00-003426 Bobbi Debose vs. Columbia North Florida Regional Medical Center Status: Closed Recommended Order on Monday, January 14, 2002.

Summary: Petitioner`s failure to appear at final hearing resulted in her not meeting necessary burden of proof. Recommended order of dismissal. Order recites egregious disregard for process and cost increase due to Petitioner`s non-participation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOBBI DEBOSE, )

)

Petitioner, )

)

vs. ) Case No. 00 - 3426

)

COLUMBIA NORTH FLORIDA REGIONAL )

MEDICAL CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

T his cause came on for a disputed - fact hearing on the merits

on December 13, 2001, in Gainesville, Florida, before

Ella Jane P. Davis, a duly - assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: N o Appearance

For Respondent: James J. Dean, Esquire

Messer, Caparello & Self, P.A.

Post Office Box 1876

215 South Monroe Street, Suite 701

Tallahassee, Fl orida 32302 - 1876

STATEMENT OF THE ISSUE

Whether Respondent Employer is guilty of an unlawful

employment practice by termination of Petitioner on the basis of

racial discrimination.

PRELIMINARY STATEMENT

This case appears before the Division of Administrative

Hearings upon remand, on or about February 23, 2001, from the

Florida Commission on Human Relations .

On December 13, 2001, Petitioner did not appear for a duly -

noticed disputed - fact hearing on the merits of her Petition for

Relief, and Res pondent moved for dismissal.

Beyond the foregoing introduction, the procedural matters of

this cause are addressed in the following Findings of Fact and

Conclusions of Law.

FINDINGS OF FACT

1. This cause was initially referred to the Division of

Admin istrative Hearings on or about August 14, 2000, following

investigation and a "Determination: No Cause" by the Florida

Commission on Human Relations .

2. Also on August 14, 2000, the Division of Administrative

Hearings issued its Initial Order. On August 16, 2000,

Respondent filed a response thereto. Petitioner never responded.

3. On August 30, 2000, Respondent filed a Motion to

Dismiss, based on the untimeliness of the Petition for Relief.

Petitioner did not timely file a response in opposition to the

Motion, pursuant to Rule 28 - 106.204, Florida Administrative Code

(formerly Rule 60Q - 2.016, Florida Administrative Code).

4. On September 27, 2000, the undersigned issued an Order

taking the Motion to Dismiss under advisement and granting ten

additional days beyond the time provided by rule in which

Petitioner would be allowed to file any written response in

opposition to the pending Motion to Dismiss.

5. Petitioner did not file any response in opposition to

the Motion to Dismiss under the terms of th e September 27, 2000,

Order.

6. On October 20, 2000, a Recommended Order was issued,

dismissing the Petition.

7. On February 8, 2001, the Florida Commission on Human

Relations entered an Order re - interpreting its rules and

departing from the long line of cases upon which the October 20,

2000, Recommended Order had been based. The Commission's Order

remanded the cause to the Division for a hearing on the merits. 1

8. On February 27, 2001, the Clerk of the Division of

Administrative Hearings reopened t he case. Also on February 27,

2001, a Notice of Hearing was entered scheduling the disputed -

fact hearing on the merits for March 20, 2001.

9. On March 16, 2001, a Notice of Automatic Stay was filed.

The cause was stayed before the Division pending rev iew of the

Commission's Order of Remand by the First District Court of

Appeal. 2

10. By an Order dated August 16, 2001, the First District

Court of Appeal denied Respondent's Petition for Writ of

Prohibition or Quo Warranto, and, in effect, upheld the

Co mmission's remand, thereby concluding the automatic stay of

proceedings before the Division. 3

11. On August 30, 2001, Respondent filed a Motion to Compel

answers to its interrogatories and for Petitioner to be deposed.

Respondent's Motion also requested that sanctions be imposed

against Petitioner for her non - appearance at her deposition which

had been duly - noticed for October 18, 2000, prior to the

Recommended Order of Dismissal. The Motion was accompanied by a

supporting affidavit by a court reporter documenting and

attesting to Petitioner's non - appearance for her deposition.

12. Petitioner filed no timely response in opposition to

the motion to compel and for sanctions.

13. On September 14, 2001, the undersigned entered an Order

requiring Petiti oner to file a response to the Motion within an

additional ten days. Petitioner again failed to respond to the

Motion to Compel.

14. By an Order and Notice of Hearing entered October 5,

2001, the Motion to Compel was granted in part and denied in

part. Petitioner was ordered to appear for her deposition to be

re - scheduled by Respondent in Petitioner's county of residence,

at a mutually convenient date and time if Petitioner would

specify a convenient date and time. If Petitioner would not

specify a da te and time, the deposition was to be scheduled by

Respondent in Petitioner's county of residence on at least ten

days' notice. Any issue as to sanctions was deferred until the

commencement of the hearing on the merits, which was rescheduled

for December 13, 2001, when, presumably, Petitioner would be

present and able to orally present any opposition.

15. An Order of Pre - hearing Instructions was also entered

and mailed on October 5, 2001.

16. On December 4, 2001, Respondent filed a Motion for

Continua nce and for Dismissal of the Petition for Relief due to

Petitioner's failure, yet again, to appear for her duly - noticed

deposition on November 30, 2001. A court reporter's affidavit

was again attached. Petitioner did not respond thereto.

17. On Decem ber 11, 2001, Respondent filed a Unilateral

Pre - hearing Statement in accord with the Order of Pre - hearing

Instructions. Petitioner failed to comply with the Order of

Pre - hearing Instructions, even to the extent of stating her

position or listing the witn esses she intended to call at the

hearing on the merits.

18. On December 13, 2001, at the time and place appointed

for final hearing on the merits, Petitioner did not appear.

19. A court reporter provided by, and at the expense of,

the Commission app eared. Counsel for Respondent and Respondent's

principal agent appeared. The Division incurred the expense of

the undersigned's travel to Petitioner's and Respondent's county

of residence where the hearing was scheduled. Respondent

incurred the cost of its attorney's travel.

20. All concerned waited half - an - hour and Petitioner did

not appear.

21. The undersigned then inquired of Respondent's counsel

if any items he had mailed to Petitioner had been returned to him

by the United States Postal Service . He indicated on the record

that none had been returned to him and that Petitioner had never

communicated with him.

22. No Order or Notice sent by the Division to Petitioner

has been returned to the Division by the United States Postal

Service.

23. T he presumption, therefore, is that Petitioner has

received all pleadings and papers served by Respondent's counsel

and has received all Orders and Notices issued by the Division of

Administrative Hearings. Accordingly, it can only be concluded

that Petiti oner has willfully disregarded the Order and Notices

of this forum.

24. Respondent's counsel filed, in open court, an Affidavit

addressing attorney's fees and costs incurred by Respondent as a

result of defending this case in the face of Petitioner's will ful

refusal to comply with Respondent's legitimate discovery requests

and Orders of this forum. Respondent moved orally for an

assessment of said costs and attorney's fees against Petitioner.

That matter has been addressed by an interlocutory order.

25 . After waiting a total of 45 minutes, Petitioner still

had not appeared.

26. The final merits hearing was adjourned and its record

closed without Petitioner presenting any evidence in support of

her charge of discrimination or her Petition for Relief from an

unlawful employment practice.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has jurisdiction

over the parties and subject matter of this cause, pursuant to

Section 120.57(1), Chapter 760, Florida Statutes, and the

Commission rema nd.

28. Petitioner's failure to appear and put on evidence

means that she has failed to carry her duty to go forward and her

burden of proof by a preponderance of the evidence to establish

that an unlawful employment practice has been committed against

her by Respondent Employer, pursuant to Section 760.10, Florida

Statutes.

29. The fact that Petitioner has failed to prevail upon the

merits makes it unnecessary to rule upon any of Respondent's

pending Motions to Dismiss.

RECOMMENDATION

Upon the fore going 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 _____ day of January, 2002, in

Tallahassee, Leon C ounty, 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 (85 0) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this _____ day of January, 2002.

ENDNOTES

1/ The undersigned is without knowledge as to whether or not

Petitioner participated or even appeared at this st age of the

proceedings.

2/ The Commission appeared in the appellate proceedings. The

undersigned is without knowledge as to whether Petitioner

participated, or even appeared, at this stage of the proceedings.

3/ However, the District Court's Order was not filed with the

Division until September 11, 2001.

COPIES FURNISHED :

James J. Dean, Esquire

Messer, Caparello & Self, P.A.

Post Office Box 1876

215 South Monroe Street, Suite 701

Tallahassee, Florida 32302 - 1876

Bobbi Debose

1129 Northeast 24th St reet

Gainesville, Florida 32641

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Kn ox 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.