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Home / Complaints / Final Orders / Final Orders 2010 / FCHR Order No. 10-039

FCHR Order No. 10-039

Date of Release: 04/27/2010

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

URSULA N. JONES

EEOC Case No. 15D200900300

Petitioner

 

v.

FCHR Case No. 2009-00112

   

AT&T

DOAH Case No. 09-4130

Respondent

FCHR Order No. 10-039

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Ursula N. Jones 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 AT&T committed an unlawful employment practice on the basis of Petitioner’s race (Black) by demoting Petitioner.

The allegations set forth in the complaint were investigated, and, on July 1, 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 Pensacola, Florida, on November 17, 2009, before Administrative Law Judge Robert S. Cohen.

Judge Cohen issued a Recommended Order of dismissal, dated February 4, 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.

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.

FCHR Order No. 10-039

Page 2

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

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in an e-mail document and attachment sent to the Clerk of the Commission on or about February 18, 2010.

There is no indication on this 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 March 3, 2010.

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 (2009); 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 document takes issue with the Administrative Law Judge’s conclusion that Petitioner did not establish a prima facie case of discrimination, and with facts found and inferences drawn from the evidence presented, including the Administrative Law Judge’s ultimate finding that no unlawful discrimination occurred in this case.

With regard to the steps necessary for establishing that an unlawful employment practice has occurred, it has been stated, “The initial burden is upon Petitioner to establish a prima facie case of discrimination. Once Petitioner establishes a prima facie case, a presumption of unlawful discrimination is created. The burden shifts then to Respondent to show a legitimate, nondiscriminatory reason for its action. If Respondent carries this burden, Petitioner must then prove by a preponderance of the evidence that the reason offered by Respondent is not its true reason, but only a pretext for discrimination.” See conclusions of law adopted by a Commission panel in Spradlin v.

Washington Mutual Bank, d/b/a Great Western, 23 F.A.L.R. 3359, at 3364, 3365 (FCHR 2001), citations from the quoted statement omitted.

Petitioner excepts to the Administrative Law Judge’s conclusion that Petitioner failed to establish a prima facie case of race discrimination. Under Spradlin, supra, even if this exception was accepted the outcome of the case would not change since the Administrative Law Judge also concluded that Respondent articulated a legitimate, nondiscriminatory reason for its actions, and there was no showing that this reason was a pretext for discrimination. Recommended Order, paragraphs 54 and 55.

FCHR Order No. 10-039

Page 3

With regard to Petitioner’s exceptions to facts found and inferences drawn 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).

Petitioner’s exceptions 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 27th day of April , 2010.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Lizzette Gamero; and

Commissioner Patty Ball Thomas

Filed this 27th day of April , 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. 10-039

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:

Ursula N. Jones

c/o Steven L. Terry, Esq.

Steven Terry, P.A.

1409-B Government Street

Mobile, AL 36604

AT&T

c/o James R. Glenister, Esq.

AT&T Southeast

675 West Peachtree Street, Northwest

Suite 4300

Atlanta, GA 30375-0001

Robert S. Cohen, 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 27th day of April , 2010.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations