STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNNY ROBLES,

Petitioner,

vs.

AUTOZONE, INC.,

Respondent.

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) Case No. 05-3666

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RECOMMENDED ORDER OF DISMISSAL

This matter comes on for consideration based on Petitioner's failure to comply with the Order dated March 28, 2006, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Johnny Robles, pro se

261 North West Wilson Street Lake City, Florida 32055

For Respondent: Edward L. Birk, Esquire

Marks Gray, P.A. Post Office Box 447

Jacksonville, Florida 32201 STATEMENT OF THE ISSUE

The issue is whether the Petition for Relief should be dismissed due to Petitioner's failure to comply with the Order dated March 28, 2006.

PRELIMINARY STATEMENT

On May 6, 2005, Petitioner Johnny Robles (Petitioner) filed an Employment Complaint of Discrimination (Complaint) with the Florida Commission on Human Relations (FCHR). The Complaint alleged that Respondent Autozone, Inc. (Respondent) had discriminated against Petitioner based on his race and disability by creating a hostile work environment, demoting him to a sales position, and causing his constructive termination.

On September 8, 2005, FCHR issued a Determination: No Cause.

On October 3, 2005, Petitioner filed a Petition for Relief with FCHR. The Petition for Relief alleged that Respondent had discriminated against him based on his disability. The Petition for Relief did not allege racial discrimination.

On October 6, 2005, FCHR referred the Petition for Relief to the Division of Administrative Hearings. The referral indicated that Petitioner's address of record was 22073 41st Drive, Lake City, Florida 32024.

The undersigned issued a Notice of Hearing dated October 20, 2005. The notice scheduled the hearing for December 12, 2005.

On November 30, 2005, Respondent and Petitioner spoke to each other by telephone. During the call, Petitioner stated

that he would be seeking a continuance because of the unavailability of his witnesses to appear at the hearing.

On December 1, 2005, Respondent filed a Consent Motion for Continuance. On December 5, 2005, the undersigned issued an Order Granting Continuance and Re-scheduling Hearing for February 21, 2006.

On February 3, 2006, Respondent filed a Motion to Compel, to Impose Sanctions, and to Stay or Continue. On February 9, 2006, the undersigned issued an Order Granting Motion to Compel, Placing Case in Abeyance, and Requiring Status Report.

On March 24, 2006, Respondent filed a unilateral Status Report Pursuant to Order of February 9, 2006. On March 27, 2006, Respondent filed a Motion to Dismiss for Failure to Prosecute. The status report and the motion indicated that Petitioner had a new address: 261 North West Wilson Street, Lake City, Florida 32055.

On March 28, 2006, the undersigned issued an Order, requiring Petitioner to file a written response on or before April 10, 2006. The Order, which was sent to Petitioner's new address of record, required Petitioner to demonstrate that he had complied with Respondent's discovery requests dated December 5, 2005. As of the date that this Recommended Order of Dismissal is issued, Petitioner has not complied with the Order dated March 28, 2006.

FINDINGS OF FACT

1. On or about December 5, 2005, Respondent served Petitioner with the following discovery requests: (a) Respondent's First Request to Produce; (b) Respondent's First Interrogatories to Petitioner; and (c) Respondent's First Request for Admissions. Petitioner's answers and responses were due no later than January 9, 2006.

2. By letter dated January 20, 2006, Respondent advised Petitioner that it had not received answers and responses to the December 5, 2005, discovery requests. The letter stated that, in order to avoid a motion to compel, Petitioner should provide his answers and responses no later than January 27, 2006.

3. Petitioner did not respond to Respondent's January 20, 2006, letter. Therefore, Respondent filed its Motion to Compel, to Impose Sanctions, and to Stay or Continue on February 3, 2006.

4. On February 9, 2006, the undersigned issued an Order Granting Motion to Compel, Placing Case in Abeyance, and Requiring Status Report. The Order directed Petitioner to provide Respondent with answers and responses to the December 5, 2005, discovery requests no later than March 20, 2006. The Order also directed the parties to file a joint written status report no later than March 24, 2006. The Order advised the parties that failure to file the status report would result in

   the closure of the file of the Division of Administrative Hearings.

5. On February 27, 2006, Petitioner sent Respondent the following e-mail message:

   this [sic] letter is to inform you that I have been gone and just got my mail. I don't know were ([sic] any of the paper work is that was sent to me aound [sic] november [sic] because we had to move and some thing [sic] are here and some there on the property and some got damaged when the kitchen started on fire. I was requesting the information and for some time. My new address is Johnny Robles, 261 NW Wilson st. [sic], lake city [sic], Fl. 32055, phone: 1- 386-719-9266.

   
   

6. Respondent sent Petitioner a letter dated March 13, 2006. The letter was addressed to Petitioner's new address.

7. Respondent's March 13, 2006, letter requested Petitioner to contact Respondent's counsel if he had any questions about the case. Along with the letter, Respondent sent Petitioner copies of the December 5, 2005, discovery requests. The letter stated that Petitioner should respond to the discovery requests no later than March 20, 2006. The letter advised Petitioner to let Respondent know if Petitioner needed more time to respond and that Petitioner would have to obtain an extension of time from the undersigned.

8. Respondent's March 13, 2006, letter also enclosed the following documents: (a) Respondent's Second Set of

   Interrogatories; (b) Respondent's Second Request for Production of Documents; and (c) Respondent's Second Request for Admissions. The letter advised Petitioner that he had to respond to the second set of discovery requests no later than April 17, 2006.

9. On March 24, 2006, Respondent filed a unilateral Status Report Pursuant to Order of February 9, 2006. The letter referred to Petitioner's February 27, 2006, e-mail message and Respondent's March 13, 2006, letter. The status report also stated that Respondent telephoned Petitioner on March 24, 2006. According to the status report, Petitioner indicated the following during the telephone call: (a) he received the

   March 13, 2006, letter; (b) he was attempting to retain counsel;

   
   

   (c) he requested more time to respond to discovery; and (d) he had "too much . . . going on" in his life at present to focus on this case.

10. On March 27, 2006, Respondent filed its Motion to Dismiss for Failure to Prosecute, which the undersigned accepted as a renewed motion for sanctions for failure to comply with the February 9, 2006, Order Granting Motion to Compel.

11. On March 28, 2006, the undersigned issued an Order, directing Petitioner to file a written response no later than April 10, 2006, demonstrating that he has complied with Respondent's December 5, 2005, discovery requests. The Order

    specifically stated that Petitioner's failure to respond in a timely manner would result in the issuance of a Recommended Order of Dismissal to FCHR.

12. Petitioner has not complied with the March 28, 2006, Order or requested additional time to do so.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes (2005).

14. Florida Administrative Code Rule 28-106.206 states as follows:

    28-106.206 Discovery

    
    

    After commencement of a proceeding, parties may obtain discovery through the means and in the manner provided in Rules 1.280 through 1.400, Florida Rules of Civil Procedure. The presiding officer may issue appropriate orders to effectuate the purposes of discovery and to prevent delay, including the imposition of sanctions in accordance with the Florida Rules of Civil Procedure except contempt.

    
    

15. Florida Rule of Civil Procedure 1.380(b)(2)(C) provides as follows in pertinent part:

    (b) Failure to Comply with Order.

    
    

    * * *

    
    

    (2) If a party . . . fails to obey an order to provide or permit discovery . . .

    the court in which the action is pending may make any of the following orders:

    
    

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    (C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it . . .

    . (Emphasis Added)

    
    

16. In this case, Petitioner failed to provide answers and responses to discovery requests that Respondent propounded on December 5, 2005. Petitioner next failed to comply with the Order Granting Motion to Compel dated February 9, 2006. Finally, Petitioner failed to comply with the Order dated

    March 28, 2006.

    
    

17. Petitioner has never filed a request for extension of any time frame. The only conclusion one can reach is that Petitioner does not intend to provide Respondent with answers and responses to discovery requests, making it impossible for Respondent to prepare for hearing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that:

FCHR enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 13th day of April, 2006, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 13th day of April, 2006.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Lejune Rose AutoZone, Inc.

123 South Front Street Memphis, Florida 38103

Edward L. Birk, Esquire Marks Gray, P.A.

Post Office Box 447 Jacksonville, Florida 32201

Johnny Robles

261 Northwest Wilson Street Lake City, Florida 32055

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: 05-003666

Orders for Case No: 05-003666