05-002399 Mohamed Dalhy vs. Grand Cypress Resort Status: Closed Recommended Order on Thursday, September 1, 2005.

Summary: The claim of aggrieved party who failed to appear and submit evidence to establish prima facie case should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOHAMED DALHY, )

)

Petitioner, )

)

vs. ) Case No. 05-2399

)

GRAND CYPRESS RESORT, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

formal hearing of this case on August 12, 2005, in Orlando,

Florida, on behalf of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: No appearance

For Respondent: Joanne B. Lambert, Esquire

Jackson Lewis LLP

390 North Orange Avenue, Suite 1285

Post Office Box 3389

Orlando, Florida 32802-3389

STATEMENT OF THE ISSUE

The issue presented is whether Respondent discriminated

against Petitioner on the basis of his religion and national

origin in violation of Section 760.10, Florida Statutes (2003).

PRELIMINARY STATEMENT

On June 1, 2005, 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. Petitioner filed a Petition

for Relief on June 15, 2005, 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

evidence.

Respondent submitted 24 exhibits for admission into

evidence and called one witness to testify. The identity of the

exhibits and witness and the rulings regarding each are reported

in the record of the hearing. Neither party requested a

transcript of the hearing, and neither party submitted a

proposed recommended order.

FINDINGS OF FACT

1. No findings are made concerning the merits of the

allegations of discrimination. Petitioner did not appear and

did not submit any evidence to support any findings of fact.

2. Petitioner received adequate notice of the formal

hearing. The ALJ issued a Notice of Hearing on July 19, 2005,

notifying the parties of the time and place of the hearing

conducted on August 12, 2005. DOAH mailed the Notice of

Hearing, by United States Postal Service (mailed), to Petitioner

at the address of record listed in the DOAH file as 10914 Mystic

Circle, Apartment 204, Orlando, Florida 32836 (the address of

record). The Notice of Hearing was properly addressed, stamped,

and mailed. The U.S. Postal Service did not return the Notice

of Hearing as undeliverable.

3. On July 5 and 19, 2005, DOAH mailed an Initial Order

and Order of Pre-Hearing Instructions (Pre-hearing Order) to

Petitioner. The U.S. Postal Service did not return either order

as undeliverable.

4. The address of record in the DOAH filed is the same

address that Petitioner listed in the Charge of Discrimination

and Petition for Relief filed with the Commission. The

Commission addressed the "Notice of Determination: No Cause" to

the same address as the address of record in the DOAH file.

5. Petitioner was employed by Respondent on the date of

the hearing. A representative of the personnel department for

Respondent testified at the hearing (the witness).

6. Petitioner had requested and been granted annual leave

for the day of the hearing and the day before the hearing. On

the date of hearing, Petitioner resided at the address of

record.

7. At the request of the ALJ, the witness telephoned

Petitioner from the hearing room at the telephone number listed

in Respondent's personnel file. The witness is the Director of

Personnel for Respondent, knows Petitioner personally, and has a

longstanding employment relationship with Petitioner.

8. The witness spoke directly to Petitioner. English is

not the native language for Petitioner, but the witness had no

difficulty communicating with Petitioner.

9. The witness informed Petitioner that the ALJ would

recess the hearing and wait for Petitioner to appear at the

hearing. Petitioner refused to avail himself of the opportunity

to appear at the hearing. Petitioner claimed he was not

prepared for the hearing and had not had adequate time to

prepare for the hearing.

10. Petitioner had adequate time to prepare for the

hearing. The DOAH file shows the Commission referred this

matter to DOAH by cover letter dated June 30, 2005. DOAH

received the referral on July 5, 2005, and issued an Initial

Order on the same date. On July 19, 2005, DOAH mailed the Pre-

hearing Order and Notice of Hearing to Petitioner.

11. When Petitioner received the Initial Order shortly

after July 5, 2005, Petitioner knew, or should have known, of

the need to begin preparing for the formal hearing. The Initial

Order requires the parties, inter alia , to estimate how long the

formal hearing will take for both parties to present their

evidence.

12. Petitioner knew, or should have known, of his right to

discovery and the need to complete discovery no later than five

days before the date of the hearing. The Summary of Procedures

attached to the Initial Order provides, in relevant part:

1. Discovery may be undertaken in the

manner provided in the Florida Rules of

Civil Procedure and should be initiated

immediately if desired. Necessary subpoenas

and Orders may be obtained through the

assigned Judge. Discovery must be completed

5 days before the date of the final hearing

unless an extension of time for good cause

is granted.

13. Petitioner did not respond to the Initial Order.

Respondent filed a unilateral response to the Initial Order with

DOAH on July 12, 2005. On the same date, Respondent served

Petitioner with a copy of the unilateral response.

14. When Petitioner received the Prehearing Order shortly

after July 19, 2005, Petitioner knew, or should have known, of

the need to prepare for the formal hearing. The Pre-hearing

Order, dated July 19, 2005, provides, in relevant part:

1. No later than 15 days prior to the final

hearing Petitioner and Respondent shall

provide each other with a list of the names

and addresses of those persons which that

party intends to call as witnesses during

the final hearing in this cause and shall

provide to each other copies of the

documents which that party intends to offer

as exhibits during the final hearing.

Failure to do so may result in the exclusion

at the final hearing of witnesses or

exhibits not previously disclosed. . . .

2. No later than 12 days prior to the final

hearing in this cause, the parties shall

confer with each other to determine whether

this cause can be amicably resolved.

15. Petitioner declined to participate in the discovery

described in the Pre-hearing Order. Respondent unilaterally

filed its witness list with DOAH on August 1, 2005. On the same

date, Respondent served Petitioner with a copy of the witness

list.

16. On August 10, 2005, at 2:45 p.m., Petitioner filed

with DOAH, by facsimile, a hand-written request for continuance

(motion for continuance). The motion for continuance is written

in English and signed by Petitioner; as were the Petition for

Relief and Charge of Discrimination. The motion requests a

continuance, "[S]o I can get a lawyer, witnesses, and prepare

myself for hearing."

17. The motion for hearing does not include a certificate

of service or other indication that Petitioner served Respondent

with a copy of the motion for continuance. On its face, the

motion is an ex - parte communication.

18. On August 10, 2005, an administrative secretary of

DOAH telephoned counsel for Respondent to determine whether

counsel had received a copy of the motion and whether Respondent

objected to the motion for continuance. Counsel had not

received the motion. Upon hearing the motion read to counsel,

counsel objected to the motion.

19. At the instruction of the ALJ, the administrative

secretary telephoned Petitioner and spoke to a person who

identified himself as the son of Petitioner. The administrative

secretary advised him that the ALJ had denied the motion for

continuance and that Petitioner should attend the formal hearing

on August 12, 2005.

20. On August 10, 2005, the ALJ also issued a written

Order Denying Continuance that memorialized the ore tenus denial

of the motion. DOAH mailed the written order to Petitioner on

the same date to the address of record. The Order was properly

addressed, stamped, and mailed.

21. Insufficient time to prepare for the formal hearing

arguably is good cause for a continuance. However, Petitioner

knew, or should have known, that a motion for continuance for

good cause must be filed no later than five days before the

formal hearing. The Initial Order received by Petitioner

shortly after July 5, 2005, provides, in relevant part:

4. Rule 28-106.210, Florida Administrative

Code, provides that requests for

continuances must be made at least 5 days

prior to the date of the hearing, except in

cases of extreme emergency, and will be

granted only by Order of the Judge for good

cause shown.

22. The applicable rule arguably required Petitioner to

file the motion for continuance based on good cause no later

than August 8, 2005, because August 7, 2005, was a Sunday. 1

However, Petitioner did not file the motion for continuance

until August 10, 2005.

23. The applicable rule authorized the ALJ to grant a

motion for continuance filed less than five days before the

formal hearing, only on grounds that satisfy the test of extreme

emergency. Assuming arguendo that Petitioner had insufficient

time to prepare for the formal hearing, that ground is not an

extreme emergency. Petitioner knew, or should have known, long

before August 10, 2005, that he would be unable to prepare for

the formal hearing in the 24 days between July 19 and August 12,

2005.

24. Respondent had adequate time to prepare for the formal

hearing. Respondent produced seven witnesses at the formal

hearing, including four current employees and three former

employees. Respondent also arranged for the attendance of a

certified interpreter at the hearing. Respondent prepared 24

exhibits for admission into evidence. The Commission arranged

for a court reporter to record the hearing. The ALJ traveled

from Tallahassee to Orlando after instructing Petitioner,

through the ALJ's administrative secretary, to attend the formal

hearing.

25. If the ALJ were to have exercised discretion by

granting a continuance requested less than five days before the

hearing in the absence of an extreme emergency, such an exercise

of discretion would have been inconsistent with a valid existing

rule. A reviewing court would have been statutorily required to

remand the case to DOAH for further proceedings consistent with

the rule. § 120.68(7)(e)2., Fla. Stat. (2005).

CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the parties and the subject

(2005). The parties received adequate notice of the formal

hearing.

27. The Notice of Hearing mailed to the address of record

for Petitioner, like the Initial Order and Pre-hearing Order,

was properly addressed, stamped, and mailed and was not

returned. A Notice or Order properly addressed, stamped, 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).

28. There is no direct evidence of discrimination in this

case. In the absence of such evidence, discrimination must be

shown by circumstantial evidence.

29. 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 establishing 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 (Fla. 1996)( citing Arnold v.

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

30. Petitioner did not establish a prima facie case of

discrimination. The inquiry is over.

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 1st day of September, 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 1st day of September, 2005.

ENDNOTE

1/ Respondent may argue that the rule required Petitioner to

file the motion for continuance on August 5, 2005, a Friday,

because the next business day was less than five days before the

hearing. The ALJ does not rule on that specific issue because it

is unnecessary to do so under the facts in this case.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mohamed Dalhy

10914 Mystic Circle, Apartment 204

Orlando, Florida 32836

Joanne B. Lambert, Esquire

Jackson Lewis LLP

390 North Orange Avenue, Suite 1285

Post Office Box 3389

Orlando, Florida 32802-3389

Diane E. Stanton, Esquire

Jackson Lewis LLP

Post Office Box 3389

Orlando, Florida 32802-3389

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.