09-001967 Melvin Butler vs. Br Williams Trucking Status: Closed Recommended Order on Thursday, October 29, 2009.

Summary: Petitioner failed to appear or to withdraw his request for hearing. Recommend dismissal of petition for relief, but retain jurisdiction to award attorney's fees against Petitioner for participating in the proceeding for an improper purpose.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVIN BUTLER, )

)

Petitioner, )

)

vs. ) Case No. 09-1967

)

BR WILLIAMS TRUCKING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing

before P. Michael Ruff, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings, on

September 8, 2009, in Tallahassee, Florida. The appearances

were as follows:

APPEARANCES

For Petitioner: No appearance

For Respondent: Shaina Brenner, Esquire

Allen Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether the Petitioner was the victim of employment-related

discrimination based on his race, or in retaliation for

participation in activity protected by Chapter 760, Florida

Statutes.

PRELIMINARY STATEMENT

This cause arose on October 17, 2008, when the Petitioner,

Melvin Butler, filed a Complaint of Discrimination with the

Florida Commission on Human Relations (Commission) alleging that

the Respondent, BR Williams Trucking, discriminated against him

on the basis of race, and in retaliation for his participation

in an activity protected by Chapter 760, Florida Statutes. The

Petitioner alleged that he suffered an adverse employment action

by being terminated from employment and by being denied the

opportunity to be re-assigned to another job. The allegations

were investigated by the Commission, and a finding of “No Cause"

was entered on March 25, 2009.

The Petitioner filed a Petition for Relief on April 14,

2009, reiterating the charges which had been filed with the

Commission. The matter was then duly transmitted to the

Division of Administrative Hearings and the undersigned

Administrative Law Judge.

The case was first set for hearing on June 1, 2009. It was

continued at the request of the Petitioner, based on his

purported need to attend a funeral. The case was thereafter set

for hearing on September 8, 2009.

The Respondent appeared at the hearing and was prepared to

present its witnesses and evidence. The Petitioner never

appeared, even after the Respondent, its counsel and witnesses,

as well as the Judge, waited approximately one-half hour for the

Petitioner to arrive. His absence was never explained.

The Notice of Hearing was served on the Petitioner at his

last-known address of record. There has been no communication,

verbal or written, from the Petitioner to the undersigned or to

counsel for the Respondent since this case was noticed for

hearing this second time. After waiting for the above-

referenced period of time and because the Petitioner, with the

burden of proof, failed to appear and prosecute his claim, the

Respondent was not required to proceed with its case and the

hearing was adjourned.

FINDINGS OF FACT

1. This matter arose on April 14, 2009, when the Petition

for Relief herein was filed with the Commission. The dispute

was forwarded to the undersigned Administrative Law Judge at the

Division of Administrative Hearings and set for hearing on

June 1, 2009. The case was continued at the request of the

Petitioner, allegedly because of the need to attend a funeral,

and was re-noticed for hearing for September 8, 2009. No

further communication from the Petitioner, verbal or written,

was thereafter filed or received by the office of the

undersigned.

2. The cause came on for hearing, as noticed, on

September 8, 2009. The Respondent appeared at the hearing,

through counsel, and was prepared to proceed with its witnesses

and evidence.

3. The Petitioner never made an appearance, even after the

Respondent, its witnesses, and the undersigned waited for

approximately one-half hour. There has been no communication

from the Petitioner, with the Respondent or with the office of

the undersigned, or by any filing from the Petitioner, which

would provide any justification for the failure to appear and

prosecute his claim. The Notice of Hearing was served on the

Petitioner at his last-known address of record. Because the

Petitioner produced no proof at all concerning his

discrimination claim, no facts can be found regarding the merits

of the action. The Respondent does not have the burden of proof

in this case and was therefore not required to present its

evidence, although it was prepared to do so. In view of this

circumstance, the hearing was adjourned.

4. The Respondent seeks attorney fees and costs, by a

motion filed post-hearing (and Ore Tenus ). The basis for the

motion is that the Petitioner participated in this proceeding

for an improper purpose. § 120.595, Fla. Stat. (2009). There

has been no response to the motion.

5. The Respondent alleges in the motion that this case was

set for hearing on June 3, 2009, and continued based on the

Petitioner’s unsubstantiated need to attend a funeral. The

Order granting the continuance required the parties to confer

about new hearing dates within a time certain. The Petitioner,

however, did not thereafter communicate or cooperate with the

Respondent’s counsel.

6. The undersigned noticed the case for hearing for

September 8, 2009. No motion for continuance, or any other

communication was filed by, or received from the Petitioner

before the hearing was convened.

7. In the meantime, a companion case, before Judge Diane

Cleavinger, Case No. 08-5374, proceeded to hearing, with a

Recommended Order being entered on May 29, 2009. Judge

Cleavinger found that the claim of discrimination, based on race

and on alleged retaliation for engaging in “protected activity,”

had not been established. Although that case involved a

differently named Respondent (the present Respondent’s staffing

service), the facts and the claimed discriminatory conduct are

the same. The Recommended Order was adopted in the Commission’s

Final Order Dismissing Petition for Relief from an Unlawful

Employment Practice, entered on August 18, 2009. The Petitioner

was served with a copy of that Recommended Order and Final

Order, and thus is charged with knowledge that the same factual

claim of discrimination had not been proven and had been

dismissed, well before the September 8th hearing in this case.

8. The Petitioner, however, never communicated with

counsel for the Respondent, nor the Division of Administrative

Hearings in spite of the fact that a Final Order had been

entered to the effect that BR Williams Trucking had not

discriminated or retaliated.

9. The Respondent thus prepared for that hearing and

attended prepared to present its case. As noted above, the

Petitioner failed to appear and failed to respond to the subject

motion. The allegations of the motion are accepted as true.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding, pursuant to Sections 120.569 and 120.57, Florida

Statutes (2009).

11. The Respondent urges that a Recommended Order of

Dismissal be entered, based on the Petitioner’s failure to

appear at the hearing and prosecute his claim. The Petitioner

is the party with the burden of proof. The Petitioner has

failed to appear and present evidence, and has made no

explanation concerning his failure to appear. The record

reflects that the Petitioner received proper notice of the

hearing. In light of the circumstances found herein, dismissal

is warranted.

12. The Motion for Attorney’s Fees and Costs is unopposed.

Good cause has been established to support a finding that, under

the established circumstances, the Petitioner has participated

in this proceeding for an improper purpose, with a claim he

should have been aware was without merit, after the entry of the

Stat. (2009). The Respondent is the prevailing party. The

motion is granted, with the Respondent being entitled to an

award of attorney’s fees and costs attributable to preparation

for the September 8, 2009, hearing, attendance at the hearing,

and representation of the Respondent’s interest in this matter

during and after the hearing.

13. The Respondent will provide evidence of the amount of

such fees and costs, which may be by supporting affidavits,

within ten days of the date hereof. Jurisdiction will be

retained for entry of an award of fees and costs by separate

Order.

RECOMMENDATION

Upon consideration of the foregoing Findings of Fact and

Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

with prejudice. Jurisdiction is retained for entry of an Order

awarding attorney’s fees and costs, upon the Respondent’s

submittal of supporting documents, by affidavit, within ten days

of the date hereof.

DONE AND ENTERED this 29th day of October, 2009, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of October, 2009.

COPIES FURNISHED :

Shaina Brenner, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Melvin Butler

333 Barbara George Lane

Quincy, Florida 32352

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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.