STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBBIE FULLER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0480

) PROGRESSIVE AMERICAN INSURANCE ) COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing, as duly noticed, before P. Michael Ruff, the designated Hearing Officer of the Division of Administrative Hearings on July 12, 1989 in Gainesville, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Carla D. Franklin, Esquire

P.O. Box 694

Gainesville, Florida 32601

For Respondent: John P. McAdams, Esquire

P.O. Box 3239

Tampa, Florida 33601 STATEMENT OF THE ISSUES

The issues to be resolved in this cause concern whether the Respondent's alleged refusal to grant the Petitioner a leave of absence of such length as to include the period of medical disability due to her pregnancy, the refusal to provide her with a job when she was medically able to return to work, and the refusal to hire her for the next available position after she was ready to return to work, constituted discrimination on account of her sex.

PRELIMINARY STATEMENT

The Petitioner, DEBBIE FULLER, filed a complaint with the Commission on Human Relations against the Respondent, PROGRESSIVE AMERICAN INSURANCE COMPANY. The Commission ultimately determined "no probable cause" to believe that an unlawful employment practice had occurred as charged by Fuller. The Petitioner subsequently filed a Petition for Relief alleging that the Respondent had discriminated against her because of her pregnancy or sex. The case was referred to the Division of Administrative Hearings and the undersigned Hearing Officer.

The cause came on for hearing as noticed after a continuance to which both parties agreed after a showing of good cause. The Petitioner testified on her own behalf and also called Christine Bivens as a witness. The Respondent

presented the testimony of Marilyn Kaschner, Robin Hart, Christine Bivens, Mike Painter, and Douglas Helton. The parties jointly submitted exhibits 1 through

16 and 18 through 25, as well as 27 through 29. The Respondent offered one additional exhibit, Exhibit 30; and Petitioner offered one additional exhibit, Exhibit 31, both of which were received into evidence.

At the conclusion of the proceeding, the parties ordered a transcript of the hearing and availed themselves of the right to file proposed findings of fact and conclusions of law. Those proposed findings of fact and conclusions of law were filed in the form of proposed recommended orders which have been considered in the preparation of this Recommended Order and addressed once again in the Appendix incorporated by reference herein.

FINDINGS OF FACT

1. Progressive American Insurance Company is a property and casualty insurance company. It markets auto insurance to drivers who are ordinarily non- insurable by standard insurance companies. The Company's claims organization includes 18 claims offices throughout the state, including the relevant Gainesville claims office. The Petitioner was hired as a claims office assistant on December 17, 1986. She worked in that capacity in the Gainesville office throughout the course of her employment. Claims office assistants are clerical employees who perform secretarial tasks, such as typing, filing and answering the telephone, and also perform insurance work related to the claims processing, such as personal injury protection (PIP) and small loss claims. Claims office assistants, such as the Petitioner, also provide support to the adjusters in the office by typing their dictation and taking down information on accident reports or loss reports, as well as creating files.

   
   

2. The Gainesville claims office is a small branch office and as of December 1, 1986, was staffed by a Branch Manager, Douglas Helton, two claims adjusters and two claims office assistants, one of whom was the Petitioner. Douglas Helton was promoted to the position of Branch Manager in the Gainesville office in mid-1986. He hired Debbie Fuller and supervised her throughout her tenure with the Company.

   
   

3. Progressive has adopted a business philosophy known as "management by objectives." Under this philosophy, each employee is assigned objectives which explain what is expected and the standards involved with the job. The employee's performance is then measured against those standards. Employees receive an overall numerical assessment of their performance on a 1-4 scale. The average score on performance evaluations in the Florida division of the Company has ranged from about 2.86 to 2.92. When the Petitioner was hired, she

   was placed in a three-month training plan by the Branch Manager and was assigned a set of objectives. Her performance was evaluated against these objectives at the end of 90 days, and she was given a 2.44 overall rating. Mr. Helton regarded her work as satisfactory at that time.

   
   

4. The Petitioner was then assigned another set of three-month objectives. These objectives included the assignment to her of personal injury protection work, as well as small losses work for the first time. She was given individualized training by Helton and the other claims office assistant, Christine Bivens. She applied for and obtained a temporary license to do PIP claims work, which was valid from March of 1987 to March of 1988. She received another performance evaluation at the end of the second three-month period, with a score of 2.597. Mr. Helton, again, described her performance as satisfactory, although her score was below average.

5. In June of 1987, Helton assigned the Petitioner another set of performance objectives, this time for six months. These objectives also included the assignment to her of PIP claims work. Her performance was evaluated again at the end of six months in December of 1987. This time, she scored 2.0, which is the lowest score an employee can receive before he or she is put on a 30-day performance probation, also known as "short term objectives."

   
   

6. The Petitioner's performance was deficient because of non-timely processing of claims. Although her PIP case load was only about one-quarter of that of claims assistant, Christine Bivens, she allowed PIP files to "fall off her diary." This means that the medical bills involved were not being paid or timely paid. One such failure to pay medical bills actually resulted in a lawsuit being filed against her employer. When Mr. Helton reviewed some of her files in the process of preparing her performance evaluation, he discovered that most of the files had not been timely processed. She also received a poor rating for her work in typing dictation. Mr. Helton received complaints from all of the workers in the office concerning the Petitioner's typing skills and had orally counseled her in the past regarding this aspect of her work.

   
   

7. Another major area of performance deficiency involved the Petitioner's failure to secure a permanent PIP and small loss license. She took the examination for the license and did not pass it. She was scheduled to take it again in November of 1987, but failed to do so.

   
   

8. Mike Painter, the claims adjuster, had a bad experience with the Petitioner's work performance. He had a problem with her typing, which was characterized by a high level of inaccuracy and delay. He became sufficiently dissatisfied with her typing that he began doing his own typing. He discussed these problems with Mr. Helton on a number of occasions. He also had experience with the Petitioner taking down inaccurate information on loss reports. Mr. Painter found the Petitioner erratic in her attention to detail and that her work pace was significantly slower than the rest of the people in the office.

   
   

9. Christine Bivens, another co-worker, also testified regarding the Petitioner's performance. Her initial performance during the first six months was acceptable, but then she began slowing down her work production. Because of this, Ms. Bivens had to put more time, herself, into the dictation typing and the loss reports She complained to Mr. Helton, as well; and Mr. Helton counseled the Petitioner concerning these deficiencies. After these counseling sessions, she would improve her performance for a short while; but the improvement was only temporary.

   
   

10. Mr. Helton prepared Ms. Fuller's final performance evaluation around December 17, 1987. The two of them discussed the evaluation; and although she was not content with it, she ultimately accepted it.

    
    

11. In the meantime, the Petitioner had become pregnant and began discussing the matter of maternity leave with Mr. Helton. In October or November of 1987, she had several conferences with him about the subject matter of her leave. Two of these conferences were attended by Christine Bivens.

    
    

12. During the course of these meetings, Ms. Fuller requested a maternity leave of eight to 12 weeks. Mr. Helton told Ms. Fuller that she would not be provided a 12-week leave. Ms. Bivens testified that Mr. Helton told Ms. Fuller that he could not approve a 12-week leave.

13. Sometime in December of 1987, Ms. Fuller began having premature contractions and told Mr. Helton she would not be able to work a full eight-hour day. Mr. Helton accepted that situation and told her she could work whatever hours per day she wanted to work. She thus began working five or six hour days.

    
    

14. On December 17, 1987, Mr. Helton wrote a memorandum to the Human Resources Office of his Company, regarding Ms. Fuller's performance and her upcoming maternity leave. In that memorandum, he criticized her performance, writing that she demonstrated "minimal commitment to excellence and handles her responsibilities in a passive manner." He also noted that Ms. Fuller had requested a three-month leave of absence which he had refused. In this memorandum, Mr. Helton also indicated that he intended to hold her employment position open for her for a period of only four weeks.

    
    

15. When he drafted this memorandum and prepared the Petitioner's performance evaluation, he gave some consideration to putting her on "thirty-day objectives." Under the circumstances of her imminent maternity leave, he decided that such an action would be inappropriate and assigned her objectives for May 17, 1988 instead.

    
    

16. The Respondent has a policy concerning leaves of absence by which employees with less than one year of service are eligible for a four week leave of absence. Employees with between one and five years of service are eligible for a six-week leave. The Petitioner had one year of service, effective December 17, 1987. Therefore, she was qualified; and, indeed, the Respondent determined that she should have a six-week leave of absence related to her pregnancy.

    
    

17. The Petitioner's supervisor, Mr. Helton, advised the Petitioner that she was not entitled to and would not receive a 12-week leave of absence, as she requested. Ms. Fuller also acknowledged in her testimony that Tammy Taylor, who worked in the Human Resources or personnel office of the Respondent, had informed her that she was entitled to a six-week leave of absence. Her colleague, Ms. Bivens, recalled that both Mr. Helton and Ms. Fuller had checked with the Human Resources office of Progressive and that both had learned that she was entitled to a six-week leave. Robin Hart, who worked in the Human Resources office at the time, told Ms. Fuller that she was entitled to and could take a six-week leave of absence and that any leave past that six-week period would be unapproved, as not being in accordance with Company policy.

    
    

18. The Petitioner received a note from her treating physician on December 22, 1987 instructing her to discontinue her activities, including regular employment as of that date. Ms. Fuller initially testified at the hearing that she then met with Mr. Helton on that date, gave him the note and had a conversation with him concerning her leave of absence. She later changed her testimony, however, upon introduction by Progressive of evidence showing that Mr. Helton was on vacation on that date. She also changed her testimony regarding her last day at work. She had initially testified that the date was January 4, 1988, but following testimony by Christine Bivens, her co-worker, to the effect that her last day was December 29, 1987, she agreed that was her last day of work. Thus, she continued to work after her doctor had instructed her to cease her employment pending her delivery.

    
    

19. Ms. Fuller, instead of personally discussing her leave with Mr. Helton on the final occasion before she actually left her employment, left a note for him on his desk while he was on vacation, along with her request for a 12-week leave of absence from January 4, 1988 through March 29, 1988. Upon his return

    from his Christmas vacation, Mr. Helton saw the leave request and reviewed it. He checked the box on the form marked "cannot approve" and wrote on the form "maximum allowed for 1 yr. employee is 4 weeks. Debbie requests excess of 12 weeks."

    
    

20. Mr. Helton then submitted the leave of absence form to the Human Resources office in Tampa and conversed with Marilyn Kaschner of that office concerning the length of the requested leave and how long he should leave the Petitioner's job open for her. Ms. Kaschner informed him that the Petitioner was entitled to a six-week leave of absence based upon her tenure with the Company, and Mr. Helton agreed with that. That conversation occurred sometime between January 15th and the end of January of 1988.

    
    

21. At approximately this time, Mr. Helton hired Wendy Rosenberg, as a full-time claims office assistant, and Renee Jackson, as a part-time claims office assistant. Ms. Fuller's replacement was required because the Gainesville office was very busy during the fall of 1987 and the early part of 1988. Ms. Rosenberg began employment on January 15, 1988, and Ms. Jackson was employed on January 25, 1988. Ms. Jackson was hired into a newly-approved part-time position, and Ms. Rosenberg replaced Ms. Fuller. Both employees were advised when they were hired that if Ms. Fuller returned upon the expiration of her maternity leave, she would have her choice of either the full-time or part-time positions which Ms. Rosenberg and Ms. Jackson were filling.

    
    

    In fact, Ms. Fuller did not return within the six-week time period. Mr.

    Helton subsequently contacted his supervisor, Jim Krahn; and they decided voluntarily to hold her position open for another week. She was eventually terminated, effective February 29, 1988, some nine weeks after her last day of work. Mr. Krahn at this time authorized Mr. Helton to permanently hire Ms.

    Rosenberg and Ms. Jackson.

    
    

    Ms. Fuller testified about a number of conversations she allegedly had with Mr. Helton during 1988. According to Ms. Fuller, the first one took place about the second week of January at the Gainesville office, attended by Ms. Fuller, Mr. Helton, Ms. Bivens and two claims adjusters in the office. Ms. Fuller maintains that Mr. Helton told her that he had turned in her "leave papers" and that things were fine and that there was no problem. Mr. Helton did not recall the conversation, but was positive that he would not have told her that everything was fine with her leave request because it was an excessive request. In any event, Ms. Bivens, who was present during the conversation, had no recollection of the tenor of it. However, under the circumstances under which the conversation apparently was made with a number of other employees present, it is unlikely that any in-depth discussion of the propriety of the leave request was entered into. In any event, Ms. Fuller had been informed otherwise, by the Human Resources office in Tampa, that she was only entitled to six weeks of leave.

    
    

    Both Mr. Helton and Ms. Fuller had conversations in March regarding her employment. Mr. Helton noted that the dates of the conversations were March 16 and 21, 1988, as he noted them on Ms. Fuller's termination form. During the first conversation, he advised Ms. Fuller that he did not have a position for her in his office. This is when Ms. Fuller learned of her ultimate termination. He did not have a conversation with her between February 29th and March 16th because he thought that Human Resources was going to send her a termination letter. The first conversation with her thus occurred on March 16th concerning the subject of her termination. Following this conversation, Ms. Fuller called Ms. Hart at the Human Resources office and informed her that Mr. Helton had

    guaranteed her a job when she wanted to return from maternity leave. Ms. Hart advised Mr. Helton of this representation and he denied it. Subsequently, on March 21st, there was an angry conversation between Mr. Helton and Ms. Fuller concerning what Mr. Helton believed to be Ms. Fuller's misrepresentation of his earlier statement concerning her job tenure and the availability of a position whenever she wanted to return.

    
    

    In any event, Mr. Helton, on March 21, 1988 executed Ms. Fuller's termination form and on the second page of the form, indicated she was ineligible for rehire. He considered her ineligible because her past performance bad been substandard and also because he felt that she had made misrepresentations to the Human Resources office concerning the conditions under which he had informed her that she could return to work. Accordingly, when there was later an opening in the Gainesville office for a claims office assistant, he did not consider offering Ms. Fuller that employment.

    
    

    Ms. Marilyn Kaschner testified about the company leave policy and statistical records of leaves of absence for the claims organization of Progressive. She reviewed and compiled a list of all leaves of absence for the last two and one-half years for the claims office portion of the company's operations in Florida. This list showed that eight employees, in addition to Ms. Fuller, had taken leaves of absence during that time period. Four of those leaves of absence were for childbirth. In each instance, the employee was allowed to return to her job. In those instances, the employees had taken leaves of absence which were in accordance with the company's leave of absence duration policy. It is also noteworthy that the Petitioner was accorded short- term disability insurance benefits during her leave of absence in accordance with company policy.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding, by the authority of subsection 120.57(1), Florida Statutes.

    
    

23. Progressive was an employer within the meaning of subsection 760.02(6), Florida Statutes (1987). Debbie Fuller was an employee for purposes of Chapter 760, Florida Statutes.

    
    

24. The Petitioner maintains that she is the victim of pregnancy discrimination, which discrimination she equates to her sex. The Respondent contends that the Florida Human Rights Act, Chapter 760, Florida Statutes, does not prohibit discrimination on account of pregnancy. The Act does provide that sex discrimination is unlawful, but the Respondent maintains that sex discrimination and pregnancy discrimination are not equivalent. The Respondent cites the United States Supreme Court decision in Gilbert v. General Electric Co., 429 U.S. 125 (1976), in which the Court construed Title VII of the Civil Rights Act of 1964 at 42 U.S.C. Subsection 2000E, et., which, like the Florida Human Rights Act, generally prohibited discrimination on the basis of sex. In that decision, the Court ruled "...discrimination on basis of pregnancy was not sex discrimination under Title VII." The Respondent also cites a like opinion, California Savings and Loan Association v. Guerra, 107 S.Ct. 683, 687 (1987). The Court, in the Gilbert decision, cited its prior decision in Geduldig v. Aiello, 417 U.S. 484 (1974), to the effect that the class of nonpregnant persons includes both men and women and that, therefore, pregnancy discrimination is different from gender discrimination. 429 U.S. at 134-35.

25. In response to the Gilbert decision, according to the Respondent, Congress amended Title VII by passing the Pregnancy Discrimination Act of 1978,

    42 U.S.C. subsection 2000E(k). This Amendment redefined "discrimination on the basis of sex" to include "discrimination on the basis of pregnancy." See, Guerra, 107 S.Ct. at 687.

    
    

26. The Florida Human Rights Act was enacted in 1977. See Subsection 760.01(1), Florida Statutes (1987). Respondent points out in its Proposed Conclusions of Law that the legislature in enacting the statute prohibited sex discrimination, but unlike Congress, in the 1978 Amendment to the above-cited federal statute, did not specifically indicate that discrimination on the basis of sex equates to discrimination on the basis of pregnancy or child birth. The Respondent asserts that the statutory language in the Florida Act is thus exactly the same, as far as it prohibits sex discrimination, as the language in Title VII of the Federal Act construed in the Gilbert opinion. The Respondent thus maintains that the United States Supreme Court's ruling in Gilbert definitively established that pregnancy discrimination is not a form of sex discrimination. The Respondent thus contends that because the Florida Human Rights Act only prohibits sex discrimination, the Petitioner's claim of pregnancy discrimination fails to state a cause of action under that statute.

    
    

27. The Respondent's argument in this regard is inapposite. Although the Gilbert cited by the Respondent in its Proposed Conclusions of Law apparently differentiates between pregnancy discrimination and gender discrimination based upon the court's opinion that the class of nonpregnant persons includes both men and women, the logic of any application of that decision to the instant factual situation is difficult to understand. Obviously, while men and women can both be members of a "nonpregnant class," women are the only gender who can be pregnant. Thus it is difficult to see how discrimination on the account of pregnancy or child birth does not equate to discrimination on account of the discrimination victim's sex. In any event, the Florida Commission on Human Relations has construed the Florida Human Rights Act, cited above, as providing that discrimination in employment because of pregnancy is a recognized discriminatory practice based on sex, contrary to that act. See Pinchback v. St. John's County Sheriff's Department, 7 FALR 5369 (August 12, 1985). The issue need not be treated further since it is not dispositive in the situation at bar. Even if the Petitioner's claim of pregnancy discrimination is tantamount to discrimination because of sex, it still must be dismissed. The Petitioner did not prove by preponderance of the evidence that the Respondent refused to grant her extended leave of absence and to reinstate her following her maternity leave and child birth for discriminatory reasons.

    
    

28. The Supreme Court of the United States, in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), treated the issue of burden of proof and the shifting burden of going forward with evidence in an employment discrimination case. That opinion holds that the burden is first on the Plaintiff (Petitioner) to establish a prima facie case of discrimination. If the Petitioner thus establishes a prima facie case the burden to go forward with countervailing evidence then shifts to the Respondent to articulate a legitimate, non-discriminatory reason for its action. The Petitioner then must avail itself of the opportunity to show that this reason is merely a pretext for what actually amounts to discrimination. This method of proof has been held to be equally applicable to discrimination claims brought before the Florida Commission on Human Relations and the Division of Administrative Hearings in numerous decisions.

29. Thus, in this case, the Petitioner first had to establish a prima facie case. In order to make such a showing, she was required to prove that she was a member of a protected class under the act, that she was qualified for and performing her job, and that she was terminated based upon her pregnant condition or because she had just given birth. See Bowen v. Valley Camp of Utah, Inc., 639 F.Supp. 1199, 1202 (D.Utah 1986). The Petitioner herein was thus required to establish at least inferentially, that she was not reinstated and that her leave was not granted, as she wished, because of her pregnancy or child birth.

    
    

30. In this case the Petitioner has not proven all elements of her prima facie case. She has established that she is a member of a group protected by the Florida Human Rights Act because the hearing officer concludes that she is a member of the protected female class and that, if she is pregnant, which she was at times pertinent hereto, and discriminated against on account of that pregnancy or child birth, then that equates to sexual discrimination. The Petitioner however offered no proof of discriminatory motivation. No evidence of statements showing such bias were attributed to Mr. Helton or anyone else in Progressive's organization. The Petitioner established no instance where she was treated differently than any other employees with regard to permissible leaves of absence under proven company policy. Indeed the evidence at the hearing showed that in the other four instances where employees in the Claims Organization where Petitioner worked took leaves of absence for child birth, that they were each reinstated at the conclusion of that leave. The difference was that those employees were not shown to have been accorded leaves of absence, or taken them, longer than allowed by established company policy proven in this case. It was not shown that they failed to return to work at the conclusion of the leave period granted them, in accordance with company policy, and that they were still reinstated in spite of that. It was also undisputed that the Petitioner received all the short term disability benefits to which she was entitled under company policy. Mr. Helton even accommodated her by allowing her to work 5 or 6 hour days during December of 1987 to accommodate her medical problems. There is simply no evidence in the record to justify the Petitioner's claim of discriminatory motivation in the failure to accord her a leave period in excess of the time allowed by proven company policy or in refusing to reinstate her after she was away from employment for longer than that policy allowed, which policy had clearly been communicated to her in advance.

    
    

31. The Petitioner's complaint seems to center around Mr. Helton's alleged failure to tell her that her request for a leave of absence was denied and that this alleged failure on his part constituted evidence of discriminatory motivation. However, the Petitioner submitted her leave request and supporting doctors' statement or form while Helton was on vacation and left work before he returned. It is thus understandable that she was not specifically informed by him before leaving work for maternity leave, that her request was disapproved. Moreover, however, Ms. Fuller, herself admitted that Mr. Helton had previously told her he would not approve her 12 week requested leave which is exactly the amount of leave she requested in the paper she left on Mr. Helton's desk in his absence. Indeed, based upon what she had been told by Mr. Helton and by personnel with the Human Resources Office of the company, in conversations with them, she had no reasonable anticipation that she would be allowed to take a leave longer than 6 weeks. Even if it be granted however that Ms. Fuller never received any notice that her leave request was denied, that fact alone does not constitute evidence of discrimination.

    
    

32. The Petitioner also maintained that she should have been provided a longer leave than the six weeks she was told she could expect by the Human

    Resources Office and Mr. Helton. In fact, she was ultimately allowed 9 weeks leave. No law has been cited however which contains a requirement that employees be provided a leave of certain length. The Florida Human Rights Act, embodied in Chapter 760, contains no such provision nor has any rule been cited which would so provide. Ms. Fuller introduced no evidence which shows that employees with other temporary disabilities, including pregnancies, were treated any differently or provided longer leaves, nor any that were provided longer leaves and still reinstated in their jobs. Thus, this argument is rejected.

    
    

33. Finally, the Petitioner asserts that the fact that there was an opening in the Gainesville Office for a Claims Office Assistant, her former position description, following her termination, and that she should have been considered for that opening does not constitute evidence of discrimination. Even if the Petitioner had established a prima facie case of discrimination as to the failure to hire her for this opening, which she did not, for the reasons delineated above, the fact remains that the Petitioner articulated a legitimate non-discriminatory business reason for failing to rehire her. That is, the Respondent established with competent, substantial evidence the Petitioner's poor job performance. During the course of her employment with the Respondent

her job performance had progressively deteriorated. Even had a prima facie case of discrimination as to the failure to rehire her for the new opening been established this evidence by Respondent concerning decreasing and poor job performance constitutes a legitimate non-discriminatory business reason for not rehiring her. The Respondent's evidence regarding the Petitioner's poor performance was not rebutted by competent, substantial evidence. Accordingly, it is concluded, based upon the totality of the evidence presented, given the above findings of facts, that preponderant evidence of discrimination in the manner plead by the Petitioner has not been established, no prima facie case of discrimination on account of the Petitioner's sex has been shown.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that the Petition of Debbie Fuller be dismissed.

DONE and ENTERED this 4th day of December, 1989, in Tallahassee Leon County, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-480

Petitioner's Proposed Findings of Fact

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted, but subordinate to the Hearing Officer's findings on the subject matter.

5. Rejected, as subordinate to the Hearing Officer's findings on the subject matter.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted, except for the last sentence.

11. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter.

12. Accepted.

13. Accepted.

14. Accepted.

15. Accepted.

16. Accepted.

17. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter.

18. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter.

19. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive.

20. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive.

21. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive.

22. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive.

Respondent's Proposed Findings of Fact

1. Accepted.

2. Accepted

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted.

11. Accepted.

12. Accepted.

13. Accepted.

14. Accepted.

15. Accepted.

16. Accepted.

17. Accepted.

18. Accepted.

19. Accepted.

20. Accepted.

21. Accepted.

22. Accepted.

23. Accepted.

24. Accepted.

25. Accepted.

26. Accepted.

27. Accepted.

28. Accepted.

29. Accepted.

30. Accepted.

31. Accepted.

32. Accepted.

33. Accepted.

COPIES FURNISHED:

John P. McAdams, Esq.

CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A.

P.O. Box 3239 Tampa, FL 33601

Carla D. Franklin, Esq.

P.O. Box 694 Gainesville, FL 32601

Dana Baird, Esq.

General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Mr. Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Docket for Case No: 89-000480

Orders for Case No: 89-000480