STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YVONNE THOMAS,

Petitioner,

vs.

MARION COUNTY SCHOOL BOARD,

Respondent.

)

)

)

)

) Case No. 01-3099

)

)

)

)

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact hearing on November 13, 2001, in Ocala, 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: Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue Suite 350

Tampa, Florida 33606 STATEMENT OF THE ISSUE

Whether Petitioner was constructively terminated from her employment with Respondent employer by virtue of an unlawful and discriminatory employment practice, i.e., failure to accommodate her alleged handicap/disability.

PRELIMINARY STATEMENT

The preliminary and procedural matters of this case are more appropriate to the Findings of Fact in this cause and will be found infra.

FINDINGS OF FACT

1. Petitioner filed, date not of record, a discrimination complaint with the Florida Commission on Human Relations. The Complaint was investigated. A "Determination: No Cause" was entered by the Commission on July 19, 2001.

2. Petitioner filed, date not of record, a Petition for Relief. The cause was referred to the Division of Administrative Hearings for a disputed-fact hearing on or about August 7, 2001.

3. Petitioner failed to respond to the Division's Initial Order herein. The case was scheduled for hearing in Ocala, Florida, on October 26, 2001, in accord with Respondent's Response to the Initial Order.

4. Respondent moved for a continuance. Petitioner did not respond to the Motion. The unopposed Motion was granted by an Order entered October 4, 2001, and the case was rescheduled for final hearing in a new location, also in Ocala, Florida, on November 13, 2001.

5. Respondent complied with the Order of Pre-Hearing Instructions. Petitioner did not. Respondent filed a Motion to Dismiss Petition or in the Alternative Motion to Exclude

   Petitioner's Witnesses and Exhibits, due to Petitioner's failure to comply with the Order of Pre-Hearing Instructions.

6. At the time and place appointed for the final hearing on November 13, 2001, Petitioner did not appear.

7. After the undersigned and all representatives of Respondent had been waiting at the designated location in Ocala, Florida, for a half hour, Respondent's counsel informed the undersigned that his Tampa office had just relayed a message to him, via cell phone, that Petitioner's husband had telephoned to say he and Petitioner were awaiting the hearing in a different location, but that the husband had left no information as to where he was nor any telephone number where he could be reached.

8. The undersigned then telephoned her office. The secretary to the undersigned had received no phone call or other communication from Petitioner nor from anyone on Petitioner's behalf. In an abundance of caution, the secretary to the undersigned telephoned the location which had been previously scheduled for final hearing on October 26, 2001, by a Notice of Hearing entered and mailed on August 27, 2001, and determined that anyone who had been in that location had left it. At approximately the same time, Respondent's counsel was relayed a telephone message from his Tampa office that Petitioner's husband had again telephoned to say he was leaving "the conference room."

9. When Petitioner had not appeared at the correct location fifty minutes after the time scheduled for the commencement of the final hearing, Respondent made an oral motion to dismiss because of Petitioner's failure to appear and failure to meet her burden of proof pursuant to Section 760.10, Florida Statutes. This oral motion, as well as Respondent's previous written Motion, was taken under advisement, pending responses to an Order to Show Cause.

10. On November 14, 2001, an Order to Show Cause was entered, requiring Petitioner to show cause, in writing, filed with the Division of Administrative Hearings, within ten days, why she did not appear on November 13, 2001, as required by the Order entered October 4, 2001. That Order to Show Cause is attached and incorporated herein by reference as Exhibit A.

11. Petitioner failed to timely show cause. She has filed no pleading or paper of any kind as of the date of entry of this instant Recommended Order.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1) and Chapter 400, Part III, Florida Statutes.

13. Petitioner has not shown good cause for her failure to appear for the Final Hearing.

14. Petitioner's failure to appear and put on evidence means that she has failed to carry her duty to go forward and burden of proof herein, pursuant to Section 760.10, Florida Statutes.

15. Accordingly, whether it be upon Respondent's oral motion to dismiss or by virtue of Petitioner's failure to prevail, this cause should be dismissed.

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 4th day of December, 2001, 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 4th day of December, 2001.

COPIES FURNISHED:

Mark E. Levitt, Esquire Allen, Norton & Blue, P.A.

1. South Hyde Park Avenue Suite 350

   Tampa, Florida 33606

   
   

   Yvonne Thomas

   Post Office Box 1004 Dunnellon, Florida 34430

   
   

   Cecil Howard, General Counsel Florida Commission on Human Relations

2. 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.

Docket for Case No: 01-003099

Orders for Case No: 01-003099