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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-045

FCHR Order No. 09-045

Date of Release: 05/12/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

JAMES M. BIGGERS, II

EEOC Case No. 15D200800586

Petitioner

 

v.

FCHR Case No. 2008-01648

   

ROOMS TO GO

DOAH Case No. 08-5607

Respondent

FCHR Order No. 09-045

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

This matter is before the Commission for consideration of the Recommended Order of Dismissal, dated March 5, 2009, issued in the above-styled matter by Administrative Law Judge Carolyn S. Holifield.

Findings of Fact and Conclusions of Law

Judge Holifield’s order reflects that Petitioner failed to comply with an order of the Administrative Law Judge. Specifically, Judge Holifield concluded that the Petition for Relief “failed to state Petitioner suffered from discrimination or harassment on any protected basis.” Petitioner was allowed to file an amended Petition for Relief but the filing did not cure this defect. In an order issued February 25, 2009, the result of a pre-hearing conference held by telephone that same day, Judge Holifield gave Petitioner another chance to cure this defect, ordering that by close of business on February 25, 2009, Petitioner was to file a second amended Petition for Relief, and provide Respondent with his witness and exhibit list. Judge Holifield found that the witness list was on Judge Holifield’s facsimile machine the morning of February 26, 2009, but as of the date of the Recommended Order of Dismissal, no second amended Petition for Relief or exhibit list had been received. Consequently, Judge Holifield recommended the Commission issue a final order dismissing the matter.

We note that, generally, Commission panels have concluded that a Petitioner’s failure to respond to orders of an Administrative Law Judge amounts to a voluntary dismissal of the Petition for Relief. See, generally, Shook v. Riverside National Bank, FCHR Order No. 08-029 (May 6, 2008), Butler v. The Pepsi Bottling Group, FCHR Order No. 06-107 (December 4, 2006), Castellanos v. Express Net Airlines Pilots Association, FCHR Order No. 05-061 (June 15, 2005), Mayfield v. Karl’s Haberdashery of Florida, Inc., FCHR Order No. 04-020 (March 10, 2004), and Kenny v. Florida Department of Corrections, FCHR Order No. 02-020 (June 3, 2002).

FCHR Order No. 09-045

Page 2

Based on the foregoing, we adopt the Administrative Law Judge’s recommendation that the Petition for Relief be dismissed.

Exceptions

Neither party filed exceptions to the Administrative Law Judge’s Recommended Order.

A an ex parte communication was received by the Commission from Petitioner on March 11, 2009, and was published to the parties and the record under a Notice of Ex Parte Communication issued by the Commission on March 18, 2009.

We decline to consider this filing an exceptions document since it does not meet the requirements of an exception document set out in Section 120.57(1)(k), Florida Statutes (2007).

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right of appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 12th day of May , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gayle Cannon, Panel Chairperson;

Commissioner Patty Ball Thomas; and

Commissioner Mario M. Valle

Filed this 12th day of May , 2009,

in Tallahassee, Florida.

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

FCHR Order No. 09-045

Page 3

NOTICE TO COMPLAINANT / PETITIONER

As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission’s final agency action. To secure a “substantial weight review” by EEOC, you must request it in writing within 15 days of your receipt of this Order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Blvd., Suite 2700, 27th Floor, Miami, FL 33131.

Copies furnished to:

James M. Biggers, II

7621 Rolling Grove Drive East

Lakeland, FL 33810

Rooms To Go

c/o Nancy A. Chad, Esq.

11540 U.S. Highway 92 East

Seffner, FL 33584

Carolyn S. Holifield, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 12th day of May , 2009.

By:

Clerk of the Commission

Florida Commission on Human Relations