STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this case on July 22, 2008, in Tallahassee, Florida, before Ella Jane

1. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioner: Michele B. Brown, pro se

   2634 North Point Circle, Apt. B Tallahassee, Florida 32308

   
   

   For Respondent: Rhonda S. Bennett, Esquire

   Brooks, LeBoeuf, Bennett Foster & Gwartney, P.A.

   909 East Park Avenue Tallahassee, Florida 32301

   STATEMENT OF THE ISSUE

   
   

   Whether Respondent employer is guilty of an unlawful employment practice against Petitioner based upon mental disability.

   PRELIMINARY STATEMENT

   
   

   This cause was referred to the Division of Administrative Hearings on April 1, 2008, following a Determination: No Cause by the Florida Commission on Human Relations.

   The case was continued one time on June 6, 2008, and came to final hearing on July 22, 2008.

   FINDINGS OF FACT

   1. The final disputed-fact hearing began on time. Petitioner was present, as was the attorney for Respondent.

   2. Petitioner appeared pro se and responded clearly and affirmatively to the undersigned's questions, stating that she knew that she could be represented by an attorney but for reasons of her own she chose to represent herself.

   3. After explaining the duty to go forward, the burden of proof, and the order of proof, the undersigned inquired of both parties whether any further explanation was necessary; whether they had any questions; and whether the undersigned could do anything to make the process easier on either of them.

   4. At that point, Petitioner gestured to a piece of paper and requested to meet with Respondent's counsel for purposes of negotiating a settlement. A brief recess was granted for that purpose, and the undersigned left the hearing room.

   5. Upon returning to the hearing room, the undersigned inquired whether a settlement had been reached and was informed that one had not been reached.

   6. Petitioner then announced that, "Since they won't settle, I have no more to say."

   7. The undersigned inquired at length to be certain Petitioner understood that: she could call witnesses; she could testify on her own behalf; and she could present documents, either through her own testimony or that of others. Petitioner stated that she understood but did not want to call witnesses or testify. She gestured at what appeared to be her proposed settlement document, but which could have been something else, stating that she only had a document.

   8. The undersigned explained that very few documents could be called "self-authenticating" and gave a brief explanation of what type of testimony is necessary to lay a predicate to put any document into evidence. Petitioner said she did not wish to testify. She did not offer her piece of paper.

   9. The undersigned explained that if Petitioner did not testify and did not offer her single document, she could not prevail, and that based upon the allegation in her Petition that she has a "mental disability/handicap," the undersigned needed to be assured that Petitioner understood that unless she testified to something, called witnesses to testify, or offered some exhibits, the undersigned would have no choice but to enter a recommended order of dismissal. Petitioner assured the undersigned that she understood and refused to proceed.

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1), 120.569, and Chapter 760, Florida Statutes.

   11. By whatever theory Petitioner intended to proceed, the duty to go forward and the burden of proof herein was upon Petitioner. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001); Sutton v. Lader, 185 F.3d 1203 (11th Cir. 1999); Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

   12. Petitioner did not sustain her burden.

       
       

   13. Petitioner's mere assumption that she was discriminated against is insufficient for her to prevail. Little v. Republic Refining Co., 924 F.2d 93 (5th Cir. 1991); Elliott v. Group Medical & Surgical Service, 714 F.2d 556 (5th Cir. 1983); and Shiflett v. GE Fanuc Automation Corp., 960 F.Supp. 1022 (W.D. Va. 1977).

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein.

DONE AND ENTERED this 1st day of August, 2008, in Tallahassee, Leon County, Florida.

S

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 1st day of August, 2008.

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

Michele B. Brown, pro se

2634 North Point Circle, Apt. B Tallahassee, Florida 32308

Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett

Foster & Gwartney, P.A.

909 East Park Avenue 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: 08-001605

Orders for Case No: 08-001605