04-002619 Irvin Wallace vs. Finfrock Status: Closed Recommended Order on Monday, March 14, 2005.

Summary: Petitioner did not appear at the hearing and therefore failed to make a prima facie case of retalitatory termination. Recommend that case be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRVIN WALLACE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2619

)

FINFROCK, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on January 4, 2005, in

Orlando, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: (No Appearance)

For Respondent: Charles E. Williams, Jr., Esquire

Ford & Harrison LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801 – 3379

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner on the basis of his race in violation of

Section 760.10, Florida Stat utes (2003).

PRELIMINARY STATEMENT

On June 30, 2004, the Florida Commission on Human Relations

(Commission) notified Petitioner that the Commission had

determined there was no reasonable cause to believe an unlawful

employment practice had occurred. Peti tioner filed a Petition

for Relief on July 9, 2004, and the Commission referred the

matter to DOAH to conduct an administrative hearing. At the

hearing, Petitioner did not appear and did not present any

testimony.

Respondent submitted three exhibits for a dmission into

evidence and called no witnesses to testify. The identity of

the exhibits and the rulings regarding each are reported in the

Transcript of the hearing filed with DOAH on February 16, 2005.

Respondent timely filed its proposed recommended or der (PRO) on

February 24, 2005. Petitioner did not file a PRO.

FINDINGS OF FACT

1. No findings are made concerning the alleged

discrimination. Petitioner did not appear and did not submit

any evidence to support findings of fact.

2. Findings are req uired concerning the adequacy of notice

of the administrative hearing. On March 9, 2005, Petitioner,

through his qualified representative, filed Petitioner's Request

for Final Hearing and Petitioner's Request for the Reopening of

Discovery.

3. Petition er received adequate notice of the

administrative hearing. The Commission referred this matter to

DOAH by cover letter dated July 19, 2004. DOAH assigned the

matter to ALJ Fred L. Buckine and transferred it to the

undersigned on October 26, 2004.

4. T he record shows that the two ALJs issued 10 notices or

orders in this proceeding between August 12 and December 1,

2004. 1 DOAH properly addressed, stamped, and delivered each

notice and order by U.S. mail to the address of record for

Petitioner, 1527 Sout h Central Avenue, Apopka, Florida 32703.

On and after August 30, 2004, DOAH also delivered a copy of each

notice and order by U.S. mail to the qualified representative.

The address of record for the qualified representative is the

same as that for Petit ioner. No notice or order was returned to

DOAH as undelivered.

5. During the four months preceding the administrative

hearing, Petitioner declined to participate in discovery due to

the poor health of his qualified representative. Respondent

requested two continuances in an effort to complete discovery.

Petitioner declined to complete discovery, and Respondent moved

to dismiss for failure to complete discovery. Respondent

alleged the qualified representative was "physically

unqualified" to represent Petitioner.

6. The undersigned denied Respondent's motion to dismiss

and granted a motion for continuance filed by Petitioner on

November 30, 2004. The motion for continuance was part of a

document entitled, "Petitioner's Request for Continuance of

Fi nal Hearing and Injunctive Relief Against Retaliatory

Termination" (Petitioner's Motion for Continuance).

Petitioner's Motion for Continuance discusses numerous grounds

for the continuance and only parenthetically states that his

qualified representative was in poor health. The Order Granting

Continuance and Re - scheduling hearing included the following

notice to Petitioner:

The undersigned deems Petitioner's motion

for continuance to be based on the illness

of Petitioner's Qualified Representative.

Petit ioner has had ample time to obtain a

replacement for his Qualified Representative

or to proceed pro se . The undersigned will

grant no further continuances based on the

illness of the Petitioner's Qualified

Representative.

Order Granting Continuance and Re - scheduling Hearing ,

dated November 30, 2004.

7. Petitioner's Motion for Continuance expressly admits

that Petitioner received delivery of relevant documents in this

proceeding. In relevant part, Petitioner states:

1. On or about November 25 and 26 , 2004,

the Friday and Saturday following

Thanksgiving, Petitioner, who receives the

mail in this case at his address for both

him and his Qualified Representative (who

has been repeatedly hospitalized during this

case for the sudden occurrence of life -

thr eatening congestive heart failure),

received in those days' mail the following

pleadings. . . . (emphasis added)

Petitioner's Motion for Continuance at 6.

9. Petitioner had actual notice of the administrative

hearing. During the week preceding the hea ring, staff at DOAH

contacted Petitioner, in the normal course of prehearing

procedure, and provided information concerning the date and time

of the hearing.

10. Petitioner had ample time between the last order

continuing the administrative hearing and t he date of the

hearing to file any motion for relief to which he was entitled

for good cause or extreme emergency. Petitioner did not file a

motion for relief. Petitioner did not represent that no other

person was competent or capable of representing Pet itioner

except for his qualified representative.

11. At the administrative hearing, the undersigned

telephoned Petitioner at a telephone number of record.

Petitioner answered, and the undersigned asked Petitioner if he

intended to attend the hearing. Petitioner refused to answer

and directed the undersigned to Petitioner's qualified

representative.

12. DOAH provided Petitioner and his qualified

representative with adequate notice of the administrative

hearing, and the undersigned conducted the hear ing. Petitioner

chose to neither request a continuance of the hearing or attend

the hearing. Petitioner now seeks to begin the process anew by

filing post - hearing motions for an administrative hearing. The

record does not support the remedy requested by Petitioner.

CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the parties and the subject

matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

(2003). The parties received adequate notice of the

administrative hearing.

14. The Notice of H earing sent to the address of record

for Petitioner and his qualified representative, like the other

eight other notices and orders issued in this proceeding, was

properly addressed, stamped, and mailed and was not returned.

Mail properly addressed, stamp ed, and mailed is presumed to be

received by the addressee if not returned. Brown v. Giffen

Industries, Inc. , 281 So. 2d 897, 900 (Fla. 1973).

15. There is no direct evidence of discrimination in this

case. In the absence of such evidence, discrimin ation must be

shown by circumstantial evidence.

16. The burden of proof in discrimination cases involving

circumstantial evidence is set forth in McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 802 - 03 (1973). Petitioner has the

initial burden of establis hing by a preponderance of the

evidence a prima facie case of discrimination. Failure to

establish a prima facie case of discrimination ends the inquiry.

See Ratliff v. State , 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA

1996), aff'd , 679 So. 2d 1183 (1996)( c iting Arnold v. Burger

Queen Systems , 509 So. 2d 958 (Fla. 2d DCA 1987)).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission enter a final order

dismissing the Petition for Relief.

DONE AND ENTERED this 14th day of March, 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 14th day of March, 2005.

ENDNOTE

1/ The notices and orders mailed to Petitioner were: an Order

of Pre - hearing Instructions and Notice of Hearing setting the

hearing for September 24, 2004, both dated August 19, 2004; an

Order, dated August 31, 2004, appointing Mr. Vincent L. Cheves

as the qualified representative for Petitioner; an Order

Granting C ontinuance and Re - scheduling Hearing for October 29,

2004, dated September 14, 2004; an Order Extending Time to

Complete Discovery, dated October 5, 2004; an Order Granting

Continuance and Rescheduling Hearing for December 10, 2004,

dated October 26, 2004; an Order Granting Motion to complete

discovery and compelling discovery, dated November 23, 2004; an

Order Granting Continuance and Re - scheduling Hearing for

January 4, 2005, dated November 30, 2004; and an Order Denying

Motions for Injunction, dated Dec ember 1, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Vincent Cheves

1527 South Central Avenue

Apopka, Florida 32703

Charles E. Williams, Esq uire

Ford & Harrison LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32802

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.