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Home / Complaints / Final Orders / Final Orders 2012 / FCHR Order No. 12-004

FCHR Order No. 12-004

Date of Release: 02/21/2012

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

PATRICIA HERRING

EEOC Case No. 15D201100232

Petitioner

FCHR Case No. 2011-01101

 

DOAH Case No. 11-4466

v.

 

DEPARTMENT OF CORRECTIONS

FCHR Order No. 12-004

Respondent

 

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Patricia Herring filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2010), alleging that Respondent Department of Corrections committed unlawful employment practices on the bases of Petitioner’s race (Black) and sex (female) in its treatment of Petitioner. Further, Petitioner alleged that Respondent unlawfully sexually harassed Petitioner. Finally, Petitioner alleged that Respondent unlawfully retaliated against Petitioner for complaining about the alleged discrimination and alleged sexual harassment by falsely charging Petitioner with letting inmates wash her car.

The allegations set forth in the complaint were investigated, and, on August 19, 2011, 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 Gainesville, Florida, on November 9, 2011, before Administrative Law Judge W. David Watkins.

Judge Watkins issued a Recommended Order of dismissal, dated November 30, 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

FCHR Order No. 12-004

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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, 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.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a document entitled “Petitioner’s Exceptions to the Recommended Order.”

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 (2011). 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.

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

FCHR Order No. 12-004

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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) and Eaves v. IMT-LB Central Florida Portfolio, LLC, FCHR Order No. 11-029 (March 17, 2011).

In addition, 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) and Eaves, supra.

The exceptions set out by Petitioner relate to the establishment of a prima facie case of unlawful retaliation. First, Petitioner argues that Petitioner only need have a reasonable belief that sexual harassment occurred for her objections regarding the “coffee cup” incident to be protected conduct. Second, Petitioner argues that the retaliatory act experienced did not have to amount to a “constructive discharge,” and that, instead, the reduced performance evaluation received by Petitioner was sufficient. Third, Petitioner argues that the Recommended Order is incorrect that there is no evidence of causation, indicating that the timing of the retaliatory acts and the protected activity is ample proof of causation.

Given the role of the Administrative Law Judge set out above, and the lack of a transcript of the proceeding before the Administrative Law Judge, we find no basis to find error in the Administrative Law Judge’s conclusion that “[b]ased upon the facts of this record, there is no evidence of a nexus between the protected activity and any of the events complained of.” Recommended Order, ¶ 38.

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 21st day of February , 2012.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Onelia Fajardo; and

Commissioner Michell Long

FCHR Order No. 12-004

Page 4

Filed this 21st day of February , 2012,

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:

Patricia Herring

c/o Michael Owen Massey, Esq.

Massey and Duffy, PLLC

855 East University Avenue

Gainesville, FL 32601

Department of Corrections

c/o Todd Evan Studley, Esq.

501 South Calhoun Street

Tallahassee, FL 32399-2500

W. David Watkins, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 12-004

Page 5

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 21st day of February , 2012.

By: ________/s/_____________

Clerk of the Commission

Florida Commission on Human Relations