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Home / Complaints / Final Orders / Final Orders 2013 / FCHR Order No. 13-069

FCHR Order No. 13-069

Date of Release: 11/20/2013

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

 

DR. SHARON E. MCINTOSH

EEOC Case No.

15D201200560

 

Petitioner

FCHR Case No. 2012-01970

 

v.

DOAH Case No. 12-4015

 

WAL-MART STORES EAST

FCHR Order No. 13-069

 

Respondent

 

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Dr. Sharon E. McIntosh 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 Wal-Mart Stores East committed unlawful employment practices on the bases of Petitioner’s race (African-American), color (Black) and handicap / disability by harassing Petitioner and by demoting Petitioner. Petitioner also alleged that Respondent engaged in unlawful retaliation.

The allegations set forth in the complaint were investigated, and, on November 21, 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 by video teleconference at sites in Sebastian and Tallahassee, Florida, on May 22 and July 8, 2013, before Administrative Law Judge Linzie F. Bogan.

Judge Bogan issued a Recommended Order of dismissal, dated September 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

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. 13-069

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, “Exceptions to Proposed Recommended Order,” received by the Commission on or about September 9, 2013.

There is no indication on the document that it was provided to Respondent as is required by Fla. Admin. Code R. 28-106.104(4) and Fla. Admin. Code R. 28-106.110. However, the Commission published the document to the Respondent, and placed the document in the record of this case, through the issuance of a notice of ex parte communication, mailed to the parties on September 11, 2013.

Petitioner’s exceptions document contains eight numbered paragraphs.

In our view, these exceptions take issue with facts found, facts not found, and inferences drawn, from the evidence presented.

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.

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.

FCHR Order No. 13-069

Page 3

DONE AND ORDERED this 20th day of November , 2013.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Mario M. Valle, Panel Chairperson;

Commissioner Onelia Fajardo-Garcia; and

Commissioner Michell Long

Filed this 20th day of November , 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:

Dr. Sharon E. McIntosh

4565 32nd Avenue

Vero Beach, FL 32967

Wal-Mart Stores East

c/o Jonathan Beckerman, Esq.

c/o Theresa M. Vreeland, Esq.

Littler Mendelson, PC

Wells Fargo Center

333 Southeast 2nd Avenue, Suite 2700

Miami, FL 33131

Linzie F. Bogan, 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 20th day of November , 2013.

By: ___________/s/_____________

Clerk of the Commission

Florida Commission on Human Relations