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Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-043

FCHR Order No. 11-043

Date of Release: 05/12/2011




EEOC Case No. 15D201000408


FCHR Case No. 2010-01587


DOAH Case No. 10-10317



FCHR Order No. 11-043







Preliminary Matters

Petitioner Tabitha Nichols filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2009), alleging that Respondent Marcus Pointe Learning Center committed an unlawful employment practice on the bases of Petitioner’s race (African American) and sex (female / pregnancy) by refusing to allow Petitioner to return to work after the birth of her child.

The allegations set forth in the complaint were investigated, and, on October 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 Pensacola and Tallahassee, Florida, on February 4, 2011, before Administrative Law Judge W. David Watkins.

Judge Watkins issued a Recommended Order of dismissal, dated March 10, 2011.

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

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

FCHR Order No. 11-043

Page 2

Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Mack v. Agency for Persons with Disabilities, FCHR Order No. 11-026 (March 17, 2011), 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.

We note that the Administrative Law Judge’s findings at Recommended Order, ¶ 2 and ¶ 15, suggesting that Respondent had 13 employees, call into question whether the Commission has jurisdiction of the matter. See Section 760.02(7) and 760.10(1), Florida Statutes (2009) which read together indicate that the Florida Civil Rights Act of 1992 prohibits unlawful employment practices committed by employers with 15 or more employees.


Neither of the parties filed exceptions to the Administrative Law Judge’s Recommended Order.


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 12th day of May , 2011.


Commissioner Mario M. Valle, Panel Chairperson;

Commissioner Watson Haynes, II; and

Commissioner Lizzette Romano

FCHR Order No. 11-043

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Filed this 12th day of May , 2011,

in Tallahassee, Florida.


Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082


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:

Tabitha Nichols

8020 Short Drive, No. 1

Pensacola, FL 32514

Marcus Pointe Learning Center

c/o Ellen Welch, Owner

6025 Enterprise Drive

Pensacola, FL 32505

W. David Watkins, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 11-043

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I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 12th day of May , 2011.

By: ________/s/_________________

Clerk of the Commission

Florida Commission on Human Relations