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Home / Complaints / Final Orders / Final Orders 2012 / FCHR Order No. 12-018

FCHR Order No. 12-018

Date of Release: 04/23/2012

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

ANNE BOLAND & MICHAEL YOUNGER

 

EEOC Case No. NONE

Petitioner

 

FCHR Case Nos. 2011-01065 & 2011-01066

   

DOAH Case Nos. 11-5198 & 11-5199

v.

   

DIVISION OF EMERGENCY MANAGEMENT

 

FCHR Order No. 12-018

Respondent

   

FINAL ORDER DISMISSING PETITIONS FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Anne Boland 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 Division of Emergency Management committed an unlawful employment practice on the bases Petitioner’s sex (female) and marital status (separated) by constructively discharging Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on September 7, 2011, the Executive Director issued his determination finding that there was no reasonable cause to believe that an unlawful employment practice had occurred.

Petitioner Michael Younger filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, 760.01 - 760.11, Florida Statutes (2009), alleging that Respondent Division of Emergency Management committed an unlawful employment practice on the bases of Petitioner’s sex (male) and marital status (separated) by constructively discharging Petitioner from employment.

FCHR Order No. 12-018

Page 2

The allegations set forth in the complaint were investigated, and, on September 8, 2011, the Executive Director issued his determination finding that there was no reasonable cause to believe that an unlawful employment practice had occurred.

Petitioners filed Petitions for Relief and the cases were transmitted to the Division of Administrative Hearings for the conduct of formal proceedings.

The Division of Administrative Hearings consolidated the cases for the purposes of final hearing and the issuance of a Recommended Order.

An evidentiary hearing was held in Tallahassee, Florida, on December 12 and 13, 2011, before Administrative Law Judge E. Gary Early.

Judge Early issued a Recommended Order of dismissal, dated January 26, 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.

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

Respondent filed exceptions to the Administrative Law Judge’s Recommended Order in a document entitled “Agency’s Exceptions to Recommended Order and Supporting Legal Arguments,” received by the Commission on February 10, 2012.

The document excepts to the Administrative Law Judge’s finding / conclusion that the Petitioners were constructively discharged, as set out in footnote 3 of the Recommended Order, contending that this finding / conclusion is not supported by competent substantial evidence.

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

FCHR Order No. 12-018

Page 3

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 our view, the testimony presented at pages 53 through 55 and 67 through 70 of Volume 1 of the transcript of the proceedings for December 12, 2011, supports the excepted-to finding / conclusion.

Respondent’s exceptions are rejected.

Dismissal

The Petitions for Relief and Complaints 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. 12-018

Page 4

Copies furnished to:

Anne Boland

Post Office Box 10253

Tallahassee, FL 32302

Michael Younger

Post Office Box 503

Tallahassee, FL 32302

Division of Emergency Management

c/o Gretchen Kelley Brantley, Esq.

c/o Glen A. Bassett, Esq.

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, FL 32399-1050

E. Gary Early, 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