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Home / Complaints / Final Orders / Final Orders 2013 / FCHR Order No. 13-044

FCHR Order No. 13-044

Date of Release: 06/19/2013

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

 

RICHELIEU WILLIAMS

EEOC Case No. 15D201200443

 

Petitioner

FCHR Case No. 2012-01048

   

DOAH Case No. 12-4020

 

v.

FCHR Order No. 13-044

 

C AND C PUMPING SERVICES

 
 

Respondent

 
     

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Richelieu Williams 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 C and C Pumping Services committed an unlawful employment practice on the bases of Petitioner’s race (African American) and color (Black) by constructively discharging Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on November 5, 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 in Jacksonville, Florida, on March 4, 2013, before Administrative Law Judge Robert S. Cohen.

Judge Cohen issued a Recommended Order of dismissal, dated April 4, 2013.

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

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

FCHR Order No. 13-044

Page 2

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.

The Administrative Law Judge concluded that to establish a prima facie case of discrimination Petitioner must show the following: “(1) that he is a member of a protected class; (2) he suffered an adverse employment action; (3) he received disparate treatment from other similarly-situated individuals in a non-protected class; and (4) there is sufficient evidence of bias to infer a causal connection between his race and the disparate treatment.” Recommended Order, ¶ 22.

With regard to the last element of the test cited by the Administrative Law Judge, a showing of a “causal connection” between the protected class and the alleged discriminatory act, the Commission has indicated that this element is actually what a Petitioner is attempting to show by establishing a prima facie case of discrimination, and that this element should not, itself, be an element of the test for a prima facie case. See, Baxla v. Fleetwood Enterprises, Inc., d/b/a Fleetwood Homes of Florida, Inc., 20 F.A.L.R. 2583, at 2585 (FCHR 1998), citing Pugh v. Walt Disney World, 18 F.A.L.R. 1971, at 1972 (FCHR 1995), and Martinez v. Orange County Fleet Manager, 21 F.A.L.R. 163, at 164 (FCHR 1997). See, also, Curry v. United Parcel Service of America, 24 F.A.L.R. 3166, at 3167 (FCHR 2000). Accord, Kelley v. Waterwise, FCHR Order No. 06-083 (September 18, 2006), Lawhorn v. Department of Corrections, FCHR Order No. 07-046 (August 24, 2007), Plegue v. Save A Lot / Jerry’s Enterprises, FCHR Order No. 08-033 (May 27, 2008), Zemba v. Phantom Fireworks, FCHR Order No. 09-012 (January 27, 2009), Monteiro v. Atria Windsor Woods, FCHR Order No. 09-047 (June 3, 2009), Wolfe v. Frito-Lay, FCHR Order No. 10-074 (September 21, 2010), Brown v. NuVox, FCHR Order No. 11-024 (March 2, 2011), Arias v. McGowan’s Heating and Air Conditioning, FCHR Order No. 11-083 (November 3, 2011), Cottrell v. Concord Custom Cleaners, FCHR Order No. 12-014 (April 23, 2012) and Doyle v. GM Appliance / Williams Corporation, FCHR Order No. 12-048 (September 17, 2012). But, cf., Royster v. Pate Stevedore Co., Inc., FCHR Order No. 08-031 (May 6, 2008), citing St. John’s School District v. O’Brien, 973 So. 2d 535 (Fla. 5th DCA 2007) regarding cases involving allegations of handicap / disability discrimination.

This conclusion of law is corrected accordingly.

In modifying this conclusion of law of the Administrative Law Judge, we conclude: (1) that the conclusion of law being modified is a conclusion of law

FCHR Order No. 13-044

Page 3

over which the Commission has substantive jurisdiction, namely a conclusion of law stating what must be demonstrated to establish a prima facie case of unlawful discrimination under the Florida Civil Rights Act of 1992; (2) that the reason the modification is being made by the Commission is that the conclusion of law as stated runs contrary to previous Commission decisions on the issue; and (3) that in making this modification the conclusion of law being substituted is as or more reasonable than the conclusion of law which has been rejected. See, Section 120.57(1)(l), Florida Statutes (2012).

We note that this correction does not change the Administrative Law Judge’s finding that Petitioner did not establish a prima facie case of discrimination given the Administrative Law Judge’s conclusions that Petitioner failed to establish that an adverse employment action occurred and failed to prove Petitioner received disparate treatment from other similarly-situated employees in a non-protected class. Recommended Order, ¶ 23.

With this correction, we adopt the Administrative Law Judge’s conclusions of law.

Exceptions

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

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 19th day of June , 2013.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Onelia Fajardo-Garcia; and

Commissioner Michell Long

Filed this 19th day of June , 2013,

in Tallahassee, Florida.

FCHR Order No. 13-044

Page 4

__________/s/_________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Richelieu Williams

c/o Sean C. Barber, Esq.

Law Offices of Bohdan Neswiacheny

151 College Drive, Suite 1

Orange Park, FL 32065

C and C Pumping Services

c/o Chris Holdorf, Sr.

19968 Independence Boulevard

Groveland, FL 34736

Robert S. Cohen, 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 19th day of June , 2013.

By: __________/s/______________

Clerk of the Commission

Florida Commission on Human Relations