07-004827 Jimmy O. Gathers vs. Del-Jin Status: Closed Recommended Order on Wednesday, March 5, 2008.

Summary: The Petitioner had the burden of proof on discrimination claims and failed to appear at hearing. No explanation of default was made by Petitioner. The case is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMY O. GATHERS, )

)

Petitioner, )

)

vs. ) Case No. 07 - 4827

)

DEL - JIN, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice this cause came on for formal proceeding

and hearing before P. Michael Ruff, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings in Panama City, Florida, on January 22, 2008. The

appearances were as follows:

APPEARANCES

For Petitioner: No appearance

For Respondent: M. Kristen Allman, Esquire

Oagletree, Deakins, Nash, Smoak &

Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa, Florida 33062

STATEMENT OF THE ISSUE :

The issue to be resolved in this proceeding concerns

whether the Petitioner, because of his race, was given different

terms and conditions of employment by being denied training,

being unfairly disciplined, retaliated against, terminated, and,

if those allegations are proven, what remedy is warranted.

PRELIMINARY STATEMENT

This cause arose upon the filing of a Charge of

Discrimination on February 1, 2007, by the above - named

Petitioner. After investigation the Florida Commission on Human

Relations (Commission) made a Determination of "No Cause," after

which the Petitioner exercised his right to file a Petition for

Relief and to have the matter referred for formal proceeding to

the Division of Administrative Hearings. The referral was made

and the proceeding was ultimately assigned to the undersigned

Administrative Law Judge.

The cause came on for hearing as noticed. The Petitioner

failed to appear at the hearing, and no evidence was adduced in

proof of the Petitioner's claims. The Petitioner bears the

burden of proof and, ther efore, inasmuch as no evidence was

presented for the Petitioner, it was unnecessary for the

Respondent to go forward with its case and evidence. After

giving an ample opportunity for the Petitioner to appear and

prosecute his claim, the hearing was adjour ned.

FINDINGS OF FACT

1. The Petitioner, Jimmy O. Gathers, filed a Petition for

Relief asserting that he was wrongfully terminated from his

position with the Respondent employer and, before termination,

was subjected to inadequate and improper training, i nadequate

work materials, was unfairly disciplined, and was ultimately

retaliated against and terminated, all because of his race

(African - American). The cause was set for hearing on the

Petition for Relief for January 22, 2008, at the Office of the

Judge s of Compensation Claims, hearing room two, 2401 State

Avenue, Suite 100, Panama City, Florida, at 10:00 a.m. Central

Time. The Notice of Hearing was sent to the Petitioner's last

known address of record at 621 Maine Avenue, Panama City,

Florida 32401, no tifying the Petitioner of the hearing on the

above date, time, and place. There was no communication from

the Petitioner by motion, letter, telephonically, or otherwise

indicating that the Petitioner had any difficulty which might

prevent his attending th e hearing at the noticed date, time, and

place.

2. Upon convening the hearing, the Petition failed to

appear. A substantial period of time was allowed to elapse,

nearly one hour, in which the undersigned and the Respondent and

Respondent's witnesses wait ed for the Petitioner to appear to

put on his case. Additionally, various persons in attendance,

Respondent's counsel and employees or personnel of the

Respondent were requested and did observe within the building at

the hearing site and in the immediate environs of the building

to see if the Petitioner was observed in the vicinity of the

hearing site. The Petitioner was not observed in the environs

of the hearing site and never appeared at the hearing during the

additional time allowed him for his appear ance. Finally, after

waiting a substantial period of time, as referenced above, it

was determined that the Petitioner had not appeared to prosecute

his claim and, since the Petitioner bears the burden of proof in

this proceeding, it was determined that it was unnecessary for

the Respondent to adduce any evidence in support of its position

in this case and the hearing was adjourned.

3. In excess of one month has elapsed since the hearing

date, and there has been no communication from the Petitioner

with th e undersigned, and no indication from the Respondent that

any communication from the Petitioner has been received by the

Respondent, which might explain the Petitioner's absence from

the noticed hearing.

CONCLUSIONS OF LAW

4. The Division of Administrativ e Hearings has

jurisdiction of the subject matter of and the parties to this

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

5. The Petitioner bears the burden of proof in this

proceeding St. Mary's Honor Center v. Hicks , 509 U.S. 502

(1993). The Petit ioner failed to appear and has failed to

communicate with the undersigned and no indication from the

Respondent has been received by the undersigned which would

indicate any effort by the Petitioner to communicate with the

Respondent on the day of or since the day of the noticed

hearing. The Petitioner bears the burden of proof in this

proceeding to put on evidence probative of his claims regarding

racial discrimination in the employment practices of the

Respondent. The Petitioner failed to appear and put on such

evidence. Therefore, the Respondent had no necessity to adduce

evidence in support of its case. After waiting a substantial

period of time, nearly an hour, with no appearance from the

Petitioner, the hearing was adjourned. Inasmuch as no cause has

been demonstrated by the Petitioner for his failure to appear

and prosecute his claims, it is determined that the Petitioner

has failed to prosecute his claim. Therefore, at this time, in

excess of one month after the time and date set for hearing,

th is matter should be dismissed for lack of prosecution.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, it is, therefore,

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the subject petition in

its entirety.

DONE AND ENTERED this 5th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

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 5th day of March, 2008.

COPIES FURNISHED :

Ce cil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 323 01

M. Kristen Allman, Esquire

Oagletree, Deakins, Nash, Smoak &

Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa, Florida 33062

Jimmy O. Gathers

621 Marine Avenue

Panama City, Florida 32401

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.