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Home / Complaints / Final Orders / Final Orders 2012 / FCHR Order No. 12-021

FCHR Order No. 12-021

Date of Release: 05/16/2012

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

GEORGE SHULER

 

EEOC Case No. 15D201100261

Petitioner

 

FCHR Case No. 2011-01231

   

DOAH Case No. 11-5167

v.

   

THE PANTRY, INC.

 

FCHR Order No. 12-021

Respondent

   

INTERLOCUTORY ORDER AWARDING AFFIRMATIVE

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

AND REMANDING CASE TO ADMINISTRATIVE LAW JUDGE

FOR ISSUANCE OF RECOMMENDED ORDER REGARDING

AMOUNTS OF BACK PAY AND INTEREST OWED PETITIONER

AND REGARDING ENTITLEMENT TO REINSTATMENT

Preliminary Matters

Petitioner George Shuler 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 The Pantry, Inc., committed an unlawful employment practice basis of Petitioner’s handicap / disability by terminating Petitioner.

The allegations set forth in the complaint were investigated, and, on September 28, 2011, the Executive Director issued a 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 on December 20, 2011, at sites in Gainesville and Tallahassee, Florida, before Administrative Law Judge W. David Watkins.

Judge Watkins issued a Recommended Order, dated February 24, 2012, recommending that the Commission find that an unlawful employment practice occurred and recommending affirmative relief.

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order.

FCHR Order No. 12-021

Page 2

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 Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Gantz, et al. v. Zion’s Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. 11-048 (June 6, 2011), 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, with the comments set out below.

The Administrative Law Judge recommended that the Commission issue a final order finding that an unlawful employment practice occurred and awarding Petitioner back pay from the time of his termination. Recommended Order, “Recommendation” section.

The record as it exists before the Commission does not appear to contain evidence upon which a back pay award could be computed.

In a case in which the Administrative Law Judge stated in the Recommended Order, “No recommendation is made as to affirmative relief as insufficient evidence was introduced to do the calculations in support of such relief,” a Commission Panel remanded the case to the Administrative Law Judge “to conduct proceedings necessary to determine the amount of back pay, with interest, attorney’s fees, costs, and if no position exists into which Petitioner can be promoted, front pay, to which Petitioner is entitled.” DeLeon v. Department of Health and Rehabilitative Services, 19 F.A.L.R. 4493, at 4495, 4496, and 4513 (FCHR 1996). Accord, Ostrum v. A Unique Floor of the Gulf Coast I, FCHR Order No. 10-067 (September 7, 2010). But, cf., Davies v. Laidlaw Education Services, FCHR Order No. 04-143 (November 4, 2004), a termination case, in which the Recommended Order in DOAH Case No. 03-4666 indicates, “No evidence of economic damages suffered by Petitioner was presented,” and the Commission’s order did not remand the case for determination of those damages, but instead ordered Respondent (1) to cease and desist from discriminating further; (2) to re-employ Petitioner; and (3) to promote Petitioner.

FCHR Order No. 12-021

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In addition, in cases in which a Petitioner has been found to have been unlawfully terminated from employment, an order of reinstatement can be part of the appropriate affirmative relief. See, e.g., Mills v. Bay St. Joseph Care and Rehabilitation Center, FCHR Order No. 10-092 (December 15, 2010).

Given the lack of a transcript of the proceeding before the Administrative Law Judge, we have no way of determining the extent to which the issue of reinstatement was considered by the Administrative Law Judge.

Based on DeLeon, supra, and Mills, supra, we conclude this case should be remanded to the Administrative Law Judge to conduct proceedings necessary to determine the amount of back pay and interest owed Petitioner, and to determine whether Petitioner should be awarded reinstatement as part of the affirmative relief.

Exceptions

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

Respondent’s exceptions document contains 20 numbered paragraphs, and excepts to the findings of fact contained in the following Recommended Order paragraphs: 4, 7, 8, 9, 13, 14, 15, 17, 18, 20, 36, 42, 43, 44, 46, Endnote 1, Endnote 2, Endnote 3, Endnote 4, and Endnote 5.

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. See, e.g., Gainey v. Winn Dixie Stores, Inc., FCHR Order No. 07-054 (October 12, 2007) and Herring v. Department of Corrections, FCHR Order No. 12-004 (February 21, 2012).

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.

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. 12-021

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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.

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 accept Respondent’s exceptions.

Respondent’s exceptions are rejected.

Affirmative Relief and Remand

Through our adoption of the Administrative Law Judge’s findings of fact and conclusions of law, as set out above, we find that unlawful discrimination occurred in this matter in the manner found by the Administrative Law Judge and have adopted the Administrative Law Judge’s recommendations for the remedy of the discrimination. In addition, we conclude the case should be remanded to the Administrative Law Judge for determination of the back pay amount owed Petitioner, recognizing that interest is to be applied to the back pay amount owed as a matter of law, and for a determination of whether Petitioner is entitled to reinstatement as part of the affirmative relief.

Respondent The Pantry, Inc., is hereby ORDERED to cease and desist from discriminating further in the manner it has been found to have unlawfully discriminated against Petitioner. Section 760.11(7), Florida Statutes (2011).

This matter is REMANDED to the Administrative Law Judge for further proceedings to determine the amount of back pay and interest owed Petitioner and the issuance of a Recommended Order as to those amounts. Further, this matter is REMANDED to the Administrative Law Judge for determination of whether Petitioner is entitled to reinstatement as part of the affirmative relief.

DONE AND ORDERED this 16th day of May , 2012.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Lizzette Romano; and

Commissioner Billy Whitefox Stall

FCHR Order No. 12-021

Page 5

Filed this 16th day of May , 2012,

in Tallahassee, Florida.

_____________/s/______________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

George Shuler

5151 Northwest 35th Street

Chiefland, FL 32626

The Pantry, Inc.

c/o Mary Beth Garret, Esq.

305 Gregson Drive

Cary, NC 27511

W. David Watkins, 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 16th day of May , 2012.

By: ___________/s/_____________

Clerk of the Commission

Florida Commission on Human Relations