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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-025

FCHR Order No. 09-025

Date of Release: 03/17/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

SANDRA T. COLUMBUS

EEOC Case No. NONE

Petitioner

 

v.

FCHR Case No. 2008-01083

   

MUTUAL OF OMAHA

DOAH Case No. 08-2575

Respondent

FCHR Order No. 09-025

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Sandra T. Columbus filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2005), alleging that Respondent Mutual of Omaha committed unlawful employment practices on the bases of Petitioner’s sex (female) and National Origin (Greek) by subjecting Petitioner to harassment and varying terms and conditions of employment, and on the basis of retaliation by terminating Petitioner for complaining about the unlawful conduct.

The allegations set forth in the complaint were investigated, and, on April 22, 2008, the Executive Director issued a “Determination: No Jurisdiction,” finding that the Commission did not have jurisdiction of the matter because Petitioner was not Respondent’s “employee,” but rather was an “independent contractor” not entitled to the protections of the Florida Civil Rights Act of 1992.

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

An evidentiary hearing on the issue of whether Petitioner was Respondent’s “employee” was held on October 15, 2008, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, before Administrative Law Judge Stuart M. Lerner.

Judge Lerner issued a Recommended Order of dismissal, dated December 29, 2008, recommending that the Commission dismiss Petitioner’s complaint because Petitioner was not an “employee” of Respondent at the time the alleged unlawful employment practices occurred.

Pursuant to notice, public deliberations were held on March 12, 2009, 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 200, Tallahassee, Florida, 32301. At these deliberations, the Commission panel determined the action to be taken on the Recommended Order.

FCHR Order No. 09-025

Page 2

Findings of Fact

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence.

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 Recommended Order in a document entitled, “Exceptions to Recommended Order,” received by the Commission on January 13, 2009.

With regard to exceptions to Recommended Orders, the Administrative Procedure Act states, “The final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.” Section 120.57(1)(k), Florida Statutes (2007); see, also, Bartolone v. Best Western Hotels, FCHR Order No. 07-045 (August 24, 2007).

A review of Petitioner’s exceptions document suggests that it does not comply with this statutory provision.

Nevertheless, it can be said that the document generally excepts to facts found, facts not found, and / or inferences drawn from the evidence presented, all leading to the Administrative Law Judge’s finding that Petitioner was not an “employee” of Respondent, but rather an “independent contractor.”

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). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005). See Assily v. Memorial Hospital of Tampa, FCHR Order No. 05-059 (May 31, 2005), for an example where this pronouncement is specifically applied to facts found leading to the conclusion that a Petitioner was an “independent contractor,” rather than an “employee.”

FCHR Order No. 09-025

Page 3

Petitioner’s exceptions are rejected.

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 16th day of March , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Patty Ball Thomas

Filed this 16th day of March , 2009,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Sandra T. Columbus

c/o Elizabeth Athanasakos, Esq.

2631 East Oakland Park Boulevard, Suite 205

Fort Lauderdale, FL 33306-1618

FCHR Order No. 09-025

Page 4

Mutual of Omaha

c/o Kelly Cruz Brown, Esq.

c/o Daniel Hernandez, Esq.

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Tallahassee, FL 32301-1866

Stuart M. Lerner, 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 16th day of March , 2009.

By: _______________________________

Clerk of the Commission

Florida Commission on Human Relations