Skip to Main Content. Please Contact Us if there is anything we can do to improve the Accessibility of this site.
  • Search:

Right menu

Left menu


Home / Complaints / Final Orders / Final Orders 2013 / FCHR Order No. 13-040

FCHR Order No. 13-040

Date of Release: 05/08/2013

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

SUSHON S. DILLARD

EEOC Case No. 510201202593

Petitioner

FCHR Case No. 2012-01761

 

DOAH Case No. 12-3379

v.

 

INTERNATIONAL HOUSE OF PANCAKES

FCHR Order No. 13-040

Respondents

 

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 Sushon S. Dillard filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2011), alleging that Respondent International House of Pancakes committed unlawful employment practices on the bases of Petitioner’s race (Black) and religion (Jewish) in the manner in which Petitioner was scheduled for work, and on the basis of retaliation by terminating Petitioner.

The allegations set forth in the complaint were investigated, and, on October 4, 2012, 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 on January 3, 2013, in Tavares, Florida, before Administrative Law Judge Lawrence P. Stevenson.

Judge Stevenson issued a Recommended Order, dated March 5, 2013, 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. 13-040

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).

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

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. Recommended Order, ¶ 34 and “Recommendation” section.

The record as it exists before the Commission does not contain evidence upon which a back pay award can be computed. Recommended Order, ¶ 34.

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, Shuler v. The Pantry, Inc., FCHR Order No. 12-021 (May 16, 2012) and 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

FCHR Order No. 13-040

Page 3

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.

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

Neither party filed exceptions to the Administrative Law Judge’s Recommended Order.

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 International House of Pancakes 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 (2012).

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.

FCHR Order No. 13-040

Page 4

DONE AND ORDERED this 8th day of May , 2013.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Michell Long; and

Commissioner Mario M. Valle

Filed this 8th day of May , 2013,

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:

Sushon S. Dillard

1196 Redman Street, Apartment B

Orlando, FL 32839

International House of Pancakes

c/o Pritesh Patel, Owner

IHOP 151

10332 U. S. Highway 441

Leesburg, FL 34788

Lawrence P. Stevenson, 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 8th day of May , 2013.

By: __________/s/______________

Clerk of the Commission

Florida Commission on Human Relations