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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-002

FCHR Order No. 09-002

Date of Release: 01/12/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

ARDEL HANNAH

EEOC Case No. 15D200800018

Petitioner

 

v.

FCHR Case No. 2008-00035

   

PARKLAND REHABILITATION AND NURSING CENTER

DOAH Case No. 08-2131

Respondent

FCHR Order No. 09-002

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Ardel Hannah filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2007), alleging that Respondent Parkland Rehabilitation and Nursing Center committed unlawful employment practices on the basis of Petitioner’s National Origin (American) by subjecting Petitioner to different terms and conditions of employment, disparate treatment, harassment, and discharge.

The allegations set forth in the complaint were investigated, and, on March 19, 2008, 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 October 1, 2008, before Administrative Law Judge Donald R. Alexander.

Judge Alexander issued a Recommended Order of dismissal, dated October 22, 2008.

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order.

Findings of Fact

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

FCHR Order No. 09-002

Page 2

Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Goings v. Twin Oak Juvenile Development, Inc., FCHR Order No. 08-041 (July 8, 2008), Beach-

Gutierrez v. Bay Medical Center, FCHR Order No. 05-011 (January 19, 2005), and Waaser v. Streit’s Motorsports, FCHR Order No. 04-157 (November 30, 2004).

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 note that the Administrative Law Judge concluded that the Florida Civil Rights Act of 1992 extends protection against discrimination on the basis of National Origin to both minority as well as nonminority employees, and concluded that “Petitioner’s claim amounts to a charge that he was subjected to reverse discrimination, that is, that Parkland discriminated against him because he was a nonminority (American).” Recommended Order, ¶ 20. The Administrative Law Judge further set out the test for establishing a prima facie case of “reverse discrimination.” Recommended Order, ¶ 21.

We would note, that in a case in which an Administrative Law Judge made several references in the Recommended Order describing a Petitioner’s race discrimination claim as a claim of “reverse discrimination,” a Commission panel stated the following: “We note that a Commission panel has stated, ‘In a case in which a claim of race discrimination brought by an individual who was white was categorized as a ‘reverse discrimination’ case by an Administrative Law Judge, a Commission panel explained that the Florida Civil Rights Act of 1992, ‘does not recognize the concept of ‘reverse discrimination.’ The law simply prohibits discrimination in employment on the basis of race and color (among other bases)…a race discrimination case brought by a person who is white is to be analyzed the same way as a race discrimination case brought by a person who is not white.’ Bert v. Department of Education, 20 F.A.L.R. 155, at 157 (FCHR 1995).’ Serwas v. Volusia County Government, 23 F.A.L.R. 4085, at 4086 (FCHR 2001). With this explanatory comment regarding the concept of ‘reverse’ discrimination, we clarify/correct the indicated conclusions of law.” St. Hillaire v. Department of Corrections, FCHR Order No. 04-055 (June 2, 2004).

We apply this comment to the National Origin discrimination allegations of this case and with this clarifying comment we adopt the Administrative Law Judge’s conclusions of law.

Exceptions

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

FCHR Order No. 09-002

Page 3

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 12th day of January , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Anice R. Prosser; and

Commissioner Billy Whitefox Stall

Filed this 12th day of January , 2009,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

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.

FCHR Order No. 09-002

Page 4

Copies furnished to:

Ardel Hannah

996 Southwest 16th Ave., Apt. 904

Gainesville, FL 32601-8483

Parkland Rehabilitation and Nursing Center

c/o Lauren M. Levy, Esq.

Levy & Levy, LLC

4230 South MacDill Avenue, Suite 230

Tampa, FL 33611-1901

Donald R. Alexander, 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 January , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations