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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-108

FCHR Order No. 09-108

Date of Release: 11/24/2009








FCHR Case No. 2009-00252



DOAH Case No. 09-0681


FCHR Order No. 09-108




Preliminary Matters

Petitioner Kenneth R. Fritz 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 City of Pembroke Pines committed an unlawful employment practice on the basis of Petitioner’s marital status (divorced) in determining Petitioner’s monthly retirement benefits.

The allegations set forth in the complaint were investigated, and, on January 9, 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 by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, on July 1, 2009, before Administrative Law Judge Eleanor M. Hunter.

Judge Hunter issued a Recommended Order of dismissal, dated September 1, 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

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

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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.


Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a document entitled, “Petitioner’s Exceptions to the Recommended Order.”

Our reading of the document suggests that it contains three exceptions to the Recommended Order.

First, the document excepts that the Administrative Law Judge should have found that Respondent’s payout of Petitioner’s pension violates Section 175.333, Florida Statutes, and argues that intent to discriminate is not an element of a violation of this statutory section.

There is no statutory provision granting the Commission authority to enforce Section 175.333, Florida Statutes.

This exception is rejected.

Second, Petitioner focuses on the language of Section 760.10(8)(b), Florida Statutes, which states, “Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss. 760.01-760.10 for an employer, employment agency, labor organization, or joint labor-management committee to: (b) Observe the terms of a bona fide seniority system, a bona fide employee benefit plan such as a retirement, pension, or insurance plan, or a system which measures earnings by quantity or quality of production, which is not designed, intended, or used to evade the purposes of ss. 760.01-760.10.” Specifically, Petitioner argues that even if this provision applies to this case (Petitioner argued in its first exception that it did not since in Petitioner’s view it did not nullify the antidiscrimination provisions of Section 175.333, Florida Statutes), its language is consistent with Section 175.333, Florida Statutes, and that the pension in question was not being computed in compliance with Section 175.333, Florida Statutes.

As indicated, above, there is no statutory provision granting the Commission the authority to enforce Section 175.333, Florida Statutes. We also note that our reading of the Recommended Order does not reflect that the Administrative Law Judge relied on Section 760.10(8)(b), Florida Statutes, to reach the finding that no unlawful employment practice occurred in this case, but rather the Administrative Law Judge’s finding that no unlawful employment practice occurred appears to turn on the factual finding (albeit

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labeled as a conclusion of law in the Recommended Order at paragraphs 27 and 28) that Respondent had no discriminatory intent in this matter. 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).

This exception is rejected.

Third, Petitioner excepts that the case of Prieto v. City of Miami Beach, 190 F. Supp. 2d 1340 (S.D. Fla. 2002) is “inapplicable to the facts of this case,” and provides argument distinguishing the facts of Prieto from the facts of the instant case.

Our reading of the Recommended Order suggests that, regardless of the factual similarities or dissimilarities between Prieto and the instant case, the Administrative Law Judge cited the Prieto case simply for the legal principle that a showing of discriminatory intent on the part of Respondent is necessary for Petitioner to prevail.

This exception is rejected.


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.


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

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Copies furnished to:

Kenneth R. Fritz, Esq.

c/o Curtis Mase, Esq.

c/o John F. Eversole, III, Esq.

c/o Valentina M. Tejera, Esq.

Mase Lara Eversole, P.A.

80 S.W. Eighth Street, Suite 2700

Miami, FL 33130

City of Pembroke Pines

c/o James A. Cherof, Esq.

Goren, Cherof, Doody & Ezrol, P.A.

3099 East Commercial Boulevard, Suite 200

Fort Lauderdale, FL 33308

Eleanor M. Hunter, 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 24th day of November , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations