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Home / Complaints / Final Orders / Final Orders 2013 / FCHR Order No. 13-073

FCHR Order No. 13-073

Date of Release: 12/18/2013

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

SUSHON S. DILLARD

EEOC Case No. 510201202593

Petitioner

FCHR Case No. 2012-01761

v.

DOAH Case No. 12-3379

INTERNATIONAL HOUSE OF PANCAKES

FCHR Order No. 13-073

Respondent

 

FINAL ORDER AWARDING AFFIRMATIVE

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

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 subsequently issued an “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 Reinstatement,” dated May 8, 2013, FCHR Order No 13-040.

Judge Stevenson issued a Supplemental Recommended Order, dated October 17, 2013, awarding back pay plus interest to the Petitioner.

FCHR Order No. 13-073

Page 2

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

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.

We note that the “Conclusions of Law” section of the Supplemental Recommended Order awards Petitioner back pay in the amount of $2,495.52, plus interest, yet the “Recommendation” section of the Recommended Order recommends the Commission award Petitioner back pay in the amount of “$3,119.40 with interest.” Given the extensive explanation in the “Conclusions of Law” as to how the $2,495.52 back pay award was computed (See Supplemental Recommended Order, ¶ 22), we conclude that the $3,119.40 back pay amount is a typographical error.

In addition, we conclude the amount of interest owed Petitioner on the back pay award of $2,495.52 is $184.66. (An Appendix to this Order sets out how this amount has been computed.)

Exceptions

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

FCHR Order No. 13-073

Page 3

Affirmative Relief

Through our adoption of the Administrative Law Judge’s findings of fact and conclusions of law, as set out above, the remedy for the unlawful retaliation found to have occurred in FCHR Order No. 13-040 has been determined.

Respondent International House of Pancakes is hereby ORDERED:

(1) 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 (2013);

(2) to pay Petitioner back pay in the amount of $2,495.52; and

(3) to pay Petitioner interest on the back pay award in the amount of $184.66.

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 18th day of December , 2013.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Mario M. Valle, Panel Chairperson;

Commissioner Michell Long; and

Commissioner Gilbert M. Singer

Filed this 18th day of December , 2013,

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. 13-073

Page 4

***

APPENDIX – Interest Computation

year annual interest

2012 9wks x $277.28 adj. int. rate using 4.75% base

$2,495.52 x .028 [.0475 x .58 of a year] = $69.87

2013 back pay award adj. int. rate using 4.75% base

$2,495.52 x .046 [.0475 x .96 of a year] = $114.79

Total Interest $184.66

***

Copies furnished to:

Sushon S. Dillard

Apartment 46P

311 South LaSalle Street

Durham, NC 27705

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 18th day of December , 2013.

By: ___________/s/_____________

Clerk of the Commission

Florida Commission on Human Relations