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Home / Complaints / Final Orders / Final Orders 2010 / FCHR Order No. 10-013

FCHR Order No. 10-013

Date of Release: 02/16/2010








FCHR Case No. 2009-00814



DOAH Case No. 09-3225


FCHR Order No. 10-013




Preliminary Matters

Petitioner Pauline Lombardi 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 Dade County Circuit Court committed an unlawful employment practice on the basis of Petitioner’s age (DOB: 5-18-48) by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on May 13, 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 Miami, Florida, on October 9, 2009, before Administrative Law Judge June C. McKinney.

Judge McKinney issued a Recommended Order of dismissal, dated November 30, 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. 10-013

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 note that the Administrative Law Judge concluded that one of the elements to establish a prima facie case of age discrimination in Petitioner’s termination case is a showing that Petitioner “was replaced by a younger individual.” Recommended Order,

¶ 23.

While we agree that such a showing could be an element of a prima facie case, we note that Commission panels have long concluded that the Florida Civil Rights Act of 1992 and its predecessor law the Human Rights Act of 1977, as amended, prohibited age discrimination in employment on the basis of any age “birth to death.” See Green v. ATC/VANCOM Management, Inc., 20 F.A.L.R. 314 (1997), and Simms v. Niagara Lockport Industries, Inc., 8 F.A.L.R. 3588 (FCHR 1986). A Commission panel has indicated that one of the elements in determining a prima facie case of age discrimination is that Petitioner is treated differently than similarly situated individuals of a “different” age, as opposed to a “younger” age. See Musgrove v. Gator Human Services, c/o Tiger Success Center, et al., 22 F.A.L.R. 355, at 356 (FCHR 1999); accord Deschambault v. Town of Eatonville, FCHR Order No. 09-039 (May 12, 2009) and Boles v. Santa Rosa County Sheriff’s Office, FCHR Order No. 08-013 (February 8, 2008).

We modify accordingly the Administrative Law Judge’s conclusions of law regarding the test for the establishment of a prima facie case of age discrimination.

The error in the test used by the Administrative Law Judge to establish whether a prima facie case of age discrimination existed is harmless, given the Administrative Law Judge’s conclusion that Petitioner established a prima facie case. Recommended Order,

¶ 24.

In modifying these conclusions of law of the Administrative Law Judge, we conclude: (1) that the conclusions of law being modified are conclusions of law over

which the Commission has substantive jurisdiction, namely conclusions of law stating what must be demonstrated to establish a prima facie case of unlawful discrimination under the Florida Civil Rights Act of 1992; (2) that the reason the modifications are being

made by the Commission is that the conclusions of law as stated run contrary to previous Commission decisions on the issue; and (3) that in making these modifications the conclusions of law being substituted are as or more reasonable than the conclusions of law which have been rejected. See, Section 120.57(1)(l), Florida Statutes (2007).

With this correction / comment, we adopt the Administrative Law Judge’s conclusions of law.


Neither of the parties filed exceptions to the Administrative Law Judge’s Recommended Order.

FCHR Order No. 10-013

Page 3


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 16th day of February , 2010.


Commissioner Billy Whitefox Stall, Panel Chairperson;

Commissioner Lizzette Gamero; and

Commissioner Patty Ball Thomas

Filed this 16th day of February , 2010,

in Tallahassee, Florida.


Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Pauline Lombardi

248 Florida Avenue

Miami, FL 33166

Dade County Circuit Court

c/o Kathleen M. Savor, Esq.

c/o Valerie J. Martin, Esq.

Office of the Attorney General

110 Southeast 6th Street, 10th Floor

Fort Lauderdale, FL 33331

FCHR Order No. 10-013

Page 4

June C. McKinney, 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 16th day of February , 2010.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations