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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-047

FCHR Order No. 09-047

Date of Release: 06/03/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

JUDITH MONTEIRO

EEOC Case No. 511200702160

Petitioner

 

v.

FCHR Case No. 2008-02747

   

ATRIA WINDSOR WOODS

DOAH Case No. 08-4934

Respondent

FCHR Order No. 09-047

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Judith Monteiro 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 Atria Windsor Woods committed an unlawful employment practice on the bases of Petitioner’s age (DOB: 6-5-45), sex (female), and retaliation, by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated by the Equal Employment Opportunity Commission.

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 New Port Richey, Florida, on January 28, 2009, before Administrative Law Judge Jeff B. Clark.

Judge Clark issued a Recommended Order of dismissal, dated March 18, 2009.

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

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.

FCHR Order No. 09-047

Page 2

The Administrative Law Judge concluded, “To establish a prima facie case of discrimination, Petitioner must show: that she is a member of a protected class; that she suffered an adverse employment action; that she received disparate treatment than other similarly-situated individuals in a non-protected class; and that there is sufficient evidence of bias to infer a causal connection between her age or sex and the disparate treatment.” Recommended Order, ¶ 11.

With regard to the last element of the test cited by the Administrative Law Judge, a showing of a “causal connection” between the protected class and the alleged discriminatory act, the Commission has indicated that this element is actually what a Petitioner is attempting to show by establishing a prima facie case of discrimination, and that this element should not, itself, be an element of the test for a prima facie case. See, Baxla v. Fleetwood Enterprises, Inc., d/b/a Fleetwood Homes of Florida, Inc., 20 F.A.L.R. 2583, at 2585 (FCHR 1998), citing Pugh v. Walt Disney World, 18 F.A.L.R. 1971, at 1972 (FCHR 1995), and Martinez v. Orange County Fleet Manager, 21 F.A.L.R. 163, at 164 (FCHR 1997). See, also, Curry v. United Parcel Service of America, 24 F.A.L.R. 3166, at 3167 (FCHR 2000). Accord, Kelley v. Waterwise, FCHR Order No. 06-083 (September 18, 2006), Lawhorn v. Department of Corrections, FCHR Order No. 07-046 (August 24, 2007), Plegue v. Save A Lot / Jerry’s Enterprises, FCHR Order No. 08-033 (May 27, 2008), and Zemba v. Phantom Fireworks, FCHR Order No. 09-012 (January 27, 2009). But, cf., Royster v. Pate Stevedore Co., Inc., FCHR Order No. 08-031 (May 6, 2008) regarding cases involving allegations of handicap / disability discrimination.

This conclusion of law is corrected accordingly.

In modifying this conclusion of law of the Administrative Law Judge, we conclude: (1) that the conclusion of law being modified is a conclusion of law

over which the Commission has substantive jurisdiction, namely a conclusion of law stating what must be demonstrated to establish a prima facie case of unlawful discrimination under the Florida Civil Rights Act of 1992; (2) that the reason the modification is being made by the Commission is that the conclusion of law as stated runs contrary to previous Commission decisions on the issue; and (3) that in making this modification the conclusion of law being substituted is as or more reasonable than the conclusion of law which has been rejected. See, Section 120.57(1)(l), Florida Statutes (2007).

With this correction, 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. 09-047

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 3rd day of June , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Onelia A. Fajardo; and

Commissioner Anice R. Prosser

Filed this 3rd day of June , 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:

Judith Monteiro

13738 Lavender Avenue

Hudson, FL 34667

Atria Windsor Woods

c/o Thomas J. Birchfield, Esq.

Fisher and Phillips, LLP

220 West Main Street, Suite 2000

Louisville, KY 40202

Jeff B. Clark, Administrative Law Judge, DOAH

FCHR Order No. 09-047

Page 4

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 3rd day of June , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations