12-002613 Brendale Fields vs. Home Depot Status: Closed Recommended Order on Thursday, December 27, 2012.

Summary: Petitioner who failed to appear at final hearing did not carry her burden of proof to demonstrate discrimination in employment by a preponderance of the evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDALE FIELDS , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2613

)

HOME DEPOT , )

)

Respondent . )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for final hearing pursuant to notice on

December 19 , 2012, before Suzanne Van Wyk , Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sheldon Jerome Vann, Esquire

Law Offices of Sheldon J. Vann

841 Prudential Drive

Jacksonville, Florida 32207

For Respondent: Chelsie J. Flynn, Esquire

Ford and Harrison, LLP

Suite 1300

300 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Respondent, Home Depot, is liable to Petiti oner for

unlawful discrimination in employment based on race , in

violation of the Florida Civil Rights Act of 1992, sections

760.01 - 760.11 and 509.092, Florida Statutes.

PRELIMINARY STATEMENT

The final hearing was originally scheduled to be held on

October 5, 2012. On September 17, 2012, PetitionerÓs counsel

filed an Unopposed Motion for Continuance which represented he

was filing a notice of appearance on behalf of Petitioner and

wished to discuss settlement with Respondent. The case was

placed in abeyan ce to allow settlement discussions.

On October 22, 2012, Petitioner, through counsel, filed a

Notice of Failure to Settle and requested the case be set for

hearing. The case was set for hearing on December 19, 2012,

after consultation with the parties as to available dates. The

Order Re - Scheduling Hearing by Video Teleconference was entered

on November 5, 2012, and provided to all parties. The Order

clearly states ÐContinuances will be granted only by order of

the Administrative Law Judge for good cause shown.Ñ

On December 18, 2012, at 3:54 p.m., PetitionerÓs counsel

filed a Motion for Continuance stating as grounds Ðhe has been

unable to contact Plaintiff, Brendale Fields, until recently.Ñ

The Motion was opposed by Respondent. The undersigned denied

th e Motion and PetitionerÓs counsel was notified of the denial

via telephone, since the late - filing did not allow a written

order to be entered prior to the scheduled hearing. Respondent

was informed that the Motion was denied when RespondentÓs

counsel cont acted the Division to determine whether the hearing

would go forward.

The hearing commenced as scheduled on December 19, 2012, by

video teleconference in Tallahassee and Jacksonville, Florida.

FINDINGS OF FACT

1 . Petitioner did not attend the final hearin g.

2 . PetitionerÓs counsel appeared at the final hearing and

moved for c ontinuance ore tenus , stating that Petitioner was

taking a final exam and that neither Petitioner nor her counsel

was aware the exam date conflicted with the hearing date when

the h earing was set.

3 . Respondent, who had traveled from Orlando to attend the

final hearing , opposed PetitionerÓs Motion .

4 . Upon consideration of PetitionerÓs Motion, RespondentÓs

argument against a continuance, the fact that there was no

emergency, and the motion was untimely under Florida

Administrative Code Rule 28 - 106.210 (ÐExcept in cases of

emergency, requests for continuance must be made at least five

days prior to the date noticed for the hearingÑ), as well as the

circumstances outlined above, Pet itionerÓs Motion for

Continuance was DENIED.

5 . Following the denial of PetitionerÓs Motion for

Continuance, PetitionerÓs counsel stated that Petitioner was his

only witness. PetitionerÓs counsel offered no evidence into the

record.

CONCLUSION S OF LAW

6 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to section 120.569 and subsection 120.57(1),

Florida Statutes, and Florida Administrative Code Rule 60Y -

4.016(1).

7 . Because P etitioner 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).

8 . As no evidence was presented to suppor t her claim,

Petitioner failed to meet her burden.

RECOMMENDATION

Based upon the foregoing , and Petitioner having failed to

meet her burden of proof, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter an

order dismissing this ca se.

DONE AND ENTERED this 27th day of December , 2012 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of December , 2012 .

COPIES FURNISHED :

Chelsie J. Flynn, Esquire

Ford and Harrison, L LP

Suite 1300

300 South Orange Avenue

Orlando, Florida 32801

Sheldon Jerome Vann, Esquire

Law Offices Of Sheldon J. Vann and Associates

841 Prudential Drive

Jacksonville, Florida 32207

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cheyanne Costilla, Interim Gen eral Co unsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All part ies 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.