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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-103

FCHR Order No. 09-103

Date of Release: 11/24/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

KATHLEEN SULLIVAN

EEOC Case No. 15D200800786

Petitioner

 

v.

FCHR Case No. 2008-02165

   

CLAY COUNTY BOARD OF COMMISSIONERS

DOAH Case No. 09-0033

Respondent

FCHR Order No. 09-103

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Kathleen Sullivan 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 Clay County Board of Commissioners committed unlawful employment practices on the basis of Petitioner’s disability by denying Petitioner a reasonable accommodation and by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on December 3, 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 and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

The parties filed a joint motion for summary hearing, pursuant to Section 120.574, Florida Statutes (2007), which was granted by Administrative Law Judge Suzanne F. Hood.

An evidentiary hearing was held in Green Cove Springs, Florida, on March 4, 2009, before Judge Hood.

Pursuant to Section 120.574, Florida Statutes (2007), Judge Hood issued an Amended Summary Final Order, dated June 12, 2009, dismissing the Petition for Relief with prejudice, and setting out the right of the parties to appeal the order to a District Court of Appeal.

Upon issuance of the Amended Summary Final Order, the Commission, sua sponte, issued an “Order Finding Void ‘Amended Summary Final Order’; Designating ‘Amended Summary Final Order’ as a ‘Recommended Order’; and Setting Time Frames for the Filing of Exceptions and the Creation of the Record Before the Commission,” dated September 9, 2009, and designated as FCHR Order No. 09-079. This order concluded that Section 120.574, Florida Statutes (2007) did not apply to cases brought pursuant to the Florida Civil Rights Act of 1992, that the Administrative Law Judge’s Amended Summary Final Order was void as a “final order,”

FCHR Order No. 09-103

Page 2

but could appropriately serve as the Recommended Order in this matter, and established time frames for the parties to file exceptions to the newly designated Recommended Order and for the establishment of the record before the Commission.

The time frames having expired for the filing of exceptions and the establishment of the record, the Commission panel designated below considered the record of this matter and determined the action to be taken on the former Amended Summary Final Order, now the pending 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.

We adopt the Administrative Law Judge’s conclusions of law.

Petitioner’s Exceptions

In response to the issuance of FCHR Order No. 09-079, Petitioner filed a document entitled, “Response to Recommended Order No. 09-079,” received by the Commission on or about September 16, 2009.

The document essentially requests that the Commission decline taking further action in this matter.

In FCHR Order No. 09-079, the Commission concluded that the Amended Summary Final Order issued by the Administrative Law Judge was void, but that it was an appropriate Recommended Order from which the Commission could take the “final agency action” the Florida Civil Rights Act of 1992 directs the Commission to take in cases brought pursuant to that statute.

Consequently, since the Commission is directed by statute to take final agency action on

Recommended Orders (see Section 760.11(7), Florida Statutes (2007)), Petitioner’s request is denied.

Respondent’s Exceptions

In response to the issuance of FCHR Order No. 09-079, Respondent filed exceptions to the pending Recommended Order in a document entitled, “Respondent’s Exceptions to Recommended Order,” received by the Commission on September 24, 2009.

FCHR Oder No. 09-103

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While the document does not except to the ultimate recommendation of the Recommended Order, it does except to some of the underlying conclusions of law made by the Administrative Law Judge.

Specifically, Respondent: (1) excepts to the definition of disability cited by the Administrative Law Judge in Recommended Order, paragraph 32; (2) excepts to the Administrative Law Judge’s conclusion that Petitioner was regarded as disabled by Respondent, set out in Recommended Order, paragraph 33; and (3) excepts to the Administrative Law Judge’s conclusion that Petitioner was a “qualified” individual with a disability, set out in Recommended Order, paragraph 34.

With regard to Respondent’s exception to Recommended Order, paragraph 32, to the extent that the Administrative Law Judge committed error in the citation of the definition of “disability,” this error appears harmless since both the definition cited and the definition argued to be appropriate by Respondent include “being regarded as having such an impairment” as part of the definition of disability.

Respondent’s exception to Recommended Order, paragraph 32, is rejected.

With regard to Respondent’s exceptions to Recommended Order, paragraphs 33 and 34, both of these paragraphs contain elements of findings of fact drawn by the Administrative Law Judge, through inference, from the evidence presented.

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).

Respondent’s exceptions to Recommended Order, paragraphs 33 and 34, 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 24th day of November , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

FCHR Order No. 09-103

Page 4

Commissioner Mario M. Valle, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Patty Ball Thomas

Filed this 24th day of November , 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:

Kathleen Sullivan

c/o Gaither L. Saunders, Jr., Qual. Rep.

1640B Vineland Circle

Fleming Island, FL 32003

Clay County Board of Commissioners

c/o Margaret P. Zabijaka, Esq.

c/o Lori K. Mans, Esq.

Constangy, Brooks & Smith, LLP

200 West Forsyth Street, Suite 1700

Jacksonville, FL 32202

FCHR Order No. 09-103

Page 5

Suzanne F. Hood, Administrative Law Judge, DOAH

Lawrence Kranert, FCHR Chief Legal Counsel and Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 24th day of November , 2009.

By:

Clerk of the Commission

Florida Commission on Human Relations