12-001194 Brandy Lee Colwell vs. Cracker Barrel Old Country Store Status: Closed Recommended Order on Tuesday, June 12, 2012.

Summary: Recommended dismissal due to Petitioner's failure to present evidence in support of her claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRANDY LEE COLWELL , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1194

)

CRACKER BARREL OLD COUNTRY )

STORE , )

)

Respondent . )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for hearing pursuant to notice on June 7,

2012, in Lake City, Florida, before James H. Peterson, III,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Kris B. Robinson, Esquire

Robinson, Kennon and Kendron, P.A.

582 West Duval Street

Post Office Box 1178

Lake City, Florida 32056 - 1178

For Respondent: Luis A. Santos, Esquire

Fo rd and Harrison, LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Respondent , Cracker Barrel Old Country Store

(Respondent ) , subjected Petitione r , Brandy Lee Colwell

(Petitioner) , to employment discrimination based upon

Petitioner's race , and/ or retaliated against Petitioner because

of her complaint against Respondent alleging discriminat ory

employment practices , in violat ion of the Florida Civil Rights

Act of 1992, sections 760.01 Î 760.11 and 509.092, Florida

Statutes .

PRELIMINARY STATEMENT

The hearing was noticed to be heard at 10:00 a.m. at the

Columbia County Courthouse, 173 Northeast Hernando Street, Lake

City, Florida. The Notice of Hearing w as not returned as

undeliverable. Neither Petitioner nor her counsel appeared at

the scheduled time of 10:00 a.m. on the day of the hearing.

Counsel for Respondent was present with four witnesses ready to

proceed. A court reporter was also present and r ecorded the

proceedings outlined below.

FINDING S OF FACT

1. Neither Petitioner nor her counsel appeared at the

noticed time for the final hearing in this case.

2. After waiting for approximately 25 minutes, at the

undersigned's directions, Respondent's c ounsel contacted

Petitioner's counsel by telephone and arranged for Petitioner's

counsel, whose law offices are in Lake City, to join the final

hearing for a conference call via speakerphone. During that

conference call, Petitioner's counsel advised that he had received

the Notice of Hearing scheduling this case, but that he had

erroneously failed to calendar the hearing.

3 . Respondent's counsel further advised that, in addition to

his client, he intended to offer the testimony of approximately

three wit nesses, but that he had not subpoenaed those witnesses.

He further could not identify the names of those witnesses, but

advised that his client knew their names. 1/

4 . Petitioner 's counsel verbally requested a continuance.

5 . Petitioner's counsel had participated in the preparation

of a prehearing stipulat ion just one week earlier and understood

that the prehearing stipulation was untimely because it had not

been filed within the time frames of the prehearing

instructions . 2/ Petitioner's counsel ackn owledged that while he

knew that the hearing was in the near future, he did not check to

see when it was scheduled. Accordingly, the undersigned denied

Petitioner's counsel's request for continuance to the extent that

it asked for another day, but ruled t hat the hearing would be

delayed until 1:00 p.m. that afternoon, June 7, 2012.

6 . When the final hearing was reconvened at 1:00 p.m.,

Petitioner's counsel appeared with his assistant, but without

Petitioner or any witnesses. Petitioner's counsel present ed a

written Petitioner's Motion for Continuance.

7 . The undersigned first considered Respondent's pending

Motion to Dismiss, or Alternatively, to Strike (Respondent's

Motion to Strike) . Petitioner's counsel stated that Petitioner

had no objection to the granting of Respondent's Motion to Strike

because it sought only to strike or dismiss that portion of

Petitioner's claim alleging retaliatory discharge. Considering

Petitioner's lack of objection, as well as the fact that

Petitioner's discharge from R espondent's employ did not occur

until after the instant Employment Complaint of Discrimination was

filed with the Florida Commission on Human Relations, Respondent's

Motion to Strike was GRANTED, thus preserving PetitionerÓs claim

of retaliatory discharge for subsequent action if properly

perfected .

8 . Petitioner's written Motion for Continuance was then

addressed. In the motion, Petitioner's counsel explained that his

legal assistant had not calendared the final hearing for June 7,

2012, because his le gal assistant's stepdaughter had been involved

in an accident on April 19, 2012, and had passed away on April 22,

2012. The Notice of Hearing in this case was issued on April 17,

2012. The motion also stated that "[t]he undersigned counsel

accepts full r esponsibility for the actions of his staff."

Petitioner's Motion for Continuance further advised that "[t]he

undersigned counsel for the Petitioner when advised that he was

not present at the hearing, checked with Petitioner to try to have

her available o n June 7, 2012, and she was on her way to

Gainesville for a post - operative checkup with her son who had

recently had surgery."

9 . Respondent's counsel opposed continuance of the case .

10 . Upon consideration of Petitioner's Motion for

Continuance, Respo ndent's argument against a co ntinuance, the fact

that there wa s no emergency, and the motion was untimely under

Florida Administrative Code Rule 28 - 106.210 ("Except in cases of

emergency, requests for continuance must be made at least five

days prior to th e date noticed for the hearing"), as well as the

circumstances outlined above, Petitioner's Motion for Continuance

was DENIED.

CONCLUSION OF LAW

11 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of th is proceeding

pursuant to section 120.569 and s ubsection 120.57(1), Florida

Statutes , and Florida Administrative Code Rule 60 Y - 4.016(1).

12 . Because Petitioner is asserting the affirmative in this

administrative proceeding, she has the burden of proving her claim

against Respondent. Fla. Dep't of Transp. v . J.W.C. Co., Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981).

13 . After Petitioner's Motion for Continuance was denied,

Petitioner's counsel advised that he could not go forward with

proof of the case with out his client. No evidence was submitted

in support of Petitioner's claim against Respondent.

14 . As no evidence was presented to support her claim ,

Petitioner failed to meet her burden.

RECOMMENDATION

Based upon the fact that Petitioner failed to pre sent any

evidence in support of her claim , it is RECOMMENDED that the

Florida Commission on Human Relations enter an order dismissing

this case.

DONE AND ENTERED this 12 th day of June , 2012 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk o f the

Division of Administrative Hearings

this 12 th day of June , 2012 .

ENDNOTE S

1 / Petitioner's witness list attached to the prehearing

stipulation lists 19 named witnesses and also references unnamed

impeachment witnesses and witnesses listed by Respo ndent.

2 / The Order of Pre - hearing Instructions, filed April 17, 2012,

required the parties to "file their pre - hea ring stipulation no

later than 10 days prior to the date set for final hearing in this

cause."

COPIES FURNISHED:

Denise Crawford, Agency C lerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Kris B. Robinson, Esquire

Robinson, Kennon and Kendron, P.A.

582 West Duval Street

Post Office Box 1178

Lake City, F lorida 32056 - 1178

[e-mail]

Luis A. Santos, Esquire

Ford and Harrison, LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

[e-mail]

Lawrence F. Kranert, Jr., General Counsel

Florida Commission on Human Relations

Sui te 100

2009 Apalachee Parkway

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 shou ld be filed with the agency that

will issue the Final Order in this case.