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Home / Complaints / Final Orders / Final Orders 2010 / FCHR Order No. 10-052

FCHR Order No. 10-052

Date of Release: 06/24/2010

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

GLADYS M. NORRIS

EEOC Case No. 510200903003

Petitioner

 

v.

FCHR Case No. 2009-01704

   

UNIVERSITY HOSPITAL

DOAH Case No. 09-6130

   

Respondent

FCHR Order No. 10-052

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Gladys M. Norris 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 University Hospital committed unlawful employment practices on the bases of Petitioner’s age (DOB: 2-8-32) and disability, and on the basis of retaliation, in the manner in which Petitioner was subjected to disciplinary actions and constructively discharged.

The allegations set forth in the complaint were investigated, and, on September 30, 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 February 25, 2010, before Administrative Law Judge Stuart M. Lerner.

Judge Lerner issued a Recommended Order of dismissal, dated April 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. 10-052

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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 Administrative Law Judge’s Recommended Order in a document entitled “Exceptions to Recommended Order.” The document contains 23 numbered paragraphs.

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 (2007); 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.

In paragraphs 1 and 2 of the exceptions document, Petitioner excepts to the Administrative Law Judge’s conclusion that additional claims were included in the Petition for Relief that were not included in the original Complaint, and that some of the allegations complained of were not timely.

In our view, even if these exceptions were accepted, the outcome of the case would not change given the Administrative Law Judge’s pronouncement that “…even if Petitioner’s failure to have asserted these claims in her charge of discrimination were not fatal to their consideration in this proceeding, they would nonetheless not be actionable, inasmuch as Petitioner first complained about these acts (through the filing of her Petition for Relief) more than 365 days after they had occurred. Finally, these procedural deficiencies aside, the additional claims of discrimination and retaliation made in the Petition for Relief simply lack adequate evidentiary basis to find them meritorious.” Recommended Order, page 60, endnote 25.

The exceptions raised in paragraphs 1 and 2 of Petitioner’s exceptions document are rejected.

In paragraphs 10 through 12 of the exceptions document, Petitioner appears to except to the Administrative Law Judge’s conclusion that Petitioner was not handicapped / disabled within the meaning of the Florida Civil Rights Act of 1992. See Recommended Order, ¶ 90. In our view, these paragraphs take issue with 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

FCHR Order No. 10-052

Page 3

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).

The exceptions raised in paragraphs 10 through 12 of Petitioner’s exceptions document are rejected.

In paragraphs 3 through 9 and 13 through 23 of the exceptions document, Petitioner appears to except to the ultimate finding that Respondent’s failure to provide Petitioner a headset did not amount to an unlawful employment practice under the Florida Civil Rights Act of 1992. See Recommended Order, ¶ 90. 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). Accord, Coley v. Bay County Board of County Commissioners, FCHR Order No. 10-027 (March 17, 2010).

Based on the Administrative Law Judge’s role in finding facts as set out in Barr, supra, and the Administrative Law Judge’s finding that Petitioner was not “handicapped” within the meaning of the Florida Civil Rights Act of 1992, as set out in Recommended Order, ¶ 90, the exceptions raised in paragraphs 3 through 9 and 13 through 23 of Petitioner’s exceptions document 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 24th day of June , 2010.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Joanna Cunningham; and

Commissioner Mario M. Valle

FCHR Order No. 10-052

Page 4

Filed this 24th day of June , 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:

Gladys M. Norris

c/o Sheldon Engelhard, Esq.

Sheldon Engelhard, P.A.

7369 Woodmont Court

Boca Raton, FL 33434

University Hospital

c/o Alexander D. del Russo, Esq.

Carlton Fields

Post Office Box 150

West Palm Beach, FL 33402-0150

Stuart M. Lerner, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 10-052

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I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 24th day of June , 2010.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations