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Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-004

FCHR Order No. 11-004

Date of Release: 01/13/2011

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

DEBORAH MCRAE

EEOC Case No. 15D200900625

Petitioner

 

v.

FCHR Case No. 2009-02135

   

KASH N’ KARRY, d/b/a SWEETBAY SUPERMARKET

DOAH Case No. 09-6222

Respondent

FCHR Order No. 11-004

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Deborah McRae 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 Kash N’ Karry, d/b/a Sweetbay Supermarket, committed unlawful employment practices against Petitioner on the bases of Petitioner’s disability / perceived disability, age (DOB: 7-19-53), marital status (not specified in complaint), and on the basis of retaliation.

The allegations set forth in the complaint were investigated, and, on October 23, 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 Fort Myers, Florida, on May 18, 19, and 20, 2010, before Administrative Law Judge Daniel M. Kilbride.

Judge Kilbride issued a Recommended Order of dismissal, dated October 29, 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. 11-004

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 received by the Commission on November 22, 2010 (although the document is dated as being served on November 11, 2010). Without further explanation, the document states, “The testimony on record does not support the information expressed in…” the following finding of fact paragraphs of the Recommended Order: 4, 6, 8, 9, 10, 12, 14, 15, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 41, 42, 44, 45, 46, and 48. The document also states, “The respective contradictions will be submitted under separate cover with a brief and supporting documents from the record.”

The Administrative Procedure Act states, “The agency shall allow each party 15 days in which to submit written exceptions to the recommended order.” Section 120.57(1)(k), Florida Statutes (2009). The Recommended Order, itself, advises the parties, “All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.” See Recommended Order, page 38. Finally, the Florida Administrative Code section dealing with the filing of exceptions to Recommended Orders states, “No additional time shall be added to the time limits for filing exceptions or responses to exceptions when service has been made by mail.” Fla. Admin. Code R. 28-106.217(4).

The date of the Recommended Order is October 29, 2010, and, as indicated above, Petitioner’s exceptions were received by the Commission on November 22, 2010, 24 days after the date of the Recommended Order.

Petitioner’s exceptions are untimely. Accord, Carrion v. Energy Savings Systems, FCHR Order No. 09-054 (May 18, 2009).

With regard to exceptions to the findings of fact in the Recommended Order, we note that we have concluded, above, that the Administrative Law Judge’s findings of fact are supported by competent substantial evidence

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

FCHR Order No. 11-004

Page 3

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).

Further, 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 foregoing, 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 13th day of January , 2011.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Mario M. Valle, Panel Chairperson;

Commissioner Joanna Cunningham; and

Commissioner Lizzette Romano

Filed this 13th day of January , 2011,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

FCHR Order No. 11-004

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:

Deborah McRae

c/o Geralyn Farrell Noonan, Esq.

Law Office of Geralyn F. Noonan

8250 College Parkway, Suite 202-B

Post Office Box 07338

Fort Myers, FL 33919

Kash N’ Karry, d/b/a Sweetbay Supermarket

c/o Jay P. Lechner, Esq.

c/o Peter W. Zinober, Esq.

Greenberg Traurig, P.A.

625 East Twiggs Street, Suite 100

Tampa, FL 33602

Daniel M. Kilbride, 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 13th day of January , 2011.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations