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Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-079

FCHR Order No. 11-079

Date of Release: 10/06/2011

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

VALMYR VILBRUN

EEOC Case No. 846200954071

Petitioner

FCHR Case No. 2010-00697

 

DOAH Case No. 10-7209

v.

 

COUNTY OF OSCEOLA SCHOOL BOARD

FCHR Order No. 11-079

Respondent

 

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Valmyr Vilbrun filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2008), alleging that Respondent County of Osceola School Board committed unlawful employment practices on the basis of Petitioner’s race (Black) in the manner in which Petitioner was subjected to discipline, in the manner in which Petitioner was subjected to different terms and conditions of employment than similarly situated non-Black employees, and in Respondent’s failure to renew Petitioner’s teaching contract. Petitioner also alleged that Respondent unlawfully retaliated against Petitioner for complaining about the discrimination to which he had been subjected.

The allegations set forth in the complaint were investigated, and, on July 2, 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 in Kissimmee, Florida, on June 3, 2011, before Administrative Law Judge R. Bruce McKibben.

Judge McKibben issued a Recommended Order of dismissal, dated July 27, 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

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. 11-079

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 Administrative Law Judge’s Recommended Order in a document entitled “Petitioner’s Response to the Administrative Law Judge’s Proposed Recommended Order.”

Petitioner’s exceptions document contains 15 numbered exceptions paragraphs.

In each instance, the exceptions paragraphs take issue with facts found (1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 15), suggest facts not found (2), take issue with inferences drawn from the evidence presented (1, 3, 6, 7, 8, 9), take issue with credibility determinations of the Administrative Law Judge (4),and / or contain explanation or argument as to the significance or meaning of the fact found (5, 11, 12, 13, 14).

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).

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).

Noting that we have above found the facts as found by the Administrative Law Judge to be supported by competent substantial evidence and the Administrative Law

Judge’s application of the law to the facts to result in a correct disposition of the matter, 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

FCHR Order No. 11-079

Page 3

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 6th day of October , 2011.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Mario M. Valle, Panel Chairperson;

Commissioner Watson Haynes, II; and

Commissioner Lizzette Romano

Filed this 6th day of October , 2011,

in Tallahassee, Florida.

____________/s/_________________

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:

Valmyr Vilbrun

c/o Candance N. Vilbrun, Qualified Representative

Post Office Box 701975

St. Cloud, FL 34772

FCHR Order No. 11-079

Page 4

County of Osceola School Board

c/o Gary M. Glassman, Esq.

Brown, Garganese, Weiss

& D’Agresta, P.A.

111 North Orange Avenue, Suite 2000

Orlando, FL 32801

R. Bruce McKibben, 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 6th day of October , 2011.

By: _________/s/_________________

Clerk of the Commission

Florida Commission on Human Relations