03-003331 Anna L. Elam vs. Flagler County Status: Closed Recommended Order on Thursday, February 19, 2004.

Summary: Petitioner alleged that she was discriminated against by Respondent because of her age. Petitioner voluntarily failed to appear at the duly-noticed hearing. Upon Respondent`s Motion of Recommended Order of Dismissal, the case was dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNA L. ELAM, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3331

)

FLAGLER COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this matter c ame on for hearing before

Robert S. Cohen, a duly - designated Administrative Law Judge of

the Division of Administrative Hearings, in Bunnell, Florida, on

February 17, 2004 . The appearances were as follows:

APPEARANCES

For Petitioner : Anna L. Elam, pro se

No appearance

For Respondent : Andrew B. Thomas, Esquire

1625 Lakeside Drive

Deland, Florida 32720

STATEMENT OF THE ISS UES

The issues to be resolved in this proceeding concern

whether the Petitioner, Anna L. Elam, was not offered employment

as an elementary school teacher and was therefore discriminated

against by the Respo ndent, Flagler County Schools, on the basis

of her age.

PRELIMINARY STATEMEN T

This cause arose on February 15, 2003, when the Petitioner

filed an Amended Charge of Employment Discrimination with the

Florida Commission on Human Relations (“Commission”). T he

amended complaint alleged that the Petitioner was denied

employment with the Respondent as of September 4, 2002, because

of her age. The Petitioner alleged that she had applied for

employment with the Respondent; had been interviewed several

times; but had not been offered employment. The Petitioner

alleged that she met one of the other applicants for a position

for which she applied and that the applicant was younger than

she. Petitioner further alleged that the Flagler County School

Administrator sa id she was too old to be hired as an elementary

school teacher. The allegations in the amended complaint were

investigated and, on July 28, 2003, the Commission issued a

determination of “no cause” to believe that a discriminatory act

had occurred. The P etitioner then filed a Petition for Relief

and was granted a formal proceeding and an evidentiary hearing.

The hearing was held in the Flagler County Courthouse in

Bunnell, Florida, pursuant to notice, before the undersigned

Administrative Law Judge, on F ebruary 17, 2004.

The cause came on for hearing as noticed. The day prior to

the hearing, the Petitioner called and spoke with both the

assistant to Administrative Law Judge P. Michael Ruff (to whom

the case had originally been assigned) and to the assis tant to

the undersigned, to inform them that she had no legal

representation and was therefore not going to appear at the

hearing on February 17, 2004. Both Judge Ruff’s and the

undersigned’s assistants informed the Petitioner that she must

attend the hea ring and tell the undersigned personally of her

intent to abandon her case if this was her desire. The

Petitioner stated that she understood and both judicial

assistants assumed that she would appear at the hearing in

Bunnell. Upon convening the hearing at approximately 20 minutes

after the appointed hour, the Petitioner had not appeared. The

undersigned inquired of counsel for the Respondent as to how he

wished to proceed and was informed that the Respondent would ore

tenus move for a recommended order of dismissal of the action,

since it appeared clear that the Petitioner had voluntarily

absented herself from the final hearing.

The Petitioner has the burden of proof and a recommended

order of dismissal could be entered based upon the Petitioner’s

fai lure to appear without justification, of which none has been

filed or communicated to the judge. The Respondent elected not

to put on its case - in - chief, choosing to allow the case to be

recommended for dismissal as though the Petitioner had filed a

volunt ary dismissal of the cause. The hearing had been duly

noticed and the Petitioner had clearly been aware of the time

and place of the hearing based upon contact made the day before

the hearing with the assistants to both Judge Ruff and the

undersigned.

Upo n conclusion of the hearing, the undersigned closed the

proceedings, noting that the Petitioner had failed to appear of

her own volition since no calls had been made to the Clerk’s

Office at the Flagler County Courthouse or to the Division of

Administrativ e Hearings, other than the calls referenced above

as having been made to Judge Ruff and the undersigned’s

assistants, which indicated the Petitioner’s voluntary absence

from the hearing. Since no evidence or testimony was taken at

the hearing, the undersi gned agreed to prepare a recommended

order of dismissal of the cause without benefit of a transcript

or proposed recommended orders.

References to statutes are to Florida Statutes (2002)

unless otherwise noted.

FINDINGS OF FACT

1. The Petitioner filed an Amended Charge of Employment

Discrimination with the Florida Commission on Human Relations

(“Commission”) on February 15, 2003.

2. The Commission investigated the amended complaint and

issued a determination of no cause that discrimination had

occurre d.

3. The Petitioner timely requested a formal administrative

hearing and the petition was duly referred to the Division of

Administrative Hearings by the Commission.

4. Upon notice, this matter was set for formal hearing on

December 18, 2003, at the Fla gler County Courthouse in Bunnell,

Florida.

5. Following a Motion for Continuance filed by the

Respondent, the final hearing was reset for February 17, 2004,

at the same location in Bunnell, Florida.

6. The Petitioner called and spoke with Melissa Young,

assistant to Administrative Law Judge P. Michael Ruff, and to

Claudia Lladó, assistant to the undersigned, to inform them that

she had no legal counsel and was therefore not going to appear

at the February 17, 2004, hearing. Both assistants informed the

Petitioner that she should attend the hearing and inform the

undersigned personally as to her intention of whether to

proceed.

7. The undersigned convened the hearing in Bunnell,

Florida, on February 17, 2004.

8. Counsel for the Respondent appeared at the hearing

along with approximately five witnesses for the Respondent who

intended to testify.

9. Neither the Petitioner nor anyone purporting to be

counsel or a qualified representative for the Petitioner

appeared at the hearing or within 45 minutes of the time

scheduled for the hearing, 10:00 a.m.

10. Neither the Petitioner nor anyone purporting to be

counsel or a qualified representative for the Petitioner

submitted any evidence via deposition, sworn testimony or

documentary evidence prior to, at the time of, or subsequent to

the hearing on February 17, 2004.

11. Other than the calls to the assistants to the judges,

neither the Petitioner nor anyone purporting to be counsel or a

qualified representative for the Petitioner has contacted the

undersigned or his assistant subsequent to the hearing on

February 17, 2004.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Sections 120.57(1) and 120.569, Florida Statut es.

13. The Petitioner has failed to prove a prima facie case

of discrimination on account of her age because she voluntarily

failed to appear and present evidence at the duly - and properly -

noticed formal hearing. Since the Respondent chose not to

presen t any evidence or testimony at the hearing, the record is

devoid of any possible set of facts or circumstances to support

a claim of age discrimination in the Respondent’s lack of hiring

the Petitioner as an elementary school teacher in Flagler

County.

REC OMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, arguments of the Respondent and the fact

that the Petitioner voluntarily absented herself from the

hearing, it is, therefore,

RECOMMENDED that a Final Order be entered by the Florida

Commission on Human relations dismissing the Petition for Relief

in its entirety.

DONE AND ENTERED this 19th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Heari ngs

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 19th day of February, 2004 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Anna L. Elam

23 Patric Drive

Palm Coast, Florida 32164

Andrew B. Thomas, Esquire

1625 Lakeside Drive

Deland, Florida 32720

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO S UBMIT EXCEPTIONS

All parties have the right to submit written exceptions withi n

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.