12-001524 Natalie Goldenberg vs. Department Of Corrections Status: Closed Recommended Order on Friday, August 3, 2012.

Summary: Petitioner did not appear at the hearing, apparently intending to withdraw her petition. Recommended dismissal of petition for relief from no cause determination.

Case No. 12-1524

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATALIE GOLDENBERG, RECOMMENDED ORDER OF DISMISSAL )

)

Petitioner, )

vs. )

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

)

Pursuant to notice, a final hearing in the above-captioned

matter was convened on July 17, 2012, by video teleconference at

sites in Fort Myers and Tallahassee, Florida, before

Administrative Law Judge Elizabeth W. McArthur of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Todd Evan Studley, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether this case should be dismissed based on

Petitioner's failure to appear at the hearing and apparent intent

to withdraw her request for an administrative hearing.

PRELIMINARY STATEMENT

On November 16, 2011, Petitioner, Natalie Goldenberg

(Petitioner), filed a discrimination complaint with the Florida

Commission on Human Relations (Commission). The complaint

alleged that Respondent, Department of Corrections (Respondent),

had committed unlawful employment practices against Petitioner.

Following an investigation, the Commission issued its

determination of no cause, finding no reasonable cause to believe

that an unlawful employment practice had occurred.

Petitioner timely filed a Petition for Relief, requesting an

administrative hearing to contest the Commission's determination.

The Commission referred the case to the Division of

Administrative Hearings (DOAH) on April 24, 2012, and the case

was set for hearing on July 17, 2012.

In accordance with the Order of Pre-hearing Instructions,

Respondent timely filed its witness list and proposed exhibits,

which were served on Petitioner. Petitioner did not file a

witness list or proposed exhibits.

Attempts by the undersigned's office to contact the

Petitioner were unsuccessful, with several voice mail messages

left in an effort to verify whether Petitioner intended to

participate in the administrative hearing she had requested.

Finally, on the day before the hearing, Petitioner telephoned and

informed a secretary that she wanted to withdraw her request for

a hearing. Petitioner stated that she had mailed a letter to

DOAH to that effect one week earlier (but which, to this date,

has not been received). Petitioner was advised to file a written

statement confirming that she was withdrawing her hearing

request. Because of the shortness of time before the scheduled

hearing, Petitioner was told to file the statement at DOAH by

facsimile right away and to also send the statement by facsimile

to counsel for Respondent. Petitioner indicated she intended to

do so. However, Petitioner did not file anything at DOAH.

Therefore, the hearing was convened as noticed.

At the hearing, counsel for Respondent and several witnesses

for Respondent appeared in Tallahassee. Additional witnesses for

Respondent appeared at the Fort Myers site. In addition, a court

reporter was present in Fort Myers to record the proceedings.

Petitioner did not appear at the scheduled hearing. The

undersigned informed those present of the information regarding

Petitioner set forth above. Counsel for Respondent offered that

he had received by facsimile, after 5:00 p.m., on July 16, 2012,

a typed, unsigned letter, apparently from Petitioner stating that

she wished to cancel the hearing scheduled for July 17, 2012.

The undersigned called a brief recess to ensure that there

had been no attempts by Petitioner to contact DOAH or to file

anything. No word having been received from Petitioner in any

form, 25 minutes after the scheduled start time, the undersigned

announced that the hearing was adjourned and a recommended order

of dismissal would be entered based on Petitioner's failure to

appear and apparent intent to withdraw her hearing request.

At the undersigned's request, the unsigned letter sent by

Petitioner to counsel for Respondent was filed by Respondent at

the conclusion of the hearing on July 17, 2012, so that it would

be part of the record.

FINDINGS OF FACT

1. The Notice of Hearing in this case was issued on May 22,

2012, setting the hearing for July 17, 2012, at 9:30 a.m., by

video teleconference at sites in Tallahassee and Fort Myers,

Florida.

2. Also, on May 22, 2012, an Order of Pre-hearing

Instructions was entered.

3. Respondent timely complied with the pre-hearing

requirements by filing a witness list and exhibit list and

tendering its proposed exhibits, all of which were served on

Petitioner. Petitioner did not file or exchange a witness list,

exhibit list, or proposed exhibits.

4. Petitioner spoke by telephone with a secretary at DOAH

on July 16, 2012, the day before the scheduled hearing, and

indicated that she had sent a letter withdrawing her hearing

request; however, to this day, no such letter has been received.

Petitioner was advised to send another written statement

confirming that she was withdrawing her hearing request, and she

indicated she would do so by facsimile that day. However, no

such facsimile was received by DOAH.

5. After hours on July 16, 2012, a typed, but unsigned

letter, was sent by facsimile to counsel for Respondent. The

letter appears to have been sent by Petitioner and states that

she wished to cancel the hearing scheduled for July 17, 2012.

6. Petitioner did not make an appearance at the scheduled

hearing at the start time or within 25 minutes after the

scheduled start time.

7. While it would have been better practice for Petitioner

to file a written, signed statement with DOAH to withdraw her

hearing request, it is found that Petitioner intended to withdraw

her hearing request, and that is why Petitioner did not appear at

the scheduled hearing. Petitioner should have made her

intentions clear sufficiently in advance of the scheduled hearing

to avoid the inconvenience and expense of convening a hearing by

video teleconference and assembling all of those who were

prepared to go forward.

CONCLUSIONS OF LAW

8. The Division 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. (2012).

9. Petitioner has the burden of proving the allegations in

her petition by a preponderance of the evidence. Fla. Dep't of

Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981);

§ 120.57(1)(j).

10. As found above, Petitioner belatedly communicated her

intent to withdraw her request for an administrative hearing, too

late for the scheduled hearing to be cancelled. Petitioner did

not appear at the hearing to attempt to prove the allegations in

her petition.

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

establish her claim that Respondent engaged in unlawful

employment practices.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petition for Relief

in this case.

DONE AND ENTERED this 3rd day of August, 2012, in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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 3rd day of August, 2012.

COPIES FURNISHED: Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Lawrence F. Kranert, Jr., General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Todd Evan Studley, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

Natalie Goldenberg

Post Office Box 7388

Fort Myers, Florida 33911

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.