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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-093

FCHR Order No. 09-093

Date of Release: 10/01/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

JOSEPH DELEO

EEOC Case No. 15D200800820

Petitioner

 

v.

FCHR Case No. 2008-02349

   

PROPERTIES OF THE VILLAGES, INC.

DOAH Case No. 09-0714

Respondent

FCHR Order No. 09-093

   

ORDER REMANDING COMPLAINT OF DISCRIMINATION

TO COMMISSION’S OFFICE OF EMPLOYMENT INVESTIGATIONS

FOR INVESTIGATION

Preliminary Matters

Petitioner Joseph DeLeo 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 Properties of the Villages, Inc., committed an unlawful employment practice on the bases of Petitioner’s age (DOB: 9-19-42) and perceived disability, and on the basis of retaliation, by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on January 8, 2009, 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 for the conduct of a formal proceeding.

An evidentiary hearing on the issue of whether Petitioner was Respondent’s “employee” was held in The Villages, Florida, on May 14, 2009, before Administrative Law Judge Harry L. Hooper.

Judge Hooper issued a Recommended Order, dated July 16, 2009, finding Petitioner to be an “employee” of Respondent and recommending that the Commission assert jurisdiction over Petitioner and Respondent.

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

FCHR Order No. 09-093

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

Respondent filed exceptions to the Administrative Law Judge’s Recommended Order in a document entitled, “Respondent’s Exceptions to Recommended Order,” received by the Commission on August 3, 2009. Petitioner filed “Petitioner’s Responses to Respondent’s Exceptions to Recommended Order,” received by the Commission on August 10, 2009.

Respondent’s exceptions document contains 11 numbered paragraphs.

Paragraph 1 excepts to the Administrative Law Judge’s bifurcation of the action, allowing the matter to go forward only on the issue of whether Petitioner was Respondent’s “employee” or “independent contractor.” We conclude that it is appropriate in cases in which a “Determination: No Jurisdiction” has been issued based on the Commission investigation’s finding that Petitioner was an “independent contractor” rather than an “employee” for an Administrative Law Judge to proceed solely on that issue when a Petition for Relief has been filed and there is no indication that the Commission investigated the merits of the Complaint of Discrimination. Accord, Columbus v. Mutual of Omaha, FCHR Order No. 09-025 (March 16, 2009).

This exception is rejected.

Paragraphs 2 through 11 take issue with inferences drawn from the evidence presented (2, 4, 5, 6, 8, 10, 11) and / or credibility and “weight” attributed by the Administrative Law Judge to the evidence presented (3, 7, 9) [numbers referenced are paragraph numbers in Respondent’s exceptions document].

With regard to Respondent’s exceptions to inferences drawn from the evidence presented and credibility determinations, 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.

FCHR Order No. 09-093

Page 3

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).

The exceptions set out in paragraphs 2 through 11 of Respondent’s exceptions document are rejected.

Remand

Having adopted the Administrative Law Judge’s finding that Petitioner is Respondent’s “employee,” rather than an “independent contractor,” the Complaint of Discrimination is hereby remanded to the Commission’s Office of Employment Investigations for further investigation consistent with this Order.

DONE AND ORDERED this 1st day of October , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Lizzette Gamero; and

Commissioner Watson Haynes, II

Filed this 1st day of October , 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:

Joseph DeLeo

c/o Carla D. Franklin, Esq.

Carla D. Franklin, P.A.

204 West University Avenue, Suite 3

Gainesville, FL 32601

FCHR Order No. 09-093

Page 4

Properties of the Villages, Inc.

c/o Stephen W. Johnson, Esq.

McLin & Burnsed

Post Office Box 491357

Leesburg, FL 34749-1357

Harry L. Hooper, 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 1st day of October , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations