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Home / Complaints / Final Orders / Final Orders 2014 / FCHR Order No. 14-017

FCHR Order No. 14-017

Date of Release: 05/21/2014

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

SHEILA DEMONS

EEOC Case No.

15D201300514

Petitioner

FCHR Case No.

2013-01344

v.

DOAH Case No.

13-4457

EMERALD GRANDE, LLC

FCHR Order No. 14-017

Respondent

 

ORDER REMANDING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

This matter is before the Commission for consideration of the Recommended Order, dated March 17, 2014, issued in the above-styled matter by Administrative Law Judge W. David Watkins.

Findings of Fact and Conclusions of Law

Judge Watkins’ order reflects that Petitioner failed to appear at the scheduled administrative hearing in the case. Further, Judge Watkins’ order states that Petitioner “has not proven her claim by the preponderance of the evidence.” Consequently, the order recommends that the Commission issue a final order denying the Petition for Relief.

Commission panels have concluded that when a Petitioner fails to appear at the scheduled administrative hearing in their case, they fail to meet their burden of proof, and the Petition for Relief should be dismissed. See, e.g., Bullard v. Lowry Group Properties, Inc., et al., FCHR Order No. 13-011 (February 26, 2013), Goldenberg v. Department of Corrections, FCHR Order No. 12-051 (September 17, 2012), Dotson v. Department of Financial Services, FCHR Order No. 11-034 (April 13, 2011), Patterson v. Panama City Housing Authority, FCHR Order No. 11-001 (January 13, 2011), Crump v. The Majestic Tower at Bal Harbour, FCHR Order No. 10-072 (September 21, 2010), Bermudez v. Lake County Housing Authority, FCHR Order No. 10-041 (April 27, 2010), Cowden v. Difiglio, et al., FCHR Order No. 09-115 (December 14, 2009), Scott v. Two Men and a Truck, FCHR Order No. 09-009 (January 27, 2009), Enzor v. Sandco, Inc., FCHR Order No. 08-048 (July 29, 2008), Rodriguez v. Center Point Health and Rehab, FCHR Order No. 08-001 (January 14, 2008), West v. Sembler Corporation, d/b/a Bay Walk, FCHR Order No. 07-037 (June 15, 2007), Martinez v. KJC Enterprises, d/b/a Plantation Island Resort, FCHR Order No. 07-028 (April 20, 2007), Chaney, et al. v. Robert Buckner & Associates, FCHR Order No. 06-092 (November 13, 2006), and Prek v. Workforce Central Florida, FCHR Order No. 06-079 (September 18, 2006).

FCHR Order No. 14-017

Page 2

In this instance, however, it appears that the proceeding leading to the Recommended Order did not comply with the essential requirements of law because the Order Granting Continuance and Re-scheduling Hearing, dated January 21, 2014, setting the date and time for the hearing at which Petitioner failed to appear, does not seem to have been sent to Petitioner’s address of record. See, generally, Section 120.57(1)(l), Florida Statutes (2013), regarding the Commission’s ability to determine whether a proceeding leading to an order before it complied with the essential requirements of law; and see also Fla. Admin. Code R. 28-106.208, regarding the requirement that notices of hearing be served by the presiding officer on the parties at their address of record.

The Complaint of Discrimination, the Petition for Relief, and the Commission’s “Transmittal of Petition” to the Division of Administrative Hearings (DOAH) all list Petitioner’s address as 941 Central Avenue, Apartment P , Fort Walton Beach, Florida, 32547 [emphasis added]. However the Order Granting Continuance and Re-scheduling Hearing, dated January 21, 2014, setting the date and time for the hearing at which Petitioner failed to appear omits the “ Apartment P” designation from Petitioner’s address.

Admittedly, all communications of record from DOAH to the parties in this matter omit Petitioner’s apartment designation and there is no indication in the record that these items were returned as undeliverable. In fact, Petitioner appears to have responded to one such mailing, an Amended Notice of Hearing, dated December 3, 2013, setting the final hearing for January 14, 2014, with a request for continuance which was granted, thereby suggesting that Petitioner received the notice even though the apartment designation was not included in the address to which the notice was mailed.

Nevertheless, we are concerned that because of the omission of the apartment designation from Petitioner’s address, Petitioner might not have received notice of the hearing at which she failed to appear.

We would also note that Petitioner’s apartment designation is not included in Petitioner’s address on the Recommended Order, thereby calling into question whether Petitioner received the Recommended Order containing the notice of Petitioner’s ability to file exceptions to the Recommended Order.

Exceptions

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

Remand

The Petition for Relief and Complaint of Discrimination are REMANDED to the Administrative Law Judge for further findings on whether Petitioner received notice of the March 11, 2014, administrative hearing that complied with the legal requirements for being

FCHR Order No. 14-017

Page 3

provided notice, and if Petitioner did not, for further proceedings on the Petition for Relief. Accord, Williams v. Uncle Ernie’s, FCHR Order No. 05-113 (November 3, 2005) and Cruz v. Legg, FCHR Order No. 05-002 (January 31, 2005).

If it is found that Petitioner did receive legally sufficient notice of the March 11, 2014, hearing at which she failed to appear, the Division of Administrative Hearings shall re-issue the Recommended Order using Petitioner’s address with the appropriate apartment designation, thereby starting anew the time frame for Petitioner to file exceptions to the Recommended Order. Accord, Pearson v. MRMC-Munroe Regional Health Systems, Inc., FCHR Order No. 13-015 (February 26, 2013) and Bivins v. West Florida Hospital, FCHR Order No. 12-063 (November 16, 2012).

DONE AND ORDERED this 21th day of May , 2014.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Mario M. Valle, Panel Chairperson;

Commissioner Derick Daniel; and

Commissioner Onelia Fajardo-Garcia

Filed this 21th day of May , 2014,

in Tallahassee, Florida.

/s/

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Sheila Demons

941 Central Avenue, Apartment P

Fort Walton Beach, FL 32547

FCHR Order No. 14-017

Page 4

Emerald Grande, LLC

c/o Ginger Barry Boyd, Esq.

Broad and Cassel

4100 Legendary Drive, Suite 280

Destin, FL 32541

W. David Watkins, 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 21th day of May , 2014.

By: /s/

Clerk of the Commission

Florida Commission on Human Relations