statutes and Rule 22T- 8.016(1), Florida Administrative Code."

By notice of hearing dated October 16, 1991, a formal administrative hearing was set for January 14, 1992 at ten o'clock in the morning. On November 18, 1991, in response to the notice of hearing, Timothy M. Goan of Kinsey Vincent Pyle, P.A. wrote a letter advising that the respondent "corporation was dissolved on November 9, 1990 and this firm has not represented the dissolved entity or any directors or officers . . . since."

On December 6, 1991, an order to show cause was entered reciting that it had been suggested that respondent had been dissolved and giving the parties until January 2, 1992, to show cause why an order recommending dismissal should not be entered. In response petitioner submitted, among other things, what

purported to be a copy of a letter from respondent's medical directors on respondent's stationery dated November 27, 1990, after the reported date of respondent's purported dissolution.

In an effort to preserve whatever rights petitioner had in the circumstances, no order recommending dismissal was entered and plans were made to convene a formal hearing so petitioner could present her case.

FINDINGS OF FACT

1. At the time and place noticed for hearing, petitioner failed to appear and nobody appeared on her behalf.

   
   

   CONCLUSIONS OF LAW

   
   

2. Because FCHR referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

   
   

3. Florida law forbids any employer, defined as any corporation or other "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," Section 760.02(6), Florida Statutes (1991), to "discharge . . . any individual . . . because of such individual's race . . . ." Section 760.10(1)(a), Florida Statutes (1991).

   
   

4. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. Petitioner Parker, like plaintiffs in Title VII actions, must "bear the burden of persuasion on the ultimate fact of discrimination." Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982).

   
   

5. She has the burden initially to prove facts making out a prima facie case that she was discharged on account of race, after which respondent need only articulate a legitimate, nondiscriminatory reason for the termination in order to place upon petitioner the burden of proving that the asserted reason is pretextual. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

   
   

6. Here petitioner failed to prove even a prima facie case. Nor was it established that respondent employed the requisite number of employees at any time.

RECOMMENDATION

It is, accordingly, recommended that the FCHR enter an order denying the petition for relief.

RECOMMENDED this 22nd day of January, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1992.

COPIES FURNISHED:

Margaret Jones, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Anita I. Parker

7740 Southside Blvd., #501

Jacksonville, FL 32256

Glenn R. Padgett, Esquire Kinsey Vincent & Pyle

P.O. Box 3096

Daytona Beach, FL 32018-0096

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 LEAST 10 DAYS IN 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.

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DOAH RECOMMENDED ORDER

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Docket for Case No: 91-005202

Orders for Case No: 91-005202