07-004305 Cynthia Diane Smith vs. Dollar General Status: Closed Recommended Order on Tuesday, January 15, 2008.

Summary: Petitioner did not appear at the hearing as scheduled. Recommend dismissing employment complaint of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA DIANE SMITH, )

)

Petitioner, )

)

vs. ) Case No. 07-4305

)

DOLLAR GENERAL, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

A hearing was held pursuant to notice, on January 10, 2008,

in Leesburg, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: No appearance

For Respondent: Anthony J. Hall, Esquire

Littler Mendelson, P.C.

4767 New Broad Street

Orlando, Florida 32814

STATEMENT OF THE ISSUE

Whether Respondent committed a violation of the Florida

Civil Rights Act of 1992, as alleged in the Employment Complaint

of Discrimination filed by Petitioner on February 5, 2007.

PRELIMINARY STATEMENT

Because of the procedural nature of the findings in this

case, the matters normally contained in the Preliminary

Statement are reflected in the Findings of fact below.

FINDINGS OF FACT

1. On February 5, 2007, Petitioner, Cynthia D. Smith,

filed an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR). On September 6, 2007,

FCHR issued a Determination: No Cause and a Notice of

Determination: No Cause. Petitioner filed a Petition for

Relief with FCHR on or about September 17, 2007.

2. FCHR transmitted the case to the Division of

Administrative Hearings (Division) on or about September 19,

2007, for the purpose of conducting a formal administrative

hearing. A Notice of Hearing and Order of Pre-Hearing

Instructions were issued on October 16, 2007, setting the case

for hearing on December 18, 2007, in Leesburg, Florida, where

Petitioner resides.

3. Respondent filed an unopposed Motion for Continuance

which was granted. An Order Granting Continuance and Re-

Scheduling Hearing was issued on December 3, 2007, rescheduling

the hearing for January 10, 2007, in Leesburg.

4. The undersigned traveled from Tallahassee to Leesburg,

Florida, to conduct the hearing. The hearing commenced as

scheduled. Respondent and its witnesses were present and ready

to proceed. Petitioner was not present when the hearing

commenced.

5. The undersigned recessed the hearing to give Petitioner

every opportunity to arrive. The undersigned checked the

reception area and the parking lot of the building where the

hearing was located to see if Petitioner was anywhere in or

around the building. In addition, the undersigned called her

assistant in Tallahassee to determine if any pleading had been

filed on the docket of the Division or any telephone call

received indicating Petitioner was delayed. No such

communication had been received.

6. While waiting for Petitioner to arrive, the undersigned

examined the address for Petitioner on the Order Granting

Continuance and Re-Scheduling Hearing. The address matched the

address on all orders mailed from the Division as well as the

address furnished by FCHR to the Division.

7. The hearing was reconvened approximately 35 minutes

after the time the hearing was scheduled to begin. However,

Petitioner did not appear and the hearing was adjourned.

8. There is nothing on the docket of the Division that

indicates that the Order Granting Continuance and Re-Scheduling

Hearing, or any other order, mailed to Petitioner was returned

as undeliverable. 1/

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569, 120.57, and 760.11, Fla. Stat.

10. Petitioner bears the initial burden of proving a prima

facie case of discrimination. McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973); Texas Department of Community Affairs v.

Burdine , 450 U.S. 248 (1981). Since Petitioner did not avail

herself of the opportunity to present a prima facie case, the

hearing was closed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and the

Conclusions of Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing Petitioner's Employment Complaint of

Discrimination.

DONE AND ENTERED this 15th day of January, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 15th day of January, 2008.

ENDNOTE

1/ If a piece of mail is returned to the Division with any

indication that it was not delivered as addressed, it is posted

on the docket for that particular case.

COPIES FURNISHED :

Cynthia Diane Smith

906 Perkins Street

Leesburg, Florida 34748

Anthony J. Hall, Esquire

Littler Mendelson, P.C.

4767 New Broad Street

Orlando, Florida 32814

Cecil 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 1000

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.