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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-087

FCHR Order No. 09-087

Date of Release: 09/22/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

KELLY JO LANDRUM

EEOC Case No. 15D200800773

Petitioner

 

v.

FCHR Case No. 2008-02289

   

ITALIAN AMERICAN SOCIAL CLUB OF PALM COAST, INC.

DOAH Case No. 09-0682

Respondent

FCHR Order No. 09-087

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Kelly Jo Landrum 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 Italian American Social Club of Palm Coast, Inc., committed unlawful employment practices on the basis of Petitioner’s sex (female) by sexually harassing Petitioner, and on the basis of retaliation by terminating Petitioner for complaining to management about the alleged sexual harassment.

The allegations set forth in the complaint were investigated, and, on December 30, 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 by video teleconference at sites in Tallahassee and Daytona Beach, Florida, on June 1, 2009, before Administrative Law Judge Suzanne F. Hood.

Judge Hood issued a Recommended Order of dismissal, dated June 25, 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

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. 09-087

Page 2

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, “Exceptions to the Recommended Order,” received by the Commission on August 12, 2009. Earlier Petitioner had filed a “Motion for Enlargement of Time to File Exceptions,” received by the Commission on or about August 7, 2009, and Respondent filed a document entitled, “Response to Petitioner’s Motion for Enlargement of Time to File Exceptions,” received by the Commission on or about August 10, 2009. Being apprised of the representations made in these documents, in our view, Petitioner’s motion should be denied and Petitioner’s exceptions should be deemed untimely.

Nevertheless, we consider the content of Petitioner’s exceptions document, and note that the document contains 17 numbered paragraphs.

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.

Rather, Petitioner’s exceptions document appears to be a statement of Petitioner’s view of the facts, along with one paragraph that states Petitioner’s view as to the elements of a prima facie case of retaliation.

Further, 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).

FCHR Order No. 09-087

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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.

Finally, 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).

Based on the foregoing, 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 22nd day of September , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Patty Ball Thomas; and

Commissioner Mario M. Valle

FCHR Order No. 09-087

Page 4

Filed this 22nd day of September , 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.

Copies furnished to:

Kelly Jo Landrum

c/o David Glasser, Esq.

Glasser and Handel

150 South Palmetto Avenue,

Suite 100, Box N

Daytona Beach, FL 32114

Kelly Jo Landrum

c/o David Glasser, Esq.

116 Orange Avenue

Daytona Beach, FL 32114

Italian American Social Club of Palm Coast, Inc.

c/o Mary Nelson Morgan, Esq.

Boyd & Jenerette

201 North Hogan Street, Suite 400

Jacksonville, FL 32202

Suzanne F. Hood, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 09-087

Page 5

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 22nd day of September , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations