Petitioner John H. Waaser filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2001), alleging that Respondent Streit’s Motorsports committed an unlawful employment practice on the basis of Petitioner’s religion (Atheism) when it terminated Petitioner from his employment.

          The allegations set forth in the complaint were investigated, and, on May 5, 2004, the Executive Director issued his determination finding that there was no reasonable cause to believe that an unlawful employment practice had occurred.

          Petitioner filed a Petition for Relief from an Unlawful Employment Practice, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

          An evidentiary hearing was held in Gainesville, Florida, on August 18, 2004, before Administrative Law Judge Stephen F. Dean.

          Judge Dean issued a Recommended Order of dismissal, dated September 17, 2004.

          Pursuant to notice, public deliberations were held on November 18, 2004, by means of Communications Media Technology (namely, telephone) before this panel of Commissioners.  The public access point for these telephonic deliberations was the Office of the Florida Commission on Human Relations, 2009 Apalachee Parkway, Suite 100, Tallahassee, Florida, 32301.  At these deliberations, the Commission panel determined the action to be taken on the Petition for Relief.

Findings of Fact

          A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission.         

          We adopt the Administrative Law Judge’s findings of fact.

Conclusions of Law

          We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter.

          We adopt the Administrative Law Judge’s conclusions of law.

Exceptions

          Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a document entitled, “Exceptions to Recommended Order.”  The document contains 16 numbered exceptions to the Recommended Order, along with several attachments.

          Petitioner’s exceptions in paragraphs 3 through 16 appear to take issue with the facts found by the Administrative Law Judge, the inferences drawn from the evidence presented, and the weight and credibility given to the evidence presented.

          The Commission has stated, “It is well settled that it is the Administrative Law Judge’s function ‘to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom.  If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge’s role to decide between them.’  Beckton v. Department of Children and Family Services, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. 2168, at 2171 (FCHR 1986).”  Barr v. Columbia Ocala Regional Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999).

          Further, as indicated above, the Commission’s file does not contain a transcript of the proceeding on the merits before the Administrative Law Judge.  With regard to findings of fact set out in Recommended Orders, the Administrative Procedure Act states, “The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law.”  Section 120.57(1)(l), Florida Statutes (2003).  In the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See, National Industries, Inc. v. Commission on Human Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5^th DCA 1988).

          Petitioner’s exceptions in paragraphs 1 and 2 take issue with the Administrative Law Judge’s denial of Petitioner’s request for an extension of time to file his Proposed Recommended Order.  Petitioner seems to suggest that the Administrative Law Judge’s ruling in this regard demonstrates prejudice against Petitioner.

          The Administrative Law Judge issued an “Order Denying Extension of Time to File Proposed Findings,” dated September 14, 2004, stating, “The Petitioner faxed a letter dated Saturday, September 11, 2004, which recites a number of problems he encountered with the recent storm, and requests an extension to mail documents on Monday, presumably September 13, 2004, the date on which his letter was docketed having been sent on the weekend.  The formal hearing in this case was held on August 18, 2004.  The proposed findings were due, inclusive of mailing, no later than September 3, 2004.  The Respondent filed its proposed findings on September 2, 2004.  The Petitioner did not call about extending the time, according to his letter, until the following week, September 7, 2004.  The Respondent’s counsel and the Petitioner were equally affected by the recent storms.  The Recommended Order in this case was prepared and finished prior to receipt of Petitioner’s letter requesting an extension of time.  Therefore, the Petitioner’s request for an extension is denied, and the Recommended Order previously completed will be issued this date.”

          The Petitioner’s exceptions document and the “Order Denying Extension of Time to File Proposed Findings,” reflect disagreement as to when the proposed findings were due.

          The time frame for allowing the filing of proposed findings falls squarely within the purview of the Administrative Law Judge.   Fla. Admin. Code R. 28-106.215, dealing with “Post-Hearing Submittals,” states, “All parties may submit proposed findings of fact, conclusions of law, orders, and memoranda on the issues within a time designated by the presiding officer.  Unless authorized by the presiding officer, proposed orders shall be limited to 40 pages.”

          Petitioner’s exceptions are rejected.

Respondent’s Motion for Attorney’s Fees and Costs

          Respondent filed a “Motion for Award of Attorney Fees and Costs,” alleging entitlement to attorneys fees and costs because “the complaint was frivolous, unreasonable, or without foundation,” and “the Petitioner continued to litigate after it clearly became clear his complaint was without merit.”

          In  conclusions of law adopted by a Commission panel, it has been stated that a prevailing Respondent may be awarded attorney’s fees by the Commission, under the Florida Civil Rights Act of 1992, “if it is determined that an action was ‘frivolous, unreasonable, or without foundation,’ or ‘that the plaintiff continued to litigate after it clearly became so.’  Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421-422 (1978).”  Tadlock v. Westinghouse Electric Corporation, d/b/a Bay County Energy Systems, Inc., 20 F.A.L.R. 776, at 777 (FCHR 1997), citing Wright v. City of

Gainesville, 19 F.A.L.R. 1947, at 1959 (FCHR 1996).  Accord, generally, Asher v. Barnett Banks, Inc., 18 F.A.L.R. 1907 (FCHR 1995).

          In conclusions of law adopted by a Commission panel, this pronouncement is given explanation:  “It is within the discretion of a district court to award attorney’s fees to a prevailing defendant in a Title VII action upon a finding that the action was ‘frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’  Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978).  The standard has been described as a ‘stringent’ one.  Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980).  Moreover, the Supreme Court has cautioned that in applying these criteria, the district court should resist the temptation to conclude that because a plaintiff did not ultimately prevail, the action must have been unreasonable or without foundation.  Christianburg Garment, 434 U.S. at 421-22, 98 S.Ct. at 700-01.  Therefore, in determining whether a prevailing defendant is entitled to attorney’s fees under Title VII, the district court must focus on the question of whether the case is seriously lacking in arguable merit.  See Sullivan v. School Board of Pinellas County, 773 F.2d 1182, 1188 (11th Cir. 1985).”  Doshi v. Systems and Electronics, Inc., f/k/a Electronics and Space Corp., 21 F.A.L.R. 188, at 199 (FCHR 1998). 

          Respondent’s “Motion for Award of Attorney Fees and Costs” is DENIED.

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 to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

Done and Ordered this ^30th day of November, 2004.
For The Florida Commission on Human Relations.