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Home / Complaints / Final Orders / Final Orders 2012 / FCHR Order No. 12-015

FCHR Order No. 12-015

Date of Release: 04/23/2012

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

MELISSA DRAYTON

 

EEOC Case No. 15D201100339

Petitioner

 

FCHR Case No. 2011-01768

   

DOAH Case No. 11-5266

v.

   

LOWE’S HOME CENTERS, INC.

 

FCHR Order No. 12-015

Respondent

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Melissa Drayton 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 Lowe’s Home Centers, Inc., committed unlawful employment practices on the bases of Petitioner’s color, race (identified in the Recommended Order as African American) and sex (female) by failing to address concerns raised by Petitioner, by failing to promote Petitioner and by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on September 23, 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 Ocala, Florida, on December 1, 2011, before Administrative Law Judge F. Scott Boyd.

Judge Boyd issued a Recommended Order of dismissal, dated January 27, 2012.

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. 12-015

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 Exceptions to Recommended Order,” received by the Commission on February 14, 2012.

The document excepts to Recommended Order paragraph numbers 14, 21, 45 and 61. The exceptions to the indicated Recommended Order paragraphs take issue with facts found (21, 61), inferences drawn from the evidence presented (14, 21, 45, 61) and / or credibility determinations of the Administrative Law Judge (45).

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

Petitioner’s exceptions are rejected.

Further, while we have ruled on Petitioner’s exceptions as if they had been timely-filed, we note the Administrative Procedure Act states, “The agency shall allow each party 15 days in which to submit written exceptions to the recommended order.” Section 120.57(1)(k), Florida Statutes (2011). The Recommended Order, itself, advises the parties, “All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.” See Recommended Order, page 26. The Florida Administrative Code section dealing with the filing of exceptions to Recommended Orders states, “No additional time shall be added to the time limits for filing exceptions or responses to exceptions when service has been made by mail.” Fla. Admin. Code R. 28-106.217(4). Finally, with regard to the computation of time for filing documents, the Florida Administrative Code states, “In computing any period of time allowed by this chapter, by order of a presiding officer, or by any applicable statute, the day of the act from which the period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday,

FCHR Order No. 12-015

Page 3

or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday.” Fla. Admin. Code R. 28-106.103.

The date of the Recommended Order is January 27, 2012. Fifteen days from that date is February 11, 2012, a Saturday. Petitioner’s exceptions were due filed by the end of the following Monday, February 13, 2012. Petitioner’s exceptions were filed on Tuesday, February 14, 2012.

Petitioner’s exceptions are untimely. Accord, Barbagallo v. Ocean Park Condominium Association, FCHR Order No. 11-060 (July 13, 2011) in which a Commission Panel concluded that an exceptions document filed one day late was untimely.

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 23rd day of April , 2012.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Michael Keller

Filed this 23rd day of April , 2012,

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. 12-015

Page 4

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:

Melissa Drayton

1421 Southwest 27th Avenue, No. 2106

Gainesville, FL 34471

Lowe’s Home Centers, Inc.

c/o Charles E. Williams, Esq.

Constangy, Brooks and Smith, LLP

100 North Tampa Street, Suite 3350

Tampa, FL 33601

F. Scott Boyd, 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 23rd day of April , 2012.

By: ___________/s/_____________

Clerk of the Commission

Florida Commission on Human Relations