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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-099

FCHR Order No. 09-099

Date of Release: 10/26/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

ANDREA C. QUINTERO

EEOC Case No. 15D200800446

Petitioner

 

v.

FCHR Case No. 2008-01246

   

PUBLIX SUPERMARKET, INC.

DOAH Case No. 09-1238

Respondent

FCHR Order No. 09-099

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Andrea C. Quintero 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 Publix Supermarkets, Inc., committed unlawful employment practices by subjecting Petitioner to disparate conditions, harassing Petitioner, sexually harassing Petitioner, and terminating Petitioner from employment on the basis of Petitioner’s sex (female), National Origin (Cuban), and age (54), and in retaliation for Petitioner’s complaints of discriminatory conduct.

The allegations set forth in the complaint were investigated, and, on February 5, 2009, 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 in Green Cove Springs, Florida, on June 11, 2009, before Administrative Law Judge Ella Jane P. Davis.

Judge Davis issued a Recommended Order of dismissal, dated August 5, 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.

FCHR Order No. 09-099

Page 2

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 “Right to Submit Exception Dispute with Recommended Order from Administrative Law Judge Date August 5, 2009,” received by the Commission on or about August 17, 2009. Respondent filed a response to these exceptions in a document entitled, “Response of Respondent Publix Supermarkets, Inc. to Petitioner’s Exceptions,” received by the Commission on August 24, 2009.

Petitioner’s exceptions document contains 5 numbered paragraphs, which include references to Recommended Order paragraph numbers, but do not in all instances explain the exception to the Recommended Order paragraph numbers referenced.

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 in all regards.

Nevertheless, it can be said that the 5 broad paragraph numbers contained in the document take issue with facts found (2, 4, 5), inferences drawn from the evidence presented (3), and / or provide argument relating to Petitioner’s view of the fairness of the hearing process (1). [Numerical references are to the numbered paragraphs in Petitioner’s exceptions document.]

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).

Petitioner’s exceptions are rejected.

FCHR Order No. 09-099

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 26th day of October , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Lizzette Gamero; and

Commissioner Billy Whitefox Stall

Filed this 26th 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

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.

FCHR Order No. 09-099

Page 4

Copies furnished to:

Andrea C. Quintero

201 N. Vermont Avenue

Green Cove Springs, FL 32043

Publix Supermarket, Inc.

c/o Bridget D. Escobar, Esq.

c/o Edmund J. McKenna, Esq.

Ford & Harrison, LLP

101 East Kennedy Boulevard, Suite 900

Tampa, FL 33602

Ella Jane P. Davis, 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 October , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations