STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOBBI DEBOSE, )
)
Petitioner, )
)
vs. )
) COLUMBIA NORTH FLORIDA REGIONAL ) MEDICAL CENTER, )
)
Respondent. )
Case No. 00-3426
)
RECOMMENDED ORDER
This cause came on for a disputed-fact hearing on the merits on December 13, 2001, in Gainesville, Florida, before
Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: No Appearance
For Respondent: James J. Dean, Esquire
Messer, Caparello & Self, P.A. Post Office Box 1876
215 South Monroe Street, Suite 701 Tallahassee, Florida 32302-1876
STATEMENT OF THE ISSUE
Whether Respondent Employer is guilty of an unlawful employment practice by termination of Petitioner on the basis of racial discrimination.
PRELIMINARY STATEMENT
This case appears before the Division of Administrative Hearings upon remand, on or about February 23, 2001, from the Florida Commission on Human Relations.
On December 13, 2001, Petitioner did not appear for a duly- noticed disputed-fact hearing on the merits of her Petition for Relief, and Respondent moved for dismissal.
Beyond the foregoing introduction, the procedural matters of this cause are addressed in the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
This cause was initially referred to the Division of Administrative Hearings on or about August 14, 2000, following investigation and a "Determination: No Cause" by the Florida Commission on Human Relations.
Also on August 14, 2000, the Division of Administrative Hearings issued its Initial Order. On August 16, 2000, Respondent filed a response thereto. Petitioner never responded.
On August 30, 2000, Respondent filed a Motion to Dismiss, based on the untimeliness of the Petition for Relief. Petitioner did not timely file a response in opposition to the Motion, pursuant to Rule 28-106.204, Florida Administrative Code (formerly Rule 60Q-2.016, Florida Administrative Code).
On September 27, 2000, the undersigned issued an Order taking the Motion to Dismiss under advisement and granting ten additional days beyond the time provided by rule in which Petitioner would be allowed to file any written response in opposition to the pending Motion to Dismiss.
Petitioner did not file any response in opposition to the Motion to Dismiss under the terms of the September 27, 2000, Order.
On October 20, 2000, a Recommended Order was issued, dismissing the Petition.
On February 8, 2001, the Florida Commission on Human Relations entered an Order re-interpreting its rules and departing from the long line of cases upon which the October 20, 2000, Recommended Order had been based. The Commission's Order remanded the cause to the Division for a hearing on the merits.1
On February 27, 2001, the Clerk of the Division of Administrative Hearings reopened the case. Also on February 27, 2001, a Notice of Hearing was entered scheduling the disputed- fact hearing on the merits for March 20, 2001.
On March 16, 2001, a Notice of Automatic Stay was filed.
The cause was stayed before the Division pending review of the Commission's Order of Remand by the First District Court of Appeal.2
By an Order dated August 16, 2001, the First District Court of Appeal denied Respondent's Petition for Writ of Prohibition or Quo Warranto, and, in effect, upheld the Commission's remand, thereby concluding the automatic stay of proceedings before the Division.3
On August 30, 2001, Respondent filed a Motion to Compel answers to its interrogatories and for Petitioner to be deposed. Respondent's Motion also requested that sanctions be imposed against Petitioner for her non-appearance at her deposition which had been duly-noticed for October 18, 2000, prior to the Recommended Order of Dismissal. The Motion was accompanied by a supporting affidavit by a court reporter documenting and attesting to Petitioner's non-appearance for her deposition.
Petitioner filed no timely response in opposition to the motion to compel and for sanctions.
On September 14, 2001, the undersigned entered an Order requiring Petitioner to file a response to the Motion within an additional ten days. Petitioner again failed to respond to the Motion to Compel.
By an Order and Notice of Hearing entered October 5, 2001, the Motion to Compel was granted in part and denied in part. Petitioner was ordered to appear for her deposition to be re-scheduled by Respondent in Petitioner's county of residence, at a mutually convenient date and time if Petitioner would
specify a convenient date and time. If Petitioner would not specify a date and time, the deposition was to be scheduled by Respondent in Petitioner's county of residence on at least ten days' notice. Any issue as to sanctions was deferred until the commencement of the hearing on the merits, which was rescheduled for December 13, 2001, when, presumably, Petitioner would be present and able to orally present any opposition.
An Order of Pre-hearing Instructions was also entered and mailed on October 5, 2001.
On December 4, 2001, Respondent filed a Motion for Continuance and for Dismissal of the Petition for Relief due to Petitioner's failure, yet again, to appear for her duly-noticed deposition on November 30, 2001. A court reporter's affidavit was again attached. Petitioner did not respond thereto.
On December 11, 2001, Respondent filed a Unilateral Pre-hearing Statement in accord with the Order of Pre-hearing Instructions. Petitioner failed to comply with the Order of Pre-hearing Instructions, even to the extent of stating her position or listing the witnesses she intended to call at the hearing on the merits.
On December 13, 2001, at the time and place appointed for final hearing on the merits, Petitioner did not appear.
A court reporter provided by, and at the expense of, the Commission appeared. Counsel for Respondent and Respondent's
principal agent appeared. The Division incurred the expense of the undersigned's travel to Petitioner's and Respondent's county of residence where the hearing was scheduled. Respondent incurred the cost of its attorney's travel.
All concerned waited half-an-hour and Petitioner did not appear.
The undersigned then inquired of Respondent's counsel if any items he had mailed to Petitioner had been returned to him by the United States Postal Service. He indicated on the record that none had been returned to him and that Petitioner had never communicated with him.
No Order or Notice sent by the Division to Petitioner has been returned to the Division by the United States Postal Service.
The presumption, therefore, is that Petitioner has received all pleadings and papers served by Respondent's counsel and has received all Orders and Notices issued by the Division of Administrative Hearings. Accordingly, it can only be concluded that Petitioner has willfully disregarded the Order and Notices of this forum.
Respondent's counsel filed, in open court, an Affidavit addressing attorney's fees and costs incurred by Respondent as a result of defending this case in the face of Petitioner's willful refusal to comply with Respondent's legitimate discovery requests
and Orders of this forum. Respondent moved orally for an assessment of said costs and attorney's fees against Petitioner. That matter has been addressed by an interlocutory order.
After waiting a total of 45 minutes, Petitioner still had not appeared.
The final merits hearing was adjourned and its record closed without Petitioner presenting any evidence in support of her charge of discrimination or her Petition for Relief from an unlawful employment practice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Chapter 760, Florida Statutes, and the Commission remand.
Petitioner's failure to appear and put on evidence means that she has failed to carry her duty to go forward and her burden of proof by a preponderance of the evidence to establish that an unlawful employment practice has been committed against her by Respondent Employer, pursuant to Section 760.10, Florida Statutes.
The fact that Petitioner has failed to prevail upon the merits makes it unnecessary to rule upon any of Respondent's pending Motions to Dismiss.
RECOMMENDATION
Upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED
That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein.
DONE AND ENTERED this day of January, 2002, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
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 day of January, 2002.
ENDNOTES
1/ The undersigned is without knowledge as to whether or not Petitioner participated or even appeared at this stage of the proceedings.
2/ The Commission appeared in the appellate proceedings. The undersigned is without knowledge as to whether Petitioner participated, or even appeared, at this stage of the proceedings.
3/ However, the District Court's Order was not filed with the Division until September 11, 2001.
COPIES FURNISHED:
James J. Dean, Esquire
Messer, Caparello & Self, P.A. Post Office Box 1876
215 South Monroe Street, Suite 701 Tallahassee, Florida 32302-1876
Bobbi Debose
1129 Northeast 24th Street Gainesville, Florida 32641
Cecil Howard, General Counsel Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Denise Crawford, Agency Clerk Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 03, 2002 | Agency Final Order | |
| Jan. 14, 2002 | Recommended Order | Petitioner`s failure to appear at final hearing resulted in her not meeting necessary burden of proof. Recommended order of dismissal. Order recites egregious disregard for process and cost increase due to Petitioner`s non-participation. |
| Feb. 08, 2001 | Remanded from the Agency | |
| Oct. 20, 2000 | Recommended Order | Petition for Relief was filed six days late pursuant to notice and statute; eight days late pursuant to agency rule; and even if Rule 60Y-4.004(1) is applied to relate filing back to date of mailing, it was late and jurisdiction of DOAH thus barred. |
