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Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-031

FCHR Order No. 11-031

Date of Release: 04/13/2011

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

BARBARA SIGNO

EEOC Case No. NONE

Petitioner

 

v.

FCHR Case No. 2009-02206

   

SUGAR CANE GROWERS COOPERATIVE OF FLORIDA

DOAH Case No. 10-7210

Respondent

FCHR Order No. 11-031

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Barbara Signo 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 Sugar Cane Growers Cooperative of Florida committed unlawful employment practices on the bases of Petitioner’s sex (female), marital status (single / divorced), and age (DOB: 3-17-61) by harassing Petitioner and subjecting Petitioner to disparate treatment. In addition, Petitioner alleged that Respondent terminated Petitioner from employment in retaliation for complaining about discrimination.

The allegations set forth in the complaint were investigated, and, on June 30, 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 West Palm Beach and Tallahassee, Florida, on December 7 and 8, 2010, before Administrative Law Judge June C. McKinney.

Judge McKinney issued an Amended Recommended Order of dismissal, dated January 18, 2011.

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

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

FCHR Order No. 11-031

Page 2

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.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Amended Recommended Order in a document entitled “Petitioner’s Exceptions to the Recommended Order,” received by the Commission on February 2, 2011. Respondent filed a document entitled “Response to Petitioner’s Exceptions to the Recommended Order,” received by the Commission on February 10, 2011.

Petitioner’s exceptions document sets out Petitioner’s view of the facts of this case and specifically takes exception to facts set out by the Administrative Law Judge in Amended Recommended Order paragraph numbers 3, 5, 6, 10, 11, 13, 16, 19, 20, 21, 22, 24, 26, 30, 37, 38, 43, 44, 47, 57, 59, 61, 64, 65, 66, 67, 68, and 70.

In the absence of a transcript of the proceeding before the Administrative Law Judge, the Commission is bound by the facts found in the Recommended Order, since there is no way for the Commission to determine the extent to which the facts found are supported by the testimony presented. Gainey v. Winn Dixie Stores, Inc., FCHR Order No. 07-054 (October 12, 2007).

With regard to findings of fact set out in Recommended Orders, the Administrative Procedure Act states, “The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record , and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law [emphasis added].” Section 120.57(1)(l), Florida Statutes (2009). As indicated, above, 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., supra. Accord, Hall, supra, Jones v. Suwannee County School Board, FCHR Order No. 06-088 (September 11, 2006), Johnson v. Tree of Life, Inc., FCHR Order No 05-087 (July 12, 2005), Beach-Gutierrez, supra, and Waaser, supra.

FCHR Order No. 11-031

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Further, 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 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).

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 April , 2011.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Elena Flom; and

Commissioner Billy Whitefox Stall

Filed this 13th day of April , 2011,

in Tallahassee, Florida.

____________/s/_________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

FCHR Order No. 11-031

Page 4

Copies furnished to:

Barbara Signo

c/o Robert Anthony Bogdan, Esq.

410 S.E. 1st Terrace

Pompano Beach, FL 33060

Sugar Cane Growers Cooperative of Florida

c/o Margaret L. Cooper, Esq.

Jones, Foster, Johnston & Stubbs, P.A.

Post Office Box 3475

West Palm Beach, FL 33402-3475

June C. McKinney, 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 April , 2011.

By: __________/s/________________

Clerk of the Commission

Florida Commission on Human Relations