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Home / Complaints / Final Orders / Final Orders 2010 / FCHR Order No. 10-067

FCHR Order No. 10-067

Date of Release: 09/07/2010

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

CAROLYN R. OSTRUM

EEOC Case No. 15D200900733

Petitioner

 

v.

FCHR Case No. 2009-01641

   

A UNIQUE FLOOR OF THE GULF COAST I

DOAH Case No. 10-1180

   

Respondent

FCHR Order No. 10-067

   

ORDER AWARDING AFFIRMATIVE

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

AND REMANDING CASE TO ADMINISTRATIVE LAW JUDGE

FOR ISSUANCE OF RECOMMENDED ORDER REGARDING

AMOUNTS OF BACK PAY OWED PETITIONER

Preliminary Matters

Petitioner Carolyn R. Ostrum 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, A Unique Floor of the Gulf Coast I, committed unlawful employment practices basis of Petitioner’s sex (female) by terminating Petitioner from employment and by subjecting Petitioner to sexual harassment.

The allegations set forth in the complaint were investigated, and, on January 19, 2010, 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 on May 25, 2010, in Marianna, Florida, before Administrative Law Judge Suzanne F. Hood.

Judge Hood issued a Recommended Order, dated June 16, 2010, recommending that the Commission find that an unlawful employment practice occurred and recommending affirmative relief.

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order.

FCHR Order No. 10-067

Page 2

Findings of Fact

A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human

Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007 (January 14, 2008), Beach-Gutierrez v. Bay Medical Center, FCHR Order No. 05-011 (January 19, 2005), and Waaser v. Streit’s Motorsports, FCHR Order No. 04-157 (November 30, 2004).

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.

We adopt the Administrative Law Judge’s conclusions of law, with the additions and comments set out below.

We note that the Administrative Law Judge concluded, “Petitioner is entitled to lost wages from March 11, 2009, to January 1, 2010. However, the record is insufficient to establish the amount of Petitioner’s lost wages. Petitioner did not present any documentation showing how much Respondent paid her on an hourly basis. She did not show whether she received any supplemental income, such as unemployment compensation, during the time she was unemployed. Petitioner did not show what, if any, efforts she made to find employment during the time she was unemployed. From the record created here, it is impossible to determine the amount of back pay / lost wages due to Petitioner.” Recommended Order, ¶ 40 and ¶ 41.

In a case in which the Administrative Law Judge stated in the Recommended Order, “No recommendation is made as to affirmative relief as insufficient evidence was introduced to do the calculations in support of such relief,” a Commission Panel remanded the case to the Administrative Law Judge “to conduct proceedings necessary to determine the amount of back pay, with interest, attorney’s fees, costs, and if no position exists into which Petitioner can be promoted, front pay, to which Petitioner is entitled.” DeLeon v. Department of Health and Rehabilitative Services, 19 F.A.L.R. 4493, at 4495, 4496, and 4513 (FCHR 1996). But, cf., Davies v. Laidlaw Education Services, FCHR Order No. 04-143 (November 4, 2004), a termination case, in which the Recommended Order in DOAH Case No. 03-4666 indicates, “No evidence of economic damages suffered by Petitioner was presented,” and the Commission’s order did not remand the case for determination of those damages, but instead ordered Respondent (1) to cease and desist from discriminating further; (2) to re-employ Petitioner; and (3) to promote Petitioner.

FCHR Order No. 10-067

Page 3

In addition, with regard to the Administrative Law Judge’s statement that Petitioner did not show whether she received any supplemental income, such as unemployment

compensation, Commission Panels have held that unemployment compensation benefits are not to be offset from back pay awards owed Petitioners. See, Cahill v. K.S.L. Fairways Group, L.P., FCHR Order No. 03-015 (March 7, 2003), and cases cited therein.

Based on DeLeon, supra, we conclude this case should be remanded to the Administrative Law Judge to conduct proceedings necessary to determine the amount of back pay owed Petitioner.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a letter addressed to the Clerk of the Commission, received by the Commission on June 30, 2010.

The three-page document addresses Recommended Order, ¶ 28, ¶ 40 and ¶ 41, in which it is found that Petitioner failed to present evidence regarding the amount of lost wages during the hearing, by requesting that Petitioner be allowed to submit proof as to lost wages.

As indicated in the conclusions of law section of this Order, above, we conclude this case should be remanded to the Administrative Law Judge to conduct proceedings necessary to determine the amount of back pay owed Petitioner.

Affirmative Relief and Remand

Through our adoption of the Administrative Law Judge’s findings of fact and conclusions of law, as set out above, we find that unlawful discrimination occurred in this matter in the manner found by the Administrative Law Judge and have adopted the Administrative Law Judge’s recommendations for the remedy of the discrimination. In addition, we conclude the case should be remanded to the Administrative Law Judge for determination of the back pay amount owed Petitioner, recognizing that interest is to be applied to the back pay amount owed as a matter of law.

Respondent, A Unique Floor of the Gulf I, is hereby ORDERED to cease and desist from discriminating further in the manner it has been found to have unlawfully discriminated against Petitioner, as recommended by the Administrative Law Judge.

This matter is REMANDED to the Administrative Law Judge for further proceedings to determine the amount of back pay owed Petitioner and the issuance of a Recommended Order as to that amount.

DONE AND ORDERED this 7h day of September , 2010.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

FCHR Order No. 10-067

Page 4

Commissioner Donna Elam, Panel Chairperson;

Commissioner Lizzette Gamero; and

Commissioner Watson Haynes, II

Filed this 7th day of September , 2010,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Carolyn R. Ostrum

2842 McDonald Drive

Alford, FL 32420

A Unique Floor of the Gulf Coast I

c/o Bob Morrisseau, Sr., Owner

2672 West Laurel Drive

Alford, FL 32420

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 7th day of September , 2010.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations