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Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-009

FCHR Order No. 11-009

Date of Release: 02/08/2011

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

EURACLIO PONS

EEOC Case No. 15D200900775

Petitioner

 

v.

FCHR Case No. 2009-02011

   

CITY OF MIAMI-DADE

DOAH Case No. 10-0956

Respondent

FCHR Order No. 11-009

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Euraclio Pons 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 City of Miami-Dade committed an unlawful employment practice on the basis of Petitioner’s disability and / or perceived disability by denying Petitioner a promotion.

The allegations set forth in the complaint were investigated, and, on January 18, 2010, 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 Miami and Tallahassee, Florida, on September 8, 2010, before Administrative Law Judge Eleanor M. Hunter.

Judge Hunter issued a Recommended Order of dismissal, dated November 16, 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 note that a transcript of the proceeding before the Administrative Law Judge is part of the record of this case. A review of that transcript suggests that when Petitioner presented his testimony he was not first “sworn” by either the court reporter or the

FCHR Order No. 11-009

Page 2

Administrative Law Judge. To the extent this could be termed “error,” we find it to be harmless error. The Recommended Order reflects that Petitioner’s testimony was considered by the Administrative Law Judge in the construction of the Recommended Order. See the “Preliminary Statement” section of the Recommended Order in which the Administrative Law Judge states, “At the hearing, Petitioner appeared and testified on his own behalf.” While in some instances we would consider the failure to “swear” a witness cause for remand, we do not believe that to be the case here, since Petitioner’s testimony was obviously considered by the Administrative Law Judge, yet the Administrative Law Judge’s recommendation is in favor of Respondent. Had Petitioner’s unsworn testimony been used to recommend in favor of Petitioner, we believe a remand to correct the error would have been appropriate.

With this comment, 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.

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 8th day of February , 2011.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Billy Whitefox Stall

FCHR Order No. 11-009

Page 3

Filed this 8th day of February , 2011,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

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:

Euraclio Pons

5340 Southwest 112th Avenue

Miami, FL 33165

City of Miami-Dade

c/o Diana Vizcaino, Esq.

Assistant City Attorney

444 S.W. 2nd Avenue, Suite 945

Miami, FL 33130

Eleanor M. Hunter, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 11-009

Page 4

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 8th day of February , 2011.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations