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Home / Complaints / Final Orders / Final Orders 2010 / FCHR Order No. 10-045

FCHR Order No. 10-045

Date of Release: 05/25/2010

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

ROLF BIERMAN

EEOC Case No. 15D200900361

Petitioner

 

v.

FCHR Case No. 2009-00907

   

BRUNSWICK BOAT GROUP

DOAH Case No. 09-3950

Respondent

FCHR Order No. 10-045

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Rolf Bierman 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 Brunswick Boat Group committed an unlawful employment practice on the bases of Petitioner’s age (DOB: 12-21-49) and disability by terminating Petitioner from employment.

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 Viera, Florida, on December 10, 2009, before Administrative Law Judge J. D. Parrish.

Judge Parrish issued a Recommended Order of dismissal, dated March 9, 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. 10-045

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.

With regard to the allegations of age discrimination, the Administrative Law Judge concluded, “…the Petitioner failed to present any evidence that he was discharged in favor of a younger person or that younger less qualified persons were retained over him.” Recommended Order, ¶ 25. While the Administrative Law Judge’s reference to “younger” persons is no doubt because of the allegations in Petitioner’s complaint that he was discriminated against in favor of younger persons, we note that 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 Lombardi v. Dade County Circuit Court, FCHR Order No. 10-013 (February 16, 2010), 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).

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

Exceptions

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

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 25th day of May , 2010.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Gilbert M. Singer; and

Commissioner Darcell Streeter

FCHR Order No. 10-045

Page 3

Filed this 25th day of May , 2010,

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:

Rolf Bierman

1035 Palmer Road

Rockledge, FL 32955

Brunswick Boat Group

c/o Brian Koji, Esq.

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 225

Tampa, FL 33606-4127

Brunswick Boat Group

c/o Bona M. Kim, Esq.

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, FL 32789

Suzanne F. Hood, Administrative Law Judge, DOAH

FCHR Order No. 10-045

Page 4

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 25th day of May , 2010.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations