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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-084

FCHR Order No. 09-084

Date of Release: 08/26/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

HARLAN C. HAMER

EEOC Case No. 15D200800562

EEOC Case No. 15D200800774

Petitioner

 

v.

FCHR Case No. 2008-01397

FCHR Case No. 2008-02203

   

SHORELINE TRANSPORTATION, INC.

DOAH Case No. 08-4550

DOAH Case No. 08-4574

Respondent

FCHR Order No. 09-084

   

FINAL ORDER DISMISSING PETITIONS FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Harlan C. Hamer filed complaints of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2007), alleging that Respondent Shoreline Transportation, Inc., committed unlawful employment practices on the basis of Petitioner’s age (DOB: 5-23-47) by denying Petitioner promotion (FCHR Case No. 2008-02203) and by terminating Petitioner from employment (FCHR Case No. 2008-01397).

The allegations set forth in the complaints were investigated, and, on July 30, 2008, (FCHR Case No. 2008-01397), and, on August 14, 2008 (FCHR Case No. 2008-02203) the Executive Director issued his determinations finding in both instances that there was no reasonable cause to believe that an unlawful employment practice had occurred.

Petitioner filed Petitions for Relief from an Unlawful Employment Practice in both cases, and the cases were transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

The Division of Administrative Hearings consolidated the cases for the purposes of final hearing and the issuance of a Recommended Order.

An evidentiary hearing was held on April 16, 2009, in Pensacola, Florida, before Administrative Law Judge P. Michael Ruff.

Judge Ruff issued a Recommended Order of dismissal, dated June 19, 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

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

FCHR Order No. 09-084

Page 2

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. 5th DCA 1988). Accord, Hall v. Villages of West Oaks HOA, FCHR 08-007 (January 14, 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 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, “Petitioner’s Objections to Proposed Recommended Order,” received by the Commission on July 2, 2009.

The exceptions document contains eleven numbered paragraphs which take issue with the findings of fact, inferences drawn from the evidence presented, and present argument as to how the case should have been decided.

In the absence of a transcript of the proceeding before the Administrative Law Judge, the Commission is bound by the facts found in the Recommended Order, since there is no way for the Commission to determine the extent to which the facts found are supported by the testimony presented. Gainey v. Winn Dixie Stores, Inc., FCHR Order No. 07-054 (October 12, 2007).

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 [emphasis added].” Section 120.57(1)(l), Florida Statutes (2007). As indicated, above, 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., supra. Accord, Hall, supra, Jones v. Suwannee County School Board, FCHR Order No. 06-088 (September 11, 2006), Johnson v. Tree of Life, Inc., FCHR Order No 05-087 (July 12, 2005), Beach-Gutierrez, supra, and Waaser, supra.

Further, 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,

FCHR Order No. 09-084

Page 3

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).

Based on the foregoing, Petitioner’s exceptions are rejected.

Dismissal

The Petitions for Relief and Complaints 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 26th day of August , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Onelia A. Fajardo

Filed this 26th day of August , 2009,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

FCHR Order No. 09-084

Page 4

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.

Copies furnished to:

Harlan C. Hamer

c/o Heather F. Lindsay, Esq.

Lindsay & Andrews, P.A.

5218 Willing Street

Milton, FL 32570

Shoreline Transportation, Inc.

c/o Michael W. Kehoe, Esq.

Fuller, Johnson, Kehoe, Horky and Rettig, LLC

3298 Summit Boulevard, Suite 11

Pensacola, FL 32503

P. Michael Ruff, 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 26th day of August , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations