04-001647F Family Dollar Stores vs. Heather H. Stewart Status: Closed DOAH Final Order on Friday, June 4, 2004.

Summary: Petitioner prays for attorney`s fees pursuant to Section 57.105, F.S., for relief to be granted on record/pleadings. Fees are awarded if claim is not supported by material facts. With no appearance/hearing and no factual findings, fees are denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FAMILY DOLLAR STORES, )

)

Petitioner, )

)

vs. ) Case No. 04-1647F

)

HEATHER H. STEWART, )

)

Respondent. )

)

FINAL ORDER

This case arose on a petition filed with the Florida

Commission on Human Relations, which determined that it lacked

jurisdiction to consider an award of attorney's fees pursuant to

Section 57.105, Florida Statute. The Florida Commission on

Human Relations referred the petition to the Division of

Administrative Hearings as though the petition were filed in

error, and it was assigned to the undersigned who was the

Administrative Law Judge assigned to the original case.

An Initial Order was issued requesting the parties to

provide dates that they were available for hearing. In

response, Petitioner in this case filed a response that

provides, in pertinent part, that Petitioner does not believe

that a hearing is necessary because Petitioner in the original

case and Respondent in this cause did not appear for the final

hearing after notice and had not requested a continuance.

Petitioner prays that the matter be determined without hearing

based upon the record and the pleadings.

Petitioner herein request attorney's fees pursuant to

Section 57.105, Florida Statutes, which provides as follows:

57.105 Attorney's fee; sanctions for raising

unsupported claims or defenses; service of

motions; damages for delay of litigation.

(1) Upon the court's initiative or motion of

any party, the court shall award a reasonable

attorney's fee to be paid to the prevailing

party in equal amounts by the losing party

and the losing party's attorney on any claim

or defense at any time during a civil

proceeding or action in which the court finds

that the losing party or the losing party's

attorney knew or should have known that a

claim or defense when initially presented to

the court or at any time before trial:

(a) Was not supported by the material facts

necessary to establish the claim or defense;

or

(b) Would not be supported by the

application of then-existing law to those

material facts.

Subsection (5) of this statute provides that in an

administrative proceeding, the Administrative Law Judge shall

award attorney's fees and damages in the same manner and upon

the same basis as provided in Sections (1) through (4) of the

statute. Such a determination shall be a final order.

Subsection (1) above, provides that attorney's fees may be

awarded by the judge when the court finds that the losing party

knew or should have known that the claim or defense when

initially presented to the court was not supported by the

material facts necessary to establish the claim or defense or

would not be supported by the application of the then-existing

law to those material facts.

The award of attorney's fees is predicated upon a

determination of the material facts. There was no factual

determination in this case. The burden was upon the original

Petitioner, who did not appear and did not present any facts.

The award of fees would be appropriate if a petitioner did not

plead or present a prima facie case. In the preceding case, the

original Respondent did not file a motion to dismiss; therefore,

the adequacy of the pleadings was not tested.

In a case in which Petitioner does not appear and does not

present any evidence, it is impossible to determine whether the

material facts support the pleadings. In human relations cases,

the typical allegations are that the petitioner is a member of a

protected class; the employer took some employment action that

was adverse to the petitioner; and the motivation for taking the

action was precluded by statute. Under the analysis of these

cases advanced in McDonnell-Douglas v. Green , 411 U.S. 792, upon

this showing, the employer must advance a non-discriminatory

reason for the action, or the employee will prevail. If the

employer makes this showing, the employee must show that the

reason advanced by the employer is a pretext for discrimination.

Given the state of the law in such cases, in the absence of

the presentation of any evidence by either party, it is

impossible to determine whether the original Petitioner knew or

should have known her claim was not supported by the material

facts of the case. Therefore, the instant petition for fees is

denied.

DONE AND ORDERED this 4th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of June, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

Heather H. Stewart

626 Northwest Sixth Avenue

Webster, Florida 33597

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of appeal with the Clerk of the Division of Administrative

Hearings and a copy, accompanied by filing fees prescribed by

law, with the District Court of Appeal, First District, or with

the District Court of Appeal in the Appellate District where the

party resides. The notice of appeal must be filed within 30 days

of rendition of the order to be reviewed.