STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEROME WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 03-2655

)

C. A. MEUR CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, a formal hearing was convened in this case on September 26, 2003, by video teleconference, with the Respondent appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in

Tallahassee, Florida.

For Petitioner: None

APPEARANCES

For Respondent: Oscar A. Sanchez, Esquire

Stephanie I. R. Fidler, Esquire Akerman Senterfitt

SunTrust International Center One Southeast Third Avenue Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether the Respondent discriminated against the Petitioner on the basis of race and age when it terminated his employment.

PRELIMINARY STATEMENT

On September 28, 2003, Jerome Williams filed a Charge of Discrimination with the Florida Commission on Human Relations ("FCHR") alleging that the C.A. Meur Corporation ("Meur") discriminated against him on the basis of race and age when it terminated his employment on October 10, 1999. Mr. Williams filed an Amended Charge of Discrimination on October 19, 2000. The FCHR received no response from Meur despite several requests for information, and it issued a Determination: Adverse Inference-Cause dated May 23, 2003, in which it stated its conclusion that Mr. Williams had established a prima facie case of discrimination for purposes of the FCHR's reasonable cause determination.

On June 19, 2003, Mr. Williams filed with the FCHR a Petition for Relief in which he reiterated his charges that Meur terminated his employment for no reason and that he was replaced with younger, white employees. The FCHR transmitted the Petition for Relief to the Division of Administrative Hearings for assignment of an administrative law judge. A Notice of Hearing was issued on July 28, 2003, scheduling the final hearing for September 25 and 26, 2003, in Miami, Florida.

Following the usual procedure, the undersigned's secretary placed a telephone call both to Mr. Williams and to counsel for Meur during the week prior to the hearing to confirm that the

case had not been settled and to get a final estimate of the length of time required for the hearing. The undersigned's secretary telephoned Mr. Williams on September 17, 2003, at the telephone number he provided on the Petition for Relief, and she left a message on Mr. Williams' voice mail asking that he contact her about the hearing; Mr. Williams did not return her call.

Based upon information provided by counsel for the Respondent, the undersigned concluded that only one day was necessary for the final hearing, and arrangements were made to conduct the final hearing by video teleconference on

September 26, 2003. The undersigned's secretary attempted to contact Mr. Williams by telephone on September 18 and 19, 2003, but a recorded message stated that the telephone was no longer in service.

An Amended Notice of Hearing by Video Teleconference was issued on September 22, 2003, which reflected that the final hearing was rescheduled for September 26, 2003, beginning at 9:00 a.m. and that the location of the final hearing was changed from the Miami-Dade County Courthouse to the Miami, Florida, video teleconference site in the Ruth Rohde Building. The Amended Notice of Hearing by Video Teleconference was sent to counsel for Meur by facsimile transmittal on September 22, 2003, and the amended notice was sent to Mr. Williams by regular

United States Mail and by Federal Express overnight delivery on September 22, 2003,1 at the address provided to the Division of Administrative Hearings, 705 Sapadillo Avenue, West Palm Beach, Florida 33401.2

Mr. Williams was not present in the hearing room designated on the amended notice at 9:00 a.m. on September 26, 2003, and he had not made an appearance by 10:00 a.m., when the hearing was called to order. It was Mr. Williams' burden to prove that Meur discriminated against him in violation of Section 760.10(1)(a), Florida Statutes (1999).3 Because Mr. Williams did not appear to present evidence in support of his claim of discrimination, the Petition for Relief should be dismissed.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Jerome Williams.

DONE AND ENTERED this 29th day of September, 2003, in Tallahassee, Leon County, Florida.

S

PATRICIA HART MALONO

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 29th day of September, 2003.

ENDNOTES

1/ The amended notice sent by Federal Express was not delivered until September 25, 2003. Even so, a telephone call to the Miami-Dade County Courthouse on September 26, 2003, confirmed that Mr. Williams did not appear at Room 911 for the hearing on the morning of September 25, 2003, as instructed in the original Notice of Hearing, nor did he appear at the Miami-Dade County Courthouse on the morning of September 26, 2003.

2/ The Notice of Hearing and the Order of Pre-Hearing Instructions sent to Mr. Williams at this address on July 28, 2003, were not returned to the Division of Administrative Hearings.

3/ The Petitioner in an employment discrimination case has the burden of proving discrimination by a preponderance of the evidence, and the Petitioner must either present direct evidence of discrimination or circumstantial evidence within the framework of the analysis first articulated in McDonald Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Holifield v.

Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997). Under the

McDonald Douglas analysis, the Petitioner must establish a prima facie case of discrimination "by showing: (1) he belongs to a racial minority; (2) he was subjected to adverse job action; (3) his employer treated similarly situated employees outside his classification more favorably; and (4) he was qualified to do the job." If the Petitioner establishes a prima facie case of discrimination, there is a presumption that the adverse employment action was the result of intentional discrimination, and the burden shifts to the Respondent to establish that there were "legitimate, non-discriminatory reasons for its employment action." Id. at 1564. If the Respondent successfully meets its burden of proving a non-discriminatory reason for terminating the Petitioner, then the presumption of discrimination falls, and the Petitioner must prove that the reason given by the Respondent for the termination was a pretext for intentional discrimination. Id. at 1565-66.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Stephanie I. R. Fidler, Esquire Akerman Senterfitt

SunTrust International Center

One Southeast Third Avenue, 28th Floor Miami, Florida 33131

Jerome Williams

705 Sapadillo Avenue

West Palm Beach, Florida 33401

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: 03-002655

Orders for Case No: 03-002655