STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOA V. HO, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3311

) CATHOLIC CHURCH OF THE ) INCARNATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell held a formal hearing in this case on October 27-28 and December 13-14, 1993, in Tampa, Florida.

APPEARANCES

For Petitioner: Thomas W. Dickson, Esquire

Adrienne Fechter, Esquire Fechter and Dickson, P.A.

102 West Whiting Street, Suite 502 Tampa, Florida 33602

For Respondent: Albert W. Salem, Jr., Esquire

Diana Wallace, Esquire

Albert Salem & Associates, P.A. 4600 West Kennedy Boulevard Post Office Box 18607

Tampa, Florida 33679 STATEMENT OF THE ISSUE

Whether or not Respondent terminated Petitioner from his position as janitor based on Petitioner's national origin (Vietnamese) in violation of the Florida Human Rights Act of 1977, as amended, Florida Statutes, Section 760.10(1)(a).

PRELIMINARY STATEMENT

Petitioner filed a charge of employment discrimination with the Florida Commission on Human Relations (the Commission) on May 26, 1992. After the Commission conducted its investigation and issued its determination and re- determination of "no cause", Petitioner, on June 1, 1993, filed his Petition for Relief. Respondent timely filed an Answer on June 16, 1993, stating that Respondent was discharged for budgetary reasons. Thereafter the matter was transferred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing.

At the hearing, Petitioner presented the testimony of Richard Kane, Bill Browne, Thomas Sheil, Nhu Ngog Do, Susan Taylor and Rose Briceno (by telephone). Petitioner also testified on his own behalf.

Respondent presented the testimony of William Pugh, Father Eric Hunter, and Hiep Nguyen. On January 18, 1994, the parties filed Proposed Recommended Orders which were considered in preparation of this Recommended Order. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an appendix.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record complied herein, I hereby make the following relevant:

FINDINGS OF FACT

1. Petitioner, Hoa V. Ho, is of Vietnamese national origin and has lived in the United States since the early 1980's. Petitioner has limited English speaking ability. He is only able to communicate in English with great difficulty.

   
   

2. Petitioner became employed by Respondent, Catholic Church of the Incarnation (Incarnation), as a janitor during October 1984.

   
   

3. Father Eric Hunter is the pastor of Respondent and has been since March 1989.

   
   

4. The premises of Respondent consist of 13 acres of property where there is situated a 6,000 sq. ft. church, St. Michael's Hall, which serves as the Parish center and school cafeteria, four 1400 sq. ft. portable classrooms, offices, a Parish library building, an elementary school, a junior high school and a portable building. Additionally, there are four houses located off the 13 acre campus which includes a convent and three houses where the priests live, all of which are maintained by Respondent.

   
   

5. When Father Hunter arrived at Incarnation in March of 1989, a majority of the buildings were in varying stages of disrepair. Some buildings required substantial renovation, including roof and other major repairs. It was necessary to have these repairs completed, as the schools's accreditation was up for renewal in 1990.

   
   

6. At that time, the maintenance staff consisted of Richard "Scotty" Kane, who did minor repairs, Petitioner, who worked the night shift doing janitorial cleaning, and Joe Pignatello, who worked days as a janitor.

   
   

7. Father Hunter implemented changes to upgrade the facilities including contracting with a lawn service to keep the grounds, and to free up the maintenance and janitorial staffs to work primarily on maintenance and general cleaning.

   
   

8. Additionally, it was determined that weekend maintenance coverage would be beneficial. Scotty Kane, who served as Petitioner's supervisor, was solicited to work on Sunday mornings for which he received a $60/week increase in salary.

9. During August 1989, Petitioner requested permission to work the day shift, and he was changed to that shift. As a janitor working the day shift, his duties did not change. Father Hunter hired Hiep Nguyen, also of Vietnamese national origin, in August 1989, to work the night shift as Petitioner's replacement.

   
   

10. In September 1989, Ralph Davis was hired by Respondent as a maintenance man to work the night shift and on weekends.

    
    

11. The maintenance staff consisted of employees who performed strictly janitorial work, such as cleaning, and those who did maintenance or repair work, such as fixing electrical and plumbing problems. Petitioner, Nguyen, and Pignatello did strictly janitorial work, whereas Scotty Kane and Ralph Davis did maintenance and repair work.

    
    

12. During this period, Respondent started upgrading it's facilities and commenced the major repairs such as repairing roofs and replacing portables.

    
    

13. During this period, Respondent was also required to pay a tithe to the Diocese of St. Petersburg which represented a percentage of its income. During 1989, the tithe was 10 percent. During subsequent years, i.e., 1990-91, the tithe was raised to 14 percent. In the 1991-92 school year, student enrollment increased significantly, requiring the construction of two new classrooms and the addition of four new teachers to cover the increased student enrollment. Respondent also underwent several other monetary changes which required it to seek additional contributions from its parishioners.

    
    

14. During September 1991, one of the three janitors, Joe Pignatello, retired and was not replaced. However, Respondent hired Bill Browne, an independent contractor, to oversee the maintenance area, and to do various work which had previously been referred to outside contractors, such as air conditioning, electrical, and plumbing repairs.

    
    

15. For the most part, Petitioner was an exemplary employee; however, on occasion he had been reprimanded by his supervisor, Scotty Kane, for, among other things, leaving the premises while on worktime to go home to attend to a sick family member. Petitioner lived a short distance, described as a few blocks, from the church. Scotty Kane, who was directly in charge of Petitioner's work, had no difficulty with Petitioner staying on task, and on the few occasions when he was disciplined, he accepted it constructively.

    Petitioner received numerous accolades from his supervisor, Scotty Kane, relative to his job performance. Additionally, several teachers requested that Petitioner clean their portables because of the good job that he did as a janitor. Petitioner continued to do a good job until Bill Browne came on board, and Browne had difficulty communicating in English with Petitioner. For that reason, Browne become frustrated and would often relay work directives through Petitioner's supervisor, Scotty Kane. Kane was able to communicate with Petitioner since he had been doing so for a long period of time, and was accustomed to Petitioner's limited English fluency.

    
    

16. Browne's frustration manifested itself by his calling a meeting with Petitioner during October 1991, wherein he directed that Petitioner learn to speak English. Browne offered Petitioner the use of the church and school facilities and "time on the clock" to study English. He also offered to bring in a tutor to assist Petitioner to learn to communicate in English.

17. During the meeting with Browne in October 1991, Petitioner was given a date certain (by Browne) to learn to speak English, or he would face disciplinary action.

    
    

18. Throughout his tenure with Respondent, Petitioner's duties as a janitor did not change significantly. His duties consisted of cleaning the church, assisting Kane with maintenance projects such as painting the interior and exterior of the church, and performing minor and routine maintenance activities.

    
    

19. Although Petitioner has a limited ability to speak and understand the English language, such was not an impediment to his performance of his job duties as a janitor for the church.

    
    

20. During the meeting with Browne in October 1991, wherein Browne complained about Petitioner's inability to speak and understand English, Browne gave the ultimatum regarding Petitioner's requirement to speak English. Several subsequent meetings were held in October 1991, which were attended by Mr. Browne, Messrs. Shiel and Kane, a Vietnamese interpreter from the Florida Department of Health and Rehabilitative Services, Nhu Ngog Do, and Petitioner to discuss Petitioner's communication difficulties. As stated, Messrs. Browne and Thomas Shiel, the Church Administrator, told Petitioner that he would have to improve his English speaking ability in order to keep his job as a janitor. During the meetings in October 1991, Browne told Petitioner that "the church requires that he learn to speak English." As a result of the ultimatum by Browne, Petitioner received English tutoring from Do; however, there was only a minimal improvement in his English communicating abilities.

    
    

21. On February 12, 1992, Browne informed Petitioner that, because he could not clearly speak and understand English, his employment with the church would be terminated effective March 13, 1992. Browne informed Petitioner that he had four weeks to find another job; and at that time, he circled March 13, 1992, on the calendar and identified that date, by showing it to Petitioner, as his last day of work. Petitioner was discharged on that date.

    
    

22. Browne and Shiel informed Kane that Petitioner was being discharged due to his limited English speaking abilities.

    
    

23. Throughout this period, neither Browne nor Shiel asked the translator, Nhu N. Do, to tell Petitioner that he was being discharged for any reason other than his limited ability to speak and communicate in English.

    
    

24. The motivating factor for Petitioner's discharge was his inability to speak and understand the English language.

    
    

25. During this time, the church did not have any written estimate from any cleaning service identifying the cost of replacing Petitioner with an independent cleaning contractor.

    
    

26. When Browne informed Petitioner of his pending discharge, Browne was not advised of, nor did he consider or was otherwise aware of, any cost savings that Respondent would realize by replacing Petitioner with a cleaning service. Respondent, through Browne, decided to terminate Petitioner's employment prior to having any specific knowledge of cost savings that might be realized as a result of hiring a cleaning service to perform janitorial functions.

    Noteworthy, during February 1992, when Browne told Petitioner that he would be fired within four weeks, he also told him that there were "Americans lined up to

    take his job". Browne also relayed to Petitioner that he would "fire Jesus Christ if he did not speak English". Browne had the apparent authority to effectively recommend Petitioner's discharge.

    
    

27. The fact that Respondent was terminating Petitioner based on his inability to communicate in English was upsetting to Petitioner's supervisor, Scotty Kane. As a result, Kane along with Petitioner visited the Hillsborough County Equal Employment Opportunity Department and spoke with Susan Taylor, a counselor, concerning Petitioner's termination based on his inability to speak English. Ms. Taylor phoned Respondent's administrator, Shiel, to discuss Respondent's termination. Shiel informed Ms. Taylor that the church had asked Petitioner, on numerous occasions, to obtain instruction in English. When advised that Petitioner had in fact been taking English courses, Shiel related that Petitioner had recently sought such instruction only because he was concerned about losing his job as Browne had communicated to him. During the conversation between Shiel and Ms. Taylor, Respondent, through its agent Shiel, did not advise Ms. Taylor that Petitioner was being discharged for budgetary reasons, or for that matter, any reason(s) unrelated to his English communication difficulties.

    
    

28. Kane and Petitioner also sought assistance from federal employment officials regarding Petitioner's pending dismissal based on his inability to speak English. As a result of their efforts, on or about March 4, 1992, Rose Briceno of the United States Department of Justice, Division of Immigration, Office of Special Counsel, spoke with Shiel on the telephone concerning the Petitioner's imminent dismissal. Briceno identified herself as an attorney with the Department of Justice and then told Shiel that it was illegal to discharge an employee because of the employee's inability to speak English if speaking English is not an essential part of the individual's job. Shiel told Briceno that Petitioner must be able to speak English in case of an emergency at the church or in the event guests needed to be guided around the property. Briceno told Shiel that such requirements were discriminatory, in that those job duties were not essential aspects of Petitioner's job as a janitor. In short, Bricena made it clear to administrator Shiel, that English fluency was not a bona fide occupational qualification (BFOQ) for a janitor. Significantly, during his conversation with Briceno, Shiel did not tell Briceno that Petitioner was being discharged for any reason(s) other than his inability to communicate satisfactorily in English.

    
    

29. On March 6, 1992, two days after Shiel conversed with Briceno, Shiel drafted a letter to Petitioner informing him that his last day of work would be March 13, 1992, and that he was being discharged for budgetary reasons. This was the first time that Respondent made any mention or claim that Petitioner was being discharged for reasons other than his English communication difficulties. 1/

    
    

30. Shiel's contention that on March 6, 1992, when he prepared Petitioner's termination letter, he was unaware that Browne, three weeks earlier, had advised Petitioner that his last day of work would be March 13, 1992, is not credible.

    
    

31. On or about March 6, 1992, Shiel terminated the employment of the only other Vietnamese employee, Hiep Nguyen, effective March 27, 1992. Nguyen's termination, however, is not at issue herein.

32. Respondent continued to employ, as maintenance employees, two non- Vietnamese employees, Richard Kane and Ralph Davis, after Petitioner's separation on March 13, 1992. Neither Kane nor Davis are members of a "protected class" under Florida law.

    
    

33. At the time of his discharge, Petitioner was the most senior of Respondent's maintenance department employees, save Kane.

    
    

34. When Respondent made the decision to discharge Petitioner, no attempt was made to consider whether Petitioner could be retained in the maintenance department positions held by Ralph Davis or Richard Kane.

    
    

35. During Shiel's tenure as church administrator, Respondent has terminated the employment of only two employees, Ho and Nguyen, both of whom are of Vietnamese descent.

    
    

36. On March 11, 1992, Shiel executed a contract with A+ Cleaning Services which provided the janitorial services previously performed by Petitioner and Nguyen. The contract with A+ Cleaning Services resulted in a net cost savings to Respondent. The written cleaning proposal from A+ Cleaning Services was received after the decision was made to discharge Petitioner.

    
    

37. When Respondent made the decision to terminate Petitioner's employment, the church had not performed calculations which would reveal the cost savings attributable to replacing Petitioner and Nguyen with a cleaning service. This is so, despite the contrary assertions by Shiel and Browne, based on the motivating factors relating to Petitioner's English speaking difficulties.

    
    

38. Respondent's explanation that Petitioner was discharged based on budgetary considerations is a pretext for its true discharge motivation, i.e., Petitioner's inability to speak and understand the English language. Petitioner was not discharged based on any performance problems, and he was a highly motivated employee, due to the dire financial circumstances of his family (in Vietnam), to earn a good living and to assist them financially by continuing to work in this country.

    
    

39. Petitioner has continued to seek employment after his discharge although he has been, for the most part, largely unsuccessful, having only been able to locate temporary jobs as a dishwasher and a lawn cleaning service worker which jobs paid a fraction of the wages that he was paid by Respondent. 2/

    
    

    CONCLUSIONS OF LAW

    
    

40. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Chapters 120 and 760, Florida Statutes.

    
    

41. The parties were duly noticed of the formal hearing pursuant to Chapter 120, Florida Statutes.

    
    

42. Petitioner is a person with the meaning of Section 760.02(5), Florida Statutes. Likewise, Petitioner is an individual within the meaning of Section 760.10(1), Florida Statutes.

    
    

43. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes.

44. Petitioner has established a prima facie case that he was unlawfully discharged by Respondent for a discriminatory reason, i.e., his Vietnamese national origin.

    
    

45. Because the Florida Rights Act of 1977, as amended, Florida Statutes, Sections 760.01-10, is patterned after Title VII of the Civil Rights Act of 1964, it is interpreted in a manner consistent with the interpretations of Title VII and the Age Discrimination and Employment Act of 1967. See, e.g., O'Loughlin

    v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991). In light of the fact that Florida Human Rights Act is patterned after Title VII of the Civil Rights Act, the courts in Florida often use federal law in interpreting Title VII to construe the Florida act; Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991) (Florida Human Rights Act is patterned after Title VII and Federal Title VII case law is applicable).

    
    

46. In accordance with the evidentiary analysis set forth in McDonnell Douglas Corporation v. Greene, 411 U.S. 792, 802 (1973), the church discriminated against Petitioner because of his national origin. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin. 42 U.S.C. Section 2000(e)-2(a)(1). To further this goal, Title VII prohibits employers from implementing and maintaining a neutral rule that has an impact on a national origin group, unless that rule is justified by business necessity. See, Wards Cove Packing Company v. Antonio, 490 U.S. 642, 645 (1989); Griggs v. Duke Power Company, 401 U.S. 424, 431 (1971), (recognizing the disparate impact of a neutral employment qualification on black applicants). A neutral rule (policy) requiring the use of English in the workplace has an obvious impact on those, like Petitioner, whose primary language is not English. Because of the close correlation between language and national origin, the operation of such a policy must be evaluated for its impact on affected national origin groups.

    
    

47. Courts have long recognized that an individual's primary language is a trait closely tied to national origin. In Yu Cong Eng v. Trindad, 271 U.S. 500, 515-18 (1926), for example, the Supreme Court held that a Philippine law requiring all merchants to maintain their accounts in either English, Spanish, or a local dialect was invalid because it effectively prohibited Chinese merchants from maintaining their books in the Chinese language. The law restricting use of their native language was held to discriminate on the basis of national origin in that it "deprive[d] Chinese persons . . . of their liberty and property without due process of law, and denie[d] them equal protection of the laws." Id. at 524-25.

    
    

48. Since Yu Cong Eng, courts routinely have observed that language and national origin are connected. See, Olagues v. Russoniello, 797 F.2d 1511, 1520 (9th Cir. 1986), (en banc), ("an individual's primary language skill generally flows from his or her national origin"), vacated on ground of mootness, 484 U.S. 806 (1987). 3/ Asian-American Business Group v. City of Pomona, 716 F.Supp 1328, 1330 (C.D.Cal. 1989). ("A person's primary language is an important part of and flows from his/her national origin."); Saucedo v. Brothers Well Service, Inc., 464 F. Supp. 919, 922, (S.D. Tex. 1979), (rule prohibiting Spanish "obviously has a disparate impact upon Mexican-American employees"); see also, Carino v. University of Oklahoma Board of Regents, 750 F.2d 815, 819 (10th Cir. 1984), (foreign accent and national origin are related); Berke v. Ohio Dept. of Public Welfare, 728 F.2d 980, 981 (6th Cir. 1980), (accent flowed from national origin).

49. The Equal Employment Opportunity Commission defines national origin discrimination as including, "the denial of equal employment opportunity because

    . . . an individual has the . . . linguistic characteristics of a national origin group". 29 CFR Section 1606.1 (1991). An individual's primary language "is often an essential national origin characteristic, and prohibiting individuals from speaking that language may "create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment." 29 CFR Section 1606.7(a)(cited in Gutierrez Municipal Court of the SE Judicial Dist.) 838 F.2d 1031, 1039 (9th Cir. 1988), remanded with directions to vacate as "moot", 109 S.Ct. 1736), (1989), vacated as "moot", 873 F.2d 1342 (9th Cir. 1989). 4/

    
    

50. Because of the adverse impact that prohibiting the use of a group's primary language necessarily has, the Commission has long held that an English only rule may violate Title VII. See, EEOC Decision AU7-2-88 (1967); EEOC Decision 71-446 (November 5, 1970, 2 FEP Cases 1127 (Title VII violation where employer promulgated rule against speaking any language other than English and showed no business necessity for policy); EEOC Decision 72-0281 (August 9, 1971), 1971 EEOC Decision #6293; (rule prohibiting Spanish-surnamed barbers from speaking in native tongue during work hours denies privilege of employment enjoyed by Anglo barbers, and without a business necessity showing, rule constitutes discrimination because of national origin). Respondent failed to substantiate that its requirement that Petitioner communicate and understand English was based on a business necessity or that there were no reasonable alternatives to that requirement. An employer can establish a business justification for an English-only rule. See, Jurado v Eleven-Fifty Corp., 813 F.2d 1406, (9th Cir. 1987) a case where the Court stated that an "employer may enforce a limited, reasonable and business-related English only rule." In Jurado, the employer, a radio station, did not discriminate because the station required Jurado, a disc jockey, to speak English only on the air, a requirement reasonably related to its discretion to control its broadcast programming (and ratings), and because Jurado was able to comply with the requirement easily, having successfully broadcast only in English for a number of years.

    
    

51. Furthermore, although the Church has articulated a substantial business justification for its decision to discharge Petitioner, the evidence shows that the Church's articulated reason is pretextual. Here the evidence clearly shows that Petitioner was unlawfully terminated from his employment based on his national origin and that the substantial motivating factor in the determination decision was discriminatory and unlawful. Noteworthy was the evidence that from October 1991, until early March 1992, Petitioner was consistently told, by Respondent's agents Shiel and Browne, that Petitioner would be discharged if his ability to communicate in English did not improve. Respondent, through Shiel and Browne, was cautioned that their insistence on terminating a janitor because of an English communication difficulty was discriminatory and unlawful. Respondent, however, was adamant about following through on its decision to discharge Petitioner. The shift in the reason advanced on March 6, 1992, was nothing more than a pretext and was done to try to bring Petitioner's separation into compliance with the directions given by Briceno and Taylor. As such, Respondent terminated Petitioner in violation of the Florida Human Rights Act of 1977, as amended, Florida Statutes, Section 760.10(1)(a).

    
    

52. Florida Statutes, Section 760.10(13) provides:

    
    

    In the event the Commission, in the case of a complaint under subsection (10) . . ., finds that

    an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees. Upon such notice as the Commission . . ., as appropriate, may require, such order, or any subsequent order upon the same complaint or action, may provide relief for all individuals aggrieved by

    any such unlawful employment practice. No liability for back pay shall accrue from a date more than two years prior to the filing of a complaint with the Commission.

    
    

53. Petitioner was a victim of employment discrimination and is entitled to affirmative relief. The purpose of Title VII relief is to "make whole" victims of unlawful discrimination. Nord v. United States Steel Corporation, 758 F .2d 1462, 1470 (11 Cir. 1985). Thus, Petitioner is entitled to compensation to accomplish this purpose.

    
    

54. Petitioner, as a prevailing person in an action brought pursuant to the Florida Human Rights Act, has a presumptive entitlement to an order of back pay. See, O'Loughlin, supra, at 795-96. Because the objective of providing back pay is to make employees whole for losses suffered on account of unlawful discrimination, fringe benefits should be included in the back pay award, including such items as health insurance coverage, life insurance benefits, annual retirement contributions, and profit sharing. Senello v. Reserve Life Insurance Company, 667 Fed. Supp. 1498 (So. Dist. Fla. 1987) affirmed, 872 F.2d 393 (11 Cir. 1989). 5/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

The Florida Commission on Human Relations enter a Final Order awarding back pay and benefits to Petitioner in an amount to be determined by stipulation of the parties, or at a hearing on damages which shall include, inter alia, back pay and benefits from the date of his discharge, March 13, 1992, to the date of entry of the Final Order as well as prejudgment interest, front pay, and related benefits to Petitioner, plus interest from the date of the Final Order until paid by Respondent. The Hearing Officer specifically retains jurisdiction, if necessary, to determine the amount of damages.

DONE and ENTERED this 12th day of April, 1994, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1994.

ENDNOTES

1/ In some respects, the testimony of Petitioner, Taylor, Briceno and Kane differ from that of Father Hunter, Shiel and Brown. The testimony of Taylor, Briceno, Kane and Petitioner is credited, to the extent that it conflicts with that of Father Hunter, Shiel and Browne. Briceno and Taylor were forthright in their testimony and certainly are disinterested witnesses. Kane, who is still employed, was so adamant about Respondent's position, that he assisted Petitioner in filing his grievance with the local, federal and state equal employment agencies. Kane was very credible and courageous in attempting to assist Petitioner to retain his employment. He did so while he was, and still is, employed by Respondent.

2/ During the Final Hearing herein, it was stipulated and agreed that damage calculations, if determined to be applicable, would be handled via a separate joint affidavit of the parties, or alternatively, by reconvening an evidentiary hearing to adduce and present evidence respecting damages. (TR Vol. 3, pages 315-316, of the December 14, 1993 hearing transcript.)

3/ Although this court's decision was vacated as moot, it has no precedential value, however, the analysis and reasoning has value. See, County of Los Angeles v. Davis, 440 U.S. 625, 634 n.6 (1979).

4/ As in the citation to Olaques, supra, this vacated opinion is cited only because its reasoning is valuable, not because it has precedential effect. See, Asian-American Business Group v. City of Ponoma, 716 F. Supp. 1328, 1330 (C.D. Cal. 1989), (Although not relying on Gutteriez as precedent, District Court explicitly agreed with its rationale and analysis).

5/ Specifics as to any back pay and fringe benefits to which Petitioner is entitled to will be discussed either via affidavit or at a separate evidentiary hearing as noted in endnote two.

APPENDIX IN CASE NO. 93-3311

Rulings on Petitioner's proposed findings of fact:

Paragraph 6, adopted as modified, paragraphs 8 and 15, Recommended Order. Paragraphs 7 and 8, rejected, subordinate.

Paragraph 13, adopted as modified, paragraphs 19 and 28, Recommended Order. Paragraph 15, adopted as modified, paragraphs 17 and 20, Recommended Order. Paragraph 24, adopted as modified, paragraphs 16, 17, 20-24, Recommended

Order.

Paragraph 30, adopted as modified, paragraph 27, Recommended Order. Paragraph 13, adopted in substance, paragraph 28, Recommended Order. Paragraph 43, rejected, argument and a conclusion.

Paragraph 47, adopted as modified, paragraph 38, Recommended Order. Paragraph 50, rejected, argument and speculation.

Paragraphs 51-64, rejected based on the parties' stipulation and agreement that financial data would be considered, if relevant, at a later time either through another hearing to determine applicable costs and damages owed to Petitioner, or through stipulation and affidavit. See endnote 2, Recommended Order.

Rulings on Respondent's proposed findings of fact:

Paragraph 12, adopted as modified, paragraph 12, Recommended Order. Paragraph 13, adopted in substance, paragraph 13, Recommended Order. Paragraph 14, adopted as relevant, paragraph 14, Recommended Order. Paragraphs 16 and 17 rejected, subordinate and not probative.

Paragraph 18, adopted as relevant, paragraph 14, Recommended Order. The remainder is rejected as being either irrelevant and/or subordinate.

Paragraphs 19 and 20, rejected, contrary to the greater weight of evidence, speculative and pretextual, see paragraphs 21 through 26, Recommended Order.

Paragraph 21a, rejected, uncoroborated hearsay; paragraph 21b, adopted as relevant, paragraphs 15 and 16, Recommended Order.

Paragraph 21c, rejected, subordinate and contrary to the greater weight of evidence, (English communication was not an essential part of Respondent's janitorial duties) paragraphs 27 and 28, Recommended Order.

Paragraph 22, rejected, contrary to the greater weight of evidence, paragraph 15, Recommended Order.

Paragraph 24, adopted as relevant, paragraph 15, Recommended Order. The remainder is rejected as subordinate and not probative.

Paragraphs 25-27, adopted as relevant, paragraph 15, Recommended Order.

The remainder is rejected as being contrary to the greater weight of evidence as found in paragraph 15, Recommended Order.

Paragraph 28, rejected, contrary to the greater weight of evidence and pretextual. See, Paragraphs 24-30 and 36-38, Recommended Order.

Paragraphs 29-32, rejected, contrary to the greater weight of evidence and pretextual, paragraphs 28-38, Recommended Order.

Paragraph 33, rejected, contrary to the greater weight of evidence, paragraphs 27-30, Recommended Order.

Paragraph 34, rejected, contrary to the greater weight of evidence, paragraphs 21-28, Recommended Order.

Paragraph 35, rejected, contrary to the greater weight of evidence and subordinate.

Paragraph 36, rejected, contrary to the greater weight of evidence, paragraph 27, Recommended Order.

Paragraph 37, rejected, irrelevant and pretextual.

Paragraph 38, adopted as modified, paragraph 36, Recommended Order.

Paragraph 40, rejected, contrary to the greater weight of evidence, paragraph 28, Recommended Order.

Paragraph 41, adopted as modified, paragraph 29, Recommended Order and the remainder rejected as either pretextual or contrary to the greater weight of evidence see paragraph 29, Recommended Order.

Paragraph 42, rejected, contrary to the greater weight of evidence. Paragraph 43, rejected, contrary to the greater weight of evidence. Paragraph 44, rejected, irrelevant and subordinate.

Paragraph 45, rejected, irrelevant and speculative.

Paragraph 46, rejected, contrary to the greater weight of evidence, paragraph 26, Recommended Order.

Paragraph 47 and 48 , rejected, irrelevant, and contrary to the parties stipulation and agreement respecting damages. See, endnote 1.

Paragraph 49, rejected, irrelevant and subordinate. Paragraph 50, rejected, irrelevant and pretextual.

Paragraphs 51 and 52, rejected as not probative and contrary to the greater weight of evidence, paragraphs 37 and 38, Recommended Order.

COPIES FURNISHED:

Thomas W. Dickson, Esquire Adrienne Fechter, Esquire Fechter and Dickson, P.A.

102 West Whiting Street Suite 502

Tampa, Florida 33602

Albert W. Salem, Jr., Esquire Diana Wallace, Esquire

Albert Salem & Associates, P.A. 4600 West Kennedy Boulevard Post Office Box 18607

Tampa, Florida 33679

Sharon Moultry, Clerk Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-003311

Orders for Case No: 93-003311