17-003715 Aygul Sushkova vs. Marco Destin Inc. Status: Closed Recommended Order on Friday, September 1, 2017.

Summary: Petitioner did not meet her burden of proving discrimination by a preponderance of the evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AYGUL SUSHKOVA,

Petitioner,

vs. Case No. 17 - 3715

MARCO DESTIN INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER OF DISMISSAL

This matter came before the under signed Administrative

Law Judge upon transmittal of a Petition for Relief filed by

Petitioner, Aygul Sushkova, from the Florida Commission on Human

Relations. The Petition for Relief alleges discriminatory

practices by Respondent, Marco Destin Inc.

Upon consultation with the parties, a final hearing was set

for August 29, 2017, by way of video teleconference between the

cities of Tallahassee and Panama City, Florida.

On Tuesday, August 29, 2017, the video teleconference was

initiated by DOAH. Petition er was to appear at the Panama City

site, but was not in attendance as of 9:30 a.m., Central Time

(10:30 a.m., Eastern Time). In attendance at the Tallahassee

site were Mark Bonfanti, Esquire, counsel for Respondent, and

the undersigned.

The undersigne d called the hearing to order. A brief

recess was then taken in order to allow Petitioner time to

appear if she so desired. At approximately 9:50 a.m., Central

Time (10:50 a.m., Eastern Time), the undersigned re - convened the

final hearing. At that time, counsel for Respondent moved for

dismissal of the action on the basis that Petitioner, in

abstentia, could not satisfy her minimum burden of proof

concerning the claim of discrimination.

The general rule in an administrative hearing is that the

party ass erting the affirmative of an issue has the burden of

presenting evidence as to that issue. DepÓt of Banking & Fin.,

Div. of Sec. & Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d

932, 933 (Fla. 1996) ( citing Fla. DepÓt of Transp. v. J.W.C. Co. ,

396 So. 2d 77 8 (Fla. 1st DCA 1981) ) . Accor ding to section

120.57(1)(k), Ð[f] indings of fact shall be based upon a

preponderance of the evidence . . . except as otherwise provided

by statute, and shall be based exclusively on the evidence of

record and on matters offi cially recognized.Ñ In this case,

therefore, Petitioner would have to present evidence to support

her claim.

In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 803 (1973), the U.S. Supreme Court explained that the

complainant has the initial bu rden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n.6 (Fla. 1st DCA 1996 ) , affÓd 679 So. 2d 1183

(Fla. 1996).

Petitioner in the instant case has failed to establish a

prima facie case of discrimination. There is no further action

that Petitioner can pursue in this matter. The moti on to

dismiss is therefore well - taken.

Based upon th e foregoing, it is hereby R ECOMMENDED that a

final o rder be entered by the Florida Commission on Human

Relations denying the Petition for Relief filed by Aygul

Sushkova, Petitioner.

DONE AND ENTERED this 1st day of September , 2017 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of September , 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Aygul Sushkova

Post Office Box 9224

Panama City, Florida 32417

Mark L. Bonfanti, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human R elations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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 Rec ommended Order should be filed with the agency that

will issue the Final Order in this case.