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Home / Complaints / Final Orders / Final Orders 2010 / FCHR Order No. 10-030

FCHR Order No. 10-030

Date of Release: 03/17/2010

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

VIVIANA GADDIS

EEOC Case No. 511200900523

Petitioner

 

v.

FCHR Case No. 2009-01694

   

CREATIVE HAIR DRESSERS, INC.

DOAH Case No. 09-5042

Respondent

FCHR Order No. 10-030

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Viviana Gaddis 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 Creative Hair Dressers, Inc., committed unlawful employment practices on the basis of Petitioner’s National Origin (Hispanic) by harassing Petitioner and by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on July 31, 2009, the Executive Director issued his determination finding that there was 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 St. Augustine, Florida, on November 19, 2009, before Administrative Law Judge Suzanne F. Hood.

Judge Hood issued a Recommended Order of dismissal, dated January 12, 2010.

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. 10-030

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 “Exceptions to Recommended Order,” received by the Division of Administrative Hearings on January 28, 2010.

While the exceptions document was filed with the Division of Administrative Hearings instead of the Commission, and there may be an issue with its timeliness, the Commission will consider the document even though it was filed in the wrong forum. Accord, generally, Lane v. Terry Laboratories, Inc., FCHR Order No. 08-022 (April 14, 2008), and cases cited therein.

There is no indication on the document that it was provided to Respondent as is required by Fla. Admin. Code R. 28-106.104(4) and Fla. Admin. Code R. 28-106.110. However, the Commission published the document to the Respondent, and placed the document in the record of this case, through the issuance of a Notice of Ex Parte Communication, mailed to the parties on February 9, 2010.

The document contains two exceptions.

The first takes issue with the Administrative Law Judge’s conclusion that Petitioner failed to establish a prima facie case of National Origin discrimination.

We note that even if this exception was accepted, it would not change the outcome of the case, given the Administrative Law Judge’s additional conclusions that Respondent articulated legitimate, nondiscriminatory reasons for terminating Petitioner (Recommended Order, paragraph 66), and there was no showing that these reasons were a pretext for unlawful discrimination (Recommended Order, paragraph 67).

This exception is rejected.

The second exception excepts to the Administrative Law Judge’s finding that Petitioner did not establish that Respondent had unlawfully subjected Petitioner to a hostile work environment based on her National Origin.

In our view, this exception takes issue with inferences drawn by the Administrative Law Judge 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

FCHR Order No. 10-030

Page 3

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).

With regard to this exception, we also note that it has been stated, “The ultimate question of the existence of discrimination is a question of fact.” Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, at 1209 (Fla. 1st DCA 1991).

Given the role of the Administrative Law Judge set out above, Petitioner’s second exception is 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 17th day of March , 2010.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Anice R. Prosser; and

Commissioner Mario M. Valle

Filed this 17th day of March , 2010,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

FCHR Order No. 10-030

Page 4

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:

Viviana Gaddis

c/o David W. Glasser, Esq.

Glasser & Handel

116 Orange Avenue

Daytona Beach, FL 32114

Creative Hair Dressers, Inc.

c/o Bradley J. Hansen, Esq.

Ratner Companies, LLC

1577 Spring Hill Road, Suite 500

Vienna, VA 22182

Suzanne F. Hood, 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 17th day of March , 2010.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations