09-002386 Kimberly D. Dotson vs. Department Of Financial Services Status: Closed Recommended Order on Wednesday, January 26, 2011.

Summary: Petitioner failed to appear for the final hearing, and therefore failed to carry the burden of proving the facts alleged in her Petitions for Relief. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY D. DOTSON , )

)

Petitioner, )

)

vs. ) Case No s . 0 9 - 2386

) 10 - 10017

DEPARTMENT OF FINANCIAL )

SERVICES , )

)

Respondent. )

)

RECOMM ENDED ORDER OF DISMISSAL

Pursuant to notice, an administrative hearing in the above -

captioned matters was convened on January 24, 2011, in

Tallahassee, Florida before Lawrence P. Stevenson, a duly -

appointed Administrative Law Judge of the Division of

Adm inistrative Hearings.

APPEARANCES

For Petitioner : No appearance

For Respondent: Kim M. Fluharty - Denson, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee , Florida 32 399

STATEMENT OF THE ISSUE

The issue is whether this case should be dismissed based on

Petitioner's failure to appear at the hearing .

PRELIMINARY STATEMENT

On April 29, 2009, Petitioner, Kimbe rly D. Dotson, filed a

Petition for Relief with the Florida Commission on Human

Relations (FCHR). The petition alleged that Respondent, the

Department of Financial Services, had committed unlawful

employment practices against her. FCHR referred the case to the

Division of Administrative Hearings on May 5, 2009, and the case

was set for hearing on July 29, 2009 . The case was continued

four times over the course of the next nine months. On

April 21, 2010, an order was entered that placed the case in

abeya nce, pending the investigation of a retaliatory termination

complaint that Petitioner had filed and that FCHR was then

investigating. The case remained in abeyance for the next six

months.

On October 29, 2010, Petitioner filed a second Petition for

Relief , alleging that Respondent had terminated her employment

in retaliation for her filing the initial Petition for Relief.

FCHR referred the case to the Division of Administrative

Hearings on November 2, 2010. An O rder of C onsolidation was

entered on Novemb er 17, 2010. Also on November 17, 2010, a

N otice of H earing was issued that set the consolidated

proceedings for hearing on January 24 and 25, 2011.

On January 19, 2011, Petitioner filed a letter that

purported to inform this tribunal of the reasons why s he could

no t attend the scheduled hearing. Her reasons consisted of a

series of appointments she had made with government agencies

regarding prospective employment and a foreclosure prevention

program. She offered no explanation as to the necessity of

ma king these appointments in conflict with a hearing that had

been scheduled for two months. Petitioner also noted the fact

that she had lost her legal representation as a reason for

continuing the hearing. However, the order granting her counsel

leave to withdraw from representing Petitioner had been entered

on November 17, 2010, two months earlier. The Department of

Financial Services objected to any further continuance of the

hearing. By order dated January 20, 2011, the undersigned

treated Petitioner' s letter as a motion to continue the final

hearing and denied the motion.

FINDINGS OF FACT

1. The Notice of Hearing in these consolidated cases was

issued on November 17, 2010, setting the hearing for January 24

and 25, 2011, in Tallahassee, Florida. The hearing was

scheduled to commence at 9:30 a.m. on January 24, 2011.

2. Also on November 17, 2010, an Order of Pre - hearing

Instructions was entered.

3. Neither the Notice of Hearing nor the Order of Pre -

hearing Instructions was returned as undeliverable to

Petitioner.

4. On January 19, 2011, Petitioner filed a letter at the

Division of Administrative Hearings requesting that the hearing

be delayed until after February 18, 2011, due to various

appointments she had made that conflicted with the hearing

dat es. This letter indicated that Petitioner was aware of the

scheduled hearing dates.

5. By order dated January 20, 2011, the undersigned

declined Petitioner's request for failure to state grounds

sufficient to warrant a continuance over the objection of

R espondent . Several attempts to reach Petitioner by telephone

were unavailing.

6. At 9:30 a.m. on January 24, 2011, counsel and witnesses

for Respondent w ere present and prepared to go forward with the

hearing. Petitioner was not present. The undersigne d delayed

the commencement of the hearing by fifteen minutes, but

Petitioner still did not appear.

7. The hearing was called to order at 9:45 a.m. Counsel

for Respondent entered her appearance and requested the entry of

a recommended order of dismissal. The hearing was then

adjourned.

8. As of the date of this recommended order, Petitioner

has not contacted the Division of Administrative Hearings, in

writing or by telephone, to explain her failure to appear at the

hearing.

CONCLUSIONS OF LAW

9 . The Div ision of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 , 120.57(1), and 760.11, Fla. Stat.

(2010).

10. Petitioner has the burden of proving the allegations

in her petition by a preponde ranc e of the evidence. See

§ 120.57(1)(j), Fla. Stat. (20 10 ).

11. Petitioner failed to ap pear at the hearing or provide

notice of her inability to att end the hearing. Respondent and

its witnesses were present and prepared to go forward on the

merits of the case.

12 . There is no indication that Petitioner failed to

receive notice of the hearing. To the contrary, Petitioner's

filing of January 19, 2011, indicated that Petitioner knew the

scheduled dates and times of the hearing.

13. T here is no showing of an emergency that prevented

Petitioner from attending the hearing or contacting the Division

of Administrative Hearings to explain her failure to attend the

hearing.

1 4 . By virtue of Petitioner's failure to appear, it is

concluded that Petitioner no long er contests FCHR's "no cause"

determinations in each of the cases in this consolidated

proceeding. Thus, a disputed issue of fact no longer exists in

these cases.

15. Petitioner has failed to meet her burden of proof to

establish either her claim that Re spondent engaged in unlawful

employment practices or that Respondent terminated her

employment in retaliation for Petitioner's seeking a remedy with

FCHR.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

Th at the Florida Commission on Human Relations enter a

final order d ismissing the Petitions for Relief in these

consolidated cases .

DONE AND ENTERED this 2 6 th day of January , 201 1 , in

Tallahassee, Leon County, Florida.

S

L AWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

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 2 6 th day of January, 2011 .

COPIES FURNISHED :

Kimberly D. Dotson

825 Briandav Street

Tallahassee, Florida 32305

Kim M. Fluharty - Denson, Esquire

Department of Financial Services

612 Larson Building

2 00 East Gaines Street

Tallahassee, Florida 32399

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Mary Kowalski

Department of Financial Services

Human Resource

200 East Gai nes Street, Suite 112

Tallahassee, Florida 32399

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 subm it 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.