STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANNY FOSTER,

Petitioner,

vs.

THE SALVATION ARMY,

Respondent.

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) Case No. 02-2747

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RECOMMENDED ORDER

Pursuant to notice, this cause came on for final hearing before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, by video teleconference between Miami and Tallahassee, Florida, on September 12, 2002.

APPEARANCES

For Petitioner: No appearance

For Respondent: John C. Seipp, Jr., Esquire

Bonnie S. Crouch, Esquire Seipp, Flick and Kissane, P.A.

2450 Sun Trust International Center

1 Southeast 3rd Avenue Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10 et.

seq., Florida Statutes, as set forth in Petitioner's Charge of

Discrimination filed with the Florida Commission on Human Relations (FCHR) on October 29, 2001, and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Petitioner alleged that Respondent discriminated against him based on his race by terminating his employment on

August 10, 2001. On July 11, 2002, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. Pursuant to a Notice of Hearing entered August 7, 2002, the matter was duly scheduled for formal hearing to be held on September 12, 2002.

On August 29, 2002, Petitioner's counsel moved to withdraw as counsel for Petitioner on the ground that Petitioner had failed to cooperate with him in the preparation for the scheduled hearing. Because Petitioner's counsel could not provide an address or telephone number for Petitioner, the motion to withdraw was taken under advisement. On September 12, 2002, the cause came on for hearing as noticed. Petitioner's counsel and Respondent appeared at the scheduled hearing.

Petitioner did not appear at the final hearing and no evidence was presented by or on behalf of Petitioner. A separate order granting the motion to withdraw filed by Petitioner's counsel has been entered by the undersigned. Respondent presented a

proffer of the evidence it would have introduced had Petitioner presented a prima facie case of discrimination.

No transcript of the proceeding has been filed. Respondent filed post-hearing submittals, which have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner presented no evidence in support of his allegation that Respondent discriminated against him.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

3. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer:

   (1)(a) To discharge or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

   
   

4. Petitioner has the burden of establishing by preponderance of the evidence a prima facie case of discrimination. See Section 760.34(5), Florida Statutes. If that prima facie case is established, the defending Respondent must articulate a legitimate, non-discriminatory reason for the

   action taken against Petitioner. The burden then shifts back to Petitioner to go forward with evidence to demonstrate that the offered reason is merely a pretext for unlawful discrimination. See McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

5. Petitioner presented no evidence that would establish a prima facie case of discrimination against Respondent. Consequently, Petitioner failed to meet his burden of proof in this proceeding, and his claim of discrimination should be dismissed.

RECOMMENDATION

Based on 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 filed in this case.

DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 16th day of October, 2002.

COPIES FURNISHED:

John C. Seipp, Jr., Esquire Bonnie S. Crouch, Esquire Seipp, Flick and Kissane, P.A.

2450 Sun Trust International Center

1 Southeast 3rd Avenue Miami, Florida 33131

Brian D. Albert, Esquire

2450 Northeast Miami Gardens Drive Miami, Florida 33180

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 02-002747

Orders for Case No: 02-002747