STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COZETTEE G. BLACKMON, )

)

Petitioner, )

)

vs. ) Case No. 00-3912

) SANDESTIN RESORT AND CLUB, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on December 4, 2000, in Destin, Florida, and on December 11, 2000, by telephone conference, before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Janice R. Cunningham

Qualified Representative Post Office Box 1002

Fort Walton Beach, Florida 32549

For Respondent: Bruce Anderson, Esquire

William Krizner, Esquire Collins & Truett, P.A.

2804 Remington Green Circle, Suite 4

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

The issues are as follows: (a) whether Petitioner's April 27, 1998, Charge of Discrimination states a cognizable claim under Sections 760.01 - 760.11 and 509.092, Florida

Statutes; and if so (b) whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of age, race, and/or gender.

PRELIMINARY STATEMENT

On or about July 21, 1997, Petitioner Cozettee G. Blackmon (Petitioner) filed a complaint with the Florida Commission on Human Relations (FCHR) regarding alleged age and race discrimination by Respondent Sandestin Beach Resort and Club, Inc. (Respondent). Among other things, Petitioner alleged that Respondent failed to promote Petitioner in April 1997, hiring instead a younger white male for the position of Chef Tourant. FCHR assigned this matter FCHR Case No. 97-2286 and referred the case to an intake counselor. FCHR did not notify Respondent about Petitioner's allegations at this time.

On April 24, 1998, Petitioner filed an amended Charge of Discrimination with FCHR. Said charge alleged that Respondent had discriminated against Petitioner based on age and race. It also alleged that Respondent had retaliated against Petitioner by firing her after she filed her initial complaint in July 1997.

FCHR sent Respondent a Notice of Charge of Discrimination dated May 28, 1998. This notice informed Respondent for the first time about Petitioner's allegations. The notice stated

that the alleged discrimination was based on race, age, and gender.

On April 17, 2000, FCHR issued a Determination: No Cause in this matter. A Notice of Determination: No Cause dated

April 17, 2000, advised Petitioner that she could request an administrative hearing by filing a Petition for Relief within 35 days of the date of the notice.

By letter dated May 9, 2000, Petitioner's attorney, Almeta

A. Johnson, Esquire, requested a copy of Petitioner's FCHR file.

According to the letter, Ms. Johnson wanted to review the file before advising Petitioner relative to the merits of her claim. FCHR did not respond to this request until after the deadline to file a Petition for Relief had passed.

On May 31, 2000, FCHR issued a Notice of Dismissal. FCHR dismissed FCHR Case No. 97-2286 because Petitioner failed to timely file a Petition for Relief.

By letter dated June 13, 2000, FCHR informed Petitioner of the cost involved in copying her FCHR file.

By letter dated June 27, 2000, Petitioner's counsel, Almeta A. Johnson, Esquire, requested an extension of time in which to review Petitioner's FCHR file. Ms. Johnson enclosed a check to cover the cost of obtaining a copy of the file.

On August 11, 2000, FCHR issued a Recession of Notice of Dismissal Order Granting Extension of Time. FCHR found that

Petitioner had acted in a diligent manner in prosecuting the case. FCHR also found no indication that Petitioner had delayed the case intentionally or negligently. FCHR reopened this case and granted Petitioner an additional 35 days in which to file a Petition for Relief.

On September 18, 2000, Petitioner filed her Petition for Relief with FCHR.

On September 20, 2000, FCHR issued a Notice to Respondent of Filing of Petition for Relief from an Unlawful Employment Practice. The following day, FCHR referred the case to the Division of Administrative Hearings.

On September 26, 2000, the Division of Administrative Hearings issued a Revised Initial Order. Subsequently, the undersigned issued a Notice of Hearing dated October 5, 2000, scheduling the case for hearing on November 9, 2000.

On November 7, 2000, Petitioner's counsel filed a Motion for Continuance. The motion stated that Petitioner's counsel did not receive a copy of the Notice of Hearing until

November 3, 2000. After conducting a telephone conference, the undersigned issued an Order Granting Continuance and Re- Scheduling Hearing. Said order scheduled the hearing for December 4, 2000.

On November 20, 2000, Respondent filed an Emergency Motion for Summary Order Dismissing Petition for Relief. Said motion

argued that FCHR violated Section 760.11(7), Florida Statutes, when it issued the Recession of Notice of Dismissal Order Granting Extension of Time. The motion also argued that Petitioner failed to file her Petition for Relief within 35 days of the date of the order granting additional time.

By order dated November 22, 2000, the undersigned denied Respondent's motion for dismissal relating to FCHR's issuance of the Recession of Notice of Dismissal Order Granting Extension of Time. The undersigned ruled that Respondent could present evidence at hearing regarding the date that the Petition for Relief was filed with FCHR.

On November 27, 2000, Almeta A. Johnson, Esquire, filed a Motion to Withdraw as Counsel of Record for Petitioner. The undersigned granted this order on November 28, 2000.

On November 28, 2000, Janice R. Cunningham, as Petitioner's Qualified Representative, filed the following: (a) Designation of Representative; (b) Unopposed Motion to Appear by Phone; and

1. Motion for Continuance. On November 29, 2000, Respondent filed a response in opposition to the Motion for Continuance. A November 29, 2000, order granted Petitioner's request to present testimony by telephone but denied her request for a continuance.

   On November 30, 2000, Respondent filed an Emergency Motion to Dismiss Petitioner's Appeal, or in the Alternative, to Exclude Exhibits and Witnesses. This motion was denied as a

   preliminary matter at hearing. Respondent was given the opportunity to examine Petitioner's witnesses prior to their testimony at hearing.

   As a preliminary matter at hearing, Respondent filed its Second Motion for Summary Order Dismissing Petition for Relief. According to the motion, Petitioner's pre-hearing stipulation admitted that there were no disputed material facts, making a formal hearing unnecessary. The undersigned reserved ruling on this motion. For the reasons set forth below, the motion is denied.

   During the hearing on December 4, 2000, Petitioner testified on her own behalf and presented the testimony of four witnesses. Petitioner submitted no exhibits for admission into evidence.

   Respondent presented the testimony of two witnesses during the hearing on December 4, 2000. Respondent offered two composite exhibits which were accepted into evidence.

   The hearing concluded in a telephone conference on December 11, 2000. Petitioner presented the testimony of one witness by telephone.

   The Transcript of the December 4, 2000, proceeding was filed on December 18, 2000. The Transcript of the December 11, 2000, proceeding was filed on December 19, 2000.

   On December 19, 2000, Respondent filed a Disclosure of Exhibits, consisting of eleven documents. These documents were referenced during the telephone testimony on December 11, 2000.

   Respondent filed its Proposed Recommended Order on December 29, 2000. Petitioner filed her untimely Proposed Recommended Order on January 2, 2001.

   FINDINGS OF FACT

   
   

   1. Petitioner is a black female who is over 60 years old.

      
      

      According to her 1992 résumé, she earned a general education diploma at Haney Vocational Technical Center, in Bay County, Florida in 1981. Petitioner's résumé states that between 1981 and 1984, she completed thirty semester hours in hotel/motel restaurant management at Gulf Coast Community College, in Bay County, Florida.

   2. At the hearing, Petitioner testified that she was certified as a working chef by the American Culinary Federation with a degree from the University of Michigan in hospitality management. However, Petitioner did not refer to the American Culinary Federation or list a graduate degree on the résumé that she furnished to Respondent in 1992. Petitioner's testimony is not credible.

   3. Petitioner's 1992 résumé includes the following professional training and certifications: (a) 1969, United States Air Force sanitation certificate; (b) 1986, State of

      Florida sanitation certificate; (c) 1981, National Cooking Institute, Denver, Colorado, for 360 hours in a culinary arts skills program, receiving an outstanding performance award for contribution in support of United States Air Force food service, catering, and special functions; (d) 1981, American Hotel/Motel Association certification for a course in introduction to hospitality industry and food and beverage control; (e) 1987, certificate of achievement for the United States Air Force Culinary Arts Upgrade Training for Managers and Supervisors, a 260-hour workshop at Randolph Air Force Base in Texas; and

      (f) 1988, a nutrition certificate for a 450-hour workshop at the Culinary Arts School in St. Augustine, Florida.

   4. Petitioner's 1992 resume includes the following work experience: (a) 1969-1975, service supervisor at a local restaurant in Panama City, Florida; (b) 1969-1985, full-time party chef and kitchen manager at Tyndall Air Force Base Non- Commissioned Officer's Club; (c) 1982-1992, part-time kitchen manager and food production specialist at Haney Vocational Technical Center, in Bay County, Florida, including working as an assistant instructor; and (d) 1985-1992, full-time kitchen/dining room manager and executive chef at Tyndall Air Force Base Officer's Club.

   5. Respondent is a hospitality company that provides upscale accommodation and fine cuisine to its guests.

   6. Respondent gives its employees a copy of its comprehensive employee handbook when they are hired. New employees are required to sign an acknowledgement that they agree to read and abide by the rules and regulations contained therein. Petitioner signed the acknowledgment that she had received and would abide by the rules set forth in the employee handbook on May 12, 1992.

   7. The employee handbook contains a complaint procedure.

      
      

      Employees are encouraged to report any job-related problems, including discrimination or harassment, to their supervisor and up the chain of command if the supervisor is part of the problem.

   8. The employee handbook sets forth rules of conduct and a three-step progressive disciplinary procedure that applies except in certain circumstances. The first time an employee violates a rule, the employee receives an oral reprimand. The second rule violation results in a written final warning regarding the behavior. Respondent terminates an employee for a third violation of a rule.

   9. The employee handbook requires employees to call their supervisor when they find it necessary to be absent from work due to illness, or other emergencies. This call to the supervisor must be made no later than one hour before a scheduled time to start work. Violation of this rule may result

      in immediate termination of employment without resort to the three-step disciplinary procedure.

   10. In 1996, Respondent amended its personnel procedures.

       
       

       The new policy regarding sick and personal leave was attached to employees' paychecks. The new policy required employees to request non-emergency personal or sick leave in writing ten days in advance. The request form was to be submitted directly to the employees' supervisors. Respondent knew about this policy and complied with it when she had surgery.

   11. Respondent hired Petitioner as a cook in the banquet kitchen effective May 14, 1992.

   12. On June 2, 1992, Respondent transferred Petitioner to the kitchen in Respondent's Sunset Bay facility.

   13. On April 1, 1993, Respondent transferred Petitioner back to the banquet kitchen as lead pantry cook. She usually worked the breakfast shift. Her principal duties involved preparation of cold foods.

   14. Chris Chirum was Respondent's Executive Chef of the Resort in April 1997 and at all times material here. Michael Kulow, Respondent's Director of Food and Beverage, was Chef Chirum's supervisor.

   15. Chef Chirum supervised an Executive Sous Chef, a Banquet Chef also known as Chef Tourant, and various restaurant chefs/managers and/or cooks, including Petitioner. Chef Chirum

       encouraged all of his subordinates to adhere strictly to Respondent's attendance policies. He urged them to call him directly at work or home when they would not be able to make a scheduled shift. This enabled Chef Chirum to ensure that the kitchens were always properly staffed.

   16. When a position of employment becomes available, Respondent's Human Resources Department publishes the vacancy in a company newsletter. Respondent's policy is to hire qualified applicants from within the organization if possible. If Respondent does not receive an application from a qualified in- house applicant, Respondent advertises job vacancies in newspapers and accepts outside applications. The company newsletter is available in the personnel office for walk-in applicants to review. Once the Human Resources Department receives an application, it is sent to the appropriate department head for further consideration.

   17. In April 1997, Wayne Edwards, applied for a vacant position as Chef Tourant.1 Mr. Edwards had not previously been employed by Respondent, but he had excellent credentials as a Chef. Mr. Edwards graduated from the University of Kansas with a graduate degree in business. He also completed a three-year degree program in hospitality management at a community college in Kansas. He was certified as a working chef by the American Culinary Federation, receiving Chapter Chef of the Year in

       Huntsville, Alabama. Mr. Edward's work experience includes the following: (a) 1990-1991, food and beverage director for a Hilton hotel; (b) 1992-1993, food and beverage director for a Marriott hotel; (c) 1994, food and beverage supervision for banquets and culinary a la carte at a Holiday Inn hotel; and

       1. 1995-1997, owner/operator of a sports bar.

          
          

   18. Petitioner discussed her interest in applying for the position of Chef Tourant with Michael Kulow in April 1997. He did not encourage her to apply for the job but told her to file an application.

   19. Petitioner went to the personnel office and picked up an application. Her testimony that she completed the application and submitted it to Respondent's Human Resources Department is not persuasive. The record does not contain a copy of Petitioner's application for the position of Chef Tourant.

   20. Michael Kulow, in conjunction with Chef Chirum, usually made the hiring decisions for kitchen employment positions. In this case, Michael Kulow decided to hire Wayne Edwards as Chef Tourant. Chef Chirum agreed with Michael Kulow that Mr. Edwards was more than qualified for the position of Chef Tourant. Chef Chirum was not aware that Petitioner was interested in the job.

   21. Chef Chirum provided persuasive testimony at the hearing that Petitioner did not have the educational background or work experience that Mr. Edwards possessed. Competent evidence indicates that Respondent would have hired Mr. Edwards as Chef Tourant even if Petitioner had followed the correct procedure and submitted an application for the position.

   22. On July 21, 1997, Petitioner filed a complaint with FCHR alleging age and race discrimination based on Respondent's failure to promote her to Chef Tourant. FCHR did not provide Respondent with a notice of this complaint until May 1998.

   23. On August 8, 1997, Chef Chirum gave Petitioner a verbal warning for being absent during a scheduled shift. He explained to her the importance of following the policies set out in the employee handbook relative to attendance. He explained the disciplinary procedure. Petitioner signed the Employee Communication Notice but indicated that she did not agree with it.

   24. On November 24, 1997, Chef Chirum gave Petitioner a final written warning for an unexcused absence. Petitioner was scheduled to work the morning shift and never showed up. Petitioner claimed that she had requested the day off. However, Petitioner had not submitted the proper paperwork in a timely manner for requesting non-emergency personal/sick leave. Petitioner was or should have been aware that any further

       violation of the attendance policy might result in termination of her employment.

   25. On December 13, 1997, Chef Chirum set up a television in the banquet kitchen. He wanted to watch the score of a football game with the sound muted on the set. Petitioner became upset when she realized that Chef Chirum had the television in the kitchen because she had not been allowed to have a radio on while she worked. Chef Chirum attempted to explain that, unlike the radio, the muted television did not interrupt essential communications in the kitchen. Petitioner continued to argue, raising her voice.

   26. Chef Chirum spoke to Petitioner in his office. He told her to take the rest of the day off so she could calm down. Before she clocked out, Petitioner asked Chef Chirum if she should work the next day. He responded that she should because she was scheduled.

   27. On the evening of December 13, 1997, Petitioner called Jo Ann Thigpen, one of the banquet servers, at work. Petitioner told Ms. Thigpen that she would not be coming in to work the next day because she had experienced an anxiety attack. Petitioner asked Ms. Thigpen to relay the message to her boss. Ms. Thigpen gave Executive Sous Chef, Chris Anglin, Petitioner's message that night. Petitioner should have contacted her supervisor directly instead of delivering the message through

       another employee. December 13, 1997, was Petitioner's last day at work.

   28. December 14, 1997, was a Sunday. Petitioner usually had the day off on Sunday. However, she had volunteered to work on the 14th and had been scheduled to do so. On the morning of December 14, 1997, Petitioner called the banquet kitchen and talked to Carol Ann Ernest, who worked next to Petitioner in the banquet kitchen. Petitioner asked Ms. Ernest to tell Chef Chirum that she would not be in to work that day. Ms. Ernest delivered the message a few minutes later when Chef Chirum called the kitchen. Petitioner should have called Chef Chirum at home or left a message on his voice mail instead of giving the message to a co-worker.

   29. Petitioner did not show up for scheduled work or call Chef Chirum on Monday, December 15, 1997. Petitioner was not scheduled to work on Tuesday, December 16, 1997. She did not show up for scheduled work or call Chef Chirum on Wednesday, December 17, 1997.

   30. On December 17, 1997, Petitioner went in to Respondent's Human Resources Department to talk with Sylvia Hanks, Respondent's Vice President of Human Resources. Petitioner told Ms. Hanks why she became upset and left work on December 13, 1997. Petitioner explained to Ms. Hanks that she was under a lot of stress in her work environment. Petitioner

       claimed that Wayne Edwards and other employees in positions of authority had been rude and threatening to her.

   31. At the time of the meeting on December 17, 1997, Ms.

       
       

       Hanks was not aware that Petitioner had filed a race or age discrimination claim on July 21, 1997.2 Petitioner did not raise the issue directly with Ms. Hanks. Instead, Petitioner requested a three to four-week leave of absence. Ms. Hanks gave Petitioner a leave of absence form and encouraged her to complete the form and return it to the Human Resource Department. Petitioner never returned the completed form.

   32. After meeting with Petitioner on December 17, 1997, Ms. Hanks investigated Petitioner's allegations regarding the incident on December 13, 1997, and her allegations of unfair treatment. Ms. Hanks was unable to verify Petitioner's allegations. Ms. Hanks did not attempt to contact Petitioner after completing her investigation because she agreed with Chef Chirum's decision to terminate Petitioner for violation of Respondent's attendance policy.

   33. Sometime during the workweek beginning December 15, 1997, Petitioner's attorney contacted Ms. Hanks. The attorney informed Ms. Hanks that she knew Respondent would do the right thing for Petitioner. The attorney never mentioned Petitioner's

       pending claim of age or race discrimination against Respondent or that Petitioner had filed a Charge of Discrimination with FCHR.

   34. Respondent subsequently terminated Petitioner's employment, effective December 13, 1997, for failure to comply with the attendance policy. When Chef Chirum made the decision to fire Petitioner, he was not aware of her pending claim of age or race discrimination. There is no persuasive evidence that Petitioner's termination was in retaliation for filing a discrimination claim with FCHR.

       CONCLUSIONS OF LAW

       
       

   35. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, 120.57(1), and 760.11(7), Florida Statutes.

   36. Respondent continues to argue that FCHR was without jurisdiction to issue the August 11, 2000, Rescission of Notice of Dismissal Order Granting Extension of Time. According to Respondent, Petitioner did not file a Petition for Relief within

       35 days of the issuance of the Notice of Determination:

       
       

       No Cause, as required by Section 760.11(7), Florida Statutes, and did not request an extension of time in which to file a Petition for Relief within 30 days after issuance of the Notice

       of Determination: No Cause as required by Rule 60Y-5.008(2), Florida Administrative Code.

   37. Respondent's argument overlooks the fact that Petitioner's attorney requested a copy of her FCHR file by letter dated May 9, 2000, 13 days before expiration of the 35- day time frame set forth in Section 760.11(7), Florida Statutes. The attorney made this request in order to advise Petitioner as to the merits of filing a Petition for Relief. FCHR issued the May 31, 2000, Notice of Dismissal while the attorney was waiting for a response from FCHR. FCHR did not respond to Petitioner's request until June 13, 2000, and only then by advising her of the cost involved in furnishing the requested documents. Petitioner's counsel sent FCHR a second letter dated June 27, 2000, requesting an extension of time and enclosing a check for the requested documents. Under these circumstances, FCHR did not abuse its discretion in deeming the letter dated May 9, 2000, as a timely request for an extension of time in which to file the Petition for Relief. The record supports FCHR's determination that Petitioner did not intentionally or negligently delay the case.

   38. Respondent also argues that Petitioner's Unaccompanied Pre-hearing Stipulation, as originally filed and as amended, admitted there were no disputed material facts, eliminating the need for a formal hearing. It is true that paragraph (e) of

       Petitioner's stipulations repeated verbatim the facts as stated

       
       

       in paragraph (e) of Respondent's Unaccompanied Pre-hearing Stipulation. However, review of the parties' unilateral pre- hearing stipulations in their entirety and based on argument during the hearing, it is clear that Petitioner did not intend to admit the facts as stated by Respondent. Petitioner's Qualified Representative obviously typed the facts in paragraph

       1. without reading them or without understanding that she was adopting Respondent's position on the merits of the case. Accordingly, Respondent's Second Motion for Summary Order Dismissing Petition for Relief is denied.

   39. Under Sections 760.10(1)(a) and 760.10(7), Florida Statutes, it is unlawful for an employer to discriminate against an employee based on age, race, or gender, or to retaliate against an employee for filing a charge of discrimination.

   40. In order to sustain her claim of age, race, and gender discrimination based on a failure to promote, Petitioner must prove a prima facie case, showing the following: (a) she is a member of a protected class; (b) she was qualified for the position for which she applied; (c) she was rejected in spite of her qualifications; and (d) the individual who was hired or promoted is not a member of a protected group and had lesser or equal qualifications. Carter v. Three Springs Residential

       Treatment, 132 F.3d 635 (11th Cir. 1998), citing McDonald

       
       

       Douglas Corp. v. Green, 411 U.S. 792 (1973).

       
       

   41. In this case, Petitioner did not present persuasive evidence that she qualified for or submitted an application for the position of Chef Tourant. On the other hand, Mr. Edwards was highly qualified based on his experiences supervising all food and beverage operations for two major hotel chains, his experience supervising banquets for another major hotel chain, and his experience in owning and operating his own sports bar.

   42. To the extent that Petitioner and Mr. Edwards had similar work experience and training in culinary arts, Mr. Edwards clearly had a superior academic background considering his four-year degree in business from a university and his three-year degree in culinary arts from a community college.

   43. To demonstrate a prima facie showing of retaliation, Petitioner is required to prove the following: (a) she engaged in statutorily protected expression; (b) she suffered an adverse employment action; and (c) there is a causal connection between the two events. Holifield v. Reno 115 F.3d 1555, 1556 (11th Cir. 1997). At a minimum, the causal connection requires Petitioner to show that "the employer was actually aware of the protected expression at the time it took adverse employment action." Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993).

   44. In this case, there is no credible evidence that Chef Chirum, Ms. Hanks, or any other authority figure actually knew that Petitioner had filed a discrimination claim before she was fired. Petitioner often may have stated to someone working for Respondent that she intended to file such a claim, but Ms. Hanks and Chef Chirum were not aware of Petitioner's threats at the time they terminated her employment. Thus, the greater weight of the evidence indicates that there was no causal connection between the filing of Petitioner's July 21, 1997, complaint and her loss of employment.

   45. If an employee proves a prima facie case of age, race, or gender discrimination based on a failure to promote or retaliation, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for the adverse employment action. McDonald Douglas Corp. v. Green, 411 U.S. at 802. The employer is not required to prove the absence of discriminatory motive, but is required to explain what was done or produce evidence of legitimate, nondiscriminatory reasons for the adverse action. Board of Trustees v. Sweeney, 439 U.S. 24 (1978). If the employer succeeds in carrying its burden, the employee then must show that the employer's reasons are pre- textural. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993).

   46. In this case, Respondent presented evidence that Petitioner had been given a verbal warning on August 8, 1997, and a final written warning on November 24, 1997, for violating Respondent's attendance policy. When Petitioner failed to show for scheduled work on December 14, 1997, and failed to personally contact one of her supervisors, Chef Chirum or Sous Chef Anglin, she violated the attendance policy again. Petitioner's reliance on Ms. Thigpen or Ms. Ernest to deliver her message was not in accordance with Respondent's procedures and left Chef Chirum no indication of whether Petitioner would report for work as scheduled on December 15, 1997.

   47. On December 15, 1997, Petitioner did not show up for work or call any of her supervisors to say she was sick. Even if Petitioner had a problem speaking with Chef Chirum, Sous Chef Anglin, and Michael Kulow, and assuming that Ms. Hanks was not in the office on December 15, 1997, Petitioner could have left a message for Ms. Hanks or called her on December 16, 2000. There is no persuasive evidence that Petitioner or her attorney spoke with Ms. Hanks on December 15 or 16, 1997.

   48. Petitioner went to see Ms. Hanks on December 17, 1997, but failed for the third day in a row to contact one of her supervisors as required by Respondent's attendance policy. Respondent's termination of Petitioner for failing to abide by

the attendance policy is legitimate and nondiscriminatory. Petitioner presented no credible evidence to the contrary.

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 dismissing Petitioner's Charge of Discrimination with prejudice.

DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001.

ENDNOTES

1/ There is no competent evidence that Wayne Edwards was a white male and younger than Petitioner. However, Respondent does not appear to contest these facts.

2/ In an affidavit that Ms. Hanks signed on September 18, 1998, during FCHR's investigation, Ms. Hanks stated that Petitioner often claimed that she was filing a discrimination claim against

Respondent. However, the greater weight of the evidence is that Respondent was not aware that Petitioner actually had filed a claim until after she was terminated.

COPIES FURNISHED:

Janice Cunningham Qualified Representative Post Office Box 1002

Fort Walton Beach, Florida 32549

Bruce Anderson, Esquire William Krizner, Esquire Collins & Truett, P.A.

2804 Remington Green Circle, Suite 4

Tallahassee, Florida 32308

Azizi Coleman, Acting Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. 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 within

15 days from the date of 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: 00-003912

Orders for Case No: 00-003912